Civil No. 13cv1756-BTM (PCL)
(1) ADOPTING IN PART AND DECLINING TO ADOPT IN PART THE FINDINGS AND CONCLUSIONS OF UNITED STATES MAGISTRATE JUDGE;
(2) DENYING PETITION FOR A WRIT OF HABEAS CORPUS; and
(3) ISSUING A CERTIFICATE OF APPEALABILITY
Danny Vinci (hereinafter "Petitioner"), is a California prisoner proceeding pro se and in forma pauperis with a Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254, challenging his San Diego Superior Court convictions for assault with caustic chemicals, making a criminal threat, and corporal injury to a spouse or cohabitant. (ECF No. 1.) He alleges here, as he did in state court, that his federal Constitutional rights were violated by the admission of propensity evidence in the form of the testimony of three former girlfriends regarding prior acts of domestic violence, and by the admission of the prior testimony of one of those witnesses after she was declared unavailable without a showing that the prosecutor had made a good-faith effort to secure her presence at trial. (Pet. at 16-36.)
United States Magistrate Judge Peter C. Lewis has filed a Report and Recommendation ("R&R") which recommends the Petition be denied because the adjudication of the claims by the state court is neither contrary to, nor involves an unreasonable application of, clearly established federal law. (R&R at 8-14.) Petitioner has not filed Objections to the R&R.
The Court has reviewed the R&R pursuant to 28 U.S.C. § 636(b)(1), which provides that: "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). For the following reasons, the Court ADOPTS the Magistrate Judge's findings and conclusions as to Claims 1-3, REJECTS the findings and conclusions as to Claim 4, which it will consider in the first instance, DENIES the Petition, and ISSUES a Certificate of Appealability as to all claims.
1. Claims 1-3
Petitioner alleges in Claims 1-3 that his federal constitutional right to due process was violated by the admission of propensity evidence in the form of testimony by three prior girlfriends regarding acts of domestic violence by Petitioner, and alleging that the two California Evidence Code sections permitting admission of that evidence are unconstitutional on their face and as applied. (Pet. at 16-33.) The Magistrate Judge correctly found that the Ninth Circuit has held that because the United States Supreme Court has specifically reserved ruling on the issue regarding whether introduction of propensity evidence in a state trial could violate federal due process, and has denied certiorari at least four times on the issue since, there is no "clearly established federal law" on the issue, precluding habeas relief where 28 U.S.C. § 2254(d) applies. Alberni v. McDaniel, 458 F.3d 860, 866 (9th Cir. 2006).
The Court ADOPTS the Magistrate Judge's findings and conclusions that Petitioner has not satisfied the requirements of 28 U.S.C. § 2254(d) with respect to Claims 1-3, and DENIES habeas relief as to those claims for the reasons set forth in the R&R.
2. Claim 4
In his final claim, Petitioner alleges that his federal Constitutional right to confront the witnesses against him was violated by the finding that Amy Seckman, one of the three women who testified about prior instances of domestic violence, was unavailable to testify at his trial without a showing that the prosecution had made a good-faith effort to secure her attendance. (Pet. at 33-36.) The Magistrate Judge found that Petitioner had not satisfied the requirements of 28 U.S.C. § 2254(d) with respect to the state court adjudication of this claim. (R&R at 13-14.) Specifically, the Magistrate Judge found that the state court's finding that the witness was medically unavailable was not an unreasonable application of clearly established federal law which provides that the prosecution must make a good-faith effort to secure the presence of a witness at trial before she is considered unavailable, but that a federal habeas court cannot grant relief merely because additional steps may have been taken to secure the witness. (Id.) The Magistrate Judge found the prosecutor had reasonably relied on the fact that the witness had cooperated and appeared voluntarily in the past, and the failure to subpoena her did not defeat a showing of good faith. (Id.) Finally, the Magistrate Judge found that because the witness had been cross-examined during her prior testimony, the confrontation requirement had been satisfied. (Id.)
At the end of the prosecution's case-in-chief, just before Amy Seckman, the last prosecution witness, was scheduled to testify, the following exchange took place: The Court: We need to deal with the issue of the L.I.O. We need to deal with the issue of the witness. [Prosecutor]: Let's begin with the witness. My first problem was I thought she wouldn't be here until tomorrow, but that's no longer the bigger issue. She's not going to be here at all. Her child went into surgery. We knew that there was always a possibility of some problem with her child. Her child was sick for quite some time, but didn't think it would come down to this. But in any event, she will not be here. She will not be testifying.
She is not subpoenaed. She is out of state. We did not use an out-of-state subpoena because she was cooperative all along. She cooperated in the first trial, voluntarily flew out and testified, and was just as cooperative even now. It's only due to these unexpected circumstances that she's not coming. So she won't be testifying.
The next issue is whether or not I can put her testimony on through Evidence Code 1294 or by agreement of defense counsel. The one concern I have, I've looked at Evidence Code 1294 prior testimony; and I've also looked at section 240 which requires 1294 for the witness to be unavailable. And my only legal concern is whether she is actually unavailable and whether the court would be willing to find her unavailable. The law requires that the prosecution make a good faith effort to secure attendance of this witness.
I have my paralegal present. If necessary, she could certainly testify to all of the efforts she made. However, I have to concede she has not been subpoenaed, so we have not made proper efforts through an out-of-state subpoena. I concede that. We have made certainly diligent efforts in terms of working with her and making arrangements with her. So that's - you know, I'll just - that's where we stand on that issue.
The Court: Okay. Ms. Cannon [Defense counsel]. Ms. Cannon: Without proper proof of service, I think they have not shown due diligence. We're just hearing that there could be this problem with the witness. There's no proof of that. She certainly is not under any compulsion to be here, under any court order to be here. They haven't done the first thing that's required to do due diligence. [¶] The other thing that I would argue is that it's cumulative anyway and an undo waste of time. But more importantly, I don't think they established the elements. The Court: I'll find she's medically unavailable. Therefore, you can read her through her prior testimony. (Lodgment No. 2, Reporter's Tr. ["RT"] at 1768-69.)
Petitioner alleged on direct appeal, as he does here, that his Sixth Amendment right to confront Seckman was violated because the prosecution conceded it had made no efforts to procure her presence at trial, and that the state law exception for medical unavailability applies only to witnesses, not their children. (Lodgment No. 3 at 57-66.) Petitioner also alleged the error was prejudicial because her testimony involved egregious conduct by Petitioner, which was remote in time, of his having thrown a patio chair through Seckman's window, threatened her with a gun, and defaced her house, and because the defense objections made during her previous testimony were redacted when her testimony was read to the jury. (Id. at 66-68.)
The last reasoned decision of the state court with respect to this claim is the state appellate court opinion, which states:
Evidence Code section 1291, subdivision (a)(2) provides a hearsay exception for former testimony when the witness is unavailable and "(t)he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing."
The record here shows that Seckman intended to testify at trial but could not do so because her daughter had surgery. In disclosing this fact, the prosecutor noted that Seckman, although living out of state, had not been subpoenaed because all along she had been cooperative, including voluntarily appearing to testify in Vinci's first trial, [FN 9: Vinci's first trial ended in a mistrial after a witness (not
Seckman) testified about an incident previously ruled inadmissible by the court] where she was subject to cross-examination. Based on the prosecutor's representation, the trial court ruled Seckman was "medically unavailable" and, as noted ante, allowed her former testimony on direct and cross-examination to be read into the record.
Vinci contends the trial court erred and violated his right to "confront" a witness (see U.S. Const., 6th Amend. & Cal. Const., art. I, § 15) when it found Seckman "unavailable" under Evidence Code section 1291 and allowed her former testimony to be read into the record at trial. We disagree.
"Both the United States Supreme Court and (our Supreme Court) have concluded that 'when a defendant has had an opportunity to cross-examine a witness at the time of his or her prior testimony, that testimony is deemed sufficiently reliable to satisfy the confrontation requirement (citation), regardless whether subsequent circumstances bring into question the accuracy or completeness of the earlier testimony. (Citation.)'" (People v. Wilson (2005) 36 Cal.4th 309, 343, citing California v. Green (1970) 399 U.S. 149 (90 S.Ct. 1930).)
In any event, even assuming the trial court erred in finding Seckman medically unavailable for purposes of Evidence Code section 1291 based on the representation of the prosecutor, we conclude that error was harmless beyond a reasonable doubt. (See People v. Geier (2007) 41 Cal.4th 555, 608 (applying harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24 (87 S.Ct. 824) to alleged confrontation clause violation).) Indeed, the record shows Seckman testified in Vinci's first trial and was subject to rigorous cross-examination regarding Vinci's acts of domestic violence against her. In addition, the record also shows that O'Dell and Leicester each testified about prior acts of domestic violence by Vinci. Thus, evidence of Vinci's prior acts of domestic violence did not hinge solely or exclusively on Seckman's testimony.
Finally, the evidence against Vinci with respect to the charged crimes was overwhelming and, in any event, as we have noted Vinci does not directly challenge the sufficiency of that evidence in contending the trial court erred in finding Seckman unavailable. That evidence included the testimony of two eyewitnesses who saw Vinci spray Kopp with a liquid that smelled like gasoline (count 1, assault with caustic chemicals in violation of section 244) and then pursue her as she attempted to get away; Vinci's threat to Kopp when he sprayed her with gasoline that "(y)ou're going to die, you fucking bitch" as he attempted to light her on fire (count 2, making a criminal threat in violation of section 422); and the testimony of Kopp that on February 21, 2010, Vinci choked her after she refused to return to the bedroom with him, which testimony was corroborated by a series of photographs taken after the incident showing bruising to Kopp's neck, face, chest and arms; a laceration to her tongue that she bit during the struggle to free herself; and discoloration to her eyelids from small blood vessels that had burst while she was being choked (count 4, corporal injury to a spouse or cohabitant in violation of section 273.5, subd. (a)).
We thus conclude beyond a reasonable doubt that a rational jury would have found Vinci guilty of counts 1, 2 and 4 absent the trial court's presumed error in admitting Seckman's former testimony recounting acts of domestic violence by Vinci.
(Lodgment No. 6, People v. Vinci, No. D060481, slip op at 20-23 (Cal.Ct.App. Oct. 4, 2012).)
"The constitutional requirement that a witness be 'unavailable' before his prior testimony is admissible stands on separate footing that is independent of and in addition to the requirement of a prior opportunity for cross-examination." United States v. Yida, 498 F.3d 945, 950 (9th Cir. 2007), citing Barber v. Page, 390 U.S. 719, 724-25 (1968) (holding that admission of prior testimony violated the Confrontation Clause because the state did not prove the witness was unavailable irrespective of whether the witness was cross-examined during prior testimony). Thus, the state appellate court, to the extent it found the federal confrontation requirement had been satisfied because Seckman had been cross-examined during her previous testimony irrespective of whether a good faith attempt was made to secure her attendance at trial, rendered a decision that is contrary to, or an unreasonable application of, clearly established federal law. Williams v. Taylor, 529 U.S. 362, 405-07 (2000) (holding that a state court's decision may be "contrary to" clearly established Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [the Court's] cases"; and that a state court decision may involve an "unreasonable application" of clearly established federal law, "if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case.")
In addition, clearly established federal law provides that "a witness is not 'unavailable' for purposes of the . . . confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial." Hardy v. Cross, 565 U.S.___, 132 S.Ct. 490, 493 (2011), citing Barber, 390 U.S. at 724-25. The Magistrate Judge correctly noted that "the deferential standard of review set out in 28 U.S.C. § 2254(d) does not permit a federal court to overturn a state court's decision on the question of unavailability merely because the federal court identifies additional steps that might have been taken." Hardy, 132 S.Ct. at 494; but see Barber, 390 U.S. at 723 (finding lack of good faith where "the State made absolutely no effort to obtain the presence of [the witness] at trial other than to ascertain that he was in a federal prison [in another state].") As quoted above, the prosecutor admitted they had anticipated a possibility that the witness may have a problem with her child but did not subpoena her, and offered to provide information on what efforts had been expended to secure Seckman's presence at trial. However, a record was not made on what efforts were taken. In their response on direct appeal to Petitioner's contention that there was no showing of a good faith effort, the People provide no details regarding their efforts in that regard, arguing only that any error in that regard was harmless. (See Lodgment No. 23 at 10-13.) Thus, the record does not support a finding, one way or the other, whether the prosecution made a good-faith effort to secure Seckman's attendance. See Ohio v. Roberts, 448 U.S. 56, 74 (1980) ("The lengths to which the prosecution must go to produce a witness is a question of reasonableness . . . [and] the ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness."), overruled on other grounds by Crawford v. Washington, 541 U.S. 36, 60 (2004). In making the determination of unavailability without developing the record regarding the steps taken by the prosecutor to secure the attendance of the witness, the state appellate court's finding of unavailability is contrary to, or an unreasonable application of, clearly established federal law in that respect as well. Williams, 529 U.S. at 405-07; Hardy, 132 S.Ct. at 494; Roberts, 448 U.S. at 74; Barber, 390 U.S. at 723. The Court DECLINES to adopt the Magistrate Judge's findings and conclusions with respect to Claim 4, and will address the claim in the first instance.
As set forth above, the state appellate court found the error harmless. The Supreme Court has indicated that when a federal habeas court is reviewing a state court's harmless error determination under Chapman v. California, 386 U.S. 18 (1967), as here, it is required to determine whether the assumed error was harmless under the standard of Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), even if Petitioner has satisfied the provisions of 28 U.S.C. § 2254(d). Fry v. Pliler, 551 U.S. 112, 119-22 (2007); see Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010) (holding that a federal habeas court "need not conduct an analysis under AEDPA of whether the state court's harmlessness determination on direct review . . . was contrary to or involved an unreasonable application of clearly established federal law . . . because the Brecht test 'obviously subsumes' the more liberal" AEDPA standard), quoting Fry, 551 U.S. at 119-20. Thus, although Petitioner has satisfied the provisions of § 2254(d) with respect to the unavailability prong of his confrontation claim, he is not entitled to federal habeas relief unless he can show that the error in finding Seckman unavailable without ensuring the prosecution had made a good faith effort to secure her presence at trial had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637.
As the appellate court pointed out, the evidence against Petitioner was overwhelming. His victim testified that after Petitioner hit her in the head with an "extremely hard blow," she learned that three other women had restraining orders against him, and decided to end the relationship. (RT 1356-58, 1453-57.) The victim testified about three "stalking incidents" thereafter where Petitioner frightened her. (RT 1360-65.) On one occasion, after those incidents, Petitioner choked her to the point where she felt herself "slipping away," thought she was going to die, and lost control of her bladder, and he stopped only because her dog attacked him. (RT 1369-78, 1460-67.) Corroborative evidence of the incident included photographs of her neck, face, chest and arms showing they were bruised, that blood vessels in her eyes had burst, and her tongue was lacerated. (RT 1383-88.) On another occasion, the victim drove to a dance studio to pick up her granddaughter, arrived early, and while waiting in the car smelled gasoline and saw Petitioner behind the car with a "very strange" and angry look on his face. (RT 1389-96.) When she tried to exit the vehicle, Petitioner attempted to stop her, and then squirted her with a liquid that smelled like gasoline wetting her hair, face and clothes, said: "You're going to die, you fucking bitch," and attempted to set her on fire, but his lighter failed. (RT 1396-1401.) Three bystanders testified that they observed the incident. (RT 1546-1679.) When Petitioner was arrested, an empty gas can and several lighters, some of which worked and some which did not, were found in the car. (RT 1614-19.)
In addition to Seckman, two of Petitioner's former girlfriends, O'Dell and Leicester, testified about acts of domestic violence by Petitioner. O'Dell testified that when she broke up with Petitioner after a three-week relationship in 1999 he locked her in a garage and pushed her to the floor. She escaped and attempted to call 911 but he ripped the phone cord out of the wall. As she drove away he hit and dented the hood of her truck and pursued her in his vehicle for some distance. (RT 1492-98.) She obtained a restraining order against him. (RT 1498-99) Leicester testified that on one occasion in 2008 during their relationship Petitioner, in reaction to her telling him that she was not feeling up to having sex, swung his fist at her face and hit her in the back of the head "really hard" as she turned away. (RT 1658-60.) She obtained a restraining order which forced him to move out. (RT 1660-70.)
Seckman testified that in 2000 when she called off her one-month relationship with Petitioner he began stalking her, calling at all hours, leaving notes on her car, and knocking on her door. (RT 1778-81.) On one occasion shortly after their breakup, she was in her home with a male friend when Petitioner called and said he did not like her having another man in the house. He called her a bitch and a whore, and seconds later a chair came flying through a window. (RT 1781-85.) She admitted she did not see Petitioner throw the chair. (RT 1795.) While the police were there taking a report, Petitioner called, and while the police listened, he said he was watching her and had a gun pointed at her. (RT 1786-87.) Seckman testified that when she went away for a weekend, she returned and found "slut" written on a house window, notes stuck to the front door and to her tires with hypodermic needles calling her a "whore and a bitch and a slut," and flat tires on her vehicle. (RT 1788-90.)
As recounted above, there was overwhelming direct evidence, in the form of the victim's testimony, to support Petitioner's convictions for assault with caustic chemicals, making a criminal threat, and corporal injury to a spouse or cohabitant, with the first independently supported by bystander testimony, and the latter by photographic evidence. The testimony of O'Dell and Leicester involved physical assaults by Petitioner, whereas Seckman's testimony did not involve physical assaults, and included her admission that she did not see Petitioner throw the chair through the window. The Court is certainly mindful of the reasons why live testimony is preferred over reading prior testimony from a cold record. See Yida, 498 F.3d at 950-52 (identifying such reasons as including the ability to observe the demeanor of the witness, inability to update the testimony with recent events, lack of ability to expose inconsistencies between new and prior testimony, and allowing the prosecution the opportunity to decide whether live or prior testimony is more useful). Nevertheless, as Seckman's testimony was less powerful than, and largely cumulative to that of, O'Dell and Leicester, Petitioner has not shown that the admission at his trial of Seckman's testimony from a prior trial without a finding that the prosecutor had made a good-faith effort to secure her presence at trial had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637. Accordingly, the Court DENIES habeas relief with respect to Claim 4.
3. Certificate of Appealability
The Court is mindful of the "relatively low" threshold for granting a Certificate of Appealability, Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002), that "the petitioner need not show that he should prevail on the merits," Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000), but may be entitled to a certificate when the "questions are adequate to deserve encouragement to proceed further." Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983) (citation omitted), superseded on other grounds by 28 U.S.C. § 2253(c)(2). The Court finds a Certificate of Appealability is appropriate for all claims presented in the Petition.
4. Conclusion and Order
The Court ADOPTS IN PART and DECLINES TO ADOPT IN PART the findings and conclusions of the Magistrate Judge, as set forth above. The Petition for a Writ of Habeas Corpus is DENIED, and the Court ISSUES a Certificate of Appealability as to all claims presented in the Petition.
The Clerk of Court shall enter judgment denying the Petition and issuing a Certificate of Appealability as to all claims in the Petition.
IT IS SO ORDERED. DATED: September 1, 2015
BARRY TED MOSKOWITZ, Chief Judge
United States District Court