Opinion
No. C 00-2846 WHA (PR)
December 12, 2003
DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
This is an order regarding a petition for habeas corpus filed by a state prisoner pursuant to 28 U.S.C. § 2254. Respondent has filed an answer and a memorandum of points and authorities in support, and has lodged exhibits. Petitioner has responded with a traverse. For the following reasons, the petition is DENIED.
STATEMENT
1. THE SHOOTING OF MILLER AND HOOKER
Seagram Miller was a rap singer and a member of an Oakland-based drug gang called the 69th Village Mob. His career manager, Mark Hooker, was implicated in money-laundering for the 69th Village Mob. On June 29, 1993, Miller and Hooker left Hooker's office together with two others in a car. As the car exited the lot, two pedestrians carrying guns opened fire on the car. No one was injured, at least partly because the gun of one of the gunmen apparently jammed. Petitioner Antonio Pennyman, the man with the jammed gun, was convicted of attempting to murder Miller and Hooker. Petitioner now contends that his conviction violated due process because there was insufficient evidence that he intended to kill Hooker; he concedes that there was enough evidence of his intent to kill Miller.
2. OFFICER BARTON'S TESTIMONY
Police officer Barton, although he was not directly involved with any of the relevant events, was allowed to testify as an expert witness on gangs. He stated that he had been informed from more than a dozen sources that petitioner was a member of the Lacy-Flowers gang, a gang in bitter rivalry with the 69th Village Mob. Barton believed that petitioner was an "enforce" for the Lacy-Flowers gang, i.e., one who could be depended upon to use (or threaten the use of) force to further the gang's goals. Miller's rap album Dark Roads, which sold 80,000 copies, had provocatively disparaged the Lacy-Flowers gang, and in Barton's expert opinion was the reason for petitioner's attempt to murder Miller and Hooker.
Petitioner alleges that the introduction of hearsay evidence in course of Barton's expert testimony violated due process and his confrontation rights.
3. THE SHOOTING OF OFFICER MARCOUX
Just after Miller's shooting, a local resident reported seeing a white vehicle with three occupants drive away from the scene of the crime and turn from Durant onto Hollister. Police officer Marcoux arrived on the scene just over a minute after receiving a report of shots being fired. Hearing about the white vehicle, he drove down the street, where he saw a white station wagon with two men inside, and pulled it over. When Marcoux gestured for the occupants to get out, the car suddenly drove away, an occupant shooting at — and seriously injuring — Marcoux. Petitioner was convicted for the attempted premeditated murder of Marcoux. He now alleges that this conviction violated due process because it was based on insufficient evidence.
4. THE ASSAULT OF OFFICER BURNS
The gunmen who shot at Marcoux escaped. Four days after the shooting, an officer gave chase to a van which he had reason to believe was linked to the shooting. It was being driven by petitioner. He crashed into a car and fled on foot. Officers Chew and Burns found him hiding in a nearby shed. Petitioner resisted arrest, knife in hand. He was convicted of assaulting both officers. He challenges the sufficiency of the evidence to support his conviction for assaulting Burns.
5. THE JURY INSTRUCTIONS
At trial, evidence was presented that petitioner's bullets struck three surrounding houses when he shot at officer Marcoux. The court instructed the jury that the offense of shooting at an inhabited dwelling requires that the gun be discharged "maliciously and willfully," but did not require "conscious indifference to" or "reckless disregard of' striking a dwelling. Petitioner contends that this omission violated due process.
6. THE ALLEGED SENTENCING ERROR
Petitioner was sentenced to three consecutive life terms plus eleven years, which included a consecutive sentence of eight months for possession of a firearm. Petitioner alleges that under California law a consecutive sentence for possession is improper when the was in conjunction with a greater offense.
7. EXHAUSTION OF REMEDIES
Petitioner appealed the trial court judgment on the grounds stated above. The California Court of Appeal affirmed the conviction and the California Supreme Court denied his petition for review. This habeas petition followed.
DISCUSSION
1. STANDARD OF REVIEW
The petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, so the provisions of that act apply to it. See Lindh v. Murphy, 521 U.S. 320, 327 (1997). Under the AEDPA, a district court may not grant a habeas petition on a claim that was reviewed on the merits in state court unless the state court's decision """Was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" or was based on "an unreasonable determination of the facts in light of the evidence." 28 U.S.C. § 2254(d).
A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only 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 Supreme] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2001). A state-court decision is an `"unreasonable application of Supreme Court authority if it unreasonably applies the correct governing legal principle to the facts of the prisoner's case. Williams (Terry), 529 U.S. at 413. The federal court on habeas review may not issue the writ "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the application must be "objectively unreasonable" to support granting the writ. Id. at 409.
2. SUFFICIENCY OF THE EVIDENCE
A. Legal standards
A prisoner states a constitutional claim if he alleges that the evidence in support of his state conviction was objectively insufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 321 (1979). A federal court reviewing collaterally a state-court conviction "determines only whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992) (internal quotation marks omitted).
Circumstantial evidence and inferences drawn from that evidence may be sufficient to sustain a conviction, as long as the inferences are logical and not mere suspicion and speculation. Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). The "prosecution need not affirmatively rule out every hypothesis except that of guilt," and a reviewing federal court "faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear on the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Wright v. West, 505 U.S. 277, 296-97 (1992) (quotations omitted).
A. Attempted Premeditated Murder of Hooker
Petitioner was convicted of the attempted premeditated murder of Miller and Hooker. He concedes there was sufficient evidence that he intended to kill Miller over his Dark Roads lyrics, but contends that there was insufficient evidence to show that he intended to kill Hooker, who merely happened to be sitting in the car with Miller.
More specifically, petitioner alleges that Hooker played a minor role, if any at all, in making the Dark Roads album and that there was no evidence he even knew of Hooker's existence. He also challenges an out-of-court statement by witness Anthony Murray. A few weeks after the shooting, Murray told the police that he had heard petitioner say that he and Terry Pridgett, a fellow-member of the 69th Village Mob, were trying to kill Miller and Hooker. According to Murray, Pridgett had also said that his gang-leader Lacy was paying them to kill Miller and Hooker. Murray disavowed his entire statement at trial. Three other individuals — Laquita Gooden, Carl Dickson and Jason Glover — gave taped statements to the police that each had heard petitioner say some time after the shootings that he had tried to kill Miller. None of the three said that petitioner mentioned Hooker. Petitioner argues that the only witness (Murray) who alleged that petitioner had said he intended to kill Hooker disavowed his prior statement during trial, and Glover, the only informant to come through at trial, did not remember petitioner mentioning Hooker at all, leaving too little evidence to support the verdict.
Although Gooden and Dickson also repudiated their statements at trial, the court of appeal noted that Gooden recanted "after pressure exerted on her by her brother and his associates," and that Murray and Dickson were both in prison at the time of trial and were "aware that `snitches' could be killed or injured in prison" (Op. at 6-7).
The court of appeal held that the verdict was sufficiently supported by the circumstantial evidence of Hooker's close relationship with Miller and the manner of the attack, and by the direct evidence from Murray (Op. at 13).
Hooker was Miller's rap career manager (Tr. 1414) and was the producer of the offensive album, Dark Roads. He was also involved with the 69th Village Mob. The jury could have reasonably inferred that someone who attempted to murder Miller because of his song and his gang affiliations had the same motive to attack Hooker.
The attack was carefully choreographed, with an attacker on each side of the car and use of automatic weapons. The jury could fairly infer from this that the gunmen intended to kill both Miller and Hooker, or perhaps just anyone who happened to be in the car with Miller. Under California law a specific intent to kill anyone in Miller's company would satisfy the specific intent requirement. See People v. Woods, 226 Cal.App.3d 1037, 1048-49 (1991) (a reasonable jury could infer a specific intent to kill from evidence showing that the defendant "intended to kill a [that is, any] rival gang member in retaliation" for the killing of his friend).
Murray's statement also supported Hooker's testimony. A jury could reasonably rely on Murray's original statement that petitioner and Pridgett had both mentioned they were trying to kill Hooker as well as Miller (Tr. 1877, 1923). Other witnesses' reports that petitioner's later statements contained no mention of Hooker, or Murray's later repudiation of his own statement, weaken the value of that testimony, but resolving the issue of Murray's credibility in favor of the prosecution, as must be done under this type of review, and considering the circumstantial evidence discussed above, the evidence was such that the state appellate courts' rejection of this claim was not contrary to, or an unreasonable application of, clearly established Supreme Court authority.
B. Attempted Murder of Officer Marcoux.
Petitioner shot at officer Marcoux when he tried to stop the gunmen fleeing from the scene of Miller's shooting. He was convicted of attempted premeditated murder. Petitioner concedes that there was sufficient evidence for a jury to find that he was the person who tried to kill Marcoux, but argues that there was insufficient evidence that the attempt was premeditated.
In People v. Anderson, the California Supreme Court stated that the "type of evidence sufficient to sustain a finding of premeditation and deliberation falls into three basic categories," (1) facts showing the defendant engaged in activity directed toward and intended to result in the killing; (2) facts about the defendant's relationship with or conduct toward the victim from which the jury could reasonably infer a motive; and (3) facts about the nature of the killing, showing its manner was so particular and exacting that it was intentionally done according to a preconceived design to take the victim's life in a particular way for a reason. 70 Cal.2d 15, 26-27 (1968).
Petitioner asserts his shooting of Marcoux did not involve "careful thought and weighing of considerations," ibid., and was therefore not premeditated. His hasty and botched shooting of Marcoux, alleges petitioner, was hardly "so particular and exacting" that it indicated a "preconceived design to take his victim's life in a particular way." Ibid.
The California Supreme Court, however, has repeatedly emphasized that the list in Anderson is not exhaustive and was meant for guidance only. Under California law premeditation can occur in a very brief period of time, and a calculating decision to kill constitutes premeditation even if it takes just a moment and is taken in reaction to an unexpected development. People v. Robillard, 55 Cal.2d 88, 95 (1960) (finding the defendant guilty of premeditated murder when he killed a police officer who pulled him over, because "at that moment [when the officer was told over the radio that the car was stolen] defendant decided to murder the officer so that he could avoid apprehension and a long prison term") (emphasis added), disapproved on other grounds in People v. Morse, 60 Cal.2d 631, 649 (1964).
Petitioner's car initially pulled over at Marcoux's request, providing time for the occupants to form a plan. They then fled, petitioner firing a machine gun at Marcoux. From that sequence of events the jury could fairly infer that the occupants had decided to flee and to attempt to kill Marcoux to maximize their chances of escape. And petitioner's motive to kill anyone who attempted to apprehend him is obvious.
A rational jury could find premeditation beyond a reasonable doubt based on this evidence. The state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly-established Supreme Court authority.
C. Assault of Officer Burns
Officers Chew and Burns were sent to search for petitioner after he fled from the police. Their police dog Nero focused on a shed in which petitioner was hiding. After the dog entered and bit onto petitioner's forearm, Burns testified that he saw petitioner, with a knife in hand, "swing his right arm in an upward motion to attempt to slash the dog" and that petitioner "appeared also to stab at Officer Chew" as he ran out of the shed (Tr. 1775).
Burns testified that petitioner did not stab at him (Tr. 1779). He did, however, testify that he was compelled at some point to back off because petitioner was gesturing with the knife (Tr. 1777). Burns' gun was also knocked from his hand because petitioner "was violently wrenching [away while being disarmed] and either grabbed [Burns'] arm or hit [that] arm hard" (Tr. 1779-80).
As the court of appeal noted, the context of Burns' answer was such that he may have been referring only to the moment when petitioner charged out of the shed:
Q. Now getting back to when he first came out of the shed you indicate that he made a lunging motion towards Officer Chew with a knife?
A. That's correct
Q. How many times did he do that?
A. I initially saw him bring a knife towards Officer Chew's stomach. I immediately focused on the suspect I took my eyes off the knife and began striking. I don't know how many times he tried to stab him.
Q. With regard to yourself did he attempt to stab you with the knife?
A. No, he did not,
(Tr. 1779)
Petitioner was charged with assaulting both officers with a knife. Petitioner challenges the sufficiency of the evidence for his conviction regarding Burns (but not Chew). He argues that the evidence at most suggests a "menacing display" of a deadly weapon at Burns that falls short of assault.
Petitioner's argument is based on the premise that assault requires a specific intent to stab the alleged victim. This is incorrect. As the state appeals court held, assault does not require a showing that petitioner specifically intended to stab Burns, but only that he intentionally or willfully committed an act that by its nature would probably and directly result in injury to Burns. See People v. Colantuono, 7 Cal.4th 206, 214 (1994). This holding as to state law is binding on this Court. See Hicks v. Feiock, 485 U.S. 624, 629 (1988).
Petitioner attacked the officers and the dog instead of coming out quietly, and also stabbed at Nero and Chew. He gestured with the knife in Burns' direction in a manner that caused Burns to back off. The context of a heated confrontation enhanced the threat of being stabbed. Taken together, the "natural and probable consequences" of petitioner's actions would include knife injury to Burns. A rational jury, therefore, could have found petitioner guilty of assaulting Burns. The state courts' decision that this was sufficient to support the conviction was not contrary to, or an unreasonable application of, clearly-established Supreme Court authority.
2. ADMISSION OF BARTON'S OPINION AS GANG-EXPERT TESTIMONY
Officer Barton, who was otherwise uninvolved with the relevant events, was allowed to testify at petitioner's trial as an expert witness on gangs. As mentioned above, Barton testified extensively about the state of hostility between the local feuding gangs, and gave his opinion that petitioner was an "enforcer" for the Lacy-Flowers gang. Officer Barton also testified on various circumstantial evidence tying petitioner to the Lacy-Flowers gang and past gang-related killings and robberies. For instance, petitioner had been tied to the gang-related killing of 69th Village Mob member Terry Cooper (for which he was charged but never convicted), and had been found carrying a gun tied to the killing of 69th Village Mob member Alfred Sterling.
Barton was not directly involved with any of the relevant events, so his opinion was based on hearsay, much of which he testified to in setting out the basis for his expert opinion. The judge instructed the jury to use Barton's testimony only to decide petitioner's motive, intent and identity in the shootings, and not as evidence that he was a person of bad character.
Petitioner's claim in his petition here is a copy of part of his brief on direct appeal, so includes state law claims. The state law claims, such as that Barton's information was not sufficiently reliable to allow him to give an expert opinion or that Barton went "too far" in describing the basis for his opinions, are, of course, not a basis for federal habeas relief. To whatever extent petitioner intended to assert those claims here, they are denied.
Petitioner does briefly mention a federal claim. He contends that Barton's evidence was "the rankest sort of hearsay," and that allowing Barton to give it violated his Sixth Amendment Confrontation Clause rights and due process (Pet. 33). The court of appeal held that the Confrontation Clause was not violated because the testimony was not admitted for the truth of it but to show the basis for Barton's expert opinion (Op. 31). The state court was correct: "No Confrontation Clause issue is raised where the statements are not offered for the truth of the matter asserted." United States v. Lujan, 936 F.2d 406, 410 (9th Cir. 1991). There was no Confrontation Clause violation.
Petitioner also contends that the testimony violated due process. The due process inquiry in federal habeas review is whether the admission of evidence was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995). Only if there are no permissible inferences that the jury may draw from the evidence can its admission violate due process. Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991). In this case the jury could have drawn the permissible inference from Barton's testimony that petitioner was motivated to attack Hooker and Miller because of gang rivalry and in his role as an "enforcer" for his gang. Admission of the evidence did not violate due process.
Because admission of Barton's testimony did not violate petitioner's Confrontation Clause rights or his due process rights, the state appellate courts' rejection of this claim was not contrary to, or an unreasonable application of, clearly established United States Supreme Court authority.
3. JURY INSTRUCTIONS ON THE COUNT OF SHOOTING AT AN INHABITED DWELLING
Bullets struck the surrounding houses when petitioner shot at Marcoux. He was convicted of discharging a firearm at an inhabited dwelling. The court instructed the jury that such an offense requires that a gun be discharged at an inhabited dwelling, and that this be done "maliciously and willfully" (Tr. 4005). The court defined `"willfully" as "with a purpose or willingness to commit the act" without needing "any intent to violate the law or to injure another". Ibid. It also defined "maliciously" as done with "a wish to vex, annoy or injure another person, or an intent to do a wrongful act." Ibid.
Petitioner contends that the instructions violated California law by not requiring that the shooting have been with "conscious indifference to or reckless disregard of the result," that this was omission of an element, and that the instruction therefore violated his due process and Sixth Amendment jury trial rights (Pet. at 39-40).
Although it noted that there is no authority that conscious indifference/reckless disregard is an element of the crime, the California Court of Appeal declined to decide whether the instruction was error, holding instead that any hypothetical error was harmless beyond a reasonable doubt.
The result is the same here. Harmless error analysis applies even if the alleged instructional error is characterized as a misdescription of an element of an offense or as an omission of the element. See California v. Roy, 519 U.S. 2, 5 (1996) (omission of "intent" element from aiding and abetting instruction subject to harmless error analysis where jury could have found intent based on evidence it considered). The omission or misdescription is harmless unless it `"had substantial and injurious effect or influence in determining the jury's verdict." Roy, 519 U.S. at 4 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). As the court of appeal correctly held, it is inconceivable that any reasonable juror would not find that petitioner acted with at least conscious indifference to the result "when he discharged his automatic weapon, firing a fusillade of some 30 rounds at Marcoux, who was on a narrow public street in front of several inhabited buildings" (Op. at 37). Any constitutional error was therefore not prejudicial, and may not be the basis for habeas relief.
4. SENTENCING ERROR
Petitioner was sentenced to three life terms plus eleven years, including a consecutive sentence of eight months for possession of a firearm. He asserts that the eight-month consecutive sentence was error. He alleges that where the evidence shows possession of a fireearm only in conjunction with a primary offense, punishment for the possession itself is improper when it is the lesser offense. People v. Venegas, 10 Cal.App.3d 814, 821 (1970).
As respondent points out, this claim presents only an issue of state law, which cannot be the basis for federal habeas relief See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). It is therefore rejected.
Relief will be denied on this claim.
CONCLUSION
The petition for a writ of habeas corpus is DENIED. The clerk shall CLOSE the file.
IT IS SO ORDERED.