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Baker v. Gastelo

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
Dec 17, 2020
Case No. 2:20-CV-04156 MCS (KES) (C.D. Cal. Dec. 17, 2020)

Opinion

Case No. 2:20-CV-04156 MCS (KES)

12-17-2020

JAMES BAKER, Petitioner, v. JOSIE GASTELO, Warden, Respondent.


FINAL REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

This Final Report and Recommendation ("R&R") is submitted to the Honorable Mark C. Scarsi, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

Because this Final R&R is issued only to respond to the parties' objections to the initial R&R (Dkt. 19, 20) and the recommendations remain unchanged, a second objections period is not warranted.

I.

INTRODUCTION

James Baker ("Petitioner") filed a Petition for Writ of Habeas Corpus by a person in state custody pursuant to 28 U.S.C. § 2254, challenging his 2018 convictions for assault and related crimes arising out of a one-night relationship with Ms. I.A. (Dkt. 1 at 2-3.) On September 21, 2020, Respondent answered the Petition and lodged documents ("LD") from Petitioner's state proceedings. (Dkt. 13-14.) On October 6, 2020, Petitioner replied. (Dkt. 16.)

Like the California Court of Appeal, this Court will refer to Petitioner's victim only by her initials. See Carter v. Davis, 946 F.3d 489, 497 n.1 (9th Cir. 2019) (per curiam) ("We identify living victims of sex crimes only by their initials in this opinion.").

Except for citations to the Reporter's Transcript ("RT") and Clerk's Transcript ("CT"), page citations refer to pagination imposed by the Court's electronic filing system.

On November 20, 2020, the Court issued its initial R&R. (Dkt. 18.) On December 10, 2020, Petitioner filed his objections to the initial R&R. (Dkt. 19.) On December 14, 2020, Respondent filed her objections to the initial R&R. (Dkt. 20.)

For the reasons discussed below, Petitioner's sole claim under Brady v. Maryland, 373 U.S. 83 (1963), fails on the merits, and the Petition should be denied.

II.

FACTUAL BACKGROUND

The underlying italicized facts are taken from the unpublished California Court of Appeal decision on Petitioner's direct appeal. (LD 8.) Unless rebutted by clear and convincing evidence, these facts may be presumed correct. Tilcock v. Budge, 538 F.3d 1138, 1141 (9th Cir. 2008); 28 U.S.C. § 2254(e)(1).

People's Evidence

At trial, I.A. testified that Baker contacted her over social media and invited her to have a meal with him. I.A. is four feet 11 inches tall and weighs 100 pounds. Baker is six feet four inches tall and weighed around 220 pounds at the time.

I.A. drove her car to meet up with Baker and parked it at a Sheraton hotel. She and Baker then used a car sharing service to drive to a restaurant for dinner. Under pressure from Baker, I.A. had at least four shots of tequila and felt the effects of the alcohol. Before I.A. had a chance to eat much food, she and Baker left the restaurant using a car sharing service. Baker took a video of I.A. in the car exposing herself, but I.A. had no recollection of it.

The driver took Baker and I.A. to I.A.'s car, which Baker then drove to a Westin hotel. Several days earlier, Baker had used a forged credit card to purchase four nights stay at the hotel, totaling $2,081.13. I.A. was very drunk and stumbled out of the car and into the hotel.

The next thing I.A. remembered was Baker choking her in the hotel room until she blacked out. I.A. woke up around 5:30 a.m. the next morning. She was lying naked on the floor of the hotel room, with vomit and blood everywhere. There were numerous blood stains on the bedsheets. I.A.'s car keys and phone were missing. She called 911 because she felt like she was going to pass out.

When she arrived at the hospital, I.A. had bruising around her eye, forehead, neck, head, nose, shoulder, and hip. Her nose was broken into multiple pieces and one of her eyes was swollen shut. She had carpet burns on her scalp. Blood was coming out of her ears, which persisted for two weeks. There was bleeding inside her skull and swelling of her brain. I.A.'s treating physician characterized her injuries as life threatening, and explained they may have caused memory loss. I.A. spent nine days in the hospital.

A GPS tracking device in I.A.'s phone indicated it was located at a Marriot hotel in El Segundo. Police arrived at the hotel around 9:00 a.m., and they found Baker in the driver's seat of I.A.'s car.

Defense Evidence

Baker testified in his own defense. He admitted forging credit cards and said he was willing to plead guilty to the forgery charge.

As to the assault charge, Baker explained that he sent I.A. a message on social media asking if she wanted to go out to eat and drink with him. Baker believed I.A. was a prostitute, although he did not specify when he formed that belief.

Baker and I.A. went to dinner, drank a large amount of alcohol, and had sex at the hotel. Afterwards, I.A. demanded Baker pay her $500 because she missed work to spend time with him. Baker refused, and they had an argument.

Baker fell asleep and awoke when I.A. hit him in the back of the head with a bottle, which cut his head and caused it to bleed. Baker got up and swung his elbow, striking I.A. He then started swinging and punched I.A. multiple times until she fell to the ground. Baker held I.A. down and took the bottle from her hand. I.A. continued to attack Baker, and he had to restrain her several more times. At the time, Baker did not realize the severity of I.A.'s injuries.

Baker then posted a message on social media seeking a nurse to video chat with him. A woman named Jeri responded, claiming to be a nurse. Baker asked Jeri to look at I.A.'s nose to see if it was broken. Jeri told Baker to put a cold compress on her nose, which he did.[]

Jeri Darnell lived out of state and did not testify at trial. (3 RT J14; 6 RT 1615-16, 1830 [Petitioner's trial testimony].) During opening statements, defense counsel told the jury that she would testify. (4 RT 693.) After trial, Petitioner moved for a new trial based, in part, on trial counsel's failure to arrange for Darnell to fly to California to testify. (2 CT 256-58.)

I.A. was still angry and tried to attack Baker again, so Baker decided to leave the hotel room. He initially wanted to sleep in I.A.'s car in the hotel parking lot, but the valet would not allow it. So instead, he drove to the parking lot of a nearby hotel and slept in the car. In the morning, Baker tried to call I.A., but realized her phone was in the car. He got breakfast and drove to a different hotel, where he was eventually arrested.

After his arrest, Baker gave a statement to police about the assault, but left out that I.A. hit him with a bottle. Baker explained that he was living in Houston at the time and was worried that if he said I.A. attacked him, he would be required to return to California to testify as a witness. He also explained that he was indifferent as to whether I.A. would go to jail for the attack. Baker said that had he known the extent of I.A.'s injuries, he would have told the police the truth. On cross-examination, Baker admitted he fabricated most of what he told police about the assault.

To support his claim of self-defense, Baker presented evidence that his DNA was found in samples taken from under I.A.'s fingernails. He also called as a witness Sarah Dutton, who followed him on social media. Dutton testified that she saw social media messages between I.A. and another man named Kevin. In those messages, Kevin asked I.A. whether it was true she hit Baker with a bottle. I.A. responded, "'Yeah, I hit [him] with a bottle while he was sleep. [He] had me fucked up. He should have gave me the money he owed me. I don't fuck for free. But he didn't have to do that—he didn't have to do me that bad, though. I hope his bitch ass get fucked in jail.'"

Baker further presented testimony from Cindy Swintelski, who is a nurse practitioner employed at the UCLA Rape Treatment Center. Swintelski examined Baker the day he was arrested, and she documented scratches and abrasions on his shoulder, neck, and arms. The injuries were not bleeding and did not require medical attention. Baker did not tell the nurse he suffered any other injuries or that he had been hit in the head with a bottle. The nurse did not notice any swelling or bruising on his head, and Baker denied suffering any pain. There were scattered blood specks on his white shirt. (LD 8 at 3-6.)

III.

PROCEDURAL HISTORY

On April 14, 2017, a Los Angeles Superior Court jury in case number SA093470 convicted Petitioner of assault on I.A. by means of force likely to produce great bodily injury (Cal. Pen. Code ["P.C."] § 245(a)(4)), driving or taking I.A.'s vehicle without consent (Cal. Veh. Code § 10851(a)), and forgery (P.C. § 484f(a)). (2 CT 212-14.) The jury also found true the allegation that Petitioner caused great bodily injury to I.A. (P.C. § 12022.7(a)). (2 CT 212.) On June 5, 2018, the trial court sentenced Petitioner to a seven-year state prison term. (2 CT 303-06; LD 8 at 7.)

An additional theft count was dismissed on the prosecutor's motion. (5 RT 1275-76.)

Petitioner appealed, raising a claim of sentencing error and the same Brady claim set forth in his federal Petition. (LD 5.) On November 21, 2019, the California Court of Appeal affirmed the judgment. (LD 8.)

Petitioner petitioned the California Supreme Court for review raising the same Brady claim. (LD 9.) That court summarily denied the petition on January 29, 2020. (LD 10.)

IV.

CLAIM

On federal review, Petitioner raises one Brady claim, alleging that the prosecutor "withheld material and favorable evidence ... by refusing to conduct DNA testing [on the blood-stained hotel sheets] until after the trial." (Dkt. 1 at 3.)

V.

STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Petitioner is entitled to habeas relief only if the state court's decision on the merits "(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; 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)(1)-(2); Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

When applying § 2254(d)(1), the relevant "clearly established Federal law" consists of only Supreme Court holdings (not dicta), applied in the same context to which the petitioner seeks to apply it, existing at the time of the relevant state court decision. See Premo v. Moore, 562 U.S. 115, 127 (2011). A state court acts "contrary to" clearly established Federal law if it applies a rule contradicting the relevant holdings or reaches a different conclusion on materially indistinguishable facts. Price v. Vincent, 538 U.S. 634, 640 (2003). A state court "unreasonably appli[es]" clearly established federal law if it engages in an "objectively unreasonable" application to the facts of the correct governing legal rule. White v. Woodall, 572 U.S. 415, 425 (2014) (rejecting previous construction of section 2254(d) that a state court decision involves an unreasonable application of clearly established Supreme Court law if the state court "unreasonably refuses to extend a legal principle to a new context where it should apply"). Habeas relief may not issue unless "there is no possibility fair-minded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Harrington v. Richter, 562 U.S. 86, 103 (2011). "[T]his standard is 'difficult to meet,'" Metrish v. Lancaster, 569 U.S. 351, 358 (2013), as even a "strong case for relief does not mean the state court's contrary conclusion was unreasonable," Richter, 562 U.S. at 102.

When applying § 2254(d)(2), a state court's decision is based on an unreasonable determination of the facts when the federal court is "convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record before the state court." Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014) (citation omitted). So long as "reasonable minds reviewing the record might disagree," the state court's determination of the facts is not unreasonable. Brumfield v. Cain, 576 U.S. 305, 314 (2015) (citation omitted). The petitioner carries the burden of proof. See Pinholster, 563 U.S. at 181.

Under both § 2254(d)(1) and (2), the relevant state court decision is the last reasoned decision. Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991). The federal court "looks through" subsequent unexplained decisions, presuming that those decisions denied relief on the same factual and legal grounds as the last reasoned decision. Id. at 804; see also Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000) ("The California Supreme Court denied review of Shackleford's direct appeal and habeas petition without comment. In these circumstances, we 'look through' the unexplained California Supreme Court decisions to the last reasoned decision, the state appellate court's decision, as the basis for the state court's judgment.")

Here, the relevant state court decision is from the California Court of Appeal. (LD 8.) Petitioner argues that the court of appeal's opinion is both "based on an unreasonable determination of the facts" and "improperly applied federal law." (Dkt. 16 at 2.)

VI.

DISCUSSION

A. Clearly Established Federal Law.

The prosecution violates due process when it withholds material evidence that is favorable to the accused. Brady, 373 U.S. at 86-87. There are three components of a Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

To meet the prejudice prong of the Brady test, the suppressed evidence must be material. Banks v. Dretke, 540 U.S. 668, 691 (2004). "The materiality standard for Brady claims is met when 'the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" Id. at 698 (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)). This is equivalent to considering whether there was a reasonable probability that introduction of the evidence would have undermined the outcome of the trial. Id. at 699.

In its most basic form, suppression occurs when the government fails to disclose the existence of the evidence. Kyles, 514 U.S. at 432-33. Suppression, however, can also occur where "the Government failed to accede to a defense request for disclosure of some specific kind of exculpatory evidence" or "the Government failed to volunteer exculpatory evidence never requested, or requested only in a general way." Id. at 433. The government, however, does not suppress evidence by failing to perform forensic testing on it. Arizona v. Youngblood, 488 U.S. 51, 59 (1988) ("police do not have a constitutional duty to perform any particular tests" on evidence samples collected and disclosed to the defense).

Typically, in habeas cases under both § 2254(d)(1) and (2), the erroneous state court ruling must also satisfy Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (requiring that the error have had a substantial or injurious effect on the verdict). Where, as here, however, the alleged error is a Brady violation, the petitioner need show only that the state court's Brady ruling was erroneous under AEDPA, because a Brady error a fortiori satisfies Brecht. See Kyles, 514 U.S. at 436 ("[O]nce there has been Bagley error ..., it cannot subsequently be found harmless under Brecht."); United States v. Bagley, 473 U.S. 667, 677-78 (1985) (holding that a petitioner must show prejudice to establish a Brady violation). B. Relevant Trial Court Proceedings.

1. Pre-Trial Proceedings.

In case no. SA093470, Petitioner was arraigned on the information on September 21, 2016. (1 CT 116.) In November 2016, the court granted Petitioner's oral motion to represent himself. (1 CT 120.)

At some point, Petitioner requested that samples taken from under I.A.'s fingernails be tested for his DNA. On January 24, 2017, the prosecutor emailed Petitioner's investigator saying, "In view of Mr. Baker's request regarding fingernails, I have requested that those swabs be tested to detect the presence or otherwise of his DNA. I anticipate a minimum 90 days before a report will be generated." (Supp CT 1.)

Petitioner also made a Trombetta motion "when he was pro per" to "request to have DNA from the sheets." (7 RT 2722 (stating trial judge's recollection); see Supp. CT 2-6.) Petitioner's investigator emailed the motion to the prosecutor on January 26, 2017, and it was filed the same day. (8 RT 6609; Supp. CT 1 (email stating "I dropped by a motion filed by Mr. Baker it has to do with the sheets, towels and carpet stains"); Supp. CT 2 (received and filed dates).) In his Trombetta motion, Petitioner asserted, "It is undisputed that the People have destroyed (1) blood-stained bedding, (2) blood-stained carpet, and (3) blood-stained towels from the hotel." (Supp. CT 3) (emphasis added). He argued that DNA from the blood stains could have established that he "suffered more than minor injuries," supporting the level of force he used to defend himself against I.A. (Supp. CT 4.) The Trombetta motion did not raise any other issues. (Supp. CT 2-6.) The court's minutes from January 27, 2017, indicate "Trombetta-Youngblood motion pending for the next hearing date." (1 CT 133.)

A motion under California v. Trombetta, 467 U.S. 478 (1984), or Arizona v. Youngblood, 488 U.S. 51 (1988), seeks dismissal because the government destroyed potentially exculpatory evidence in bad faith.

At the next hearing on February 7, 2017, Petitioner received new counsel, Ms. Calkins. (1 CT 135.) Defense counsel mentioned "a motion that [Petitioner] prepared." (2 RT H2.) The judge then stated, "In his motion he says that he requests the recording of the interview ... [of] the complaining witness," referring to some motion other than Petitioner's Trombetta motion. (2 RT H3.) After discussing this recording and other outstanding discovery issues (but not DNA testing), defense counsel told that judge that she had no other comments about discovery. (2 RT H4-H5.)

However, on March 8, 2017, Petitioner stated that he did not give up his right to represent himself, and the Court allowed him to "remain[ ] pro per." (Supp. RT 4.) The court's minutes do not reflect when Ms. Calkins was formally appointed as counsel but subsequent minutes indicated that she was representing Petitioner. (1 CT 141-47.)

When the parties began to discuss a potential trial date, the prosecutor represented that Petitioner "had previously requested ... the results of the DNA analysis ... from the victim's finger. ... I'm advised that it will take approximately 30 days to receive those results." (2 RT H5.) Defense counsel advised that Petitioner was willing to waive time to await those DNA test results. (2 RT H6.) The judge scheduled a hearing "for the next date" on Petitioner's motion for "bad faith[ ] destruction of evidence" regarding the "blood-stained bedding, towels and other items." (2 RT H7.)

The court conducted the next pre-trial conference on March 8, 2017. (1 CT 139.) When the court asked the parties about "readiness" for trial, the following exchange occurred:

Ms. Calkins: We are requesting the sheets from the room and the broken bottle and the recorded interview with the victim.

The Court: You want to have some testing done on that sheet?

Ms. Calkins: Correct.

The Court: Okay.

Ms. Calkins: We want to get it first and foremost, but I'm going to sit down with [the prosecutor] Mr. Berger and we're going to go over all the evidence he intends to present at trial.
(Supp. RT 2.)

Petitioner initially agreed to delay the trial date again to give his attorney time to meet with the prosecutor to discuss the available evidence, but Petitioner later said, "I don't want to waive time." (Supp. RT 3.) The court trailed the case until March 17. (Supp. RT 4.) The court stated that Petitioner's "motion to dismiss" would be heard that day, apparently referring to the still-pending Trombetta motion. (Supp. RT 4-5.) During this conference, the prosecutor made no representations about whether the blood-stained sheets were available for testing. Petitioner was unable to appear in court on March 17, so the conference was continued to March 20. (1 CT 140.)

The court's minutes also refer to a motion under P.C. § 1275 to reduce bail, which was not a "motion to dismiss." (1 CT 139.)

On March 20, 2017, Petitioner appeared in court again. (1 CT 141.) Counsel had not yet met to review the available evidence, but they still wanted to do so. (Supp. RT 301.) The prosecutor indicated that they could be ready for trial by March 28. (Supp. RT 301-02.) The judge advised that without a time waiver from Petitioner, the last day for trial was "next Monday," i.e., March 27. (Supp. RT 303.) As the parties discussed waiving time or trailing the case, Petitioner said, "I think I want my trial." (Supp. RT 302.) When the court proposed trailing the case for a trial on Friday, March 24, Petitioner replied, "All right." (Supp. RT 303-04.) The judge later observed, "[Ms. Calkins] needs to meet with [the prosecutor]. I know you may want your trial. That doesn't mean [defense counsel is] prepared to announce ready herself." (Supp. RT 309.)

On March 24, 2017, the court advised defense counsel, "If you don't feel you are ready to go, you simply need to state the reason why and I'll find good cause to continue the matter over [Petitioner's] objection." (2 RT I1-I2.) The court also addressed Petitioner saying, "Mr. Baker, I know that you really want to go to trial sooner rather than later .... [...] But Ms. Calkins needs time to be prepared for this case to represent you in an effective manner. So if there is any reason why she's hesitant to announce ready today, then you should respect that ...." (2 RT I2.) When the judge pressed counsel for a decision whether or not to waive time, Petitioner responded, "If I don't [agree] she's going to do it anyway. I don't think I have a choice." (2 RT I4.) Petitioner then agreed to continue the trial to April 3 "with my objection." (2 RT I4.) When the judge pressed him for an unconditional agreement to continue the trial date, Petitioner said, "yes." (2 RT I4.) The court set a return date of April 3, and Ms. Calkins advised that the defense would "announce ready" at the next hearing. (1 CT 142.)

On April 3, 2017, defense counsel answered ready for trial. (3 RT J1.) Jury selection started on April 5. (1 CT 145.) In court that day, the prosecutor reported that he had turned over that morning DNA test results from the samples under I.A.'s fingernails, consistent with his earlier representation "when Mr. Baker was representing himself ... [that] it could take two to three months." (3 RT 10-11.)

2. Trial Proceedings.

The day before closing arguments, defense counsel advised that she might call the experts who "processed the crime scene. And they apparently got rid of some evidence that would have been useful for [Petitioner], because there could have also been blood on those sheets that belonged to him." (6 RT 1535.) The prosecutor then disputed the adequacy of the information provided to him about "the witness who's flying in," and the judge cut off the discussion with an instruction to return after the lunch break. (6 RT 1536.) When court resumed after lunch, neither party raised the topic of blood stains at the crime scene. (6 RT 1539-44.)

The defense called Nurse Swintelski, Sarah Dutton, and Petitioner as witnesses. During a break in Petitioner's testimony and after it ended, Ms. Calkins confirmed that the defense would not call any other witnesses. (6 RT 1641, 1850-51.)

During closing arguments, Ms. Calkins asked the jury to believe I.A.'s social media post saying that she hit Petitioner on the head "with a bottle while he was asleep" because he had refused to pay her for sex. (6 RT 1908, 1910.) Counsel argued, "Even if there's not a lot of blood that you could see [on] his head, in the elevator you can't tell whether or not he had a gash on his head. [I]t was over 24 hours before he went to get examined. So it could have dried up." (6 RT 1908.)

After closing arguments, Petitioner asked the trial court to proceed pro per because he was entitled to a mistrial. (7 RT 2101.) He argued that he had tried to file a Trombetta motion "a while ago. It was about the bedding ... because that wasn't all [I.A.'s] blood. That was my blood. And the People failed to preserve that." (7 RT 2102.) He believed, "We withdrew that motion because my attorney said ... the issue was already litigated and that there will be sanctions at this trial." (7 RT 2102.) He asked the court to instruct the jury that the People had destroyed potentially exculpatory evidence in the form of the hotel bed sheets. (7 RT 2103.)

The prosecutor responded that "the Trombetta motion has never been heard" and that the bedding had not been destroyed. (7 RT 2103.) This appears to be the first time that the defense was told on the record that the blood-stained bedding was still available for testing. The prosecutor also represented that he had told Petitioner when Petitioner represented himself "that getting DNA analysis could take some considerable time. But I had advised Detective Tavares to ... get that process out of the way." (7 RT 2103.) The prosecutor claimed that both Petitioner and his lawyer knew that DNA testing on the sheets had not been done prior to announcing ready for trial. (7 RT 2103.)

The prosecutor was apparently referring to his January 2017 email in which he instructed Detective Tavares to get DNA test results from I.A.'s fingernail samples, but he did not instruct Detective Tavares to get DNA test results from the blood-stained bedding at that time. (Supp. CT 1.)

Petitioner accused the prosecutor of lying and complained again that he had received an unfair trial. (7 RT 2104.) Petitioner became agitated during the discussion and had to be removed from the courtroom. (7 RT 2106-08, 2110, 2118.) While in lockup, Petitioner said that he was going to attempt to force a mistrial to avoid conviction. (7 RT 2108-09.) He eventually agreed to sit silently in the courtroom and not "act out" in front of the jury. (7 RT 2113-17.) After the jury returned for final instructions, however, Petitioner loudly remarked, "That was my blood on the bed. ... [¶] They didn't want to show—they don't want me to show that that was my blood on the bed. I got D.N.A. evidence. If I'm guilty, why they so scared of one sheet of paper, one little sheet of paper? That's it." (7 RT 2128; see id. 2150.) Petitioner was then removed from the courtroom. (7 RT 2128.)

3. Post-Trial Proceedings.

Before sentencing, the court granted Petitioner's request to appoint substitute counsel to move for a new trial. (2 CT 232.) On May 4, 2017, new counsel inquired what transcripts and exhibits were available for review. ( 7 RT 2701-02.) She also inquired about DNA testing. (7 RT 2706.) The prosecutor identified the DNA report run on skin samples from under I.A.'s fingernails. (7 RT 2707.) When defense counsel asked, "No DNA demand on the bloody sheets?", the prosecutor responded, "No. And as Mr. Baker was aware, ... I had requested it and I told him it wasn't going to be ready for trial," because it was "going to take two to three months." (7 RT 2707.) The prosecutor agreed to contact the laboratory to ascertain the status of testing. (7 RT 2708.)

Later during the same hearing, defense counsel requested a transcript of any pre-trial discussions about DNA testing. (7 RT 2723.) When the trial court expressed his recollection that the defense announced ready knowing that the sheets were available for testing but had not been tested, Petitioner shook his head in disagreement. (7 RT 2723-24.) Petitioner asserted that he had "waived time against" getting DNA testing results for the skin under I.A.'s fingernails, but that there was "never testing on the sheets." (7 RT 2725.) In response, the prosecutor "categorically" denied Petitioner's statements. (7 RT 2725.) As it turns out, Petitioner was correct, because the prosecutor requested DNA testing on the sheets for the first time later that day. (8 RT 6607-08, 6611; Supp. CT 13; see 2 CT 275-78.)

In June 2017, defense counsel told the court, "This is another issue regarding DNA testing of the bed sheets. My understanding that was submitted sometime in February and I still have [not] received any results." (7 RT 3005.) The prosecutor represented, "As soon as I have them, I'll make them available." (7 RT 3005.) He also represented that he had contacted Detective Tavares who had relayed to the lab that "they continue to pursue that with speed." (7 RT 3005.) He did not correct defense counsel's mistaken belief that the People had submitted the sheets for testing in February by revealing that he had only recently requested testing in May—a fact that he should have remembered in June. (See 8 RT 6607-08 (prosecutor acknowledging in May 2018 that he first requested the DNA testing of the sheets on May 4, 2017).) The DNA test results on the bedding were finally given to defense counsel in September 2017. (2 CT 272.)

In January 2018, defense counsel filed a motion for new trial arguing that Petitioner's trial counsel provided ineffective assistance by, among other things, failing to request testing of the hotel bedding for Petitioner's DNA before trial. (2 CT 243, 252.) The motion discussed five stains out of the eighteen "small swatches" with stains tested after trial. (2 CT 250-51, 276; 8 RT 6052.) Each stain contained a mixture of DNA from two contributors. (2 CT 250-51.) For three stains, the major contributor was I.A. and the minor contributor could not be identified. (2 CT 250-51.) For one stain, the major contributor was I.A. and the minor contributor could not be identified beyond being male. (2 CT 250.) For the final stain on the sheet, testing revealed that I.A. and Petitioner were the most likely DNA contributors. (2 CT 250.)

At the April 2018 hearing on the motion for new trial, defense counsel explained that he had received all the transcripts for pre-trial proceedings only after filing the new trial motion, and those transcripts revealed that trial counsel had requested the sheets for testing on March 8, 2017. (8 RT 6001, 6037, 6041.) Despite the request, counsel argued that the prosecutor neither produced the sheets nor submitted them for testing until after Petitioner's trial was over, based on information from a "DNA tech." (8 RT 6041-42, 6046-47.) He argued that these new facts changed the argument briefed from an ineffective-assistance argument to a Brady argument. (8 RT 6042.)

The prosecutor responded that, in fact, he originally requested a DNA analysis of the bedding in January 2017 by contacting Detective Tavares after Petitioner filed the Trombetta motion to dismiss alleging the destruction of evidence. (8 RT 6046-47.) The prosecutor was told it would take 90 days to complete the testing, which he relayed to defense trial counsel off the record. (8 RT 6045.) The prosecutor did not have at hand any documentation of these dates or conversations. (8 RT 6047.) He was apparently remembering the email about DNA testing of I.V.'s fingernail samples, not the blood-stained bedding. (See Supp. CT 1.)

The court denied Petitioner's motion for a new trial. (2 CT 293.) The court explained: "Everybody went into trial knowing that those results were not back. Those results, in fact, had not been obtained, that no conclusion had been made. And the trial began with the defendant announcing ready knowing that he didn't have that information and knowing that it existed, potentially. [¶] And he made a choice to proceed to trial. Nobody forced him to do that. The record is clear that there was no pressure put on the defendant. The prosecution certainly wasn't trying to get to trial." (8 RT 6048-49.) The court further explained the DNA results would not have changed the outcome of the case. The court noted that, although Petitioner claimed he was hit on the head with a bottle, the defense made no issue about the nurse examining a head injury and Petitioner did not tell the police about the wound. (8 RT 6054-60.) The court further noted that scalp wounds tend to bleed "profusely," such that finding only a small amount of Petitioner's blood on the bedding had no tendency to prove that he was struck in the head with a bottle. (8 RT 6062.) The court also cited the hotel video "that showed [Petitioner] fleeing the crime scene, nothing around his head to disguise any bleeding on a white T-shirt." (8 RT 6310.) Although the court had already denied the motion for new trial, it agreed to an additional hearing to clarify when the prosecutor first submitted the sheets for testing. (8 RT 6314-18.)

At the next hearing in May 2018, the prosecutor told the court that, contrary to his earlier representations, he now realized that he had not requested a DNA analysis of the sheets prior to trial. (8 RT 6607-08.) Rather, he had located an email documenting that he made the request to Detective Tavares on May 4, 2017, i.e., the date of the post-trial conference at which defense counsel had specifically asked about DNA testing on the sheets. (8 RT 6607-08; Supp. CT 13; see 7 RT 2707.) Now, according to the prosecutor, he remembered receiving Petitioner's motion to dismiss asserting that the sheets had been destroyed in January 2017. (8 RT 6609.) The prosecutor told the court, "[Petitioner] was informed that the bedding had not been destroyed. No further action was taken on this motion ...." (8 RT 6610.) It is unclear when or how the prosecutor informed Petitioner that the bedding had not been destroyed. Again, both Petitioner and his attorney continued to assert that the bedding had been destroyed during trial (6 RT 1535; 7 RT 2103), and the prosecutor's first representation on the record that it had been preserved came only after closing arguments (7 RT 2103).

Defense counsel then argued that Petitioner had first raised the importance of the blood-stained bedding in his Trombetta motion in January 2017 and counsel had requested DNA testing in March 2017. (8 RT 6613 (referring to Supp RT 2).) The prosecutor disputed this, arguing that Petitioner voluntarily dropped his Trombetta motion after learning that the bedding had not been destroyed, and later "he made no request on the record or anywhere else to have them tested." (8 RT 6613-14.) According to the prosecutor, when defense counsel requested DNA test results, it was only for samples under the victim's fingernails. (8 RT 6613-14.) After additional argument, the court concluded that the motion for new trial remained denied. (8 RT 6629; 2 CT 300.) C. The California Court of Appeal's Decision.

The Court of Appeal found that Petitioner failed to establish two elements of a Brady claim, suppression and prejudice, reasoning as follows:

1. There Was No Suppression

Baker's Brady claim fails because he has not shown the prosecution suppressed evidence. "[E]vidence is not suppressed unless the defendant was actually unaware of it and could not have discovered it '"by the exercise of reasonable diligence."'" (People v . Salazar , supra , 35 Cal.4th at p. 1049.) Here, the prosecutor did not hide from Baker the existence of the bloody sheets. To the contrary, he explicitly told Baker the sheets had been preserved. There is nothing in the record to even suggest the prosecutor prevented Baker from accessing that evidence and conducting testing on it.

We reject Baker's contention that the prosecutor suppressed evidence by failing to perform a timely DNA analysis of the sheets in response to his request. [FN 5: Whether Baker requested the prosecutor perform a DNA analysis prior to trial is far from clear. Baker insists his trial counsel made such a request at the March 8, 2017 hearing, but the record does not support that assertion. Instead, it shows counsel requested the sheets from the prosecutor so the defense could perform the testing. Counsel never explicitly requested on the record that the prosecutor perform DNA testing prior to trial.] Brady "does not stand for the proposition that a defendant has a federal constitutional right ... to compel certain kinds of investigation." (People v . Mena , supra , 54 Cal.4th at p. 160; see People v . Salazar , supra , 35 Cal.4th at pp. 1048-1049 [the prosecution does not "have the duty to conduct the defendant's investigation for him"].) Moreover, until the DNA testing was actually performed, there could be no evidence to disclose. (See People v . Mena , supra , at p. 160 [Brady does not compel the prosecution to perform a lineup because, until the lineup is performed, there is no evidence to disclose].)

Even if the prosecution had a duty to test the sheets, the fact remains that Baker chose to go to trial before any testing had been completed. The trial court made clear that it was willing to continue the case to ensure Baker was fully prepared. Baker, however, insisted on going to trial knowing full well he would have to do so without the aid of the DNA evidence. To claim the prosecution suppressed evidence under such circumstances is, as the trial court put it, "preposterous."

2. There Was No Prejudice

Baker's Brady claim additionally fails because he has not shown prejudice. Prejudice, for purposes of a Brady violation, "focuses on 'the materiality of the evidence to the issue of guilt or innocence.' [Citations.] Materiality, in turn, requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction 'more likely' [citation], or that using the suppressed evidence to discredit a witness's testimony 'might have changed the outcome of the trial' [citation]. A defendant instead 'must show a "reasonable probability of a different result."' [Citation.]" (People v . Salazar , supra , 35 Cal.4th at pp. 1042-1043.) A "reasonable probability" means a probability sufficient to "'undermine[ ] confidence in the outcome' on the part of the reviewing court." (In re Sassounian (1995) 9 Cal .4th 535, 544, 37 Cal. Rptr. 2d 446, 887 P.2d 527.)

Baker contends the DNA evidence was material because it supported his testimony that I.A. struck him on the head with such force that it caused him to bleed. According to Baker, the fact he was bleeding from the head indicates his subsequent use of force was reasonable, which is required for a claim of self-defense.

Contrary to Baker's assertions, the DNA evidence does little to show he was bleeding from the head. Although Baker's DNA was potentially present in samples that appeared to be blood stains, those samples also contained I.A.'s DNA. It is possible, therefore, that DNA from Baker's sperm, skin, or saliva simply mixed with I.A.'s blood to form the stains. Given Baker slept, had sex, and fought with I.A. on the bed, it would not be surprising that DNA from such a source would be present on the sheets. Alternatively, it is possible the DNA simply came from one of the numerous scratches and abrasions Baker suffered, rather than a cut to his head. [FN 6: Baker implies the DNA could not have come from his scratches or abrasions because the examining nurse indicated they were not bleeding. The examination, however, took place hours after the assault. Common sense suggests the wounds would have stopped bleeding in that time.]

The jury also heard overwhelming evidence that Baker did not suffer a cut to his head. The nurse who examined Baker shortly after the incident did not document any wound to his head; nor did Baker disclose one to her. Baker similarly failed to tell police he suffered a head injury. His explanation for not doing so—that he did not want to be subpoenaed as a witness against I.A. and was indifferent to her being held accountable—strained credulity. Given such evidence, we doubt the DNA results would have persuaded the jury to give any additional credence to Baker's testimony that he suffered a cut to his head.

Even if the DNA results would have persuaded the jury Baker was bleeding from the head, it is still not reasonably probable the results of the case would have been different if the evidence were introduced at trial. To justify an act as self-defense, the defendant may not use more force than is reasonable under the circumstances. (People v . Minifie (1996) 13 Cal .4th 1055, 1064-1065, 56 Cal. Rptr. 2d 133, 920 P.2d 1337.) Here, Baker's own testimony demonstrates he used excessive force. According to Baker, after being struck in the head with the bottle, he elbowed I.A. with significant force. This alone would have been sufficient to end any imminent threat of harm given I.A. was heavily intoxicated and less than half Baker's size. Baker, however, testified that he proceeded to punch I.A. multiple times and pin her to the ground. I.A., in turn, suffered life threatening injuries that required she remain in the hospital for nine days. The force used was clearly excessive under the circumstances, regardless of whether Baker suffered a head injury. (LD 8 at 11-15.) D. Petitioner Is Not Entitled to Habeas Relief.

1. § 2254(d)(2).

The Court first considers whether the California Court of Appeal's decision is based on an unreasonable determination of the facts. The Court's review is limited "to the evidence in the record before the state court." Kipp v. Davis, 971 F.3d 939, 949 (9th Cir. 2020); see Pinholster, 563 U.S. at 181-82 ("review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits"). Further, if "reasonable minds reviewing the record might disagree about the finding in question," AEDPA deference precludes habeas relief. Brumfield, 576 U.S. at 314 (citation omitted). Nevertheless, "deference does not imply abandonment or abdication of judicial review." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

The Ninth Circuit has identified "different 'flavors' of challenges to state-court findings under section 2254(d)(2)'s unreasonableness standard." Kipp, 971 F.3d at 953.

[First,] the state court might have neglected to make a finding of fact when it should have done so. Second, the state court might make factual findings under a misapprehension as to the correct legal standard. ... Third, the fact-finding process itself might be defective. For instance, the state court might have made evidentiary findings without holding a hearing to give the petitioner an opportunity to present evidence. Alternatively, the state court might plainly misapprehend or misstate the record in making its findings. Lastly, the state-court fact-finding process may be undermined where the state court has before it, yet apparently ignores, evidence that supports petitioner's claim. In other words, failure to consider key aspects of the record is a defect in the fact-finding process.
Id. at 953-54 (citations omitted).

Here, Petitioner contends that the court of appeal misstated or misapprehended the record before it. (Dkt. 16.) Specifically, Petitioner asserts that the trial court knew that the prosecutor made multiple false statements regarding whether the sheets had been submitted for DNA testing. (Id. at 2.) Further, Petitioner became agitated during his trial because he believed he was entitled to an adverse instruction that the sheets had been destroyed. (Id. at 2-4.)

In post-trial proceedings, the trial court found, "the trial began with the defendant announcing ready knowing that he didn't have [the DNA] information and knowing that it existed , potentially ." (8 RT 6048 (emphasis added).) Consistent with this, the court of appeal concluded, "the prosecutor did not hide from Baker the existence of the bloody sheets. To the contrary, he explicitly told Baker the sheets had been preserved ." (LD 8 at 11 (emphasis added).) However, the state court record does not support a finding that the prosecutor told Petitioner or his attorney before trial that the bloody sheets had been preserved. Rather, in January 2017, Petitioner asserted in his Trombetta motion that he believed the bloody sheets had been destroyed. (Supp. CT 3.) The Clerk's Transcript contains neither a written opposition to Petitioner's motion nor a response to his investigator's email informing the prosecutor of Petitioner's motion. Petitioner's Trombetta motion was mentioned in court on January 27, February 7, and March 8, 2017, and on none of those occasions did the prosecutor say on the record that the motion was fundamentally flawed because the sheets had been preserved. (1 CT 133, 135, 139; 2 RT G5-G7, G41, H7-H8; Supp. RT 2.)

On March 8, 2017, defense counsel Ms. Caulkins requested that the prosecution produce certain evidence for testing, including the champagne bottle and the sheets. (Supp. RT 2.) This request, however, cannot reasonably be interpreted as evidence that Ms. Caulkins knew at that point in time that the sheets had been preserved. Her request included the champagne bottle, and even the prosecutor did not know whether the bottle had been preserved, as revealed by his later statements. (See 7 RT 3009 (prosecutor stating on June 5 that "if the bottle is still available, the defense would like it [finger]printed as well").) After requesting that the sheets be produced for testing, Ms. Caulkins and the prosecutor apparently met off the record to discuss the evidence. It is unknown what was said during that meeting, but it would be unreasonable to assume that the prosecutor told Ms. Caulkins that the sheets had been preserved and were still available for testing, because (1) Ms. Caulkins did not renew her request to obtain the sheets for testing, and (2) during the trial, she stated that the crime scene investigators "apparently got rid of some evidence that would have been useful for [Petitioner], because there could have also been blood on those sheets that belonged to him." (6 RT 1535.)

In April 2017, after closing arguments when Petitioner again complained that the blood-stained bedding had been destroyed, the prosecutor finally said on the record for the first time that it was still available for testing. (7 RT 2103.) The prosecutor also said that he had asked Detective Tavares to "get that process out of the way," representing that he had requested DNA testing on the sheets back in January 2017. (7 RT 2103.) Over a year later, in May 2018, the prosecutor corrected himself and admitted that he had not requested DNA testing on the sheets until May 2017 (8 RT 6607-08), but that correction came only after the trial judge had already denied Petitioner's motion for new trial based, in part, on a mistaken belief resulting from the prosecutor's earlier misstatements, i.e., that Petitioner knew DNA test results on the sheets were coming if only he was willing to wait for them (8 RT 6048).

In sum, the prosecutor knew that Petitioner believed in January 2017 that the sheets had been destroyed. When defense counsel stated during trial that the blood-stained sheets had been destroyed, he did not correct her. If the prosecutor never told the defense until after trial that the sheets had, in fact, been preserved and could still be tested, then that fact undercuts the reasoning of the trial court and the court of appeal concerning suppression. Under that scenario, Petitioner did not go to trial knowing that exculpatory DNA evidence potentially existed if only he was willing to wait for the test results. Rather, he went to trial still believing that the sheets had been destroyed and that he would be entitled to an adverse instruction, making it pointless to delay his trial to wait for DNA test results.

Ultimately, however, regardless of any mistakes or misstatements about whether and when the blood-stained bedding was available for testing, Petitioner is not entitled to habeas relief under Brady because he cannot demonstrate prejudice.

2. Analysis of Petitioner's Brady Claim.

In her objections, Respondent notes that "AEDPA deference is mandated as to the state court's finding of a lack of prejudice under Brady's third component, regardless of whether its finding on Brady's suppression statement was based on an unreasonable determination of facts," citing a December 14, 2020 Supreme Court case. (Dkt. 20 at 15-17.)

Generally, when a state court's denial of a federal habeas claim is based on an unreasonable determination of the facts under § 2254(d)(2), AEDPA deference no longer applies. Kipp, 971 F.3d at 955; see Maxwell v. Roe, 628 F.3d 486, 506 (9th Cir. 2010) ("because the state court's decision was 'based on an unreasonable determination of the facts' under § 2254(d)(2), the AEDPA deference no longer applies"). However, when the state court rejects a federal habeas claim on an independent ground that was untainted by the unreasonable factual determination, AEDPA deference applies to the independent ground. See Shinn v. Kayer, No. 19-1302, —S. Ct.—, 2020 WL 7327827, at *4, 2020 U.S. U.S. Dist. LEXIS 6092, at *11-12 (U.S. Dec. 14, 2020) ("Federal courts may not disturb the judgments of state courts unless each ground supporting the state court decision is examined and found to be unreasonable.") (citation omitted); Parker v. Matthews, 567 U.S. 37, 42 (2012) (finding it "irrelevant that the court also invoked a ground of questionable validity"). Here, the state court of appeal found that Petitioner's "Brady claim additionally fails because he has not shown prejudice." (LD 8 at 13.) The court of appeal made this determination without relying on its unreasonable determination of the facts surrounding the suppression evidence. (Id. at 13-15.) Accordingly, the Court applies AEDPA deference to the court of appeal's prejudice determination.

"The prosecution's suppression of evidence favorable to an accused violates due process where the evidence is material, irrespective of the good faith or bad faith of the prosecution." Maxwell, 628 F.3d at 509 (citing Brady, 373 U.S. at 87). Evidence is material if "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Strickler, 527 U.S. at 280 (citation omitted). "A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial." Maxwell, 628 F.3d at 509 (citing Kyles, 514 U.S. at 434).

Petitioner contends that the DNA evidence would have shown that he acted in "lawful self-defense" after I.A. "attacked [him] with a bottle," "caus[ing] his head to bleed." (Dkt. 16 at 3, 5, 6.). The court of appeal reasonably found that the DNA evidence does not demonstrate that his head was bleeding. (LD 8 at 13-14.) His DNA could have come from his sperm, skin, or saliva that was mixed with I.A.'s blood. Or the DNA could have come from the multiple scratches and abrasions Petitioner suffered, rather than a cut to his head. Indeed, despite testimony from Petitioner and Sarah Dutton (who saw and repeated I.A.'s social media post to a mutual friend) that I.A. had hit Petitioner in the head with a champagne bottle (6 RT 1574, 1613, 1639-40), there was no contemporaneous evidence that the I.A. inflicted a serious head wound on Petitioner. Petitioner did not report a head wound to the police or to Nurse Swintelski, who testified that she did not see any injury to Petitioner's head when she examined him. (5 RT 1053; 6 RT 1559-60, 1622.) No head wound or significant blood on Petitioner's T-shirt was visible in the security camera footage of him leaving the hotel. (4 RT 761; 5 RT 1232-33; 8 RT 6310-11, 6628, 7221.)

And even if I.A. attacked Petitioner with a champagne bottle, the court of appeal reasonably determined that the attack would not have justified the degree of force that Petitioner used to repel the attack, force that caused extensive, life-threatening injuries to I.A. (LD 8 at 14-15.) As the jury was instructed, a person acts "in lawful self-defense if ... [he] use[s] no more force than necessary to defend against [an imminent] danger" of suffering bodily injury. (2 CT 178); accord People v. Bates, 35 Cal. App. 5th 1, 8 (2019). I.A. was four-foot-eleven and weighed 100 pounds; Petitioner was six-foot-four and weighed about 220 pounds. (4 RT 698; 6 RT 1631, 1894.) Petitioner testified that after being struck in the head with the bottle, he elbowed I.A. with significant force to knock her down. (6 RT 1613, 1637, 1816.) This force was more than sufficient to defend against any imminent threat of harm from I.A., given that I.A. was extremely intoxicated (4 RT 712-14; 5 RT 976; 6 RT 1599, 1604) and half Petitioner's size. Instead, by Petitioner's own testimony, he proceeded to punch her multiple times with his closed fist and slam her to the ground. (6 RT 1613, 1637, 1814, 1818, 1820; see Supp. CT 19-22.) I.A. spent nine days in the hospital with life-threatening injuries. (4 RT 737-38, 761-62; 5 RT 975-78.) Thus, regardless of whether Petitioner suffered a serious injury that caused his head to bleed, the force used was unreasonable and excessive. Petitioner has not demonstrated a reasonable probability that the DNA evidence from the sheets would have changed the jury's verdict.

In his objections, Petitioner contends that the prosecutor did not argue to the jury that he used excessive force. (Dkt. 19 at 11-14.) To the contrary, both the prosecutor and defense counsel extensively argued whether the force used by Petitioner to respond to any attack by I.A. was "excessive." (6 RT 1878-81, 1893-98, 1910-12, 1918-19, 1922.) --------

VII.

RECOMMENDATION

IT IS THEREFORE RECOMMENDED that the District Court issue an Order: (1) approving and accepting this Final Report and Recommendation; and (2) directing that judgment be entered denying the Petition on the merits. DATED: December 17, 2020

/s/_________

KAREN E. SCOTT

United States Magistrate Judge


Summaries of

Baker v. Gastelo

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
Dec 17, 2020
Case No. 2:20-CV-04156 MCS (KES) (C.D. Cal. Dec. 17, 2020)
Case details for

Baker v. Gastelo

Case Details

Full title:JAMES BAKER, Petitioner, v. JOSIE GASTELO, Warden, Respondent.

Court:UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Date published: Dec 17, 2020

Citations

Case No. 2:20-CV-04156 MCS (KES) (C.D. Cal. Dec. 17, 2020)