Opinion
No C-00-4018 THE (pr)
July 11, 2001
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
This matter is before the Court for consideration of the merits of James Jackson's pro se petition for writ of habeas corpus concerning his 1997 burglary conviction in the Contra Costa County Superior Court. For the reasons discussed below, the petition will be DENIED on the merits.
BACKGROUND
The following evidence was presented at Jackson's trial. On the morning of March 12, 1997, as Sophia Almutarreb was washing dishes at her kitchen sink, she saw a white car enter the liquor's store parking lot next to her trailer. According to her testimony she saw James Jackson get out of the car, look around for a couple of minutes, return to the car and back up a little. Then Jackson and Raquel Stephenson got out of the car and jumped the wall that separates the liquor store parking lot from Albert Ensminger's trailer. Almutarreb saw that they both knocked on the door and, upon receiving no response, Jackson took out what appeared to be a wrench from his back pocket and put it in the door's handle. Almutarreb called the police. While on the phone, she watched Jackson and Stephenson enter the trailer. close the door, and re-emerge after a few minutes. Almutarreb testified that Jackson was carrying large objects. "like electronics", wrapped in a quilt, and Stephenson was carrying small objects. They both jumped the wall, got into the car and drove away.
Jackson and Stephenson were stopped by the police about a block and a half away from Ensminger's trailer. Jackson was driving the car and Stephenson was in the passenger seat, carrying something covered by a quilt on her lap. A police officer then went to Almutarreb's trailer to request her help in identifying the suspects; she "positively identified them." RT 136. In the car the police found two VCRs, two flashlights, a butane barbeque lighter, a pair of work gloves, a "Club" car locking device, a chest drawer containing some change and miscellaneous items such as small replica of a truck, and a large blue quilt. In Jackson's back pocket they found a screwdriver. Officer Clinton Weaver then returned the property to Ensminger's trailer, which he found had been ransacked.
Raquel Stephenson pled guilty to first degree burglary on April 4, 1997, and was granted three years of formal probation. Officer Weaver testified that after he arrested Stephenson and gave her Miranda warnings, she told him that Jackson asked her to go for a ride that morning, drove to the trailer park, and told her he knew "how the two of them could make some easy money." RT 233-234. She did not mention to the police, however, that she had known Ensminger for nearly two years, had visited his trailer several times, had occasionally had intimate relations with him, and that he had sometimes given her money to cover her living expenses. Ensminger testified that at the time of the events in this case, his relationship with Stephenson had been over for over a month; he had asked her not to visit him anymore after suspecting that she may have stolen from him.
Testifying in his own defense at trial, petitioner maintained his innocence. lie testified that Stephenson, his fiancee's daughter, had asked him for a ride to Ensminger's trailer, telling him that she needed to retrieve her property and requesting his help in bringing the items to the car. According to him, when they arrived at the parking lot Stephenson expressed surprise at not finding Ensminger home; he wanted to leave but she tried the door and found it open. Jackson added that when they entered the trailer Stephenson became "very irrational, angry and upset", grabbed things and threw them around the room and that he had helped her carry items that were too heavy for her, placing them in the quilt. RT 198-199.
Prior to Jackson's testimony, defense counsel had informed the court that Jackson would introduce Stephenson's statements to him that she needed to retrieve her property from Ensminger's home. Defense counsel explained that these statements would not be offered for the truth of the matter, but to show petitioner's state of mind at the time. The prosecutor responded that he believed the statements were "coming in for the truth under the state of mind exception," and argued that he should be allowed, under California Evidence Code § 1202, to introduce Stephenson's statement to the police as impeachment of Jackson's statements in this regard. RT 173. The court agreed to allow the introduction of Stephenson's statement for that purpose, and announced that it would give a limiting instruction to the jury that these statements were admitted not "for the truth of the matter, but only to be evidence as it is relevant to the state of mind of the defendant." RT 174. Officer Weaver took the stand and testified to Stephenson's statements implicating Jackson immediately after their arrest.
On August 29, 1997, a Contra Costa jury found Jackson guilty of first degree burglary in violation of California Penal Code §§ 459-460(a). On September 29, 1997, the court found that Jackson had suffered two prior "strike" felony convictions under California Penal Code § 1170.12(b), for a 1977 robbery and first degree burglary. Only the prior robbery conviction was found true within the meaning of California Penal Code § 667(a). On November 13, 1997, the court sentenced petitioner to serve an indeterminate term of 25 years to life, consecutive to a five year term on the serious prior felony enhancement under § 667(a). On June 25, 1999, the California Court of Appeal affirmed Jackson's conviction and sentence. The California Supreme Court denied Jackson's petition for review.
Jackson, who is presently in custody at the High Desert State Prison in Susanville, California, filed this action seeking a federal writ of habeas corpus on October 1, 2000. He raised four claims. He contended first that his Sixth Amendment right to confront and cross-examine the witnesses against him had been violated by the introduction of Stephenson's statements to the police implicating him. Second, he claimed that the trial court had erred in failing to give CALJIC 2.02 to the jury, regarding the sufficiency of circumstantial evidence to prove specific intent. Third, he claimed that the trial judge had abused his discretion in failing to dismiss one of his "priors" under California Penal Code § 1385. Finally, he alleged that his 30-year-to-life sentence for burglary with two priors arising from the same incident is cruel and unusual in violation of the Eighth Amendment. This court found that petitioner had adequately pled cognizable claims for a Sixth Amendment violation and an Eighth Amendment violation; it dismissed the other two claims as not actionable in a federal habeas proceeding since they pertained solely to the interpretation and application of state law. The court ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent filed an answer and petitioner filed a traverse. The petition is now ready for consideration on the merits.
DISCUSSION
A. Standard of Review
This court may entertain a petition for 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 and treaties of the United States." 28 U.S.C. § 2254 (a). The petition may not be granted with respect to any claim 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 at the State court proceeding." 28 U.S.C. § 2254 (d).
B. Exhaustion
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or the length of their confinement are required to first exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254 (b), (c); (Granberry v. (Geer, 481 U.S. 129, 133-34 (1987). The parties agree that Jackson has exhausted his state court remedies for the claims raised in this proceeding.
C. Legal Claims
1. Confrontation Clause Violation
Jackson claims that the admission of evidence of Stephenson's extrajudicial statement to impeach his credibility violated his right to confront and cross-examine Stephenson as to the statement. He contends that the jury never received a limiting instruction regarding Stephenson's statement to the police, lie adds that this error was prejudicial to his defense since "the statement was the only direct evidence of petitioner's specific intent, and contradicted the basis of petitioner's defense, his testimony that he did not realize that Stephenson was stealing Ensminger's property, not recovering her own." Jackson's Petition for Writ of Habeas Corpus, p. 9. The state replies that Jackson's confrontation rights were not violated since Stephenson's statements were not admitted to prove the truth of the matter but to impeach Jackson's testimony about her statements to him during the commission of the burglary. It maintains that "the non-hearsay aspects of the confession raise no Confrontation Clause claims." Respondent's Memorandum of Points Authorities in Support of Answer to Petition for Writ of Habeas Corpus, p. 11.
The Confrontation Clause of the Sixth Amendment to the U.S. Constitution, made applicable to the states by the Fourteenth Amendment, provides that "[i]n all criminal prosecutions. the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. The Confrontation Clause serves several purposes: "(1) ensuring that witnesses will testify under oath; (2) forcing witnesses to undergo cross-examination; and (3) permitting the jury to observe the demeanor of witnesses." United States v. Medjuck, 156 F.3d 916, 919 n. 1 (9th Cir. 1998). The primary concern of the clause is "to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Maryland v. Craigh, 497 U.S. 836, 845 (1990).
Out-of-court statements constitute hearsay only when offered in evidence to prove the truth of the matter asserted. See Anderson v. United States, 417 U.S. 211, 219 (1974). In Ohio v. Roberts, 448 U.S. 56 (1980), the Supreme Court established a two-part test for the admission of hearsay under the Confrontation Clause. First, the prosecution must generally either produce, or demonstrate the unavailability of, the declarant whose statements it wishes to use against the defendant. Second, if the declarant is unavailable, the statement must have been made under circumstances providing sufficient indicia of reliability. The court noted that sufficient indicia of reliability to satisfy the Confrontation Clause "can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded at least absent a showing of particularized guarantees of trustworthiness." Id., 448 U.S. at 66. Subsequent decisions have limited the need to show unavailability, see White v. Illinois, 502 U.S. 346 (1992); (United States v. Inadi, 475 U.S. 387 (1986), but the requirement that the statement contain "particularized indicia of reliability" or fall within "a firmly rooted hearsay exception" has been reaffirmed. Lilly v. Virginia, 527 U.S. 116 (1999).
The parties agree that the trial court did not give the jury an instruction limiting the admissibility of Stephenson's inculpatory statements to the police. Indeed, the only instructions given pertaining Stephenson's testimony were general warnings cautioning the jury to take accomplice testimony with distrust. This case is therefore distinguishable from Tennessee v. Street, where, as the state acknowledges, the trial court instructed the jury that the accomplice's testimony was admitted not for the purpose of proving the truth, "but for the purpose of rebuttal only." Tennessee v. Street, 471 U.S. 409, 412, 414-15 (1985). Here, the failure to give a limiting instruction suggests that the jury received Stephenson's statement as going to prove the truth of the matter, and that therefore the Roberts requirements should have been met.
Non-testifying accomplices' confessions, which shift responsibility and implicate the defendant as the principal offender, have consistently been viewed as "inherently unreliable." Lilly, 527 U.S. at 131; see also Lee v. Illinois, 476 U.S. 530, 541 (1986); Cruz v. New York, 481 U.S. 186, 195 (1987); Crawford v. United States, 212 U.S. 183, 204 (1909); Douglas v. Alabama 380 U.S. 415, 419 (1965); Bruton v. United States, 391 U.S. 123, 136 (1968). Stephenson's statements to the police inculpating Jackson thus clearly do not contain "particularized indicia of reliability" as required by Roberts'. Nor do they fall within "a firmly rooted hearsay exception." The Supreme Court has recently held that "the practice of admitting . . . a confession by an accomplice which incriminates a criminal defendant . . . under an exception to the hearsay rule . . . is of quite recent vintage," and therefore presumptively not "firmly rooted." Lilly, 527 U.S. at 130. Indeed, the parties agree that Stephenson's credibility was impeached by the fact that she failed to inform the police she knew the victim, and that she clearly stood to gain by inculpating Jackson.
Erroneous admission of a non-testifying accomplice's out of court statement is a trial-type error subject to harmless error analysis. See Arizona v Fulminante, 499 U.S. 279, 306-307 (1991); Brown v United States, 411 U.S. 223, 231-232 (1976); Hardnett v. Marshall, 25 F.3d 875, 879 (9th Cir. 1994); Laboa v. Calderon, 224 F.3d 973, 976 (9th Cir. 2000). Trial errors occur "during the presentation of the case to the jury" and are amenable to harmless-error analysis because they "may be quantitatively assessed in the context of other evidence presented." Fulminante, 499 U.S. at 307-308. Although Jackson urges that his case should be analyzed under the harmless error standard of Chapman v. California, 386 U.S. 18, 24 (1967), the Supreme Court has held that in federal habeas proceedings the proper standard is whether the error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 638, citing Kotteakos v. United States, 328 U.S. 750. 776 (1946).
The California Court of Appeal found it unnecessary to decide on the merits of petitioner's Confrontation Clause claim, because it viewed any error in the admission of Stephenson's testimony to the police as harmless under the Chapman test. It reasoned that "excluding Stephenson's statement . . . the evidence against appellant was so strong, and the credibility of the subject statement so weak, that it is virtually impossible to imagine the jury would have reached a different result in this case if Stephenson's statement to the police had been excluded." Cal. Ct. of App. Opinion, p. 10. Almutarreb's testimony, particularly her declaration that she had seen Jackson pry open the trailer door, was very incriminating, and squarely contradicted Jackson's defense theory that he was helping Stephenson retrieve her property and had no intent to commit a burglary. The court noted that Almutarreb's testimony had presumptively more weight than Jackson's, because she had no apparent motive for fabricating evidence against him. Finally, the court also noted that some of the items found in Jackson's car were deeply corroborative of his intent to burglarize the trailer. Jackson could not plausibly have believed, for instance, that the drawer taken from a built-in unit in Ensminger's trailer belonged to Stephenson. Applying the less stringent Brecht standard, this Court must agree with the California Court of Appeal's conclusion as to the impact of the admitted evidence. The evidence against Jackson was so strong that admission of Stephenson's statement to the police did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 638. Jackson is not entitled to the writ on this claim.
2. Eighth Amendment Violation
Jackson claims that his 30-years-to-life sentence for a first degree burglary offense violates the Eighth Amendment of the U.S. Constitution, which proscribes "cruel and unusual punishments." U.S. Const. amend. VIII.
The Supreme Court stated in Solem v. Helm, 463 U.S. 277, 290 (1983), that "as a matter of principle a criminal sentence must be proportionate to the crime for which the defendant was convicted," but that "outside the context of capital punishment, successful challenges to the proportionality of particular sentences will be exceedingly rare." Id. at 289-90. The Solem Court stated that when considering the proportionality of a sentence, courts should "be guided by objective factors," which include: (1) the gravity of the offense and the harshness of the penalty; (2) a comparison of sentences imposed on other criminals in the same jurisdiction; and (3) a comparison of sentences imposed for the same crime in other jurisdictions. Id. at 290-92. Petitioner relies on these principles to argue that his sentence is more severe than sentences imposed in California for other offenses, even including recidivist behavior that may be considered more serious than burglary.
In reviewing claims of proportionality of punishment, courts follow the narrow proportionality rule established by Justice Kennedy's concurring opinion in Harmelin v. Michigan, 501 U.S. 957 (1991), the Supreme Court's most recent decision on the issue, which did not produce a majority opinion. Under this rule, the "Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are "grossly disproportionate" to the crime." Id. at 1001 (Kennedy, J., concurring). Comparative analyses of sentences for other crimes in the same jurisdiction or for the same crime in other jurisdictions are only appropriate "in the rare case in which a threshold comparison for the crime committed and the sentence imposed leads to an inference of gross disproportionality." Id. at 1005. See also United States v. Harris, 154 F.3d 1082 (9th Cir. 1998) (applying Harmelin's narrow proportionality analysis and holding that comparisons with sentences for other crimes was not appropriate where the sentence is not grossly disproportionate); Belgrade v. Montana, 123 F.3d 1210 (9th Cir. 1997) (holding that only grossly disproportionate sentences trigger comparative analysis).
It cannot be said that Jackson's sentence of 30-years-to-life is grossly disproportionate to his crime. Jackson was convicted of first degree burglary and was found to have suffered prior convictions for robbery and another first degree burglary. As the Court of Appeal noted, "residential burglary is an extremely serious crime presenting a high degree of danger to society." Cal. Ct. of App. Opinion, p. 18. Burglary is always a potentially dangerous crime, regardless of whether the home burglarized was inhabited at the time of the crime, or whether the offense was violently carried out. Id. Moreover, as the Court of Appeal noted, Jackson's sentence resulted from his overall criminal record under a valid California statute. The Supreme Court has recognized the legitimacy of a legislature's interest in treating repeat offenses more severely than first offenses. See Rummel v. Estelle, 445 U.S. 263, 276 (1980) (noting the "valid interest" of a state in "dealing in a harsher manner with those who by repeated criminal acts have shown they are incapable of conforming to the norms of society"); see also United States v. Washington, 578 F.2d 256, 258 (9th Cir. 1978) (holding that a sentence which is within the limits set by a valid statute may not be overturned on appeal as cruel and unusual), and United States v McDougherty, 920 F.2d 569, 576 (9th Cir. 1990) (holding that as long as the sentence imposed does not exceed the statutory maximum, it will not be overturned on Eighth Amendment grounds). Since Jackson's sentence is not grossly disproportionate to his crime, comparisons with sentences for other crimes are irrelevant. His Eighth Amendment right to be free from cruel and unusual punishment has not been violated by the 30-years-to-life sentence imposed. The California Court of Appeal's rejection of Jackson's Eighth Amendment claim was not an unreasonable application of, or contrary to, clearly established federal law. Jackson is not entitled to the writ on this claim.
CONCLUSION
For the foregoing reasons, Jackson's petition for the writ of habeas corpus is DENIED. The clerk shall close the file.
IT IS SO ORDERED.