Opinion
No. C 01-0339 MMC (PR)
December 17, 2002
ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner, a California prisoner, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254. The Court found petitioner's amended petition stated two cognizable claims and ordered respondent to show cause why the amended petition should not be granted. Respondent has filed an answer denying the amended petition, along, with a supporting memorandum and exhibits. Petitioner has not filed a traverse.
BACKGROUND
Jane Doe ("Doe") testified that on the evening of February 9, 1998, she was working as a bartender at the Waiting Room in Castro Valley. Over the course of the evening she served petitioner six beers. At approximately 11:00 p.m., Doe's son came to the bar and picked up her house keys. At around 1:00 a.m., petitioner and Doe played a game of darts. At closing time, petitioner asked Doe for a ride home. Doe offered to take petitioner to her house in Hayward; from there her son would take petitioner to his home in Oakland. When they arrived at Doe's house, nobody was home. Petitioner helped .Doe climb through a bathroom window. Doe then let petitioner in, and told him that he could spend the night in the spare bedroom and that she would take him home in the morning on her way to her day job. Petitioner and Doe sat at the dining room table. Petitioner offered Doe some marijuana and cocaine. She took three "hits" of marijuana and half a line of cocaine.
Doe then went to her bedroom to go to bed, but the door did not close all the way. Petitioner followed her into the bedroom, put his arm around her neck and tried to kiss her. Doe told him to stop and that she was going to call her son. Doe was frightened and went into the kitchen where she called her son and left him a message. Petitioner had followed Doe into the kitchen. She redialed her son and called her neighbor twice but did not reach them. Petitioner pulled Doe into the corner. She slumped to the floor and told him to leave her alone. Petitioner picked her up, dragged her into the bedroom, threw her on the bed, removed her pants and underwear, pulled her legs apart, penetrated her vaginal and anal areas with his tongue, and put his fingers and penis in her vagina. Doe tried to trick petitioner into letting her go to the bathroom so she could escape, but he would not let her leave. He penetrated her again with his fingers and penis. She convinced him to let her go to the kitchen to get medication and to smoke more marijuana. She called her son and neighbor several times, trying unsuccessfully to get them to help her. Petitioner eventually grabbed the phone from her, dragged her back to the bedroom, pushed her onto the bed, pulled her legs apart, penetrated her again with his fingers, tongue and penis, ejaculated on her stomach, and then apologized for what he had done. He finally let her get out of the bed at approximately 6:00 a.m. when she told him she had to go to work. Petitioner followed Doe into the kitchen and then walked away out of her sight. She ran out of the house to her neighbor and called the police.
At the trial, Doe admitted to using cocaine on the morning before the incident, and again that evening at the Waiting Room while on a break. She admitted to lying about her drug use immediately after the incident and at the preliminary hearing. Doe's son testified that he spoke to her on the morning after the incident, and that she sounded very upset and said that she had been raped. He confirmed that there had been several messages from her on his answering machine. A nurse from Highland Hospital who examined Doe testified that Doe had genital and other injuries that were consistent with sexual assault. A physician's assistant who reviewed the nurse's report was in accord with this conclusion.
Karen L. testified that in 1997 she had an argument with her boyfriend, who threw her keys out of the car window outside a bar. While she was crying, petitioner approached and tried to help. When they failed to find the keys, he called a cab and insisted on accompanying her home. Upon arriving at her house, she paid for the cab and went inside. Within a minute, petitioner knocked on the door and said the cab had left without him. She let him come inside to call another cab, and they smoked some. marijuana. He started rubbing her neck, at which time she told him to leave. When she tried to stand up, he abruptly forced her to the floor face down. He covered her mouth and nose with his hand, and as they struggled, ordered her to undress. He orally copulated and raped her. When she finally fled, he chased her and tried to pull her back, ripping her clothes. She called the police. Petitioner eventually pled guilty to felony sexual battery.
Jennifer P. testified that she was working as a waitress in Naples, Florida in 1993. After closing one evening, she invited numerous friends and co-workers to her parents' home where she was house-sitting. One of her friends brought petitioner, whom she did not know. At approximately 5:00 a.m., after drinking several wine coolers, she went to sleep in her bedroom. She awoke to find petitioner lying beside her and putting his hand over her nose and mouth. When she objected, and told him to leave, he said, "Shut up, bitch. Just shut up." He forcefully grabbed her breasts and vagina. She struggled and fought and they fell to the floor. As she ran for the door, he ripped off her shirt. She screamed to her friends that petitioner was trying to rape her. He left as she called 911.
Petitioner testified that Doe offered to give him a ride to BART and gave him $250 to buy her cocaine. They drove to Castro Valley where he bought the cocaine, after which they went to her house. She took some cocaine, but he did not. They then had consensual sexual intercourse. She threw him out of her house when she discovered that he had stolen some of her cocaine. Petitioner also testified that he had consensual sex with Karen L., and that she panicked and ran outside because she thought her boyfriend was coming. As to Jennifer P., petitioner testified that they were drinking at her house and he passed out on the patio. At about 5:30 a.m., he went inside to use the bathroom and to ask her for her address so he could call a cab. When he leaned over to awaken her, she jumped up, ran through the door and told somebody he was trying to grab her. He did not fondle her, and he left when asked to do so. Petitioner further testified that he had been accused of rape by a woman in Los Angeles in 1990 and by another woman in Florida in 1993, but that the sexual intercourse in both of those incidents was consensual. He was arrested following the Los Angeles incident, but was not convicted as a result of either incident.
A jury in Alameda County Superior Court convicted petitioner of one count of rape, two counts of forcible oral copulation and one count of forcible penetration. On March 16, 1999, the trial judge sentenced him to thirty-two years in state prison. His direct appeals to the California Court of Appeal and the Supreme Court of California were unsuccessful. He filed no other direct or collateral challenge in state court.
DISCUSSION
A. Standard of Review
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court 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); Rose v. Hodges, 423 U.S. 19, 21 (1975).
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); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). In evaluating whether there has been a violation of § 2254(d)(1), the court should first review the state court decision for error de novo and then determine whether the decision was contrary to or an unreasonable application of controlling law. See Van Tran v. Lindsey, 212 F.3d 1143, 1155, 1159 (9th Cir. 2000). Habeas relief is warranted, however, only if the constitutional error at issue had a "`substantial and injurious effect or influence in determining the jury's verdict.'"Penry v. Johnson, 121 S.Ct. 1910, 1920 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)).
A determination of state law by a state appellate court is binding in a federal habeas action. See Hicks v. Feiock, 485 U.S. 624, 629 (1988). The state's highest court is the final authority on the law of that state.See Sandstrom v. Montana, 442 U.S. 510, 516-17 (1979). Even a determination of state law made by an intermediate appellate court must be followed and may not be "`disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise,'" Hicks, 485 U.S. at 630 n. 3 (quoting West v. American Telephone Telegraph Co., 311 U.S. 223, 237-38 (1940)), or if that interpretation appears to be an obvious subterfuge to evade consideration of a federal issue. See Mullaney v. Wilbur, 421 U.S. 684, 691 n. 11 (1975).
B. Legal Claims
Petitioner raises two claims in this petition: (1) the admission of evidence regarding petitioner's prior sexual offenses violated his right to due process and (2) the use of jury instructions regarding the relevance of a propensity to commit sexual offenses violated his right to due process.
1. Evidence of Prior Sexual Offenses
As noted, petitioner contends the admission of evidence of prior sexual offenses violated his right to due process. A state court's admission of evidence infringes a defendant's constitutional right to due process if the evidence rendered the trial fundamentally unfair. See Pulley v. Harris, 465 U.S. 37, 41 (1984)
Here, the trial court admitted the challenged evidence pursuant to California Evidence Code § 1108, which provides:
In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.
Section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Petitioner does not claim the admission of prior sexual offenses violated § 1108. Rather he challenges the constitutionality of § 1108 itself. Specifically, petitioner claims that by allowing the admission of evidence of prior sexual offenses for the purpose of demonstrating a propensity to commit a charged sexual offense, § 1108 violates due process. See People v. Fitch, 55 Cal.App.4th 172 (1997) (stating purpose of § 1108 is to allow jury to consider prior sexual offenses as evidence of defendant's propensity to commit charged sexual offense). Although federal courts have not addressed the question of whether § 1108 violates due process, they have found that the admission of prior sexual offenses under parallel federal evidentiary rules comports with due process. See Fed.R.Evid. 413, 414; United States v. LeMay, 260 F.3d 1018, 1031 (9th Cir. 2001) (holding new federal rules of evidence allowing evidence of prior sexual offenses to show propensity to commit charged offense do not violate due process); accord United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998); United States v. Mound, 149 F.3d 799, 801 (8th Cir. 1998).
A determination of state law by a state appellate court is binding in a federal habeas action. See Hicks v. Feiock, 485 U.S. 624, 629 (1988).
This determination is dependent in part on the availability of Rule 403, under which evidence of propensity may be excluded if its prejudicial effect outweighs its probative value. See LeMay 260 F.3d at 1031. The California Evidence Code provides a similar safeguard. See Cal. Evid. Code §§ 1108, 352.
Accordingly, it was neither an unreasonable application of nor contrary to federal law for the state courts to find no violation of due process based on the trial court's admission of evidence of petitioner's prior sexual offenses under § 1108 to show his propensity to commit the charged crimes.
2. Jury Instruction
Petitioner argues that the trial court's use of two pattern jury instructions, CALJIC Nos. 2.50.01 and 2.50.1, violated his right to due process because by doing so the court lowered the prosecution's burden of proving guilt beyond a reasonable doubt. The Due Process Clause of the Fourteenth Amendment 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. See In re Winship, 397 U.S. 358, 364(1970).
Here, the trial court instructed the jury pursuant to CALJIC No. 2.50.01 as follows:
If you find the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit the same or similar type of sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime or crimes of which he is accused.See Clerk's Transcript ("CT") (attached as Respt. Exh. H). The trial court then instructed the jury that the prosecution had the burden of proving the commission of the prior sexual offenses "by a preponderance of the evidence," and gave a standard definition of that term pursuant to CALJIC 2.50.1. Petitioner argues that these instructions, when read together, allowed the jury to find him guilty by a preponderance of the evidence rather than beyond a reasonable doubt. Specifically, petitioner contends that CALJIC 2.50.01 allowed the jury to find guilt based solely on the prior sexual offenses and without regard to the other evidence pertaining to the crimes charged. Petitioner concludes that because the state only had to prove the prior sexual offenses by a preponderance of the evidence, the jury could have understood that it could convict petitioner of the charged crimes without being convinced, after considering all of the evidence, that he was guilty beyond a reasonable doubt.
Standing alone, the challenged instructions arguably could present the problem petitioner asserts. Faulty jury instructions, however, will justify habeas relief only if the instructions by themselves so infect the entire trial that the resulting conviction violates due process. See Estelle v. McGuire, 502 U.S. 62, 72 (1991). In that regard, "[i]t is well established that 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." Id. (citations omitted). The instructions must be more than just erroneous; petitioner must show that there was a reasonable likelihood that in light of the instructions as a whole, the jury applied the challenged instructions in such a way that his constitutional rights were violated. See Carriger v. Lewis, 971 F.2d 329, 334 (9th Cir. 1992) (en banc); see also McGuire, 502 U.S. at 72. Here, the trial court instructed the jury under CALJIC No. 1.01 to consider all of the instructions as a whole. The jury was also given an instruction requested by the defense, which provided in pertinent part:
0n several occasions, the California Court of Appeal has found CALJIC 2.50.01, and the companion instruction CALJIC 2.50.02 pertaining to domestic violence cases, violate due process. All of these decisions have been ordered depublished by the Supreme Court of California. See,e.g., People v. Frazier, 89 Cal.App.4th 30, 40 (2001); People v. Younger, 84 Cal App. 4th 1360, 1381-82 (2000); People v. Orellano, 79 Cal.App.4th 179, 186 (2000). The version of CALJIC 2.50.01 used in petitioner's case was later modified to add at the end of the instruction: "However, if you find by a preponderance of the evidence that the defendant committed [a] prior sexual offense[s], that is not sufficient by itself to prove beyond a reasonable doubt that [he] [she] committed the charged crime[s]. if you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all the other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime."
If you find that a character trait of the defendant has been proved and that the proved character trait is relevant as to whether he committed the offense, then you may consider this evidence together with the other evidence to decide whether he committed the charged offense. You may not convict the defendant merely because you believe he committed other offenses or because you believe that he has a character trait that tends to predispose him to committing the charged offenses.
The question before you is whether the defendant is guilty of the crimes charged in this case, not whether he is guilty of any other prior offense. You may return a verdict of guilty only if you are convinced beyond a reasonable doubt that the defendant committed the offenses charged against him in this case. For the limited purposes for which you may consider such evidence, of prior offenses, you must weigh it as I have described in this instruction.See CT at 251. This instruction cured the very problem petitioner raises as to CALJIC 2.50.01 by clearly instructing the jury: (1) to consider the other evidence in. the case in addition to the evidence of petitioner's prior sexual offenses; (2) that it could not convict petitioner solely because it was convinced that petitioner had committed the prior offenses; and (3) that it could only convict petitioner if it was convinced of his guilt of the charged crime beyond a reasonable doubt. Under this admonition, no jury reasonably would understand that it could disregard other evidence, or that it could convict based on a preponderance of the evidence. Moreover, the trial court further instructed the jury pursuant to CALJIC No. 2.90 that the prosecution had "the burden of proving [petitioner] guilty beyond a reasonable doubt," and pursuant to CALJIC No. 2.01 that:
[E]ach fact which is essential to complete a set of circumstances necessary to. establish the defendant's guilt must be proven beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon which such inference necessarily rests must be proved beyond a reasonable doubt.See CT at 233, 261. By explicitly informing the jury as to the state's correct burden of proof, these instructions additionally cured any potential misunderstanding CALJIC Nos. 2.50.01 and 2.50.1 might have created as to the prosecution's burden of proof.
In sum, there was no violation of due process by reason of the use of CALJIC Nos. 2.50.01 and 2.50.1 because, under the instructions as a whole, the state was not relieved of its obligation to prove every necessary fact beyond a reasonable doubt. Accordingly, habeas relief is not warranted on this claim.
CONCLUSION
For the reasons expressed, the petition for a writ of habeas corpus is DENIED.
All pending motions are terminated and the clerk shall close the file.
IT IS SO ORDERED.