Opinion
No. C 99-3451 WHA (PR)
July 2, 2002
DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS
This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the writ should not be granted. Respondent has filed an answer and a memorandum of points and authorities in support of it, and has lodged exhibits with the court. Petitioner has responded with a traverse. The matter is submitted.
STATEMENT
Petitioner was convicted by a jury of robbery of a liquor store. Ex. 3 (Opinion of the Court of Appeal of California) at 1. As a result of California's "three strikes" law and other enhancements, he was sentenced to prison for thirty-one years to life. In the order to show cause the court dismissed several of petitioner's issues. Remaining are petitioner's contentions that: (1) The trial court erred in admitting evidence of his cocaine use; (2) the trial court erroneously admitted "unsanitized" versions of his prior convictions after he had testified; (3) the trial court improperly excluded evidence of prosecution witnesses' misdemeanor convictions for selling alcohol to minors; (4) there was insufficient evidence on the "force or fear" element of robbery; and (5) the trial court was required to give a unanimity instruction sua sponte.
All references to "Ex." are to the exhibits lodged with the court by respondent.
Plaintiff's challenge to the police stop, arrest and search and his claim that his motion to suppress should have been granted were dismissed because such claims are not cognizable in a federal habeas proceeding. See Stone v. Powell, 428 U.S. 465, 481-82, 494 (1976). Other claims were dismissed under Hendricks v. Vasguez, 908 F.2d 490, 491 (9th Cir. 1990), as vague or conclusory. Although petitioner has explained these issues to some extent in his traverse, and alleges in it that his constitutional rights were violated as to these issues, new grounds for relief cannot be presented in the traverse. Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994).
Petitioner was convicted of robbing a liquor store owned and run by Manijeh Eshagoff and her husband Eshagh Eshagoff. Ex. 2 at 134-135. Further facts of the case will be set out below in the discussion of individual issues, to the extent necessary to understanding of the issues.
DISCUSSION A. Standard of review
The petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), so the provisions of that act apply to it. See Lindh v. Murphy, 521 U.S. 320, 327,(1997), Jeffries v. Wood, 114 F.3d 1484, 1499-1500 (9th Cir.), cert. denied, 522 U.S. 93 (1997) ("justice and judicial economy are better served by applying the Act to cases filed after the enactment date."). Under the AEDPA a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d).
A district court must presume correct any determination of a factual issue made by a state court unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1).
B. Issues Presented 1. Admission of blood test results a. Background
Petitioner was charged with robbing a liquor store. Ex. 3 at 1. One of the liquor store owners, Manijeh Eshagoff, testified that she saw petitioner reach over the counter and take cash from a drawer which held lottery ticket receipts. Id. at 12. When petitioner reached for the drawer she stepped back because she was afraid that petitioner was going to hit her or do something to her. Id. at 21. She called to her husband, co-owner Eshagh Eshagoff, and they followed petitioner out the door. Id. Eshagh grabbed petitioner and attempted to retrieve the money. Id. at 21-22. When petitioner bent to pick up an organizer he had dropped, he pushed Eshagh away. Id. at 22. Eshagh lost his balance and fell; a witness testified that petitioner had pushed him. Id. Petitioner escaped. Id.
Petitioner was captured shortly after the crime. Id. at 2-3. A blood sample was taken within two hours or so of the crime. Id. at 6. An analysis of the sample showed a metabolite of cocaine, indicating petitioner had used cocaine within seven to seventy-two hours of the blood draw. Id. at 9.
The trial court allowed the prosecution, over objection, to cross-examine petitioner on his use of cocaine. Id. at 7-8. The prosecution also called the toxicologist who examined petitioner's blood sample. Id. She testified that petitioner had metabolites of cocaine in his blood, but no cocaine. Id. at 9. She also testified that cocaine stays in the body three to six hours and that euphoric effect of the drug lasts thirty minutes to an hour, and on average forty-five minutes. Id.
The court instructed the jury that evidence of other crimes, presumably referring to the evidence of petitioner's use of cocaine, was not to be considered to show that he was a person of bad character or had a disposition to commit crimes. Id. The instruction informed the jury that the evidence could be considered only as going to intent or motive. Id.
The Court of Appeal concluded that the admission of evidence of petitioner's cocaine use was error under state law. Id. It also held, however, that the error was harmless. Id. at 12. The court noted that petitioner's defense was that he simply did not reach over the counter and take the money — that the liquor store owners had fabricated the story because of racial prejudice. Id. at 12-13. The court held that the jury's verdict impliedly rejected petitioner's defense, noted that the owner's account of the robbery was corroborated by a customer's testimony, and emphasized that the cautionary instruction prohibited the jury from considering petitioner's other crimes as evidence of his disposition to commit crimes or as evidence of his bad character. Id. at 14. It therefore held, applying the California standard, that it was "not reasonably probable that a result more favorable to the defendant would have been reached in the absence of the erroneous admission of evidence of cocaine use by the defendant." Id.
The Court of Appeal held that because the toxicological evidence was that the effects of petitioner's cocaine use had worn off long before the crime, his use of cocaine was not relevant. Id. at 10. The court also held that in the absence of evidence of repeated cocaine use and lack of money to buy more, the evidence of a single use of cocaine was not relevant to motive. Id. at 11. It also held that the evidence was not proper impeachment. Id. at 11-12.
b. Analysis
In his petition petitioner contends only that the trial court committed "grievous error" in admitting the cocaine evidence. That is, he does not contend that admission of the evidence violated his federal constitutional rights. Respondent is correct that this presents only a state law question. A violation of state law is not grounds for federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). This claim will be rejected for that reason.
In his traverse petitioner contends for the first time that admission of the cocaine evidence violated his constitutional rights. An issue cannot be raised for the first time in a traverse. Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994).
Moreover, in his petition for review in the California Supreme Court petitioner cast this issue as he does here — as a matter of state law. Ex. 4 at 14-15. This issue could be recast as a due process claim easily enough, but such a claim would not be exhausted. The court may deny a petition on the merits even if it is unexhausted, however. 28 U.S.C. § 2254 (b)(2). Construing the claim as being that petitioner's due process rights were violated, it is without merit. The admission of evidence is not subject to federal habeas review unless a specific constitutional guarantee is violated or the error is of such magnitude that the result is a denial of the fundamentally fair trial guaranteed by due process. Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999). Failure to comply with state rules of evidence is neither a necessary nor a sufficient basis for granting federal habeas relief on due process grounds. Id. at 1031; Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). In short, although admission of the cocaine evidence at petitioner's trial violated state rules of evidence, that does not establish that it violated the constitution. The due process inquiry in federal habeas review is whether the admission of evidence was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Colley, 784 F.2d at 990.
See, e.g., Terrovona v. Kincheloe, 852 F.2d 424, 429 (9th Cir. 1988) (remanded to district court to determine if admission of evidence of prior conviction did not violate due process because trial court gave limiting instruction).
In this case the court gave a limiting instruction. Juries are presumed to follow a court's limiting instructions with respect to the purposes for which evidence is admitted. Aguilar v. Alexander, 125 F.3d 815, 820 (9th Cir. 1997). Extreme situations may arise, however, that defeat this presumption, when the instructions given will not be sufficient to overcome the prejudice from improperly admitted evidence. See e.g., Thomas v. Hubbard, 273 F.3d 1164, 1173 (9th Cir. 2002) (triple hearsay statement offered by law enforcement officer establishing motive and access to weapon was type of statement that jurors would be unable to consider for limited purposes only notwithstanding proper instruction). This is not such an extreme case. Construed as a due process claim, this claim is rejected as without merit.
2. Sanitizing prior convictions
The trial court allowed the prosecution to cross-examine petitioner about his prior convictions. Ex. 3 at 14-16. Petitioner had four prior convictions, two for robbery, one for auto theft, and one for attempted burglary. Id. at 14. The trial court initially said that the prosecution could refer to these only as "felonies," but later indicated they could be called "property crimes," and eventually allowed them to be identified by name. Id. at 14-15. The court based this decision on its conclusion that the nature of the crimes was admissible to show intent and state of mind, as well as for impeachment. Id. at 15-16. On appeal the state conceded error as to the trial court's holding that the nature of the prior offenses was admissible to show intent or state of mind. Id. at 16. The court of appeal held that petitioner had failed to properly preserve the issue for review because he had not objected to the trial court's change of heart regarding admission of the nature of the prior convictions. Id. at 16-17.
As with the previous issue, petitioner does not present any constitutional basis for this claim. Petitioner therefore raises only a state law question, which is not grounds for federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). This claim will be rejected for that reason.
As with the preceding claim, if a constitutional basis were read into this claim, it would be unexhausted. Nevertheless, in the interests of thoroughness the court will consider the obvious constitutional claim which could be implied from the facts, namely that petitioner's due process rights were violated by admission of the nature of his prior convictions. See Marshall v. Lonberger, 459 U.S. 422, 438-39 n. 6 (1983) (permitting a jury to hear evidence of prior crimes or bad acts may violate due process). Because this claim will be rejected, it can be considered even though it is not exhausted. See 28 U.S.C. § 2254 (b)(2).
Respondent contends that the claim is procedurally barred by the court of appeal's holding that it was not preserved. Petitioner's counsel did not object to the revised ruling on how the prosecution could describe the prior convictions. Respondent is correct. See Vansickel v. White, 166 F.3d 953, 957-58 (9th Cir. 1999) (claim procedurally barred based on California's contemporaneous objection rule). Melendez v. Plifer, 288 F.3d 1120, 1126 (9th Cir. 2002), is not to the contrary; in that case, an objection was made, but the court in its discretion declined to rule upon it on grounds it was not made at the earliest possible time. In this case, there was no trial objection at all.
Petitioner does not attempt to show cause and prejudice or a miscarriage of justice, grounds for ignoring the bar. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
In addition, the petitioner has cited no United States Supreme Court authority establishing a constitutional requirement that prior convictions be sanitized, and the court has found none. Construed as a due process claim, this claim is without merit.
Old Chief v. United States, 519 U.S. 172 (1977), involved introduction of the nature of a prior offense to prove an element of the crime, and was based entirely on the Federal Rules of Evidence rather than the Constitution.
3. Exclusion of victims' prior misdemeanor convictions
Petitioner contends that the trial court erroneously excluded evidence that the owners of the liquor store had been convicted of the misdemeanor of selling liquor to minors and a witness's testimony that he had bought liquor at their store while underage. Ex.3 at 17. This claim suffers from the same defects as the preceding two — petitioner alleges no constitutional basis for the claim, and because he also did not do so in state court, any constitutional claim would be unexhausted. This claim is rejected for that reason.
Even if claims under the Sixth Amendment's Confrontation Clause and the Fourteenth Amendment's Due Process Clause were read into the facts alleged by petitioner, such claims would have no merit. Although petitioner does have a due process and Sixth Amendment right to put on a defense, See DePetris v. Kiukendall, 239 F.3d 1057, 1062 (2001), that right is not absolute, see Taylor v. Illinois, 484 U.S. 400, 410 (1988). In this case the proposed evidence was not particularly probative and the trial court did not abuse its discretion under California law in excluding the evidence under California Rule of Evidence 352. Ex. 3 at 19-20. The state has a substantial interest in efficient conduct of the trial, avoidance of collateral or confusing issues, and enforcement of its evidentiary rules. Perry v. Rushen, 713 F.2d 1447, 1453-54 (9th Cir. 1983) (no violation of compulsory process to prohibit evidence of third party identity because evidence collateral and state interest in evidentiary rule overriding). In these circumstances, exclusion of the evidence did not violate petitioner's rights.
Under California law, misconduct evincing moral turpitude, including conduct that resulted in conviction of a misdemeanor, is admissible as to credibility. People v. Wheeler, 4 Cal.4th 284, 295 (1992). Evidence of a misdemeanor conviction, however, is hearsay as to the misconduct underlying the conviction, and the conviction itself is not impeaching. Id. at 299-300. (Pursuant to a California evidentiary rule, felony convictions are not hearsay, so they can be offered simply by way of proof of conviction to show commission of the impeaching underlying conduct. Id. at 298-99.) Because it is only the conduct, not the conviction itself, which is impeaching, in the absence of a similar exception for misdemeanors, impeachment by a showing that the witness engaged in misdemeanor misconduct requires establishing the facts of the misconduct, rather than simply the fact of conviction. Id. at 297 n. 7. Such misconduct is "a less forceful indicator of immoral character or dishonesty" and the added complexity of proof may increase the time consumed by the impeachment and increase the risk of confusion, factors which are relevant under California Rule of Evidence 352, which was used by the court here to exclude the evidence. See id. at 296-97.
4. Sufficiency of the evidence
Petitioner contends there was not sufficient evidence on the "force or fear" element of robbery sustain his conviction.
A state prisoner who proves that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt is entitled to federal habeas relief. Jackson v. Virginia, 443 U.S. 307, 324 (1979). A federal court reviewing collaterally a state court conviction "determines only whether, `after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992) (quoting Jackson, 443 U.S. at 319). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt may the writ be granted. Jackson, 443 U.S. at 324; Payne, 982 F.2d at 338; Miller v. Stagner, 757 F.2d 988, 992-93 (9th Cir.), amended, 768 F.2d 1090 (9th Cir. 1985), cert. denied, 475 U.S. 1048, and cert. denied, 475 U.S. 1049 (1986); Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir.), cert. denied, 469 U.S. 838 (1984).
Here there was direct testimony that the robbery victim was put in fear. Manijeh Eshagoff testified that petitioner was a "very big man." Ex. 2 at 172. When he reached over the liquor store counter to grab the money from the lottery drawer, she backed away from the register because "I got scared." Id. at 154. She made no attempt to stop him because "I was scared." Id. at 160. Also, when the petitioner and Eshagh were scuffling for the money outside the store, petitioner's "purse" (referred to as an organizer at times) fell to the ground. Manijeh was scared to reach for it because of petitioner's size. Id. at 171-72. Manijeh also testified that petitioner pushed her when they were outside the store. Id. at 174-75.
Because the question of whether a defendant has been convicted based on insufficient evidence is central to the basic question of guilt or innocence, state courts must take more than a perfunctory look at the relationship between the evidence presented and the verdict for a state court's application of Jackson v. Virginia, 443 U.S. 307 (1979), to be found reasonable within the meaning of 28 U.S.C. § 2254 (d)(1). Michell v. Prunty, 107 F.3d 1337, 1339 n. 3 (9th Cir.), cert. denied, 522 U.S. 913 (1997), overruled in part on other grounds, Santamaria v. Horsley, 133 F.3d 1242 (9th Cir. 1998) (en banc). For example, it is not reasonable for the state court to affirm a conviction based on testimony that is clearly rejected by the verdict. Id. In this case the state court, in reciting the evidence supporting the verdict on the force or fear element, noted that an independent witness testified that petitioner pushed Eshagh, causing him to fall, but that Eshagh could not remember whether he was pushed. Ex. 3 at 22. The state court's noting of this point, which weakens one part of the prosecution's evidence, indicates that its analysis was not perfunctory. Whether petitioner did or did not push Eshagh, that was only one incident of several which go to the force or fear element, however.
There was sufficient evidence on the "force or fear" element. The state court's rejection of this claim was not contrary to, or an unreasonable application of, established United States Supreme Court authority.
5. Unanimity instruction
Petitioner asserts that the trial court should have given a unanimity instruction. Once again, petitioner does not allege in this court any constitutional basis for this claim, nor did he in state court. Any constitutional basis which might be read into the claim would be unexhausted. This claim is rejected as alleging only a state law violation.
Even if a due process claim were read into petitioner's allegation, it would have no merit. Here petitioner could have been found to have used force or fear either at the outset of the crime, when he frightened Manijeh Eshagoff into backing away from him as he reached over the counter into the cash drawer, or he could have been found to have used it moments later, when the Eshagoffs chased petitioner outside the store and confronted him. Petitioner's claim is that the trial court should have instructed the jury that they had to unanimously agree which of these two possibilities met the "force or fear" element of robbery.
There is no federal constitutional requirement that state juries be unanimous. Apodaca v. Oregon, 406 U.S. 404, 411-12 (1972) (plurality opinion). That does not dispose of the issue here, however. Petitioner's point is that the jury should have been instructed that it had to agree which of the events satisfied the "force or fear" element; because California does in fact require unanimous juries, a shorthand description of this contention is that a "unanimity" instruction should have been given on this point.
Generally, a jury need not unanimously agree as to the means by which a defendant committed a crime. Schad v. Arizona, 501 U.S. 624, 632 (1991) (plurality opinion). Due process does, however, place some limits on a state's capacity to define different courses of conduct as alternative means of committing a single offense. Id. However, "there is no requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict." McKoy v. North Carolina, 494 U.S. 433, 449 (1990) (concurrence). The Supreme Court has illustrated this with a hypothetical with some resemblance to the issue here. In Richardson v. United States, 526 U.S. 813 (1999), the Court said:
Where, for example, an element of robbery is force or the threat of force, some jurors might conclude that the defendant used a knife to create the threat; others might conclude he used a gun. But that disagreement — a disagreement about means — would not matter as long as all 12 jurors unanimously concluded that the Government had proved the necessary related element, namely, that the defendant had threatened force.
Id. at 817 (dictum).
In this case, the alternative events which might have been taken to satisfy the "force or fear" element are closer to being "preliminary factual issues" than the (apparently rather extreme) differences in means which might violate due process. Cf. Schad, 501 U.S. at 633 (suggesting that due process would not permit a state to convict someone on a charge "so generic that any combination of jury findings of embezzlement, reckless driving, murder, burglary, tax evasion, or littering, for example, would suffice for conviction.") (dictum); Richardson v. United States, 526 U.S. 813, 817 (1999) ("federal jury need not always decide unanimously which of several possible sets of brute facts make up a particular element, say, which of several possible means the defendant used to commit an element of the crime.") (citing Schad, a due process case). Petitioner's claim is without merit.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. The clerk shall close the file.
IT IS SO ORDERED.