United States District Court, N.D. CaliforniaJul 20, 2005
No. C 02-1895 CW (N.D. Cal. Jul. 20, 2005)

No. C 02-1895 CW.

July 20, 2005


Petitioner Richard Leroy Martinez is a prisoner of the State of California who is incarcerated at the State Prison-Solano at Vacaville, California. He brings this petition pro se seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent was ordered to show cause why the writ should not be granted and has filed an answer supported by a memorandum of law, the State trial record and the unpublished opinion of the California Court of Appeal. Petitioner had the opportunity to file a traverse, but did not do so. Having considered all of the papers filed by the parties and the State court trial record, the Court DENIES the petition for writ of habeas corpus.


The following facts are taken from the unpublished opinion of the Sixth Appellate District of the California Court of Appeal inPeople v. Martinez, H017130 (Dec. 29, 1998), affirming the judgment of conviction.

About 7 p.m. on May 16, 1996, security guard Damian Carrion, working at a Sunnyvale Safeway store, observed defendant take three packs of cigarettes from a cabinet near the checkstands and proceed to the back of the store. The guard saw defendant put two packs in his pants, then take a box of Band-Aids from the shelf and go into the bathroom. Defendant emerged from the bathroom with nothing in his hands. He took a bottle of vodka which he stuffed inside his waistband covered by his shirt. He then walked out of the store.
The security guard stopped defendant as he was stepping into the parking lot. The guard showed his store badge and asked defendant to return to the store. Defendant replied, "`Fuck you, I'm not going anywhere.'" The guard then grabbed defendant's arm. Defendant lurched forward and attempted to pull away from the guard. He elbowed the guard several times. The guard then pulled defendant's arm behind his back, pushed him into a parked car and then forced him to the ground to handcuff him. The missing merchandise was found on defendant. The security guard suffered cuts on his hand and a bruise on his rib cage. Defendant suffered scrapes on his face.
At trial, defense counsel essentially admitted petty theft. He argued that defendant did not use force to commit a robbery, but had used force in self defense when the security guard attacked him in the parking lot.
Martinez, H017130 at 1-2 (footnotes included).

An empty Band-Aid box was found in the bathroom.

The total value of the items was $18.85.

Prior to presentation of evidence, the trial court mis-spoke in his instruction to the jury as follows,

Also, if the circumstantial evidence as to any particular count is susceptible of two reasonable interpretations, one of which points to the defendant's guilt and the other to his innocence, you must adopt that interpretation which points to his guilt. RT 14 (emphasis added). The correct version of CALJIC No. 2.01 instructs that the jury "must adopt that interpretation which points to the defendant's innocence." As the Court of Appeal noted, the immediately preceding instruction directed the jury that:
a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion.

RT 14. "Moreover, both attorneys stated the principle correctly in their closing arguments. And the written instructions (with the correct version of CALJIC No. 2.01) were provided to the jury for their deliberation." Martinez, H017130 at 5.

At the close of evidence, the trial court instructed the jury on the elements required to prove the crime of robbery as follows:

1. A person had possession of property of some value however slight,
2. Such property was taken from such person or from his immediate presence,
3. Such property was taken against the will of such person,
4. The taking was accomplished either by force or fear, and
5. Such property was taken with the specific intent permanently to deprive such person of the property.

RT 87; CAJIC 9.40.

The trial court's final instructions continued, in relevant part, to explain,

A robbery is still in progress after the original taking of physical possession of the stolen property while the perpetrator is in possession of the stolen property and fleeing in an attempt to escape. Likewise it is still in progress as long as immediate pursuers are attempting to capture the perpetrators or to regain the stolen property.

RT 87-88. The jury was also instructed on the lesser offense of petty theft. RT 90.

According to the Court of Appeal,

Defendant was convicted by jury of second degree robbery. (Pen. Code, § 211/212.5, subd. (c).) The trial court found multiple prior conviction allegations true.
The court denied defendant's motion to strike prior convictions, and sentenced him to 35 years to life in state prison.
Martinez, H017130 at 2-3 (footnotes included).

The information alleged four prior serious or violent felony convictions and five prior convictions resulting in continued prison terms. (Pen. Code §§ 1170.12; 667, subds. (a); 667, subds. (b) through (i); 667.5, subd. (b).)

Defendant was sentenced to a three strikes term of 25 years to life, plus 10 years for 2 serious felony prior conviction findings.

On March 31, 1998, the California Supreme Court denied Petitioner's petition for review of the Court of Appeal's decision. Petitioner filed a petition for a writ of habeas corpus in State court, which was denied by the Santa Clara County Superior Court, by the Court of Appeal and finally by the California Supreme Court on March 27, 2002.

Petitioner filed the present federal petition on April 18, 2002, and Respondent filed an answer on October 25, 2002. The petition raises three claims, all of which are exhausted for purposes of federal review: (1) appellate counsel's failure to raise the issue of insufficient evidence to support the robbery conviction violated Petitioner's Sixth Amendment right to counsel and Fourteenth Amendment right to due process, (2) a pattern of erroneous jury instructions diluted the presumption of innocence and reduced the prosecution's burden of proof in violation of the Fourteenth Amendment, and (3) admission of hearsay evidence to prove a prior "strike" without showing unavailability of the witness violated the Sixth Amendment's Confrontation Clause.


A federal court may entertain a habeas petition from a State prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a district court may not grant a petition challenging a State conviction or sentence on the basis of a claim that was reviewed on the merits in State court unless the State court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A decision is contrary to clearly established federal law if it fails to apply the correct controlling authority, or if it applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result. Clark v. Murphy, 331 F.3d 1062, 1067 (9th. Cir. 2003).

An unreasonable application of federal law occurs when the State court identifies the correct governing legal principle, but unreasonably applies that principle to the facts. Id. An unreasonable application of federal law is different from an incorrect application of federal law. Id. Relief is not proper where the State court decision is "merely erroneous." Early v. Packer, 537 U.S. 3, 10 (2002).

The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is the holdings of the Supreme Court as of the time of the relevant State court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000). Circuit law may be persuasive authority for purposes of determining whether a State court decision is an unreasonable application of Supreme Court law.Clark, 331 F.3d at 1070-1071.

To determine whether the State court's decision is contrary to, or involved an unreasonable application of, clearly established law, a federal court looks to the decision of the highest State court that addressed the merits of a petitioner's claim in a reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 669 n. 7 (9th Cir. 2000). The standard of review is somewhat different where the State court gives no reasoned explanation of its decision on a petitioner's federal claim and there is no reasoned lower court decision on the claim. In such a case, a review of the record is the only means of deciding whether the State court's decision was objectively reasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Greene v. Lambert, 288 F.3d 1081, 1088 (9th Cir. 2002); Bailey v. Newland, 263 F.3d 1022, 1028 (9th Cir. 2001); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). When confronted with such a decision, a federal court should conduct "an independent review of the record" to determine whether the State court's decision was an unreasonable application of clearly established federal law. Himes, 336 F.3d at 853; Delgado, 223 F.3d at 982; accord Lambert v. Blodgett, 393 F.3d 943, 970 n. 16 (9th Cir. 2004). The federal court need not otherwise defer to the State court decision under AEDPA: "A state court's decision on the merits concerning a question of law is, and should be, afforded respect. If there is no such decision on the merits, however, there is nothing to which to defer." Greene, 288 F.3d at 1089. In sum, "while we are not required to defer to a state court's decision when that court gives us nothing to defer to, we must still focus primarily on Supreme Court cases in deciding whether the state court's resolution of the case constituted an unreasonable application of clearly established federal law."Fisher v. Roe, 263 F.3d 906, 914 (9th Cir. 2001).

Under 28 U.S.C. § 2254, a federal court gives deference to a State court's factual determinations. Lambert, 393 F.3d at 968. A State court need not conduct an in-court evidentiary hearing on all issues for its fact-finding process to be reasonable within the meaning of 28 U.S.C. § 2254(d)(2). Buckley v. Terhune, 397 F.3d 1149, 1157-58 (9th Cir. 2005). Title 28 U.S.C. § 2254(e)(1) provides that "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."

If constitutional error is found, habeas relief is warranted only if the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).


I. Ineffective Assistance of Appellate Counsel

A. Background

Petitioner claims that appellate counsel was ineffective for failing to raise on direct appeal the argument that there was insufficient evidence to support the verdict of robbery. The California Supreme Court denied this claim without citation or comment.

Recounting all of the evidence presented, Petitioner admits that the facts demonstrate that he committed the crime of petty theft, in violation of California Penal Code §§ 484-488. However, he maintains that the facts were insufficient to support his conviction for the crime of robbery, because of the lack of evidence regarding the element of asportation, i.e., because use of force against the security guard, Mr. Carrion, in the parking lot did not result in Petitioner's escape with the property.

B. Applicable Federal Law

The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right. See Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of appellate counsel are reviewed according to the standard set out in Strickland v. Washington, 466 U.S. 668 (1984). Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989); United States v. Birtle, 792 F.2d 846, 847 (9th Cir. 1986). A habeas petitioner therefore must show that counsel's advice fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, he would have prevailed on appeal. Miller, 882 F.2d at 1434 n. 9 (citingStrickland, 466 U.S. at 688, 694; Birtle, 792 F.2d at 849).

Although the right to the effective assistance of counsel at trial is guaranteed to State criminal defendants by the Sixth Amendment as applied to the States through the Fourteenth, see Lucey, 469 U.S. at 392, the Sixth Amendment does not address a defendant's rights on appeal; the right to effective State appellate counsel is derived purely from the Fourteenth Amendment's due process guarantee, see id.

Appellate counsel does not have a constitutional duty to raise every non-frivolous issue requested by a criminal defendant.See Jones v. Barnes, 463 U.S. 745, 751-54 (1983); Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997); Miller, 882 F.2d at 1434 n. 10. The weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy. See id. at 1434 (footnote and citations omitted). Appellate counsel therefore will frequently remain above an objective standard of competence and have caused his client no prejudice for the same reason — because he declined to raise a weak issue. See id.

The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). A State prisoner who alleges that the evidence in support of his State conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt therefore states a constitutional claim, see Jackson v. Virginia, 443 U.S. 307, 321 (1979), which, if proven, entitles him to federal habeas relief, see id. at 324; see also, e.g., Wigglesworth v. Oregon, 49 F.3d 578, 582 (9th Cir. 1995) (writ granted where Oregon procedure of allowing lab reports regarding drug analyses to be admitted into evidence without authenticating testimony relieved State of its burden to prove beyond reasonable doubt all elements of crime charged); Martineau v. Angelone, 25 F.3d 734, 739-43 (9th Cir. 1994) (writ granted where evidence found insufficient to convict defendants of child abuse based on delay in seeking medical care for child).

Cf. Fiore v. White, 531 U.S. 225, 228-29 (2001) (due process violated where basic element of crime not proven because statute did not prohibit defendant's conduct).

A federal court reviewing collaterally a State court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992), cert. denied, 510 U.S. 843 (1993). The relevant question is instead "whether, `after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" See id. (quotingJackson, 443 U.S. at 319). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt may the writ be granted. See Jackson, 443 U.S. at 324; Payne, 982 F.2d at 338; Miller v. Stagner, 757 F.2d 988, 992-93 (9th Cir.), amended, 768 F.2d 1090 (9th Cir. 1985), cert. denied, 475 U.S. 1048, and cert. denied, 475 U.S. 1049 (1986); Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir.), cert. denied, 469 U.S. 838 (1984). This standard is applied "with an additional layer of deference" in light of AEDPA; the federal court must ask whether the State decision "reflected an `unreasonable application of' Jackson and Winship to the facts of this case." Juan H. v. Allen, 408 F.3d 1262, 1275 (9th Cir. 2005) (citing 28 U.S.C. § 2254(d)(1)).

If confronted by a record that supports conflicting inferences, a federal habeas court "must presume — even if it does not affirmatively appear on the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326. A jury's credibility determinations are therefore entitled to near-total deference. Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004). Except in the most exceptional of circumstances, Jackson does not permit a federal habeas court to revisit credibility determinations. See id. at 9527 (credibility contest between victim alleging sexual molestation and defendant vehemently denying allegations of wrong-doing not a basis for revisiting jury's obvious credibility determination); see also People of the Territory of Guam v. McGravey, 14 F.3d 1344, 1346-47 (9th Cir. 1994) (upholding conviction for sexual molestation based entirely on uncorroborated testimony of victim).

C. Analysis

Petitioner argues that the crime of robbery was not complete until he entered the parking lot and encountered the security guard, at which point the evidence shows that he did not take anything away because the stolen property was recovered.

Under California law on robbery, the element of taking by force or fear may be "satisfied if force or fear causes the victim to part with his property." People v. Brito, 232 Cal. App. 3d 316, 325 (1991). Asportation is a required element of robbery.People v. Estes, 147 Cal. App. 3d 23, 27. Contrary to Petitioner's interpretation, however, California law does not require that asportation coincide with or follow after use of force. The court in People v. Pham, 15 Cal. App. 4th 61, 65 (1993), rejected an insufficient evidence claim in a case involving analogous facts:

Under the facts of this case, we conclude the asportation or carrying away of the property occurred when defendant removed the victims' property . . . and began to flee. The asportation continued while defendant struggled with the victims and prevented them from immediately recovering their goods. Contrary to defendant's contention, robbery does not require that the loot be carried away after the use of force or fear.

(Emphasis in the original.)

For this reason, Petitioner has not shown that he had a viable insufficiency of the evidence claim that appellate counsel was required constitutionally to raise on appeal. There was no dispute that Petitioner carried the items away from the store. The disputed issue was proof of the element of taking accomplished by force or fear. See CALJIC No. 9.40 ¶ 4. Mr. Carrion testified that, after refusing to come back inside the store, Petitioner lurched forward strongly and elbowed him a few times. RT 32-33. This provided sufficient evidence from which a rational trier of fact could have concluded beyond a reasonable doubt that the taking was accomplished by force or fear.

Furthermore, appellate counsel did raise related issues on direct appeal, including whether the trial court's instruction to the jury regarding a robbery still in progress was prejudicially misleading and whether the trial court's instruction failed to include the asportation element. Petition for Review at 13-16.

Petitioner has not shown that appellate counsel's failure to raise an insufficiency of the evidence claim on direct appeal amounted to deficient performance, or that there is a reasonable probability that, but for counsel's failure to do so, he would have prevailed on appeal. The California Supreme Court's denial of Petitioner's ineffective assistance of appellate claim was not contrary to or an unreasonable application of Strickland. Accordingly, this claim for habeas corpus relief is DENIED.

II. Jury Instructions

A. Background

Petitioner raises the claim that a pattern of erroneous jury instructions diluted the presumption of innocence and reduced the prosecution's burden of proof, in violation of the Fourteenth Amendment. The jury instructions identified by Petitioner are (1) the preliminary misinstruction that if circumstantial evidence is susceptible of two reasonable interpretations, the jury must adopt that interpretation which points to guilt; (2) the final instruction on robbery in progress, which Petitioner claims was inapplicable; and (3) the final instruction on robbery, which did not separately delineate the asportation element. Petitioner claims that, combined, these alleged errors amounted to a de facto directed verdict, and "so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v. Naughton, 414 U.S. 141, 147 (1973)). The California Supreme Court denied this claim without citation or comment.

B. Applicable Federal Law

1. Challenges to Jury Instructions Cognizable in Federal Habeas Corpus Proceedings

A challenge to a jury instruction solely as an error under State law does not state a claim cognizable in federal habeas corpus proceedings. See Estelle, 502 U.S. at 71-72; see also, e.g., Stanton v. Benzler, 146 F.3d 726, 728 (9th Cir. 1998) (State law determination that arsenic trioxide is a poison as a matter of law, not element of crime for jury determination, not open to challenge on federal habeas review); Walker v. Endell, 850 F.2d 470, 475-76 (9th Cir. 1987) (failure to define recklessness at most error of State law where recklessness relevant to negate duress defense and government not required to bear burden of proof of duress), cert. denied, 488 U.S. 926 (1988).

To obtain federal collateral relief for errors in the jury charge, a petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. See Estelle, 502 U.S. at 72; Cupp, 414 U.S. at 147; see also Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) ("`[I]t must be established not merely that the instruction is undesirable, erroneous or even "universally condemned," but that it violated some [constitutional right].'"). The instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. See Estelle, 502 U.S. at 72. In other words, the court must evaluate jury instructions in the context of the overall charge to the jury as a component of the entire trial process. United States v. Frady, 456 U.S. 152, 169 (1982) (citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977)); Prantil v. California, 843 F.2d 314, 317 (9th Cir.), cert. denied, 488 U.S. 861 (1988);see e.g., Middleton v. McNeil, 124 S. Ct. 1830, 1831-32 (2004) (per curiam) (no reasonable likelihood that jury misled by single contrary instruction on imperfect self-defense defining "imminent peril" where three other instructions correctly stated the law).

Finally, the defined category of infractions that violate fundamental fairness is very narrow: "Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation." Estelle, 502 U.S. at 73.

2. Omission of Essential Elements

A jury instruction that omits an element of an offense is constitutional error subject to "harmless error" analysis. See Neder v. United States, 527 U.S. 1, 8-11 (1999) (direct review). Harmless error analysis applies whether the error is characterized as a mis-description of an element of an offense in a jury instruction, or as an omission of the element. See California v. Roy, 519 U.S. 2, 5 (1996) (omission of "intent" element from aiding and abetting instruction subject to harmless error analysis where jury could have found intent based on evidence it considered); Evanchyk, 340 F.3d at 940-41 (violation of due process based on jury instructions that omitted "intent" element of first-degree felony murder subject to harmless error analysis); Ho v. Carey, 332 F.3d 587, 595 (9th Cir. 2003) (violation of right to have jury decide every element of California offense of second-degree murder based on implied malice, because the trial court erroneously instructed the jury that the offense was a general-intent crime, subject to harmless error analysis); Arreguin v. Prunty, 208 F.3d 835, 837 (9th Cir. 2000) (violation of possible State-law-created qualified liberty interest by misdescription or omission of element in special circumstances instruction cured by State appellate court's harmless error analysis); United States v. Lin, 139 F.3d 1303, 1309 (9th Cir. 1998) (omission of intent element from charge of making ransom demands harmless error analysis).

To obtain federal collateral relief on the basis of jury instructions that erroneously omitted essential elements, a petitioner must show that omission "`had substantial and injurious effect or influence in determining the jury's verdict.'" Roy, 519 U.S. at 4 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)); see Roy v. Gomez, 108 F.3d 242, 242 (9th Cir. 1997) (on remand after California v. Roy).

C. Analysis

1. Preliminary Instruction Regarding Circumstantial Evidence

Petitioner claims that the erroneous preliminary instruction to the jury (that if circumstantial evidence is susceptible to two reasonable interpretations, the jury must adopt the one that points to guilt), in combination with the other alleged errors, diluted the prosecution's burden of proof and denied him his due process rights under the Fourteenth Amendment. As explained below, the other instructions were not erroneous. The circumstantial evidence instructional error, however, if uncured, would establish a mandatory presumption of guilt with respect to circumstantial evidence that would indeed violate Petitioner's due process rights. See Carella v. California, 491 U.S. 263, 265-66 (1989) (holding that States are prohibited from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every element). Therefore, the Court reviews the State court's application of harmless error analysis.

The State Court of Appeal found that there was not "a `reasonable likelihood' that the jury did not understand that it should adopt the interpretation pointing to innocence if the evidence could be reasonably construed in favor of innocence."Martinez, H017130 at 4 (citing Victor v. Nebraska, 511 U.S. 1, 6 (1994)). Although that portion of the trial court's preliminary instruction mis-stated the law, other portions directly preceding correctly described the burden of proof. In addition, the error was cured in part by the fact that the proper wording was included in the written instructions given to the jury upon deliberation. The attorneys repeatedly and accurately described the law in their closing arguments, further lessening the risk of harm. There was no evidence of juror confusion on this point. In the context of the instructions as a whole and the trial record, therefore, the conclusion of the Court of Appeal was not unreasonable.

Moreover, even assuming arguendo that the circumstantial evidence instruction did confuse the jury and thereby dilute the prosecution's burden of proof, Mr. Carrion's testimony provided direct evidence on the main issue disputed at trial, namely Petitioner's use of force. Thus, Petitioner has not shown that the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 638.

2. Robbery in Progress Instruction

Petitioner claims that the court erred in instructing on robbery in progress. Petitioner argues that this instruction was unrelated to the evidence at trial, and thus potentially confused the jury and contributed to a denial of due process. He relies onPeople v. Satchell, 6 Cal. 3d 28, 33 n. 10 (1971), overruled on other grounds by People v. Flood, 18 Cal. 4th 470 (1998), (explaining that trial court has a duty to refrain from instructing on principles of law which are irrelevant to issues raised by the evidence and have the effect of confusing the jury or relieving it from making findings on relevant issues); andPeople v. Jackson, 42 Cal. 2d 540, 546 (1954) (citing People v. Roe, 189 Cal. 548, 558 (1922)) (noting long-standing rule that "it is error to charge the jury on abstract principles of law not pertinent to the case").

Petitioner bases his argument on the proposition that, as a matter of California law, a robbery was not in progress when he exited the store because at that point he had used no force, and thus the robbery-in-progress instruction was inapposite. The Court of Appeal concluded, however, that the instruction correctly stated a principle of law connected with the case, relying on the broader definition of robbery set forth in Pham and Estes. This definition is correct. See Section I(C) above. Instruction on robbery in progress was not irrelevant to the facts of this case in light of the holding in Estes, quoted by the Court of Appeal,

The crime of robbery is a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety. It is sufficient to support the conviction that appellant used force to prevent the guard from retaking the property and to facilitate his escape. The crime is not divisible into a series of separate acts. Defendant's guilt is not to be weighed at each step of the robbery as it unfolds.
Martinez, H017130 at 7 (quoting Estes, 147 Cal. App. 3d at 28). The Court of Appeal's decision that the jury instructions, in relation to the facts of the case, were consistent with California law is therefore reasonable and not in error.

Nor did this instruction amount to a directed verdict in favor of the government. The jury was asked to find each element of the crime of robbery beyond a reasonable doubt. The jury was also instructed on the defense's alternative theory of self-defense. Therefore, the Court denies Petitioner's claim that the robbery in progress instruction contributed to a violation of his due process rights.

3. Failure to Instruct on Asportation Element

Finally, Petitioner claims that the court erred in its instruction setting forth the elements of robbery because it did not separately delineate the required asportation element. The trial court gave the CALJIC instruction on robbery, including the required taking element, "Such property was taken from [the victim] or from his immediate presence." The California Supreme Court has explained that this "taking element of robbery itself has two necessary elements, gaining possession of the victim's property and asporting or carrying away the loot." People v. Cooper, 53 Cal. 3d 1158, 1165 (1991) (citing People v. Perhab, 92 Cal. App. 2d 430 (1949)). Petitioner argues that the trial court was required to give sua sponte instructions that differentiated these aspects of the taking element. See People v. Sanchez, 35 Cal. 2d 522 (1950) (holding that court has duty to inform jury adequately "on the law governing all elements as necessary to enable them to perform their function in conformity with the applicable law").

In this case, Petitioner has not shown that failure to differentiate these two aspects of the taking element was constitutional error. The Court of Appeal characterized any further explication of the taking element as a potential "clarification" of the CALJIC robbery instruction, and ruled that Petitioner was therefore required to request such clarification or waive the issue. It relied on People v. Jones, 42 Cal. App. 4th 1047, 1055 (1996), in which the court found that the trial judge had no sua sponte duty to instruct the jury as to asportation in a robbery case. The Jones court reasoned,

Since CALJIC No. 9.40 states all the elements of robbery, including the elements "the person had possession of property of value however slight" which "was taken against the will of such person," it was incumbent on appellant to request clarifying language regarding asportation, if the defense deemed asportation to be in issue in the case. The failure to do so waives the issue on appeal.
In this matter, appellant did not request a more detailed explanation for the jury of the "taking" or "asportation" element of robbery. The facts of the case do not present any special issue of taking or asportation. That aspect of the robbery was well established. Accordingly, the issue is waived on appeal by reason of the failure to request the complained-of instruction.
42 Cal. App. 4th at 1055 (internal citations omitted). California law therefore did not require the trial court to instruct on asportation, and the Court of Appeal's affirmance was not clearly erroneous or an unreasonable application of State law, much less of clearly established United States Supreme Court law.

Furthermore, Petitioner has identified no actual prejudice resulting from the failure to instruct sua sponte on asportation specifically, and has not shown that the facts of the case present a special issue of taking warranting such an instruction. The parties at trial did not dispute that the taking of the property from the store into the parking lot satisfied the asportation element. Prejudice would only attend this issue if Petitioner's position on robbery generally were correct, i.e., that use of force or fear must accompany the initial act of acquiring the victim's property in order to satisfy the taking element. But see Section I(C), supra. Therefore, the Court denies Petitioner's claim that failure to instruct specifically on asportation contributed to a violation of his due process rights.

III. Confrontation Clause

A. Background

Petitioner was charged with having suffered four prior convictions qualifying as serious felonies under California's Three Strikes law. In 1975, Petitioner plead guilty to assault with intent to commit a felony, former Penal Code section 221. In 1983, on a plea of no contest, Petitioner was convicted of kidnaping, assault with intent to commit rape with personal use of a knife and assault with a knife. The trial court found each was a serious felony. Petitioner now claims that this finding with respect to the 1975 conviction violated his rights under the Confrontation Clause because it was based on information contained in preliminary hearing transcripts without a prior showing that the witnesses from the preliminary hearing were unavailable.

According to the Court of Appeal, the 1975 conviction was relevant to the prosecution's decision to file a Three Strikes case. Martinez, H017130 at 20. The district attorney's written charging policy barred Three Strikes filings where the requisite felony strikes all involved the same victim. Id. at 19.
The Court notes that the trial court's finding of a serious prior felony based on the 1975 conviction was not necessary in order to sentence Petitioner under the Three Strikes Law, nor was the district attorney's charging policy constitutionally mandated.

To prove the 1975 alleged strike, the prosecution offered a packet of documents, including an Amended Abstract of Judgment and, over the defense's unsuccessful hearsay objection, a Preliminary Examination Transcript. See CT 225-292. The Amended Abstract of Judgment states that Petitioner "was not charged and admitted being, or was found to have been armed with a deadly weapon at the time of commission of the offense." CT 230 (emphasis added). However, the Preliminary Examination Transcript contains testimony by the victim that Petitioner held a knife to her face while threatening her with forced oral copulation. CT 256. The parties agreed that personal use of a dangerous or deadly weapon was "the only factor that would render it a serious felony." Martinez, H017130 at 16. The Court of Appeal explained this apparent discrepancy in the 1975 papers:

[A] careful reading of the record of the prior conviction, i.e., the abstract of judgment and the magistrate's factual findings demonstrate that these conclusions that defendant did not use a weapon are based on relevant statutory provisions at that time and concern additional punishment for specific weapons, including a knife of a certain size. (See former Pen. Code, §§ 969c and 3024.)
Id. at 16-17.

The Court of Appeal held that admission of the preliminary hearing transcripts did not violate Petitioner's rights under the Confrontation Clause, finding People v. Reed, 13 Cal. 4th 217, 223-230 (1996), to be controlling authority. In Reed, the California Supreme Court concluded that former testimony found in preliminary hearing transcripts, while hearsay, was nonetheless admissible under the exception for prior testimony of an unavailable declarant, California Evidence Code § 1291(a), in order to prove in a sentence enhancement proceeding that a criminal defendant's prior conviction was for a serious felony. The court reasoned that even if prior witnesses are not actually unavailable, they are legally unavailable for purposes of § 1291(a) under the rule in People v. Guerrero, 44 Cal. 3d 343 (1988), which precludes the prosecution from presenting any evidence outside the record of conviction to prove the circumstances of the prior crime. Reed, 13 Cal. 4th at 225. Petitioner argues that the California Supreme Court's holding inReed violates the Confrontation Clause, as interpreted by the United States Supreme Court.

B. Applicable Federal Law

The Confrontation Clause of the Sixth Amendment provides that in criminal cases the accused has the right to "be confronted with witnesses against him." U.S. Const. amend. VI. The federal confrontation right applies to the States through the Fourteenth Amendment. See Pointer v. Texas, 380 U.S. 400, 403 (1965).

In Specht v. Patterson, 386 U.S. 605, 609-10 (1967), the Supreme Court found that the right to confrontation applied during a sentence enhancement proceeding to determine whether a defendant convicted of a crime under one statute qualified for sentencing under another statute, the Colorado Sex Offenders Act, which involved an independent determination as to whether the defendant "constitutes a threat of bodily harm to members of the public, or is an habitual offender and mentally ill." The Supreme Court found that the defendant in Specht was entitled to be present with counsel and to an opportunity to be heard, confront witnesses, cross-examine and offer evidence. Therefore, the right to confrontation applies when a defendant has been charged with a sentence enhancement which requires proof of the fact of a prior conviction. See Camillo v. Armontrout, 938 F.2d 879, 880 (8th Cir. 1991) (due process required under Specht when enhanced punishment depends on evidence of prior criminal convictions);cf. United States v. McDougherty, 920 F.2d 569, 575-76 (9th Cir. 1990) (Specht not applicable where career offender sentencing enhancement prescribed by same statute under which defendant convicted), cert. denied, 499 U.S. 911 (1991).

C. Analysis

Other federal district courts to examine this issue previously have concluded that the holding in Reed and its interpretation of the requirements of California's Evidence Code are consistent with the federal Constitution. In Esparza v. Lockyer, 2001 WL 1528384, **4-6 (N.D. Cal. 2001), the court assumed arguendo that the right to confrontation applied to California's three strikes sentencing proceedings, but concluded that testimony from preliminary hearing transcripts was admissible as an exception to the hearsay rule in accordance with Ohio v. Roberts, 448 U.S. 56, 65 (1980), which allowed hearsay testimony of an unavailable witness so long as it had adequate indicia of reliability. See also Watson v. White, 1996 WL 617309 (N.D. Cal. 1996) (concluding that prior preliminary hearing testimony met the Roberts requirements and upholding Reed).

However, since these cases were decided and after this petition was fully briefed, the United States Supreme Court decidedCrawford v. Washington, 541 U.S. 36 (2004), overruling the standard for allowing out-of-court statements articulated inRoberts and Idaho v. Wright, 497 U.S. 805, 814-15 (1990). Moreover, the Ninth Circuit recently found Crawford retroactive, applying it to a petition for a writ of habeas corpus where the petitioner's conviction had been final before the Supreme Court handed down the Crawford decision. Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005), amended by and reh'g denied, Bockting v. Bayer, 408 F.3d 1127 (9th Cir. 2005) (noting petition for rehearing en banc pending before court).

The Supreme Court has not yet addressed the retroactivity of Crawford. No other circuit has applied Crawford retroactively; the reasons for not doing so are varied. See, e.g., Evans v. Leubbers, 371 F.3d 438 (8th Cir.), cert. denied sub nom., Evans v. Roper, 125 S. Ct. 902 (2005) (finding Crawford did not apply to the facts before the court, but stating a belief that the ruling would not be retroactive because the Court did not suggest it would be and it does not appear to fall within the Teague exceptions); Brown v. Uphoff, 381 F.3d 1219, 1226 (10th Cir.), cert. denied, 125 S. Ct. 940 (2005) (finding Crawford announces a new rule, but is not retroactive under Teague because the decision does not announce a watershed rule of criminal procedure); Mungo v. Duncan, 393 F.3d 327, 336 (2d Cir. 2004) (concluding that ifCrawford does announce a new rule, it is not retroactive because it does not improve overall accuracy as required by theTeague exceptions); Owens v. Frank, 394 F.3d 490, 501 (7th Cir. 2005) (declining to rule on the issue, but noting the Tenth Circuit's determination in Brown v. Uphoff, 381 F.3d 1219, 1225-26 (10th Cir. 2004), that Crawford should not be applied retroactively); Dorchy v. Jones, No. 04-1797, 2005 U.S. App. LEXIS 3085, at *11 (6th Cir. Feb. 23, 2005) (court did not allow petitioner to rely on Crawford because it was not retroactive under Teague).

Under Crawford, out-of-court testimonial statements may be admitted only where the declarant is unavailable and the opposing party had a prior opportunity for cross-examination. Crawford, 541 U.S. at 59. Unavailability is governed by relatively strict rules requiring that the witness be "demonstrably unable to testify in person." Id. at 45.

The Court assumes, arguendo, that the Confrontation Clause does apply to sentencing proceedings involving determinations under California's Three Strikes law. In accordance with the Ninth Circuit's decision in Bockting, this Court thus must determine whether the California Court of Appeal's decision relying on Reed was "contrary to" or "an unreasonable application of" the confrontation right defined in Crawford. Bockting, slip op. at 2010; 28 U.S.C. § 2254(d)(1)-(2).

The California Supreme Court assumed that there was a constitutional right to confront witnesses in sentence enhancement proceedings. Reed, 13 Cal. 4th at 228 (quotingSpecht, 386 U.S. at 610); see also Esparza at *4 (assumingarguendo that Confrontation Clause applies to California's habitual offender sentencing enhancement proceeding). Neither the United States Supreme Court nor the Ninth Circuit has addressed this issue directly. In addition, the applicability of Crawford to trials on sentence enhancement allegations is an issue that the Court need not resolve here.

The California Supreme Court in Reed focused on the issue of availability, and found preliminary hearing witnesses to be "legally unavailable" under Guerrero and California Penal Code § 1291(a). 13 Cal. 4th at 225. Crawford does not limit the concept of unavailability to literal, physical absence; indeed, in that case the declarant was unavailable because she was legally barred from testifying at trial by Washington State rules of evidence. Here, the witness who testified prior to Petitioner's 1975 conviction was unavailable, under California law, to testify at his court trial on sentence enhancement under the Three Strikes law.

Upon examination of the preliminary hearing transcript at issue, the Crawford bright-line requirement of a prior opportunity for cross examination is also easily met. Petitioner himself attended the hearing, where he was represented by counsel, who cross-examined the victim. The cross-examination focused in particular on Petitioner's alleged use of the knife, and the victim revised somewhat her prior estimate of the length of the knife. CT 263-65.

Thus, the Court finds that the Court of Appeal's conclusion that Petitioner was not deprived of his right to confront the witnesses against him was not contrary to or an unreasonable application of settled federal law, including Crawford. Petitioner's claim is therefore denied.


For the foregoing reasons, the petition for writ of habeas corpus is DENIED. The Clerk shall enter judgment and close the file.