Opinion
Case No. 2:13-cv-01311-TJH (KES)
04-30-2019
ERIC MARK ROBINSON, Petitioner, v. RICK HILL, Warden, Respondent.
AMENDED REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE
This Amended Report and Recommendation ("R&R") is submitted to the Honorable Terry J. Hatter, Jr., United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
TABLE OF CONTENTS
I. INTRODUCTION 1 II. FACTUAL BACKGROUND 1 III. PROCEDURAL HISTORY 4
A. Conviction and Sentencing 4
B. Direct Appeal and Pro Se State Habeas Petitions 7
C. Federal Habeas Proceedings and State Exhaustion Petitions 8 IV. STANDARD OF REVIEW 10 V. CLAIMS EXHAUSTED ON DIRECT APPEAL 12
A. Relevant State Court Decision 12
B. Grounds 1 and 2: Petitioner's Competence to Stand Trial 13
1. Legal Standard 13
2. Summary of Relevant Trial Court Proceedings 15
3. Decision of the California Court of Appeal on Direct Appeal 46
4. Analysis 50
C. Ground 3: Petitioner's Competence to Represent Himself 57
1. Relevant Trial Court Proceedings 58
2. Ruling of the California Court of Appeal 60
3. Legal Standard 64
4. Analysis 66
D. Ground 6(b): Whether There Was Sufficient Evidence to Support Petitioner's Conviction for Resisting an Officer with Threats, Force, or Violence under California Penal Code Section 69 71
1. Relevant Trial Court Proceedings 71
2. Ruling of the California Court of Appeal 72
3. Legal Standard 76
4. Analysis 77
E. Ground 11: Whether Petitioner Was Improperly Denied His Right to Be Present During Sentencing 81
1. Relevant Trial Court Proceedings 81VI. CLAIMS RAISED IN PRO SE STATE HABEAS PETITIONS 90
2. Ruling of the California Court of Appeal 83
3. Legal Standard 86
4. Analysis 87
A. Claims Raised in Pro Se Habeas Petitions and Relevant State Court Decisions 90
B. Ground 4(e): IAC Based on Failure to Request Jury Instruction on Attempted Criminal Threats 92
1. Legal Standard 92
2. Relevant Trial Court Proceedings 94
3. Denial of this Claim by the California Courts 95
4. Analysis 96
C. Whether Grounds 5, 10, and 12 are Procedurally Defaulted 98
D. Ground 5: Trial Court's Failure to Sua Sponte Instruct the Jury on Attempted Criminal Threats 100
E. Ground 10: Whether Petitioner's Strike Enhancements Violate the Ex Post Facto Clause 101
F. Ground 12: Denial of Right to Testify Based on Pressure from Defense Counsel and the Court 102
1. Relevant Trial Court Proceedings 102VII. CLAIMS RAISED IN FIRST COUNSELED EXHAUSTION PETITION 105
2. Analysis 104
A. Claims Raised in First Exhaustion Petition and Ruling of the California Supreme Court 105
B. Ground 6(a): Sufficiency of the Evidence to Support Conviction of Criminal Threats under California Penal Code Section 422 106
C. Ground 7: IAC of Appellate Counsel 109
D. Ground 8: Whether Petitioner was Prejudiced by the Cumulative Effect of the Errors Described in the SAP 110
E. Ground 9: Whether Petitioner's Sentence of 13 Years and 8 Months was Grossly Disproportionate to His Crimes Under the Eighth and Fourteenth Amendments 110
1. Legal Standard 110VIII. CLAIMS RAISED IN SECOND COUNSELED EXHAUSTION PETITION 112
2. Analysis 111
A. Claims Raised in the Second Exhaustion Petition and Ruling of the California Supreme Court 112
B. Whether Grounds 4(b)-(d) and (f)-(h) are Procedurally Defaulted 113
1. Legal Standard 113
2. Analysis 115
C. Grounds 4(b)-(d) and (f)-(h): Whether Petitioner's Trial Counsel was Ineffective 117 IX. RECOMMENDATION 120
I.
INTRODUCTION
Eric Mark Robinson ("Petitioner") is a California state prisoner who was sentenced to 13 years and 8 months after a jury convicted him of three felonies: one count of making criminal threats under California Penal Code section 422 and two counts of resisting an executive officer by means of threats, violence, or force under section 69. He initiated these federal habeas proceedings under 28 U.S.C. § 2254 in February 2013. (Dkt. 1.) He was appointed habeas counsel (Dkt. 4) and later filed the operative Second Amended Petition ("SAP"). (Dkt. 144.) Respondent answered the SAP and lodged relevant documents from the state court proceedings. (Dkt. 197, 198.) Petitioner filed a reply. (Dkt. 219.)
It appears that Petitioner has now been released from custody. (Dkt. 236); CDCR Inmate Locator, https://inmatelocator.cdcr.ca.gov/.
An initial R&R was issued recommending that habeas relief be denied. (Dkt. 228.) This Amended R&R addresses objections filed by Petitioner's counsel (Dkt. 239 ["Counseled Objs."]) and Petitioner himself (Dkt. 241 ["Pro Se Objs."]). The counseled objections focus on the claims related to Petitioner's alleged incompetency to stand trial and represent himself prior to trial, i.e., Grounds 1, 2, 3 and 4(b)-(d).
II.
FACTUAL BACKGROUND
The following facts are taken from the unpublished California Court of Appeal decision on Petitioner's direct appeal. (Lodged Document ["LD"] 9, Dkt. 198-15.). Unless rebutted by clear and convincing evidence, these facts may be presumed correct. 28 U.S.C. § 2254(e)(1); Tilcock v. Budge, 538 F.3d 1138, 1141 (9th Cir. 2008).
On January 22, 2009, [Petitioner] and his older brother Craig had one of their frequent arguments after consuming alcohol. [Petitioner] said that he was going to get a gun or a bullet and shoot Craig and the "old lady," referring to Helen Robinson, their 89-year-old mother, in whose home they both lived. [Petitioner] then threw milk or water in Craig's face, and Craig walked out of the house to call the police. Craig believed that [Petitioner] was capable of shooting him because [Petitioner] had threatened to shoot Craig in the past; had hit Craig and others; and had fatally shot another brother in 1992.
After learning from Craig about the threat, the presence of a shotgun, a BB gun, and Mrs. Robinson in the house, the responding officers observed [Petitioner] in the driveway. When the officers asked to speak to him, [Petitioner] belligerently said "no," went into the house, and locked the door. Additional officers and a SWAT unit arrived soon after they were summoned. [Petitioner] refused several demands to come out with his hands raised and instead yelled profanities and said he did not trust the police department.
While inside [Petitioner] called the United States Marshal's office at the federal courthouse and spoke to Special Deputy Marshal George Gammon, the court security officer. [Petitioner] told Deputy Gammon that he would not surrender to the police and that the front door was barricaded. [Petitioner] said, "Fuck the LAPD. I'm going to hang them by their balls." [Petitioner] refused to allow his mother to leave the house, but did allow Deputy Gammon to speak to her by telephone. Deputy Gammon asked about weapons, and she told him there was a rifle under the bed. Eventually, [Petitioner] moved the chair so that his mother could leave, but he remained in the house.
[Petitioner] remained barricaded in the house for approximately 90 minutes as SWAT and other officers waited outside. Sometime after Mrs. Robinson was allowed to leave the house [Petitioner] emerged from the back door. SWAT supervisor Sergeant James Bilodeau, and SWAT officers Nelson Fong, Mark Richardson, and Rick Anzaldo all testified about the ensuing events. Officer Fong had told [Petitioner], "Stop. Get down on the ground," and "Los Angeles Police. Get down on the ground." [Petitioner] did not comply. [Petitioner] seemed agitated and angry, and aggressively lurched toward the officers with clenched fists, despite their continued commands to stop and get down on the ground.
As [Petitioner] advanced toward them, Officer Anzaldo warned [Petitioner] that if he took another step forward he would get "zapped," and may be hurt. [Petitioner] continued forward, and Officer Anzaldo discharged a taser from about 12 feet away. Although darts hit [Petitioner], they were ineffective. Nevertheless Officers Fong and Richardson then reached for [Petitioner's] arms, each grabbing one side as one said, "Put your hands behind your back." [Petitioner] tried to get away from them by flailing his arms and thrashing about. The officers used their body weight to force [Petitioner] to the ground where he continued to resist. Sergeant Bilodeau defined "thrashing" as moving the entire upper body in an aggressive way side to side with the back straight in an apparent attempt to pull away. [Petitioner] continued to thrash about while Officers Fong and Richardson struggled to gain control so they could handcuff him. When he was not flailing his arms, [Petitioner] tensed them against his side, using his strength to keep the officers from pulling them behind his back.
[Petitioner] became more agitated and aggressive and would not comply with commands. The taser was again activated. Although the darts were effective this time, [Petitioner] did not go completely limp. Sergeant Bilodeau had to assist as Officers Fong and Richardson struggled to pull [Petitioner's] thrashing arms behind him. [Petitioner] finally relaxed and Sergeant Bilodeau was able to handcuff him.
On cross-examination defense counsel elicited from the officers that [Petitioner] did not spit, kick, punch, bite, strike, or claw at them during the struggle. Officer Anzaldo testified however, that he interpreted [Petitioner's] behavior as an attempt to harm the officers.
Craig's unloaded shotgun and ammunition were later removed from his bedroom closet. The bedroom and closet doors were unlocked and open. The shotgun was tested and found to be operational. The police also recovered a BB gun, a crossbow, and BB pellets.
[Petitioner] presented no evidence. (LD 9, Dkt. 198-15 at 5-7.) See People v. Robinson, No. B220185, 2011 Cal. App. Unpub. LEXIS 9254 at *7-10, 2011 WL 6004364, at *3-4 (Cal. App. Dec. 1, 2011).
With the exception of citations to the Reporter's Transcript and Court Transcript from Petitioner's trial, all page citations in this R&R refer to the pagination imposed by the Court's electronic filing system, CM/ECF.
III.
PROCEDURAL HISTORY
A. Conviction and Sentencing.
The procedural history of the trial court proceedings was accurately summarized by the California Court of Appeal as follows:
[Petitioner] was charged in count 1 with making felony criminal threats to his brother Craig Robinson (Craig), in violation of Penal Code section 422 , and misdemeanor resisting, obstructing, or delaying a peace officer (count 2), in violation of section 148, subdivision (a)(1). The information was later amended to add two counts of felony resisting an executive officer by means of threats and violence (Officer Nelson Fong in count 3 and Officer Mark Richardson in count 4), in violation of section 69 . The amended information also alleged as to counts 1, 3, and 4, for purposes of the "Three Strikes" law, that [Petitioner] had suffered a 1993 conviction of manslaughter. The information also alleged the 1993 manslaughter conviction as to count 1, for purposes of section 667, subdivision (a)(1).[] The same allegation as to counts 3 and 4 was later stricken upon motion of the People, as it had been erroneously charged. Prior to the verdicts, the trial court dismissed count 2 upon motion of the prosecutor.
Section 667(a)(1) provides: "[A]ny person convicted of a serious felony who previously has been convicted of a serious felony in this state ... shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively."
On April 16, 2009, when [the] jury trial was first scheduled to begin, [Petitioner] requested self-representation or new counsel and the trial court held a closed Marsden hearing. After hearing from [Petitioner] and his counsel, the trial court denied [Petitioner's] request for a new attorney, gave [Petitioner] the appropriate forms to apply for self-representation, and set that motion for hearing the following day.
People v . Marsden , 2 Cal. 3d 118 (1970).
The next day, [Petitioner] continuously interrupted the court by arguing his innocence and criticizing his brother and the state of the evidence against him. This behavior coupled with the events of the day before, led the trial court to declare a doubt regarding [Petitioner's] mental competence to stand trial. The court appointed two mental health experts pursuant to Evidence Code section 730 , adjourned the proceedings until May 19, 2009, and continued [Petitioner's] motion to proceed in propria persona to the same date.
At the May 19 hearing, defense counsel submitted the issue of competence on the reports of the two experts, psychologist Haig Kojian and psychiatrist Kory Knapke, without presenting other evidence or argument. The two experts came to different conclusions. Dr. Knapke found [Petitioner] competent to stand trial, while Dr. Kojian was of the opinion that [Petitioner] was not competent to proceed. The trial court found Dr. Knapke's report more persuasive and concluded that [Petitioner] was competent to stand trial. The proceedings resumed.
After continued discussions regarding self-representation, [Petitioner] persisted in his desire to represent himself. He filed an initialed and signed written advisement and waiver of his right to counsel ("Faretta Waiver"). After giving [Petitioner] additional time to confer with his attorney and explaining the disadvantages of self-representation, the trial court granted the motion and continued the trial to a later date.
Faretta v . California , 422 U.S. 806 (1975).
Over the following three months, [Petitioner] filed several pretrial motions, one to set aside the information, one for discovery, two motions to suppress evidence, and motions to reduce the charges to misdemeanors, to strike prior convictions, to change venue, for transcripts, and for a Boykin/Tahl hearing. [Petitioner] also made several oral motions, including a request for advisory counsel. The discovery motion was granted. All other motions were denied.
On August 17, 1009, just before the voir dire began, [Petitioner] moved for a continuance. The following day, before the trial court ruled, [Petitioner] asked the court to terminate his pro per status and appoint stand-by counsel, Mr. Avery, to represent him. The trial court granted the request, but a few days later, [Petitioner] changed his mind, interrupted the prosecutor's opening statement, and once again requested self-representation. The trial court denied the motion and Mr. Avery represented [Petitioner] throughout the remainder of the trial.
The jury found [Petitioner] guilty of counts 1, 3, and 4, as charged. [Petitioner] waived his right to a jury trial on the allegation that he had a prior manslaughter conviction in 1993. The trial court heard the evidence and found the allegation true.
At the October 29, 2009 sentencing hearing, defense counsel requested additional psychological testing to prepare for sentencing, but did not press for a ruling after [Petitioner] stated that he would not cooperate in such an evaluation. As his counsel was addressing the court regarding sentencing, [Petitioner] interrupted with comments or objections. After several such interruptions and a warning from the trial court, [Petitioner] was removed from the courtroom until after pronouncement of sentence.
The trial court sentenced [Petitioner] to a total prison term of 13 years [and] 8 months, and ordered a DNA test, as well as the payment of mandatory fines and fees. As to count 1, the court selected the high term of three years and doubled it to six years under the Three Strikes law. The court found that [Petitioner] committed counts 3 and 4 against separate victims, Officer Richardson and Officer Fong, and thus sentenced [Petitioner] to two consecutive terms of eight months (one-third the two-year middle term), doubled to 16 months under the Three Strikes law. The court added five years for the prior conviction under section 667, subdivision (a). [Petitioner] was awarded a total of 421 custody credits, which included 281 actual days in custody and 140 local conduct credits. [Petitioner] was then brought back into the courtroom to hear his total sentence and his appeal rights. (LD 9, Dkt. 198-15 at 2-5.) B. Direct Appeal and Pro Se State Habeas Petitions.
Petitioner appealed his convictions and sentences to the California Court of Appeal (case no. B220186). (LD 6-8, Dkt. 198-12, -13, -14.) The California Court of Appeal affirmed the judgment in the reasoned opinion quoted above, which was issued on December 1, 2011. (LD 9, Dkt. 198-15.) The California Supreme Court summarily denied Petitioner's petition for review on March 28, 2012 (case no. S199715). (LD 10 and 11, Dkt. 198-16 and -17.)
As discussed in more detail infra (in section VI.A.), in 2012 Petitioner filed a series of pro se habeas petitions in the Los Angeles ("L.A.") County Superior Court, California Court of Appeal, and the California Supreme Court, all of which were denied. (See LD 12-19, Dkt. 198-18 through -25.) C. Federal Habeas Proceedings and State Exhaustion Petitions.
Petitioner initiated these federal habeas proceedings in February 2013. (Dkt. 1.) After dismissing the initial petition with leave to amend, this Court appointed the Federal Public Defender as counsel for Petitioner due to Petitioner's inability to clearly articulate his claims. (Dkt. 4 at 3.) Petitioner made multiple attempts to discharge his counsel due to alleged "conflicts of interest." The Court denied these requests, finding that Petitioner simply disagreed with counsel regarding what claims might have merit. (See Dkt. 170 at 2-6 [order describing procedural history].) Petitioner also moved to disqualify the undersigned Magistrate Judge; this motion was denied by the District Judge. (Id.)
The case was initially assigned to District Judge Terry J. Hatter, Jr. and Magistrate Judge Robert N. Block. (Dkt. 3.) The case was re-assigned to the undersigned Magistrate Judge in July 2015. (Dkt. 89.)
Petitioner filed two counseled petitions: a First Amended Petition ("FAP") in March 2014 (Dkt. 26) and the operative SAP in June 2016 (Dkt. 144). The two petitions contain the same twelve claims. Some of the claims were unexhausted when the petitions were filed, but the Court granted Petitioner two stays under Rhines v. Weber, 544 U.S. 269 (2005) to return to state court and exhaust all of the claims. (Dkt. 75, 170.) Petitioner filed two exhaustion petitions in the California Supreme Court, which were denied. (LD 20-23, Dkt. 198-26 through -29.) The following twelve claims are currently pending before this Court:
Ground 1: The state trial court's finding that Petitioner was competent to stand trial was unreasonable, and the court should have conducted a second competency hearing based on Petitioner's behavior at trial. (SAP at 37-39.)
Ground 2: Petitioner was, in fact, incompetent to stand trial. (SAP at 39-40.)
Ground 3: The trial court erred in allowing Petitioner to represent himself for any period because he was incompetent and therefore could not intelligently waive his right to counsel or adequately represent himself. (SAP at 40-42.)
Ground 4: Petitioner's trial counsel was ineffective because he:
Ground 4 of the SAP does not include a subsection (a). The Court has used the same numbering to avoid confusion.
(b) failed to investigate Petitioner's mental health and investigate and present mental state defenses (SAP at 42-44);
(c) failed to investigate Petitioner's competency and move for a competency hearing (SAP at 44-49);
(d) failed "to clearly inform [Petitioner] about the nature of the plea offer" during plea negotiations (SAP at 49-50);
(e) failed to request jury instructions on the lesser-included offense of attempted criminal threats (SAP at 50-52);
(f) failed to object to the admission of Petitioner's 17-year-old voluntary manslaughter conviction, which the trial court admitted on the theory that it was relevant to the reasonableness of Craig's fear (SAP at 52-53);
(g) failed to make clear that Craig had been arrested at least twice for brandishing a weapon at Petitioner (SAP at 53); and
(h) failed to object to the sentencing enhancement based on the outdated 1993 conviction on the grounds that this violated the Ex Post Facto Clause (as argued below in Claim 10). (SAP at 53-54.)
Ground 5: The trial court erred by failing to sua sponte instruct the jury on the lesser-included offense of attempted criminal threats. (SAP at 54-56.)
Ground 6: There was insufficient evidence to support the convictions for (a) criminal threats under California Penal Code section 422 (SAP at 57-58), and (b) obstructing or resisting an executive officer under California Penal Code section 69 (SAP at 58-59).
Ground 7: Petitioner's appellate counsel was ineffective because she failed to raise claims regarding (a) the sufficiency of the evidence supporting the criminal threats conviction, or (b) the failure to instruct on the lesser-included offense. (SAP at 59-60.)
Ground 8: Petitioner was prejudiced by cumulative error at trial and on appeal. (SAP at 60-62.)
Ground 9: Petitioner's sentence of 13 years and 8 months violates the Eighth and Fourteenth Amendments because it is grossly disproportionate to his crime. (SAP at 62-63.)
Ground 10: Petitioner's strike enhancements violate the Ex Post Facto Clause because his 1993 conviction was sustained prior to California implementing the Three Strikes Law, and because it had been more than 10 years since he was in custody. (SAP at 63.)
Ground 11: Petitioner was denied his Due Process right to be present during sentencing. (SAP at 63-64.)
Ground 12: Petitioner was denied his right to testify at his trial because he was "browbeaten" by both his counsel and the trial court into giving up his right to testify at trial. (SAP at 64-65.)
Respondent ultimately answered the SAP on April 12, 2017 (Dkt. 197 ["Answer"]) and lodged relevant documents from the state court proceedings (Dkt. 198 [Notice of Lodging]). Respondent argues that Grounds 5, 10, 12 and parts of Ground 4 are procedurally barred, and that the other claims should be denied on the merits. Petitioner filed a reply. (Dkt. 219 ["Reply"].)
IV.
STANDARD OF REVIEW
Habeas petitions challenging the criminal conviction of a state court are governed by Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). AEDPA provides that, with respect to any claim that was adjudicated on the merits in state court proceedings, federal habeas relief is available only if that adjudication:
(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). "Clearly established Federal law" as used in § 2254(d)(1) means holdings (as opposed to dicta) of Supreme Court decisions "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Carey v. Musladin, 549 U.S. 70, 74 (2006).
Although a particular state court decision may be both "contrary to" and "an unreasonable application of" controlling Supreme Court law, the two phrases have distinct meanings. Williams, 529 U.S. at 391, 413. A state court decision is "contrary to" clearly established federal law if the decision either applies a rule that contradicts the governing Supreme Court law, or reaches a result that differs from the result the Supreme Court reached on "materially indistinguishable" facts. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). The state court need not cite or even be aware of the controlling Supreme Court cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early, 537 U.S. at 8.
State court decisions that are not "contrary to" Supreme Court law may be set aside on federal habeas review only "if they are not merely erroneous, but 'an unreasonable application' of clearly established federal law, or based on 'an unreasonable determination of the facts.'" Id. at 11. A state-court decision that correctly identifies the governing legal rule may be rejected if it unreasonably applies the rule to the facts of a particular case. Williams, 529 U.S. at 406-10, 413; Woodford v. Visciotti, 537 U.S. 19, 24-27 (2002) (per curiam). However, to obtain federal habeas relief for such an "unreasonable application," a petitioner must show that the state court's application of Supreme Court law was "objectively" unreasonable. Williams, 529 U.S. at 413; Visciotti, 537 U.S. at 24-27. An unreasonable application is different from an erroneous or incorrect one. Williams, 529 U.S. at 409-10; Visciotti, 537 U.S. at 25; Bell v. Cone, 535 U.S. 685, 699 (2002).
The same standard of objective unreasonableness applies where the petitioner is challenging the state court's factual findings under 28 U.S.C. § 2254(d)(2). Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) ("[A] decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding."); Bruce v. Terhune, 376 F.3d 950, 954 (9th Cir. 2004); Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004).
V.
CLAIMS EXHAUSTED ON DIRECT APPEAL
A. Relevant State Court Decision.
In Grounds 1, 2 and 3 Petitioner raises claims related to his competency to stand trial and to represent himself pro se. (SAP at 37-42.) In Ground 6(b), Petitioner argues there was insufficient evidence to support his convictions for obstructing or resisting an executive officer under California Penal Code section 69. (SAP at 58-59.) In Ground 11, Petitioner argues his due process rights were violated because he was denied the right to be present during sentencing. (SAP at 63-64.)
Petitioner exhausted these claims on direct appeal. (LD 6, Dkt. 198-12 [opening brief].) The California Court of Appeal issued a reasoned opinion denying these claims on the merits. (LD 9, Dkt. 198-15.) The California Supreme Court then summarily denied Petitioner's petition for review raising the same claims. (LD 10-11, Dkt. 198-16 and -17.) This Court "looks through" the summary denial to the last "reasoned" decision by the California courts. In other words, this Court assumes the California Supreme Court rejected these claims for the same reasons as the California Court of Appeal. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Fox v. Johnson, 832 F.3d 978, 985-86 (9th Cir. 2016). B. Grounds 1 and 2: Petitioner's Competence to Stand Trial.
In Ground 1, Petitioner argues that the trial court's finding that he was competent to stand trial was "unreasonable and wholly unjustifiable" in light of "his bizarre behavior" and "the report of Dr. Kojian, which found that [Petitioner] was incompetent to stand trial." (SAP at 39 ¶ 108.) He also appears to be arguing that, even though the trial court conducted a competency hearing prior to trial and found Petitioner competent, the court should have "inquir[ed] ... further into [Petitioner's] competence" during trial, in light of his subsequent behavior. (SAP at 38.)
In Ground 2, Petitioner argues that his sentence violates the 5th, 6th, 8th, and 14th Amendments because he was incompetent to stand trial and he "had a due process right not to be tried or convicted while he was incompetent." (SAP at 39 ¶¶ 110-11). He argues the trial court should have found him incompetent based on Dr. Kojian's report, his "bizarre behavior, irrational and illogical arguments and motions, [and] demonstrated inability to control his thoughts or words, [which were] all displayed in court...." (SAP at 40 ¶ 113.)
1. Legal Standard.
The criminal conviction of a legally incompetent defendant violates due process. Cooper v. Oklahoma, 517 U.S. 348, 354 (1996). To be competent to stand trial, a criminal defendant must have (1) "a rational as well as factual understanding of the proceedings against him," and (2) "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding." Dusky v. United States, 362 U.S. 402, 402 (1960); see also Odle v. Woodford, 238 F.3d 1084, 1089 (9th Cir. 2001) ("[C]ompetence to stand trial does not consist merely of passively observing the proceedings. Rather, it requires the mental acuity to see, hear and digest the evidence, and the ability to communicate with counsel in helping prepare an effective defense."). This is competency standard is often referred to as the "Dusky standard."
"Only when 'the evidence raises a 'bona fide doubt'' about the defendant's competence to stand trial must a judge sua sponte conduct an evidentiary hearing." Davis v. Woodford, 384 F.3d 628, 644 (9th Cir. 2004) (quoting Pate v. Robinson, 383 U.S. 375, 385 (1966)). "Although no particular facts signal a defendant's incompetence, suggestive evidence includes the defendant's demeanor before the trial judge, irrational behavior of the defendant, and available medical evaluations of the defendant's competence to stand trial." Williams v. Woodford, 384 F.3d 567, 604 (9th Cir. 2002) (citing Drope v. Missouri, 420 U.S. 162, 180 (1975)). "[E]ven one of these factors standing alone may, in some circumstances, be sufficient" but "the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated." Drope, 420 U.S. at 180.
A state court's finding that a defendant was competent to stand trial, or that a competency hearing was unnecessary, is entitled to deference under AEDPA § 2254(d). See Demosthenes v. Baall, 495 U.S. 731, 735 (1990) ("A state court's determinations on the merits of a factual issue are entitled to a presumption of correctness on federal habeas review. ... [A] state court's conclusion regarding a defendant's competency is entitled to such a presumption."); Davis, 384 F.3d at 644; Rosemond v. Beard, No. 14-00490, 2015 U.S. Dist. LEXIS 158899 at *15-17, 2015 WL 7458728 at *6 (E.D. Cal. Nov. 24, 2015). The federal habeas court "may consider only the evidence that was before the trial judge," Davis, 384 F.3d at 645, and "may not second-guess a state court's fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable." Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004); see also Williams, 384 F.3d at 604 ("In reviewing whether a state trial judge should have sua sponte conducted a competency hearing, a federal court may consider only the evidence that was before the trial judge."); Watts v. Yates, 387 F. App'x 772, 777 (9th Cir. 2010) ("The trial court's failure to hold a new competency hearing violated Watts's due process rights, and the appellate court's affirmance resulted in a decision based on an unreasonable determination of facts in light of the evidence [under] 28 U.S.C. § 2254(d)(2).").
2. Summary of Relevant Trial Court Proceedings.
a. Preliminary Hearing.
A preliminary hearing was held on February 4, 2009 before Judge Daniel B. Feldstern; Petitioner appeared pro se. (LD 2, 1 CT 3.) The state called Petitioner's brother Craig as a witness. (1 CT 6.) During direct examination, Petitioner made several objections that essentially disputed the facts as described by Craig. (1 CT 8-11.) After overruling several of these objections, the court explained, "These are questions you can ask when it's your turn, by the way." (1 CT 11.) Petitioner did not make any further objections of this kind. Petitioner briefly cross-examined Craig and did not ask the state's other witness—Officer Rick Anzaldo, a member of the LAPD SWAT team that responded on the night of the incident—any questions. (1 CT 12-20.)
Petitioner asked to call his mother Helen as a witness, and the prosecutor asked for an offer of proof. (1 CT 20.) Petitioner explained that her testimony would "rebut the officer's testimony about me holding her against her will, which is a false statement." (1 CT 20-21.) The court found that this was not relevant to the charges against Petitioner. (1 CT 21.)
Petitioner stated he did not wish to call any other witnesses and "request[ed] a 1380 dismissal your honor, on the grounds of insufficiency of the evidence, on hearsay." (1 CT 23.) The court denied the motion. (1 CT 23.)
After some discussion of Petitioner's ability to access the prison law library, Petitioner asked the Court, "May I ask, why are you denying my motion to subpoena - to call my mother to the stand?" (1 CR 24.) The court again explained that, based on Petitioner's offer of proof, the court believed her testimony would be irrelevant. (1 CT 24-25.) Petitioner responded, "Right. I would just like to let the court know that my brother assaulted me with a deadly weapon. He's an habitual liar and a drunk." (1 CT 25.) The court adjourned the proceedings. (1 CT 25.)
b. Appointment of Public Defender and Marsden Hearing.
People v. Marsden, 2 Cal. 3d 118 (1970)
Deputy Public Defender Michael Tanner was later appointed to represent Petitioner. (LD 2, 1 CT 32 [transcript of hearing on March 16, 2009].) Petitioner moved to discharge Tanner, and a Marsden hearing was held on April 16, 2009 before Judge Kathryne A. Stoltz. (2 RT A1-32; 1 CT 34-36.)
Disagreements between Petitioner and Tanner arose after Tanner interviewed Petitioner's mother and decided not to call her as a witness at trial. (2 RT A8-A10, A14.) After Tanner told Petitioner that he believed her testimony would be damaging, Petitioner accused Tanner of lying and attempted to fire him. (2 RT A10-11.) While Tanner was attempting to explain this history at the Marsden hearing, Petitioner interrupted several times, asking the court to call his mother and protesting his innocence of the underlying charges at some length. (2 RT A8-A17.) Petitioner also repeatedly interrupted the court and accused Tanner of colluding with the prosecution. (2 RT A17.)
Tanner stated that conflicts with Petitioner had also arisen because Petitioner mistakenly believed that: (1) he could not be charged with a felony (as opposed to a misdemeanor) for his violation of California Penal Code section 422, because it was a first offense, and (2) he could not be convicted on the basis of his brother's testimony alone. (2 RT A19-A25.) The court attempted to explain that Petitioner was wrong on both points, and Petitioner continued to interrupt and protest his innocence. (Id.)
When the court declined to discharge Tanner, Petitioner asked to represent himself. (2 RT A18, A27.) The court continued the matter to the following day. (2 RT A27-A31.)
Upon resuming the hearing the following day, the court instructed Petitioner not to interrupt the court; although Petitioner initially agreed to do so (2 RT B1), he nevertheless continued to interrupt throughout the hearing. The court explained it was "trying to figure out ... whether or not you understand how the court system operates here and what the law is" (2 RT B3), and returned to the issue of whether Petitioner could be convicted on his brother's testimony alone:
THE COURT: ... The law is that a victim can be the only witness if the jury believes that witness.
THE DEFENDANT: He is not the only witness, your honor. There is a witness, my mother, and she stated she never heard me say anything. Now, what else is your problem?
THE COURT: My problem is I'm trying to see if you understand what kind of evidence would be necessary for the prosecution to present.
THE DEFENDANT: Are you trying to tell me my mother is a liar?
THE COURT: No, of course not. I have no idea what happened, Mr. Robinson.
THE DEFENDANT: Let's go to trial.
THE COURT: I never met you before; I've never met your mother; I've never met your brother. I have no idea what happened here.
THE DEFENDANT: I have never threatened anyone in my life, your honor.
THE COURT: Let me finish. I'm not in favor of you; I'm not against you. I'm just trying to make sure you get a fair trial and they get a fair trial. Okay?
THE DEFENDANT: Uh-huh.
THE COURT: And some of the things you said yesterday concerned me -
THE DEFENDANT: Uh-huh.
THE COURT: - about things, the way the criminal justice system operates, and your understanding -
THE DEFENDANT: Your honor - your honor -
THE COURT: - and.
THE DEFENDANT: - my brother - did you think someone's in [fear] for - for their life is just sitting on - the police viewed him just sitting on the front porch. Now, he is the bigger - he is - already had me up here twice on phoney charges already, and the D.A. rejected it last year. Now -
THE COURT: Mr. Robinson -
THE DEFENDANT: And you can ask my mother. He continuously calls the police on me for no reason. Okay?
THE COURT: Mr. Robinson, we're not here today at this time - this is not your trial right this minute. Okay? I'm not here to decide if you're guilty or not guilty.
THE DEFENDANT: Uh-huh.
THE COURT: What we're going to do today is make sure you have an understanding of the criminal justice system and what would have to be presented to prove this one way or the other. -
THE DEFENDANT: You have to present -
THE COURT: I'm not able to have a conversation with you about that. All you want to talk about is the fact that you're not guilty.
THE DEFENDANT: Where's the tape recording? Where's the statements? Where's the witness saying I said this?
. . .
THE DEFENDANT: ... Why are you worried about it? Let's go to trial. It's my life. I'm not - I'm not facing life in prison. I can appeal this anytime I want after the verdict is - is brung [sic] in, even if it's
guilty or not guilty. You're supposed to have proof of anything - any kind of criminal - a - a - a allegation against anyone. You have to have some kind of evidence. It's just like a drunk driver; once he's been pulled over, you have to prove that he's drunk by either a blood or a - a - a breath or a - a - um, a - a - some other kind of test.(2 RT B3-B5, B10-12) (bolded emphasis added).
THE COURT: No, that's not true. That's not true. The officer's testimony alone can convict someone of drunk driving. ...
THE DEFENDANT: Oh, yeah, I believe you. I believe they can , but they won't. It's not - it's not - it's not proof that the man was drunk.
THE COURT: They can and they do all the time, Mr. Robinson. They don't always have tests. ...
THE DEFENDANT: Okay, your honor. He is not - Craig Robinson is not an officer, and let's go to trial.
After a lengthy colloquy with Petitioner on these points, the court sua sponte observed that Petitioner might have mental health issues that would interfere with his competency to stand trial because "I don't think you're capable of behaving here in court sufficient to defend yourself. That's one of the requirements of being able to go pro per, is you have to be willing to behave; that means not interrupting me...." (2 RT B5.) Petitioner stridently objected to this, and he argued he was capable of representing himself because he had graduated high school, worked in aerospace, and understood the legal system; he stated that he understood that "I'm entitled to a - fair and impartial jurors, and I have no problem of - of - I - I don't even have to put on the defense. It's up to the prosecution to - to prove her case, not me." (2 RT B5-B9.) Petitioner also declared he would not cooperate with any doctors assigned to psychologically evaluate him. (2 RT B7, B9, B12.) The court nevertheless ordered Petitioner to undergo such an evaluation. (2 RT B12.)
c. Competency Evaluations.
Petitioner was evaluated by psychologist Dr. Haig Kojian on April 24, 2009 (Dkt. 27 at 3-9) and by psychiatrist Dr. Kory Knapke on May 7, 2009 (id. at 10-15). Dr. Kojian's report concluded that Petitioner was incompetent (id. at 7-9), but Dr. Knapke's report concluded that Petitioner was competent (id. at 10-14).
Dr. Kojian's Report
Petitioner told Dr. Kojian that he "need[ed] to see an 'FBI representative' because, he believe[d], his constitutional rights have been violated while in custody and prior to the arrest in the current matter as a result of a conspiracy." (Id. at 7.) He said, "[The] stress of the system is killing me." (Id. at 7.) Yet he denied "experience[ing] any mental or emotional problems...." (Id. at 8.) He denied "any history of either inpatient or outpatient psychiatric treatment," "any history of delusions, hallucinations, suicidality or homicidality [sic]," "any history of mental or emotional problems," or "any history of head injury, loss of consciousness, or seizures." (Id.at 7.)
Petitioner reported "a history of fighting or arguing with his brother over financial issues" and that he "feels that his brother, who was in the military, 'barks out orders' to him which he finds offensive." (Id. at 7.) Petitioner accused his brother of being a "paranoid schizophrenic," "suicidal," and 'an alcoholic." (Id. at 8.) Petitioner reported "a history of violence against him and the family by an older brother," and Dr. Kojian noted that "the record shows that he [Petitioner] had killed this individual." (Id. at 8.)
Regarding Petitioner's knowledge of the legal system, Dr. Kojian reported: He knows that a judge "hears the case and determines if the case should go to trial or drop it down. And she is supposed to protect my constitutional rights." He knows that a DA is "the prosecution," and he appreciates the adversarial nature of the legal system. He repeatedly indicated that the current matter is a "wobbler" and that the
case should be dropped down to a misdemeanor. He protested his innocence and, again, indicated that his mother can testify on his behalf.(Id. at 8.)
[Petitioner] noted that he would like to plead "not guilty...." ... He did note that nearly 20 years ago he accepted a plea bargain and was in prison for "manslaughter." He notes that he was able to discharge from parole many years ago and reported that he has been doing very well since then.
Dr. Kojian opined that Petitioner "knows and understands what is occurring legally" but was "likely to experience difficulty with rationally cooperating with his attorney in the preparation of a defense." (Id. at 9.) Dr. Kojian opined, "It seems that this inability is due to an underlying mental illness which does appear to be delusional in nature." (Id.) Dr. Kojian observed:
[Petitioner] does present as being quite vociferous if not downright belligerent with respect to what he believes should and should not occur in the case. In this regard, [Petitioner] is resolute that his brother fabricated the allegations against him, that he used a government system or conspiracy to have him committed, and that he is innocent simply by virtue that he believes he is innocent. It doesn't appear that he has any real appreciation for the gravity of the alleged incident, the allegations against him, or the manner in which the case can proceed. It does seem that he believes that the matter should be reduced to a misdemeanor simply because he vociferously states that his brother is fabricating the allegations and "the system is conspiring against him."(Id.)
Dr. Kojian recommended that Petitioner be treated with medication, although he did not specify what type, and he predicted that medication would render Petitioner competent to stand trial. (Id. at 4-5, 9.)
Dr. Knapke's Report.
Dr. Knapke spoke with Petitioner's brother Craig, who described Petitioner as "being very volatile all the time" but also "indicated that [Petitioner] is rarely sober." (Id. at 13.) He reported that Petitioner "is constantly threatening Mexicans" who live in their neighborhood and that Petitioner "has been assaultive towards all of his friends." (Id. at 13.)
During the interview with Petitioner, Dr. Knapke observed that Petitioner "was not delusional" or "responding to any internal stimuli" but "did present with pressured speech and at times became highly emotionally charged especially when talking about his brother, the victim of the instant offense, as well as his current public defender." (Id. at 10.) Dr. Knapke opined that he could not "completely rule out the possibility of an underlying Mood Disorder such as Bipolar Disorder," but found this unlikely because Petitioner was 45 years old and had never been psychiatrically hospitalized; Dr. Knapke noted that bipolar disorder "usually presents itself in late teens or early twenties" and "usually results in numerous psychiatric hospitalizations...." (Id. at 10.) Dr. Knapke did diagnose Petitioner with alcohol dependence based on Petitioner's admission of daily alcohol use and Petitioner's own belief that he had an alcohol problem. (Id. at 10-12.)
Dr. Knapke found that Petitioner "clearly understands the charges and proceedings against him" and "has a very good understanding of basic courtroom proceedings," which "[h]e was able to discuss ... at great length with me during the interview." (Id. at 11.) When Dr. Knapke asked what Petitioner was charged with, Petitioner said "A 422, a criminal threat. ... They said I threatened my brother and mother." (Id. at 13.) Dr. Knapke opined that Petitioner "was able to give a rational version of the instant offense...." (Id. at 14.) Petitioner stated that he did not believe his manslaughter conviction would count as a strike because it was prior to the California Three Strikes Law. (Id. at 13.) Petitioner "indicated that [he] wants to ask the judge if he can be appointed a state appointed attorney instead of his current public defender." (Id. at 14.)
Petitioner "denied any auditory hallucinations" or "paranoia," and Dr. Knapke "attempted to elicit any religious or political delusions during [the] interview but ... was unable to do so." (Id. at 14.) However, Dr. Knapke also noted that Petitioner "believes that the public defender is working closely with the district attorney." (Id. at 14.)
Dr. Knapke opined that Petitioner had "the capacity to rationally cooperate with an attorney if he so chooses," noting that Petitioner "was able to rationally cooperate with [Dr. Knapke] during this interview," "was able to answer questions logically or appropriately," "was not psychotic or delusional," "was not responding to any internal stimuli during this interview and was able to focus on the interview." (Id. at 11.) Dr. Knapke opined that Petitioner's "claims that his brother is lying about the events on the day of the instant offense" and "[t]he fact that he is unhappy with his current public defender" did "not necessarily render him incompetent to stand trial." (Id. at 11.) Dr. Knapke concluded:
Based on the limited information available to me at the time of this evaluation, it appears that the only significant psychiatric problem that the defendant has is an Alcohol Dependence problem. ... [I]t appears that the defendant has been drinking alcohol on a daily basis and he becomes highly volatile and dangerous when he is intoxicated. However, I did note during his clinical examination that he presented with pressured speech and became highly emotionally charged when the topic of his brother, the victim of the instant offense, came up. He also became agitated when discussing his current public defender. ...
Even though I cannot completely rule out the possibility of an underlying Mood Disorder, such as Bipolar Disorder in this particular
defendant, it is clear that he understands the charges and proceedings against him. Not only did he know what he is currently being charged with but also knew the penal code section of his current charge. He also had a very good understanding of courtroom proceedings. Even though this defendant is unhappy with his current public defender, he indicated that he would be amenable to working with a new and different defense attorney. ...(Id. at 14-15.)
[T]here is a lack of clinical evidence to support an underlying mental illness or disorder at this time. However, I also had extremely limited information about this defendant at the time of this interview, but he claims he has never been psychiatrically hospitalized and has never been treated with psychiatric medication. ...
d. Competency and Faretta Hearing.
On May 19, 2009, court reconvened before Judge Stoltz. (2 RT C1 [transcript]; see also 1 CT 52-54 [minute order].) Petitioner began by stating that he had filed a Bar complaint against his attorney; he argued that this created a conflict of interest and asked the court to allow him to file a pro se motion. (2 RT C1-C2.) When the court informed Petitioner that this was insufficient to create a conflict and that he could not file a pro se motion while he still had counsel, Petitioner repeatedly demanded, "Where does it say that in the law book?" (2 RT C2-C3.)
Petitioner then requested permission to proceed pro se. (2 RT C3-C4.) When the court stated that the competency hearing had to be completed first, Petitioner complained that he "was not notified" that this was a competency hearing. (2 RT C4.) The court and the prosecutor pointed out that Petitioner had been notified of this at the prior hearing in April. (2 RT C4.) Petitioner then objected that the competency hearing was "unwarranted" and requested a change of venue, which the court denied. (2 RT C5-C6.)
Ultimately, the trial court found Petitioner competent to stand trial. (2 RT C9-11.) The court found Dr. Knapke's report more persuasive, reasoning:
Dr. Kojian indicates that [Petitioner] does understand the proceedings against him. He simply opines that because of the mental disorder, [Petitioner is] not able to cooperate with his attorney - rationally cooperate with his attorney, but does not give any diagnosis of any kind of mental illness. He recommends [Petitioner] be treated with medication. He has no idea as to what medication would be appropriate because there's no diagnosis.(2 RT C10.)
The court then granted Petitioner's motion to represent himself, as discussed further below under Ground 3. At subsequent hearings, bar panel attorney Kevin Avery was present as standby counsel.
e. Other Pre-Trial Hearings before Judge Stoltz.
On June 16, 2009, a pre-trial conference was held before Judge Stoltz. (LD 2, 1 CT 62 [minute order]; 2 RT D1 [transcript].) Petitioner appeared pro se, and standby counsel Kevin Avery was also present. (2 RT D17.) At one point Petitioner asked to consult with Avery and the court stated, "No. ... That's not his purpose. ... His purpose is not to give you legal advice, Mr. Robinson." (2 RT D17.)
Petitioner filed a motion to suppress and sought an evidentiary hearing based on his contention that the prosecutor had altered the transcripts of the February 2009 preliminary hearing. (2 RT D5-D15; see also LD 2, 1 CT 57-61 [Petitioner's pro se "Motion to Proov [sic] Prosecution Misconduct that Preliminary Hearing Transcripts Have Be [sic] Tamper[e]d or Alliterd [sic] to the DDA Side Pursuant to P.C. Section 1538.5 Evidence Hearing"]; LD 2, 1 CT 39-47 [motion to suppress].) The discrepancy Petitioner was relying on appeared to be whether the shotgun seized from his home was found in his room or his brother's. When the court asked if he was attempting to suppress evidence of the shotgun, Petitioner responded:
No, your honor. I'm just telling you that this - this - this report here is true. The one she's giving you is false. She [the prosecutor] stated ... in the preliminary transcripts that the shotgun and the shells and everything - and to the probation, in the probation reports, that they were found in my bedroom closet and they weren't. And this is not my property. This is Craig Robinson's property.(2 RT D14) (emphasis added). At one point during the argument, the bailiff instructed Petitioner, "Don't yell at the judge." (2 RT D6.)
Petitioner also attempted to present a motion to set aside the information under California Penal Code section 995. (2 RT D15-16, 21.) During Petitioner's argument, the courted admonished him:
Section 995(a)(2)(B) allows the court to set aside an information if "the defendant had been committed without reasonable or probable cause."
Mr. Robinson, you can't talk over me. Okay? This is not going to work. She [the court reporter] has to write down everything you say, and she can't write that down when you're yelling ... and won't let anybody else be heard. ... You can't just talk louder and louder and louder on top of me, insisting on being heard and not even letting me ask a question here.(2 RT D23, D25.) Petitioner apologized. (2 RT D23.)
Petitioner produced two pieces of paper that he described as different versions of the same "crime and arrest report." (2 RT D29-32.) He accused either the prosecutor, the court reporter, or the judge of changing his brother's statements in the report. (2 RT D29-35.) When the court explained that section 995 motions were usually considered on the basis of the preliminary hearing transcript alone, Petitioner argued he was attempting to show that his "preliminary transcripts have been altered by someone and - and tampered." (2 RT D32.) During his argument, the court admonished Petitioner, "Don't yell"; Petitioner responded, "I'm sorry, your honor. I just thought you didn't hear me." (2 RT D32-33.) The court eventually denied Petitioner's motion, finding that there was "no credible evidence that the transcript was altered or not accurate in any way." (2 RT D35.)
Next, Petitioner argued, "I'm moving to suppress any statements by the district attorney or by my brother that brung [sic] up my - my dead brother's past based on she is trying to stereotype me under the grounds of the penal code - Evidence Code 1101 subsection (a).[] She's stereotyping me as a killer and - and a horrible, terrible person." (2 RT D36.) The court pointed out that Petitioner's written motion to suppress appeared to be based on an illegal search and seizure. (2 RT D36-37.) At one point the court noted, "You're mixing apples and oranges here. You're trying to prove that what the witnesses said was not true. ... But that's totally different than just whether somebody said something at the preliminary hearing." (2 RT D40.) Petitioner continued to argue the merits of the case, however, asserting that his brother Craig was not in fear for his life because: (1) he was "just sitting on the front porch"; (2) Craig referred to Petitioner's threat as "talking some kind of nonsense"; and (3) Craig told the police that he wanted Petitioner out of the house for good. (2 RT D41.) The court ultimately denied the motion to suppress. (2 RT D44.)
Evidence Code section 1101(a) provides that generally "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."
Later, while the court was discussing housekeeping matters with the clerk and the prosecutor, Petitioner interrupted, "Your honor, I would like - I have a statement to make. My - my standby attorney is asleep in here. And I like to let you know about it." (2 RT D45.) When the court responded, "He's not asleep," Petitioner insisted, "He was a minute ago." (2 RT D45.)
The court granted most of Petitioner's discovery requests. (2 RT D45-52.) Yet Petitioner frequently interrupted, causing the court to comment, "You always keep trying to interrupt and go off in different directions.... You have what I call 'racing thoughts.' We can't complete one topic from beginning to end." (2 RT D52.) For example, while discussing what discovery had been turned over, the prosecution stated it had disclosed an arrest report for Petitioner's brother Craig dated July 20, 2000. (2 RT D69-70.) Petitioner interrupted:
THE DEFENDANT: I dropped the charges against him because I didn't want him going to prison.(2 RT D70.)
THE COURT: Okay. But they're just giving you a copy of this.
THE DEFENDANT: Right. The reason why he wasn't convicted is because I dropped the charges against him, your honor. I didn't want him going to jail.
THE COURT: All right. Is there-
THE DEFENDANT: You think I don't care about my brother? I'm just going to shoot my own brother for no reason? You think-
THE COURT: Mr. Robinson, we're not hearing anything other than the discovery at this time.
Later, during discussions of when trial should begin, Petitioner indicated that he wanted to file a Pitchess motion regarding the officer who tasered him. (2 RT D76-78.) Petitioner's standby counsel, Avery, noted that Petitioner was statutorily required give the police department 26 days' notice for a Pitchess motion. (2 RT D78.) The court stated the matter would go to trial between July 2 and 13, 2009. (2 RT D78-79.) Petitioner asked the court if that would give him time to file a Pitchess motion, but the court refused to give him legal advice. (2 RT D79.)
"In a Pitchess motion, a criminal defendant moves to compel the discovery of evidence in the arresting law enforcement officer's personnel file that is relevant to the defendant's ability to defend against a criminal charge." Strickland v. Salazar, No. 09-4103-SJO-PLA, 2010 WL 5173852, at *2 n.1, 2010 U.S. Dist. LEXIS 131701 (C.D. Cal. Dec. 6, 2010), R&R adopted, 2010 WL 5175030 (C.D. Cal. Dec. 9, 2010).
On July 2, 2009, Petitioner appeared again before Judge Stoltz and filed a number of pro se motions. (2 RT E1 [transcript]; see also LD 2, 1 CT 148-50 [minute order].) These motions accused the prosecutor of "fraudulently presenting [him] with fraudulent documents signed by the U.S. Marshal's Office," and accused the LAPD of "falsifying" a 911 tape." (2 RT E2-E3, E6-E7, E42.) At one point, Petitioner also accused the L.A. Sheriff's Department of "stealing [his] mail" in the jail. (2 RT E38.) Petitioner argued, "[T]here's been a conspiracy in this case from the git-go. And this is just a misdemeanor. I don't know why I'm here." (2 RT E42.)
At one point, Petitioner began to complain that his brother Craig had kept their mother from testifying at the preliminary hearing, although it was unclear what relief, if any, he was seeking from the court:
THE DEFENDANT ... I have been told that my mother did - received a - a subpoena in the mail on the - on the day that - I mean 10 days before my preliminary hearing.
My brother deliberately kept my mother from coming to my preliminary hearing in order to get me bound over to superior court and have me convicted of this criminal threat which is a fraudulent criminal charge on his part - part because he is larcenist.
And I will not be pleading anything in this case. And I do intend to take this fully to trial. And after this is over with, I will be seeking serious allegations against him, and this State, and this court.
THE COURT: All right. Mr. Robinson, I've told you before and I'll tell you again.
When we have court hearings, this is not where we just sit around and discuss a litany of complaints. So you don't just come in with a litany of complaints of things you don't like, things you're unhappy about. That's not how we conduct court.
You make motions, she [the prosecutor] makes motions; the court rules on them. That's how we do things.
THE DEFENDANT: Yes, your honor.
THE COURT: I've said that at least 10 times here -
THE DEFENDANT: Yes, your honor. I'm -
THE COURT: -- if not more, okay?
So you can sit here and just pontificate on all your complaints about this place as much as you want. But that's not a motion. Okay? It doesn't call upon me to do anything.
THE DEFENDANT: Yes, your honor. I'm - I'm just - I'm just explaining to you that my brother has robbed me - not only that, but he has robbed me for over $3,000 in the past out of my bank account from Washington Mutual.
And I want to ask Mr. Maydeck [Petitioner's court-appointed private investigator] to go to the Washington Mutual branch on -
THE COURT: Mr. Robinson, you're not conducting discussions with your private investigator here. Okay? ... And he cannot go out and investigate other crimes. Only things that pertain directly to this offense.
THE DEFENDANT: The larceny pertains to this offense. That's why he's put me away. He's trying to put me away and - so he can steal my mother's home from me and all my belongings.
THE COURT: Mr. Robinson, this is not the appropriate venue in which to have a conversation with your private investigator. You do
that privately back at the jail. Okay? We're not going to use the court time for you to turn around and yell at Mr. Maydeck in the back of the courtroom things you want him to do.(2 RT E12-14.) Petitioner said "yes," but then began to complain about past incidents where his brother had allegedly threatened him. (2 RT E14.)
f. Pre-Trial Hearings before Judge Silver.
Following the July 2 hearing, pre-trial hearings in the case were conducted by Judge Shari Silver, the same judge who later presided over Petitioner's trial.
Petitioner filed a motion for "Reduction of Offense to Misdemeanor [California Penal Code] § 17(b)." (LD 2, 1 CT 71.) Citing California Penal Code section 17(b)(5), Petitioner argued the court had "discretion to declare a charge offense to be a misdemeanor whenever the offense is punishable by either a state prison commitment or a county jail sentence." (1 CT 72.) Petitioner argued that the offense under California Penal Code "422 is a misdemeanor wobbler of criminal threat." (1 CT 74-87.)
The court heard argument on the motion at a hearing on August 5, 2009. (LD 2, 2 CT 177-78 [minute order]; 2 RT F1 [transcript].) Before hearing argument, the court noted that she was tentatively inclined to deny the motion; Petitioner repeatedly attempted to interrupt by raising his hand. (2 RT F1-F2 [court instructing petitioner to put his hand down until he was asked to argue].) The court then allowed Petitioner to argue, which he did as follows:
Your honor, those probationary reports are falsified by the district attorney.
And also, I - the shotgun shells, if you read them, were not mine. All the guns - I am not being charged with any type of weapon or any type of shells being in this case, being in my possession. She falsified that to the probationary department.
She's also - I object and I want to ask why you're rejecting my
17(b) motion when my brother, Randy, assaulted me with a deadly weapon. He - he assaulted me with a shotgun blast. He - he assaulted my mother. He beat my father up; he killed him.(2 RT F3-F4.) The court clarified that it had only stated its "tentative decision" was to deny the motion, but then stated it was now, in fact, denying the motion. (2 RT F4.) Petitioner interrupted the court's ruling by raising his hand and asking to "make one more statement"; he asserted, "This conviction has nothing - this prior has nothing to do with this case now." (2 RT F4.) The court directed Petitioner to stop speaking and explained, "Sir, your prior record is something that is considered when I have to exercise my discretion whether or not to reduce a felony to a misdemeanor. That is one of the factors...." (2 RT F5.) Here, Petitioner interrupted again, and the court admonished him, "Sir, do not interrupt me. If you interrupt me one more time and you fail to comply with my orders, I will be forced to revoke your pro per status. So follow the rules." (2 RT F5.) Petitioner raised his hand again, but the court instructed him to put it down. (2 RT F5.)
And he also - Craig Robinson assaulted me with a deadly weapon with an intent to commit murder, and you have the - the police report right there with you. And I have never threatened or assaulted anyone.
Also, I am asking why you are rejecting my 17(b) motion.
Petitioner asked why his mother Helen, whom he had attempted to subpoena as a trial witness, was not present and accused his brother Craig of trying to prevent her from attending trial. (2 RT F12-14.) Craig had told the prosecutor that Helen, who was 89, "would require ambulance transportation ... and a wheelchair in order to arrive at the courthouse." (2 RT F14.) Petitioner argued Helen was capable of coming to court without these things. (2 RT F14.)
Petitioner filed a "motion to suppress" arguing:
"under the Evidence Code 1101, a person's character or trait[,] ... I
did not take the stand in the preliminary hearing; therefore, he [Craig] is not allowed to bring up any of my criminal past or history, or make any kind of allegations against me on - on this matter because he was - does not know my brother Randy, and he did not live with us for twenty-six years. ... And he has no idea what he was talking about.(2 RT G14.) See Cal Evid. Code § 1101 (evidence of character to provide conduct). The court ruled the prior conviction was admissible to show why Craig was afraid of Petitioner. (2 RT G5-16.) Petitioner interrupted the court several times to object; the court again instructed Petitioner not to do this and threatened to revoke his pro per status. (2 RT G16.)
g. Arraignment on Amended Information.
On August 13, 2009, the state amended the information to add counts 3 and 4 for violations of California Penal Code section 69 for "each officer that was involved in the capture and apprehension of" Petitioner, i.e., Officers Fong and Richardson. (2 CT 179, Dkt. 198-3 at 27 [amended information]; 2 RT G1-G2, Dkt. 198-5 at 198-234 [transcript of arraignment]; see also LD 2, 2 CT 184-86 [minute order].) Petitioner argued:
I have a copy of the police report right here from Officer Crandall and Officer Perez. And there was no such charges put on his original police report of any such behavior of resisting of anything.(2 RT G4.) The court explained that it was "not resolving whether or not [Petitioner] did or did not do the crime described in counts 3 and 4" and asked him to enter a plea. (2 RT G4-G5.) Petitioner responded with a plea of not guilty. (2 RT G5.)
And I have no - I had - I didn't - I'm pleading not guilty to the charges, and I did not resist arrest. Period.
While the court and prosecutor were discussing what witnesses the state planned to call—including Petitioner's mother Helen—Petitioner attempted to interject; the court admonished him:
Sir, I have told you so many times that you cannot interrupt this court when I am speaking. When I am ready to hear from you, I will hear from you.(2 RT G6-G7.) Petitioner stated he understood. (2 RT G7.) While the court continued speaking with the prosecutor, however, Petitioner raised his hand. (See 2 RT G7-G8 [court instructs Petitioner, "Put your hand down."].)
Now, you're advised, if you continue to violate my orders, I will revoke your pro per privileges and appoint Mr. Avery to represent you, because it seems it is impossible for you to follow this court's orders. This is not a free-for-all. This is not 'Jerry Springer.' When I am ready to hear from you, I will let you know.
Do you understand?
Later in the hearing, the court commented: "Sir, do not interrupt me. You run all over the field. You try to jump from one subject to another subject, to another subject. And the only way this trial and these proceedings are going to make sense is if I do them one at a time and stick to that subject matter." (2 RT G8.) When addressing the written motions filed by Petitioner, the court noted, "A lot of your statements in this document are just rambling and do not make any sense," and, "The documents that you file ramble on and on and on about family history and conspiracies, alleged conspiracies against you." (2 RT G10, G24.) In one of those motions, Petitioner continued to assert that one of the prosecutors "planted and put fake U.S. Marshal's incident reports" into the case file. (2 RT G12.)
The court noted Petitioner had filed a motion to strike his prior manslaughter conviction "because the plea that you took, you claim was constitutionally invalid because there was no waiver of counsel, no advisement of direct consequences of the plea." (2 RT G11; see also LD 2, 2 CT 156-57 [the motion].) The court ruled, "[I]f you are seeking to challenge the validity of that plea, you have to do that in the court where the plea was taken. And in terms of your motion on the merits to strike that prior serious and violent felony, I will consider that motion after the conclusion of your trial." (2 RT G11.)
Dkt. 198-3 at 4.
Petitioner sought to have the court ask potential jurors the following questions during voir dire: (1) "if any of the jurors have older brothers," (2) whether they drank beer or wine, (3) whether they smoked, (4) their favorite food, (5) whether they suffered from illness or pain, (6) their occupation and salary, (7) "would you defend yourself against a family member?" (8) "just because somebody is in jail, does that make them guilty?" (2 RT G26.) The court agreed to ask the jurors some of these questions. (2 RT G26.)
At one point, during discussion of Petitioner's request for more pro per funds, the court admonished Petitioner:
THE COURT: Sir, you know, it is impossible for you to stick to one subject.(2 RT G29-30.)
THE DEFENDANT: Yes, your honor.
THE COURT: I need things done in an orderly manner. I can't be jumping from point a, to point b, to point c, to point d. I need to finish with point a before moving on. And every time I try to do that, you want to bring up something else. And you are not to do that.
THE DEFENDANT: Yes, your honor.
THE COURT: You say, 'yes,' but you never follow the orders.
Later, when the court attempted to adjourn, Petitioner interrupted, "Your honor, I have one more thing to request of you. My mother, can you ask her right now why she did not show up to my preliminary hearing? ... I would like to have a deposition done with her." (2 RT G35.) The court explained that "there are no depositions in criminal trials," but Petitioner objected, "She is a witness—" (2 RT G35.) The court admonished Petitioner:
Sir, stop it. You are obsessed with your family relations. You cannot see clearly. You get into minutiae about believing that your brother prevented your mother from coming to the preliminary hearing. If she wasn't subpoenaed, she didn't have to be there. I have no control over that.(2 RT G35.)
We are talking about your trial on the amended information. We have ordered the jurors for Monday.
h. Jury Selection.
Jury selection began on Monday, August 17, 2009. (3 RT 1.) Before the prospective jurors were brought in, the court admonished Petitioner "not to interrupt [the court] at all," noting, "You have a very, very bad methodology wherein you want to and you do skip from point 'a,' to point 'z,' to point 'p,' and you make everything very difficult to follow." (3 RT 4.)
Petitioner asked, "This will be a blue ribbon jury, right? A jury of my peers. Right?" (3 RT 4.) The court responded that she did not know what Petitioner meant. (3 RT 5.) Petitioner also argued:
[T]here was no evidence sheet presented to the defense here for the - from the - the people. And the witness list that she gave me on last Thursday has Officer Rick Alazidue (phonetic) as - as - listed as an executive officer, and he is not. And she is charging me with a - let's see - a 1170.12(a)-(d), that he is an executive officer and I threatened him. And he is not an executive officer, your honor. ...
And an officer - and same with Officer Fong. And she has me
charged with a misdemeanor on the same officer with a - another - I guess it's with Rick Alazidue (phonetic) that the judge in municipal court already dismissed this and dropped it to a misdemeanor.(3 RT 7.) The prosecutor stated that the officers who were the victims with regard to the Penal Code section 69 charges were LAPD SWAT officers. (3 RT 7-8.) The court overruled Petitioner's objection. (3 RT 8.) Petitioner then objected that he had not been given the state's witness list in a timely manner; the court overruled this objection, noting it had been discussed and resolved at a prior hearing. (3 RT 8-10.)
The court asked the prospective jurors if their ability to be fair would be affected by Petitioner's decision to represent himself. (3 RT 27.) One juror answered that Petitioner was "either ... an idiot or a manipulator." (3 RT 27.) Another juror opined, "[H]is emotions are going to play more upon mine. ... [I]f it's coming from him, how he says it is going to mean a lot more to me." (3 RT 29.) The same juror indicated it "would be difficult to make a distinction" between Petitioner testifying and "when he is acting as his lawyer." (3 RT 29-30.)
The court gave the jurors a series of written questions to read. (3 RT 30.) While they were doing so, Petitioner said, "Your honor—" and the court interrupted him, "No. Sir, we are doing this right now. Remember the rules I explained to you, we are doing one thing right now. Do not interrupt the court." (3 RT 31.) After the jury had been excused, Petitioner attempted to ask his standby counsel Avery and the court about the prosecution's burden of proof, reading from a legal treatise discussing the preponderance of the evidence standard. (3 RT 34-35, 37.) The court explained that this was the standard in a civil case, but in a criminal case the standard was beyond a reasonable doubt. (3 RT 35-36.) Petitioner stated that he disagreed with the jury instruction because "it doesn't state during the burden of proof that she must per - prove each and every element beyond a reasonable doubt by prepondering [sic] each and every element of evidence. That means she must show clear and convincing proof right before me." (3 RT 36-37.) The court responded that Petitioner was "confusing all of the different standards of proof." (3 RT 37.)
The court ordered Petitioner taken back into lockup. (3 RT 38.) When court reconvened, the court noted: "Mr. Robinson, as you were being taken back into lockup, you blurted out that this court was committing a fraud on something." (3 RT 38.) The court explained that she was "not supposed to give [Petitioner] help or legal advice," but nevertheless attempted to explain the different burdens of proof. (3 RT 38-39.) The court instructed Petitioner, "If you have something that you need to say out of the presence of the jury, write it down, and after the jury leaves, then I will ask you. You cannot interrupt with issues that are not relevant to what we are doing." (3 RT 39.) Although the court attempted to continue with jury selection, Petitioner again attempted to argue about what the legal treatise said. (3 RT 39.) The court noted, "This is the problem with you representing yourself. You read things; you don't understand their context. You pull out words. You're arguing to me to make the D.A. prove her case by a preponderance of the evidence. That's the worst thing for you." (3 RT 39.) Petitioner continued to insist, "[B]eyond a reasonable doubt means by prepondering [sic] the evidence, by showing the evidence is clear and convincing right before you." (3 RT 40.)
After the jury was excused for the day, Petitioner requested a continuance based on the amended information that had been filed the prior Thursday. (3 RT 54-55.) Petitioner argued, "I have to have time to do a Pitchess motion to find out anything about this Rick Alazidue and - and the other Officer Fong, because ... they are now charging me with a felony which - Penal Code 69. I had looked in the computer in the law library, states it's only a misdemeanor and does not hold no more than one year in the county jail...." (3 RT 55.) The court asked Petitioner why he had not asked for a continuance before. (3 RT 55-56.) Avery attempted to explain to Petitioner that it was "called a 'wobbler,'" but the court instructed Petitioner not to talk to Avery, as he was only standby counsel. (3 RT 56-57.) Petitioner argued, "Officer Fong and Officer Rick Alazidue (phonetic) are not executive officers, your honor. They are not a lieutenant. ... The man is not even a sergeant." (3 RT 56.)
i. Appointment of Standby Counsel.
On Tuesday, August 18th, Petitioner told the court that he wanted Avery to take over the case because he was "not feeling well" due to the stress of incarceration and his diabetes. (3 RT 301-02.) Avery accepted the representation, but noted he was at "a considerable disadvantage" because he had not had the opportunity to work with Petitioner's investigator or review all of the discovery. (3 RT 306-307.) He noted that he had advised Petitioner to accept the state's plea offer, but Petitioner refused. (3 RT 307-09.) The court noted that there would be no court the following day because it was a "furlough day," and that would give Avery the chance to "obtain whatever discovery [Petitioner] has, and, if necessary, meet with the investigator...." (3 RT 310.)
When court reconvened on Thursday, August 20th, Avery noted he had met with Petitioner to discuss the case the prior day. Avery had asked Petitioner to prepare a list of questions for the expected witnesses, and Avery characterized Petitioner's response as "only semi-coherent" with "misspellings ... too numerous to count." (3 RT 603.) Avery noted that Petitioner had requested that he as "one of the most idiotic questions I could ever imagine asking a witness," i.e., "ask his brother [Craig] if his brother had ever seen him with a gun." (3 RT 603-04.)
j. Petitioner's Behavior at Trial.
Voir dire ended and trial began on Thursday, August 20th. During the state's opening statement, when the prosecutor stated that Petitioner had shot his brother Randy in 1993, Petitioner stated, "I object, your honor." (3 RT 632.) Avery and the court instructed Petitioner to be quiet. (3 RT 632.) Petitioner stated he understood, but then attempted to continue talking. (3 RT 632-33.) The court sent the jury back to the deliberation room (3 RT 633) and further admonished Petitioner:
THE COURT: ... Mr. Robinson, you were doing so well.
THE DEFENDANT: Your honor -
THE COURT: No. Don't speak. This is not the "Jerry Springer Show." I am talking to you.
MR. AVERY: Don't talk to me. Listen to the judge.
THE COURT: You cannot do what you just did. You cannot do that. You have a lawyer, and your lawyer speaks for you.
If you disrupt the trial now that I have warned you again, I will have to consider putting you in lockup and getting a television and you can watch and listen to the trial in lockup. You cannot disrupt this trial.
Furthermore, your outbursts do not help your case. It just convinces the jury -
THE DEFENDANT: Listen to me -
THE COURT: See, sir, you're turning around to talk to your lawyer; you're not listening to me.
Your outbursts are just going to convince the jury that you have an uncontrollable temper; that you don't listen; and that you don't obey the rules.
Now, you are on notice: You are not to make any outbursts or objections. Your attorney is a fine, excellent, experienced trial lawyer, and he knows what to do. And you are not to say a word.
If you want to write him a note, write him a note. Understand?
THE DEFENDANT: (No audible response.)
THE COURT: Do you understand?
THE DEFENDANT: Yes, your honor. I -
THE COURT: You say you understand, and then you just go ahead and violate my orders. You cannot object during this trial. You have a lawyer.
THE DEFENDANT: I told him to object; he didn't do anything, your honor.
THE COURT: Sir, he knows how to practice law and you don't. I have already ruled on that evidence. I have already advised you that that evidence will be admitted.
THE DEFENDANT: That is not admissible, your honor. Anything - I'm not taking the stand. Anything that's in my criminal past is not to be brung [sic] up unless I take the stand.
MR. AVERY: Mr. Robinson, that is absolutely not true.
Yes, it frustrates me immensely that I can't keep out your manslaughter conviction for your brother. ... [I]t is extremely helpful for the jury to understand the state of mind of your brother and whether or not he was, in fact, in actual fear of you based upon that prior conduct.
And as much as I'd love to keep it out, I know how this judge has already ruled and how she will rule. So I'm not going to waste my time making objections that I already know will be overruled.
... I want you to listen. She [the judge] is trying to help you, so am I. That's my job. ...
... [Y]our outbursts show you have a temper. Well, the charge against you for a blowup with your brother might be called an explosion of temper. ...
... [P]lease behavior yourself, sit there quietly, and act like a gentleman to the best of your ability. Because every time you open your mouth, it just makes them want to get back to the jury room
where they can convict you. Don't help them.(3 RT 637-41.)
THE COURT: Thank you. All right.
THE DEFENDANT: Your honor -
THE COURT: No. Mr. Robinson, that's it. That's it.
THE DEFENDANT: I object, your honor. I have a right to tell him to object to these opening statements that has nothing to do with this case. It's out of the scope of this case.
THE COURT: Mr. Robinson -
THE DEFENDANT: It's out of the scope of the charge.
The court again explained why the court had ruled the manslaughter conviction admissible. (3 RT 641-42.) Petitioner continued to interrupt and stated, "I want to object anyway." (3 RT 642.) Petitioner stated that he understood he was not supposed to object but explained he did so because "I told him [Avery] to do it; he wouldn't do it." (3 RT 643.) The court explained:
THE COURT: He does not have to do everything that you ask of him. He decides strategy and proper manner and demeanor and protocol in the courtroom, not you. Now, he's discussed that with you and you know that.(3 RT 643.) Avery noted that, if Petitioner continued to interrupt, the bailiff had suggested using a "stun belt for behavior control" rather than placing Petitioner in lockup. (3 RT 643.) The court brought the jury back and instructed them "to disregard any outbursts or statement that Mr. Robinson made or makes in this case." (3 RT 644.)
Now, be quiet. If you want to testify later in this case, you can discuss that with your lawyer and he and you will make a decision. Period.
I don't want to hear from you now. You say the same things over and over again. You can't follow directions. You are rude. You are annoying. And you are disruptive. Now, sit there and be quiet.
Court reconvened the following Monday, August 24th. (4 RT 901.) The court again admonished Petitioner not to make any outbursts or objections, noting, "I know you're intelligent enough to follow these rules." (4 RT 901-02.) Petitioner asked, through his counsel, to represent himself again. (4 RT 902.) The court denied the request. (4 RT 902-03.) Petitioner asked to address the court, but the court directed him to speak to Avery. (4 RT 903.) Petitioner complained to Avery "sotto voce" that the judge had "contaminated the jury." (4 RT 903.)
The prosecutor completed her opening statement and called Petitioner's brother Craig as the state's first witness. (4 RT 903-08.) During the lunch break, the bailiff informed the court that Petitioner had been "pointing" at either Avery or Craig during Craig's testimony. (4 RT 938.) The court instructed Petitioner not to "make any hand gestures," "shak[e] his head, [or] giv[e] nonverbal indication that [he] disagree[d] with the witness' testimony." (4 RT 938.) Petitioner stated that he understood. (4 RT 938.) Avery then asked Petitioner to communicate with him only in writing while witnesses were testifying because it was "extremely disruptive to [Avery's] train of thought and ability to concentrate [on] doing [his] job when [Petitioner] whisper[ed] in [his] ear or nudge[d] ]him] while [he was] trying to listen to testimony or frame questions." (4 RT 938-39.) The court confirmed that Petitioner had paper and a writing utensil, and Petitioner stated, "I will have something for him [Avery] after lunch." (4 RT 939.) After lunch, Avery stated that Petitioner had provided him "with two handwritten or hand-printed sheets of suggested lines of inquiry for examination or cross-examination," and Avery told Petitioner that he "may or may not use some or all of these." (4 RT 940-41.)
On Tuesday, August 25th, the state called U.S. Marshal George Gammon—who Petitioner had called during the incident—to the stand. (5 RT 1203.) When Marshal Gammon testified that Petitioner said he was "going to hang [the LAPD] by their balls," Petitioner apparently said something audible to Avery; the court admonished him, "Mr. Robinson, remember what I told you before? You cannot speak with your attorney verbally while the jury is here and while we are on the record. I advised you to write things down and then hand the note to your attorney. Do not violate my order." (5 RT 1211.) After Avery finished cross-examining Marshal Gammon, Petitioner attempted to address the court; the court instructed him to "whisper in your attorney's ear right now what you were going to say," and Petitioner did so. (5 RT 1219-20.)
During the lunch break, the court observed, "I observed you during the examination of these witnesses, after I advised you [Petitioner] not to talk to your attorney, to continue to talk to your attorney while the witnesses were testifying ... at least four times this morning." (5 RT 1232-33.) The court noted, "[T]hat supports my prior decision in not allowing you to revert back to your pro per status. You're absolutely incapable of following any orders." (5 RT 1233.) The court again instructed Petitioner to stop doing that, noting that it was "extremely distracting to everybody, but it is most distracting to [Avery because] ... it causes him to not be able to pay attention to what the witness is saying and pointing to." (5 RT 1233.) Avery agreed it was disruptive and not in Petitioner's best interest. (5 RT 1233-34.) The court noted Petitioner did not appear to be listening and was "speaking to the bailiff while I am speaking to you." (5 RT 1234.) Petitioner said, "Yes, your honor" and "I'm listening." (5 RT 1234.) The court again threatened to put Petitioner in lockup, commenting, "You willfully violate every order that is made.... You are disruptive. You are willful. And you know exactly what you are doing." (5 RT 1234-35.)
Petitioner does not appear to have disrupted the proceedings any further until Thursday, August 27th, when the prosecutor was giving her closing argument. (5 RT 1815.) Avery interrupted the prosecutor's closing and asked the court for a sidebar; the court sent the jury out of the room. (5 RT 1823.) The court noted it had observed Petitioner, "[a]t least three times, maybe even four during [the prosecutor's] closing argument, ... talking to [his] attorney," as well as "pointing towards the jury box, at something or somebody." (5 RT 1824.) Avery agreed with the court's observations and stated that he also observed Petitioner "mouthing words ... in the direction of the jury box." (5 RT 1825.) Avery stated that he was "concerned about [Petitioner] acting in such a manner that could prompt a negative reaction by one or more jurors, the remote possibility of a mistrial due to inappropriate conduct on his part, or other negative consequences which could flow [his] from behavior...." (5 RT 1824-25.) Avery "suggested ... that perhaps it actually would be more beneficial for [Petitioner] to not be present during closing argument. ... [I]n a bizarre way, I think this might help protect my client." (5 RT 1825.) The prosecutor suggested that the court take less drastic measures. (5 RT 1825-26.) The court ordered, "I'm going to have our bailiff sit or stand close to [Petitioner]. And if [Petitioner] speaks to his attorney in any way or bothers him in any way during closing arguments, please, deputy, go to [Petitioner] and do whatever law enforcement does to hopefully have him stop it," short of removing Petitioner from the courtroom. (5 RT 1826-27.) The court observed that Petitioner had "a look on [his] face of disbelief," but opined that Petitioner "underst[ood] exactly what's going on" and "exactly what [he was] doing." (5 RT 1826.) Petitioner agreed that he understood and commented, "I haven't said a word." (5 RT 1827.)
After the prosecutor finished her closing argument and the jury left the courtroom, Petitioner attempted to ask the court a question. (5 RT 1851.) The court directed him to speak to Avery, and he did so. (5 RT 1851.) During the defense closing statement, Avery argued:
Crazy words are not a crime. My client is difficult. That's an understatement. It's easy to not like him. It's easy to see he is a pain
in the arse. It is easy to see he is difficult. It is easy to see why he might argue with his brother and the two of them don't get along, clearly. All those things are easy. But it is extremely difficult to view that afternoon as rising to the commission of a felony of criminal threats when the victim himself said it: same as always.(5 RT 1872.)
Petitioner's subsequent behavior during his bench trial on the prior strike and at sentencing is discussed further below under Ground 11 (section V.E.), which argues Petitioner was denied his constitutional right to be present at sentencing. (See SAP at 63-64.)
3. Decision of the California Court of Appeal on Direct Appeal.
On appeal, Petitioner argued that the trial court incorrectly applied California law by rejecting Dr. Kojian's competency opinion on inappropriate grounds. (Dkt. 198-12 at 32-33, 39-49 [LD 6].) Petitioner also argued that the trial court's determination of competency was "erroneous" and "there was substantial evidence of incompetency." (Id. at 32.) The California Court of Appeal rejected these arguments as follows:
I. Competence to Stand Trial
[Petitioner] contends that the trial court used the wrong standard to determine that he was competent to stand trial.
The determination is "'whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him.'" (Dusky v . U.S. (1960) 362 U .S. 402,402; People v . Ramos (2004) 34 Cal .4th 494, 507; § 1367, subd. (a).) [Petitioner] was presumed competent and bore the burden to prove otherwise by a preponderance of the evidence. (See § 1369, subd. (f); People v . Ary (2011) 51 Cal .4th 510, 518.)
To demonstrate his contention that the trial court failed to apply the correct standard, [Petitioner] points to comments the court made while explaining why Dr. Kojian's opinion was not persuasive. The court stated:
"Dr. Kojian indicates that the defendant does understand the proceedings against him. He simply opines that because of the mental disorder, he's not able to ... rationally cooperate with his attorney, but does not give any diagnosis of any kind of mental illness. He recommends the defendant be treated with medication. He has no idea as to what medication would be appropriate because there's no diagnosis."[Petitioner] points out that because Dr. Kojian was a psychologist it was not within the scope of his license to give an opinion as to the appropriate medication. (See § 1369, subd. (a).) [Petitioner] argues that his failure to make a diagnosis or recommend a medication was not a proper basis to reject Dr. Kojian's opinion. [Petitioner] suggests that the trial court based its determination of competence entirely on the absence of a diagnosis and identification of medication in Dr. Kojian's report.
We find nothing in the trial court's comments to indicate that the court did not engage in the appropriate inquiry into [Petitioner's] ability to consult with his lawyer and his understanding of the proceedings against him. On the contrary, the comments establish that the court did consider the two factors by noting Dr. Kojian's opinion that [Petitioner] understood the proceedings against him, while taking issue with his conclusion that [Petitioner] was not rationally able to cooperate with counsel. There are no "magic words" required of the court in making its determination, so long as the court clearly states its finding whether the defendant is mentally competent to stand trial. (People v . Marks (1988) 45 Cal .3d 1335, 1343.) Here, the trial court clearly made that finding.
Although couched in terms of the standard to be applied, [Petitioner's] real complaint is that he disagrees with the trial court's rejection of Dr. Kojian's opinion. He argues that reversal is required because the court may have misunderstood the scope of the psychologist's license. At the same time, [Petitioner] acknowledges that whatever medication might help him was irrelevant to the basic inquiry. Indeed, the issue of medication becomes relevant only when there is a finding of incompetence, which was not the case here. (See § 1369, subd. (a).) [Petitioner] cites no authority for his suggestion that reversal is required due to possibly erroneous comments by the trial court regarding irrelevant issues.
In fact, the appropriate test on appeal is whether the trial court's ruling is supported by substantial evidence. (People v . Marks (2003) 31 Cal .4th 197, 214.) The test is not whether an expert's opinion was erroneously disregarded, as the weight to be given expert opinion rests exclusively with the trier of fact. (See People v . Wolff (1964) 61 Cal .2d 795, 804; § 1127b.) Evidence is not rendered insufficient by the rejection of the opinion of one or more experts. (People v . Bean (1988) 46 Cal .3d 919, 933, fn. 4.)
[Petitioner] contends that Dr. Knapke's report was insufficient evidence of competence because it conflicted with Dr. Kojian's report. In addition, he argues that the court should also have considered [Petitioner's] behavior during the Marsden hearing.
[Petitioner] spoke very emphatically during the hearing, and showed difficulty in listening or accepting what the judge and his attorney said to him. He expressed the belief that his attorney had lied to him about witness statements and the law, and that he was working with the district attorney. [Petitioner] also insisted that his brother had lied and was preventing his mother from testifying at the preliminary hearing.
[Petitioner] concludes that his behavior provided substantial evidence of an inability to assist his attorney. [Petitioner] appears to confuse the test for finding mental incompetence to stand trial with the test for requiring the trial court to suspend the proceedings and hold a competency hearing. The latter requirement is triggered whenever substantial evidence of incompetence is introduced. (See Pate v . Robinson (1966) 383 U .S. 375, 384-386; People v . Welch (1999) 20 Cal .4th 701, 738 (Welch).) Here the proceedings were in fact suspended and [Petitioner] was afforded a competency hearing during which he bore the burden to prove his incompetence to stand trial. (§ 1369, subd. f); People v . Ary , supra , 51 Cal.4th at p. 518.) Because [Petitioner] submitted to the court the issue of his competence on the two reports, he may not now be heard to complain that the trial court should have considered other evidence. (People v . Weaver (2001) 26 Cal .4th 876, 904.)
In sum, the test on appeal is not whether substantial evidence of mental incompetence was presented or whether the trial court should have valued one expert opinion over another. Our task is to review all the evidence in the light most favorable to the court's finding of competence to determine whether substantial evidence supports that finding. (People v . Marks , supra , 31 Cal.4th at p. 214.) The opinion of a single witness, even an expert witness, may provide substantial evidence to support a finding by the trier of fact. (People v . Vega (2005) 130 Cal .App.4th 183, 190.)
Substantial evidence supports the trial court's ruling. Both of the experts' reports were before the court and it was Dr. Knapke's report the trial court found persuasive. Dr. Knapke reported that [Petitioner] was able to cooperate rationally during the interview; he was not psychotic or delusional, did not appear to be responding to any internal stimuli, and was able to focus on the interview. Dr. Knapke could not rule out a mood disorder such as bipolar disorder, because [Petitioner's] speech was pressured and he expressed highly emotionally charged feelings. However, Dr. Knapke had very limited information about [Petitioner] and found the likelihood of such an illness decreased due to the absence of past psychiatric hospitalizations or use of psychotropic medication. Dr. Knapke concluded on the limited information he had, that [Petitioner's] only significant psychiatric problem was alcohol dependence.
Dr. Knapke found that [Petitioner] understood the charges and the proceedings against him, demonstrated an understanding of basic courtroom proceedings, and although [Petitioner] was unhappy with his attorney, he had the capacity to cooperate rationally with an attorney if he chose to do so. Dr. Knapke concluded that [Petitioner] was competent to stand trial. In that [Petitioner] failed to overcome the presumption that he was competent to stand trial, we find no error in the trial court's conclusion. (See § 1369, subd. (f); People v . Marks , supra , 31 Cal.4th at p. 214.) (Dkt. 198-15 [LD 9] at 7-10.)
4. Analysis.
As noted supra, the federal constitutional standard for competency to stand trial requires that a criminal defendant "demonstrate an ability 'to consult with his lawyer with a reasonable degree of rational understanding' and a 'rational as well as factual understanding of the charges against him.'" Douglas, 316 F.3d at 1094 (quoting Godinez, 509 U.S. at 396). On habeas review, a federal court does not consider a criminal defendant's competency in the first instance, but rather considers whether the state court's competency determination was "unreasonable." See 28 U.S.C. § 2254(d)(2)-(e)(1); Davis, 384 F.3d at 644. Here, the state trial court's initial competency evaluation, made in the face of two conflicting medical opinions, was not unreasonable. Compare Cuen v. Evans, 390 F. App'x 721 (9th Cir. 2010) (finding state court's competency decision reasonable under similar circumstances). Nor was this conclusion rendered unreasonable by Petitioner's subsequent behavior.
The transcripts of the trial court proceedings show that Petitioner was stubborn and uncooperative, sometimes to the point of belligerence. His repeated interruptions sometimes seemed almost pathological: on multiple occasions, he would state that he understood the court's instructions not to interrupt, only to interrupt again almost immediately. He also continued to act disruptively in front of the jury, even though the court and his counsel explained that this would likely give the jurors a negative impression of him.
a. Lack of Definitive Diagnosis and Prior Treatment for Mental Health Condition.
Because neither of the psychological experts who examined Petitioner actually diagnosed him with a specific mental illness, it is difficult to say whether his behavior resulted from a mental health condition or simply reflected Petitioner's personality. Petitioner has not presented any evidence of mental health treatment or hospitalizations, which is evidence that courts often find persuasive on federal habeas review. See, e.g., Taylor v. Davis, 164 F. Supp. 3d 1147, 1155 (N.D. Cal. 2016) ("[T]here was ample evidence that should have raised a bona fide doubt as to Petitioner's competence. Perhaps the most compelling evidence was Petitioner's mental health history. Shortly before the crimes were committed, Petitioner had attempted suicide and been institutionalized at a mental health center, where he was diagnosed with paranoid schizophrenia. ... That evidence alone should have triggered further inquiry into Petitioner's competency."); Burton v. Cate, 913 F. Supp. 2d 822, 836 (N.D. Cal. 2012) (finding "substantial, if not overwhelming[] evidence that Petitioner was not competent to stand trial," including "medical records [from the jail] showing an initial diagnosis which include 'Psychotic Disorder'").
Petitioner argues that lack of such evidence is not "dispositive, or even relevant," and that the "Dusky standard does not require a specific medical diagnosis," quoting People v. Buenrostro, 6 Cal. 5th 367, 389 (2018). (Counseled Objs. at 6, 15.) Buenrostro considered the constitutionality of a California statute that defined incompetence as an inability to understand the nature of the criminal proceedings, or to assist counsel in the conduct of a defense in a rational manner, "as a result of mental disorder or developmental disability." Cal. Pen. Code § 1367(a). The defendant argued that the quoted language was inconsistent with the Dusky standard. The California Supreme Court noted that it did "not disagree" with the defendant's contention that the Dusky standard does not require a specific diagnosis, but found the statute constitutional because it "reflects a view that, '[a]s a matter of law and logic,' incompetence to stand trial 'must arise from a mental disorder or disability that limits his or her ability to understand the nature of the proceedings and to assist counsel.' ... On this view, '[a] defendant who refuses to work with his lawyer out of spite alone is not incompetent,' for example, 'even if that defendant has a serious mental disease or defect." Buenrostro, 6 Cal. 5th at 389 (citations omitted).
Buenrostro does not suggest that it is improper for a court to consider the lack of a specific diagnosis and a history of mental health treatment as two factors among others, as the California courts did in this case. Given the nature of Petitioner's outbursts and objections, the lack of a diagnosis and treatment history made it difficult to determine whether Petitioner's behavior was truly the result of such an illness or simply the result of "spite" against his brother and/or his appointed counsel. More importantly, as discussed below (in subsection V.B.4.b.) and regarding Petitioner's competence to represent himself (under Ground 3 in subsection V.C.), the trial record does not reflect that Petitioner lacked a rational and factual understanding of the proceedings against him, or lacked the ability to consult with his lawyer with a reasonable degree of rational understanding. See Dusky, 362 U.S. at 402.
b. Evidence that Petitioner Had a Rational and Factual Understanding of the Proceedings.
Petitioner's pre-trial motions—while at times rambling and replete with invective against his brother Craig and the prosecutors—were not completely incoherent. For example, Petitioner correctly identified that the state trial court had discretion to treat the felony charges under California Penal Code section 69 as misdemeanors. (See 1 CT 72-87.) See Cal. Pen. Code § 17(b)(5); People v. Mendez, 234 Cal. App. 3d 1773, 1779 (1991) ("Section 17 authorizes the trial court to reduce certain felonies to misdemeanors."); People v. Martinez, 71 Cal. App. 4th 1502, 1510 (1999) (identifying offense under section 69 as a "wobbler," i.e., one that can be a felony or a misdemeanor). He also clearly understood the basics of the trial process. While he seemed to have trouble grasping certain legal concepts—such as the difference between evidentiary standards like "preponderance of the evidence" and "beyond a reasonable doubt"—and sometimes had trouble clearly communicating his arguments to the trial court, ignorance of the law and/or lack of education are not the same as incompetence to stand trial.
One exchange with the trial court demonstrates that, despite his obstreperous style of communication, Petitioner nevertheless had a strategic understanding of the proceedings. In response to the trial court's explanation that a jury can convict someone based on the testimony of a witness alone, despite the absence of any physical evidence, Petitioner responded, "I believe they can, but they won't." (2 RT B11-12) (emphasis added). He opined that the jury would not simply take his brother Craig's word because Craig was not a police officer, unlike in the DUI example given by the court. (2 RT B12.) Petitioner also stated that he was "not facing life in prison" and could appeal after the verdict was entered. (2 RT B11.)
In objections to the initial R&R, Petitioner's counsel cites McGregor v. Gibson, 248 F.3d 946, 952 (10th Cir. 2001), for the proposition that "defendant can recite the charges against [him], list witnesses, and use legal terminology are insufficient" to demonstrate that he had a rational, as well as factual, understanding of the proceedings." Id. at 952 (quoting United States v. Williams, 113 F.3d 1155, 1159 (10th Cir. 1997)). (Counseled Objs. at 25-26.) While the Court does not disagree with this general proposition, Petitioner here was able to do more than simply recite these factual aspects of the proceedings, demonstrating that a strategic understanding of them as well (even if his strategic reasoning was not as sound as a that of a licensed attorney).
In Williams, in contrast, the defendant started "sobbing" and "asked to leave the proceedings" because she "expected her counsel to interrupt and ask questions during the government's direct examination ... , not recognizing that defense counsel would preserve 'her rights' by cross-examining the witness." 113 F.3d at 1158 n.3. The Tenth Circuit found that Williams' ability to "list several issues for her appeal" was insufficient to show that she understood the nature of the proceedings, in light of her other outbursts and behavior. Id. at 1159.
Additionally, comparison of this case to the facts of McGregor actually supports the California courts' conclusion that Petitioner was competent. The Tenth Circuit found that a "reasonable judge should have had a bona fide doubt concerning McGregor's continued competency" because: (a) McGregor had "a long and tortured history of mental illness," including a diagnosis of schizophrenia, hospitalizations, and treatment with psychotropic medications since the age of 14; (b) there was evidence that McGregor's medications were not being properly administered during the trial; and (c) McGregor's trial counsel testified that McGregor was "unable to assist in his own defense in large part because he was unable to focus," gave answers that "did not even relate to the questions" posed by counsel, was "disoriented," and "showed no concern nor interest" in the charges or possible punishments. 248 F.3d at 955-62.
c. Evidence that Petitioner Had the Ability to Consult Rationally with Counsel.
The trial transcripts demonstrate that, although Petitioner was frequently disruptive at trial, he also communicated with and attempted to aid his attorney. Petitioner several times provided Avery with lists of suggested questions for witnesses. (3 RT 603-04; 4 RT 940-41.) Avery's opinion that these were unhelpful does not mean Petitioner was unable "to consult with his lawyer with a reasonable degree of rational understanding." Douglas, 316 F.3d at 1094. For example, Petitioner "wanted [Avery] to ask his brother [Craig] if his brother had ever seen him with a gun"; Avery characterized this question as "idiotic" because there would "likely be evidence presented that he did kill his other brother [Randy] with a gun." (3 RT 603.) Although unnecessarily overbroad, the question was neither irrational nor completely irrelevant to the issues at hand. In fact, Avery did ask Craig if Petitioner had any weapons in the house at the time of the incident. (4 RT 936-37, 971.)
Avery later complained that Petitioner was actually communicating with him too much, thereby interfering with Avery's ability to pay attention to witnesses' testimony and the prosecutor's closing argument. Avery actually suggested that Petitioner be removed from the courtroom during closing argument to prevent him from causing a mistrial by mouthing things at the jury. Notably, however, Avery never sought a second competency hearing during the trial. See Medina v. California, 505 U.S. 437, 450 (1992) ("the defendant's inability to assist counsel can, in and of itself, constitute probative evidence of incompetence, and defense counsel will often have the best-informed view of the defendant's ability to participate in his defense"); Williams, 384 F.3d at 608 ("We find especially relevant defense counsel's opinion that Williams was competent to stand trial.").
As discussed further infra (in section VIII.C.), Avery was apparently unaware of the pre-trial competency proceedings. He did request that Petitioner receive a mental health evaluation prior to sentencing.
Moreover, although Petitioner was at times unhappy with his appointed counsel Avery, it does not appear that he suffered from delusions that significantly interfered with his ability to consult with counsel. Compare Boyde v. Brown, 404 F.3d 1159, 1166 (9th Cir.), as amended on reh'g, 421 F.3d 1154 (9th Cir. 2005) ("Paranoid delusions may in some circumstances render an individual incompetent to stand trial: If a defendant believed his counsel was out to get him, it is questionable whether he could cooperate in preparing a defense.").
Counsel argues that Petitioner had "paranoid delusions regarding" the attorney who represented him before trial, Tanner, because Petitioner believed that Tanner was "working with the district attorney" and lying to him, and Petitioner expressed a desire to report Tanner to the Bar association or the FBI and/or sue him. (Counseled Objs. at 15.) In the Court's experience, such beliefs and desires are not uncommon among pro se defendants who are upset with their counsel's performance. They are not convincing evidence of incompetence where, as here, Petitioner demonstrated an ability to cooperate with Avery, appointed counsel who represented him at trial.
d. Petitioner's Behavior at Sentencing.
To the extent Petitioner's counsel argues that Petitioner's uncooperative behavior at the sentencing hearing—which caused the trial judge to remove him from court, as discussed further below under Ground 11 (in section V.E.)—should have led the trial court to conduct a second competency evaluation (Counseled Objs. at 20-25), this argument fails for the same reasons as Grounds 1 and 2.
e. Petitioner's Behavior in These Habeas Proceedings.
Petitioner argues that, insofar as he is bringing a "substantive incompetence claim," such a claim "may be based on post-trial evidence," citing Boyde v. Brown, 404 F.3d 1159, 1165 n.6 (9th Cir. 2005). (SAP at 39-40 ¶ 111.) In the initial R&R, the Court noted that Petitioner did not actually point to any post-trial evidence that he wished this Court to consider; he simply relied on his behavior during the state court proceedings. (Dkt. 228 at 14-15 n.8.)
In the objections, counsel clarifies that the relevant post-trial evidence is Petitioner's "conduct in the instant habeas proceedings," specifically repeated filings "accus[ing] his lawyers and the court of lying and malfeasance" and "attempt[s] to fire, replace, or bring complaints against counsel for telling [Petitioner] his claims are not cognizable." (Counseled Objs. at 25.) Counsel argues that these filings demonstrate that Petitioner's "obsessive, irrational and impulsive behavior persists, and cannot fairly be characterized merely as willful behavior." (Id.)
It is true that this Court appointed counsel for Petitioner because of his "demonstrated inability to articulate clearly his claims." (Dkt. 4 at 3.) Overall, however, Petitioner's behavior during these habeas proceedings has been similar to his behavior in the state court proceedings: uncooperative and obstreperous, but demonstrating a rational and factual understanding of the proceedings and some ability to cooperate with counsel. Petitioner's filings in this Court—which were made many years after his conviction and after a lengthy period of incarceration—do not convince this Court that the state courts' finding of competency was unreasonable.
f. Conclusion.
In sum, although Petitioner's behavior at trial was disruptive and at times erratic, the finding by the trial court and the California Court of Appeal that Petitioner was competent to stand trial was not unreasonable within the meaning of § 2254(d). Petitioner is not entitled to habeas relief on Grounds 1 and 2. C. Ground 3: Petitioner's Competence to Represent Himself.
Petitioner argues that his conviction and sentence are unconstitutional "because he was allowed to represent himself when he was plainly not competent to (1) make an intelligent and knowing decision to represent himself, or (2) represent himself." (SAP at 40 ¶ 115.) Petitioner points to his behavior at the competency/Faretta hearing, arguing that his "digressions, his poor grasp of legal concepts, his paranoia, and his incessant interruptions were all clear signs that he was in no position to waive his right to counsel." (SAP at 41 ¶ 120.) Petitioner argues that "the trial court's erroneous decision to allow [him] to proceed pro se in the case for three months directly impacted the case" because standby counsel Avery "had little to no time to prepare for trial" and "demand a competency evaluation," and Petitioner "handled the pretrial motions himself, completely incompetently." (SAP at 41-42 ¶ 121.)
1. Relevant Trial Court Proceedings.
On May 19, 2009, after the court found Petitioner competent to stand trial, Petitioner asked whether he would be allowed to represent himself. (2 RT C11.) The court said yes, as long as the court was "persuaded that [he was] willing to follow the rules in court." (2 RT C11.)
When the court asked whether Petitioner had consulted with Tanner about going pro se, Petitioner asked, "Is that necessary, your honor?" (2 RT C12.) Tanner represented that he and Petitioner had "discussed the mechanics of" Petitioner going pro se, that Petitioner had had "the time to consider it himself," and that Petitioner was "resolute in his determination not to proceed with [Tanner] as his attorney and to proceed pro per." (2 RT C13.) The court nevertheless directed Petitioner to speak with Tanner about the decision for "five more minutes"; after Petitioner did so, Petitioner continued to express a desire to proceed pro se. (2 RT C13-C14.)
The court admonished Petitioner that "most people consider it unwise to be pro per" because (1) Petitioner would be "outgunned" because he had not gone to law school and the prosecutor had; (2) the court would not be able to give him legal advice; (3) Petitioner's ability to conduct legal and factual research would be limited due to being in custody; and (4) Petitioner could not later challenge his conviction based on ineffective assistance of counsel ("IAC"). (2 RT C15-C16.) When asked if he understood these disadvantages, Petitioner answered, "Yes, ma'am." (2 RT C15-16.) Petitioner also signed a written waiver of his right to counsel, which he confirmed that he had signed about a month prior, on April 16, 2009. (LD 2, 1 CT 48-51; 2 RT C14.)
Several months later, at a pre-trial hearing on July 2, Petitioner asked that his new standby counsel—Kevin Avery—be appointed his "advisory" counsel or "co-counsel." (2 RT E20, E23-24.) The court denied this request, explaining:
[W]hen an attorney comes on the case, ... the attorney's going to want
to run the case; otherwise, they get into a lot of problems where you want things done that are not necessarily legal, you want them to do things that aren't necessarily appropriate. ... He's bound by the canons of ethics that you're not bound by. He has to do things the right way. ... I don't know of any reputable attorney that would come in and be co-counsel with a pro per ... because it compromises their integrity and their reputation.(2 RT E23.) The court noted that an appointed attorney would "call[] the shots for everything except one thing, and that is whether or not you testify at trial. When you have an attorney, you get to make that decision even if you have an attorney." (2 RT E23-24.) Petitioner responded, "Your honor, I may reconsider and want to take the stand. That's why I'm asking for co-counsel or a standby counsel to be advisory counsel." (2 RT E24.) Petitioner complained that the court was violating his due process rights. (2 RT E24.)
On Tuesday, August 18, after voir dire had begun, Petitioner asked that standby counsel be appointed. Petitioner told the court that he wanted Avery to take over the case because he was "not feeling well" due to the stress of incarceration and his diabetes. (3 RT 301-02.) The court asked, "[A]re you saying that just because you don't feel well today and you want to go back to pro per status after you are feeling better, or are you saying that you want Mr. Avery to represent you throughout the remainder of the trial?" (3 RT 302-03.) Petitioner responded, "I want him to represent me throughout the remainder of the trial, your honor. ... I am sure." (3 RT 303.) The court "accept[ed] [Petitioner's] now waiver of his pro per rights and pro per privileges." (3 RT 303.)
On Monday, August 24—after Petitioner interrupted the prosecutor's opening statement with an objection that his counsel had declined to make—Petitioner asked to represent himself again. (4 RT 902.) The court denied the request as follows:
I'm not going to allow that. You were already representing yourself. I asked you very carefully ... whether you wished to have Mr. Avery represent you. You said "Yes." And I asked you if you were just saying that because you weren't feeling well that day and that you would chose to go prop per as soon as you felt better, and you said, "No," that was not the case.(4 RT 902-03.)
It's clear to me that you cannot even follow the court's instructions because of your outburst [during the prosecutor's opening statement]. And you're not going to be able to play games in this court with going pro per, having a lawyer represent you, going pro per, and back and forth.
So your request to represent yourself is denied at this time.
2. Ruling of the California Court of Appeal.
II. Validity of Faretta Waiver
[Petitioner] contends that the trial court erred in permitting him to represent himself. He argues that the trial court gave him inadequate admonitions on the risks of self-representation; failed to inquire into his education and familiarity with legal procedures; and failed to properly consider whether he was mentally competent to represent himself.
The Sixth Amendment to the United States Constitution grants criminal defendants the right to counsel in all proceedings that may substantially affect their rights. (Mempa v . Rhay (1967) 389 U .S. 128, 133-134.) The right to counsel may be waived, if the waiver is knowing and intelligent. (Faretta , supra , 422 U.S. at p. 807; People v . Bradford (1997) 15 Cal .4th 1229, 1363.) [Petitioner] bears the burden to demonstrate that he did not intelligently and knowingly waive his right to counsel. (People v . McArthur (1992) 11 Cal .App.4th 619, 627.)
A. The Admonitions and Inquiry were Adequate
[Petitioner] contends that the trial court inadequately advised him regarding the risks of self-representation and that the court failed to inquire into his education and familiarity with legal procedures.
Before accepting a waiver of counsel and permitting a defendant to represent himself, the court must make him "aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' [Citation.]" (Faretta , supra, 422 U.S. at p. 835.)
"No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation; the test is whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case. [Citations.]" (People v . Koontz (2002) 27 Cal .4th 1041, 1070 (Koontz).) "On appeal, we examine de novo the whole record - not merely the transcript of the hearing on the Faretta motion itself - to determine the validity of the defendant's waiver of the right to counsel. [Citation.]" (Ibid .)
[Petitioner] contends that the admonitions and inquiry were inadequate because they "fell short" of those recommended in People v . Lopez (1977) 71 Cal .App.3d 568 (Lopez). He argues that under Lopez the court was required to caution [Petitioner] not only that he must comply with all rules of law, criminal procedure and evidence, but also that he must comply with such rules when making motions and objections, presenting evidence, and during voir dire and argument. [Petitioner] also argues that the trial court was required to warn him that he would have no more privileges than any other incarcerated self-represented defendant. (See Id . at pp. 572-573.)
The Lopez court did not establish "rigid standards." (Lopez , supra , 71 Cal.App.3d at p. 571.) "[T]he purpose of the suggested Lopez admonitions is to ensure a clear record of a knowing and voluntary waiver of counsel, not to create a threshold of competency to waive counsel. [Citations.]" (Koontz , supra, 27 Cal.4th at p. 1071.) The trial court was not required to specify that the law and rules applied to motions, objections, voir dire, and other proceedings. (Ibid .) Further, defendant cannot meet his burden to demonstrate an invalid waiver "simply pointing out that certain advisements were not given." (People v . Truman (1992) 6 Cal .App.4th 1816, 1824; see also Koontz , supra , at p. 1070 [entire record reviewed, not merely Faretta hearing].)
At the Faretta hearing the trial court amply warned [Petitioner] of the disadvantages and risks of self-representation. The trial court explained that self-representation would be unwise because [Petitioner] had not been to law school, and because he would be opposed by an attorney who was very experienced in the law and court procedure - that he would be "outgunned." The trial court warned [Petitioner] that the court would not be able to give him legal advice or help him to present evidence. The court also warned that being in custody would cause difficulty, that he could not obtain a reversal on appeal on the ground that his self-representation was not competent, and that he was required to obey the rules of court. In addition, [Petitioner] signed a four-page Faretta waiver form that included thorough advisements including those that [Petitioner] contends the court should have given. The form also informed [Petitioner] of his right to be represented by counsel, as well as other trial rights.
[Petitioner's] claim that the trial court made no inquiry into his education and familiarity with legal procedures also lacks merit. [Petitioner] indicated on the Faretta waiver form that he was 44 years old, had graduated from high school, and could read and write. Further, the court had observed [Petitioner] in prior hearings and had previously questioned him regarding his understanding of law and procedure.
[Petitioner] contends that regardless of the adequacy of the advisements, the record established that he was not in fact aware of the dangers and disadvantages of self-representation. He compares his behavior with that of the defendant in Welch , and argues that his similar behavior demonstrated that he did not in fact comprehend the risks of self-representation. Welch has no application here, as [Petitioner's] Faretta motion was granted, not denied.
It is evident from our review of the record that [Petitioner] "understood the disadvantages of self-representation, including the risks and complexities of the particular case." (Koontz , supra , 27 Cal.4th at p. 1070.) [Petitioner] had many discussions regarding self-representation with his attorney prior to the trial court's oral admonitions, and the court called a recess in the Faretta hearing to give [Petitioner] additional time to confer with his attorney. Several times during the trial court's oral admonitions, [Petitioner] replied in the affirmative when asked whether he understood. When the court asked for questions, [Petitioner] had none.
Moreover, [Petitioner's] signature on the Faretta waiver form certified that he had read, understood, and considered all of the warnings. A Faretta form "serves as 'a means by which the judge and the defendant seeking self-representation may have a meaningful dialogue concerning the dangers and responsibilities of self-representation.' (Citation.]" (People v . Blair (2005) 36 Cal .4th 686, 709.) The trial court may question the defendant orally about his responses, but the failure to do so does not invalidate the waiver, so long as the warnings and the defendant's understanding are clear from the writing. (Ibid .) The warnings on the form were clear and defendant indicated his understanding of each advisement with his initials.
We thus find no merit to [Petitioner's] contention that the trial court's admonitions and inquiry were inadequate or to his claim that he did not understand them.
B. No Heightened Standard Required
[Petitioner] contends that the trial court erred in failing to exercise the discretion afforded by the United States Supreme Court in Indiana v . Edwards (2008) 554 U .S. 164 (Edwards) to apply a standard of competence for self-representation higher than the standard of competence to stand trial.
A similar contention was made and rejected in People v . Taylor (2009) 47 Cal .4th 850 (Taylor). The California Supreme Court noted that while the holding of Edwards permits the states to adopt a different standard of competence for mentally ill defendants who wish to represent themselves, it did not mandate such a dual standard and California has not done so. (Taylor , supra , at pp. 877-878.) Thus the standard of competence for self-representation remains the same as the standard of competence to stand trial. (Id . at p. 880, citing People v . Hightower (1996) 41 Cal .App.4th 1108, 1116 (Hightower).)
[Petitioner] contends that the holding of Taylor is limited to pre-Edwards trials in which the defendant was permitted to represent himself and that Edwards now requires a heightened standard. As respondent observes, [Petitioner] has misconstrued both Edwards and Taylor . The California Supreme Court in Taylor did not limit its holding to Faretta motions made prior to Edwards , and nothing in Edwards required California to adopt a heightened standard. (Taylor , supra , 47 Cal.4th at pp. 877-878.) It remains the rule in California that any defendant found mentally competent to stand trial can be mentally competent to represent himself. (Id . at p. 876.) The trial court did not err in allowing [Petitioner] his right of self-representation. (LD 9, Dkt. 198-15 at 7-10.)
3. Legal Standard.
A criminal defendant has the right under the Sixth and Fourteenth Amendments to waive the right to counsel and represent himself. Faretta v. California, 422 U.S. 806, 819-20 (1975). The Supreme Court has reasoned that "[t]o thrust counsel upon the accused, against his considered wish, ... violates the logic of the Amendment." Id. A defendant must "knowingly and intelligently" waive his right to counsel, however. Faretta, 422 U.S. at 835. "[H]e should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.'" Id. (citation omitted).
In Godinez v. Moran, 509 U.S. 389 (1993), the Supreme Court held that a defendant who waives his right to counsel need not "be more competent than a defendant who does not, since there is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights." Id. at 399. The court reasoned, "[T]he competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself." Id. Thus, the Supreme Court held, a "defendant's 'technical legal knowledge' is 'not relevant' to the determination whether he is competent to waive his right to counsel," and "although the defendant 'may conduct his own defense ultimately to his own detriment, his choice must be honored'...." Id. at 400 (quoting Faretta, 422 U.S. at 834, 836); see also Faretta, 422 U.S. at 835 ("a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation").
Subsequently, in Indiana v. Edwards, 554 U.S. 164 (2008), a state court "insist[ed] that the defendant proceed to trial with counsel, ... thereby denying the defendant the right to represent himself," even though the state court found him "mentally competent to stand trial if represented by counsel...." 544 U.S. at 167. The Supreme Court held that Godinez, which "involved a State that sought to permit a gray-area defendant to represent himself" for purposes of pleading guilty, did not "tell a State whether it may deny a gray-area defendant the right to represent himself" during trial. Id. at 173. The Supreme Court noted:
[T]he nature of the problem before us cautions against the use of a
single mental competency standard for deciding both (1) whether a defendant who is represented by counsel can proceed to trial and (2) whether a defendant who goes to trial must be permitted to represent himself. Mental illness itself is not a unitary concept. It varies in degree. It can vary over time. It interferes with an individual's functioning at different times in different ways. ... In certain instances an individual may well be able to satisfy Dusky's mental competence standard, for he will be able to work with counsel at trial, yet at the same time he may be unable to carry out the basic tasks needed to present his own defense without the help of counsel.Id. at 175-76. The Supreme Court held that "the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." Id. at 178. However, the Supreme Court declined to adopt, as a matter of federal constitutional law, Indiana's suggested standard: that a criminal defendant should be denied the right to represent himself at trial where he "cannot communicate coherently with the court or a jury." Id. at 178.
4. Analysis.
a. Whether the Trial Court Applied the Correct Legal Standard to Petitioner's Request to Represent Himself.
Relying on Edwards, Petitioner argues that the trial court should have applied a higher competency standard to Petitioner's request to proceed pro se than to the question of whether Petitioner was competent to stand trial at all. Petitioner argues that Edwards held "that mere Dusky competence is not sufficient to represent one's self" and "[t]o be allowed to represent himself, a defendant must have the ability to conduct the organization and content of his defense." (Reply at 11; see also Counseled Objs. at 17-19.) Respondent, in contrast, argues that Edwards merely allows states to adopt stricter standards than Dusky for permitting self-representation, without requiring that states do so. (Answer at 58.) This was also the conclusion reached by the California Court of Appeal, i.e., that Edwards does not require states to apply a different standard as a matter of federal constitutional law.
The California Court of Appeal relied on People v. Taylor, 47 Cal. 4th 850, 865-78 (2009), in which the California Supreme Court considered Taylor's claim based on Edwards. Taylor argued that the trial court "act[ed] under a mistaken belief that his request to represent himself could not be denied once he had been found trial competent," and therefore "erred in failing to exercise its discretion to deny self-representation on grounds of mental incompetence." Id. at 866. The California Supreme Court rejected this claim, concluding:
The court in Edwards did not hold, contra to Godinez, that due process mandates a higher standard of mental competence for self-representation than for trial with counsel. The Edwards court held only that states may, without running afoul of Faretta, impose a higher standard, a result at which Godinez had hinted by its reference to possibly "more elaborate" state standards. ... "In light of Edwards, it is clear ... that we are free to adopt for mentally ill or mentally incapacitated defendants who wish to represent themselves at trial a competency standard that differs from the standard for determining whether such a defendant is competent to stand trial. It is equally clear, however, that Edwards does not mandate the application of such a dual standard of competency for mentally ill defendants. In other words, Edwards did not alter the principle that the federal constitution is not violated when a trial court permits a mentally ill defendant to represent himself at trial, even if he lacks the mental capacity to
conduct the trial proceedings himself, if he is competent to stand trial and his waiver of counsel is voluntary, knowing and intelligent." ... Edwards thus does not support a claim of federal constitutional error in a case like the present one, in which [Taylor's] request to represent himself was granted.Taylor, 47 Cal. 4th at 877-78 (bolded emphasis added) (quoting State v. Connor, 973 A.2d 627, 650 (Conn. 2009)).
Federal courts have agreed with this interpretation of Edwards. See, e.g., Anderson v. Gipson, No. 12-2964, 2014 U.S. Dist. LEXIS 36338 at *40, 2014 WL 1117264 at *15 (E.D. Cal. Mar. 19, 2014) (rejecting habeas petitioner's claim that the trial judge "was constitutionally required to revoke his pro per status because of his mental incompetency" because Edwards "did not hold that the Constitution requires a higher standard or that it requires a separate determination of competence to represent oneself" and "[t]here is no clearly established Supreme Court authority standing for the proposition that a state court must revoke pro per status of a 'gray area defendant'"); Blaylock v. Haws, No. 09-4330-PA-MAN, 2013 U.S. Dist. LEXIS 65191 at *46-47, 2013 WL 1898182 at *16 (C.D. Cal. Mar. 29, 2013) ("[E]ven if Edwards were applicable, Edwards only held that a trial court may, without running afoul of Faretta, impose a higher mental competence standard for self-representation than to stand trial. Edwards did not hold that the Constitution requires a higher standard or that it requires a separate determination of competence to represent oneself."), R&R adopted, 2013 U.S. Dist. LEXIS 65185, 2013 WL 1898176 (C.D. Cal. May 5, 2013). Given these authorities, the California Court of Appeal reasonably applied Edwards, and the other relevant Supreme Court cases discussed above, in affirming the trial court's decision to allow Petitioner to represent himself during pre-trial proceedings and during jury selection.
b. Whether Petitioner's Waiver of His Right to Counsel Was Knowing and Intelligent.
Petitioner's counsel argues that Petitioner's waiver of his right to counsel was not knowing and intelligent. (Counseled Objs. at 17-19; see also SAP ¶ 115.) Counsel relies on Petitioner's behavior at the May 19, 2009 hearing, arguing that there is "no evidence" that Petitioner "was listening to or understood what was being explained to him," because Petitioner "was obsessively focused on the defense he wanted to present" and "answered the court's questions about the [signed Faretta] waiver with non-sequitur requests that ignored the fact that he was not yet representing himself." (Counseled Objs. at 18-19, citing 2 RT C17-21.)
This is not an accurate representation of Petitioner's overall behavior at this hearing. Petitioner confirmed that he had signed the Faretta waiver and that he understood the disadvantages of proceeding pro se. (2 RT C14-17.) It was only after the trial court asked if Petitioner had "any questions that [he] wanted to ask [the court]" that Petitioner asked to file two motions. (2 RT C17.) When the court explained that he could not do that yet, and asked whether he had "any questions about just what pro per status means," Petitioner answered "Okay" and "No, ma'am." (2 RT C17.)
It was only after the court attempted to explain the maximum prison term Petitioner was facing that Petitioner began to argue about the merits of his case. When the court stated that he was facing a maximum sentence of 12 years, Petitioner argued that, because he had "been out of prison and clean for over 10 years," the court could not apply "the enhancement for a prior prison term[]." (2 RT C18.) When the court explained that he could still be subject to the California Three Strikes law, he argued that he "was not sentenced under the Three-Strikes Law." (2 RT C18.) As discussed below regarding Ground 10, these arguments were factually accurate and legally relevant to sentencing, even if ultimately unmeritorious. After the court clarified that she was simply stating that the state was contending his maximum sentence was 12 years, Petitioner accepted this, responding, "Oh they are. Okay." (2 RT C18.)
The prosecutor then interrupted, complaining that Petitioner did not "understand that there is no limitation on our use of the strike law...." (2 RT C19.) Petitioner responded, "Under the Boykin/Tahl hearing or under the Romero Act, I can have that suppressed because ... I took a plea bargain and I was never told anything about no strike. And that's a breach of contract, you honor." (2 RT C19.) Again, this is a colorable (even if ultimately unmeritorious) legal argument that demonstrates Petitioner understood the proceedings in a way that, for a pro se defendant, was actually fairly sophisticated. When the court reiterated that she was not deciding that issue at present, Petitioner accepted this but explained, "I'm just saying I do understand the legality of the - of the strike." (2 RT C20.)
Petitioner's counsel points to Petitioner's requests to file motions (2 RT C17) and for more "money on [his] pro per account so [he could] make phone calls" (2 RT C20) as evidence that he "could not focus on the topic at hand." (Counseled Objs. at 18.) Yet, read in the context of the entire hearing, these requests are reasonably interpreted as simply demonstrating Petitioner's impatience with the court's hesitancy to grant him pro se status and his efforts to move the court on to other matters.
Additionally, after Petitioner was granted permission to proceed pro se, he continued to demonstrate his understanding of the proceedings. When the prosecutor and court explained that trial was set for that week, and that this would not give Petitioner time to make telephone calls or subpoena witnesses, Petitioner responded, "I will like [sic] to waive time to give me enough time to file my motions, your honor, and make sure that my witness is subpoenaed into court ... and me to have time to review a Brady discovery motion and - or a hearing to view all evidence in this case." (2 RT C23.) He confirmed that he wanted to waive his right to a speedy trial and requested a pretrial conference in 30 days. (2 RT C23.)
Thus, the hearing transcript provides significant evidence that Petitioner knowingly and intelligently waived his right to counsel during pre-trial proceedings. He was "made aware of the dangers and disadvantages of self-representation" and made the choice "with eyes open." Faretta, 422 U.S. at 835.
Accordingly, Petitioner is not entitled to federal habeas relief on Ground 3, because the trial court applied the correct legal standard to Petitioner's request to represent himself and the California courts reasonably found that Petitioner knowingly and intelligently waived his right to counsel. D. Ground 6(b): Whether There Was Sufficient Evidence to Support Petitioner's Conviction for Resisting an Officer with Threats , Force, or Violence under California Penal Code Section 69.
1. Relevant Trial Court Proceedings.
Petitioner was initially charged with criminal threats against his brother Craig under California Penal Code section 422, as well as resisting, delaying, or obstructing an officer under section 148(a)(1). (1 CT 27, Dkt. 198-2 at 35 [information filed in February 2009).) In August 2009, the state filed an amended information adding two counts of obstructing an officer using threats, force, or violence under California Penal Code section 69. (2 CT 179, Dkt. 198-3 at 27.)
The victims of the section 69 offenses were the SWAT team officers who subdued Petitioner during his arrest, Officers Nelson Fong and Mark Richardson. (2 RT G1-G2, Dkt. 198-5 at 198-200 [transcript of arraignment].) These officers testified at Petitioner's trial, as did several other SWAT team officers involved in Petitioner's arrest; Petitioner did not testify. Petitioner's main argument at trial was that, although he may have resisted arrest in violation of section 148(a)(1), he did not use force or violence against the officers in violation of section 69. (See 5 RT 1864-68, 1878 [defense closing argument].) As described in more detail infra, the testimony at trial was that Petitioner was confronted by the SWAT team after he emerged from the back door of the house. Petitioner ignored orders to get down on the ground and continued to approach the officers. Petitioner was tased twice and, after being physically subdued by Officers Fong and Richardson, handcuffed.
2. Ruling of the California Court of Appeal.
On appeal, Petitioner argued that there was insufficient evidence to support the section 69 convictions because thrashing or tensing his arms to avoid being handcuffed was not using force "against the officers." (LD 6, Dkt. 198-12 at 87-88 [opening brief]; see also LD 8, Dkt. 198-14 at 22 [reply brief, arguing, "the evidence [that Petitioner] assumed a fighting stance and clenched his hands does not establish a violation of Penal Code section 69 where there was no evidence ... that [Petitioner] threatened the officers"].) The California Court of Appeal rejected this claim as follows:
[Petitioner] contends that his convictions of violating section 69 were not supported by substantial evidence. [Petitioner] further contends that counts 3 and 4 amounted to no more than misdemeanor violations of section 148, subdivision (a)(1). We disagree.
When a criminal conviction is challenged as lacking evidentiary support, "the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v . Johnson (1980) 26 Cal .3d 557, 578; see also Jackson v . Virginia (1979) 443 U .S. 307, 318-319.) We must presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (People v . Kraft (2000) 23 Cal .4th 978, 1053.) Reversal on a substantial evidence ground "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v . Bolin (1998) 18 Cal .4th 297, 331.)
Certainly [Petitioner's] conduct prior to him emerging from his house constituted a violation of section 148. He disobeyed officers' demands that he come out of the house by barricading himself inside for approximately an hour and a half. A passive refusal to cooperate that delays officers in the discharge of their lawful duties is one of the ways section 148 can be violated. (In re Bacon (1966) 240 Cal .App.2d 34, 52, disapproved on another point in In re Brown (1973) 9 Cal .3d 612, 623-624.)
However, once [Petitioner] emerged from the house, he not only refused the officers' commands to stop and get down on the ground, he continued to approach them in an agitated and angry manner with clenched fists. Taking an aggressive posture and staring at the officers, he lurched toward them. He continued this behavior in the face of a warning that he might be hurt by a taser discharge, and even after he was struck by taser darts. When Officers Fong and Richardson each took one of [Petitioner's] arms, [Petitioner] struggled by flailing his arms, aggressively moving his entire upper body side to side, tensing his arms against his side, and using his strength to keep the officers from pulling his arms behind his back. Even after a second taser strike, [Petitioner] continued to thrash about, until a third officer moved in to assist Officers Fong and Richardson by handcuffing [Petitioner].
[Petitioner] first argues that his attempt to deter or prevent the officers from carrying out their duties was not accomplished by means of threat because he made no verbal threat. Defendant assumes that any threat must be verbal, but cites no authority which so holds. While most of the cases in which a defendant has been convicted of committing the first part of section 69 involved verbal threats (see , e .g., In re Manuel G . (1997) 16 Cal .4th 805, 819-820; People v . Hines (1997) 15 Cal .4th 997, 1060), neither the statute nor published authority limits the prohibited conduct to verbal expressions. Indeed, substantial evidence of a threat was found in People v . Patino (1979) 95 Cal .App.3d 11, 28, where the defendant had yelled, screamed and advanced toward officers in a threatening manner, without any indication that the defendant used any particular words. Similarly [Petitioner] had been yelling, had threatened to hang the police "by their balls," and his behavior in lurching toward officers in an agitated and angry manner with clenched fists was sufficiently threatening to cause the officers to bring in a taser before trying to take hold of him.
Regardless, we need not hold as a matter of law that nonverbal behavior may constitute "any threat" under the first part of the statute because we find substantial evidence that [Petitioner] resisted the officers by the use of force or violence, thus violating the second part of section 69 . As we explain, [Petitioner's] contention that flailing, thrashing, and tensing the muscles are not acts of force or violence has no merit.
Because California law does not define force or violence for purposes of section 69 , defendant relies on federal authority construing title 18 of the United States Code, section 16, which defines "crime of violence," as not including the negligent or reckless use of physical force against a person. (See Leocal v . Ashcroft (2004) 543 U .S. 1, 11 [negligence]; Fernandez-Ruiz v . Gonzales (2006) 466 F .3d 1121, 1129 [reckless].) Such authority is inapplicable, as [Petitioner] does not argue that the flailing, thrashing, and tensing was negligent or reckless. Instead, he focuses on one part of the federal statute's definition of crime of violence that includes physical force against the person of another. Observing that he did not attempt to punch, kick, claw, knee, or bite the officers, [Petitioner] argues that he used no force or violence against them.
[Petitioner] was not convicted of violating federal law. Nevertheless, were we to apply the federal definition of crime of violence, section 69 and [Petitioner's] conduct would surely qualify. [Petitioner] has picked out only those morsels of the federal statute that support his argument. However, title 18 of the United States Code, section 16(a), more expansively defines a crime of violence as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." Section 16(b) broadly defines a crime of violence as "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." At the very least, [Petitioner's] conduct involved a substantial risk that physical force would be used against the officers and was thus a crime of violence.
Moreover, we reject [Petitioner's] argument that section 69 does not proscribe violent resistance unless it consists of such conduct as hitting, kicking, or biting the officer. [Petitioner] contends that his argument is supported by reasoning in People v . Martin (2005) 133 Cal .App.4th 776 (Martin). We disagree. Like respondent, we find that Martin defeats [Petitioner's] argument. There the defendant unsuccessfully argued that the multiple-victim exception to section 654 was inapplicable to section 69 because "resisting arrest is not framed as a crime against the officers. In the definition of resisting an officer, the violence and force [are] implicitly used to get away from the officer not directed towards him." (Martin , supra , at p. 782.) Rejecting that argument, the appellate court explained that a violation of section 69 was in fact a crime of violence "against a person" although the statute did not use those words. (Martin , at p. 782.)
We conclude that [Petitioner's] flailing, thrashing, and tensing the muscles to prevent officers from handcuffing were acts of resistance "by the use of force or violence" as contemplated by section 69 . As the evidence overwhelmingly established that [Petitioner] knowingly engaged in such behavior in order to resist the officers' attempt to detain him, we conclude that substantial evidence supported [Petitioner's] convictions under section 69 . (LD 9, Dkt. 198-15 at 14-17) (footnote omitted).
3. Legal Standard.
The Due Process Clause of the Fourteenth Amendment protects a criminal defendant from conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970); accord Juan H. v Allen, 408 F.3d 1262, 1274 (2005). Thus, a state prisoner who alleges that the evidence introduced at trial was insufficient to support the jury's findings states a cognizable federal habeas claim. Herrera v. Collins, 506 U.S. 390, 401-02 (1993). The prisoner, however, faces a "heavy burden" to prevail on such a claim. Juan H., 408 F.3d at 1274. Evidence is sufficient to support a conviction if, viewing all 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." Jackson v. Virginia, 443 U.S. 307, 319 (1979). When determining the sufficiency of the evidence, the reviewing court "must respect the province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts by assuming that the jury resolved all conflicts in a manner that supports the verdict." Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995); see also Jackson, 443 U.S. at 319, 324, 326.
Where, as here, a state court has issued a reasoned decision rejecting a claim of insufficient evidence under a standard that is not "contrary to" Jackson, a reviewing federal court applies an additional layer of deference. Juan H., 408 F.3d at 1274. "[A] federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was objectively unreasonable." Cavazos v. Smith, 565 U.S. 1, 4 (2011) (per curiam); see also Juan H., 408 F.3d at 1275 n.13. This "double dose of deference ... can rarely be surmounted." Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011); see also Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam) ("We have made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference").
Thus, a state court's resolution of an insufficiency of the evidence claim is evaluated under 28 U.S.C. § 2254(d)(1), not § 2254(d)(2). The federal court "ask[s] only whether the state court's decision was contrary to or reflected an unreasonable application of Jackson to the facts of a particular case." Emery v. Clark, 643 F.3d 1210, 1213-14 (9th Cir. 2011); see also Long v. Johnson, 736 F.3d 891, 896 (9th Cir. 2013). "[T]he state court's application of the Jackson standard must be 'objectively unreasonable' to warrant habeas relief for a state court prisoner." Boyer, 659 F.3d at 965); see also Juan H., 408 F.3d at 1275.
In adjudicating an insufficiency of the evidence claim, a federal habeas court "look[s] to [state] law only to establish the elements of [the crime] and then turn[s] to the federal question of whether the [state court] was objectively unreasonable in concluding that sufficient evidence supported [the conviction]." Juan H., 408 F.3d at 1278 n.14; see also Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004) (en banc) ("The Jackson standard 'must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law'") (quoting Jackson, 443 U.S. at 324 n.16). In determining whether the evidence was sufficient, a federal court must follow the California courts' interpretation of state law. Bradshaw v. Richey, 546 U.S. 74, 76 (2005).
4. Analysis.
Petitioner argues that there was insufficient evidence to support a conviction under section 69 because Petitioner "was unarmed, and took two steps toward the assembled SWAT team before he was repeatedly tasered, which resulted in his no doubt involuntary 'thrashing about' while the officers handcuffed him." (SAP at 58-59 ¶ 184) (emphasis added). Petitioner argues, "There was absolutely no evidence of any use of threats, force, or violence" and Petitioner "did not threaten [the officers], and did not attempt to hit, kick, bite, spit, or otherwise strike them." (Id.) Petitioner argues, "At the very most ... he tensed his arms," which "would be, at most, resisting arrest, not forcible acts of resistance." (Reply at 13.) Respondent answers that the "jury was not required to reach [the] ... conclusion" that Petitioner's thrashing "was an involuntary reaction to being tasered," particularly because "Petitioner's forceful resistance to being handcuffed was consistent with his behavior towards the officers the entire night." (Answer at 82.)
First, Petitioner's theory that his thrashing was an involuntary reaction to being tased is not supported by the evidence presented at trial. The SWAT officers testified that normally being tased causes someone to tense up and then go limp, not thrash around. (See 5 RT 1303 [Sergeant Bilodeau's testimony that normally, tasing someone "causes ... the body to become limp temporarily so [officers] can gain control. ... It appears to be somewhat of like a relaxation if you were to take a deep breath...."]; 5 RT 1321 [Officer Fong's testimony that "[a] lot of times we've seen in the past where the taser had a full effect: suspect would stop his actions and somewhat almost drop straight to the ground"]; 5 RT 1335 [Officer Richardson's testimony that "when you're hit with a taser, it causes you to try and tense, you're like being electrocuted, so it causes you to - you know, to tense up. And once that's done, people usually relax"].) This appears to be why the officers characterized the first time Petitioner was tased as a "failure" or an example of the taser "not working" (see, e.g., 5 RT 1296); they expected Petitioner to freeze and go limp, instead he continued to advance toward them. Officer Fong testified that, after Petitioner was tased for a second time, this "made [Petitioner] go limp and enabled us to handcuff him." (5 RT 1322.) No evidence was presented that would support Petitioner's theory that he was thrashing about due to being tased.
Second, Petitioner's reliance on Loecal v. Ashcroft, 543 U.S. 1, 11 (2004) is inapposite. (See Reply at 13.) In Loecal, the Supreme Court held that a conviction under Florida law for a DUI that caused serious bodily injury was not a "crime of violence" warranting deportation under federal law. 543 U.S. at 3-4. The Supreme Court reasoned that the applicable federal statute "requir[ed] a higher mens rea than the merely accidental or negligent conduct involved in a DUI offense." Id. at 11. To the extent this interpretation of a federal statute is even relevant to the interpretation of the California statute involved here, the California Court of Appeal reasonably concluded that Petitioner's actions did not involve the same type of "accidental or negligent conduct" that was at issue in Loecal. (LD 9, Dkt. 198-15 at 16.)
Third, this Court is bound by the California Court of Appeal's conclusion that, as a matter of California law, section 69 encompasses more than "such conduct as hitting, kicking, or biting the officer." (Id. at 17.) The court essentially concluded that a specific intent to harm the officer is not required, and other California precedent supports this conclusion. See People v. Martin, 133 Cal. App. 4th 776, 782 (2005) ("While the object of the offense may not be to attack a peace officer, its consequence is frequently to inflict violence on peace officers, or subject them to the risk of violence."); see also People v. Bernal, 222 Cal. App. 4th 512, 520 (2013) ("By interpreting section 69 in terms of the risk of violence created by any forceful resistance to arrest, rather than in terms of any intent to commit harm, the court in Martin implicitly eliminated any requirement that a defendant intend to harm a police officer or direct force or violence toward an officer."); People v. Rasmussen, 189 Cal. App. 4th 1411, 1419-20 (2010) ("The definition of the resistance offense in section 69 describes only the act of resisting an executive officer and does not require an intent to do a further act or achieve a future consequence. ... Accordingly, the resistance offense is a general intent crime.").
The California Court of Appeal's finding that Petitioner's "flailing, thrashing, and tensing [of his] muscles to prevent officers from handcuffing [him] were acts of resistance" is a reasonable interpretation of the evidence offered at trial. (LD 9, Dkt. 198-15 at 17.) That evidence, briefly summarized, was as follows:
Prior to Petitioner's interactions with the SWAT team officers, he had refused to come out of the house when instructed to do so, "yelled profanities" at the LAPD officers (5 RT 1248-49), and told a U.S. Marshal with whom he was speaking by phone: "Fuck the LAPD. I'm going to hang them by their balls." (5 RT 1211.) When Petitioner stepped out of the back door of the house and was confronted by the SWAT team, Officer Fong ordered him to stop and get down on the ground. (5 RT 1293-96, 1318.) Officer Fong testified that Petitioner "looked at me, and he was saying something ... to the effect [of] ... 'I don't have to do what you're telling me to do; this is my house.'" (5 RT 1319.) Petitioner did not comply and continued to approach the officers. Sergeant Bilodeau testified that Petitioner "seemed agitated. He had clenched fists and seemed ... angry. The gesture seemed aggressive." (5 RT 1294-95.) Officer Fong testified that Petitioner "start[ed] to kind of lurch forward. He had his hands clenched. And he was kind of taking an aggressive posture toward us." (5 RT 1319.) Officer Richardson said that Petitioner's behavior was not "aggressive aggressive," but that Petitioner was "fairly animated" and "was walking out of the back of the house at a pretty good pace[,] ... like he wasn't going to be deterred from going where he wanted to go." (5 RT 1328-29.) Officer Fong testified that the officers "took that as a sign, obviously, that he wasn't going to submit to arrest .... [H]e was going to try to escape." (5 RT 1320.) All of Petitioner's actions up until this point are circumstantial evidence of his intent to resist the officers.
Sergeant Bilodeau testified that "once the physical contact took place," i.e., when Officers Fong and Richardson seized Petitioner's arms, Petitioner "started to thrash back and forth" and handcuffing Petitioner became "very difficult due to his upper body strength and emotional situation." (5 RT 1299.) Sergeant Bilodeau testified that Petitioner was "flailing about and ha[d] his fists clenched in the manner that [he] felt [Petitioner] might strike one of [the] officers." (5 RT 1310.) Sergeant Bilodeau described the thrashing as involving Petitioner's "whole upper body, just like if you were thrashing in an aggressive way to pull away from someone or you didn't want them to touch you or grab you." (5 RT 1313.) Officer Fong testified that "[b]oth [of his] hands had to be on [Petitioner's] arm to fully control him" because Petitioner would not put his hands behind his back when instructed to do so, was "flailing around," and was "moving his arms, trying to wiggle away." (5 RT 1321-22; see also 5 RT 1329 [Officer Richardson's testimony that Petitioner "began flailing as we tried to take him into custody" and "was resisting us"].) Officer Richardson testified that Petitioner was "moving his arms back and forth, trying to keep us from getting his hands under control." (5 RT 1331.)
The California Court of Appeal reasonably interpreted this testimony from the officer eyewitnesses, whose testimony was largely consistent with one another, as demonstrating that Petitioner used force or violence to resist Officers Fong and Richardson in the performance of their duties. Accordingly, the California Court of Appeal reasonably applied Jackson and Petitioner is not entitled to relief on Ground 6(b). E. Ground 11: Whether Petitioner Was Improperly Denied His Right to Be Present During Sentencing.
1. Relevant Trial Court Proceedings.
After the jury returned a guilty verdict on August 31, 2009 (6 RT 2402-05), Petitioner waived his right to have a jury determine whether he had a valid prior strike conviction under California's Three Strikes Law (6 RT 2407-11). The court set a combined bench trial on this issue and sentencing hearing for October 29, 2009. (6 RT 2412, 2701.)
Just prior to the hearing, the state sought to fingerprint Petitioner to confirm his identity and prove the existence of the prior strike. Petitioner at first refused to cooperate and was, according to defense counsel, "verbally belligerent," "highly agitated," and "highly emotional." (6 RT 2702-03.) Eventually, after an admonishment from the trial court, Petitioner submitted to having his fingerprints taken. (6 RT 2705-06.)
Petitioner was then brought into courtroom for the bench trial and sentencing hearing. Upon entering the courtroom, Petitioner asked, "Is this threatening violence too?" Defense counsel told Petitioner to "knock it off" and stop acting like "a jerk." (6 RT 2706.) Petitioner announced he was "postponing these proceedings" because he wanted to file a motion challenging the prior strike. (6 RT 2707-08.) The court instructed Petitioner not to speak except quietly to his attorney, or the court would put him back in lockup. (6 RT 2707.) The court pointed out that the sentencing judge for Petitioner's manslaughter conviction had already denied a motion he had filed challenging the prior strike; the court read from the order denying that motion and granted Petitioner a recess to speak with his attorney. (6 RT 2708-09.)
After the recess, the court heard evidence from the fingerprint expert who had taken Petitioner's fingerprints and reviewed certified copies of documents evidencing Petitioner's prior conviction for manslaughter. (6 RT 2709-17.) While counsel was arguing to the court, Petitioner interrupted, "Your honor, I already challenged the strike." (6 RT 2718.) The court found that Petitioner had suffered a prior strike. (6 RT 2719.)
Petitioner's counsel then began to argue that Petitioner should undergo a more thorough psychological evaluation before being sentenced. (6 RT 2719-23.) Petitioner interrupted his counsel several times to object to the motion and state that he would not cooperate with any psychological evaluation. (6 RT 2721-29.) At one point the court observed that Petitioner "said he doesn't want to have anything to do with his psychos after [his counsel] asked him very nicely, very pleasantly whether he would cooperate to be evaluated...." (6 RT 2729.) When counsel continued to argue for the evaluation and noted there was "no question" that Petitioner had killed his brother (resulting in the prior manslaughter conviction), Petitioner interrupted, "After he tried to blow my back out with a shotgun. Right?" (6 RT 2729.)
Counsel moved on to argument about the appropriate sentence for Petitioner, and defense counsel argued that Petitioner's threats and behavior in the present case were "quite de minimis" but were "magnified and amplified horrendously because of a horrible crime: he killed his brother." (6 RT 2731.) Petitioner again interrupted, "My brother tried to kill me, and he was arrested three times for it." (6 RT 2731.) The trial court stated: "Sir, if you open your mouth one more time, you will be taken into lockup. Do you understand? ... Do you understand? 'Yes' or 'no.'" (6 RT 2731.) Petitioner stated that he understood. (6 RT 2731.)
Yet when defense counsel continued to argue that Petitioner's present crime was a mere "crime of words," Petitioner again interrupted, "I object. There is no proof of that." (6 RT 2731.) At that point, the court ordered Petitioner taken back into lockup, finding that he had "willfully - after numerous admonitions by this court and orders for him to be quiet" - "violated the court's order at least three, four times...." (6 RT 2732.)
After the court heard further argument from counsel for both sides and pronounced sentence (6 RT 2732-44), Petitioner was brought back into the courtroom and informed of his sentence and his appellate rights (6 RT 2744-46). The court told Petitioner, "[T]he reason you were not in court for that sentencing was because you were extremely disruptive and violated the court's orders over and over again." (6 RT 2746.)
2. Ruling of the California Court of Appeal.
On direct appeal, Petitioner argued the trial court violated his constitutional and statutory rights to be personally present during sentencing, a critical stage of the proceedings. (LD 6, Dkt. 198-12 at 91.) The California Court of Appeal denied relief on this claim, as follows:
A criminal defendant has a constitutional and statutory right to be present at all critical stages of the proceedings, including sentencing hearings. (U.S. Const., 6th & 14th Amends; Cal . Const., art. I, § 15; §§ 977, subd. (b)(1), 1043, subd. (a), 1193, subd. (b).) However, the right to be present at sentencing may be deemed waived if the defendant is disruptive. (Illinois v . Allen (1970) 397 U .S. 337, 343; Welch , supra , 20 Cal.4th at p. 773.)
[Petitioner] acknowledges that a defendant may be removed for disruptive behavior, but he argues that his behavior was not sufficiently disruptive to warrant removal. He also argues that before removing him, the court was required to threaten to hold him in contempt, call a recess to allow him to cool off, and assure him that he could return as soon as he agreed to conduct himself in an orderly manner.
The cases cited by [Petitioner] do not hold that there is an established threshold of disruptive behavior below which the trial court may not remove a disruptive defendant. (See , e .g., Welch , supra , 20 Cal. 4th at pp. 773-774; People v . El (2002) 102 Cal . App. 4th 1047; El v . Lamarque (C. D. Cal. 2003) 293 F . Supp. 2d 1107; Franco v . Costello (S.D.N.Y. 2004) 322 F . Supp. 2d 474.) Further, the lesser measures cited by [Petitioner] (along with binding and gagging), are constitutionally permissible but not, as [Petitioner] suggests, prerequisites to removal. (Illinois v . Allen , supra , 397 U.S. at p. 343.) Indeed, courts must be given sufficient discretion to meet the circumstances of each case. "It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations." (Ibid .; see also Welch , supra , at p. 773.)
[Petitioner] was persistently disruptive, defiant and stubborn. At least 30 times during pretrial proceedings and trial, the trial court had to remind [Petitioner] not to interrupt, engage in outbursts, make faces, gesture, or raise his voice. When [Petitioner] disrupted the prosecution's opening statement, the court threatened to place him in lockup and admonished the jury to disregard his outburst. During the trial on [Petitioner's] prior conviction, after [Petitioner] refused to cooperate with the fingerprint expert and continuously interrupted the court, the trial court warned [Petitioner] that if he continued to disrupt court proceedings, he would be placed into lockup for the remainder of the trial and for sentencing. [Petitioner] continued to interrupt the court and his own attorney during the trial and into sentencing.
During the sentencing hearing, the court again warned [Petitioner] that he would be removed from the courtroom and placed into lockup. [Petitioner] continued to interject comments. The court finally said, "Sir, if you open your mouth one more time, you will be taken into lockup. Do you understand?" Hearing no response, the court repeated, "Do you understand? Yes or No?" [Petitioner] answered, "Yes, Your Honor," but moments later, he once again interrupted his attorney's address to the court, saying, "I object. There is no proof of that." [Petitioner] was then ordered out of the courtroom, and the hearing proceeded. After sentence was pronounced, [Petitioner] was brought back into the courtroom, and the sentence was explained to him.
The trial court was more than patient with [Petitioner], took reasonable measures to avoid removing him, and gave him ample warning of the potential consequences of his behavior. We find no abuse of discretion.
. . .
We also reject defendant's contention that any error in removing him would be reversible per se. Had the trial court erred, its ruling would be subject to a harmless error analysis, unless defendant was deprived of his right to counsel as well as his presence during a critical stage. (See Rushen v . Spain (1983) 464 U .S. 114, 118-19 & fn. 2; In re Levi (1952) 39 Cal . 2d 41, 44-45; People v . El , supra , 102 Cal. App. 4th at pp. 1049-50 & fn.1.) Defendant was ably represented by counsel at sentencing - more ably once defendant was removed and counsel was able to address the court without interruption. Though defendant has speculated that he was prejudiced by his absence, he has not specified any particular harm he might have suffered. (Dkt. 198-15 [LD 9] at 17-19.)
3. Legal Standard.
"One of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial," including sentencing. Illinois v. Allen, 397 U.S. 337, 338 (1970); see also United States v. Ornelas, 828 F.3d 1018, 1021 (9th Cir.), cert. denied, 137 S. Ct. 522 (2016) ("The United States Constitution protects the right to be present at one's trial and sentencing."). Yet a defendant "can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom." Allen, 397 U.S. at 1060-61.
Because "trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case," there is "[n]o one formula for maintaining the appropriate courtroom atmosphere" that is "best in all situations." Allen, 397 U.S. at 1061. However, the Supreme Court has specifically noted that the following methods may be appropriate: "(1) bind and gag [the defendant], thereby keeping him present; (2) cite him for contempt; [or] (3) take him out of the courtroom until he promises to conduct himself properly." Allen, 397 U.S. at 1061.
4. Analysis.
a. Whether Petitioner's constitutional right to be present at sentencing was violated.
Petitioner argues that because he was not violently disruptive, and "merely spoke out of turn and interrupted," the trial court "could have taken steps short of banishing [him] from the courtroom during his own sentencing." (SAP at 64 ¶ 205.) There is no strict constitutional requirement that the trial court utilize the least restrictive means available to ensure the defendant's cooperation. Allen itself expressly noted the desirability of leaving such matters to the discretion of the trial court. 397 U.S. at 1061. Other cases have reached similar conclusions. Cf. Hawkins v. Wong, No. 96-1155, 2010 U.S. Dist. LEXIS 92175 at *60-61, 2010 WL 3516399 at *19 (E.D. Cal. Sept. 2, 2010) ("The court further rejects petitioner's claim that shackling may not be employed where there is a less restrictive alternative.... No U.S. Supreme Court case holds that due process is violated where concealed shackling is used in spite of a less restrictive alternative."), R&R adopted, 2013 U.S. Dist. LEXIS 94962, 2013 WL 3422701 (E.D. Cal. July 8, 2013). Such deference is doubly appropriate in the context of federal habeas review under § 2254(d)(1), which limits this Court to considering only whether the state courts reasonably interpreted Supreme Court precedent.
Petitioner's argument that his behavior was not "qualitatively different than the disruptive behavior he had displayed throughout trial," when he was not banished from the courtroom, actually undermines his argument. (Reply at 14.) The trial court had repeatedly admonished Petitioner, both throughout trial and during the prior strike/sentencing hearing, that his failure to cooperate might lead to his removal from the courtroom. The fact that these warnings had little or no effect on Petitioner tends to show that less draconian measures likewise would have failed to ensure Petitioner's cooperation. Gagging Petitioner—a lesser measure discussed in Allen—would have interfered with Petitioner's ability to communicate with the Court and his counsel, i.e., essentially the same effect as removing him from the courtroom.
b. Whether any error was harmless.
Petitioner argues that denial of his right to be present at sentencing is a "structural error[ ]" that "cannot be affirmed on the basis of harmless error." (Reply at 14.) Petitioner is incorrect on this point. "The list of structural errors that the Supreme Court has recognized is short and limited," and the "Supreme Court has never held that the exclusion of a defendant from a critical stage of his criminal proceedings constitutes a structural error." Campbell v. Rice, 408 F.3d 1166, 1172 (9th Cir. 2005) (en banc). "[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis." Rose v. Clark, 478 U.S. 570, 578-79 (1986). "In Rushen v. Spain, 464 U.S. 114, 117 (1983) (per curiam), the Court determined that the fact that the defendant was denied the right to be present during an ex parte communication between the judge and a juror was a trial error that was subject to harmless error analysis." Campbell, 408 F.3d at 1172 (parallel citations omitted); see also Rushen, 464 U.S. at 117 (discussing "the right to personal presence at all critical stages of the trial"); Brewer v. Runnels, No. 06-0382, 2010 U.S. Dist. LEXIS 83806 at *90, 2010 WL 3245330 at *31 (E.D. Cal. Aug. 17, 2010) ("harmless error is applicable to an unwarranted absence of a defendant from a critical stage of the proceedings"), subsequently aff'd, 484 F. App'x 132 (9th Cir. 2012).
The Ninth Circuit has held that "the absence of counsel during a critical stage of a criminal proceeding is precisely the type of 'structural defect' to which no harmless-error analysis can be applied." United States v. Hamilton, 391 F.3d 1066, 1070 (9th Cir. 2004) (emphasis added). That logic is inapplicable here, however, because Petitioner's counsel was present at the sentencing hearing and was given an opportunity to advocate on Petitioner's behalf.
In federal habeas cases, the Brecht harmless error test is used. Bains v. Cambra, 204 F.3d 964, 977 (9th Cir. 2000). Under this test, error is harmless unless it had a "substantial and injurious effect or influence in determining" Petitioner's sentence. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). Moreover, the California Court of Appeal's finding that any error was harmless is entitled to deference unless the state court "applied harmless-error review in an 'objectively unreasonable' manner." Mitchell v. Esparza, 540 U.S. 12, 18 (2003).
Although Petitioner complains that his banishment denied him "the right to allocute" (SAP at 64 ¶¶ 206-08), he does not explain what he would have said to the sentencing court or what difference he believes it would have made to his sentence. A review of the hearing transcript supports the California Court of Appeal's suggestion that Petitioner's removal actually benefited him, because it allowed his counsel to argue more effectively on his behalf. (See Answer at 91.) Counsel argued that Petitioner's behavior was "in the overall scheme of things, quite de minimis" and simply a "crime of words" that had been "magnified and amplified" due to Petitioner's prior manslaughter conviction. (6 RT 2731, 2740.) Petitioner's interruptions appeared to be attempts to re-argue the facts of the manslaughter conviction and the current case. (See 6 RT 2731 [arguing that the brother Randy whom he shot "tried to kill" him and that there was "no proof" that he threatened his brother Craig].) After Petitioner's removal, counsel was able to argue that Petitioner's behavior may have been the result of an emotional disturbance, and counsel urged the court not to "max[] [Petitioner] out" simply because "he dragged us all through this and wasted a lot of valuable court time because he didn't know how to do otherwise." (6 RT 2735.)
In sum, Petitioner has not shown that the California courts unreasonably applied Allen, or any other Supreme Court precedent giving a criminal defendant the right to be present during his sentencing, or that the California Court of Appeal's harmlessness finding was unreasonable. He is not entitled to relief on Ground 11.
VI.
CLAIMS RAISED IN PRO SE STATE HABEAS PETITIONS
A. Claims Raised in Pro Se Habeas Petitions and Relevant State Court Decisions.
In Ground 4(e), Petitioner argues that his trial counsel was ineffective because he failed to request jury instructions on the lesser-included offense of attempted criminal threats. (SAP at 50-52.) Relatedly, in Ground 5, Petitioner argues that the trial court erred by failing to sua sponte instruct the jury on the lesser-included offense of attempted criminal threats. (SAP at 54-56.) In Ground 10, Petitioner argues that his strike enhancements violate the Ex Post Facto Clause because his manslaughter conviction pre-dated the effective date of California's Three Strikes Law and because more than 10 years had passed since he was in custody. (SAP at 63.) In Ground 12, Petitioner argues that he was denied his right to testify at trial because he was "browbeaten" by both his counsel and the trial court into giving up that right. (SAP at 64-65.)
Petitioner exhausted these claims in a series of pro se habeas petitions filed in the state courts in 2012. On July 2, 2012, Petitioner filed a nearly 80-page pro se habeas petition in the L.A. County Superior Court. (LD 12, Dkt. 198-18.) On August 30, 2012, the superior court denied the petition as follows:
Every one of the grounds for relief claimed by petitioner was either raised and dismissed on appeal or should have been raised on appeal. Petitioner has failed to allege facts establishing an exception to the rule barring habeas consideration of claims that were or should have been raised on appeal. In re Harris , 5 Cal. 4th 813, 825-26 (1993); In re Dixon , 41 Cal. 2d 755, 759 (1953).
Furthermore, in regards to petitioner's claims of ineffective assistance of counsel, petitioner states no facts that could lead this Court to the conclusion that the quality of the representation was in any way inadequate. Under the second prong of the test given in Strickland v . Washington , the burden is on the petitioner to show prejudice as a result of ineffective assistance of counsel, and petitioner has failed to meet his burden. 466 U.S. 658, 693-94 (1984).
Finally, the allegations of the petition are too vague and conclusionary [sic] to support relief. In re Swain , 34 Cal. 2d 300, 303-04 (1949). Conclusionary allegations made without any explanation of the basis for the allegations do not warrant relief. People v . Karis , 46 Cal. 3d 612, 656 (1988); People v . Duvall , 9 Cal. 4th 464, 474 (1995). (LD 13, Dkt. 198-19.)
On September 27, 2012, Petitioner filed a pro se habeas petition in the California Court of Appeal (case no. B244198), which appeared to raise the same claims as his superior court petition. (LD 14, Dkt. 198-20.) The petition was summarily denied on October 23, 2012. (LD 15, Dkt. 198-21.)
On November 15, 2012, Petitioner filed what appeared to be the same pro se habeas petition in the California Supreme Court (case no. S206683). (LD 18, Dkt. 198-24.) This was denied on January 30, 2013, with citations to In re Lessard, 62 Cal. 2d 497, 503 (1965), In re Waltreus, 62 Cal. 2d 218, 225 (1965), In re Dixon, 41 Cal. 2d 756, 759 (1953), In re Swain, 34 Cal. 2d 300, 304 (1949), and In re Lindley, 29 Cal. 2d 709, 723 (1947). (LD 19, Dkt. 198-25.)
Petitioner also filed two other petitions in the California Court of Appeal (case no. B244861) and the L.A. Superior Court. (LD 1, 16, 17, Dkt. 198-1, -22, -23.) Petitioner does not appear to be relying on these petition to show exhaustion of any of the claims raised in his federal petition.
Respondent contends that Ground 4(e)—the IAC claim based on failure to ask for an instruction on attempted criminal threats—was reasonably denied on the merits for the reasons explained in the L.A. Superior Court's August 2012 order. (Answer at 67-68.) But Respondent argues that Grounds 5, 10, and 12 are procedurally defaulted because the California Supreme Court's citations indicate that it denied relief on an independent and adequate state law ground, namely: Petitioner's failure to raise these claims on direct appeal under Dixon. (Answer at 32-38.) See generally Johnson v. Lee, -- U.S. --, 136 S. Ct. 1802, 1806 (2016) (finding Dixon bar independent and adequate for purposes of federal habeas review). Respondent also argues that Grounds 5, 10, and 12 fail on the merits. (Answer at 71-77, 86-88, 93-95.) B. Ground 4(e): IAC Based on Failure to Request Jury Instruction on Attempted Criminal Threats.
In Ground Four (e), Petitioner argues that his trial counsel, Kevin Avery, was ineffective because Avery failed to request a jury instruction on the lesser-included offense of attempted criminal threats. (SAP at 50-52.) Petitioner argues that he could have been convicted of this lesser-included offense "if the jury had found that Craig Robinson had not been in 'sustained fear' as a result of the threat." (SAP at 51 ¶ 158.)
Respondent answers that "a lesser-included-offense instruction was unwarranted" because "there was insubstantial evidence that Craig was not in sustained fear after Petitioner threatened to shoot him," and "all the available [evidence] at trial showed otherwise." (Answer at 68.) Respondent argues, "Craig was aware of Petitioner's propensity for violence, including the fact that Petitioner had shot and killed their older brother; and after Petitioner threatened him, Craig immediately left the house, called 911, and stayed outside until the police arrived." (Id.) Thus, Respondent argues, Petitioner's trial counsel was not ineffective for failing to request this instruction, because to do so would have been to raise a meritless argument. (Id.)
1. Legal Standard.
A petitioner claiming IAC must show that counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). "Deficient performance" means unreasonable representation falling below professional norms prevailing at the time of trial. Id. at 688-89. To show deficient performance, the petitioner must overcome a "strong presumption" that his lawyer "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. Further, the petitioner "must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. The initial court considering the claim must then "determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. The Supreme Court has explained:
Although courts may not indulge "post hoc rationalization" for counsel's decisionmaking that contradicts the available evidence of counsel's actions, ... neither may they insist counsel confirm every aspect of the strategic basis for his or her actions. There is a "strong presumption" that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than "sheer neglect." ... After an adverse verdict at trial even the most experienced counsel may find it difficult to resist asking whether a different strategy might have been better, and, in the course of that reflection, to magnify their own responsibility for an unfavorable outcome. Strickland, however, calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind.Harrington v. Richter, 562 U.S. 86, 109 (2011) (citations omitted).
To meet his burden of showing the distinctive kind of "prejudice" required by Strickland, the petitioner must affirmatively "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; see also Richter, 131 S. Ct. at 791 ("In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently."). A court deciding an IAC claim need not address both components of the inquiry if the petitioner makes an insufficient showing on one. Strickland, 466 U.S. at 697.
Additionally, AEDPA requires an additional level of deference to a state court decision rejecting an IAC claim. "The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard." Richter, 562 U.S. at 101.
2. Relevant Trial Court Proceedings.
Petitioner's pro se habeas petitions in state court alleged that Petitioner "ask[ed] Mr. Kevin S. Avery to g[i]ve the lesser includded ofense [sic] [and] he didn't do it." (See, e.g., LD 12, Dkt. 198-18 at 20; see also id. at 13-14 ["[l]esser included offence [sic] of attempted was not given in criminal threats that is a misdaminor [sic] not a wobbler."].)
Although Petitioner's counsel did not request an instruction on attempted criminal threats, he did request instructions on other lesser-included offenses. First, he argued that—because the section 422 charge was a "wobbler" that could be charged as either a misdemeanor or a felony—the jury should be allowed to decide whether to convict Petitioner of a misdemeanor or a felony. Counsel argued that allowing the prosecutor (at charging) or the judge (at sentencing) to decide this issue violated due process. (See 5 RT 1538-40.) After further research and discussion with the trial court and prosecutor, counsel admitted that this was not supported by current California law; he nevertheless preserved the issue for appeal. (See 5 RT 1557-66.) Second, Avery suggested misdemeanor battery as a lesser-included offense, "based upon the victim saying [Petitioner] threw water in his face." (5 RT 1802-03.) The court ruled that this would be a separate charge, not a lesser-included offense. (5 RT 1803.) Counsel did not request any other lesser- included offenses for the criminal threats charge.
During closing argument, defense counsel argued extensively that Petitioner's threat did not cause Craig to feel sustained fear. Counsel argued that "great attention must be paid to the genuineness of the fear of Craig Robinson." (5 RT 1868.) Counsel argued that Craig had characterized the situation as "same as always" and that Craig called the police not because he was afraid, but because he "figured he could finally get his brother once and for all for the same as always." (5 RT 1868-69) Counsel argued:
[Craig] was so scared that he decided to sit on the front porch with his brother right inside, who may or may not be arming himself. That's how scared he was. That's not very scared to me.(5 RT 1870-72.)
... He did not try to make the weapons unavailable. ... Didn't occur to him [to] lock the door and solve the problem about the gun.
... [H]e didn't run away. He didn't alert his neighbors. He sat on the front porch. He left his mother inside. He didn't lock the door to his bedroom. He didn't take the box of ammo out.
... He didn't make any effort to get his mother out. That alone tells me he's not that scared.
... So, the things he did not do are what suggest to me that he wasn't in sufficient fear to support a conviction for 422.
3. Denial of this Claim by the California Courts.
The L.A. County Superior Court's August 2012 order denying Petitioner's pro se habeas petition is the relevant decision on the merits for the purposes of AEDPA review. That court ruled:
[I]n regards to petitioner's claims of ineffective assistance of counsel, petitioner states no facts that could lead this Court to the conclusion that the quality of the representation was in any way inadequate. Under the second prong of the test given in Strickland v . Washington , the burden is on the petitioner to show prejudice as a result of ineffective assistance of counsel, and petitioner has failed to meet his burden. 466 U.S. 658, 693-94 (1984). (LD 13, Dkt. 198-19.)
4. Analysis.
California Penal Code section 422(a) makes it a crime to threaten death or great bodily injury if, among other things, the threat "causes [the victim] reasonably to be in sustained fear for his or her own safety." To be "sustained," the victim's fear must be "more than fleeting, momentary or transitory." People v. Culbert, 218 Cal. App. 4th 184, 190 (2013). In People v. Toledo, 26 Cal. 4th 221 (2001), the California Supreme Court recognized the crime of attempted criminal threat exists under certain circumstances, including if "the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear...." Id. at 231.
Respondent argues that this IAC claim lacks merit "because a lesser-included offense instruction was unwarranted." (Answer at 67.) Under California law, "the existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury." People v. Breverman, 19 Cal. 4th 142, 162 (1998) (citations omitted). "'Substantial evidence' in this context is 'evidence from which a jury composed of reasonable [persons] could ... conclude[]' that the lesser offense, but not the greater, was committed." Id. (citations omitted). "In deciding whether there is substantial evidence of a lesser offense, [California] courts should not evaluate the credibility of witnesses, a task for the jury." Id.
Craig testified that he believed that Petitioner might shoot him, which is why he called the police and went out to the porch. (4 RT 913, 919.) The first officer who responded to the scene testified that Craig appeared "a little shaky," and Craig told the officer that "he was scared based on the fact of what had happened in the past." (5 RT 1260.) Thus, this testimony supported the element of sustained fear.
Petitioner essentially suggests that, if Craig truly was in fear, he would have done something more than merely retreat to the porch, e.g., lock his bedroom door where the shotgun was, leave the property entirely, alert the neighbors, or attempt to get his mother out of the house. (See SAP at 50-52, 57-58.) Craig was asked about some of these possibilities on cross-examination. He testified that he did not lock his bedroom door because he "didn't think about it" and "I never do." (4 RT 966-68.) He testified that he did not alert the neighbors because "Dave's at work, two jobs a week. At night he works two jobs. His wife won't answer the phone. She don't hablo [i.e., speak English]." (4 RT 1023.) He testified that he did not attempt to get his 88-year-old mother out because he could not have done so "in a hurry" and, he opined, "I didn't know if [Petitioner would] ever hurt mother, but I know he would try with me." (4 RT 1020; see also 4 RT 1033 [Helen's testimony that she had "trouble walking"].)
In deciding whether there was substantial evidence to support a conviction for attempted criminal threats, the trial judge would not have been allowed to consider the credibility of Craig's testimony; it was within the jury's purview to decide whether Craig had sufficiently explained his failure to take further actions to protect himself or neutralize any threat from his brother. See Breverman, 19 Cal. 4th at 162. On this record, it is unlikely that a request for an attempt instruction would have been granted.
Furthermore, although Petitioner argues that "no conceivable tactical advantage arose from [the] omission" of the attempt instruction (SAP at 52), the Court can imagine one: that Avery hoped the jurors would acquit Petitioner if they found Craig was not in sustained fear, rather than reaching a compromise verdict of attempted criminal threat. The Supreme Court has warned courts not to "indulge in 'post hoc rationalization' for counsel's decisionmaking that contradicts the available evidence of counsel's actions," Richter, 562 U.S. at 109, yet there is no evidence in the record contradicting this explanation for Avery's failure to request the instruction. Compare Loughmiller v. Dickinson, No. 09-02094, 2011 U.S. Dist. LEXIS 99514 at *40-42, 2011 WL 3882786 at *12-13 (E.D. Cal. Sept. 2, 2011) (finding California court unreasonable applied Strickland by assuming counsel had a similar strategic reason for seeking the omission of a lesser-included-offense instruction, even though the trial transcript showed that counsel had explicitly argued against the instruction based on an erroneous interpretation of California law), aff'd, 515 F. App'x 695 (9th Cir. 2013).
In sum, Petitioner has not shown that the L.A. County Superior Court unreasonably applied Strickland when it found that Avery's performance was not ineffective. A request for an attempted criminal threats instruction likely would not have been granted, and Petitioner has not overcome the presumption that Avery had a strategic reason for not requesting the instruction. Petitioner is not entitled to relief on Ground 4(e). C. Whether Grounds 5 , 10, and 12 are Procedurally Defaulted.
Given the various case citations in the California Supreme Court's January 2013 order, it is not entirely clear why that court denied Grounds 5, 10, and 12. Like the L.A. County Superior Court, which issued the only reasoned opinion denying these claims, the California Supreme Court cited Dixon and Swain; but it also cited various other authorities. See Lessard, 62 Cal. 2d at 503, ("[W]e do not believe that the writ should serve as the means of attack upon a final judgment because of the introduction of evidence allegedly secured in violation of the Fourth Amendment."); Waltreus, 62 Cal. 2d at 225 ("These arguments were rejected on appeal, and habeas corpus ordinarily cannot serve as a second appeal."); Lindley, 29 Cal. 2d at 723 ("Upon habeas corpus, ... the sufficiency of the evidence to warrant the conviction of the petitioner is not a proper issue for consideration. ... Nor is habeas corpus an available remedy to review the rulings of the trial court with respect to the admission or exclusion of evidence, or to correct other errors of procedure occurring on the trial. ... Also, newly discovered evidence does not justify relief unless it is of such character as will completely undermine the entire structure of the case upon which the prosecution was based.").
In Koerner v. Grigas, 328 F.3d 1039 (9th Cir. 2003), the Ninth Circuit held that "if it is impossible for the federal court to ascertain whether such grounds have been relied upon, the state court decision cannot bar federal review." Id. at 1052. The court noted:
Under some circumstances, a federal court will be able to resolve an ambiguous order. For example, if the order affirms a previous lower court order that relies on the same grounds and specifies which grounds are applicable to which claims, there is no reason to assume that the appellate court applied different grounds to different claims. ... But where a state supreme court order expressly relies on different grounds than the lower court decision that it affirms, yet fails to explain which ground applies to which claim ... federal courts generally will not be able to resolve the resulting ambiguity.Id. Because the present case presents such ambiguity, it is doubtful that the state court decisions definitely show a procedural default.
Regardless, the Court finds it more efficient to address Grounds 5, 10, and 12 on the merits because, as discussed further below, they readily fail on the merits. See, e.g., Gwin v. Martel, No. 14-6083-MWF (GJS), 2016 U.S. Dist. LEXIS 183685 at *25-26, 2016 WL 8223274 at *9 (C.D. Cal. June 21, 2016) ("That uncertainty inherent in the state court order, coupled with the need to resolve the cause and prejudice issue, raises the concern that analyzing and determining the procedural default issue may be more complex and difficult than resolving the subject claims," which "fail readily on their respective merits. Accordingly, the Court declines to endeavor to determine whether or not the claims ... are procedurally defaulted pursuant to the state court's undelineated citation to Dixon and, instead, will address these claims on their merits."), R&R adopted, 2017 U.S. Dist. LEXIS 17966, 2017 WL 517759 (C.D. Cal. Feb. 6, 2017). D. Ground 5: Trial Court's Failure to Sua Sponte Instruct the Jury on Attempted Criminal Threats.
Ground 5 is related to Ground 4(e), as both are based on the failure to instruct the jury on attempted criminal threats. In Ground 5, Petitioner argues that, although his counsel did not request the instruction, the state trial court should have sua sponte given it anyway. (SAP at 54-56.) Respondent contends that this is an issue of state law, not federal constitutional law, because there is no Supreme Court precedent requiring such a sua sponte instruction. (Answer at 71-74.)
In Beck v. Alabama, 447 U.S. 625 (1980), the Supreme Court held that the failure to instruct the jury on a lesser-included offense may violate federal due process in a capital case. Id. at 637. However, the Supreme Court expressly did "not decide whether the Due Process Clause would require the giving of such instructions in a noncapital case." Id. at 638 n.14.
In Turner v. Marshall, 63 F.3d 807, 819 (9th Cir. 1995), overruled on other grounds by Tolbert v. Page, 182 F.3d 677 (9th Cir. 1999), the Ninth Circuit noted that there was an "intercircuit split on whether the lack of a lesser included offense instruction in a noncapital case presents constitutional error." Id. at 819. The Ninth Circuit affirmed the denial of a habeas petition on this basis, reasoning that "any finding of constitutional error would create a new rule, inapplicable to the present case under Teague [v. Lane, 489 U.S. 288 (1989)]." Id.; see also Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000).
Teague held that "habeas corpus cannot be used as a vehicle to create new constitutional rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review through one of ... two articulated exceptions." Id. at 290-91. The two Teague exceptions are: (1) where "the rule places a class of private conduct beyond the power of the state to prescribe," and (2) "watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Graham v. Collins, 506 U.S. 461, 477-78 (1993).
Petitioner does not offer any argument as to why this issue would fit within one of the two Teague exceptions, or otherwise respond to the argument based on Teague. In light of the Ninth Circuit precedents cited supra, the Court finds that Petitioner is not entitled to relief on Ground 5, his claim that the trial court should have sua sponte instructed the jury on the offense of attempted criminal threats. E. Ground 10: Whether Petitioner's Strike Enhancements Violate the Ex Post Facto Clause.
At sentencing, the trial court found that Petitioner's 1993 manslaughter conviction was a prior strike warranting a five-year enhancement under California law. (See SAP at 63.) Petitioner challenges this enhancement on two grounds.
First, Petitioner argues that this enhancement was improper under California Penal Code section 667.5(a), because it was more than ten years old at the time of his current conviction. (SAP at 63 ¶ 202.) See Cal. Penal Code § 667.5(a) ("no additional term shall be imposed under this subdivision for any prison term served prior to a period of 10 years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction"). An argument based solely on California law, such as this one, is not cognizable in habeas. Federal habeas relief can be granted only for violations of federal law. See generally Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.").
Second, Petitioner argues that this enhancement violates the Ex Post Facto Clause because California's Three Strikes Law did not become effective until 1994, after his 1993 conviction. (SAP at 63 ¶ 201.) This argument has been rejected by the courts. See Parke v. Raley, 506 U.S. 20, 27 (1992) ("We have said before that a charge under a recidivism statute does not state a separate offense, but goes to punishment only. ... And we have repeatedly upheld recidivism statutes 'against contentions that they violate constitutional strictures dealing with ... ex post facto laws.....'") (citation omitted); United States v. Kaluna, 192 F.3d 1188, 1199 (9th Cir. 1999) ("The Supreme Court and this court uniformly have held that recidivist statutes do not violate the Ex Post Facto Clause if they are 'on the books at the time the [present] offense was committed.'"); Rosenberg v. Lewis, No. 01-4887, 2003 U.S. Dist. LEXIS 9034 at *15-16, 2003 WL 21262176 at *5 (N.D. Cal. May 27, 2003) ("courts have uniformly rejected the claim that three strikes laws violate the Ex Post Facto Clause").
Thus, Petitioner is not entitled to relief on Ground 10. F. Ground 12: Denial of Right to Testify Based on Pressure from Defense Counsel and the Court.
Petitioner argues that he was "browbeaten by both his counsel and the trial court into giving up his right to testify at trial ... under some duress." (SAP at 65 ¶ 209.) Respondent answers that Petitioner explicitly waived his right to testify, and the trial record shows this was his independent decision. (Answer at 93-95.) Respondent also argues that Petitioner cannot show prejudice because, if Petitioner had testified, he likely would have lost the resulting "credibility contest" between himself and the other witnesses, given his "general courtroom behavior," and because it is "unlikely that he would have withstood cross-examination." (Answer at 95.)
1. Relevant Trial Court Proceedings.
On Tuesday, August 25, 2009, during a break in the presentation of evidence, the court asked defense counsel how many witnesses he planned to call, and counsel answered, "Zero." (5 RT 1301.) As the jury was being brought back into the courtroom, Petitioner stated, "Your honor, I would like to take the stand -" (5 RT 1301.) Defense counsel admonished him, "No, no, no, no. You're not - be quiet. Be quiet before the jury gets in here. Do not say a word." (5 RT 1301.) After the jury was brought in, the court began to announce that Sergeant Bilodeau's testimony would continue, and Petitioner interrupted, "I object." (5 RT 1301.) The court admonished him, "Mr. Robinson, another willful violation by you. Your attorney just told you to be quiet. Follow the rules." (5 RT 1301.)
Later the same day, during another break, the court advised Petitioner that he had "an absolute right not to testify in this case" and "the right to testify if you choose to do so." (5 RT 1340-41.) Petitioner stated that he understood those rights. (5 RT 1341.) The court noted, "I know that your attorney, Mr. Avery, has discussed your two rights with you extensively. Tomorrow morning before I call in the jury, I will ask you whether you are going to testify or not. So think about it. Remember what your attorney has talked to you about. And I will ask you that on the record tomorrow." (5 RT 1341.) Petitioner stated that he understood. (5 RT 1341.)
The following day, Petitioner told the court that he wished to testify. (5 RT 1502.) Defense counsel responded, "No, you don't. No, you don't. No, you don't. Don't you dare. You will destroy yourself. Do not." (5 RT 1502.) The court stated it would "put this on hold until after the people rest." (5 RT 1502.) Defense counsel and Petitioner then had the following exchange:
MR. AVERY: You just told me a minute ago you wouldn't testify. Now, stick to that.
THE DEFENDANT: Why not?
THE COURT: Okay. Sir, sir, just a second. Mr. Avery, I will give you sufficient time to talk to him some more before the defense rests.
THE DEFENDANT: I won't testify as long as you read this to the jury.(5 RT 1502.) The jury was brought in and the presentation of evidence continued. (Id.)
MR. AVERY: I will consider it. Let me do my job. Do not testify.
Petitioner and his counsel further discussed the issue over the lunch break. (See 5 RT 1536-37.) After returning from lunch, defense counsel told the court, "I believe if the court asks him if he's going to testify, he will tell you he is not." (5 RT 1537.) The court then had the following exchange with Petitioner:
THE COURT: All right. Mr. Robinson, did you talk to your attorney Mr. Avery for some period over the lunchtime?(5 RT 1537-38.) Petitioner did not testify at trial.
THE DEFENDANT: Yes, your honor.
THE COURT: And are you going to testify?
THE DEFENDANT: It is the advice of my counsel not to testify.
THE COURT: All right. And is that your decision?
THE DEFENDANT: Yes, your honor.
THE COURT: Excellent.
2. Analysis.
"The right of an accused to testify in his own defense is well established, and is a 'constitutional right of fundamental dimension.'" United States v. Pino-Noriega, 189 F.3d 1089, 1094 (9th Cir. 1999); see also Rock v. Arkansas, 483 U.S. 44, 51 (1987). "The right is personal, and 'may only be relinquished by the defendant, and the defendant's relinquishment of the right must be knowing and intentional.'" Pino-Noriega, (quoting United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993)).
The trial transcript does not demonstrate that Petitioner's waiver of his right to testify was somehow unintentional or involuntary. He and his counsel clearly disagreed, initially, about whether he should testify. The record indicates that counsel thereafter convinced Petitioner to waive the right. There is no reason to believe that Petitioner would have explicitly waived the right to testify if he had not been convinced to do so of his own free will, particularly given his many other vociferous objections throughout the trial. Petitioner therefore is not entitled to habeas relief on Ground 12.
VII.
CLAIMS RAISED IN FIRST COUNSELED EXHAUSTION PETITION
A. Claims Raised in First Exhaustion Petition and Ruling of the California Supreme Court.
In Ground 6(a), Petitioner argues there was insufficient evidence to support his conviction for criminal threats under California Penal Code section 422. (SAP at 57-58.) In Ground 7, Petitioner argues his appellate counsel was ineffective for failing to argue that (a) there was insufficient evidence to support the criminal threats conviction, and (b) the court erred by failing to instruct on the offense of attempted criminal threats. (SAP at 59-60.) In Ground 8, Petitioner claims cumulative error at trial and on appeal. (SAP at 60-62.) In Ground 9, Petitioner argues that his sentence violates the Eighth and Fourteenth Amendments because it is grossly disproportionate to his crime. (SAP at 62-63.)
These claims were exhausted in Petitioner's first counseled exhaustion petition, which was filed in the California Supreme Court after this federal action was initiated. (See Dkt. 198-26 [LD 20].) The petition was summarily denied without citation to authority. (Dkt. 198-27 [LD 21].)
This summary denial is a decision on the merits subject to deferential review under § 2254(d). The Supreme Court has held, "[D]etermining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning." Richter, 562 U.S. at 98. "Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Id. B. Ground 6(a): Sufficiency of the Evidence to Support Conviction of Criminal Threats under California Penal Code Section 422.
The Jackson standard for assessing sufficiency of the evidence claims on federal habeas review is discussed supra in section V.D.'s discussion of Ground 6(b). Under California law, the prosecution must prove five elements to convict a defendant of criminal threats:
(1) that the defendant "willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person," (2) that the defendant made the threat "with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out," (3) that the threat-which may be "made verbally, in writing, or by means of an electronic communication device"-was "on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat," (4) that the threat actually caused the person threatened "to be in sustained fear for his or her own safety or for his or her immediate family's safety," and (5) that the threatened person's fear was "reasonabl[e]" under the circumstances.People v. Toledo, 26 Cal. 4th 221, 227-28 (2001) (quoting Cal. Pen. Code § 422.) Petitioner argues that, in his case, there was insufficient evidence of the third and fourth elements because:
The evidence established that Robinson and his brother argued regularly. The evidence also established that Robinson did not own a gun -- his brother Craig did. Moreover, Craig Robinson's behavior
after receiving the threat -- calling 911 and then waiting on the porch of the house for the officers to arrive -- undermines any possibility of finding that he took the threat to be immediate and unequivocal... [or] that he was ... in "sustained fear." Further, Craig Robinson was an admitted drunkard, who was drunk on the night in question, and whose testimony was inconsistent.(SAP at 58 ¶ 182.) Respondent argues that these elements are met because, among other things, Petitioner "[a]lmost simultaneously ... threw a full container of water or milk at Craig," "Craig was fully aware of Petitioner's proclivity for violence," "Craig's shotgun was accessible to Petitioner in Craig's bedroom," and, after hearing the threat, "Craig immediately left the house, immediately called 911, and stayed outside the house until the police arrived." (Answer at 78-79.)
Having reviewed the trial record in its entirety, the Court finds that there was sufficient evidence to support the criminal threats conviction. It is true that the evidence of the criminal threat came solely from the testimony of Petitioner's brother Craig, the victim. Petitioner's mother Helen, who was present in the house at the time, testified that she did not hear the threat, but that she was not really listening to Craig and Petitioner's fight; she testified that she was not worried that Petitioner was going to hurt Craig. (4 RT 1031, 1044-45, 1056.) Craig admitted that he was a frequent drinker and that had been drinking on the night of the incident. (4 RT 943-47, 959-60.) However, the jury was entitled to decide whether to credit or discredit his testimony in light of these admissions. See Walters, 45 F.3d at 1358 (the "reviewing court must respect the province of the jury to determine the credibility of witnesses").
Focusing on the specific elements challenged by Petitioner, there was evidence from which a rational jury could have found that the threat was "so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat" (the third element). Craig testified that Petitioner "said he was going to get a gun, get a bullet and shoot me and my mother, the old lady, or something like that." (4 RT 910; see also 4 RT 965.) There was a shotgun in Craig's bedroom that was operational and accessible to Petitioner, and which Petitioner knew was there. (4 RT 913-15, 921, 934-36.) Immediately before making the threat, Craig testified, Petitioner "threw a glass of milk or water or something at" Craig, and the liquid went "all over [Craig's] face, shirt," and the wall. (4 RT 910, 913, 928-30, 961-62.)
The evidence that Craig and Petitioner argued regularly does not necessarily undermine the immediacy of the threat. Their prior arguments had not been entirely peaceful. (See 4 RT 915-17, 979-85 [Craig's testimony describing a prior incident in which he had threatened Petitioner with the unloaded shotgun].) Craig testified that Petitioner had become violent during arguments with friends, especially when he had been drinking, and that Petitioner had been drinking heavily for "four or five days in a row" when he made the threat. (4 RT 919-20, 947-49, 960, 977-79.) Craig testified, "[Y]ou don't know what the guy is going to do, what he's capable of. He did that to other people. He's hit my friends. He's hit me. I mean, there's no telling what he'll do when he gets in that state of mind." (4 RT 919.) Craig also knew that Petitioner had shot and killed their other brother and testified that "was in the back of [his] mind ... because if he done it once, he might do it again." (4 RT 921.)
As discussed supra regarding Ground 4(e) (in section VI.B.), there was evidence from which a rational jury could conclude that Craig was in sustained fear. It was within the province of the jury to decide whether Craig's failure to take further actions (like alert the neighbors or lock his bedroom door) undermined his testimony that he was in fear. See generally Jackson, 443 U.S. at 319 (standard is whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt"); Walters, 45 F.3d at 1358 (reviewing court "must respect the province of the jury to ... draw reasonably inference from proven facts by assuming that the jury resolved all conflicts in a manner that supports the verdict").
In sum, there was sufficient evidence supporting Petitioner's conviction for criminal threats under section 422. The California Supreme Court's denial of this claim on habeas review was not an unreasonable application of Jackson. C. Ground 7: IAC of Appellate Counsel.
Respondent argues that "portions" of Ground 7 are procedurally defaulted, i.e., to the extent Ground 7 argues that Petitioner's appellate counsel was ineffective for failing to argue that Petitioner's trial counsel was ineffective for the reasons argued in Grounds 4(b), (c), (d), (f), (g), and (h). (Answer at 31-32.) The Court does not interpret Ground 7 as raising this argument. The SAP alleges in relevant part: "[A]ppellate counsel failed to raise any of the readily-apparent claims in this case. This included claims related to the insufficiency of the evidence as to the ... § 422 count [Ground 6 of the SAP], and the instructional claim as to the lesser-included offense [Ground 5 of the SAP]." (SAP at 60 ¶ 189.) Thus, the Court construes Ground 7 as alleging only that appellate counsel should have raised the arguments made in Grounds 5 and 6 of the SAP.
The Strickland standard discussed above under Ground 4 also applies when considering claims that appellate counsel was ineffective. Smith v. Robbins, 528 U.S. 259, 285 (2000). Appellate counsel has no duty to raise every nonfrivolous issue requested by a defendant. Jones v. Barnes, 463 U.S. 745, 751 (1983); see also Robbins, 528 U.S. at 285-86 (to prevail on claim that appellate counsel was ineffective for filing a Anders/Wende brief, petitioner must show that counsel unreasonably failed to discover nonfrivolous issue and that there was a reasonable probability that petitioner would have prevailed on appeal had counsel done so). The two prongs set forth in Strickland "partially overlap" when evaluating the performance of appellate counsel; in many instances, appellate counsel will fail to raise an issue because he foresees little or no likelihood of success on the merits. Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989) (noting that "the weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy"); see also Wildman v. Johnson, 261 F.3d 832, 840-42 (9th Cir. 2001); Bailey v. Newland, 263 F.3d 1022, 1028 (9th Cir. 2001).
This is a case where the Strickland analysis and the merits of the issues Petitioner claims appellate counsel failed to raise overlap. For the reasons discussed regarding Grounds 4(e) and 6(a) (in sections VI.B. and VII.B.), it is likely that appellate counsel concluded that she would not succeed in challenging the criminal threat conviction based on the sufficiency of the evidence or the failure to instruct on attempted criminal threat. This was not ineffective performance, and Petitioner is not entitled to relief on Ground 7. D. Ground 8: Whether Petitioner was Prejudiced by the Cumulative Effect of the Errors Described in the SAP.
Petitioner contends that the cumulative effect of the errors raised in his other claims deprived him of a fair trial. (SAP at 60-62.) Because the Court finds that Petitioner is not entitled to relief on the other grounds raised in the SAP, he is also not entitled to relief on this claim. E. Ground 9: Whether Petitioner's Sentence of 13 Years and 8 Months was Grossly Disproportionate to His Crimes Under the Eighth and Fourteenth Amendments.
1. Legal Standard.
The Eighth Amendment prohibits "extreme" sentences that are "grossly disproportionate" to the severity of the crime. Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (upholding life sentence for possession of more than 650 grams of cocaine, but without a majority opinion agreeing on what factors comprise the gross proportionality test); Nunes v. Ramirez-Palmer, 485 F.3d 432, 439 (9th Cir. 2007) ("gross disproportionality principle" is clearly established federal law under AEDPA for purpose of analyzing whether sentence constitutes cruel and unusual punishment). In determining whether a sentence for a term of years is "grossly disproportionate" to a defendant's particular crime, a court must compare the gravity of the offense and the severity of the sentence. Graham v. Florida, 560 U.S. 48, 60 (2010) (citing Harmelin). "Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." Rummel v. Estelle, 445 U.S. 263, 272 (1980). "Generally, so long as the sentence imposed does not exceed the statutory maximum, it will not be overturned on Eighth Amendment grounds." United States v. McDougherty, 920 F.2d 569, 576 (9th Cir. 1990).
2. Analysis.
Petitioner argues, "Despite the fact that he did not actually make a believable threat to Craig Robinson, especially given the circumstances, and despite the undisputed evidence that [Petitioner] did not threaten or use force against law enforcement, [Petitioner] was sentenced to the maximum available sentence of thirteen years and eight months." (SAP at 62 ¶ 198.) To the extent this claim is simply a sufficiency of the evidence claim in disguise, it was reasonably rejected by the state courts for the reasons discussed supra under Grounds 6(a) and (b). There was sufficient evidence from which a rational jury could conclude that Petitioner threatened Craig and used force against law enforcement.
At the sentencing hearing, the trial court stated that it was imposing the statutory maximum sentence for the crimes because Petitioner's criminal record "show[ed] a major escalation in terms of violence," that Petitioner seemed to have "lack of impulse control," and that Petitioner represented "an extreme threat to the safety of his brother ... and his biological mother...." (6 RT 2741.) Petitioner has argued neither that these are improper considerations nor that they were unsupported by the record. The significant length of Petitioner's sentence also resulted from the five-year second-strike enhancement he received under California's Three Strikes Law based on his prior manslaughter conviction. (6 RT 2743.) The Supreme Court has held that such sentences do not violate the Eighth Amendment. For example, in Lockyer v. Andrade, 538 U.S. 63, 66 (2003), the Supreme Court upheld a sentence of 25 years to life under the California Three Strikes Law, which was based on the petty theft of $153.54 in videotapes.
In sum, Petitioner has not demonstrated that the California Supreme Court unreasonably rejected his Eighth Amendment claim. He is not entitled to relief on Ground 9.
VIII.
CLAIMS RAISED IN SECOND COUNSELED EXHAUSTION PETITION
A. Claims Raised in the Second Exhaustion Petition and Ruling of the California Supreme Court.
Ground 4 alleges ineffective assistance of trial counsel on seven grounds, which are set forth in subparts labeled (b)-(g). When these claims were first raised in Petitioner's FAP, the Court noted that, with the exception of subpart (e), these claims appeared to be unexhausted. (Dkt. 75 at 2.) On January 5, 2015, this Court granted Petitioner a Rhines stay to return to state court and exhaust these claims. (Dkt. 75.) Petitioner did so, as discussed supra in section VII.A.
However, that first exhaustion petition did not raise IAC claims directed at trial counsel. When Petitioner sought to proceed on the FAP (Dkt. 83), the Court asked Petitioner to address the fact that these claims remained unexhausted. (Dkt. 84.) Petitioner's counsel responded by voluntarily dismissing these claims and stating that Petitioner wished to proceed only on the claims that were presently exhausted. (Dkt. 87, 91.) However, the Court then received several pro se filings from Petitioner indicating that he did not wish to drop these claims, that he wished to raise other claims not pled in the FAP, and that he wished to discharge his appointed counsel. (Dkt. 97.) The Court denied the request to discharge counsel, but ordered counsel to confer with Petitioner as to how to proceed on the unexhausted IAC claims in Ground 4. (Id.; Dkt. 102.) Petitioner's counsel later filed the SAP, which added these claims back into the petition. (Dkt. 144.)
The Court then granted Petitioner a second Rhines stay to exhaust these claims. (Dkt. 170.) Petitioner filed a second exhaustion petition in the California Supreme Court on July 13, 2016. (Dkt. 147-1; LD 22, Dkt. 198-28.) On October 12, 2016, the California Supreme Court summarily denied the petition with citations to In re Robbins, 18 Cal. 4th 770, 780 (1998) and In re Clark, 5 Cal. 4th 750, 767-69 (1993). (Dkt. 175 at 2; LD 23, Dkt. 198-29.)
Respondent argues that this Court cannot reach the merits of these IAC claims because they were denied on independent and adequate state law grounds, i.e., as untimely and successive. (Answer at 30-31.) Alternatively, Respondent argues that they fail on the merits. (Answer at 61-71.) B. Whether Grounds 4(b)-(d) and (f)-(h) are Procedurally Defaulted.
1. Legal Standard.
On federal habeas review, the Court will not review a claim on its merits if it is procedurally barred, that is, where a state court dismissed the claim on an "adequate and independent" state law ground. Walker v. Martin, 562 U.S. 307, 315-16 (2011); Coleman v. Thompson, 501 U.S. 722, 729 (1991). In order for a claim to be procedurally barred for federal habeas corpus purposes, the opinion of the last state court rendering a judgment in the case "must clearly and expressly" state that its judgment rests on a state procedural bar. Harris v. Reed, 489 U.S. 225, 263 (1989). "To qualify as an 'adequate' procedural ground, a state rule must be 'firmly established and regularly followed.'" Walker v. Martin, 562 U.S. 307, 316 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 617 (2009)). "[A] discretionary state procedural rule can serve as an adequate ground to bar federal habeas review[,] ... even if the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others." Kindler, 558 U.S. at 618.
Once a respondent demonstrates the existence of an independent and adequate state-law bar, the burden of proof shifts to the habeas petitioner to show "cause" for the default and actual "prejudice" resulting from the alleged constitutional violation. See generally Carter v. Giubino, 385 F.3d 1194, 1198 (9th Cir. 2004).
In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court held that IAC of habeas counsel is not cause excusing a procedural default because there is no constitutional right to an attorney in state habeas proceedings. Id. at 752-53. However, in Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court modified Coleman and recognized a specific kind of cause-and-prejudice analysis for claims that allege IAC of trial counsel. The Supreme Court held that a federal habeas court may find cause excusing a procedural default where:
(1) the claim of "ineffective assistance of trial counsel" was a "substantial" claim; (2) the "cause" consisted of there being "no counsel" or only "ineffective" counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the "initial" review proceeding in respect to the "ineffective-assistance-of-trial-counsel claim"; and (4) state law requires that an "ineffective assistance of trial counsel [claim] ... be raised in an initial-review collateral proceeding.Detrich v. Ryan, 740 F.3d 1237, 1244-45 (9th Cir. 2013) (summarizing Martinez). In Trevino v. Thaler, 569 U.S. 413 (2013), the Supreme Court expanded the fourth element, holding that Martinez applies not only where state law explicitly requires IAC claims to be raised in an initial review collateral proceeding, but also where the "state procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal...." Id. at 429. "[O]nce a finding of 'cause' under [this framework] has been made, a federal habeas court may proceed to the merits of the trial-counsel IAC claim under Strickland." Detrich, 740 F.3d at 1246.
2. Analysis.
a. Respondent has demonstrated that the claims are procedurally defaulted.
The Supreme Court has held that California's timeliness rule, as expressed in Robbins, is both independent and adequate for purposes of federal habeas review. Walker v. Martin, 562 U.S. 307, 321-22 (2011); see also Bennett v. Mueller, 322 F.3d 573, 582-83 (9th Cir. 2003). Although the Supreme Court has not addressed California's rule barring successive habeas petitions, as expressed in Clark, numerous federal courts in California have concluded that it is independent and adequate. See, e.g., Flowers v. Foulk, No. 14-0589, 2016 U.S. Dist. LEXIS 120101 at *9, 2016 WL 4611554 at *4 (N.D. Cal. Sept. 6, 2016); see also Siripongs v. Calderon, 35 F.3d 1308, 1318 (9th Cir. 1994) (finding that California courts' pre-Clark practice of permitting successive petitions as a matter of discretion was not an independent and adequate state rule precluding federal review because the practice was "discretionary" and had "not been applied consistently," but noting that Clark "announced strict new standards for whether successive state habeas petitions should be allowed"). Although the SAP includes boilerplate language alleging that any procedural bar raised by Respondent is not independent and adequate (see SAP at 36 ¶ 101), Petitioner has "fail[ed] to raise 'specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule.'" Cooper v. Brown, 510 F.3d 870, 1001-02 (9th Cir. 2007) (citation omitted; finding federal habeas petition was successive under § 2244(b) and, even if it was not, the claims were procedurally barred because they were denied by the California Supreme Court as untimely and successive under Clark).
This Court finds that Respondent has demonstrated that the Robbins timeliness bar and the Clark bar on successive petitions are independent and adequate state law grounds for purposes of federal habeas review. The burden therefore shifts to Petitioner to demonstrate cause and prejudice to overcome this procedural bar.
b. Petitioner has not demonstrated cause and prejudice to overcome the procedural default.
Petitioner argues, "To the extent that any claim ... is deemed ... procedurally or otherwise barred, it is as a result of the ineffective assistance of prior counsel (state trial, appellate, and/or the lack of state appointed habeas counsel) and/or inadequate state court funding for post-conviction proceedings," citing Martinez and Trevino. (SAP at 36-37 ¶ 102.) Respondent responds that Martinez is inapplicable here, because "Petitioner does not allege that post-conviction counsel, i.e. current counsel, was ineffective for failing to raise the relevant claims in his first counseled California Supreme Court petition," and "the default did not occur during an initial-review collateral review proceeding since Petitioner had filed pro se habeas petitions in other state courts before the default occurred." (Answer at 36-37 n.13.)
In Martinez, the Supreme Court did emphasize the limited nature of its holding, explaining:
The rule of Coleman governs in all but the limited circumstances recognized here. The holding in this case does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts. ... It does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial, even though that initial-review collateral proceeding may be deficient for other reasons.566 U.S. at 16; see, e.g., Bucci v. Busby, No. 11-3147, 2014 U.S. Dist. LEXIS 120206 at *33-34 n.4, 2014 WL 4249669, at *13 n.4 (E.D. Cal. Aug. 27, 2014) (finding Martinez inapplicable where the default "did not occur during initial-review collateral review proceedings" but rather "during petitioner's third round of state habeas"), R&R adopted, 2014 U.S. Dist. LEXIS 154182, 2014 WL 5501182 (E.D. Cal. Oct. 30, 2014).
Thus, this Court agrees that Martinez is not applicable to the procedural default of Grounds 4(b)-(d) and (f)-(h). Under Coleman, inadequacy of post-conviction counsel in the first round of counseled state habeas proceedings is not cause to excuse the default. Petitioner has not raised any other basis for finding cause and prejudice to excuse the default. Accordingly, these claims are procedurally defaulted because they were denied on independent and adequate state law grounds. C. Grounds 4(b)-(d) and (f)-(h): Whether Petitioner's Trial Counsel was Ineffective.
Even if these claims were not procedurally defaulted, the Court notes that they appear to lack merit.
Grounds 4(b)-(d) concern Petitioner's mental competency. In Ground 4(b), Petitioner argues that his trial counsel failed to investigate and pursue a present mental state defense to the criminal threat charge, which Petitioner argues could have negated the specific intent required for the crime. (SAP at 42-44.) In Ground 4(c), Petitioner argues that pre-trial counsel Tanner and trial counsel Avery failed to adequately investigate his competency and move for a competency hearing before trial and at sentencing. (SAP at 44-49; see also Counseled Objs. at 26-27.) In Ground 4(d), Petitioner argues that counsel was ineffective during plea negotiations because Petitioner "could not intelligently understand the plea offer on his own" due to his "several mental illnesses," but counsel nevertheless "advised [him] to accept the plea offer" without "clearly inform[ing] [Petitioner] about the nature of the plea offer...." (SAP at 49-50.)
As discussed above regarding Grounds 1 and 2 (in section V.B.), the trial court investigated Petitioner's competency to stand trial and found him competent. This finding is supported by the trial record. Neither of the mental health professionals who examined Petitioner diagnosed him with a specific mental illness that might have negated specific intent or cast doubt on Petitioner's ability to understand the state's plea offer. It is true that, when counsel requested an investigation into Petitioner's mental health in connection with his sentencing, counsel admitted he was unaware of the prior competency investigation and evaluations. (See 6 RT 2704-05 [after the court mentions the competency reports, Avery states, "I've never seen - I didn't know those existed. ... So he's already had 730."].) Even if this failure to familiarize himself with the court record constituted deficient performance, the trial court's ruling on Petitioner's competency makes it extremely unlikely that Petitioner could demonstrate prejudice. Moreover, since Petitioner did not accept the plea offer as counsel advised him to do, he likely could not show the necessary prejudice for Ground 4(d).
As discussed above, when the evaluations were performed, Petitioner was represented by different counsel, Tanner. Trial counsel, Avery, was brought on as standby counsel after Petitioner elected to proceed pro se.
In Ground 4(f), Petitioner argues that his trial counsel failed to object to the admission of Petitioner's 1993 manslaughter conviction. (SAP at 52-53.) Petitioner himself made a pre-trial motion to exclude the evidence of this conviction, but the court found it admissible as relevant to Craig's fear of Petitioner, for purposes of the criminal threats conviction. (See 2 RT G14-16 [Petitioner argued, "[U]nder the [California] Evidence Code 1101, a person's character or trait. I did not take the stand in the preliminary hearing; therefore, he is not allowed to bring up any of my criminal past or history...."].) When Petitioner urged counsel to object to the prosecutor mentioning the manslaughter conviction during opening statements, counsel explained that he was "not going to waste [his] time making objections that [he] already know[s] will be overruled." (3 RT 638- 39.) When the prosecutor asked Craig about the killing, counsel made a "continuing objection" to the line of questioning as substantially more prejudicial than probative. (4 RT 920.) Thus, because this issue was ruled on by the trial court, Petitioner cannot demonstrate prejudice. Moreover, to the extent counsel failed to object further, it appears to have been a reasonable tactical decision.
In Ground 4(g), Petitioner argues that his trial counsel "failed to make clear that Craig Robinson had been arrested at least twice for brandishing a weapon at" Petitioner. (SAP at 53.) Petitioner admits that counsel did cross-examine Craig about a prior confrontation between him and Petitioner, in which Craig threatened Petitioner with a shotgun and had been arrested. Petitioner contends that counsel appeared to confuse and conflate this with another, similar incident that occurred nine years prior. Petitioner fails to explain how he was prejudiced by counsel's failure to cross-examine Craig about a second, very similar incident, which was significantly more remote in time.
In Ground 4(g), Petitioner argues that his trial counsel failed to object to the sentencing enhancement based on the outdated 1993 conviction on the grounds that it violated the Ex Post Facto Clause. (SAP at 53-54.) As discussed supra regarding Ground 10 (in section VI.E.), the use of the enhancement did not violate the Ex Post Facto Clause. Counsel cannot be ineffective for failing to raise a meritless argument. // // // // // // // //
IX.
RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the District Court issue an Order: (1) approving and accepting this Amended Report and Recommendation; and (2) dismissing the Second Amended Petition with prejudice. DATED: April 30, 2019
/s/_________
KAREN E. SCOTT
United States Magistrate Judge