Opinion
Civil No. 05cv2252-DMS(NLS).
March 29, 2006
REPORT AND RECOMMENDATION
On December 12, 2005, petitioner Matilda Viel, proceeding through counsel, Charles R. Khoury, Jr., filed a Petition for Writ of Habeas Corpus. Respondent filed an Answer to the Petition on February 6, 2006, and petitioner filed a Traverse on March 8, 2006. Respondent argues the Petition should be dismissed because it includes an unexhausted claim and because petitioner cannot establish the state court's adjudication of the underlying criminal action is contrary to or an unreasonable application of clearly established Supreme Court law. For the reasons outlined below, it is recommended the Petition be DENIED with prejudice.
Background
The following facts are taken from the California Court of Appeal's unpublished opinion on direct appeal in People v. Viel, No. D044101 (Cal.Ct.App., 4th App. Dist., Div. One):
On October 25, 2003, Billy Moore was waiting for a $2,500 check from the County of San Diego (County) for his youth organization called Mongoose Boxing/Any Body Can Youth Foundation (ABC). On that date ABC had a storefront operation located in a building at 2581 Imperial Avenue in San Diego, with a large sign reading "Mongoose Boxing Gym" and "ABC, Any Body Can" over its doorway. Another doorway in that building provided access to upstairs apartments. Mail for ABC and the apartments was deposited into a basket behind the doorway to the apartments. The building's owner usually hand-delivered the mail to ABC and the building's other tenants. Moore did not receive the check on October 25.
At about 1:15 p.m. on October 25, Viel and a male companion entered USA Check Cash (USA), a check cashing business located at 941 Broadway in downtown San Diego. She approached USA's check cashing window and told James Amerael, USA's store manager, `I'd like to cash this check.' She handed Amerael a check in the amount of $2,500 payable to `ABC (Any Body Can).' [Petitioner's] name did not appear anywhere on the check. Amerael asked her where she got the check. [Petitioner] replied: `Oh, it was just sent to me.' He asked her: `Do you know where it came from?' She replied, `No.' She said the County sent it to her and that she wanted to cash it. When Amerael asked her for identification, she presented a Florida identification card. He asked her to sign the back of the check and she did. Amerael told her because the amount of the check exceeded his approval limit, he needed approval from his supervisor to cash it. She nonchalantly replied, `Fine.' Amerael then called his supervisor and police. During this time, Viel's male companion appeared to be watching the door and asked Amerael whether there was a `problem' and what was `taking so long.' Amerael told him he was getting approval from his supervisor and he said, `Okay.' Police arrived within a few minutes. Amerael pointed out [petitioner] and her companion and gave the check to police. Amerael's conversations with [petitioner] and her companion were conducted entirely in English.
An information charged [petitioner] with burglary (§ 459), forgery (§ 475, subd. (C)), and receiving stolen property (§ 496, subd.(a)). It also alleged she had three prison priors (§§ 667.5, subd. (b), 668).
At trial [petitioner] testified in her defense, speaking through an interpreter. She stated she was born in Cuba and her native language was Spanish. She came to the United States in 1981. Although she speaks a `little bit' of English, she cannot read and write English. She reads and writes only Spanish, having completed the seventh grade in Cuba. In October 2003 she was living in an upstairs apartment in the building at 2581 Imperial Avenue, having moved there in December 2002. She knew there was a boxing gym downstairs, identifying it as `Mongo Boxing.' She testified: `I know that's the name because I see the mail they receive and it says Mongo Boxing.' She described how she received her mail. The postal worker separated each tenant's mail with an advertising flyer and placed it in the building's common mail basket. On October 25 she received three letters in her mail-two telephone bills and the $2,500 check.
She opened the check's envelope and saw that it said, `Any Body Can exchange it.' [Petitioner] explained: `[I]t [i.e., the check] said it in the area where it says `this is payable to,' and it said any — it can be paid to any person.' The check also bore the address of 2581 Imperial Avenue, which she confirmed was her address. [Petitioner] testified she and her boyfriend took the check to USA, where she asked the male employee if the check was able to be exchanged there. The employee asked for identification and told her to wait. Police arrived shortly thereafter. [Petitioner] explained her intent on entering USA:
`Well, I thought the check, I had received it, I thought it was for me. And I wanted to ask him if that kind of checks, what — that kind of check really was because I didn't know that kind of check.'
She testified that she had not seen a type of check called a warrant before. She said she had seen Moore in the gym below her apartment and had given him letters before when requested by the building's owner. She denied ever seeing the sign over the gym's storefront.
On cross-examination, [petitioner] admitted that in 1992 she was convicted in two cases of possession of cocaine for sale. She testified she knew the $2,500 check said `Any Body' because her boyfriend speaks better English and told her that. However, she admitted she could read the letters `ABC' on the check, because those letters were the same in English as in Spanish. She admitted she never worked for Moore. When asked whether she had ever worked for the County, she answered:
`Well, I was collecting some information for the homicide department and I gave information about a big case to Investigator Maria Rivera. And it was difficult for her to find the real guilty party because they didn't know very well how the crime had been committed, and I help[ed] her out because the criminal party was with us there.
`So when I gave that information to her, she came to my house, she caught the one that had caught a gentleman because she told me `you can make some money doing that.' So I thought that it had been her that had sent me that check for having given her the information about that criminal.'
She admitted she had given her name to Rivera, and knew Rivera worked for the San Diego Police Department, but thought that department might belong to the County. Reading the first line of the check, [petitioner] stated it said `Any' and `Body' and added `my boyfriend told me that this said any person can cash it.'
The jury convicted [petitioner] of burglary and forgery charges, but found her not guilty of the receiving stolen property charge. The trial court sentenced [petitioner] to a two-year middle term for the burglary, a concurrent two-year middle term for the forgery, and three consecutive one-year enhancements for the prison priors, for a total term of five years.
This Court relies on these facts pursuant to Title 28, United States Code, section 2254(e)(1). See also Parks v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness); Summer v. Mata, 449 U.S. 539, 547 (1981) (stating deference is owed to findings of state trial and appellate courts); Tinsley v. Borg, 895 F.2d 520, 524-525 (9th Cir. 1990) (holding factual findings of state trial and appellate courts are entitled to presumption of correctness on federal habeas corpus review).
Procedural History
On January 28, 2004, a jury found petitioner guilty of burglary and forgery. (Lodgment No. 1, at 49-50.) Petitioner filed a timely notice of appeal, and her conviction was affirmed by the California Court of Appeal in an unpublished decision dated April 20, 2005. (Lodgment No. 14.) In her opening brief before the California Court of Appeal, petitioner argued she was denied due process under the Fourteenth Amendment of the federal Constitution based on a combination of two alleged prejudicial errors. (Lodgment No. 3.) First, petitioner argued the jury was erroneously given a motive instruction (CALJIC 2.51). Second, petitioner claimed the prosecutor made improper comments during summation and rebuttal arguments suggesting her poverty and joblessness gave her a motive to commit the crimes charged. Based on California law, the California Court of Appeal agreed the jury had erroneously been instructed on motive but concluded there was no prejudice which would require reversal under California law. The California Court of Appeal also found there was no federal constitutional error. (Lodgment No. 14, at 10-20.) Thereafter, petitioner sought review by the California Supreme Court, but the California Supreme Court summarily denied review on August 10, 2005. (Lodgment No. 21.) In her petition for review before the California Supreme Court, petitioner essentially raised the same arguments she previously presented to the California Court of Appeal. (Lodgment No. 19.)While her direct appeal was pending before the California Court of Appeal, petitioner also filed a petition for writ of habeas corpus in the California Court of Appeal. (Lodgment Nos. 5 and 15, at 1.) The California Court of Appeal denied the petition in an unpublished opinion filed April 20, 2005. (Lodgment No. 15.) Petitioner raised two main arguments in her state habeas petition before the California Court of Appeal. (Lodgment No. 5.) First, petitioner argued her trial counsel was ineffective in violation of the Sixth Amendment to the federal Constitution because of a failure to object to the motive instruction and the prosecutor's improper comments about petitioner's poverty and joblessness, and because of a failure to locate a material witness to corroborate petitioner's testimony. Second, petitioner argued cumulative prejudice in violation of due process under the Fourteenth Amendment of the federal Constitution based on trial counsel's alleged errors. In supplemental briefing, petitioner also argued counsel was ineffective for failing to request an instruction on good faith mistake, and the trial court erred by not sua sponte instructing the jury regarding ignorance or mistake of fact. (Lodgment Nos. 9, 11, 12, 13) Petitioner then sought review by the California Supreme Court, but review was summarily denied on August 10, 2005. (Lodgment No. 22.) The petition for review essentially raised the same issues which were raised in the California Court of Appeal. (Lodgment No. 20.)
Petitioner filed her federal Petition on December 12, 2005 seeking review of the issues she raised on direct appeal and in her state habeas petitions. The federal Petition includes four grounds for relief: (1) in violation of due process the jury was erroneously given a motive instruction (CALJIC 2.51) based on petitioner's poverty and joblessness and the prosecutor improperly argued to the jury petitioner's motive for the crimes charged was poverty; (2) in violation of due process the trial court erroneously failed to instruct the jury as to the defense theory of mistake of fact (CALJIC 4.35); (3) in violation of the Sixth Amendment right to effective assistance of counsel, petitioner's trial counsel was ineffective because he did not interview a material witness, did not object to the motive instruction, and failed to request an instruction on the defense theory of mistake of fact; and (4) in violation of due process and the Sixth Amendment right to effective assistance of counsel, petitioner's defense was prejudiced as a result of cumulative trial errors. On December 27, 2005, approximately two weeks after the federal Petition was filed with this Court, petitioner filed a separate document entitled "Points and Authorities and Argument Supporting Petition for Writ of Habeas Corpus." (Doc. No. 4.)
Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-806 (1991).
Discussion
I. Exhaustion.
The exhaustion of available state remedies is a prerequisite to a federal court's consideration of claims presented in a habeas corpus proceeding. 28 U.S.C.A. § 2254(b) (West 2006); Rose v. Lundy, 455 U.S. 509, 522 (1982). Respondent argues petitioner's fourth ground for relief claiming prejudice as a result of cumulative trial errors is unexhausted because it was not fairly presented to the California Supreme Court. According to respondent, this claim was not fairly presented because petitioner now relies on two federal cases, but these cases were not cited in his petition for review before the California Supreme Court. Respondent also argues petitioner's cumulative error claim was not fairly presented in state court because his petition for review before the California Supreme Court did not articulate "a specific federal legal theory" and did not cite a "specific federal constitutional amendment." (Resp.'s PsAs, at 6.)
"A petitioner must properly exhaust his state remedies by fairly presenting his federal claim in the state courts and thereby giving those courts an opportunity to act on his claim." Peterson v. Lampert, 319 F.3d 1153, 1155-1156 (9th Cir. 2003). To fairly present a federal claim in state court, a petitioner must specifically identify a federal legal theory and describe the operative facts supporting relief so the state court has a "`fair opportunity' to apply controlling legal principles to the facts bearing upon [the petitioner's] constitutional claim." Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005), quoting Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003). The claims raised by the petitioner in state proceedings must be specifically characterized as federal claims. Castillo, 399 F.3d at 999, citing Lyons v. Crawford, 232 F.3d 666, 670 (2000), as modified by 247 F.3d 904 (9th Cir. 2001). In this regard, "citation to either a federal or state case involving the legal standard for a federal constitutional violation is sufficient to establish exhaustion." Castillo, 399 F.3d at 999. In other words, "citation to a state case analyzing a federal constitutional issue serves the same purpose as a citation to a federal case analyzing such an issue." Id. "In short, the petitioner must have either referenced specific provisions of the federal constitution or cited to federal or state cases involving the legal standard for a federal constitutional violation." Id.
Contrary to respondent's argument, petitioner fairly presented her federal claim of cumulative error to the California Supreme Court. In her petition for review before the California Supreme Court, petitioner cited to specific amendments of the U.S. Constitution. Petitioner alleged "cumulative prejudice" as a result of errors by counsel, the trial judge, and the prosecutor in violation of the Sixth Amendment of the U.S. Constitution and in violation of "due process" under the Fourteenth Amendment of the U.S. Constitution. (Lodgment No. 20, at 24.) Second, petitioner cited to state cases in support of her cumulative error claim, but the analysis in at least two of these cases was based, in part, on federal constitutional law. See, e.g., People v. Sanchez, 12 Cal.4th 1, 60 (1995) (denying federal and state claim of cumulative error because petitioner did not sustain burden of establishing any of his claimed errors); People v. Herring, 20 Cal.App.4th 1066, 1077 (1993) (weighing cumulative effect of improper comments by prosecutor in closing arguments and finding prejudicial error requiring reversal based on federal constitutional law). Accordingly, this Court finds petitioner has exhausted all claims in the Petition and will consider petitioner's cumulative error claim on the merits.
II. Scope of Review.
The Petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Williams v. Taylor, 529 U.S. 420, 429 (2000); Lindh v. Murphy, 521 U.S. 320, 326-327 (1997). Under AEDPA, a federal habeas petition cannot be granted with respect to any claim adjudicated on the merits in state court unless the adjudication resulted in a decision that (1) was contrary to, or involved an unreasonable application of clearly established federal law; or (2) was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d) (West 2006).
"A federal habeas court may issue the writ under the `contrary to' clause if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts." Bell v. Cone, 535 U.S. 685, 694 (2002), citing Williams v. Taylor, 529 U.S. at 405-406. "The court may grant relief under the `unreasonable application' clause if the state court correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case." Bell, 535 U.S. at 694. The Supreme Court has also held that "[t]he `unreasonable application' clause requires the state court decision to be more than incorrect or erroneous." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). See also Woodford v. Visciotti, 537 U.S. 19, 24-27 (2002); Bell v. Cone, 535 U.S. at 698-699. "The state court's application of clearly established law must be objectively unreasonable." Andrade, 538 U.S. at 75.
According to the Supreme Court, "objectively unreasonable" is not the same as "clear error," because "[t]he gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness." Id. In other words, "a federal habeas court 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 76. See also Chia v. Cambra, 360 F.3d 997, 1002-1008 (9th Cir. 2004) (finding the state court's application of clearly established federal law was "objectively unreasonable" pursuant to Andrade); Clark v. Murphy, 331 F.3d 1062, 1071 (9th Cir. 2003) (concluding the state court's application of federal law was not "objectively unreasonable" given "[t]he very fact that circuit courts have reached different results on similar facts").
IV. Instructional Error. A. Motive Instruction.
During trial, petitioner testified in her own defense. On cross-examination, the prosecutor elicited the following testimony from petitioner about her financial condition:
Q. Did you have rent to pay at the apartment?
A. Yes, I do pay rent.
Q. And did you have to buy food?
A. Well, yes.
Q. And at that time, how were you paying for your rent and your food?
A. I receive a check from Social Security.
* * * *
Q. And you were not employed at that time; correct?
A. No.
(Lodgment No. 2, Tr. at 119.)
The prosecutor requested an instruction on motive. (Lodgment No. 2, Tr., at 127.) Prior to closing arguments, petitioner's trial counsel was asked whether she objected to the motive instruction, and she indicated she did not. (Lodgment No. 2, Tr., at 128.) The jury was instructed as follows with a modified version of CALJIC No. 2.51:
Motive is not an element of any of the three crimes charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty.
(Lodgment No. 14, at 7; Lodgment No. 2, Tr., at 142.)
During closing argument, the prosecutor stated as follows:
You also have to look at the motive, ladies and gentlemen. Sometimes you, um — motive is just a reason for doing it. And does she have a reason? Well, sure. She's unemployed. She, you know, needs money. Quite frankly, I think almost anyone could use $2500. But in this particular case, she's unemployed, she's not working. And her motive is very simple: $2500 is a lot of motive — money. She had the motive and she had the opportunity to commit this crime and she did.
(Lodgment No. 2, Tr. at 149-150.)
Petitioner does not complain about the admission of evidence of her financial condition into evidence. Rather, petitioner alleges prejudice as a result of the combined effect of the motive instruction given to the jury and the argument by the prosecutor about her financial condition. Petitioner argues the motive instruction and the prosecutor's argument unconstitutionally allowed and encouraged the jury to consider her poverty and unemployment as a motive for the crimes charged. Based on California law, which prohibits consideration of evidence of a defendant's poverty to establish motive, the California Court of Appeal concluded "the trial court erred by instructing on motive." (Lodgment No. 14, at 10.) The California Court of Appeal reasoned poverty and unemployment "cannot constitute substantial evidence of motive" so it "cannot support an instruction on motive." (Lodgment No. 14, at 10.) However, the California Court of Appeal concluded there was no federal constitutional error.
Petitioner argues the California Court of Appeal erroneously concluded there was no federal constitutional error. According to petitioner, the California Court of Appeal's conclusion on this issue is contrary to clearly established federal law because the Fourteenth Amendment prohibits "invidious discrimination in the courts due to poverty." (Pet.'s PsAs, at 7.) To support her position, petitioner cites the Supreme Court's decision in Griffin v. Illinois, 351 U.S. 12 (1956). According to respondent, petitioner's reliance on the Supreme Court's decision in Griffin is misplaced because that case has nothing to do with considering poverty as a motive to commit a crime. Respondent argues there is no clearly established Supreme Court law finding it unconstitutional for a jury to consider poverty as a motive to commit a crime, and as a result, petitioner cannot satisfy the AEDPA standard.
Contrary to petitioner's contention, the Supreme Court's decision in Griffin v. Illinois does not clearly establish it is a violation of due process for a jury to consider poverty or unemployment as a motive for committing a crime involving financial gain. Petitioner's interpretation of Griffin is much too broad. Griffin involved an indigent defendant's right of access to the courts. In Griffin, the Supreme Court considered whether it was a violation of due process "to deny adequate appellate review to the poor while granting such review to all others." 351 U.S. at 13. The petitioners in Griffin were indigent defendants convicted of robbery who argued they were effectively denied appellate review of trial errors because the state required them to pay for a copy of the trial record in order to appeal but they had no means to do so. Id. at 13-16. Noting appellate review had become "an integral part" of the state's trial system, the Supreme Court concluded the due process clause had been violated because "the ability to pay costs in advance bears no rational relationship to a defendant's guilt or innocence and could not be used as an excuse to deprive a defendant of a fair trial." Id. at 17.
In the context of federal criminal trials, and based on the Federal Rules of Evidence and the Federal Rules of Criminal Procedure, the Ninth Circuit has held "evidence of poverty or poor financial condition is inadmissible to prove motive where it is offered to show `the mere fact that the defendant is poor.'" United States v. Romero-Avila, 210 F.3d 1017, 1022 (9th Cir. 2000), quoting United States v. Bensimon, 172 F.3d 1121, 1129 (9th Cir. 1999). "To be admissible . . . poverty evidence must be accompanied by something more, such as an `unexplained, abrupt change in circumstances.'" Romero-Avila, 210 F.3d at 1022, quoting Bensimon, 172 F.3d at 1129. These and other similar Ninth Circuit cases have endorsed the " traditional view that evidence of poverty is not admissible to show motive, because it is of slight probative value and would be unfairly prejudicial to poor people charged with crimes." Romero-Avila, 210 F.3d at 1022, quoting United States v. Mitchell, 172 F.3d 1104, 1108 (9th Cir. 1999) (emphasis added). The reasoning behind this view was explained by the Ninth Circuit in Mitchell:
Similar to the California Court of Appeal, the Ninth Circuit has also found admission of such evidence is subject to harmless error analysis. Id. at 1110-1111 (indicating a reversal is appropriate "for the objected to error in admitting the poverty evidence unless it is more probable than not that the error did not materially affect the verdict").
Poverty as proof of motive has in many cases little tendency to make theft more probable. Lack of money gives a person an interest in having more. But so does desire for money, without poverty. A rich man's greed is as much a motive to steal as a poor man's poverty. Proof of either, without more, is likely to amount to a great deal of unfair prejudice with little probative value.Id. at 1108-1109. However, these cases are not controlling precedents under AEDPA because they are not clearly established law as determined by the United States Supreme Court. "Under AEDPA we must look to the direct precedent of the Supreme Court of the United States. 28 U.S.C. § 2254(d)(1)." Casey v. Moore, 386 F.3d 896, 907 (9th Cir. 2004). See also Sims v. Rowland, 414 F.3d 1148, 1151 (9th Cir. 2005). Under these circumstances, this Court cannot conclude it was objectively unreasonable or contrary to clearly established Supreme Court law for the California Court of Appeal to determine there was no federal constitutional violation based on the combined effect of the motive instruction and the prosecutor's closing arguments concerning petitioner's financial condition.
Petitioner also argues the California Court of Appeal's decision is contrary to clearly established federal law because the wrong harmless error standard was applied. The California Court of Appeal found an error under state law but determined it was harmless under the standard set forth in People v. Watson, 46 Cal.2d 818, 836 (1956) ( i.e., whether it is reasonably probable the jury would have reached a more favorable result absent the error). Because he believes there was a federal constitutional error, petitioner believes the California Court of Appeal's harmless error analysis should have been conducted pursuant to the higher standard set forth in Chapman v. California, 386 U.S. 18, 23-24 (1967). "The Chapman standard is a `harmless beyond a reasonable doubt' standard applied (at least for direct appeals) by all courts (state and federal) in reviewing constitutional magnitude, trial type errors." Bains v. Cambra, 204 F.3d 964, 971 n. 3 (9th Cir. 2000). However, as outlined above, clearly established Supreme Court law does not indicate there was a constitutional violation based on the combined effect of the motive instruction and the prosecutor's closing arguments concerning petitioner's financial condition. As a result, the California Court of Appeal did not apply the wrong harmless error standard. Under AEDPA, this Court defers to the California Court of Appeal's harmless error analysis unless it was contrary to clearly established Supreme Court law or "objectively unreasonable," "which requires a showing of error greater than clear error." Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). See also Mitchell v. Esparza, 540 U.S. 12, 16 (2004); Inthavong v. Lamarque, 420 F.3d 1055, 1058-1059 (9th Cir. 2005). Petitioner merely argues in conclusory fashion prejudice is apparent because of the strong inference petitioner was "more likely guilty because she was poor." (Pet.'s PsAs, at 8.) Petitioner has not presented any reason why this Court should find the California Court of Appeal's harmless error analysis was contrary to Supreme Court law or objectively unreasonable.
Even if she could establish the California Court of Appeal's decision is erroneous because a federal constitutional violation did occur based on the combined effect of the motive instruction and the prosecutor's comments, petitioner would not be entitled to relief. If a federal constitutional violation could be established, this Court would conduct an independent review and consider whether the trial type error was prejudicial by applying the harmless error standard set forth by the Supreme Court in Brecht v. Abrahamson, 507 U.S. 619, 636-638 (1993). Bains, 204 F.3d at 977. Under Brecht, a federal constitutional, trial type error is harmless unless it had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637. "Harmless error determinations are highly fact-specific. They often involve a review of the entire trial record. Under Brecht, [courts] will often make numerous independent evaluations about the weight and sufficiency of the various items of evidence, the inference to be drawn, and the different theories of the case." Inthavong, 420 F.3d at 1061.
Assuming for the sake of analysis there was a due process violation, a review of the record in its entirety shows there was no prejudice under the Brecht harmless error standard. For essentially the same reasons outlined in the California Court of Appeal's harmless error analysis, the transcript of petitioner's trial indicates the impact of the motive instruction and the prosecutor's comments was insubstantial when the record is viewed as a whole. Most importantly, petitioner testified in her own defense, and the jury had an opportunity to assess her credibility. The case turned on the issue of intent, as well as petitioner's credibility on this issue, because petitioner admitted entering USA Check Cash with the check in question and asking the clerk, "Can you cash this check?" (Lodgment No. 2, at 123.) As the California Court of Appeal noted, "[t]he crucial issue at trial was [petitioner's] intent when she entered USA and attempted to cash the check" but petitioner's "testimony was internally conflicting and also conflicted with other evidence." (Lodgment No. 14, at 14.) In addition, the prosecutor was able to impeach petitioner's credibility with testimony indicating she had two prior felony convictions. Essentially, this Court agrees with the California Court of Appeal's analysis concluding the impact of the motive instruction and the prosecutor's comments about petitioner's financial condition were harmless because of weaknesses in the defense combined with the strength of the evidence supporting the jury's verdict. (Lodgment No. 14, at 13-15.) Citing inconsistencies in petitioner's testimony, as well as other evidence, the California Court of Appeal concluded the jury "justifiably doubted the credibility of [petitioner's] testimony" and would not have reached a more favorable verdict if "the trial court excluded its instruction on motive and had the prosecutor not argued in closing that she had a motive to commit those offenses based on her poverty and unemployment." (Lodgment No. 14, at 15-16.)
In sum, petitioner did not cite, and this Court could not locate, any clearly established Supreme Court law, holding it is a violation of due process for a jury to consider evidence of poverty or unemployment on the issue of motive to commit a crime involving financial gain. Even if petitioner could establish a federal constitutional error based on the combined effect of the motive instruction and the prosecutor's comments about petitioner's financial condition, petitioner would not be entitled to relief. A review of the record indicates petitioner suffered no prejudice as a result of the motive instruction and the prosecutor's comments. As a result, it is recommended the district court DENY petitioner's claim of prejudice in violation of due process as a result of the combined effect of a motive instruction given to the jury and argument by the prosecutor suggesting poverty and unemployment was a motive for the crimes charged.
B. Mistake of Fact Instruction.
Petitioner contends the trial court erred when it did not sua sponte instruct the jury as follows based on the evidence presented at trial:
An act committed or an omission made in ignorance or by reason of a mistake of fact which disproves any criminal intent is not a crime. Thus, a person is not guilty of a crime if [he] [she] commits an act or omits to act under an actual [and reasonable] belief in the existence of certain facts and circumstances which, if true, would make the act or omission lawful.
(Lodgment No. 14, at 16; CALJIC No. 4.35.) When, as in this case, the defendant is charged with a specific intent crime, a notation for CALJIC No. 4.35 indicates the instruction should be given without the bracketed words "and reasonable." (Lodgment No. 14, at 17 n. 10.)
Petitioner contends the trial court had a duty to give the mistake of fact instruction to the jury sua sponte because there was substantial evidence to suggest she had a mistaken belief she was entitled to cash the check. Although she told two separate, inconsistent stories, petitioner's testimony does indicate her defense was mistake of fact. Petitioner testified she thought she was entitled to cash the check because it was made payable to "Any Body Can," which meant anyone was entitled to cash it. (Lodgment No. 2, at 112, 115, 125-126.) She also testified she had given helpful information to the police in a homicide investigation and had been told she could "make some money doing that." (Lodgment No. 2, at 123.) Even though her name was not on the check and the check was made out to "ABC, Any Body Can," she claimed she thought the check had been sent to her by the police because she provided the information. (Lodgment No. 2, at 63, 78, 123.)
Assuming for the sake of analysis the trial court should have instructed with CALJIC No. 4.35, the California Court of Appeal concluded the error "was harmless because the jury necessarily resolved that factual question adversely to [petitioner] under other, properly given instructions." (Lodgment No. 14, at 17.) In reaching its conclusion, the California Court of Appeal relied on California Supreme Court case law. "[B]y finding [petitioner] had the requisite specific intents for burglary and forgery," the California Court of Appeal reasoned "the jury necessarily rejected [petitioner's] defense theory (of ignorance or mistake of fact) that she believed the check was payable to her and therefore she had the right to cash the check. Had the jury found [petitioner's] defense theory to be persuasive it would not have found she acted with the requisite specific intents for burglary (i.e., the specific intent to commit theft or forgery) and forgery (i.e., the specific intent to defraud another person)." (Lodgment No. 14, at 18-19.)
Petitioner argues the California Court of Appeal reached an "unreasonable conclusion" because "there was no other instruction which dealt with either a reasonable or unreasonable mistake of fact and its affect on specific intent." (Pet.'s PsAs, at 11.) Respondent contends petitioner is not entitled to relief because she cannot satisfy the AEDPA standard. According to respondent, the California Court of Appeal reasonably concluded any error in not giving the mistake of fact instruction was cured by other appropriate instructions. Even if there was an error, respondent argues petitioner is not entitled to relief because any error was harmless.
Under clearly established federal law, due process requires defense instructions be given "only when the evidence warrants such an instruction." Hopper v. Evans, 456 U.S. 605, 611 (1982). Under California law, trial courts have a duty to instruct sua sponte regarding a defense "`only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.'" People v. Breverman, 19 Cal.4th 142, 157 (1998), quoting People v. Sedona, 10 Cal.3d 703, 716 (1974). A two-step analysis is necessary to find a constitutional violation based on an omitted jury instruction. First, a federal habeas court must find the instruction should have been given. Second, a federal habeas court must find the omission "so infected the entire trial that the resulting conviction violates due process." Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Murtishaw v. Woodford, 255 F.3d 926, 971 (9th Cir. 2001), quoting Cupp v. Naughten, 414 U.S. 141, 146 (1973). If a violation of due process occurred, habeas relief is not available unless the error had "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637.
The California Court of Appeal's analysis on this issue is in accord with the Supreme Court's decision in Henderson v. Kibbe. The defendants in Henderson robbed an intoxicated man and then "abandoned him on an unlighted, rural road [at night], still in a state of partial undress, and without his coat or his glasses. 431 U.S. at 147. The temperature was near zero, visibility was obscured by blowing snow, and snow banks flanked the roadway." Id. Thereafter, the man was struck and killed by a passing vehicle. Id. The defendants were convicted of grand larceny, robbery, and second degree murder but challenged only the murder conviction on collateral review in federal court. Id. at 148. Under state law, a person was guilty of second degree murder if he recklessly engaged in conduct which created a "grave risk of death," thereby causing death. Id. The defense theory, as explained by counsel during argument, was the death was caused not by the defendants but by the negligence of the driver of the vehicle that struck the man and the defendants "could not have anticipated the fatal accident." Id. at 148 n. 4. In contrast, the prosecution argued the defendants caused the man's death because it was foreseeable and would not have occurred absent the defendants' reckless conduct and "depraved indifference to human life." Id. at 148 n5.
The issue before the Supreme Court in Henderson was whether the trial court's "failure to instruct the jury on the issue of causation was constitutional error requiring a Federal District Court to grant habeas corpus relief." Id. at 147. During trial, neither party requested an instruction on the meaning of cause, and "no such instruction was given." Id. at 149. The trial court did, however, explain the meaning of some of the other terms used in the indictment and statute. Id. The defendants argued the jury might have reached a different result had they been properly instructed on the complex question of causation, and it was likely the omission of an appropriate instruction resulted in the jury's failure to make an essential factual determination. Id. at 152. The Supreme Court rejected both arguments based on "[a] fair evaluation of the omission in the context of the entire record." Id. Citing its earlier decisions in Cupp v. Naughten, 414 U.S. 141, 146-147 (1973) and Boyd v. United States, 271 U.S. 104, 107 (1926), the Supreme Court noted "a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . [A] judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction." Henderson, 431 U.S. at 152 n. 10. The Supreme Court in Henderson also noted "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law" and "[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court." Id. at 154-155.
Looking to the content of the instructions given, the Supreme Court in Henderson concluded it would not have affected the verdict if the jury had been given an additional instruction which, based on state law, would have advised causation was established only if the defendants should have foreseen the ultimate harm. Id. at 155-156. The Supreme Court reasoned the jury necessarily resolved the issue of causation adversely to the defendants based on other instructions that were given. More specifically, recklessness was one of the elements of the charge, and the jury had been advised the defendants had acted recklessly if they were "aware of and consciously disregard(ed) a substantial and unjustifiable risk" that death would occur. "A person who is `aware of and consciously disregards' a substantial risk must also foresee the ultimate harm that the risk entails. Thus, the jury's determination that the [defendants] acted recklessly necessarily included a determination that the ultimate harm was foreseeable," and it was logical to assume the jury would have responded to an additional instruction on causation in a manner consistent with the issues comprehensively explained and determined adversely to the defendants. Id. at 156.
Similar to the Supreme Court in Henderson, the California Court of Appeal in this case looked to other relevant instructions given to the jury on the matters charged. First, the jury was instructed the defendant is guilty of the crime of burglary if she entered a building "with the specific intent to commit the crime of theft or forgery . . . In order to prove the crime . . . the prosecution must prove beyond a reasonable doubt . . ." the defendant "entered a building" and "had the specific intent to commit the crime of theft or forgery." (Lodgment No. 2, Tr., at 139.) The jury was further instructed there must have been "a union or joint operation of the defendant's act of entering a building and the defendant's specific intent to commit the crime of theft or forgery." (Lodgment No. 2, Tr., at 139.) Second, the jury was instructed the defendant is guilty of the crime of forgery if she possessed a completed check or county warrant "with the specific intent to utter or pass or facilitate the utterance or passage of the same, in order to defraud any person. . . . In order to prove this crime, the prosecution must prove beyond a reasonable doubt . . . 2. The defendant had the specific intent to pass or facilitate the passage or utterance of the completed check or county warrant; and 3. The defendant had the specific intent to defraud another person. . . . An intent to defraud is an intent to deceive another person for the purpose of gaining some material advantage over that person, or to induce that person to part with property, or to alter that person's position to his or her injury or risk and to accomplish that purpose by some false statement, false representation of fact, wrongful concealment or suppression of truth, or by an other artifice or act designed to deceive." (Lodgment No. 2, at 140.) In addition, as to each of these charges, the jury was instructed as follows: "Unless this specific intent exists, the crime to which it relates is not committed." (Lodgment No. 2, Tr., at 139, 140.)
As the California Court of Appeal concluded, the jury's finding of guilt as to these two charges necessarily means the jury did not believe petitioner's testimony she mistakenly believed she was either entitled to cash the check because it was made payable to "Any Body Can" (Lodgment No. 2, at 112, 115, 125-126), or because the check was sent to her by the police for giving helpful information in a homicide investigation. (Lodgment No. 2, at 63, 78, 123.) In other words, it only stands to reason the jury would not have found petitioner guilty of burglary and forgery if they believed her testimony she thought she was entitled to cash the check because such a belief would have negated the specific intent element of burglary and forgery. Under these circumstances, it is not likely a mistake of fact instruction would have resulted in a more favorable verdict for petitioner. Nor is it likely such an instruction would have been helpful to petitioner given the previously discussed weaknesses in her defense and the strength of the evidence supporting the jury's verdict.
Based on the foregoing, this Court cannot conclude the California Court of Appeal's decision on this issue was objectively unreasonable or contrary to clearly established Supreme Court law. As a result, it is recommended the district court DENY petitioner's claim her right to due process was violated because the trial court did not sua sponte give a specific instruction to the jury on her mistake of fact defense.
V. Ineffective Assistance of Counsel.
The United States Supreme Court has recognized the Sixth Amendment right to counsel exists in order to protect the fundamental right to a fair trial. Gideon v. Wainwright, 372 U.S. 335, 343-344 (1963). In addition, the Supreme Court has held "the right to counsel is the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). To prevail on a claim of ineffective assistance of trial counsel, a petitioner must establish counsel's performance fell "outside the wide range of professionally competent assistance" and "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686-687, 690 (1984); Crotts v. Smith, 73 F.3d 861, 865 (9th Cir. 1996). "This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. "[T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Id. at 688.
The Strickland standard requires courts assessing ineffective assistance of counsel claims to make "every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. A habeas petitioner must overcome a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and "the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955).
To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must also show his counsel's deficient performance prejudiced his defense. Strickland, 466 U.S. at 687. Prejudice is established if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. "In undertaking this assessment, we must assess the `totality of the evidence.'" Pirtle v. Morgan, 313 F.3d 1160, 1172 (9th Cir. 2002), quoting Strickland, 466 U.S. at 695. Because a petitioner must prove both elements of the Strickland test in order to prevail, courts may reject an ineffective assistance of counsel claim if it finds counsel's performance was reasonable or the claimed error was not prejudicial. Strickland, 466 U.S. at 687.
Petitioner cites three reasons why she believes her trial counsel was ineffective. The first two of these reasons are a restatement of the due process claims discussed above: (1) counsel failed to object to the prosecutor's remarks suggesting petitioner was motivated by poverty to commit the crimes charged and to the corresponding motive instruction; and (2) counsel failed to request a mistake of fact instruction which was important to the defense theory of the case. The third reason is that counsel did not interview and subpoena a police investigator, Maria Rivera, who would have corroborated petitioner's testimony she believed the check was sent to her by the police because she provided helpful information in a homicide investigation. In support of her ineffective assistance of counsel claim, petitioner submitted a declaration of her trial counsel for consideration by the California Court of Appeal. (Lodgment No. 15, at 5.) Essentially, counsel's declaration states she had no tactical reason for any of the claimed trial errors. In the declaration, counsel also states she did not attempt to contact the police investigator to corroborate petitioner's testimony about possible reward money from the police. In addition, petitioner submitted a declaration by the police investigator which corroborates petitioner's testimony she gave helpful information in a homicide investigation and states she told petitioner "she could get money from law enforcement for help such as the help she gave me in my investigation." (Lodgment No. 15, at 6.) However, Ms. Rivera's declaration states petitioner "said she did not want money for her help." (Lodgment No. 15, at 6.)
The California Court of Appeal assumed for the sake of analysis trial counsel's performance was deficient but concluded petitioner was not entitled to relief because she did not meet her burden of establishing prejudice. (Lodgment No. 15, at 6.) With respect to the first two claimed errors of counsel, the California Court of Appeal essentially relied on its previous analysis of these claims to support its finding petitioner could not establish prejudice. (Lodgment No. 15, at 6-14.) The California Court of Appeal also concluded there was no prejudice as a result of counsel's failure to contact Ms. Rivera because the jury would still have had reason to doubt petitioner's credibility even if Ms. Rivera provided corroborating testimony. As outlined above, this Court must defer to the California Court of Appeal's decision unless it was objectively unreasonable or contrary to clearly established Supreme Court law.
For the reasons outlined in the prior discussions of these issues, this Court finds petitioner is unable to establish prejudice as to the first two claimed errors of counsel. With respect to the third claimed error of counsel, this Court agrees with the California Court of Appeal's conclusion. Petitioner argues Ms. Rivera was a "critical witness." (Pet.'s PsAs, at 13.) At first glance it does seem Ms. Rivera's testimony might have been helpful in bolstering plaintiff's credibility. However, consideration of the evidence as a whole reveals just how unlikely it is the jury's verdict would have been any different had Ms. Rivera testified. Ms. Rivera's testimony would simply not have been enough to overcome the strong evidence of guilt, petitioner's conflicting and inconsistent testimony, and the attacks on petitioner's credibility during cross-examination, particularly by the introduction of two prior felony convictions. Under these circumstances, there is no basis for a finding the California Court of Appeal's conclusion on this issue was objectively unreasonable or contrary to clearly established Supreme Court law. As a result, it is recommended the district court DENY petitioner's claim she was denied the effective assistance of counsel in violation of the Sixth Amendment.
VI. Cumulative Error.
The cumulative effect of trial errors can result in a violation of due process. Taylor v. Kentucky, 436 U.S. 478, 488 n. 15 (1978); Daniels v. Woodford, 428 F.3d 1181, 1214 (9th Cir. 2005); Alvarez v. Boyd, 225 F.3d 820, 824-825 (7th Cir. 2000); Ceja v. Stewart, 97 F.3d 1246, 1254 (9th Cir. 1996). Federal habeas review is not available for constitutional, trial-type errors unless the error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637. "[I]f there was no error, or just a single error, there are no ill effects to accumulate and so a petitioner in such a case could not prevail on this theory." Alvarez, 225 F.3d at 825. In those cases where the government's case is weak, a defendant is more likely to be prejudiced by the effect of cumulative errors. United States v. Berry, 627 F.2d 193, 201 (9th Cir. 1980). The California Court of Appeal considered the cumulative effect of alleged errors by trial counsel but based on the same analysis outlined above concluded the verdict is likely to have been the same absent the alleged errors. (Lodgment No. 15, at 10.) Based on the foregoing analysis, this Court finds no basis for a determination the California Court of Appeal's conclusion on this issue was objectively unreasonable or contrary to clearly established Supreme Court law. As a result, it is recommended the district court DENY petitioner's claim her right to due process was violated by cumulative errors.
Conclusion
After a review of the record in this matter and for the reasons outlined above, the undersigned Magistrate Judge recommends the Petition for Writ of Habeas Corpus be DENIED with prejudice. This report and recommendation of the undersigned Magistrate Judge is submitted to the United States District Judge assigned to this case, pursuant to the provision of Title 28, United States Code, section 636(b)(1).
IT IS ORDERED that no later than May 5, 2006, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than May 26, 2006. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.