Opinion
No. C 01-961 SI (pr)
September 23, 2002
JUDGMENT
The petition for writ of habeas corpus is denied.
IT IS SO ORDERED AND ADJUDGED.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS INTRODUCTION
This matter is now before the court for consideration of the merits of Germaine Sanders' pro se petition for writ of habeas corpus concerning his 1998 conviction in the Santa Clara County Superior Court. For the reasons discussed below, the petition will be denied.
BACKGROUND
A. The Crimes
Sanders was convicted of crimes committed about thirteen months apart. The first crime was the robbery of Minh Quynh Voss and her husband, Andy Tai Tran, on October 13, 1996. Voss and Tran, who worked at a card club in Emeryville and had been playing cards on the night of October 13, drove to their home in San Jose at about 4:00 or 4:30 a.m. Tran had about $3,500 cash and $8,000 in gambling chips in his pockets; Voss had about $200 in her purse. Tran pulled into the driveway, let Voss out of the car and drove the car into the garage. As Tran walked out of the garage and the garage door closed, two men jumped out of the bushes and robbed Tran and Voss at gunpoint. The robbers took cash, gambling chips, Voss' purse and watch and Tran's cell phone. One of the men was taller and one was shorter; both were black and both wore masks concealing their faces. Three days later, Sanders was stopped at a department store in Seattle, Washington, trying to use a credit card registered to Tran. The security officer who apprehended Sanders recovered from him a large amount of cash, five driver's licenses for other individuals, two credit cards issued to Tran, one credit card issued to Voss and a cell phone similar to that taken from Voss during the robbery. A police officer summoned to the department store searched Sanders and found $10,000 and a gold watch. Because he could not identify those items as having been stolen the officer returned the cash and cell phone to Sanders. Tran's cell phone record showed that a 1-2 minute call was made at 8:26 a.m. on October 13 (about 3-4 hours after the robbery) to the home of Sanders' wife, Jean Sanders.
A second criminal episode — the facts of which are essential to the analysis of one of Sanders' claims — was described in the California Court of Appeal's opinion:
On November 22, 1997, at about 10 p.m., Thach Ngoc Nguyen went to the Bay 101 gaming club. After staying less than hour [sic], he drove to his parents' apartment near Bowers and Chromite in Santa Clara. After parking his car, Nguyen had to walk east on Chromite, turn south on Bowers and walk some distance before reaching the entrance of the apartment complex on Bowers.
As soon as Nguyen exited his car, he heard footsteps behind him and turned around. He saw two people wearing masks running at him from across the street. The masks were made of "wool stuff" and, in court, Nguyen identified ski masks as being similar to the masks he saw.
Both men were black, and the taller man held a gun as he ran toward Nguyen. The man wore running shoes that resembled a pair shown to Nguyen in court.
The shorter man wore dark clothing and brown or dark leather casual shoes. The taller man stood in front of Nguyen while the shorter man stood behind him, and retrieved Nguyen's wallet from Nguyen's pocket, and then observed that "he's kind of broke." The shorter man took $4 from Nguyen's wallet and also took a pager that was similar to the one displayed in court. Nguyen identified a sports event stub also taken from his pants pocket.
The taller man asked Nguyen where he lived, and Nguyen pointed out his apartment. When the shorter man asked how many people lived there, Nguyen replied, "three." The shorter man also asked if there was any money in the house, and Nguyen said "no." One of the robbers told Nguyen to take them to the house, and Nguyen recalled the shorter robber saying, "let's go, let's go." Nguyen started walking in that direction, and one of the robbers held onto Nguyen's shoulder. Nguyen became more frightened at the prospect of what might happen to him and his parents once the robbers were inside the apartment.
When they arrived at the corner of Bowers and Chromite, a better lit and more public area approximately 33 feet from their last location, the two men stopped. The shorter man said there were police around. Nguyen could see a police car stopped at the traffic light. The two men turned their masked faces away from the police car.
As soon as the police car drove off, the shorter man took off his mask and ran a few steps back down Chromite. He paused and told the taller man to run also and the taller man complied.
Respondent's Exh. I, California Court of Appeal Opinion ("Cal. Ct. App. Opinion"), pp. 3-4. Sanders and his co-defendant, James Stevenson, were apprehended nearby that night.
Following a jury trial in 1998 in Santa Clara County Superior court, Sanders was found guilty of three counts of second degree robbery, two counts of assault with a deadly weapon, one court of aggravated kidnapping, and conspiracy. The jury also found that Sanders had personally used a gun in the robbery, assault with a deadly weapon and kidnapping crimes. He was sentenced on August 12, 1998 to a total prison sentence of life imprisonment with the possibility of parole plus 19 years and four months. Following his unsuccessful appeal and state habeas action, Sanders filed this action, seeking a writ of habeas corpus under 28 U.S.C. § 2254. His federal petition raised four claims: (1) his right to due process was violated because the evidence was insufficient to support the kidnapping for robbery conviction, (2) his right to due process was violated because the prosecutor engaged in misconduct in examining a defense witness, (3) his right to effective assistance of counsel was violated, and (4) cumulative error.
DISCUSSION
A. Standard of Review
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); see Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000).
B. Exhaustion
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c). The parties do not dispute that state court remedies were exhausted for the claims in the petition.
C. Claims
1. Sufficiency Of The Evidence Of Kidnapping For Robbery
Sanders challenges the sufficiency of the evidence to support his conviction of kidnapping for robbery. California Penal Code § 209(b)(1) provides for life imprisonment with the possibility of parole for "[a]ny person who kidnaps or carries away any individual to commit robbery." Critical to Sanders' habeas claim is another portion of § 209: "This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense." Cal. Penal Code § 209(b)(2). California courts have construed these two prongs (i.e., movement beyond that merely incidental to the crime, and movement that increases the risk of harm to the victim) as interrelated. The jury considers the scope and nature of the movement to determine whether the victim's movement is merely incidental. "This includes the actual distance the victim is moved. However, we have observed that there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong."People v. Rayford, 9 Cal.4th 1, 12 (Cal. 1994). The jury considers factors such as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the defendant's enhanced opportunity to commit more crimes in deciding whether the movement subjected the victim to a substantial increase in the risk of harm beyond that necessarily present in a robbery. Id. at 13. "The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased." Id. at 14.
In Sanders' case, the California Court of Appeal recited the above-mentioned law on kidnapping, surveyed the cases in the field, and applied the cases to Sanders' case to conclude that there was sufficient evidence of kidnapping for robbery.
In this case, Nguyen was confronted by two masked men (appellants), one of whom pointed a gun at him. After taking money from Nguyen, appellants forced him to walk approximately 33 feet, moved him from a darker area to one which was better lit and more public, and then stopped the asportation near the corner of Bowers and Chromite. Near that corner, appellants spotted a police car, and after it passed, they ran off.
Given these circumstances, we think it is clear that the first element of aggravated kidnapping was satisfied. Nguyen was moved approximately 33 feet and this is plainly not a minimal or insignificant distance. (See e.g. People v. Jones, supra 75 Cal.App.4th [616,] 629 (Cal.App. 1999) [movement of 40 feet not an insubstantial distance].) Further, the movement was obviously not merely incidental to the underlying robbery. This is evident based upon the fact that the robbery was completed before appellants forced Nguyen to walk the 33 feet.
Determining whether the evidence here satisfies the second prong — that is whether the movement substantially increased the risk of harm to Nguyen — is a decidedly more difficult task. However, after careful consideration, we believe that the evidence here was sufficient. We are persuaded by the fact that Nguyen was moved to a more public and better lit area — a traffic intersection — and that this fact increased the likelihood that Nguyen would attempt to escape. In other words, by moving Nguyen to a more public area, appellants created the very real likelihood that Nguyen might be tempted to make a dash for freedom. Such an action on Nguyen's part would have substantially increased his risk of harm since he could easily have been injured during his escape attempt. For example, Nguyen could have darted into traffic at the intersection and have been hit by an oncoming vehicle. Similarly, an escape attempt by Nguyen could have prompted appellants to draw their gun on him, or use other means of violence to prevent him from escaping, thereby increasing the risk that he would sustain serious injury. Finally, by moving Nguyen to the traffic intersection and a more public area, appellants risked the possibility that innocent bystanders could have acted to intercede in the crime, thereby making it more likely that appellants would resort to more violence to ensure that their crime would not be foiled.
As already noted, in People v. Jones, supra 75 Cal.App.4th 616 the court was persuaded that there was a substantial increase in the risk of harm to the victim based upon the fact that the defendant attempted to restrain the victim within her car. Similarly, in this case, by moving Nguyen toward a heavily traveled area, and thereby increasing the chance that Nguyen would try to escape, appellants substantially increased the risk of harm to Nguyen. As in In re Earley, supra, 14 Cal.3d 122, the asportation gave rise to dangers, not inherent in the robbery, that Nguyen might be involved in an auto accident, or he might attempt to escape. "The fact that these dangers did not materialize does not, of course, mean the risk of harm was not increased." [Citation omitted.]
Cal. Ct. App. Opinion, ¶. 10-12.
Sanders' sufficiency of the evidence claim actually raises two distinct questions. Did the California Court of Appeal give the kidnapping-for-robbery statute such an odd read that it violated Sanders' due process rights? If not, was there sufficient evidence to satisfy the two prongs of the kidnapping-for-robbery statute? The two questions get to the nub of Sanders' argument, which is not so much that there wasn't evidence that the victim was moved about 33 feet toward an intersection as that such movement doesn't amount to a kidnapping.
A federal habeas court generally will not revisit a determination of state law by the state appellate court. See Hicks v. Feiock, 485 U.S. 624, 629 (1988) (court is not free to review state court's determination of state law); cf. id. at 630 n. 3 (quoting West v. American Telephone Telegraph Co., 311 U.S. 223, 237-38 (1940) (determination of state law made by an intermediate appellate court must be followed and may not be "`disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise'")). Review of the state court's application of state law is not completely off-limits to the federal habeas court, however. Room remains under the Due Process Clause to remedy certain retroactive enlargement of the reach of a criminal statute by state judicial interpretation. See Mendez v. Small, No. 01-56188, slip op. 11907, 11915 (9th Cir. Aug. 14, 2002). "If a judicial construction of a criminal statute is `unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,' [the construction] must not be given retroactive effect." Bouie v. City of Columbia, 378 U.S. 347, 354 (1964) (citation omitted). The rationale of Bouie and its progeny rests on the core due process concepts of notice, foreseeability, and the right to fair warning of criminal penalties. Rogers v. Tennessee, 532 U.S. 451, 459 (2001) (judicial decision abolishing common law year-and-a-day rule — that no defendant could be convicted of murder unless victim died within a year and a day after defendant's act — was not unexpected and indefensible and therefore did not violate due process). The Bouie rule against judicial expansion of a statute is not an identical twin to the ex post facto rule against retroactive application of legislative changes expanding criminal laws. See Rogers, 532 U.S. at 458-61. There is an incremental and reasoned development of precedent in the common law that "presupposes a measure of evolution that is incompatible with stringent application of ex post facto principles. It was on account of concerns such as these that Bouie restricted due process limitations on the retroactive application of judicial interpretations of criminal statutes to those that are `unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.'" Rogers, 531 U.S. at 461.
The application of Penal Code § 209 to the facts of Sanders' case was not unexpected and indefensible by reference to the then-existing law. Long before Nguyen was robbed, California Supreme Court cases explained that the two prongs (i.e., movement beyond that merely incidental to the robbery and movement that increased the risk of harm to the victim) were interrelated and set out the various factors for the courts to consider in determining whether kidnapping for robbery had occurred. See Rayford, 9 Cal.4th at 12-14. The California court's review of Sanders' case did not unexpectedly depart from the Supreme Court precedent and was not an unexpected interpretation of § 209.
Sanders isolates various facts and argues that they individually are not sufficient — e.g., the victim was moved just 33 feet, the victim was moved to a more public place, the robbers put away the gun — but his argument fails to persuade because the California courts have long interpreted the two prongs of § 209 as interrelated. Thus, for example, because distance alone is not dispositive, an argument that isolates and argues just about the distance the victim was moved is not persuasive. See People v. Martinez, 20 Cal.4th 225, 233 (Cal. 1999) ("`there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong'").
Sanders' case did present an unusual fact pattern in that the victim was moved a short distance and moved to a more public location, but the California Court of Appeal's determination that this was sufficient for kidnapping for robbery was not an unexpected and indefensible construction of the statute. See, e.g., People v. Shadden, 112 Cal.Rptr.2d 826 (Cal.App. 2001) (moving victim nine feet, from front of store to back room, established asportation not merely incidental to rape); People v. Jones, 75 Cal.App.4th 616, 629 (Cal.App. 1999) (movement of victim 40 feet was not an insubstantial distance). And the California Court of Appeal did not depart abruptly from existing law when it explained how movement toward a more public place actually did increase the risk of danger because the victim might attempt to escape and that this would substantially increase the risk of harm because he could have been hit by a car or shot by his robbers, or an innocent bystander could have intervened and prompted more violence by the robbers against Nguyen.
The California Supreme Court had noted the increased risk of harm from an escape attempt when criminals force their victims into traffic inPeople v. Lara, 12 Cal.3d 903 (Cal. 1974). There, the robber forced his victim to drive him around at gunpoint. The court explained that such conduct substantially increased the potential for serious harm: "It takes but little imagination to envision the kind of events whose likelihood of occurrence is great in a situation of this kind. Ready examples include not only desperate attempts by the victim to extricate himself but also unforeseen intervention by third parties." Id. at 908 n. 4; see also In re Earley, 14 Cal.3d 122, 132 (Cal 1975) (robber drove victim 10-13 blocks while waving a gun at her and threatening to kill her; this "asportation gave rise to dangers, not inherent in robbery, that an auto accident might occur or that the victim might attempt to escape from the moving car or to be pushed therefrom by [the robber]").
The increased risk of harm by the movement was not a fanciful consideration. Nguyen was involuntarily moved in a direction toward his home after the robbers asked him where he lived, how many people were in the house and whether Nguyen kept money in his home. See RT 174-176, 213-214. The likelihood of the robbers gaining entry to that home was increased by having one of its residents in tow. The fact that the robbers never reached the home and never committed a robbery there does not mean that the possibility of that occurring cannot be considered in assessing whether the risk of harm increased. Even if the movement to the intersection could not be considered with regard to whether the robbers had an enhanced opportunity to commit more crimes, it could be considered in determining the danger inherent in the victim's foreseeable attempts to escape — a factor relevant in deciding whether the movement subjected the victim to a substantial increase in the risk of harm beyond that necessarily present in a robbery. See Rayford, 9 Cal.4th at 13. Nguyen was "scared" by the potential for danger to the other residents if the criminals gained access to the home, making him even more scared than he had been before the gun-wielding criminals started asking about his home. RT 176. The likelihood that Nguyen would try to escape would increase when he perceived the danger that lay ahead if he did not escape. Although it has some surface appeal, Sanders' contention that moving the victim toward a better lit and more public intersection did not increase the risk of harm ultimately fails to persuade because the combinations of fleeing crime victim and moving cars or fleeing crime victim and armed robbers can be so dangerous
The California Court of Appeal's decision was not an unexpected and indefensible application of § 209(b), either with reference to the actual wording of the statute or with reference to existing case law. The appellate court's application of § 209 did not violate Sanders' due process rights. Because it did not, the court next considers whether the California Court of Appeal's determination that there was sufficient evidence to support the verdict was contrary to or an unreasonable application of clearly established federal law.
The Due Process Clause "protects the accused against 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). A federal court reviewing collaterally a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt, but rather determines whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992), cert. denied, 510 U.S. 843 (1993). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt may the writ be granted.See Jackson, 443 U.S. at 324; Payne, 982 F.2d at 338. The "prosecution need not affirmatively `rule out every hypothesis except that of guilt,'" and the reviewing federal court "`faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Wright v. West, 505 U.S. 277, 296-97 (1992) (quoting Jackson, 443 U.S. at 326).
Applying the deferential standard of review in 28 U.S.C. § 2254(d), this court concludes that the California Court of Appeal's determination that there was sufficient evidence that the movement was not merely incidental to the commission of the underlying crime of robbery and that the movement increased the victim's risk of harm over and above that necessarily present in the robbery was not contrary to or an unreasonable application of clearly established federal law.
Evidence was presented that Sanders and his co-defendant moved Nguyen 33 feet. This distance was determined by a police sergeant who paced off the distance after Nguyen identified where he had started and stopped moving at the criminals' behest. RT 392-396. (Nguyen had estimated the distance at 3-4 meters at the preliminary hearing. RT 400.) The exact length of the movement is not the controlling factor. Rather, the court also examines the nature and scope of the movement as well as the context and environment in which the victim is forced to move. Rayford, 9 Cal.4th at 12. And Nguyen testified that he was involuntarily moved down the sidewalk to a better lit intersection from the darkened area where he was first accosted. The movement of the victim to this location increased the risk of harm to him over and above that necessarily present in the robbery because it raised the likelihood of an escape attempt. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of kidnapping for robbery proven beyond a reasonable doubt. The California Court of Appeal's decision that the brief movement to a more public place (i.e., the intersection) was sufficient evidence of movement not incidental to the crime and that the movement increased the risk of harm because of the increased danger of the victim trying to escape and being hit by a car or shot by the robbers was not an unreasonable application of clearly established federal law. Sanders is not entitled to the writ on his claim that the evidence was insufficient to support the kidnapping for robbery conviction.
2. Prosecutorial Misconduct
Sanders urges that the prosecutor engaged in misconduct in his cross-examination of defense witness Radiant Wedeman. Wedeman was Sanders' girlfriend and was called as a witness by the defense to provide an alibi for Sanders for the early morning time period during which Tran and Voss were robbed. Wedeman testified that Sanders had accompanied her to the hospital on October 12, 1996 for a pre-natal check-up and spent the night with her at her home in Alameda on October 12. Wedeman was pregnant with Sanders' child and gave birth to the child a week later.
Sanders argues that several areas of questioning were improper. The prosecutor asked Wedeman if she and Sanders were married ("no") and her age when she first became pregnant with Sanders' child ("16") three years earlier. RT 484, 487. The prosecutor elicited testimony from Wedeman that she and her child by Sanders stood to lose a lot financially and emotionally if Sanders was convicted and sent to prison. The prosecutor also followed up on Wedeman's statement that she was upset about Sanders' habit of going out 3-4 nights a week with Stevenson and not coming home until very late. The prosecutor was able to establish that Wedeman only knew of Sanders' comings and going about half the time and that Sanders often did what he pleased without regard for their relationship, although sometimes he was charming and nice. The prosecutor also probed Wedeman's inconsistent statements about how often she asked Sanders where he was going or where he had been — the prosecutor repeated Wedeman's statement to a police officer that "Germaine, he was the man. I mean, you know, he's the man. You're the woman. And you don't ask me where I'm going." RT 495.
The California Court of Appeal rejected Sanders' prosecutorial misconduct claim. That court did not decide whether the questioning was misconduct because, "even if there was misconduct such misconduct was harmless. The evidence against Sanders was overwhelming" Cal. Ct. App. opinion, p. 13. Sanders was found in possession of credit cards belonging to Tran and Voss, Tran's cell phone was used to call Sanders' wife, the DNA testing for the knit caps found near the scene of the Nguyen robbery resulted in a finding that the probability that some African-American males other than Sanders or co-defendant Stevenson contributed DNA to the knit caps was somewhere between 1-in-4,000 and 1-in-125,000. Cal. Ct. App. Opinion, p. 13; Resp. Exh. K (Cal.Ct.App. Order modifying opinion), p. 1.
The California Court of Appeal's decision that any error was harmless was not contrary to or an unreasonable application of clearly established federal law. The California Court of Appeal cited People v. Watson, 46 Cal.2d 818 (Cal. 1956), in concluding that it was "not reasonably probable a different result would have occurred in the absence of the alleged error." Cal. Ct. App. Opinion, p. 13. The Ninth Circuit has equated the Watson standard with that in Brecht v. Abrahamson, 507 U.S. 619 (1993), i.e., whether the error had a substantial and injurious effect or influence in determining the jury's verdict. See Bains v. Cambra, 204 F.3d 964, 971 n. 2 (9th Cir.), cert. denied, 531 U.S. 1037 (2000). The state appellate court applied the correct law and did so reasonably. The evidence was very strong against Sanders on both criminal episodes, and the prosecutor's probing into his girlfriend's relationship with him did not have a substantial effect or influence in determining the jury's verdict.
Moreover, this court does not believe the questioning arose to the level of prosecutorial misconduct. The questioning appears to be fair examination about Wedeman's bias in favor of Sanders, about how little she knew about Sanders' evening activities, and about whether Sanders was controlling her in her statements about his actions on the night in question. The prosecutor's questioning did not so infect the trial with unfairness as to make the resulting conviction a denial of due process.See Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998), cert. denied, 526 U.S. 1123 (1999) (improper questioning only amounts to unconstitutional prosecutorial misconduct if it so infects the trial with unfairness as to make the resulting conviction a denial of due process),citing Darden v. Wainwright, 477 U.S. 168, 181 (1986)); Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991) (only if there are no permissible inferences that the jury may draw from the evidence can its admission violate due process). Sanders is not entitled to the writ on this claim.
3. Ineffective Assistance of Counsel
Sanders argues that his trial counsel provided ineffective assistance when he "fail[ed] to object to the prosecutor's argument that a substantial increased risk of mental harm is sufficient to prove aggravated kidnapping." Petition, p. 6. He also argues that counsel was ineffective when he "fail[ed] to request a customized jury instruction that would have informed the jury that the increased risk of harm could only be based on an increased risk of physical harm" for the kidnapping count. Petition, attach., p. 3. The California Court of Appeal rejected the claim:
Appellants also contend that there was prosecutorial misconduct and instructional error because the jury was invited to use the increased risk of mental harm to convict appellants of aggravated kidnapping, and because the jury was invited to speculate upon the harm that might have occurred had Nguyen and appellants reached Nguyen's apartment. Sanders also claims trial counsel was ineffective for failing to object to alleged arguments by counsel and instructions suggesting an increased risk of mental harm is sufficient to prove aggravated kidnapping. The People state that the arguments and instructions contained no such suggestion. Our own review of the record supports the People's claim. Neither counsel's argument nor the jury instructions indicate that the jury was likely to rely upon an increased risk of mental harm as a basis for finding appellants guilty of aggravated kidnapping. In any event, since we conclude that the evidence was sufficient to show that there was an increased risk of physical harm to Nguyen, any error would clearly be harmless.
Cal. Ct. App. Opinion, p. 12 n. 2.
The Sixth Amendment to the U.S. Constitution guarantees not only assistance, but effective assistance, of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). The purpose of the right is to ensure a fair trial, and the benchmark for judging any claim of ineffectiveness is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. To prevail on an ineffective assistance of counsel claim, a habeas petitioner must show that (1) counsel's performance was "deficient," i.e., his "representation fell below an objective standard of reasonableness" under prevailing professional norms, id. at 687-88, and (2) prejudice flowed from counsel's performance, i.e., that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. See id. at 691-94. The relevant inquiry under Strickland is not what defense counsel could have done, but rather whether his choices were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998), cert. denied, 525 U.S. 1159 (1999). A lawyer need not file a motion or make an objection that he knows to be meritless on the facts and the law. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999) (to show prejudice under Strickland from failure to file a motion, petitioner must show that (1) had his counsel filed the motion, it is reasonable that the trial court would have granted it as meritorious, and (2) had the motion been granted, it is reasonable that there would have been an outcome more favorable to him); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (failure to take futile action can never be deficient performance), cert. denied, 519 U.S. 1142 (1997).
This court, like the California Court of Appeal, simply disagrees with Sanders' interpretation of the prosecutor's closing argument. On the issue of whether there was a substantial increased risk of harm, the prosecutor argued that with every step toward Nguyen's house, the more scared Nguyen became and the more the risk of harm increased. RT 571-572; 622. But, contrary to Sanders' assertion, the prosecutor did not argue that Nguyen being scared was an increased risk of harm itself. Rather, the prosecutor appears to have meant that the likelihood of harm would jump significantly if the kidnappers got their victim into his home where his parents were sleeping (e.g., that Nguyen would be subjected to further robbery, that Nguyen's parents would be robbed, or that violence would erupt once the kidnappers were in the confines of the residence), and the risk of that harm materializing increased with each step toward the destination. Also, the prosecutor's comments were relevant to understanding the likelihood that Nguyen's increasing fear would prompt him to try to escape and that was relevant to the increased risk of harm element. Finally, the comment was partially in response to the cross-examination of Nguyen in which defense counsel elicited testimony that Nguyen's fear level dropped a bit when the robbers put the gun away; the prosecutor suggested that the gun was not the only danger to Nguyen that night and urged that the danger of the kidnappers entering Nguyen's home was perceived to be an increasingly immediate threat as they drew closer to his home. The jury instruction did not instruct the jury that an increased risk of mental harm was sufficient; it referred to an increase in "the risk of harm to the person moved over and above that necessarily present in the crime of robbery itself." RT 547. Defense counsel's failure to object to the prosecutor's closing argument was not deficient performance and did not result in any prejudice to Sanders. And defense counsel's failure to request a more specific jury instruction on the increased risk of harm issue was not deficient performance and did not result in any prejudice to Sanders. Defense counsel did not have to take futile steps such as objecting to the argument and requesting a modified jury instruction.
The state appellate court's rejection of Sanders' ineffectiveness claim was not based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. See 28 U.S.C. § 2254(d)(2); Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). Sanders is not entitled to the writ on this claim.
4. Cumulative Error
In some cases, although no single trial error is sufficiently prejudicial to warrant reversal, the cumulative effect of several errors may still prejudice a defendant so much that his conviction must be overturned. See McDowell v. Calderon, 107 F.3d 1351, 1368 (9th Cir.) (cumulative effect of errors may deprive habeas petitioner of due process right to fair trial), amended, 116 F.3d 364 (9th Cir. 1997), vacated in part by 130 F.3d 833, 835 (9th Cir. 1997) (en banc); United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996) (prejudice resulting from cumulative effect of improper vouching by prosecutor, improper comment by prosecutor about defense counsel, and improper admission of evidence previously ruled inadmissible required reversal even though each error evaluated alone might not have warranted reversal). Cumulative error is more likely to be found prejudicial when the government's case is weak.See id.
No error was made at Sanders' trial that was sufficiently prejudicial on an individual basis to warrant relief. Even considering the effect of any errors cumulatively, this court is not left with the impression that the overall effect was a denial of due process. And the case against Sanders was quite strong. Sanders is not entitled to relief under the cumulative error doctrine.
CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus is DENIED. The clerk shall close the file.
IT IS SO ORDERED.