Opinion
C 99-3055 WHA (PR)
February 20, 2003
JUDGMENT
The court having entered a ruling today denying the petition for a writ of habeas corpus, judgment is entered in favor corespondent. Petitioner shall obtain no relief by way of his petition.
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 not filed a traverse. The matter is submitted.
STATEMENT
Petitioner was convicted by a jury of armed robbery and possession of meth-amphetamine. He was sentenced to prison for eight years and four months. As grounds for habeas relief he asserts that: (1) The trial court erroneously admitted petitioner's statements made without advisement of his rights under Miranda v. Arizona. 384 U.S. 436 (1966); (2) the court erred in failing to instruct the jury on admissions made by a defendant; (3) the court failed to instruct the jury on all elements of the crime of robbery; (4) the court erroneously instructed the jury on the definition of "reasonable doubt;" (5) the court failed to instruct the jury on all elements of the arming enhancement; and (6) the prosecutor committed reversible error by indirectly commenting on petitioner's failure to testify.
He also pleaded no contest to a charge of possession of a firearm by a felon and possession of a firearm by a misdemeanant. He also admitted violating his probation. These three cases were treated as one case on appeal. The issues here go to the robbery conviction.
Petitioner does not dispute the following facts, which are taken from the opinion of the state court of appeal.
At about 8:20 p.m. on March 24, 1996, Surjit Bonait and Balram Singh were working at the Quick and Easy store in Gilroy when two men wearing masks, jackets, and gloves entered. One man had a small gun. He ordered Singh to the floor and then ordered him to open the cash register. Signh complied but secretly pushed an emergency alarm button. The men took the cash drawer and fled, running toward the nearby Lyon's Restaurant. There was approximately $1,500 to $2,000 in the cash drawer, which also contained, among other things, a check that a customer named Medina had previously used to pay for some groceries. Neither Singh nor Bonait were able to identify the two robbers.
At the time of the robbery, Cecil Washington was outside on the balcony of his room at the Forest Park Inn (motel) across from the Lyon's Restaurant. He saw the two robbers escaping and heard the man carrying the cash register drawer yell, "Shawn." This robber then put down the drawer and removed a hooded sweatshirt and gloves, leaving them on the ground. A pickup truck drove out from behind the motel toward the two robbers. The man with the drawer jumped in the cab, and the other man jumped onto the truck bed. The truck sped out of the lot of and turned right.
Joanna Saive was outside the Lyons' Restaurant, where she works, when she saw the two robbers running through the bushes toward the motel parking lot. She went back into the restaurant, told her co-worker Rosemary Veigas that the Quick and Easy store had been robbed, and called 911. While making the call, she saw a small black pickup truck speed out of the parking lot and turn right onto the street. She called again after finding a gun, mask and clothing in the parking lot.
Rosemary Veigas ran outside after Saive reported the robbery and saw a midnight blue or black truck speed out of the parking lot, turn right, proceed for a while and then make a U-turn and head back. It turned into the lot of a Best Western Motel. Veigas saw a man run from the lot at the Forest Park Inn to the Best Western Motel. A minute later, she saw the truck leave the lot and turn right onto Leavesley Road. She identified the driver as a white man with short light or brown hair. She watched the truck enter Highway 101. Veigas also called 911.
The police arrived and spoke to Veigas and Saive, who then went back to work. About half an hour later, both women saw the same pickup truck drive back into the parking lot and stop near a swimming pool. She and Saive went outside and saw the driver exit the truck. They lost sight of him as he walked down a pathway by the motel. They quickly went to the truck, and Veigas wrote the licence number on her hand. The same man, later identified as defendant, emerged from the motel with his head down. Veigas and Saive returned to the restaurant followed by defendant. He had short light brown hair. Veigas identified defendant as the person who drove the truck back into the lot. Inside, defendant ordered coffee and sat at a booth. Saive left the restaurant and summoned Officer Rosa Rodriguez, who was still in the area investigating the robbery. Veigas pointed to defendant in the booth.
Officer Rodriguez approached defendant and asked for his name and some identification. Defendant identified himself but said he had no identification. Rodriguez asked defendant to go outside, and there questioned him further. He said he was from San Jose and had walked from there to Gilroy. He denied having driven the truck in the lot. Rodriguez frisked defendant and found a film canister containing bullets and keys. The keys opened the truck, and inside fellow officer Jack Robinson found, among other things, defendant's wallet, four plastic, baggies of methamphetamine, a pager, a pipe, and various papers.
Later, at the station, defendant was found in possession of Medina's check, food stamps, currency, and coins. Defendant's fingerprint was on the check. A test of defendant's blood revealed the presence of methamphetamine.
All references to "Ex." are to the exhibits respondent has lodged with the court.
DISCUSSION
A. Standard of reviewThe 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 state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d), only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 120 So. Ct. 1495, 1518, 1523 (2000). A state court decision is an "unreasonable application of Supreme Court authority, falls under the second clause of § 2254(d), if it correctly identifies the governing legal principle from the Supreme Court's decisions but "unreasonably applies that principle to the facts of the prisoner's case." Id. The federl court on habeas review may not issue the writ "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 1522. Rather, the application must be "objectively unreasonable" to support granting the writ. See id at 1521-22. The writ may be granted under the "unreasonable application of clause only when the court's "independent review of the legal question does not merely allow [the court] ultimately to conclude that the petitioner has the better of two reasonable legal arguments, but rather leaves [the court] with a `firm conviction' that one answer, the one rejected by the [state] court, was correct and the other, the application of the federal law that the court adopted, was erroneous — in other words that clear error occurred." Tran v. Lindsey, 212 F.3d 1143, 1152-54 (9th Cir 2000).
As to questions of fact, under 28 U.S.C. § 2254(d)(2), a federal habeas court may grant the writ if it concludes that the state court's adjudication of the claim 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.'" Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000) (quoting 28 U.S.C. § 2254(d)(2) and Williams. 529 U.S. at 412-13). The "clearly erroneous" standard of unreasonableness that applies in determining the "unreasonable application" of federal law under § 2254(d)(1) also applies in determining the "unreasonable determination of the facts in light of the evidence" under § 2254(d)(2). See id. at 1107-08 (citing Van Tran, 212 F.3d at 1153-54). To grant relief under § 2254(d)(2), a federal court must be "left with a firm conviction that the determination made by the state court was wrong and that the one [petitioner] urges was correct." Id at 1108 (quoting Van Tran, 212 F.3d at 1153-54) (internal quotation marks omitted).
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). This presumption is not altered by the fact that the finding was made by a state court of appeals, rather than by a state trial court. Sumner v. Mata, 449 U.S. 539, 546-47 (1981); Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001). A petitioner must present clear and convincing evidence to overcome § 2254(e)(1)'s presumption of correctness; conclusory assertions will not do. Id.
B. Issues Presented
1. Miranda claim Miranda requires that a person subjected to custodial interrogation be advised that he has the right to remain silent, that statements made can be used against him, that he has the right to counsel, and that he has the right to have counsel appointed. These warnings must precede any custodial interrogation, which occurs whenever law enforcement officers question a person after taking that person into custody or otherwise significantly deprive a person of freedom of action.Miranda v. Arizona, 384 U.S. 436, 444 (1966). General "on-the-scene questioning" concerning the facts and circumstances surrounding a crime or other general questioning of citizens during the fact-finding process do not trigger Miranda warnings, however. Id at 477-78. A violation of Miranda rights may be the basis for federal habeas relief, Hinman v. McCarthy, 676 F.2d 343, 348-49 (9th Cir. 1982), and such claims are not barred by Stone v. Powell Withrow v. Williams, 507 U.S. 680, 686-95 (1993).
At issue here is whether petitioner was in custody when he was questioned by officer Rodriguez. The state court's determinations regarding the historical facts, the circumstances surrounding the interrogation, are entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). See Thompson v. Keohane, 516 U.S. 99, 107-110 (1995) (interpreting 28 U.S.C. § 2254(d), the predecessor of § 2254(e)(1)). Whether, given the historical facts surrounding the interrogation, a reasonable person have felt he was not at liberty to terminate the interrogation and leave — that is, whether the petitioner was in custody — calls for application of the controlling legal standard to the historical facts and thus presents a mixed question of law and fact, to which the presumption of correctness does not apply. Id at 112-13.
Thompson was decided prior to enactment of the AEDPA. In this post-AEDPA case, the Court must consider whether the state courts' rejection of the federal claim was contrary to, or an unreasonable application of, clearly established Supreme Court authority, rather than conducting an independent review. See Van Tran, 212 F.3d at 1150 ( 28 U.S.C. § 2254(d)(1) applies to both questions of law and mixed questions of law and fact).
The following is the state court of appeal's summary of the facts surrounding the interrogation:
At the evidentiary hearing, Officer Rosa Rodriguez testified that at around 10 p.m. on March 24, 1996, she went to the Lyon's Restaurant to talk to defendant, who had been identified as a suspect in the robbery. She approached defendant and asked if they could talk. He agreed. She asked his name, and he said "Shane Thomas." She asked for identification, but he said he had none. She asked where he was from, and he said San Jose.
At this time, Officer Jack Robinson arrived and joined Rodriguez. Defendant appeared to be getting nervous, and Rodriguez asked that they go outside to talk. Rodriguez testified that she did not want to jeopardize the other people in the restaurant in the event defendant was armed. Defendant and the officers then left the restaurant, with defendant leading the way.
The officers and defendant stood outside, next to the door. Rodriguez then asked defendant how he got to Gilroy from San Jose. He said he walked. Rodriguez pointed to a truck in the parking lot and asked if it belonged to defendant. Defendant said he did no[t] know what Rodriguez was talking about. At that point, Rodriguez frisked defendant for weapons and found a film canister containing .22 caliber bullets. The officers then arrested defendant, handcuffed him, and put him into a patrol car.
Ex. D at 5-6.
"[I]n custody" means `"formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler. 463 U.S. 1121, 1125 (1983) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)). It requires that "a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave," as judged by the totality of the circumstances.Thompson, 516 U.S. at 112. The Ninth Circuit has identified several factors relevant to the "in custody" determination:
Pertinent areas of inquiry include [1] the language used by the officer to summon the individual, [2] the extent to which he or she is confronted with evidence of guilt, [3] the physical surroundings of the interrogation, [4] the duration of the detention and [5] the degree of pressure applied to detain the individual. Based upon a review of all the pertinent facts, the court must determine whether a reasonable innocent person in such circumstances would conclude that after brief questioning he or she would not be free to leave.United States v. Booth. 669 F.2d 1231, 1235 (9th Cir. 1981).
A review of the transcript of the hearing shows that the state court of appeal fairly summarized the facts as set out in the quotation above.See Ex. C., Vol. 2 at 224-249. The language used by the officers was polite and unintimidating; the officers did not accuse petitioner or attempt to confront him with evidence of his guilt; the questioning was very public, in a restaurant and then just outside the restaurant door; the duration appears to have been very brief, judging from the evidence of what questions were asked and actions taken; and little, if any, pressure was applied to detain petitioner so as to question him. As to this last point, officer Rodriguez testified that she asked petitioner "could we walk outside," although she was not sure those were her exact words, id. at 227, 231, that she was polite,id. at 226, and that she did not have her hand on her gun or have the holster unlatched, id. at 226-27, 229-30, 232. Considering the totality of the circumstances, the Court concludes that petitioner was not in custody when the questions at issue were asked, so his Miranda rights were not violated. Therefore, the state courts' conclusion to that same effect was not contrary to, or an unreasonable application of, clearly established Supreme Court authority. 2. Jury instruction regarding admissions
Petitioner contends that his due process rights were violated when the trial court failed to give CALJIC 2.71 sua sponte. CALJIC 2.71 defines an "admission" as a statement by the defendant which does not in itself acknowledge guilt but which tends to show guilt when considered with the rest of the evidence. The instruction tells the jury that evidence of an oral admission "not made in court should be viewed with caution." The "admissions" in question are petitioner's responses to officer Rodriguez's questions, discussed in the section above — that he was from San Jose, that he had walked to Gilroy, and that he had not been the driver of the pickup truck the officer pointed out in the parking lot. The state court of appeal concluded that because there was no evidence that petitioner did not make the statements or that they were other than as described by officer Rodriguez, and because the jury was given several other instructions regarding evaluation of witness testimony, the jury would not have entertained a reasonable doubt as to petitioner's guilt had they been told to view the evidence of his admissions with caution. Ex. D at 10-11.
Habeas relief can be granted on a legal question such as this only if the state court's adjudication of the claim "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." Petitioner has not pointed to any United States Supreme Court case which holds that a trial court must give an instruction similar to CALJIC 2.71 sua sponte, and the court has found no such case. Petitioner therefore cannot succeed on this claim.
As to the merits, it should be noted that petitioner did not request the instruction. Even when an instruction is requested and denied, refusal to give an instruction does not alone raise a ground cognizable in a federal habeas corpus proceedings. Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). The error must so infect the trial that the defendant was deprived of the fair trial guaranteed by the Fourteenth Amendment. Id The omission of an instruction is less likely to be prejudicial than a misstatement of the law. Walker v. Endell 850 F.2d at 475-76 (citing Henderson v. Kibbe, 431 U.S. at 155). Thus, a habeas petitioner whose claim involves a failure to give a particular instruction bears an "`especially heavy burden.'"Villafuerte v. Stewart 111 F.3d 616, 624 (9th Cir. 1997) (quoting Henderson v. Kibbe, 431 U.S. 145, 155 (1977)). Given that there was no evidence in the case that petitioner did not make the statements to officer Rodriguez, and that the trial court gave several other instructions regarding credibility of witnesses, petitioner has not met his heavy burden to show that failure to give the instruction regarding admissions denied him a fair trial.
For these reasons, the state courts' rejection of this claim was not contrary to, or an unreasonable application of, clearly established United States Supreme Court authority.
3. Robbery instruction
Petitioner contends that the jury instruction defining and setting out the elements of robbery was incomplete, and thus violated his due process rights. He asserts that the instruction which was given did not include the asportation element.
The instruction which was given was:
Defendant is accused in count 1 of having committed the crime of robbery, a violation of section 211 of the Penal Code. Every person who takes personal property in the possession of another[,] against the will and from the person or immediate presence of that person[,] accomplished by means of force or fear and with the specific intent permanently to deprive such person of such property[,] is guilty of the crime of robbery in violation of Penal Code Section 211.
Immediate presence means an area within the alleged victim's reach, observation or control, so that he or she could, if not overcome by violence or prevented by fear, retain possession of the subject property.
In order to prove such crime, each of the following elements must be proved:
1. A person had possession of property of some value[,] however slight[;]
2. Such property was taken from such person or from his immediate presence[;]
3. Such property was taken against the will of such person[;]
4. The taking was accomplished either by force or fear[;] and
[5.] Such property was taken with the specific intent to permanently deprive such person of the property.
Petitioner argues that in People v. Cooper. 53 Cal.3d 1158 (1991), the California Supreme Court determined that asportation continues as long as the robber is attempting to escape with the loot, ending only when he or she reaches a place of "temporary safety."Id. at 1165. In Cooper the defendant was charged on an aiding-and-abetting theory, as petitioner was here. The holding regarding duration of asportation was necessary in Cooper because at issue was whether the defendant there could be convicted when he did not aid and abet until after the actual taking had occurred (the defendant in Cooper was a getaway car driver who did not know there was going to be a robbery until after it occurred). Id. at 1160-61. Petitioner's theory is that because he was also charged on an aiding-and-abetting theory, an instruction regarding duration of asportation should have been given.
In this case the state court of appeal held that: (1) instructing in the terms of the statute is generally proper; (2) the instruction given mirrored the terms of the statute; (3) asportation does not depend on how far the stolen property is moved; (4) so the use of the word "take" in the instruction sufficiently conveys the idea of asportation. Ex. D at 13-14.
In addition, the court held that because the instruction as given was proper, petitioner's contention was in effect that the instruction required amplification as to the asportation element, and that under California law if a party feels that an instruction requires amplification he or she must request it. Id. at 14. Petitioner did not do so. Id.
That an instruction was erroneous under state law is not necessarily a due process violation. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). See, e.g., Stanton v. Benzler, 146 F.3d 726, 728 (9th Cir. 1998) (state law determination that arsenic trioxide is a poison as a matter of law, not element of crime for jury determination, not open to challenge on federal habeas review); Walker v. Endell 850 F.2d 470, 475-76 (9th Cir. 1987) (failure to define recklessness at most error of state law where recklessness relevant to negate duress defense and government not required to bear burden of proof of duress). To obtain federal collateral relief for errors in the jury charge, the petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. Estelle v. McGuire, 502 U.S. at 72; Cupp v. Naughten, 414 U.S. 141, 147 (1973): see also Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) ("[I]t must be established not merely that the instruction is undesirable, erroneous or even "universally condemned," but that it violated some [constitutional right].'").
In this case, petitioner's defense was not that his aiding and abetting occurred only after the asportation of the loot ended. His was an alibi defense, that he simply had nothing to do with the robbery. Given this, even if one assumes that the instruction was erroneous because of its failure to define when asportation ends, that omission could not have so infected the entire trial that the resulting conviction violated due process. There was no due process violation.
In addition, a jury instruction that omits an element of an offense is constitutional error subject to "harmless error" analysis. Neder v. United States, 119 S.Ct. 1827, 1831 (1999) (direct review);Spicer v. Gregoire, 194 F.3d 1006, 1008 (9th Cir. 1999) (§ 2254 case). Harmless error applies whether the error is characterized as a misdescription of an element of an offense in a jury instruction, or as an omission of the element. California v. Roy. 519 U.S. 2, 5 (1996) (omission of "intent" element from aiding and abetting instruction subject to harmless error analysis where jury could have found intent based on evidence it considered); Arreguin v. Prunty, 208 F.3d 835, 837 (9th Cir. 2000) (violation of possible state-law-created qualified liberty interest by misdescription or omission of element in special circumstances instruction cured by state appellate court's harmless error analysis; § 2254 case); United States v. Lin, 139 F.3d 1303, 1309 (9th Cir. 1998) (omission of intent element from charge of making ransom demands harmless error). The omission will be found harmless unless it `"had substantial and injurious effect or influence in determining the jury's verdict."' Roy, 519 U.S. at 4 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)); seeRoy v. Gomez, 108 F.3d 242, 242 (9th Cir. 1997) (on remand after California v. Roy).
Because in this case there was no issue as to how long the asportation of the stolen property took, the failure to instruct on California law under Cooper could not have been prejudicial underBrecht.
Because there was no due process violation and no prejudice, the state courts' rejection of this claim was not contrary to, or an unreasonable application of, clearly established United States Supreme Court authority.
4. Reasonable doubt instruction
Petitioner contends that the reasonable doubt instruction, which was the 1994 revision of CALJIC 2.90, violated due process. This contention was rejected in Lisenbee v. Henry, 166 F.3d 997, 999-1000 (9th Cir. 1999) (use of term "abiding conviction" in defining reasonable doubt is constitutionally sound). There was no due process violation.
5. Griffen error
In closing argument defense counsel commented on a check made out to the Quick and Easy store which was found in petitioner's possession. Counsel suggested that the check might has fallen from the cash register drawer as the robbers ran through the parking lot, and that petitioner "while he was walking, could have found it on the ground and picked it up." Ex. C at 449. In response, the prosecutor reminded the jurors of their duty to decide the case on the basis of the evidence, not speculation. Then he said: "Ladies and gentlemen, what evidence do you have that defendant picked up that check in that parking lot. What piece of evidence did you hear dome from that stand that he picked it up? Zero? So to speculate that he picked up is speculation." Id. at 455. It is this comment by the prosecutor that petitioner contends was an improper comment on petitioner's failure to testify. See Griffin v. California, 380 U.S. 609, 615 (1965).
a. Procedural default
Respondent contends that this claim was procedurally defaulted because no objection was made at trial. The state court of appeal held that failure to object waived Griffin error. Ex. D at 18. The Ninth Circuit has recognized and applied the California contemporaneous-objection rule in affirming denial of a federal petition on grounds of procedural default where there was a complete failure to object at trial. Vansickel v. White, 166 F.3d 953, 957-58 (9th Cir. 1999). Petitioner has not attempted to show cause and prejudice or a miscarriage of justice to avoid the procedural bar, see Coleman v. Thompson, 501 U.S. 722, 729-30 (1991), or otherwise attempted to avoid the bar. This claim is procedurally barred, b. Merits
Where a prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant's silence, or to treat the defendant's silence as substantive evidence of guilt, the defendant's privilege against compulsory self-incrimination is violated. Griffin, 380 U.S. at 615. While it is proper for the prosecution to address the defense arguments, a comment is impermissible if it is manifestly intended to call attention to the defendant's failure to testify, or is of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify. Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987) (citing United States v. Bagley, 772 F.2d 482, 494 (9th Cir. 1985). Habeas relief is appropriate if "(1) the commentary is extensive; (2) an inference of guilt from silence is stressed to the jury as a basis for the conviction; and (3) where there is evidence that could have supported acquittal." Jeffries v. Blodgett 5 F.3d 1180, 1192 (9th Cir. 1993) (citation omitted); see also United States v. Mende, 43 F.3d 1298, 1301 (9th Cir. 1995) (prosecutor's comments not improper where they simply reminded jury that defense had failed to present certain evidence); Guam v. Oieda, 758 F.2d 403, 407 (9th Cir. 1985) (courts will not reverse when prosecutorial comment is single, isolated incident, does not stress inference of guilt from silence and is followed by curative instructions).
Where the prosecutor's reference to the defendant's opportunity to testify is a fair response to a claim made by the defendant or his counsel, there is no violation of the privilege against self incrimination. United States v. Robinson, 485 U.S. 25, 30-34 (1988).
In this case the prosecutor's remark went to the state of the evidence — that there was no evidence that petitioner found the check on the ground — rather than directly to petitioner's failure to testify. See United States v. Castillo, 866 F.2d 1071, 1083 (9th Cir. 1988) (prosecutor may properly comment upon defendant's failure to present witnesses if comment not phrased to call attention to defendant's own failure to testify); United States v. Bagley, 772 F.2d 482, 494 (9th Cir. 1985) (no Fifth Amendment error when reviewing for plain error where prosecutor responded to defense contention that the government had not ruled out other possible users of Buick involved in bank robbery with the comment that if other explanations existed they would have been presented). The prosecutor's comment was not extensive and was not stressed as a reason for conviction. The comment was a fair response to defense counsel's argument; no Griffin error occurred. See United States v. Robinson, 485 U.S. at 30-34. In the absence of any violation of petitioner's constitutional rights, the state courts' rejection of this claim was not contrary to, or an unreasonable application of, clearly established Supreme Court authority.
6. Arming enhancement
Petitioner contends that the trial court failed to instruct on all elements of the arming enhancement. He contends that when a defendant who was not personally armed with a firearm is prosecuted on an aiding-and-abetting theory, the enhancement cannot be imposed unless it is shown that he knew that one of the other principals was armed. In short, he contends that knowledge that one or more of his confederates had a gun is a necessary element of his liability on the arming enhancement.
The short answer to this contention is that the state court of appeal held that knowledge is not an element in this situation, and that such holdings on matters of state law are binding on this court. See Hicks v. Feiock, 485 U.S. 624, 629 (1988). Thus the necessary prerequisite for petitioner's claim of constitutional error — that the trial court failed to instruct on an element of the crime under California law — is missing. The state courts' rejection of this claim was not contrary to, or an unreasonable application of, clearly established Supreme Court authority.
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.