Opinion
No. C 00-3223 MMC (PR)
April 4, 2002
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Ventrell Lamar Johnson ("petitioner"), a California prisoner proceeding pro se, filed this habeas corpus petition pursuant to 28 U.S.C. § 2254. After an initial review, the unsigned petition was dismissed with leave to amend. Petitioner timely filed an amended petition with his signature, and the Court ordered respondent to show cause why the petition should not be granted based on petitioner's two claims. Respondent filed an answer, along with a memorandum and exhibits. Petitioner filed a traverse.
FACTUAL AND PROCEDURAL BACKGROUND
The factual portion of this background is derived from the opinion of the California Court of Appeal (hereinafter "Slip Op."). See Petition, Exh. B.
On the evening of February 16, 1995, Officer Kevin Reed ("Reed") of the Oakland Police Department's Vice-Narcotics Unit was part of a team doing surveillance of a house associated with petitioner. Reed was in civilian attire and driving an unmarked GMC Suburban. Around 10:00 p.m., a Chevrolet Impala pulled up in front of the house. Officer Sharon Williams ("Williams") saw three black men get out of the car, enter the house, and twenty-five minutes later, return to the Impala and drive away. Williams radioed Reed to follow them.
Reed followed the Impala, at a distance of about two blocks, through the city and onto Highway 580, heading westbound. As the Impala entered the freeway, the driver opened the door, illuminating the inside of the car and allowing Reed to see that there were three black men inside: one driving, one in the front passenger seat, and one in the middle of the backseat. From a distance of two lanes away, Reed pulled up to a point even with the Impala in an effort to identify the occupants, but the Impala sped away to the merger with Highway 24. As Reed was catching up, the Impala slowed, and Reed followed it off the exit for 51st Street and Martin Luther King, Jr. Way ("King"). The Impala stopped at a red light on 52nd and King, at which point Reed slowed "dramatically" to avoid detection. When the light turned green and the Impala did not move, Reed thought he had been spotted. Reed pulled up even with the Impala, which went through the intersection alongside Reed. Reed had earlier seen a photograph of petitioner, who was the target of the surveillance. As the two cars went through the intersection, Reed looked to his left and had "[n]o question at all" that the driver was petitioner.
The man in the front passenger seat, whom Reed later identified in court as petitioner's co-defendant, Marvel Simmons ("Simmons"), looked back at Reed and made a gesture as if to say "what's up?"; Reed shrugged his shoulders. Petitioner and Simmons continued to gesture toward Reed for two more blocks on King, and Reed meanwhile surreptitiously radioed Williams that he had identified petitioner as the driver. Reed, having decided that the surveillance was compromised, sharply turned around at 54th Street, heading back towards the freeway on King. The Impala made a U-turn at 55th and followed Reed on his right side; Reed again recognized petitioner as the driver. Reed got back onto Highway 24 and the Impala, entering from a different ramp, pulled up behind him. As the Impala pulled up alongside him, Reed could see the faces of all three occupants. When they reached Highway 880, the Impala was ahead of Reed, and Reed followed it off the freeway at the Jackson Street exit. Reed lost sight of the Impala after it turned left on Jackson, at which point he went back by way of the freeway to 51st and King. As Reed drove north on King, he saw a car he thought might be the Impala parked facing the wrong way on 59th Street. At 60th Street, Reed parked the Suburban, but when he heard, over the radio, another officer identify the car on 59th Street as the Impala, he decided to leave as he believed the suspects knew he was surveilling them. Reed then drove north on King, turned left on 61st Street, crossed the meridian dividing King Street, and stopped at a stop sign on the corner of 61st and the southbound portion of King.
Another officer, Officer Perlite, was nearby. He saw the Impala follow Reed north on King Street with its lights off and then turn left onto 61st Street. Reed looked to his left through the untinted driver's side window and saw the Impala with its lights off approaching from behind; petitioner was driving. As the Impala got close, Reed saw Simmons stick his head, shoulders and chest out of the right front passenger window. Reed saw Simmons point a gun at him and begin firing at him as the Impala approached and pulled alongside him. Simmons fired eight shots into Reed's car, two of which hit Reed in the left arm and the fight side as he jumped into the backseat. The Impala sped away and other officers came to Reed's aid. Reed told Williams that he had been shot by the man in the Impala's right front passenger seat.
Officer Perlite identified petitioner as the driver of the Impala that sped away, and numerous police officers chased the Impala through Oakland, at high speed and through various red lights, as well as the wrong way on a one-way street. During the chase, the right rear door was opened four or five times. Eventually, the Impala returned to petitioner's parents' house and crashed into a chain-link fence. The driver and the man in the back seat jumped out of the driver's door and ran into the backyard, where petitioner was caught. Simmons and the back-seat passenger were caught as well. The gun used in the shooting was never recovered.
Neither petitioner nor Simmons testified. Simmons presented a single witness, Oakland Police Officer Orestes Guerra, who testified that during the chase he saw the man in the back seat holding a gun. Petitioner presented three character witnesses, specifically two of his grandparents and a family friend, who testified that petitioner was a peaceful person and that they had never known him to be violent.
In 1998, a jury in Alameda County Superior Court found petitioner and Simmons guilty of attempted murder, and as to each such defendant further found that the attempted murder was willful, deliberate and premeditated. The jury further found that in the commission of the offense, petitioner was armed with a firearm and Simmons personally used a firearm. Lastly, petitioner was convicted of recklessly evading a police officer in pursuit. Petitioner was sentenced to one year to life in state prison. He filed unsuccessful direct appeals to the California Court of Appeal and to the Supreme Court of California. He did not file a state habeas petition.
DISCUSSION
A. Standard of Review
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975).
A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). In addition, habeas relief is warranted only if the constitutional error at issue had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Penry v. Johnson, 121 S.Ct. 1910, 1920 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). A federal court must presume the correctness of the state court's factual findings. 28 U.S.C. § 2254(e)(1).
Where, as here, the highest state court to reach the merits issued a summary opinion that does not explain the rationale of its decision, federal court review under § 2254(d) is of the last reasoned state court opinion to reach the merits. See, e.g, Bains v. Cambra, 204 F.3d 964, 970-71, 973-78 (9th Cir. 2000) (reviewing opinion of California Court of Appeal in deciding whether to grant habeas relief under § 2254(d)). In this case, the last reasoned state court opinion to address the merits of petitioner's claims is that of the California Court of Appeal.
B. Legal Claims
1. Jury Instruction
Petitioner claims that his right to due process was violated because the jury was not informed that, to apply the enhancement for premeditation, they must find that petitioner personally premeditated the murder attempted. An error in the jury charge, including the misdescription or omission of an element of an offense, violates due process if the improper instruction so infected the entire trial that the resulting conviction violates due process. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991); Spicer v. Gregoire, 194 F.3d 1006, 1008 (9th Cir. 1999).
Petitioner was convicted of attempted murder under California Penal Code § 187, with the additional finding under § 664 that the murder was"willful, deliberate and premeditated." Section 664 governs the punishment of attempted crimes. Subdivision (a) provides, in pertinent part:
Unless otherwise specified, all future statutory references in this order are to the California Penal Code.
If the crime attempted is punishable by imprisonment in the state prison, the person guilty of the attempt shall be punished by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense attempted. However, if the crime attempted is willful, deliberate, and premeditated murder, as defined in section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole.
The California Court of Appeal explained that § 664(a) "`did not establish a greater degree of attempted murder, but instead provided for a penalty enhancement of life imprisonment when an attempted murder was willful, deliberate, and premeditated.'" Slip Op. at 11 (quoting People v. Bright, 12 Cal.4th 652, 669 (1996).
With respect to aiding and abetting, the jury was instructed as follows:
Now, the persons concerned in the commission or attempted commission of a crime regarded in the law as principals — principals in the crime thus committed or attempted to be committed and are equally guilty, and that category includes those who directly and actively commit or attempt to commit a crime and those who, with knowledge of the unlawful purpose of the one who does directly commit or attempt to commit the crime, aid and abet in its commission or attempted commission or those who, whether present or not at the time the crime was committed, advise and encourage its commission.
In other words, one who aids and abets, one who assists or helps in a crime with criminal intent, is equally guilty as the person committing the crime.
And one who aids and abets is not only guilty of the particular crime that to his , his confederates are contemplating committing, but knowledge that person is also liable for the natural and probable or reasonable consequences of any act that he knowingly aided or encouraged.
In other words, to define it very simply, one who helps another commit a crime with criminal intent is liable as an aider an abettor.
And criminal intent for the purpose of this instruction is the intent to commit, to encourage, to aid or facilitate the commission of the offense.
(RT at 1238-40). The jury was instructed on the elements of murder, attempted murder, and the penalty enhancement in § 664(a). The jury was not instructed that an aider and abettor must personally premeditate the murder attempted in order to be subject to § 664(a).
Petitioner argues that under California law the penalty enhancement in § 664 can only be applied to him as an aider and abettor if he personally premeditated the murder attempted. Because the jury was not instructed on this state law requirement, petitioner argues, the jury charge rendered the trial fundamentally unfair and violated his right to due process. The Court of Appeal, however, agreed with the holding inPeople v. Laster, 52 Cal.App.4th 1450, 1473 (1997), a case quite similar on its facts, that, under California law, "an aider and abettor can be subject to life imprisonment for willful, deliberate and premeditated murder even if he or she did not personally deliberate or premeditate." Slip Op. at 12.
In Laster, the California Court of Appeal found that the driver of a car in a drive-by shooting did not have to personally premeditate the murder in order to be subject to § 664(a) for aiding and abetting the shooter-passenger. 52 Cal.App.4th at 1473.
The California Supreme Court did not disturb this interpretation of state law in denying Laster's petition for review, but it has not yet decided the issue in a published opinion.
A determination of state law by a state appellate court is binding in a federal habeas action, Hicks v. Feiock, 485 U.S. 624, 629 (1988), unless that interpretation appears to be an obvious subterfuge to evade consideration of a federal issue, Mullaney v. Wilbur, 421 U.S. 684, 691 n. 11 (1975). There is no indication of a subterfuge in the California Court of Appeal's opinion in this case. The decision of that court was based on: (1) California Supreme Court precedent generally permitting sentence enhancements to apply to aiders and abettors; (2) a close reading of the language of § 664, which states that § 664 applies to "every person" and makes no exception for an aider and abettor; and (3) the same conclusion reached by its sister court in Laster. Slip Op. at 11-12. Therefore, this Court cannot disturb the California Court of Appeal's reading of state law as not requiring that petitioner personally premeditate the murder in order to be subject to the § 664(a) penalty enhancement.
As state law does not require an aider and abettor to personally premeditate the murder in order to be subject to § 664(a)'s enhancement, the jury charge did not misstate or omit an aspect of state law by failing to inform the jury of such a requirement. Consequently, the jury charge did not render the trial fundamentally unfair in violation of the Due Process Clause. Cf., e.g., Stanton v. Benzler, 146 F.3d 726, 728 (9th Cir. 1998) (holding state law determination that arsenic trioxide is a poison as a matter of law, rather than a question of fact for the jury, not open to challenge on federal habeas review). Accordingly, the state courts' rejection of this claim was neither contrary to nor an unreasonable application of federal law.
Other than his assertion that the jury charge misstated California law in the above discussed fashion, petitioner presents no other manner in which the instructions might have rendered the trial fundamentally unfair.
2. Co-Defendant's Prior Conviction
Petitioner claims that his right to due process was violated when the jury learned that his co-defendant, Simmons, had a prior conviction for possessing an assault weapon, in that Simmons had already stipulated to the prior. Petitioner argues that since he was convicted as an aider and abettor of Simmons, to the extent the jury's conviction of Simmons was contaminated by their knowledge of Simmons' prior, petitioner's trial was rendered fundamentally unfair in violation of the Due Process Clause. See generally Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995) (finding admission of evidence may violate due process if it is so arbitrary or so prejudicial that it rendered the trial fundamentally unfair). See Bruton v. United States, 391 U.S. 123, 131, fn. 6 (1968) (stating due process requires that the jury only consider evidence relevant to issue of guilt or innocence).
Neither petitioner nor Simmons wanted the jury to hear that Simmons had a prior conviction for possession of an assault weapon. Before trial began, the trial judge granted Simmons's motion to preclude the use of the prior to impeach Simmons if he testified. Simmons, however, was charged with being an ex-felon in possession of a handgun. Under those circumstances, the jury ordinarily would hear about the prior during the prosecution's case in chief. Accordingly, the trial court informed Simmons that if he admitted the prior, the prosecutor would not need to present evidence on that element of the gun possession charge, and thus the jury would "never" hear about the nature of his prior conviction. Simmons admitted the prior. When reading the Information to the jury, however, the clerk of the court read the entire charge, including the allegation identifying the prior conviction as possession of an assault weapon.
The California Court of Appeal found that informing the jury of the nature of Simmons' prior violated state law under People v. Valentine, 42 Cal.3d 17, 173, 181-82 (1986), but denied relief after concluding that the error was harmless. The Court of Appeal did not discuss the federal due process aspect of petitioner's claim, nor did it cite federal law. Where the state court only applies state law, the federal court first determines whether the state law standard applied by the state court was contrary to the federal standard, and, if it was not, next determines whether the state court's decision was an unreasonable application of the federal law. See Lockhart v. Terhune, 250 F.3d 1223, 1230 (9th Cir. 2001); see, e.g., Hernandez v. Small, No. 00-56286, slip op. 3795, 3809-15 (9th Cir. Mar. 7, 2002); Packer v. Hill, No. 00-57051, slip op. 3173, 3191-93 n. 11 (9th Cir. Feb. 27, 2002). In either case, habeas relief is only granted if there is prejudice as determined underBrecht v. Abrahamson, 507 U.S. 619, 638 (1993). See Penry, 121 S.Ct. at 1920; Packer, slip op. at 3193 n. 12. In the instant action, this Court need not decide whether the state court's decision was contrary to or an unreasonable application of federal law because, even if such error occurred, petitioner would not be able to show that he suffered prejudice under Brecht. Cf. Williams v. Calderon, 52 F.3d 1465, 1470 n. 3 (9th Cir. 1995) (holding court's finding of insufficient prejudice obviates need for analysis of counsel's deficiencies on claim of ineffective assistance).
The Court of Appeal applied the harmless error standard for state law violations, see People v. Watson, 46 Cal.2d 818, 836 (1956), as opposed to the harmless error standard for federal constitutional violations, see Chapman v. California, 386 U.S. 18, 22 (1967). Slip op. at 10 n. 5.
To establish prejudice under Brecht, petitioner would need to show that the jury's knowledge of the nature of Simmons' prior conviction had a substantial and injurious effect on their determination that petitioner was guilty. Brecht, 507 U.S. at 638. The Court finds that it did not. First, any prejudice from the clerk's reading of the Information was diminished when the trial court instructed the jury that nothing in the Information constituted evidence, and that the jury had to determine guilt or innocence solely based on the evidence presented. The jury is presumed to follow the instructions given by the trial court. Aguilar v. Alexander, 125 F.3d 815, 820 (9th Cir. 1997). Secondly, even the prosecutor argued to the jury that they should not consider the nature of Simmons's prior conviction.
More importantly, the strength of the evidence against petitioner makes it unlikely that the jury's knowledge of the nature of Simmons' prior had a substantial and injurious effect on their verdict. Cf. Johnson v. Baldwin, 114 F.3d 835, 838 (9th Cir. 1997) (explaining that strong case by the state makes it more difficult to establish prejudice from ineffective assistance of counsel). Officer Reed had observed petitioner driving the Impala on the evening in question on at least four occasions prior to the shooting, including just moments before the shooting occurred as the Impala was pulling alongside him on 61st Street. Reed knew what petitioner looked like from a photograph he had seen prior to the stakeout, and he was unwavering in his identification, stating that he "had no question at all" that the driver was petitioner. Although the rear passenger window of Reed's car was tinted, and an expert testified that Reed would have had difficulty looking out the rear window at the approaching Impala, this testimony did not undermine Reed's identification because Reed's testimony was that he saw petitioner through the untinted driver's window. Additionally, Officer Perlite positively identified petitioner as the driver of the car that fled the scene. There was no evidence that the Impala was ever out of sight of the police officers, or that the driver switched places with anyone during the course of the chase. When the car crashed, petitioner was seen fleeing from the driver's side of the Impala, and he was caught almost immediately thereafter.
In addition, there was strong evidence of a deliberate intent to kill. In particular, gestures had been exchanged between Reed and Simmons prior to the shooting; when Reed started to drive away from 59th and King Streets, where the Impala was parked, petitioner followed him to 61st Street; petitioner kept his lights off to avoid detection; and Simmons leaned out of his car and shot at Reed eight times from a short distance. By contrast, the only evidence petitioner presented in his defense was the relatively weak character evidence from his grandparents and a family friend. This was not a close case. The strong evidence identifying petitioner as the driver and of a deliberate intent to kill made it unlikely that the jury's knowledge of Simmons' prior had a substantial impact on the verdict.
Finally, the strength of the evidence against petitioner is not dependant upon the jury's finding that Simmons was the shooter. At trial, Simmons presented testimony suggesting that the shooter might have been the third person in the car. It was not essential to petitioner's conviction, however, that the jury find it was Simmons who fired the shots. Petitioner was convicted as the driver of the car in which the person who shot Reed was riding. Thus, to whatever extent Simmons's prior conviction might have influenced the jury in deciding whether Simmons was the shooter, it had no bearing on the question of whether petitioner drove the car from which Reed was shot.
In light of the strong evidence against petitioner at trial, the lack of relevance of Simmons' prior conviction to petitioner's culpability as the driver, and the instructions to the jury, it is not likely that the jury's knowledge of the nature of Simmons' prior conviction had a substantial and injurious effect or influence in determining the jury's verdict. As a result, petitioner cannot establish sufficient prejudice under Brecht v. Abrahamson, 507 U.S. 619, 638 (1993), to entitle him to habeas relief
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is hereby DENIED.
This order terminates all pending motions. The clerk shall close the file.
IT IS SO ORDERED.