Opinion
No. C 02-5321-CRB
April 2, 2003
MEMORANDUM AND ORDER
Now before the Court is David A. Lowrie's petition for habeas corpus.
STATEMENT OF THE CASE
Petitioner David A. Lowrie ("petitioner") was charged by information filed on June 25, 1998 in Mendocino County, California, with two counts: (1) the murder of Jerry Adams, accompanied by great bodily injury and (2) shooting at an occupied motor vehicle, in violation of California Penal Code (hereinafter "Penal Code") section 246. Two additional allegations included personal discharge of a firearm resulting in great bodily injury in violation of Penal Code section 12022.53(d) and personal use of a firearm in violation of Penal Code section 12022.5(a)(1).
On September 1, 1998, the jury acquitted petitioner of first-degree murder, but convicted him of second-degree murder and shooting at an occupied vehicle. The trial court found the additional allegations under Penal Code sections 12022.53(d) and 12022.5(a)(1) true.
After a mistrial, the case was retried on September 10, 1999 and the jury convicted petitioner of voluntary manslaughter and the accompanying offense of shooting at an occupied motor vehicle, accompanied by the fire arm use enhancement. On December 15, 1999, petitioner was sentenced to 11 years in prison. The California Court of Appeal affirmed petitioner's conviction in an unpublished opinion on May 23, 2001 and the California Supreme Court denied review on September 12, 2001. Petitioner then filed the instant federal petition for writ of habeas corpus under 28 U.S.C. § 2254.
FACTUAL BACKGROUND
The pertinent facts of the case are as follows:
On May 14, 1998, Lowrie shot and killed his stepson, Jerry Adams, as Adams was driving toward him in his car. Several months before the shooting, Lowrie had demanded that Adams vacate a house on Lowrie's property that he was renting to Adams and his girlfriend and Adams had physically threatened him at that time. Lowrie tried to evict Adams because he was concerned about what he perceived as Adams' increasingly aggressive behavior and serious drug habit. The day of the shooting, Lowrie had a restraining order served on Adams. Adams again physically threatened Lowrie and Lowrie's son phoned 911. Shortly after this call, Lowrie's wife also called 911. No one responded and Adams did not leave. Lowrie, fearful of Adams, armed himself and, when Lowrie saw Adams get in his car, rev up the engine and begin to drive toward him, he shot Adams. At trial, Lowrie claimed that he acted in self-defense and that his stepson had been driving toward him while waving a pistol. He also testified that Adams shot at him through the passenger window of the car.
Mendocino Sheriff's Deputy Andrew Cash was one of the first police officers to arrive at the scene. He testified that Lowrie told him, "I shot him. I shot him, officer." Cash testified that when he arrived there was no bullet holes in any of the windows. The driver's window was in the "down" position and the passenger window was in the "up" position. Cash did not find either a gun or bullet casings inside Adams' car. Lowrie did not say anything to Cash about returning fire or having been shot at by Adams.
After a second trial, Lowrie was found guilty of voluntary manslaughter (§ 192, subd. (a and of having discharged a weapon into an occupied vehicle. (§ 246.) The jury also found true, with regard to the section 2246 charge, a gun use enhancement under section 12022.53, subdivision (d). Lowrie was sentenced to eleven years in state prison on the manslaughter charge. All other charges and enhancements were stayed. This timely appeal followed.
The facts are taken from the opinion of the California Court of Appeal, People v. David Alvin Lowrie, No. A090284, slip op. at 1-2 (Cal.Ct.App. May 23, 2001).
DISCUSSION
I. Legal StandardThis Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a).
The writ may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." Id. § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
An unreasonable application of federal law is different from an incorrect application of federal law. Id. at 410. "[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
II. Legal Claims
Petitioner raises three claims: (1) deprivation of his constitutional rights to due process and a fair trial under the Fifth, Sixth and Fourteenth Amendments by the trial court's refusal to instruct on imperfect self-defense as to the Penal Code section 246 charge; (2) deprivation of due process and a fair trial by the failure of the investigating authorities to conduct a gunshot residue test on decedent Adams and on the interior of his car; and (3) deprivation of due process and the prohibition against ex-post facto legislation by the retroactive application of Penal Code section 12022.53 to his offense.
Penal Code section 246 provides: Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling, occupied building, occupied motor vehicle, occupied aircraft, inhabited housecar, as defined in Section 362 of the Vehicle Code or inhabited camper, as defined in Section 243 of the Vehicle Code, is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for three, five, or seven years, or by imprisonment in the county jail for a term of not less than six months and not exceeding one year.
A. Imperfect Self-Defense Instruction
At trial, petitioner maintained that he acted in self-defense when he shot at the decedent's moving vehicle. In connection with the first degree murder charge, the jury was instructed on imperfect self-defense: that an actual belief in the necessity of self-defense, even if unreasonable, negates the element of malice aforethought, which is an element of first degree murder. The jury then convicted petitioner of voluntary manslaughter.
Petitioner claims that he was denied due process and his right to present a defense by the trial court's refusal to give an imperfect self-defense instruction to the Penal Code section 246 charge (shooting at an occupied vehicle). Petitioner argues that the malice contained in section 246 is negated by an honest but unreasonable belief in the need for self-defense. The State argues that petitioner's due process claim is based on an erroneous interpretation of state law.
1. Federal Right
A criminal defendant's due process right to fundamental fairness is violated if the state arbitrarily deprives the defendant of a state law entitlement. Hicks v. Oklahoma, 447 U.S. 343, 346 (1980). The Due Process Clause requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged. In re Winship, 397 U.S. 358, 364 (1970). "Where a trial court fails `to properly instruct the jury regarding an element of the charged crime,' the court commits `a constitutional error that deprives the defendant of due process.'" Conde v. Henry, 198 F.3d 734 (9th Cir. 1999) (quoting Hennessy v. Goldsmith, 929 F.2d 511, 514 (9th Cir. 1991)).
A defendant is entitled to an instruction covering a theory of defense if it has a basis in law and there is some foundation for it in the evidence. United States v. Ibarra-Alcarez, 830 F.2d 968, 973 (9th Cir. 1987). The right to have the jury instructed as to the defendant's theory of the case is so basic to a fair trial that failure to instruct where there is evidence to support the instruction is reversible per se. United States v. Escobar de Bright, 742 F.2d 1196, 1201 (9th Cir. 1984).
The standard on a habeas claim for evaluating state-court rulings, which are given the "benefit of the doubt," is "highly deferential."Woodford v. Visciotti, ___ U.S. ___, 123 S.Ct. 357 (2002). The United States Supreme Court has made it clear that "it is not the province of a federal habeas court to reexamine state court determinations on state law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
2. Analysis
The state appellate court found that the malice defined in Penal Code section 7, subdivision 4 (which applies to shooting at an occupied vehicle) is not the same as malice aforethought and therefore could not be negated by an imperfect self-defense instruction. The issue becomes whether the state appellate court's decision was objectively unreasonable for purposes of habeas review.
There is no evidence to suggest that the state appellate court's decision rejecting petitioner's request for an imperfect self-defense instruction on the charge of shooting at an occupied vehicle was arbitrary or capricious in violation of due process. Rather, the state appellate court correctly found that the instruction had no basis under California law. Therefore, petitioner is not entitled to federal habeas relief on this claim.
Shooting at an occupied vehicle is a general intent crime. People v. Jischke, 51 Cal.App.4th 552, 556 (1996). The term "maliciously" in section 246 is defined by section 7, item 4, as "a wish to vex, annoy, or injure another person, or an intent to do a wrongful act." People v. Watie, 100 Cal.App.4th 866, 879 (2002). A crime is characterized as a general intent crime when the required mental state includes an intent to do the act that causes the harm, while a crime is characterized as a specific intent crime when the required mental state involves an intent to do the act to cause the resulting harm. People v. Atkins, 25 Cal.4th 76, 85 (2001).
In Atkins, the court held that the defense of involuntary intoxication, a defense similar to imperfect self-defense, does not negate the mental state required for arson, a general intent crime. Id. at 79; see also People v. David Alvin Lowrie, No. A090284, slip op. at 4 (Cal.Ct.App. May 23, 2001). Similarly, since shooting at an occupied vehicle is a general intent crime, imperfect self-defense does not negate the mental state component of the crime. A criminal can possess the intent to shoot at an occupied vehicle while simultaneously believing in the need for self-defense. That is, the two mental states are not incompatible, as in the case of malice aforethought. Cf. People v. Flannel, 25 Cal.3d 668, 675, 679 (1979) (malice aforethought and an actual belief that self-defense is necessary, even if unreasonable, are incompatible mental states . . . "[n]o matter how the mistaken assessment is made, an individual cannot genuinely perceive the need to repel imminent peril or bodily injury and simultaneously be aware that society expects conformity to a different standard.").
A recent California appellate court decision, People v. Watie, 100 Cal.App.4th 866 (2002) further demonstrates that the state court's decision was not objectively unreasonable and did not deprive petitioner of his due process rights. In a similar factual scenario to this case, a jury in Watie found defendant guilty of Penal Code section 246. Id. at 875. On appeal, the defendant contended that the trial court should have instructed the jury on imperfect self-defense as to the section 246 charge. Id. at 881. The court disagreed, explaining that "[a]t the time of the trial, as now, there was no authority suggested that the nondefense of imperfect, or unreasonable, self-defense could apply in a prosecution for violation of section 246." Id. at 882.
Despite the above, California case law is not entirely clear on the issue. For example, in People v. McKelvy, 194 Cal.App.3d 694, 702-703 (1987), the court concluded that an imperfect self-defense instruction was proper to negate the malice component of mayhem, which adopts the same definition of malice as section 246. The court stated "[o]ne who truly believes there is a need for self-defense cannot be said to act with the intent to `vex, injury, annoy' and may be found guilty of no more than an assault or battery." Id. at 702. In this case, the state appellate court distinguished McKelvy, however, on the basis that it did not involve a first degree murder which had been reduced to voluntary manslaughter and therefore the McKelvy court did not consider the similarity between the mental state required for voluntary manslaughter and that required under Penal Code section 246. See People v. David Alvin Lowrie, No. A090284, slip op. at 5 (Cal.Ct.App. May 23, 2001).
As the California Court of Appeal explained, the mens rea element of voluntary manslaughter is closer to the state of mind involved in shooting at an occupied vehicle, than the more serious malice aforethought. See People v. David Alvin Lowrie, No. A090284, slip op. at 4 (Cal.Ct.App. May 23, 2001). Voluntary manslaughter is committed when a defendant unintentionally but unlawfully kills while having an unreasonable but good faith belief in the need to act in self-defense.See People v. Blakeley, 23 Cal.4th 82, 85 (2000). Similarly, the mens rea involved in shooting at an occupied vehicle requires a showing of a wish to vex, annoy, or injure or an intent to do a wrongful act. See Penal Code section 7, subdivision 4. Thus, both crimes involve knowledge that the conduct is unlawful and dangerous. Since the mental state of voluntary manslaughter is not inconsistent with imperfect self-defense (See Blakeley, 23 Cal.4th at 87-88), it follows that the mens rea of shooting at an occupied vehicle is not inconsistent with imperfect self-defense.
Petitioner relies on the California Supreme Court decision of In re Christian S., 7 Cal.4th 768 (1994), for the proposition that the malice component of shooting at an occupied car is inconsistent with imperfect self-defense. In Christian S., the court said, "A person who actually believes in the need for self-defense necessarily believes that he is acting lawfully." Id. at 778. Thus, petitioner argues that if someone believes he is acting lawfully, then he cannot also have the intent to do a wrongful act (referring to the malice element of section 246). However, the court's statement was made in reference to a comparison of the doctrines of imperfect self-defense and diminished capacity, and whether the legislature intended to abolish imperfect self-defense by certain Penal Code amendments. See id. at 777-778. In addition, Christian S. was a second-degree murder case and thus involved a different definition of malice than that contained in section 246. See id. at 778 (discussing difference between express and implied malice). Further, the court explained that the doctrine of imperfect self-defense is not rooted in the awareness of the need to act lawfully. Id. Thus, petitioner's reliance on this case is misplaced.
Based on the California authority discussed above, the trial court did not deprive petitioner of due process by refusing to instruct on imperfect self-defense with respect to the crime of shooting at an occupied vehicle. The trial court did not arbitrarily deprive petitioner of a state entitlement, here, an instruction on imperfect self-defense. Thus, petitioner is not entitled to federal habeas relief on this claim.
B. Failure of Police to Conduct Gunshot Residue Test on Decedent or His Car
Next, petitioner claims that his conviction should be reversed because police neglected to perform a gunshot residue test on either the body of Mr. Adams, the decedent, or on the interior of his automobile in violation of petitioner's right to due process.
1. Federal Right
Law enforcement agencies have a duty imposed by the Due Process Clause of the Fourteenth Amendment to preserve evidence that "might be expected to play a significant role in the suspect's defense." California v. Trombetta, 467 U.S. 479, 488 (1984). To meet this standard, "evidence must both possess an exculpatory value that was apparent before the evidence was destroyed and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. at 489. Where law enforcement agents fail to preserve evidence which only might have exonerated the defendant, the criminal defendant must also show bad faith on the part of the police in failing to preserve the evidence. Arizona v. Youngblood, 488 U.S. 51, 57 (1988).
2. Analysis
The evidence showed that four bullets were shot from petitioner's gun. Petitioner claims that there were five shots, that one of the shots came from the victim's vehicle and that petitioner was forced to return fire back to protect himself. Petitioner's theory of self-defense depends on the conflicting statements of two witnesses who recalled hearing five shots at the time of the incident. However, one of these witnesses later changed her statement to hearing only three or four shots. Petitioner's theory also relies on his own statement to Detective Poma, "when he shot at me, I had no choice." However, at the hearing on defendant's motion to dismiss, Detective Poma testified that he believed petitioner was describing the victim's moving car. Petitioner contends that police erred in failing to conduct gunshot residue tests to confirm his theory of defense.
Questioning the reliability of the witnesses, the trial court noted court noted at the hearing on petitioner's motion to dismiss, "what I have heard during the trial . . . was a confused set of facts in which a lot of people had been drinking and had been relating information and had been talking with each other before being interviewed by police." RT 76-78.
As the petitioner concedes, due process does not compel the police to conduct any particular forensic tests. See Pet. for Writ of Habeas Corpus at 25, Lines 21-22 (Oct. 25, 2002). Here, the authorities had no reason to believe at the time of their preliminary investigation that gunshot residue tests on either the decedent or his interior car space would have exculpated petitioner. In fact, there was no clear evidence that the decedent shot at petitioner, excepting petitioner's self-statement that decedent did so. The police did not find a gun or bullet casings in decedent's car, further confirming that he probably did not shoot at petitioner.
Moreover, petitioner has not shown bad faith on the part of the police in failing to preserve potentially useful evidence. In Youngblood, a child molestation case, the state failed to preserve semen samples taken from the victim's body and clothing. Youngblood, 488 U.S. at 52. In rejecting defendant's due process claim, the court explained that the defendant failed to show that the police knew the semen samples would have exculpated him when they failed to perform certain tests or to refrigerate the victim's clothing. Id. at 56, n.* Rather, the court stated that conducting such tests was "simply an avenue of investigation that might have led in a number of directions." Id. The court explained that "the presence or absence of bad faith by police for purposes of the Due Process Clause necessarily turns on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed."Id.
Arguably, the facts of Youngblood are even more egregious than in this case because police possessed potentially helpful evidence to the defendant and failed to preserve it, whereas in the present case, police never had such exculpatory evidence in their possession. Rather, petitioner's claim focuses on the failure of police to attempt to gather such evidence in the first instance.
Likewise, performing gunshot residue tests on the decedent or his interior car space was simply one of many investigative paths the officers could have taken. Petitioner has not shown knowledge by police at the time of their investigation that such testing would have exculpated petitioner. While police appreciated the need to conduct gunshot residue tests on petitioner since he confessed to shooting the victim, no comparable evidence revealed that gunshot residue might be found on the victim. Moreover, petitioner has not demonstrated any bad faith on the part of law enforcement personnel in failing to conduct the tests.
Mendocino Sheriff's Deputy Andrew Cash, one of the first officers to arrive at the scene, testified that petitioner told him, "I shot him. I shot him officer." See People v. David Alvin Lowrie, No. A090284, slip op. at 2 (Cal.Ct.App. May 23, 2001).
Based on the above, petitioner is not entitled to federal habeas relief on this claim.
C. Retroactive Application of Penal Code Section 12022.53
Last, petitioner argues that the trial court's application of a gun use enhancement to his guilty verdict under Penal Code section 246 violated the Ex Post Facto Clause because he believes that the enhancement did not apply at the time of his offense.
1. Federal Right
The Ex Post Facto Clause prohibits any law which: (1) makes an act done before the passing of the law, which was innocent when done, criminal; (2) aggravates a crime and makes it greater than it was when it was committed; (3) changes the punishment and inflicts a greater punishment for the crime than when it was committed; or (4) alters the legal rules of evidence and requires less or different testimony to convict the defendant than was required at the time the crime was committed. See Carmell v. Texas, 529 U.S. 513, 522 (2000).
2. Analysis
At the time of the shooting, Penal Code § 12022.53(d) provided as follows:
Notwithstanding any other provision of law, any person who is convicted of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, and who in the commission of that felony intentionally and personally discharged a firearm and proximately caused great bodily injury, as defined in Penal Code section 12022.7, to any person other than an accomplice shall be punished by a term of imprisonment of 25 years to life. (emphasis added).
Petitioner argues that his conduct does not fall within the text of the above statute since he did not cause "great bodily injury," rather, his actions caused death. He contends that "great bodily injury" does not include death.
In 1999, following the subject crime, the California legislature amended section 12022.53 to include the phrase "or death" after the phrase "great bodily injury." Petitioner relies on this revision to support his argument that the pre-amendment section 12022.52 did not include actions causing death.
Several factors demonstrate that petitioner's use of a firearm in the commission of shooting the decedent violated the pre-amendment Penal Code section 12022.53. First, when the legislature amended section 12022.53, effective January 1, 1999, it provided: "The amendment to subdivision (d) of Section 12022.53 of the Penal Code is intended to be declaratory of existing law and to clarify that the enhancement in that subdivision applies to causing great bodily injury or death." (Stats. 1998. Ch. 936 § 27); see also People v. Valencia, 82 Cal.App.4th 139, 149 (2002). This statement of intent is also supported by the California Court of Appeal's decision in People v. Valencia, id., a pre-amendment section 12022.53 case involving death. In Valencia, the defendant violated Penal Code section 246 and in doing so, discharged a firearm in violation of section 12022.53. Id. at 141. His actions occurred before section 12022.53 was amended to include the phrase "or death." Id. at 143-44. The court held that the defendant's conduct causing death fell within the ambit of section 12022.53 and the enhancement was therefore applicable. Id. at 149. Specifically, the court pointed out that section 12022.53 "unequivocally states that the enhancement applies to the crime of murder." Id. Indeed, subdivision (a) of section 12022.53 expressly lists murder as the first crime to which the enhancement applies.
Based on the above, petitioner's conduct violated section 12022.53 as it existed at the time of the offense and the trial court's application of the gun use enhancement therefore did not violate the Ex Post Facto Clause. Accordingly, the California Court of Appeal's decision rejecting petitioner's due process claim in this respect is not objectively unreasonable. Thus, petitioner is not entitled to federal habeas relief on this claim.
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. The Clerk shall enter judgment in favor of respondent and close the file.