Opinion
No. C 04-01821 WHA.
August 17, 2004
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
Petitioner Carleton Cook is in state custody awaiting a retrial on charges of first-degree murder and robbery in San Mateo County Superior Court. This second trial follows a state appeals court's ruling that the trial court in the first trial improperly removed a juror during deliberations and replaced him with a sworn alternate. Petitioner filed this petition for writ of habeas corpus under 28 U.S.C. 2254 seeking to bar the second trial on double jeopardy grounds. This order holds that relief is not warranted. The second state prosecution shall go forward.
STATEMENT
On October 28, 1997, the decomposing body of Jesus Banuelos, a mid-level drug dealer, was found in San Francisco nine days after his disappearance had been reported to authorities. A medical examination revealed that Banuelos had been the victim of a homicide. His skull had been fractured in several places and the cause of death was determined to be blunt trauma to the head. Petitioner was arrested and charged shortly thereafter.
At trial, the prosecution argued that Banuelos had been killed while involved in a drug transaction with petitioner in petitioner's motel room. Banuelos' body was found wrapped in a bedspread similar to the bedspreads used at the motel in which petitioner resided. Police also discovered a stained area of carpet in petitioner's motel room. When the area of carpet was removed, the police found blood and smelled an odor of human decay. The blood in petitioner's motel room matched Banuelos' genetic profile. Evidence was also introduced that shortly after the murder, petitioner pawned items of Banuelos' jewelry. Accordingly, the prosecution's theory was that petitioner had struck Banuelos in the head from behind and then pawned his jewelry, suggesting that robbery was the motive for the murder.
The case went to the jury after six months of evidence. On December 21, 2000, after three days of deliberations, the jury sent a note to the court indicating that it had reached an impasse as to the charge of first-degree murder. Petitioner requested a mistrial as to that count. The court denied the motion. Given the length of the trial and the large amount of evidence submitted, the court ordered the jury to continue in its deliberations.
The jury was sent home for the Christmas holiday and returned to continue its deliberations on December 27, 2000. The jury that morning sent five notes to the court in succession before the court had an opportunity to respond to any individual note. The last two notes are of relevance here. One note stated:
A philosophical dilemma. A juror/jurors, feels it is impossible to consider the intent of a crime because the only way to know intent is to be in the defendant's mind. Since that is impossible, the juror/jurors cannot consider a charge that the court asks the juror/jurors to.
Also, the juror/jurors cannot consider the word "deliberate" . . . because the only way to know if one deliberated even for a second is to be in the defendant's mind.
Can you give us guidance?
We have read the instructions over and over and over ad infinitum regarding "reasonable" versus unreasonable.
Does a "reasonable" . . . scenario need to have any basis in fact/evidence or can it be speculative? (Opin. 5). While the court and counsel debated how to respond, the jury sent out a final note which read "I have a juror that believes there does not have to be a resolution to issues or a verdict" ( id. at 6). The court determined that this last note reflected a juror's belief that he could not consider intent without being in petitioner's mind and thus could not follow the court's instructions. The court commenced an inquiry to investigate possible juror misconduct ( ibid.).
The court first questioned Juror 10, the jury's foreperson. The foreperson reported that one juror was refusing to follow the court's instructions, was not participating in deliberations and was "staring out the window" and "snickering" ( ibid.). When asked how long the juror had been refusing to participate in deliberations, the foreperson stated that the juror had shown "low levels" of participation the first afternoon of deliberations and had participated "sporadically" the next day ( ibid.). This "attitude" had persisted for eighty to ninety percent of the jury's deliberations ( id. at 7-8). The foreperson identified Juror 11 as the allegedly offending juror.
The court called Juror 11 for questioning. He denied having any trouble deliberating with his fellow jurors. He claimed that he had done "quite a lot of talking" for two and a half days and had listened to the other jurors ( id. at 8-9). At that point in the deliberations, however, he had "nothing else to say." When Juror 11 was asked whether he felt he was able to follow all the court's instructions, he responded "[a]bsolutely" ( id. at 9). Finding the positions of Juror 10 and Juror 11 "diametrically opposed," the court indicated it would question additional jurors to resolve the conflict.
The court questioned Juror 12. He indicated that Juror 11 was not deliberating. He had participated only a "little bit" at the beginning of the jury's deliberations. On the day in question, however, he was just "looking out the window and not participating" ( id. at 10). Although Juror 11 had previously explained his position to the rest of the jury and proffered facts in support thereof, when told he needed to continue to participate in the deliberations Juror 11 purportedly stated "I don't need to. I'm not going to change my mind. That's it" ( id. at 11). When the foreperson asked Juror 11 a question, he said he "didn't need to speak or to prove himself or to give his opinion" ( ibid.). The court asked whether the jury had taken a vote. Juror 12 said that it had but the result was not eleven to one ( ibid.).
Juror 2 was questioned next. He said that it was not that Juror 11 was not participating in the deliberations. At the beginning of the deliberations, Juror 11 had "opened a lot of jurors' minds" ( id. at 14). Now, however, Juror 11 "feels no matter what is discussed, no matter what questions come up, what answers come up, he feels that . . . [t]here is doubt, okay. And, you know, he is listening to us but he is not commenting" ( id. at 12). Giving Juror 11 the "benefit of the doubt," Juror 2 stated that he believed that Juror 11 "is open enough that if he hears something that may push him into a different direction, we have movement. But at this point in time I don't thing he feels that there is anything out there that would change that doubt" ( id. at 12-13). As to whether Juror 11 was deliberating, Juror 2 stated that "[h]e is sitting there taking everything in" ( id. at 14). According to Juror 2, Juror 11 was following the court's instructions.
The last juror questioned was Juror 5, who said Juror 11 was "somewhat" refusing to follow the court's instructions. When asked to explain, Juror 5 said "no participation. No ideas" ( id. at 16). For example, when Juror 11 was asked a question that day after lunch he said he "didn't have to participate, something like that. He didn't have to explain his reasoning" ( id. at 17). Juror 11 had on prior occasions explained his position in "like 10 words or less" and when asked for more would say "he doesn't have to, you know" ( id. at 18). When asked whether Juror 11 had made a deliberate decision not to follow the court's instructions, Juror 5 responded "[c]ould be. Not 100 percent sure" ( id. at 19).
Against this backdrop, the trial court found that Juror 11 was refusing to deliberate. The court found that Jurors 2, 5, 10 and 12 were credible in their descriptions of Juror 11's refusal to deliberate while Juror 11 and his denial were not credible. When a juror says "I don't have to participate, I don't have to explain my answers, that's a clear refusal to deliberate" ( id. at 20). The court found that Juror 11 "had participated sporadically the first and second day" and on the day in question had "not participated at all and . . . expressed his feeling that he doesn't have any duty to participate or explain his reasoning" ( ibid.). Although Juror 11 was not a holdout juror, his "failing to participate in jury deliberations" constituted misconduct that warranted his removal from the jury ( id. at 22).
After removing Juror 11, the court designated an alternate juror to take his place. After five additional hours of deliberations on December 28, 2000, petitioner was found guilty of first-degree murder and robbery. The jury also found true allegations that the murder had been committed during the course of a robbery, that petitioner had personally used a deadly weapon, inflicted great bodily harm upon the victim, committed the offenses while on parole, had sustained six prior convictions for serious felonies and had served four prior prison terms. The jury, however, deadlocked on the issue of whether petitioner should receive the death penalty. On April 25, 2001, the trial court sentenced petitioner to life imprisonment without the possibility of parole.
Petitioner timely appealed his conviction. The issue presented was whether the trial court had erred by discharging Juror 11 during deliberations and replacing him with an alternate juror. On July 11, 2003, the state appeals court reversed petitioner's conviction concluding under California law that "the trial court abused its discretion . . . because it does not appear in the record as a demonstrable reality that Juror 11 failed to or was unable to deliberate" ( id. at 23). The state appeals court, however, also held that principles of double jeopardy did not bar petitioner's retrial ( id. at 42).
Petitioner sought review in the California Supreme Court of the state appeals court's holding that a retrial was not barred by double jeopardy. The petition for review was denied on August 30, 2003. The instant petition for writ of habeas corpus was filed May 7, 2004. Petitioner is set to be retried in San Mateo County Superior Court on October 12, 2004.
ANALYSIS
The double jeopardy clause of the Fifth Amendment of the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. This constitutional prohibition "was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense." Green v. United States, 355 U.S. 184, 187 (1957). The double jeopardy clause also embraces a defendant's "valued right to have his trial completed by a particular tribunal." United States v. Echavarria-Olarte, 904 F.2d 1391, 1394-95 (9th Cir. 1990).
A claim that a state prosecution will violate double jeopardy falls within the special-circumstance exception to the general rule of Younger v. Harris, 401 U.S. 37 (1971), which requires federal courts to abstain from interfering with pending state court proceedings. Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir. 1992). A federal court may thus entertain a pretrial petition for a writ of habeas corpus that raises a colorable claim of double jeopardy before final judgment is entered. Hartley v. Neely, 701 F.2d 780, 781 (9th Cir. 1983). As such, if the petitioner has exhausted his available state remedies, which petitioner has done in this case, a petition for habeas corpus relief may be heard in federal court. Ibid.
The sole issue presented here is whether double jeopardy bars petitioner's retrial for first-degree murder and robbery. Petitioner claims to be entitled to relief in either of two ways. He urges that the discharge and substitution of a single juror during deliberations without adequate justification should be held to constitute a "termination of jeopardy" under federal law and bar a retrial. Alternatively, petitioner contends that the trial judge in this case discharged Juror 11 with an "intention to bias the jury against petitioner," thus barring a retrial. This order rejects both of petitioner's contentions.
The state appeals court resolved the issue of double jeopardy as follows:
On February 13, 2003, this court directed the parties to file simultaneous letter briefs addressing the issue of whether double jeopardy principles bar a retrial where a trial court erroneously removes a juror and replaces that juror with an alternate. At the time, we noted that the [state] Courts of Appeal were divided on this question and that the issue was pending before our Supreme Court.
Shortly after supplemental briefing was completed, our Supreme Court decided People v. Hernandez (2003) 30 Cal.4th 1. The court in Hernandez found that double jeopardy did not preclude a retrial when a juror was improperly excused and replaced with an alternate. The court summarized its holding as follows: "(1) [G]enerally, the double jeopardy guarantee imposes no limitation on the power to retry a defendant who has succeeded in having his conviction set aside on appeal on grounds other than insufficiency of evidence, (2) the policies underlying double jeopardy do not warrant the ultimate sanction of immunity from prosecution under the circumstances in this case, and (3) no `routine' discharge of jurors in violation of Penal Code section 1089 could occur without the routine concurrence of the trial court, a highly unlikely prospect." ( Id. at p. 6.) In light of the Hernandez decision, double jeopardy principles do not bar retrial in this case. (Opin. 41-42). This order finds that the state appeals court's decision rejecting petitioner's double jeopardy challenge was not contrary to or an unreasonable application of clearly established federal law. 28 U.S.C. 2254(d).
For the first time in his traverse, petitioner contends that his petition is not governed by Section 2254(d), which applies to petitioners who are "in custody pursuant to the judgment of a State court." Instead, he argues the de novo standard under Section 2241(c)(3) should apply as he is in custody as a pretrial detainee "in violation of the Constitution or laws or treaties of the United States." This order rejects petitioner's belated attempt to avoid the deferential standard of Section 2254. See Wilson v. Czerniak, 355 F.3d 1151, 1154 (9th Cir. 2004) (applying Section 2254 to a habeas petition alleging that double jeopardy prohibited a retrial following reversal on appeal).
For the first time in his traverse, petitioner contends that his petition is not governed by Section 2254(d), which applies to petitioners who are "in custody pursuant to the judgment of a State court." Instead, he argues the de novo standard under Section 2241(c)(3) should apply as he is in custody as a pretrial detainee "in violation of the Constitution or laws or treaties of the United States." This order rejects petitioner's belated attempt to avoid the deferential standard of Section 2254. See Wilson v. Czerniak, 355 F.3d 1151, 1154 (9th Cir. 2004) (applying Section 2254 to a habeas petition alleging that double jeopardy prohibited a retrial following reversal on appeal).
As a general rule, the double jeopardy guarantee imposes no limitation on the power to retry a defendant who has succeeded in having his conviction set aside on appeal on grounds other than insufficiency of the evidence. See, e.g., United States v. DiFrancesco, 449 U.S. 117, 131 (1980). Petitioner does not (nor could he) attempt to squeeze his case into the referenced insufficient-evidence exception. Instead, petitioner contends it is the improper discharge and replacement of a single juror during deliberations that triggers the protections of the double jeopardy clause.
The problem, however, is that there is no clearly established federal law to support petitioner's claim. Petitioner concedes this fact (Trav. 10-11). He still urges this Court, however, to sua sponte develop a constitutional rule that would bar a retrial in circumstances like these. The Court cannot do so. Federal habeas corpus relief under the Antiterrorism and Effective Death Penalty Act of 1996 is extremely limited. Relief is warranted only in those instances in which the state court's adjudication of a claim was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court or 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). In this case, the absence of any "clearly established federal law" is fatal to petitioner's claim. Holgerson v. Knowles, 309 F.3d 1200, 1202-03 (9th Cir. 2002) (federal habeas relief not warranted where Supreme Court had not decided whether due process bars judicial after-the-fact increases in punishment as well as after-the-fact increases in the scope of criminal liability).
Nonetheless, this order cannot say that the state appeals court's decision, based on its supreme court's interpretation of federal law on the topic, was objectively unreasonable. The state appeals court relied on People v. Hernandez, 30 Cal. 4th 1 (2003), which held that double jeopardy does not preclude a retrial where a juror was improperly excused and replaced with a sworn alternate juror. The Hernandez court found support for its holding in Crist v. Bretz, 437 U.S. 28, 36 (1978), in which the United Stated Supreme Court had stated that "once banded together a jury should not be discharged." (Emphasis added.). In Hernandez, this statement was construed to mean that the substitution of a single juror with a preselected sworn alternate still keeps the jury intact for purposes of double jeopardy. Hernandez, 30 Cal. 4th at 9. In the absence of Supreme Court authority to the contrary, petitioner's argument fails.
* * *
As mentioned, petitioner maintains he is entitled to relief for yet another reason. The claim is that the trial judge acted in a manner to bias the jury against him. There is no dispute that the double jeopardy clause generally bars a retrial where a judge or prosecutor in bad faith threatens or harasses a defendant with successive prosecutions or the declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict. United States v. Dinitz, 424 U.S. 600, 611 (1976); United States v. Tateo, 377 U.S. 463, 468 n. 3 (1964) (noting that "[i]f there were any intimation in a case that prosecutorial or judicial impropriety justifying a mistrial resulted from fear that the jury was likely to acquit the accused, different considerations, of course, obtain"). A showing of actual bad faith is required. A showing must be made that the judge discharged the jury for the express purpose of aiding the prosecution and prejudicing the defendant. Dinitz, 424 U.S. at 611. On this record, petitioner has not carried his burden.
The state appeals court found that the trial court had commenced its inquiry "to determine the source of possible jury misconduct" resulting from "a juror's belief that, because it is impossible to consider intent without being in the actor's mind, the juror was refusing to follow the law" (Opin. 6). The issue of "intent" had been squarely raised by the fourth note sent by the jury to the court on the morning of December 27, 2000. The subject matter of this note directly implicated CALJIC No. 2.02, which provided that the "specific intent with which an act is done may be shown by the circumstances surrounding the commission of the act." The jury's fifth note further revealed that there was a juror "that believes there does not have to be a resolution to issues or a verdict" ( id. at 5-6). Taken together, it was not unreasonable for the trial court to investigate whether a juror was refusing to follow the court's instructions (which would amount to jury misconduct).
There is simply no evidence in the present record to suggest the trial court commenced its investigation to prejudice petitioner. Juror 11 was not a hold-out juror whose removal guaranteed a verdict in favor of the prosecution ( id. at 20-21) ("Well, we know this is not a case of a 11 to 1. Both [Juror 12 and Juror 2] gave us information that would lead us to believe that this is not a case where [Juror 11] is in a position of holding out against 11 jurors."). The court was instead concerned about what it had heard regarding Juror 11's participation in the jury's deliberations. It stated:
. . . we have evidence that [Juror 11] has withdrawn from that discussion, is not participating and has said he doesn't have to participate, and that's just not deliberation. . . . The complaint is he won't discuss his reasoning, not that he won't change his mind. No one has talked about him changing his mind. The whole discussion is: Will he deliberate? Will he explain his reasons? Will he listen to others? Will he participate? And he's not participating.
( Ibid.). That the state appeals court reversed the trial court on the issue of whether Juror 11 had refused to deliberate does not mean that the trial court had set out to bias the jury against petitioner and in favor of the prosecution.
Indeed, the trial court was careful not to elicit information about whether the jury as a whole was inclined to convict or acquit. When the trial court asked Juror 12 whether the jury had taken a vote, the court expressly said "On the vote that you took without telling me what the issue was, was the result 11 to 1?" ( id. at 11) (emphasis added). The trial court repeatedly cautioned Juror 2 not to indicate in which direction the jury was leaning. In one instance, when Juror 2 ran close to revealing the jury's feelings on the issue of intent, the court interrupted "No, no. I don't want to know anymore. I don't think — okay. I think it's too close to talking about what the jurors are saying in their deliberation room . . . I think that's enough" ( id. at 15-16). Earlier, the court had similarly cautioned Juror 2 that ". . . I want to stop you there. Okay. Because, what I want to talk about is not the way — is not what the jury is thinking" ( id. at 14).
On this record, petitioner has not demonstrated that the trial court committed intentional misconduct by excusing Juror 11 for the express purpose of "afford[ing] the prosecution a more favorable opportunity to convict the defendant." Dinitz, 424 U.S. at 611. Without more, the double jeopardy clause does not bar petitioner's retrial.
CONCLUSION
For the foregoing reasons, petitioner's claim that double jeopardy bars his retrial fails. His petition for writ of habeas corpus is DENIED. The Clerk shall provide a copy of this order to the San Mateo County Superior Court and thereafter CLOSE THE FILE. A judgment shall issue under separate cover.
IT IS SO ORDERED.