Opinion
D067878
02-15-2017
In re ROBERT G. PULLEY on Habeas Corpus.
James R. Bostwick, Jr. for petitioner Robert G. Pulley. Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, Marilyn L. George, Deputy Attorney General for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD231564) ORIGINAL PROCEEDINGS on a petition for writ of habeas corpus. Relief denied. James R. Bostwick, Jr. for petitioner Robert G. Pulley. Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, Marilyn L. George, Deputy Attorney General for Respondent.
A jury convicted Robert G. Pulley of second degree murder (Pen. Code, § 187, subd. (a)); misdemeanor battery (§ 242), and making a criminal threat directed at his son, Matthew (§ 422). In connection with the murder conviction, the jury found true the allegations that Pulley intentionally and personally discharged a firearm resulting in death (§ 12022.53, subd. (d)) and personally used a firearm (§ 12022.5, subd. (a)). The jury found Pulley not guilty of making a criminal threat directed at his wife. The court sentenced Pulley to 40 years to life in state prison. Pulley appealed the judgment, which this court affirmed. (People v. Pulley (Mar. 22, 2013, D060502 [nonpub. opn.], review denied June 17, 2013, S209608.)
All statutory references are to the Penal Code unless otherwise specified.
We granted the People's motion to take judicial notice of the appellate record in People v. Pulley, No. D060502, in an order dated May 4, 2016.
FACTUAL AND PROCEDURAL BACKGROUND
We take the facts relevant to Pulley's petition from our previous opinion affirming Pulley's convictions.
I. The December 25, 2010 battery and threat (counts 2 and 3)
At approximately 12:30 a.m. on December 25, 2010, Sergeant Regalado responded to a noise complaint call from the 3900-block of Brown Street in Oceanside. The only house that appeared to have anything going on was that of the Misaalefua family, who lived across the street from Pulley's house. The garage door at the Misaalefua residence was up, and there were fewer than a dozen people in the garage. Regalado spoke with Jimmy Misaalefua, the host of the party, told him about the noise complaint, and talked with him about ways that the group could be quieter. Misaalefua was cooperative and apologetic. After talking with Misaalefua, Regalado left.
At 1:53 a.m., Regalado returned to Brown Street in response to a call for police assistance called in by paramedics who had arrived in response to what had originally been a call for medical assistance. An earlier call from Pulley's son, Matthew, stating that a woman had fallen and needed medical assistance had resulted in a paramedic and fire response. When Regalado arrived, he saw four firefighters restraining Pulley, who was on the ground in front of his residence. The firefighters explained that when they arrived in response to the medical call, Pulley told them that he had a shotgun in the house. The firefighters asked Pulley not to go inside until they administered medical aid, but Pulley ignored them and started to go into the house. At that point, the firefighters felt that it was necessary to restrain Pulley.
Regalado and other officers completed a safety sweep of the residence. They found [Pulley's wife] Angela [Pulley] upstairs, in bed, covered with blankets. Officers called out to her but got no response. They then tapped on her shoulder and were able to awaken her. Angela acted as if she had been unaware that the police were there, and told the officers that she was fine and did not need any help.
Matthew explained that he and Pulley had gotten into a fistfight earlier that evening. Matthew did not want to authorize an arrest of Pulley, but he did not want to go back into his house. Officers gave Matthew a ride to a nearby restaurant, and Pulley was released at his residence.
At trial, Matthew testified that his mother had fallen while trying to break up a physical altercation between Matthew and his father. Matthew called the fire department to check on his mother and make sure she was not hurt. According to Matthew, the fight between him and his father had started when Matthew and his father were talking about the Marines and the Army, and Pulley 'felt disrespected.' During the altercation, Pulley poured a drink on Matthew, and Matthew went outside to cool off. When Pulley went outside to apologize, Matthew threw Pulley into the pool. Matthew then went inside and began teasing Pulley. Pulley hit Matthew in the face, knocking him down. Matthew then went outside and challenged Pulley to fight. When Pulley walked outside to meet Matthew, Matthew grabbed a golf club and started antagonizing Pulley. At this point, Pulley started to walk back into the house, and said that he needed to get away before he shot, stabbed, or killed Matthew. Matthew told the police that Pulley had made direct threats, saying, 'I'm gonna kill him, I'm gonna shoot him and stab him.' Matthew said that he knew that Pulley was capable of carrying out the threats.
II. The December 25, 2010 murder (count 1)
a. Other witness evidence
Dexter Ena, Misaalefua's nephew, was at Misaalefua's house on Christmas Eve for a family gathering. Ena saw Pulley walking toward Misaalefua's house and asked Misaalefua who Pulley was. Misaalefua responded that Pulley was a neighbor. Ena walked to the back of the garage to get a beer from a refrigerator. When he returned, he saw Pulley and Misaalefua walking toward the street. Misaalefua had his arm around Pulley and it appeared that they were talking in a friendly manner.
Ena walked toward the street. When he got to the end of the driveway, he saw Pulley fall to the ground. Misaalefua was standing over Pulley, and Ena assumed that they were fighting. Ena ran to where Misaalefua was standing and asked what was going on. Misaalefua told Ena to ' "leave it alone." ' Another of Ena's uncle's, Matt Young, ran over to try to separate Misaalefua and Pulley.
Pulley got up from the street and said to Misaalefua, ' "I thought we were friends." ' Pulley then assumed a fighting stance. Young tried to push Misaalefua back, and Ena grabbed Pulley and told him to calm down. Once Misaalefua and Pulley were separated, Ena let go of Pulley. Pulley started walking back to his house. As he was walking toward the house, he looked back at Misaalefua and said, ' "I got something for you. I got something for you, mother fucker." ' Misaalefua yelled back something like, ' "All right, mother fucker. Let's go. Bring it on." '
As Pulley walked toward his house, Misaalefua followed him. Ena attempted to stop Misaalefua, telling him to leave it alone and to let Pulley go. Misaalefua told Ena to 'shut up' and continued following Pulley, who had gone into his garage and then into his house. When Misaalefua walked into Pulley's garage, Ena, who had been following, stopped just outside the garage. Misaalefua took off his shirt and Ena assumed that he was preparing to fight. Misaalefua waited approximately five to 15 feet outside the inner garage door.
Ena and Young tried to convince Misaalefua to return to his house with them. Ena then heard Misaalefua say, ' "What are you going to do with that? Shoot me[?]" ' Immediately after Misaalefua said that, Ena heard a gunshot. After the gunshot, Misaalefua said, ' "Is that all you got? Is that all you got?" ' Pulley and Misaalefua then started wrestling, and Ena heard more shots.
Although Ena's testimony was that there were 'more gunshots,' it seems clear from the evidence that Pulley fired a total of two times.
Ena moved through the garage and tried to shield himself behind a car. Young ran up to the left side of a car that was parked in the garage. Misaalefua was fighting with Pulley over the gun. Young reached the two men before Ena could. When Young got to the men, they all fell down. Young yelled at Pulley to let go of the gun.
Pulley was on top of Misaalefua when Ena got to them, and Young was on top of Pulley, trying to get the gun. Misaalefua said, ' "Get this mother fucker off of me." ' Ena told Pulley to let go of the gun, and tried to pull the gun away from Pulley. As Ena tried to get the gun away, Pulley bit Ena, and Ena hit Pulley. At that point, Young and Pulley both partially fell off of Misaalefua. Ena told Misaalefua, ' "Let's move, let's go." ' Misaalefua just kept repeating, ' "Get this guy off of me, get this mother fucker off of me." ' As Misaalefua spoke, his voice started to fade. Ena kept trying to hit Pulley to make him let go of the gun. This continued until the police arrived.
Sao Young, Misaalefua's sister-in-law, called 911 at 2:43 a.m., which was only 13 minutes after Sergeant Regalado had cleared the earlier call involving Pulley and his son. Sao Young reported that someone had been shot, and that her husband, Matt Young, was wrestling with someone who was holding a gun.
Sergeant Regalado returned to Brown Street in response to a call about shots being fired. When Regalado arrived, he saw several people engaged in a struggle inside Pulley's garage. Misaalefua was on the ground with his eyes closed. A pool of blood was forming around him. Two women were standing over Misaalefua, crying and grabbing at him. Two men were struggling to restrain Pulley.
Regalado grabbed Pulley's right arm and Pulley released a small semi-automatic handgun. As Regalado tried to hold onto Pulley's arm, Pulley stiffened in a manner that made Regalado think that Pulley was trying to grab the gun. Regalado held Pulley's arm tighter, picked up the gun, and moved it beyond Pulley's reach. Regalado then handcuffed Pulley with the assistance of other officers.
Misaalefua subsequently died at the hospital as a result of a gunshot wound to the chest.
b. Pulley's December 25 interview
Detective William Wallace interviewed Pulley on December 25, 2010. A video of the interview was played for the jury at trial. During the interview, Pulley told Wallace that when officers arrived at his home the first time on December 25, he was thrown to the ground, put in handcuffs, and placed in a patrol car for approximately 30 minutes. Pulley said that at the time he did not know why this was happening. When the police finally left, he walked over to Misaalefua's house to apologize for the disturbance. According to Pulley, as he started to apologize to Misaalefua, Misaalefua hit him and knocked him to the ground. Pulley got up, asked Misaalefua what was wrong with him, and then ran back to his house because Misaalefua was 'just going crazy.' Pulley ran to the front door, went inside the house and grabbed his gun. He ran around to the garage to close the garage door, but someone was standing near the door and it would not close. Pulley ran outside and said, 'Get the hell off my property,' or something to that effect. He explained to Wallace that after that point, he did not remember what happened, other than that he had been tackled.
Pulley told Wallace that he kept his .25-caliber pistol in a china cabinet by the front door in case of a home invasion. He owned a number of guns and kept another gun by his bed. Pulley explained that he grabbed the gun from the china cabinet on his way to close the garage door. Pulley said that he did not remember the gun going off, and also did not remember taking the safety off of the gun to prepare to use it. Pulley admitted that he had had 'lots of weapons training' from his military experience, and said that he did not normally take the safety off of a gun when he grabbed one.
Pulley told Wallace that he had been drinking vodka that night.
c. Other evidence
The parties stipulated that Pulley's blood alcohol level at the time of the shooting was approximately .19 percent. Misaalefua's blood alcohol level at the time of his death was .18 percent.
A criminalist with the San Diego County Sheriff's Department Crime Laboratory analyzed the Browning .25-caliber pistol and two expended cartridge cases. The pistol was working properly. It required six pounds of pressure to pull the trigger. The pistol had a magazine safety mechanism, which meant that it would not fire if there was no magazine in the weapon. The gun also had a manual safety.
The criminalist determined that the muzzle of the gun had been less than six inches from Misaalefua at the time it was fired.
A firearm expert testified that the pistol used in the shooting required a six-pound trigger pull, and that this was on the heavy side for a .25-caliber automatic pistol. In order to activate the safety of the .25 Browning pistol, a person must execute a very deliberate action, which makes it a relatively safe weapon.
III. Pulley's original petition and supplemental petition
On April 17, 2015, Pulley filed a petition for writ of habeas corpus with this court presenting the following 14 claims that he had unsuccessfully presented in a petition for writ of habeas corpus filed in superior court:
1. Pulley's trial counsel, David Thompson rendered ineffective assistance in failing to investigate and present to the jury readily available documentary evidence that the garage where the shooting occurred was attached to Pulley's "inhabited dwelling" (house) in response to the prosecutor's presentation, during her closing argument, of reenactment videos showing the "garage as an unincorporated structure separated and detached from [Pulley's] residence."
2. The prosecutor violated Pulley's right to due process and sections 132 and 134 when she presented, during her closing argument, three silent power point computer-generated videos that Pulley maintains were undisclosed, unauthenticated, and unidentified for the record. Pulley contends that the videos fraudulently and deceitfully: (1) depicted his attached garage as an unincorporated structure detached and separated from his house; (2) showed three crime reenactments that misrepresented testimony of witnesses by erroneously showing (a) a reenactment of him exiting the detached structure with his gun; (b) a reenactment of Misaalefua physically engaging or grabbing him outside of the detached structure; (c) Misaalefua forcing or pushing him back inside his garage; and (d) omitting an illustration of Misaalefua removing his shirts inside his (Pulley's) garage. Pulley complains that the court ordered the videos not be marked for identification and failed to give a cautionary instruction that they did not present a fair, accurate, or exact recreation of the events depicted.
Section 132 provides: "Every person who upon any trial, proceeding, inquiry, or investigation whatever, authorized or permitted by law, offers in evidence, as genuine or true, any book, paper, document, record, or other instrument in writing, knowing the same to have been forged or fraudulently altered or antedated, is guilty of felony."
Section 134 provides: "Every person guilty of preparing any false or antedated book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced for any fraudulent or deceitful purpose, as genuine or true, upon any trial, proceeding, or inquiry whatever, authorized by law, is guilty of felony."
3. Thompson rendered ineffective assistance in failing to "investigate" and cite to the court case law holding that section 198.5 does not require the intruder to be a stranger to the residence when the court violated section 1044 by failing to take corrective action regarding the prosecutor's erroneous statement during closing argument that section 198.5 does not apply unless the intruder is a stranger to the resident.
Section 198.5 provides: "Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred."
Section 1044 provides: "It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved."
4. The trial court violated section 1044 by failing to take corrective action when the prosecutor made the erroneous statement of law during closing argument that section 198.5 did not apply because Misaalefua was not a stranger to Pulley.
5. Thompson rendered ineffective assistance in failing to "investigate" and cite to the court People v. Cook (1982) 135 Cal.App.3d 785, 796, in which the court held that a garage attached to a residence is "simply one room of several which together compose the dwelling."
6. The trial court violated section 1124 by failing to instruct the jury under People v. Cook, supra, 135 Cal.App.3d 785, that where a garage is attached to a house it is "simply one room of several which together compose the dwelling."
Section 1124 provides: "The Court must decide all questions of law which arise in the course of a trial."
7. Thompson rendered ineffective assistance in failing "to investigate and file written charge to the court of the state's statutory and decisional laws [regarding] residential burglary of an inhabited dwelling when the trial court violated Evidence Code section 451 by failing to take judicial notice of the state's statutory and decisional laws [regarding] residential burglary as the principles of burglary became openly and closely connected with the facts of the case." (I.e., Thompson's performance was deficient in failing to present the theory that Misaalefua was committing a residential burglary at the time he was shot.)
8. The trial court violated Evidence Code section 451 by failing to take judicial notice of the state's statutory and decisional laws that were material to Pulley's defense that the homicide he committed was justifiable because it was "in resistance of a residential burglary intending violence to the occupant."
9. Thompson rendered ineffective assistance in failing to object and preserve for appellate review the trial court's violation of section 1126 by failing to instruct the jury that entry into a garage constitutes a residential burglary under sections 459 and 460 after the court made that observation during a discussion with trial counsel while the jury was deliberating.
Section 1126 provides: "In a trial for any offense, questions of law are to be decided by the court, and questions of fact by the jury. Although the jury has the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive as law what is laid down as such by the court."
10. The trial court violated section 1126 and committed plain error by failing to instruct the jury that entry into a garage constitutes a residential burglary under sections 459 and 460, subdivision (a) (burglary of an inhabited dwelling is first degree burglary) after the court made that observation during a discussion with trial counsel while the jury was deliberating.
11. The trial court violated section 1127 and committed plain error by failing "to submit to the jury the material questions of fact raised by substantial evidence that satisfy the California Supreme Court's standard for a forcible and atrocious burglary and the material questions of fact relevant and material to the defense's theory of the case." (Fn. omitted.) (I.e., the court failed to submit to the jury factual questions going to the issue of whether Misaalefua was committing a residential burglary at the time Pulley shot him.)
Section 1127 provides: "All instructions given shall be in writing, unless there is a phonographic reporter present and he takes them down, in which case they may be given orally; provided however, that in all misdemeanor cases oral instructions may be given pursuant to stipulation of the prosecuting attorney and counsel for the defendant. In charging the jury the court may instruct the jury regarding the law applicable to the facts of the case, and may make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the case and in any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court. The court shall inform the jury in all cases that the jurors are the exclusive judges of all questions of fact submitted to them and of the credibility of the witnesses. Either party may present to the court any written charge on the law, but not with respect to matters of fact, and request that it be given. If the court thinks it correct and pertinent, it must be given; if not, it must be refused. Upon each charge presented and given or refused, the court must endorse and sign its decision and a statement showing which party requested it. If part be given and part refused, the court must distinguish, showing by the endorsement what part of the charge was given and what part refused."
12. Pulley has obtained new evidence that Thompson rendered ineffective assistance in failing to conduct a reasonable pretrial investigation in that he failed to interview and subpoena material eyewitness Justin Pulley, Pulley's son, who was willing and able to provide trial testimony corroborating Pulley's claims that he did not make a criminal threat against Matthew, and that the battery against Matthew was justified to evict Matthew as a trespasser. Pulley also contends that Thompson falsely informed him that Justin refused to testify at trial about the events that he witnessed.
13. Thompson rendered ineffective assistance in failing to investigate and file a motion for discovery of fingerprint evidence in the possession of the state's investigating agency, and exacerbated the constitutional error by falsely informing Pulley that the fingerprint evidence would not be available to Pulley unless he abandoned his proposed claim, in moving for a new trial, that he received ineffective assistance of counsel.
14. Pulley is actually innocent of the crimes of which he was convicted and the constitutional errors alleged in grounds 1 through 13 "probably caused a fundamental miscarriage of justice resulting in [his] conviction and incarceration." Pulley contends that "the 'actual innocence' exception to the AEDPA [Anti-Terrorism and Effective Death Penalty Act] and the 'miscarriage of justice' exception to the state procedural defaults provide [him] a gateway to allow his petition to be considered on the merits in both state and federal court."
In McQuiggen v. Perkins (2013) 133 S.Ct. 1924, 1928, the United States Supreme Court held that "actual innocence, if proved, serves as a gateway [to federal habeas review] through which a petitioner may pass whether the impediment [to relief] is a procedural bar . . . or . . . expiration of the statute of limitations." The Supreme court "caution[ed], however, that tenable actual-innocence gateway pleas are rare: '[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.' " (Ibid.)
We requested an informal response from the Attorney General addressing only ground 12 of the petition (new evidence that Thompson failed to interview and subpoena Justin). After considering the petition and the informal response, we issued an order to show cause (OSC) and later issued an order stating that the OSC was not limited in scope to ground 12. We appointed counsel to represent Pulley in these proceedings and Pulley's counsel filed a supplemental petition. The Attorney General filed a return and Pulley filed a traverse.
In May 2016, we ordered the presiding judge of the superior court to appoint a judge of the superior court to serve as a special master and hold an evidentiary hearing to take evidence on specified questions concerning ground 12 of the petition and to make findings of fact responsive to those questions. We discuss those questions and the special master's findings infra.
DISCUSSION
I. Claims in Original Petition Other Than Ground 12
As noted, Pulley filed a habeas corpus petition in superior court (In re the Petition of Robert G. Pulley on Habeas Corpus, San Diego County Superior Court Case No. HC 21902) raising the same 14 grounds for relief that he raises in this court. The superior court denied each of the 14 grounds for relief. Although we issued an order stating that our OSC was not limited in scope to ground 12, we conclude that Pulley has stated a prima facie case for relief only as to ground 12, as reflected by our request for an informal response and order directing appointment of a special master to conduct an evidentiary hearing as to that ground only. Consequently, we address only briefly the other claims that Pulley raises, and note that we agree with the superior court's disposition of these claims.
We conclude that the following claims are barred because Pulley could have raised them on appeal: Ground 2, alleging that the prosecutor's use of silent power point computer-generated videos during her closing argument violated his right to due process; Ground 4, complaining that the trial court failed to correct an erroneous statement of law made by the prosecutor during her closing argument; Ground 6, alleging that the court should have instructed the jury that a garage attached to a house is part of the dwelling; Ground 8, complaining that the court should have taken judicial notice of California law regarding justifiable homicide committed in resistance to a residential burglary; Ground 10, alleging that the court erred by failing to instruct the jury that entry into a garage constitutes a residential burglary; and Ground 11, alleging that the court erred by failing to submit certain material questions of fact to the jury.
Pulley alleges that he received new evidence that the prosecutor presented false evidence by presenting the videos, but does not explain how anything that the prosecutor said or did during her closing argument constitutes "new evidence."
"The general rule is that habeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction." (In re Dixon (1953) 41 Cal.2d 756, 759 (Dixon).) The "[p]etitioner has the burden . . . of giving a satisfactory reason for not resorting to his remedy of appeal." (Id. at p. 760.)
The general rule barring claims that could have been raised on appeal, known as the "Dixon rule" (In re Reno (2012) 55 Cal.4th 428, 490), is subject to four exceptions: "(1) where the issue constitutes a fundamental constitutional error; that is, 'where the claimed constitutional error is both clear and fundamental, and strikes at the heart of the trial process' [citation]; (2) where the judgment of conviction was rendered by a court lacking fundamental jurisdiction, described as 'an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties' [citations]; (3) where the court acted in excess of its jurisdiction, such as when it imposes an illegal sentence [citation]; and (4) 'when there has been a change in the law affecting the petitioner' [citation]." (Id. at pp. 478, fn. omitted, 490-491.)
Pulley does not claim that any of the four exceptions to the Dixon rule applies to any of his claims that could have been raised in his appeal. Thus, Pulley's petition is barred as to the claims set forth as Grounds 2, 4, 6, 8, 10, and 11.
Grounds 1, 3, 5, 7, 9, and 13 allege ineffective assistance of counsel. "Because a petition for a writ of habeas corpus seeks to collaterally attack a presumptively final criminal judgment, the petitioner bears a heavy burden initially to plead sufficient grounds for relief, and then later to prove them." (People v. Duvall (1995) 9 Cal.4th 464, 474 (Duvall).) To establish a prima facie case of ineffective assistance of counsel, the appellant must show (1) his counsel performed at a level below an objective standard of reasonableness under prevailing professional norms, and (2) he was prejudiced as a result of his counsel's deficient performance. (People v. Hamilton (1988) 45 Cal.3d 351, 377.) Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (In re Sixto (1989) 48 Cal.3d 1247, 1257.) Since a failure on either prong is fatal to establishing ineffective assistance of counsel, we need not address both prongs if we conclude that appellant cannot prevail on one of them. (People v. Cox (1991) 53 Cal.3d 618, 656, quoting Strickland v. Washington (1984) 466 U.S. 668, 697 [" 'In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.' "].)
Grounds 1, 3, 5, 7, 9, and 13 all center around the defense theory that Pulley's garage was a part of his house and, therefore, that he was justified in shooting Misaalefua because Misaalefua was committing a burglary at the time he attacked Pulley in Pulley's home (the garage), and caused Pulley to reasonably fear death or great bodily injury. Pulley suggests that the jury was misled into thinking that his garage was not attached to the house, or that it was not a part of the house even if it was attached.
The jury was not misled on those points. Based on the record, this court's opinion in Pulley's appeal stated that "Pulley entered the house through an interior garage door, while Misaalefua stood in the garage, between five and 15 feet away from that interior door, waiting for Pulley to return." As Pulley acknowledges in his petition, "[t]he record shows that during Petitioner's criminal proceeding, the court and the jury were provided with undisputed testimony that the decedent entered into the garage [attached to Petitioner's house]." (Second brackets in original.) During closing argument, the prosecutor referred to Pulley's "act of walking inside his open garage door" and then walking "inside his home to get a loaded gun inside his house[.]" In addition, in Thompson's closing argument, he referred to the "laundry room door" that Pulley went through from the garage to get to his gun. During deliberations, the jury sent a note asking, "Is the garage part of the home[?]" The court responded, "An attached garage is part of a residence." Since the garage at issue in the jury's question was Pulley's garage, the court's response constituted an implicit acknowledgment of the undisputed fact that Pulley's garage was attached to his house. The record does not support Pulley's suggestion that the jury was misled into thinking that the garage was detached from the house and therefore, was not a part of the house. Accordingly, Grounds 1 and 5 in Pulley's petition fail to state a prima facie case for relief because they are both based on the erroneous view that the jury was not made aware that Pulley's garage was attached to his house.
Pulley cites testimony of various witnesses referring to Pulley entering the garage and then going from the garage into the house through the "interior door" or "laundry room door." It is clear from Pulley's own testimony that after he retrieved his pistol from the house, he entered the garage from the house through the laundry room door.
Pulley's Ground 3, claiming that Thompson rendered ineffective assistance in failing to ask the court to correct the prosecutor's erroneous suggestion that section 198.5 does not apply unless the intruder is a stranger to the resident, also fails to state a prima facie case for relief. The record shows that the jury was adequately instructed on relevant law regarding a person's right to defend his or her home. In Pulley's appeal, this court addressed Pulley's reliance on the presumption created by section 198.5 to support his argument that he acted with legal justification in defending his home when he shot Misaalefua. This court concluded that there was sufficient evidence to support a finding that Pulley's conduct was not justified under section 198.5. The opinion notes that the trial court instructed the jury with CALCRIM No. 506 regarding justified homicide in defense of home. The trial court also instructed the jury with CALCRIM No. 3477, which articulates the presumption under section 198.5 that a resident reasonably fears death or great bodily injury to himself or a member of his family or household when an intruder unlawfully and forcibly enters the defendant's home; CALCRIM No. 3475, which explains the right to eject a trespasser from the home and to use reasonable force if the trespasser does not leave and reasonably appears to pose a threat to the home or owner; and CALCRIM No. 3476, which explains the right to use reasonable force to defend one's property from imminent harm.
None of these instructions required the jury to find that an intruder must be a stranger to the defendant in order for the presumption under section 198.5 to apply or for the defendant's use of force against the intruder to be justified. The court also instructed the jury with CALCRIM No. 222, which informed the jury that it must decide the facts using only the evidence presented and that "[n]othing that the attorneys say is evidence. In their opening and closing arguments, the attorneys discuss the case, but their remarks are not evidence." We " 'credit jurors with intelligence and common sense' [citation] and presume they generally understand and follow instructions [citation]." (People v. McKinnon (2011) 52 Cal.4th 610, 670.) It is not reasonably probable that the jury would have returned a verdict more favorable to Pulley if the prosecutor had not suggested that the presumption created by section 198.5 did not apply because Misaalefua was not a stranger to Pulley.
Grounds 7, 9, and 11 together essentially claim that Thompson rendered ineffective assistance by not pursing the theory, and asking the court to instruct the jury, that Pulley was justified in shooting Misaalefua if Misaalefua was committing a residential burglary at the time of the incident. As noted, the jury was thoroughly and correctly instructed on self-defense and as to when a defendant is justified in using force in defense of his home or property, and the evidence sufficiently supported the jury's determination that Pulley's conduct was not legally justified. It is not reasonably probable that the jury would have rendered a verdict more favorable to Pulley if it had been instructed to consider whether Misaalefua's conduct at the time he was shot constituted residential burglary.
In Ground 13, Pulley faults Thompson for failing to pursue fingerprint evidence in the possession of the state's investigating agency. In his supplemental petition, he elaborates on this ground by stating that Thompson failed to properly investigate fingerprint evidence that the police collected in Pulley's garage and that could have been used to establish who was present at the time of the shooting. It is not reasonably probable that the presentation of fingerprint evidence at trial revealing the identities of the various people who were in the garage before, during, and after the shooting would have had any significant impact on the jury's assessment of the incident based on the witness testimony and other evidence presented at trial, and Pulley does not explain how the fingerprint evidence might have affected the outcome of his trial.
Regarding Pulley's claim of actual innocence in Ground 14, Pulley does not point to any evidence that establishes his actual innocence. His claim of actual innocence is presumably based on his failed defense theories that his killing Misaalefua was legally justified because he acted reasonably in self-defense or defense of his home. Substantial evidence supported the jury's rejection of those defenses.
II. Ground 12
Regarding Ground 12, our issuance of the order to show cause constituted a preliminary determination that Pulley had set forth a sufficient prima facie statement of specific facts that, if established, would entitle him to relief. (In re Sassounian (1995) 9 Cal.4th 535, 547.) However, "[t]hat determination, it must be emphasized, is truly 'preliminary': it is only initial and tentative, and not final and binding." (Ibid.)
In May 2016, we ordered the presiding judge of the superior court to appoint a judge of the superior court to serve as a special master and conduct an evidentiary hearing to take evidence and make findings on the following questions concerning Ground 12:
1. Was Justin Pulley available and willing to testify at trial?
2. What would Justin Pulley's trial testimony have been regarding defendant Robert Pulley's alleged criminal threats against Matthew Pulley?
3. If Justin Pulley testifies at the evidentiary hearing, what is the special master's assessment of the credibility and probative value of his testimony?
4. What investigative measures did trial counsel take to ascertain whether Justin Pulley would provide material exculpatory testimony in support of the defense on the criminal threat count?
5. What measures did trial counsel take to secure Justin Pulley's appearance and testimony at trial?
6. Did trial counsel's acts or omissions regarding an investigation as to whether Justin Pulley would provide material exculpatory testimony in support of the defense fall below an objective standard of reasonableness under prevailing professional norms in the San Diego legal community?
7. Did counsel's failure to secure Justin Pulley's appearance and testimony at trial fall below an objective standard of reasonableness under prevailing professional norms in the San Diego legal community?
8. If either question six or seven is answered in the affirmative, was Pulley prejudiced by counsel's acts or omissions, i.e., is it reasonably probable that an outcome more favorable to Pulley would have resulted in the absence of trial counsel's failures?
Evidentiary hearing
The special master conducted the evidentiary hearing and heard testimony mainly from Justin and Thompson. Thompson's former paralegal/secretary Leah Hunter, Sheriff's Sergeant Jill Farris, and District Attorney Investigator Heather Czerwinski also testified.
Justin testified about the events on the night Pulley threatened Matthew and shot Misaalefua. He testified that he did not hear Pulley make any threats to Matthew during Matthew and Pulley's altercation and did not hear Pulley say words to the effect that he was going to shoot, stab, or kill Matthew. After the incident, Justin was never contacted by the police or the district attorney's office and he did not have any conversations with Thompson or anyone at Thompson's office, except when Thompson greeted him and shook his hand at Pulley's preliminary hearing. Justin did not remember any telephone conversations with Thompson or telling Thompson that he preferred not to have to come to court. He did not talk with anyone else about his observations on the night of the incident and did not know before Pulley's trial that Pulley had been charged with making criminal threats to Matthew.
Justin recorded his memory of the events that occurred on the night of the incident in an affidavit that he wrote in October 2014. He prepared the affidavit, with his mother's help, because he learned that Matthew had said that Pulley had threatened him (Matthew) and Justin wanted to "tell [his] side of the story."
Thompson testified that he practiced law from 1972 until he retired in 2012 or 2013. At the time of Pulley's trial in 2011, his law practice was half criminal defense and half plaintiff personal injury cases. Thompson had been diagnosed by a doctor with short-term memory loss. He did not recall exactly when he began to have memory issues, but did not believe that he had memory issues while he was practicing law.
Thompson remembered that Pulley's case involved "a shooting in the driveway of a Samoan neighbor." He remembered being there and doing the best he could for Pulley, but did not "remember much more than that." However, if he read a memorandum (memo) from Pulley's case file that he had written or directed his secretary to prepare, the contents of the memo "would be [his] opinion as to what happened." Thompson's practice was to "memo everything that went into my file or out of my file [for a client] and to provide a copy to my client." He normally dictated his memos and sent them to his client so that "the client knew everything that I knew and everything that was in his [or her] file since . . . his or her future was based upon the documents that I would receive." The memos also served the purpose of documenting information that Thompson might not later remember.
Thompson's file for Pulley's case contains a memo dated March 1, 2011, documenting a telephone conversation that Thompson received from Justin. The memo reflects that Justin called and advised Thompson of his current address and telephone number. Thompson wrote that Justin "recited his recollection of the evening events and it was not much different than Matthew's." Justin gave Thompson "his address and phone number — but apparently would like to avoid court appearances." Thompson told Justin that "his dad was in George Bailey [Detention Facility] and requested that he go visit him." Justin asked Thompson to tell Pulley to please give Justin a call. The file stated that Thompson's secretary had been advised to "1. DIRECT A COPY OF THIS MEMO TO THE CLIENT, THE CLIENT'S WIFE, THE CLIENT'S MOTHER AND TO THE FILE. [¶] 2. PUT A COPY OF THIS MEMO IN BOTH THE JUSTIN PULLEY AND MATTHEW PULLEY SUB-FILES." Thompson's secretary, Hunter, drew a line through the numbers 1 and 2, which showed that she had completed those tasks. Thompson did not have any independent recollection of his telephone conversation with Justin.
A transcript of a recorded conversation between Pulley and his wife, Angela, on March 5, 2011, was admitted at the evidentiary hearing. The conversation took place in the visiting area of the George Bailey Detention Facility, where Pulley was incarcerated. At one point during the conversation, Pulley stated, "And also, [Thompson] told me he talked to Justin?" Angela responded, "I got a letter saying that he talked to Justin[,]" indicating that Angela had received Thompson's memo regarding his March 1 conversation with Justin. Pulley stated that if Justin did not remember what happened, "then they can't say something happened if Justin doesn't remember what happened. Angela replied, "Uh-huh." Pulley then said, "So, why is Justin telling them anything?" He then appeared to instruct Angela to tell Justin not to tell "them" what he remembered. Angela said, "I did tell him[,]" and Pulley responded, "Tell him again." Sergeant Farris testified that in 2011, when Pulley was at George Bailey Detention Facility, there were signs posted on walls of the visitation area stating that the visits were monitored or subject to monitoring.
In three recorded jail conversations between Pulley and Justin in January 2011, Pulley asked Justin to write down what he remembered about the night of the incident and to bring the writing to him. Pulley asked Justin to write down what he remembered instead of orally relating it to Pulley because visiting room conversations were recorded and the writing would be a private communication. Justin did not write what he remembered until he prepared his affidavit in October 2014.
Thompson arranged to have Justin subpoenaed to appear at Pulley's preliminary hearing, but the address for service on the subpoena was not the one that Justin had given Thompson when he called Thompson on March 1, 2011. The process server was informed by a woman at the address on the subpoena that Justin had left that address and that she did not know his current address. Thompson had no independent recollection of why the subpoena was not served at the address Justin had given Thompson on March 1, but he guessed that Hunter had taken the address for the subpoena from the police reports instead of from Thompson's March 1 memo.
District Attorney Investigator Czerwinski testified that she obtained telephone records from AT&T showing that on the day before the preliminary hearing, a call that lasted one minute and 10 seconds was made from one of Thompson's phone lines to Justin's phone number. Hunter testified that a hash mark (cross-out line) through Justin's name on the "SUBPOENA ON-CALL CHART" that she prepared for Pulley's trial indicated that Thompson did not intend to call Justin as a witness at trial.
Special master's findings
The special master noted in her report that the petitioner has the burden of proof at an evidentiary hearing in a habeas corpus proceeding (Duvall, supra, 9 Cal.4th at p. 474), and that the standard of proof is preponderance of the evidence (In re Visciotti (1996) 14 Cal.4th 325, 351).
Regarding Justin's availability and willingness to testify at trial, the special master found that Justin was available but was not willing to testify, noting that Thompson drew that conclusion from the statement in the memo of his March 1, 2011, conversation with Justin that Justin apparently wanted to avoid court appearances. The special master found this conclusion credible because Thompson had no reason to misstate his impression of the conversation. The special master "reasonably inferred" from Pulley's conversation with Angela at the jail that Pulley did not want Justin to testify, noting that Pulley told Angela to tell Justin not to remember what happened or to talk to people about the case.
The special master found that Pulley failed to meet his burden of proving that if Justin had testified at trial in 2011, his testimony would have differed significantly from Matthew's. The special master noted that the only specific evidence from 2011 of what Justin would have said at trial was Thompson's memo stating that Justin's recollection of the events of the night in question was not much different from Matthew's. Given that memo and Thompson's practice of memorializing events as they happened, the special master did not believe that Thompson would have made up the conversation. In addition, the conversation was confirmed by Pulley and Angela's jail conversation in which Pulley acknowledged the conversation between Thompson and Justin and Angela said she had received a letter stating that Thompson had talked to Justin.
As noted, we requested that the special master assess Justin's credibility and the probative value of his testimony. The special master did not find Justin's testimony at the evidentiary hearing to be credible or to have significant probative value because there were conflicts between his affidavit and his testimony at the hearing and other evidence. In addition, Justin's denial of ever having spoken to Thompson was not credible in light of Thompson's memo regarding their telephone conversation. The special master found that "[Justin] may not remember the conversation now, but he did have a substantive conversation that Thompson memorialized." In his affidavit, Justin stated that he was with Pulley and Matthew throughout the entire time they played dominoes (a couple of hours) and never witnessed Pulley throw a drink on Matthew, but Matthew and Pulley both testified at trial about the drink incident and Pulley admitted that he had spilled a drink on Matthew.
At the evidentiary hearing, Justin testified that he was standing between Pulley and Matthew during their confrontation outside the house, but neither Matthew nor Pulley described Justin being between them during their standoff. Justin testified that the confrontation ended when Justin and Matthew walked up the street and Pulley presumably went back into the house, and that he never heard Pulley state that he would shoot, stab, or kill Matthew. Justin's testimony is inconsistent with Matthew's statements that Pulley made those threats as he headed back into the house at the end of the confrontation. Matthew consistently stated throughout his police interviews, his preliminary hearing testimony, and his trial testimony that he had been threatened. At trial, Pulley did not deny making threats; he testified that he did not remember making them.
Regarding the investigative measures that Thompson took to ascertain whether Justin would provide material exculpatory testimony pertaining to the criminal threat count involving a threat to Matthew, the special master noted Thompson's conversation with Justin on March 1, 2011, after which Thompson concluded that Justin's recollection of the events on the night of the incident was not much different from what Matthew had described. Thompson did not take measures to secure Justin's appearance and testimony at trial because he decided not to call Justin as a witness—a strategic decision that he made after he had reviewed discovery and discussed potential witnesses with Hunter, including the witnesses' credibility, how much information they could provide, and whether their testimony would be duplicative.
The special master concluded that Thompson's acts or omissions regarding an investigation as to whether Justin could provide material exculpatory testimony in support of the defense did not fall below an objective standard of reasonableness under prevailing professional norms. The special master found that Thompson conducted an adequate investigation by speaking to Justin and determining that Justin's recollection was not much different from Matthew's. Having made that determination, Thompson was not obligated to spend time and resources interviewing Justin again. Thompson's investigation regarding whether Justin should be called as a witness was reasonable.
The special master found that Thompson's failure to secure Justin's appearance and testimony likewise did not fall below an objective standard of reasonableness under prevailing professional norms. After talking to Justin, Thompson concluded that Justin's testimony would be cumulative to Matthew's, which was damaging to Pulley. In addition, Thompson determined that Justin was reluctant to testify.
In short, the special master found that Thompson did not render ineffective assistance in his investigation of whether to call Justin as a trial witness and his decision not to call Justin. Accordingly, the special master did not consider whether Pulley was prejudiced by Thompson's acts or omissions in that regard.
We give great weight to the findings of a referee or special master that are supported by substantial evidence. (In re Hardy (2007) 41 Cal.4th 977, 993 (Hardy).) " 'This is especially true for findings involving credibility determinations. The central reason for referring a habeas corpus claim for an evidentiary hearing is to obtain credibility determinations [citation]; consequently, we give special deference to the referee on factual questions "requiring resolution of testimonial conflicts and assessment of witnesses" credibility, because the referee has the opportunity to observe the witnesses' demeanor and manner of testifying.' " (Ibid.)
Although we defer to the referee on factual and credibility matters, we do not defer to his or her findings in other areas. (Hardy, supra, 41 Cal.4th at p. 993. " 'We independently review prior testimony [citation], as well as all mixed questions of fact and law [citation]. Whether counsel's performance was deficient, and whether any deficiency prejudiced the petitioner, are both mixed questions subject to independent review. [Citation.] Ultimately, the referee's findings are not binding on us [citations]; it is for this court to make the findings on which the resolution of [petitioner's] habeas corpus claim will turn [citations].' " (Id. at pp. 993-994.)
We agree with the special master's findings and conclusions and give great weight, as we must, to her assessment of Justin's credibility. The special master reasonably found that Justin's 2014 affidavit and his testimony at the evidentiary hearing were not credible exculpatory evidence based on the evidence that Justin had no exculpatory testimony to offer in 2011. The evidence cited by the special master sufficiently supports her findings that Justin was available but unwilling to testify at trial; Thompson conducted an adequate investigation as to whether Justin would provide material exculpatory testimony in support of the defense by speaking to Justin on March 1, 2011; Thompson reasonably decided not to call Justin as a witness at trial after determining that Justin's testimony regarding the events leading to Pulley's criminal threats against Matthew would not differ significantly from Matthew's testimony and that Justin was reluctant to testify; and Pulley did not want Justin to testify at trial. In particular, Thompson's March 1, 2011, memo about his conversation with Justin together with the March 5, 2014, jail conversation between Pulley and Angela sufficiently support the finding that Thompson reasonably chose not to call Justin to testify at trial because his testimony would have been cumulative to Matthew's, and incriminating. Pulley and Angela both acknowledged in their jail conversation that Thompson had recently spoken to Justin and Pulley directed Angela to tell Justin not to talk to anyone about the events of the night of the incident. The special master could reasonably infer from this evidence that Justin's testimony would be damaging to Pulley and, therefore, that Thompson's decision to not call Justin as a witness at trial was reasonable.
Pulley argues that the special master's reliance on his jail conversation with Angela in making findings was improper because that conversation was protected by the marital privilege of Evidence Code section 980. After Pulley objected to admission of the conversation at the evidentiary hearing, the master heard argument and reviewed case law on the applicability of the privilege. The special master determined that the privilege did not apply and overruled Pulley's objection, concluding there was no expectation of privacy in the jail conversation.
Evidence Code section 980 states: "Subject to Section 912 and except as otherwise provided in this article, a spouse (or his guardian or conservator when he has a guardian or conservator), whether or not a party, has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he or she claims the privilege and the communication was made in confidence between him or her and the other spouse while they were spouses."
The special master correctly determined that Pulley's jail conversation with Angela was not protected by the marital privilege. "To make a marital communication ' "in confidence," one must intend nondisclosure [citation] and have a reasonable expectation of privacy.' [Citation.] Both factors must be shown before invocation of the marital privilege will be honored." (People v. Von Villas (1992) 11 Cal.App.4th 175, 220-221 (Von Villas). The Von Villas court concluded that the defendant and his wife had no justifiable expectation of privacy in a conversation between them where "[t]hey were in a regular jail visiting room speaking loudly to each other through the plexiglass with knowledge that a guard was watching them. Their conduct clearly indicated there was no expectation of privacy during the conversation. Further, their conduct demonstrated that they did not intend nondisclosure . . . ." (Von Villas, supra, 11 Cal.App.4th at p. 221.)
Pulley and Angela similarly had no justifiable expectation of privacy in their jail conversation about Justin because they knew the conversation was being recorded and that the visit was subject to being monitored. Further, the special master could reasonably conclude that they did not intend nondisclosure because Pulley directed Angela to convey the content of the conversation to Justin. (See People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 420 [no evidence that defendant intended nondisclosure of a communication to his estranged wife that included a threat to murder her current lover where circumstances gave rise to a reasonable inference that defendant intended the wife to convey the threat to her lover].) The special master did not abuse her discretion in admitting the conversation. (See In re Johnson (1998) 18 Cal.4th 447, 459 [reviewing referee's rulings on the admissibility of evidence for abuse of discretion].)
The special master noted that Pulley expressed his awareness that his jail conversations with visitors were recorded when he asked Justin to write down what he remembered instead of orally relating it to Pulley because, in Pulley's words, "they record all that shit in the visiting room." --------
Pulley has not met his burden of establishing that Thompson rendered ineffective assistance of counsel with respect to his decision to not call Justin as a witness at trial.
III. Supplemental Petition
In his supplemental petition, Pulley raises the following new claims: (1) Thompson rendered ineffective assistance in failing to request instructions that were essential to his defenses of self-defense and defense of home; (2) Pulley's appellate counsel rendered ineffective assistance in failing to raise on appeal the issue of the trial court's failure to sua sponte give those instructions; (3) Thompson rendered ineffective assistance in failing to object to the prosecutor's misconduct during closing argument, including the misconduct alleged in Ground 1 of the original petition and her appeal to the jury's sympathy and passion; and (4) Thompson rendered ineffective assistance in failing to properly investigate a police report that an unidentified male fled Pulley's residence just as the police officer dispatched to investigate the shooting arrived there.
Regarding the first two claims, we again note that the jury was thoroughly instructed with CALCRIM Nos. 506, 3475, 3476, and 3477 on the law regarding a person's right to use reasonable force to defend his or her home from an intruder. Even if there were other instructions that the court could have properly given on the issue of whether Pulley was justified in shooting Misaalefua in his (Pulley's) garage, the erroneous omission of a jury instruction is not prejudicial when " 'the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.' " (People v. Prettyman (1996) 14 Cal.4th 248, 276.) The jury in Pulley's trial resolved the factual issue of whether Pulley's shooting Misaalefua was justified under the above-noted instructions addressing a person's right to use force to defend his or her home from an intruder. It is not reasonably probable that any additional instructions, such as instructions addressing the theory that Misaalefua was committing the offense of burglary when Pulley shot him, would have resulted in a more favorable outcome.
We also conclude that it is not reasonably probable that Pulley would have obtained a more favorable outcome at trial if Thompson had objected to any of the allegedly improper portions of the prosecutor's closing argument. The facts underlying the murder count were largely uncontroverted and the evidence of Pulley's guilt was strong. Further, the court instructed the jury with CALCRIM No. 200 that it must "not let bias, sympathy, prejudice, or public opinion influence your decision." As noted, the court also instructed the jury with CALCRIM No. 222 that it must decide the facts using only the evidence presented and that "[n]othing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence." We assume that the jury followed those instructions (People v. Stitely (2005) 35 Cal.4th 514, 559), and conclude that the prosecutor's alleged misconduct "did not render the trial fundamentally unfair or otherwise infect the trial with such unfairness as to violate [Pulley's] constitutional rights." (People v. Seumanu (2015) 61 Cal.4th 1293, 1345.)
Pulley has not shown that he was prejudiced by Thompson's alleged failure to properly investigate a police report that an unidentified male fled Pulley's residence just as the police officer dispatched to investigate the shooting arrived at the residence. It is not reasonably probable that Pulley would have obtained a more favorable outcome at trial if Thompson had investigated a report that might have led to the discovery of a witness whose possible testimony is a matter of pure speculation.
DISPOSITION
The petition and supplemental petition are denied.
/s/_________
AARON, J. WE CONCUR: /s/_________
McCONNELL, P. J. /s/_________
IRION, J.