Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JACQUELINE CHOOLJIAN, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Percy Anderson, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
I. SUMMARY
On January 29, 2007, Michael Jackson ("petitioner"), a state prisoner proceeding pro se, filed the operative First Amended Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") pursuant to 28 U.S.C. § 2254. Construed liberally, the Petition reflects that petitioner challenges his conviction in Los Angeles County Superior Court on the following grounds: (1) the California Court of Appeal should have been permitted meaningfully to conduct a comparative analysis of whether the prosecutor engaged in purposeful discrimination during jury selection relative to the prosecutor's peremptory challenge of prospective juror "C.B., " irrespective of whether or not the trial court did so - an analysis which arguably would have resulted in a reversal based upon a violation of petitioner's right to equal protection in the jury selection process ("Batson claim" or Batson/Wheeler claim"); (2) the trial court constitutionally erred in admitting evidence that petitioner had previously robbed the same location; and (3) the prosecutor committed misconduct in eliciting testimony about petitioner's other prior criminal conduct. (Petition at 5-6a).
Batson v. Kentucky, 476 U.S. 79 (1996) held that purposeful discrimination in the jury selection process violates the Equal Protection Clause of the Fourteenth Amendment. People v. Wheeler, 22 Cal.3d 258 (1978) is the California counterpart to Batson. See Paulino v. Castro, 371 F.3d 1083, 1088 n.4 (9th Cir. 2004) (noting that a Wheeler motion is the procedural equivalent to a Batson challenge in California) (citations omitted), appeal after remand, Paulino v. Harrison, 542 F.3d 692 (9th Cir. 2008).
The Court refers to the unnumbered pages that follow page 5 of the Petition as pages 5a and 5b and refers to the unnumbered page that follows page 6 of the Petition as page 6a.
On April 2, 2007, respondent filed an Answer and a supporting memorandum ("Answer"). On April 26, 2007, petitioner filed a Traverse. At the Court's direction, respondent thereafter filed a Supplemental Answer ("Supplemental Answer" or "Supp. Answer"), to which petitioner responded. (Docket Nos. 39, 40, 42).
Respondent concurrently lodged multiple documents in support of the Answer ("Lodged Doc.") including the Clerk's Transcript ("CT") and the Reporter's Transcript ("RT").
Respondent concurrently lodged multiple documents in support of the Supplemental Answer ("Supp. Lodged Doc.").
As further discussed below, the Petition should be granted to the extent it seeks a conditional writ of habeas corpus based upon petitioner's Batson claim and should otherwise be denied.
II. PROCEDURAL HISTORY
On June 29, 2004, a Los Angeles County Superior Court jury found petitioner guilty of two counts of second degree robbery and two counts of false imprisonment by violence. (CT 182-85, 187-88). The jury also found true allegations that petitioner personally used a firearm in the commission of the foregoing offenses. (CT 182-85, 187-88). The trial court sentenced petitioner to a total of 69 years to life in state prison. (CT 193-98).
On December 27, 2005, the California Court of Appeal modified petitioner's sentence to 40 years to life in state prison for reasons not pertinent here, and otherwise affirmed the judgment in a reasoned decision. (Lodged Doc. 2). On April 12, 2006, the California Supreme Court denied review without comment. (Lodged Doc. 4). On October 2, 2006, the United States Supreme Court denied petitioner's petition for a writ of certiorari. (Lodged Doc. 5).
The facts set forth are drawn from the California Court of Appeal's decision on direct appeal. (Lodged Doc. 2 at 2). Such factual findings are presumed correct. 28 U.S.C. § 2254(e)(1).
Early in the evening of June 18, 2001, Luni Tolai and Jose Barera were working as security guards at the front gate of Universal Warehouse in Carson when petitioner drove up in a stolen tractor truck. Petitioner told Tolai he had come to pick up a trailer. Tolai replied he could not find the paperwork for petitioner's order and asked him to wait until Barera returned from a short personal errand. When Barera returned, he and Tolai went to the guard shack to look for the paperwork but could not find anything. At that point, petitioner drew a gun, held it against Tolai's neck, and told the two men he was robbing them. Petitioner and an accomplice locked the two guards in the trunk of one of the guard's cars. They then hooked a trailer to their truck and drove away.
IV. STANDARD OF REVIEW
This Court may entertain a petition for writ of habeas corpus on "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). A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the 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).
The California Supreme Court's rejection of claims without comment is generally presumed to constitute an adjudication on the merits of any federal claims, thereby subjecting such claims to review in federal habeas proceedings. See Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011) ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary."); Hunter v. Aispuro, 982 F.2d 344, 347-48 (9th Cir. 1992) (California Supreme Court's unexplained denial of habeas petition constitutes decision on the merits of federal claims subjecting such claims to review in federal habeas proceedings), cert. denied, 510 U.S. 887 (1993); but see Williams v. Cavazos, 646 F.3d 626 (9th Cir. 2011) (California high court's decision to deny petition for review not decision on merits, but rather signifies decision not to consider case on the merits, and necessitates "looking through" such court's denial to last reasoned state court decision), cert. granted in part, 132 S.Ct. 1088 (2012).
"[C]learly established Federal law" refers to "the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade ("Andrade"), 538 U.S. 63, 71-72 (2003). In the absence of a Supreme Court decision that "squarely addresses the issue" in the case before the state court, Wright v. Van Patten ("Van Patten"), 552 U.S. 120, 125 (2008), or establishes an applicable general principle that "clearly extend[s]" to the case before a federal habeas court to the extent required by the Supreme Court in its recent decisions, Van Patten, 552 U.S. at 123; see also Panetti v. Quarterman, 551 U.S. 930, 953 (2007); Carey v. Musladin ("Musladin"), 549 U.S. 70, 76 (2006), a federal habeas court cannot conclude that a state court's adjudication of that issue resulted in a decision contrary to, or an unreasonable application of, clearly established Supreme Court precedent. Moses v. Payne, 555 F.3d 742, 760 (9th Cir. 2009) (citing Van Patten, 552 U.S. at 126).
"Under § 2254(d), a habeas court must determine what arguments or theories supported, ... or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter ("Richter"), 131 S.Ct. 770, 786 (2011). This is "the only question that matters under § 2254(d)(1)." Id . (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. at 786-87 ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").
In applying the foregoing standards, federal courts look to the last reasoned state court decision. See Davis v. Grigas, 443 F.3d 1155, 1158 (9th Cir. 2006) (citation and quotations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see also Gill v. Ayers, 342 F.3d 911, 917 n.5 (9th Cir. 2003) (federal courts "look through" unexplained rulings of higher state courts to the last reasoned decision). However, to the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and consequently, whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000), abrogated on other grounds, Andrade, 538 U.S. at 75-76 (2003); see also Richter, 131 S.Ct. at 784 ("Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief."); Cullen v. Pinholster, 131 S.Ct. 1388, 1402 (2011) ("Section 2254(d) applies even where there has been a summary denial.") (citation omitted).
When it is clear, however, that the state court has not decided an issue, review of such issue is de novo. Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006). De novo review is also necessary when a state court has unreasonably applied clearly established federal law. See Frantz v. Hazey, 533 F.3d 724, 739 (9th Cir. 2008) (en banc).
V. DISCUSSION
A. Petitioner's Batson Claim Merits Conditional Habeas Relief
Petitioner argues that the California Court of Appeal should have been permitted meaningfully to conduct a comparative analysis of whether the prosecutor engaged in purposeful discrimination during jury selection relative to the prosecutor's peremptory challenge of prospective juror C.B., irrespective of whether or not the trial court itself did so - an analysis which petitioner asserts would have resulted in a reversal based upon a violation of petitioner's right to equal protection in the jury selection process. Respondent contends that (1) to the extent petitioner intends to argue that the removal of prospective juror C.B. violated his constitutional rights under Batson, his claim is unexhausted and has been abandoned; and (2) the state courts reasonably rejected petitioner's Batson claim, and such claim should be rejected here, even assuming that it fairly encompasses a claim that the removal of prospective juror C.B. violated Batson and that such a claim has been exhausted. For the reasons explained below, the Court rejects respondent's contentions and concludes that petitioner is entitled to conditional habeas relief on his Batson claim.
1. Legal Background
Batson established a three-step process for evaluating a defendant's objection to a peremptory challenge. First, the defendant must make a prima facie showing that a challenge was based on an impermissible basis, such as race. Batson, 476 U.S. at 96; Green v. Lamarque, 532 F.3d 1028, 1029 (9th Cir. 2008). Second, if the trial court finds the defendant has made a prima facie case of discrimination, the burden then shifts to the prosecution to offer a race-neutral reason for the challenge that relates to the case. Batson, 476 U.S. at 168; Green, 532 F.3d at 1030. Third, if the prosecutor offers a race-neutral explanation, the trial court must decide whether the defendant has proved the prosecutor's motive for the strike was purposeful racial discrimination. Batson, 476 U.S. at 167; Green, 532 F.3d at 1030.
When conducting the analysis at the third step, the trial court must decide not only whether the reasons stated are race-neutral, but whether they are relevant to the case, and whether those stated reasons were the prosecutor's genuine reasons for exercising a peremptory strike, rather than pretexts invented to hide purposeful discrimination. Batson, 476 U.S. at 98; Green, 532 F.3d at 1030. In deciding if the defendant has carried his burden of persuasion, a court must undertake a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. Batson, 476 U.S. at 93; Green, 532 F.3d at 1030. The "circumstantial and direct evidence" necessary for this inquiry includes a comparative analysis of the treatment and characteristics of jurors struck by the prosecutor with the treatment and characteristics of other prospective jurors, particularly those whom the prosecutor did not strike. Miller-El v. Dretke, 545 U.S. 231, 239 (2005); Green, 532 F.3d at 1030. If a prosecutor's proffered reasons for striking a black panelist apply just as well to an otherwise similar non-black panelist who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson's third step. Miller-El, 545 U.S. at 241; Green, 532 F.3d at 1030.
The Court in Batson did not state that the trial judge must describe this analysis on the record, only that it must "undertake" such an analysis. Green, 532 F.3d at 1030 n.2. Nevertheless, in Miller-El v. Dretke, 545 U.S. 231 (2005), the Supreme Court presumed the trial court and state appellate court did not undertake this analysis because such analysis was not detailed in their opinions. Green, 532 F.3d at 1030 n.2 (emphasis in Green).
The Ninth Circuit has concluded that the Supreme Court's use of comparative analysis in Miller-El was merely a clarification of Batson's step three framework. See Boyd v. Newland, 467 F.3d 1139, 1146 (9th Cir. 2006) ("[I]f the Supreme Court's endorsement of comparative juror analysis on appeal constituted a new procedural rule, the Court would not have applied that rule to Miller-El, whose case came before the Court on an appeal from a denial of habeas corpus. Because the Court did engage in extensive comparative juror analysis, we can infer that Miller-El [] must only have clarified the extant Batson three-step framework.") (internal citation omitted), cert. denied, 550 U.S. 933 (2007). Thus, the use of comparative juror analysis to evaluate Batson claims, including the use of such analysis for the first time on appeal, is based on clearly established federal law, which was in existence prior to the Court of Appeal's affirmance of petitioner's conviction in this case in December 2005. See Snyder v. Louisiana, 552 U.S. 472, 477 (2008) ("In Miller-El v. Dretke, the Court made it clear that in considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted.") (emphasis added); Boyd, 467 F.3d at 1150 ("[U]nder the clearly established Supreme Court precedent of Batson, comparative juror analysis is an important tool that courts should utilize on appeal when assessing a defendant's plausible Batson claim"); Kesser v. Cambra, 465 F.3d 351, 360-61 (9th Cir. 2006) (en banc) (explaining that the "principles expounded in Miller-El were clearly established Supreme Court law for [federal habeas] purposes at least by the time of the last reasoned state court decision in Miller-El, handed down in 1992, " and holding that a federal court must engage in comparative juror analysis even if such an analysis was neither requested nor attempted in state court).
Accordingly, this Court is compelled to reject respondent's contention that at the time the Court of Appeal affirmed petitioner's conviction, no clearly established Supreme Court law required state courts to conduct a comparative juror analysis on a Batson claim for the first time on appeal. (Answer at 9-13).
2. Pertinent State Factual/Procedural Background
In this case, petitioner's trial counsel made the operative Batson/Wheeler motion after the prosecutor exercised eight peremptory challenges, four of which were directed to African American prospective jurors: D.A. [Juror No. 6670] (first challenge), P.T. [Juror No. 6813] (fourth challenge), C.B. [Juror No. 2941] (sixth challenge) and C.E. [Juror No. 0437] (eighth challenge). (RT 42-43, 138 [juror names/numbers] 137, 175, 176, 211 [challenges to prospective jurors in issue], 211-12 [motion]). Petitioner's counsel argued that the prosecutor's four peremptory challenges to African American prospective jurors were racially motivated. (RT 211-12, 219-20).
At the time such prospective jurors were challenged, D.A. [Juror No. 6670] was seated as Juror No. 8, P.T. [Juror No. 6813] was seated as Juror No. 8 (after having initially been seated as Juror No. 14), C.B. [Juror No. 2941] was seated as Juror No. 2, and C.E. [Juror No. 0437] was seated as Juror No. 8 (after having initially been seated as Juror No. 14). (RT 42-43, 138 [original position of four prospective jurors], 137, 175 [movement of P.T. and C.E. to different juror positions], 137, 175, 176, 211 [position of four prospective jurors when challenged]).
The trial court found that petitioner's counsel had stated a prima facie case of discrimination and instructed the prosecutor to explain the reasons for the challenges. (RT 212, 214). The prosecutor indicated that he had challenged all of the prospective jurors because he believed they had a "tendency to be sympathetic... and that if [one] look[ed] at the remaining panelist[s][, ] those qualities [did not] exist in [his] opinion." (RT 215). He more specifically offered explanations for his challenges to each such juror, including the following explanation as to C.B. [Juror No. 2941/then Juror No. 2], who is currently in issue:
I think she was the retired nurse, she had three prior jury services. And I think she said the last one she thought was four years ago for theft. Now, I found her to be an old - she's an older woman. She's been retired for 12 years as a nurse. In my opinion a nurse is a sympathetic person, sympathetic profession. And I also found that she had poor memory. She couldn't remember the cases that she sat on when the court made inquiry about her priors. And I made inquiry about her prior jury service, and she couldn't remember the facts of the case, the charges or anything like that. She did remember that all three cases resulted in a verdict. [¶] So I had questions about her memory, and her ability to properly serve as a juror. [¶] In addition to that, she was wearing - she both - she wore bright colored clothing on the first day of service and today. On both days, she wore bright colored cloth[es]. I consider people who wear bright colored clothing as warm emotional people. Again, I'm concerned about people who would be sympathetic one way or the other and not decide this case based upon the facts of this case. And that's the basis for my excusing her. [¶] Poor memory, the fact that she's an older woman, she couldn't remember her prior jury service, and then she appears to be a warm, emotional, sympathetic person.
During voir dire, C.B. indicated the following: She lived in Carson, was single, and was a retired registered nurse who had worked at Long Beach Memorial Hospital. She had previously served on three juries. Verdicts were reached. She had not been the foreperson. She had one 45-year-old adopted daughter who lived in Atlanta and was a project manager. Three members of her family were attorneys. They practiced corporate law in Detroit, Michigan. One family member used to do criminal defense work but had retired. No family member had worked for the District Attorney's Office. One family member had worked for the Mayor of Detroit. She liked aerobics, walking and doing community work. (RT 67-68; 89-90). In response to follow-up questions from the prosecutor, C.B. further indicated: She had always been single. She had been retired for twelve years. She had last served on a jury the prior year in a theft case. Prior to that, she thought she had served on a jury about four years before. That prior case was also a theft case. Verdicts had been reached in each of the cases in which she had served on a jury. (RT 105-06). The prosecutor did not inquire about the nature of the third case on which C.B. had served as a juror. (RT 105-06). Petitioner's counsel also asked C.B. follow-up questions, but did not inquire about C.B.'s prior jury service or any other matter at issue. (RT 118-19).
The prosecutor further noted that there were at least three (the trial court believed possibly four) African Americans remaining on the panel under consideration and stated that "the remaining members of the panel [did] not have any of the qualities that [the prosecutor] had stated in terms of excusing the four African American jurors." (RT 218-19).
At the time the prosecutor exercised the eighth challenge which immediately preceded the operative Batson/Wheeler motion, the twelve prospective jurors on the panel were Juror Nos. 0482 [1], 9760/2901 [2], 6036 [3], 2042 [4], 4206 [5], 7124/4795 [6], 1008 [7], 0437 [8 - the subject of the triggering challenge], 0538 [9], 7633 [10], 8059 [11], and 7558 [12]. Based on a review of the entire voir dire and the statements of counsel and the trial court at various points throughout the voir dire (including two Batson/Wheeler motions by the defense and two reverse Batson/Wheeler motions by the prosecution), it appears that at the time the prosecutor exercised the triggering eighth challenge, the twelve prospective jurors on the panel (including the juror whose excusal triggered the motion) included at least four or five African Americans (three unknown jurors, Juror No. 8 [0437], whose challenge triggered the Batson/Wheeler motion, and possibly Juror No. 2 [9760/2901]), at least two Asian Americans (Juror Nos. 1 [0482] and 7 [1008], and at least three other non-African Americans (Juror Nos. 4 [2042], 9 [0538] and 12 [7558]). It is reasonable to infer from the record (including the lack of another defense Batson/Wheeler motion after the prosecutor exercised his last three challenges against Juror Nos. 4538, 8541 and 6146 and the prosecutor's statement at one point that the defense had not challenged any African American prospective jurors), that the prosecutor ultimately used four of his eleven exercised challenges to strike African American prospective jurors and that at least three or four of the twelve jurors who ultimately served on petitioner's trial jury ( i.e., at least 25-33% of the trial jurors) were African American. (RT 225, 246, 250, 261). The twelve jurors who ultimately served at trial were: Juror Nos. 7785 [1], 9760/2901 [2], 6036 [3], 2042 [4], 4206 [5], 7124/4795 [6], 6606 [7], 6940 [8], 0108 [9], 7633 [10], 8059 [11], and 8569 [12].
Petitioner's counsel argued that the prosecutor's asserted reasons were pretexts for racial discrimination, specifically noting that the prosecutor had not challenged three non-black jurors who wore bright clothing (Juror Nos. 4 [2042], 9 [0538] and 12 [7558]) even though he had cited C.B.'s bright clothing as a reason for excusing her. (RT 219). Petitioner's counsel further noted, as to C.B.'s memory, that C.B. had recalled that two of the three prior cases on which she had served as a juror involved theft, and that verdicts had been reached in all three such cases. He argued that the fact that the juror assertedly could not recall the nature of the third case on which she had served years before, did not indicate that anything was wrong with her memory. (RT 219).
The trial court denied the Batson/Wheeler motion, stating:
"I've given [the prosecutor] an opportunity to say - they were race neutral reason[s]. I certainly understand the explanation. But at the same time, I think there is a basis for the interpretation, even if one could disagree with it, I think there is a basis for the interpretation and the tactical decision that he's made as to the four peremptories used against African Americans. So I'm going to deny the Wheeler motion at this time."
(RT 220-21).
On direct appeal, petitioner's counsel argued that the prosecutor had unconstitutionally used peremptory challenges to improperly remove African American jurors from the jury and had thereby deprived petitioner of his state and federal constitutional rights to an impartial jury and equal protection of the law. (Lodged Doc. 1 at 13-27). The Court of Appeal rejected this claim. (Lodged Doc. 2 at 2-8). It characterized the trial court's denial of such motion as a "ruling [that] the prosecutor offered credible, race-neutral reasons for his peremptory challenges, " and noted that it "must show great deference to the trial court's conclusion that race neutral reasons motivated the prosecutor." The Court of Appeal determined, without any difficulty, that the trial court did not abuse its discretion in accepting the prosecutor's explanation that race neutral reasons motivated the prosecutor's challenges to three of the four prospective jurors in issue - D.A., P.T., and C.E. (Lodged Doc. 2 at 5). As to C.B., the remaining prospective juror in issue, the Court of Appeal noted that "[t]he prosecutor's peremptory challenge to C.B... troubles us. Given the deference our Supreme Court commands we must show to the trial court's findings, we conclude the prosecutor's reasons [for challenging C.B.] pass muster - but just barely." (Lodged Doc. 2 at 6).
While it is not entirely clear to this Court that the trial court assessed the credibility of the prosecutor and determined that the race neutral reasons articulated by the prosecutor actually motivated the prosecutor, this Court cannot say that the Court of Appeal was unreasonable in so concluding. In any event, even assuming the trial court's statements are an insufficient basis upon which to conclude that such court evaluated the prosecutor's credibility and motive and that the Court of Appeal unreasonably determined that the trial court did make such an evaluation, this Court would continue to recommend that conditional habeas relief be granted on petitioner's Batson claim.
The Court of Appeal explained that it was troubled because at least two of the reasons articulated by the prosecutor for challenging C.B. - poor memory regarding prior jury service and occupation as a nurse suggesting a sympathetic nature - were displayed by other jurors who were not stricken by the prosecution. However, it noted that because petitioner did not present comparative juror analysis relative to such two asserted bases for the prosecutor's peremptory challenges to the trial court, it was constrained by controlling California Supreme Court authority "from engaging in comparative analysis for the first time on appeal"... "regardless of how helpful it might be in assessing the plausibility of the prosecutor's stated reasons for excusing C.B." (Lodged Doc. 2 at 7) (citations omitted).
The Court of Appeal noted:
Though California courts are now required to conduct a comparative juror analysis even if such an analysis was not performed by the trial court, Ali v. Hickman, 584 F.3d 1174, 1179 n.3 (9th Cir. 2009) (citing People v. Lenix, 44 Cal.4th 602 (2008) (evidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by defendant and the record is adequate to permit the urged comparisons), cert. denied, 555 U.S. 1142 (2009)), cert. denied, 130 S.Ct. 2065 (2010), at the time the Court of Appeal issued its decision, California law did not permit a court to conduct comparative analysis for the first time on appeal. See People v. Johnson, 30 Cal.4th 1302, 1325 (2003) (when objecting party does not present comparative juror analysis to trial court, reviewing court should not attempt its own comparative juror analysis for the first time on appeal), rev'd sub nom. Johnson v. California, 545 U.S. 162 (2005). In the instant case, the Court of Appeal entertained supplemental briefing as to whether the United States Supreme Court's decision in Miller-El v. Dretke, 545 U.S. 231 (2005) - a case which was issued during the pendency of petitioner's appeal and in which the Supreme Court engaged in a comparative analysis despite the defendant's failure to have pursued that analysis in the trial court - compelled or permitted the Court of Appeal to do a comparative analysis for the first time on appeal in the instant case. (Lodged Doc. 3 at 7 n.2; Supp. Lodged Docs. 1, 2). The Court of Appeal found that Miller-El did not answer its question and concluded that, in the absence of a direct statement by the United States Supreme Court, it was required to observe the California Supreme Court's prohibition on performing comparative analysis for the first time on appeal. (Lodged Doc. 3 at 7 n.2).
Because petitioner's counsel did present a comparative juror analysis to the trial court regarding the prosecutor's assertion that he had excused C.B. because of her "bright clothing, " the Court of Appeal considered evidence that the prosecutor had accepted three non-black jurors who wore bright clothing. (Lodged Doc. 2 at 8). It found that such comparative analysis cast a suspicion on the prosecutor's asserted explanation for excusing C.B. and that when coupled with the reason itself - bright clothing - the Court of Appeal questioned the "good faith" and/or "sobriety" of such reasons for the peremptory challenge. (Lodged Doc. 2 at 8). Nonetheless, because the prosecutor had offered two race-neutral reasons for dismissing C.B. - her memory and occupation - which the trial court did not (and thus the Court of Appeal believed that it could not) subject to a comparative analysis, and because California law did not require the trial court to conduct further inquiry into the prosecutor's race-neutral explanations if it was satisfied from its observations that any of them was proper, it rejected petitioner's Wheeler/Batson challenge. (Lodged Doc. 2 at 8) (citing People v. Jackson, 13 Cal.4th 1164, 1198 (1996), cert. denied, 520 U.S. 1216 (1997)).
Petitioner thereafter sought review by the California Supreme Court, arguing, pursuant to Miller-El, that comparative juror analysis was required on appeal when analyzing "all the relevant circumstances, " as required by Batson, regardless of whether a comparative analysis had been performed by the trial court (Lodged Doc. 3 at 6) and that in this case, it was at least implicit that the Court of Appeal would have reversed petitioner's conviction based on the prosecutor's removal of C.B. from the jury if it had been permitted to apply comparative analysis for the first time on appeal (Lodged Doc. 3 at 5). As noted above, the California Supreme Court denied review without comment. (Lodged Doc. 4).
3. Pertinent Federal Procedural Background
In petitioner's original federal petition for writ of habeas corpus ("Original Petition"), he broadly asserted that "the prosecution's unconstitutional use of peremptory challenges to improperly remove African-American jurors from the jury deprived [petitioner] of his state and federal constitutional rights to an impartial jury and equal protection of the law" ("Original Batson Claim"). Respondent thereafter moved to dismiss the Original Petition because petitioner's Original Batson Claim had not been exhausted. On January 11, 2007, this Court issued an order ("January Order") advising the parties that it agreed with respondent's contention that the Original Batson Claim was unexhausted as it was broader and slightly different from the claim raised by petitioner in the petition for review submitted to the California Supreme Court. The January Order also advised petitioner that this Court would be inclined to recommend that the assigned District Judge dismiss the Original Petition as "mixed" unless petitioner availed himself of one of four options set forth therein: (1) dismissing the Original Petition; (2) amending the Original Petition to delete the unexhausted claim; (3) filing a motion to stay; or (4) filing a supplemental brief explaining how and when he had exhausted the Original Batson claim to the extent he contended that it had been exhausted. Petitioner thereafter filed the currently operative amended federal Petition containing the Batson claim now in issue - a reframed and narrower version of the Original Batson claim.
4. Analysis
a. Exhaustion/Abandonment
This Court rejects respondent's argument that, to the extent petitioner's instant Batson claim is construed to allege a violation of petitioner's constitutional rights under Batson, it is unexhausted and abandoned. (Supp. Answer at 1-3). As noted above, the January Order reflects this Court's agreement with respondent's contention that petitioner's Original Batson Claim is/was unexhausted. However, petitioner's Batson claim, as framed in the currently operative federal Petition and construed liberally, more narrowly argues that the California Court of Appeal should have been permitted to engage in a meaningful comparative analysis ( i.e., one on which the Court of Appeal was permitted to act) in assessing whether the prosecutor purposefully discriminated against him during jury selection relative to C.B. - an analysis which would have resulted in a reversal based upon a violation of petitioner's right to equal protection in the jury selection process. (Petition at 5-5A). In his petition for review filed in the California Supreme Court, petitioner presented substantially the same operative facts and federal legal theory on which the Batson claim asserted in the instant Petition is based. (Lodged Doc. 3 at 3-6). While the Court recognizes that there is a distinction between the legal argument that the California courts misapplied U.S. Supreme Court law and the fact-based argument that the determinations of the state courts at Batson's third step were unreasonable (see Rice v. Collins, 546 U.S. 333, 342 (2006)), a legal determination that the state courts misapplied U.S. Supreme Court authority by failing to engage in a meaningful comparative analysis, would materially impact the reasonableness of their factual determinations at step three of the Batson analysis. Here, the pertinent claim in the petition for review and the Batson claim in the currently operative federal Petition both fairly raise the arguments that the California courts misapplied governing Supreme Court authority and that such misapplication - which necessarily omitted material facts from such courts' assessment at Batson's third step - resulted in an unreasonable determination of the facts relative to the prosecutor's motive in striking C.B. from the panel. Accordingly, this Court concludes that petitioner's current Batson claim has been exhausted and has not been abandoned. See Anderson v. Harless, 459 U.S. 4, 6 (1982) (federal habeas petitioner must fairly present substance of federal claim to state courts); Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999) ("A petitioner can satisfy the exhaustion requirement by providing the highest state court with a fair opportunity to consider each issue before presenting it to the federal court. The state courts have been given a sufficient opportunity to hear an issue when the petitioner has presented the state courts with the issue's factual and legal basis.") (internal citations omitted).
b. Standard of Review and Merits of Batson claim
Since the Ninth Circuit has determined that Batson and Miller-El clearly established that an assessment of a Batson objection calls for a court - even a reviewing court in the first instance - to review all available evidence of the prosecutor's intent in exercising a peremptory challenge, including a comparative analysis of similarly situated jurors, this Court is compelled to conclude that the California Supreme Court's refusal to require the Court of Appeal to take into account a comparative analysis regarding all three bases upon which the prosecutor exercised peremptory challenges against C.B., and the Court of Appeal's failure to do so, were contrary to, or involved an unreasonable application of clearly established U.S. Supreme Court authority. See Love v. Scribner, 278 Fed.Appx. 714, 716-18 (9th Cir. 2008) (California Court of Appeal's refusal, based on California law, to conduct comparative juror analysis on appeal "was contrary to, or involved an unreasonable application of, clearly established Federal law.") (citations omitted); Green, 532 F.3d at 1031 (By failing to conduct thorough comparative juror analysis in connection with Batson claim, the Court of Appeal failed to perform its "affirmative duty to determine if the defendant had established purposeful discrimination.") (citing, inter alia, Batson, 476 U.S. at 93; Miller-El v. Dretke, 545 U.S. at 241; Lewis v. Lewis, 321 F.3d 824, 832 (9th Cir. 2003)); Boyd, 467 F.3d at 1151 ("[T]he California appellate courts' denial of Petitioner's request for... a full comparative analysis of the venire unreasonably applied clearly established federal law."). In light of such determination, a de novo review of petitioner's Batson claim is appropriate. See Frantz v. Hazey, 533 F.3d at 739; Love, 278 Fed.Appx. at 718.
The Court may cite unpublished Ninth Circuit opinions issued on or after January 1, 2007. See U.S.Ct. App. 9th Cir. Rule 36-3(b); Fed. R. App. P. 32.1(a).
Based upon such a de novo review of the record before the state courts - which in this case is sufficient to enable such review - this Court concludes that the product of the Court of Appeal's legal error in failing meaningfully to engage in a comparative analysis relative to all three of the prosecutor's asserted bases for exercising a peremptory challenge against C.B. yielded an unreasonable determination of fact in light of the record before it, even when considering the deference owed to determinations of the trial court. See Felkner v. Jackson, 131 S.Ct. 1305, 1307 (2011) (on appeal, trial court's ruling on the issue of discriminatory intent subject to great deference and must be sustained unless clearly erroneous) (citation omitted); Ali v. Hickman, 584 F.3d 1174, 1180-81 (9th Cir. 2009) ("Section 2254(d) of Title 28, United States Code governs [a federal habeas court's] review of the state appellate court's finding that the prosecutor did not engage in purposeful discrimination... [A federal habeas court] must defer to the California appellate court's conclusion that there was no discrimination unless that finding was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.") (citation, internal citation and internal quotation marks omitted), cert. denied, 130 S.Ct. 2065 (2010). More specifically, and as explained below, such error resulted in an unreasonable determination that the trial court's decision to credit the prosecutor's race-neutral explanations for challenging C.B. should be affirmed when the record instead reflects that the trial court clearly erred in failing to conclude that the prosecutor's asserted bases for exercising peremptory challenges against C.B. were pretexts for discrimination. As purposeful discrimination in the exercise of even a single peremptory challenge violates the Constitution and cannot be deemed harmless, conditional habeas relief is appropriate. See Batson, 476 U.S. at 95 ("A single invidiously discriminatory government act is not immunized by the absence of such discrimination in the making of other comparable decisions") (citation and internal quotation marks omitted); Gonzalez v. Brown, 585 F.3d 1202, 1206 (9th Cir. 2009) ("A single peremptory strike, if purposefully discriminative, will be enough to upset a jury conviction."); Kesser, 465 F.3d at 369 ("[J]ust one racial strike calls for a retrial."); Turner v. Marshall, 121 F.3d 1248, 1254 n.3 (9th Cir. 1997) ("There is no harmless error analysis with respect to Batson claims."), cert. denied, 522 U.S. 1153 (1998).
As noted above, the prosecutor gave three race-neutral reasons for striking C.B. (1) she was a retired nurse, an unacceptably "sympathetic" profession; (2) she was an older woman who had a poor memory about the details of her prior jury service; and (3) she wore bright clothing, which again suggested that C.B. was a sympathetic person. (RT 215-16). As discussed more thoroughly below, the Court of Appeal unreasonably determined that the trial court did not improperly credit the prosecutor's explanation for exercising such peremptory challenge.
i. C.B.'s Former Occupation as a Nurse
The prosecutor claimed that he excused C.B. in part because she was a retired nurse - which he alleged made C.B. a "sympathetic person" who might reach her verdict based on emotion, rather than the evidence presented at trial. (RT 216). While a juror's occupation may constitute a genuine race-neutral basis upon which to exercise a peremptory challenge (see United States v. Thompson, 827 F.2d 1254, 1260 (9th Cir. 1987) (excluding jurors based on profession wholly within prosecutor's prerogative) (citation omitted)), here, a review of the record yields the conclusion that C.B.'s occupation was a pretext.
First, the prosecutor did not challenge at least one non-African American juror who, like C.B., was a registered nurse at Long Beach Memorial Hospital and wore bright clothing to court - namely Juror No. 2042, who was initially seated and ultimately served at trial as Juror No. 4. (RT 42, 91-92, 219). This fact alone significantly undermines the prosecutor's first asserted reason for striking C.B. See Miller-El, 545 U.S. at 241; McClain v. Prunty, 217 F.3d 1209, 1220 (9th Cir. 2000) ("A prosecutor's motives may be revealed as pretextual where a given explanation is equally applicable to a juror of a different race who was not stricken by the exercise of a peremptory challenge."). Contrary to respondent's suggestion (Supp. Answer at 11-12), Juror No. 2042 need not have shared all of C.B.'s characteristics to be "similarly situated" for purposes of a comparative analysis. See Green, 532 F.3d at 1030 n.3 ("Two jurors do not have to have all the same characteristics to be similarly situated. A per se rule that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave Batson inoperable; potential jurors are not products of a set of cookie cutters.'") (quoting Miller-El, 545 U.S. at 247 n.6).
The prosecutor also chose not to exercise a peremptory challenge against another juror who was a Certified Home Health Nurse's Assistant - namely Juror No. 8059 who was initially seated as Juror No. 16 and ultimately served at trial as Juror No. 11. (RT 43, 104-05, 113-14, 138). However, the race/ethnicity of this juror cannot be determined from the state court record.
Second, when afforded an opportunity to ask follow-up questions, the prosecutor did not ask C.B. any questions about her occupation. (RT 106-07). The failure to explore, prior to striking C.B., whether C.B.'s prior occupation made her unacceptably sympathetic, suggests that this asserted justification for the prosecutor's peremptory strike was not genuine. See Miller-El, 545 U.S. at 244, 246 (explaining that "unless he had an ulterior reason for keeping [the juror] off the jury we think he would have proceeded differently.... [W]e expect the prosecutor would have cleared up any misunderstanding by asking... questions before getting to the point of exercising a strike."; The State's failure to engage in any meaningful voir dire examination on a subject the State alleges it is concerned about is evidence suggesting that the explanation is a sham and a pretext for discrimination.") (citation and internal quotation marks omitted); United States v. Collins, 551 F.3d 914, 922 (9th Cir. 2009) (finding an inference of discrimination based, in part, on the prosecutor's failure to ask a juror questions on the topic that allegedly served as a basis for striking the juror); Green, 532 F.3d at 1033 (finding the prosecutor's reasons for striking a juror to be pretextual, in part because "[t]he prosecutor's stated reason that [the struck juror]'s five jobs illustrated she could not get along well with others was undermined by the fact that he did not ask her a single question about why she changed jobs").
Nor did the prosecutor ask Juror No. 2042 - the non-African American registered nurse who remained on the jury and served as Juror No. 4 at trial - any follow-up questions relating to her profession (or any other topic). This failure also supports an inference that the prosecutor did not have a genuine concern about the sympathetic nature of those in the nursing profession. See Green, 532 F.3d at 1033 (prosecutor's reasons for peremptory strike found pretextual in part because prosecutor had failed to inquire into the topic of alleged concern during voir dire examination of other jurors) (citing Miller-El, 545 U.S. at 246).
ii. C.B.'s Memory Re: Prior Jury Service
The prosecutor also asserted that C.B.'s age-related poor memory regarding her prior jury service was a race-neutral basis upon which he exercised a peremptory challenge against her. However, a review of the record again yields the conclusion that the C.B.'s asserted memory problem regarding her prior jury service was a pretext.
First, the prosecutor materially mischaracterized the record relative to C.B.'s statements and recollection regarding her prior jury service. The prosecutor stated that "[C.B.] couldn't remember the cases that she sat on when the court made inquiry about her priors." (RT 216). To the contrary, C.B. displayed no lapse in memory during the trial court's brief examination about her prior jury service. (RT 89). The prosecutor also stated that when he asked about her prior jury service, "[C.B.] couldn't remember the facts of the case, the charges or anything like that." (RT 216). However, C.B. clearly remembered the charges in the two prior cases about which the prosecutor inquired and the prosecutor never asked C.B., about the charges in the third case or about any other "facts" related to any of the three cases. (RT 107). C.B.'s only uncertainty was about the date of her service on one case, which she recalled to be "about four years ago" - hardly the complete lack of recall professed by the prosecutor. (RT 107). This significant distortion of C.B.'s answers on voir dire yields the conclusion that the prosecutor's second reason was pretextual. Ali, 584 F.3d at 1190 ("The prosecutor's mischaracterization of [prospective juror's] testimony is evidence of discriminatory pretext.") (citing Miller-El, 545 U.S. at 244); Cook v. Lamarque, 593 F.3d 810, 818 (9th Cir. 2010) (mischaracterization of juror's answer "evidence of discriminatory pretext"); McClain, 217 F.3d at 1221 ("Where the facts in the record are objectively contrary to the prosecutor's statements, serious questions about the legitimacy of a prosecutor's reasons for exercising peremptory challenges are raised.").
The trial court's complete examination of C.B. about her prior jury service is as follows:
C.B. stated the following in response to the prosecutor's follow-up voir dire questions about her prior jury service:
Second, C.B.'s assertedly poor memory regarding the precise timing of one of the trials on which she served as a juror years before was not probative of her ability to recall testimony and evidence in petitioner's anticipatedly brief trial. As noted above, in assessing whether a prosecutor's reasons for exercising a peremptory challenge are genuine or a pretext invented to hide purposeful discrimination, the court must consider whether the reasons stated are related to the case. Batson, 476 U.S. at 98; Green, 532 F.3d at 1030. Here, the trial in petitioner's case was estimated to last no more than five days - It was neither lengthy nor complex. (RT 7). C.B.'s assertedly poor memory about the timing of her prior jury service years before bears no rational relationship to her ability to serve as a juror in petitioner's case. Thus, the nature of this proffered reason for exercising a challenge against C.B. further evidences that it not genuine.
Third, the prosecutor did not challenge at least one non-African American juror who displayed a "poor memory" essentially equivalent to that of C.B. - namely Juror No. 0482, an Asian American who was initially seated as Juror No. 15, was later seated as Juror No. 1 and was seated as such when petitioner made the operative Batson/Wheeler motion, and was ultimately stricken by the defense on the defense's twelfth peremptory challenge after the prosecutor had repeatedly accepted the panel. (RT 138, 176, 226, 244, 247). More specifically, whereas C.B. indicated that she thought she had served on a jury "about four years ago, " Juror No. 0482 stated that he had previously served as a juror "maybe two years" ago. (RT 107, 138, 144). Such comparative analysis again yields the conclusion that C.B.'s allegedly poor memory was not the true reason the prosecutor exercised a challenge against her and that such reason was a pretext for discrimination.
The trial court noted that such juror was Asian when considering the prosecutor's second reverse-Batson/Wheeler challenge. (RT 247).
Juror No. 0482 stated the following during the trial court's voir dire examination:
The prosecutor did not challenge multiple other panel members who exhibited significantly worse memories than C.B. - Juror No. 0108 (who served at trial as Juror No. 9 after having initially been seated as Juror No. 17, could only approximate the total number of cases on which she had served as a juror, and could not remember the charges on one of those cases (RT 182, 194, 224)), Juror No. 4206 (who was initially seated and ultimately served at trial as Juror No. 5 and could not remember how many times she had served, whether the cases were criminal, and some of the charges alleged (RT 42, 92-93)) and Juror No. 7785 (who served at trial as Juror No. 1 after having initially been seated as Juror No. 17 and was unable to remember how many times she had served as a juror, how long ago the trials were, and the charges in one case (RT 227, 236-38, 246)). (Although the California Court of Appeal also referred to memory issues of Juror No. 7124/4795, who was initially seated and served at trial as Juror No. 6 (see supra note 13; Lodged Doc. 2 at 6), such juror had never actually previously been selected to serve on a trial jury (RT 93-94) and accordingly is not viewed by this Court as being similarly situated to C.B. or other prospective jurors who had done so.). However, the race/ethnicity of such jurors cannot be determined from the state court record.
iii. C.B.'s Brightly-Colored Clothing
The prosecutor lastly asserted that he challenged C.B. because he believed that her bright-colored clothing indicated that she was an emotional/sympathetic person. This asserted reason, particularly when considered in context, does not withstand scrutiny.
First, a comparative analysis of C.B. with three non-African American jurors who also wore bright clothing significantly undercuts the genuineness of this asserted basis for the challenge. (Lodged Doc. 2 at 8). The record reflects that Juror No. 0538 (who was initially seated as Juror No. 17, was seated as Juror No. 9 at the time of the operative Batson/Wheeler motion, and was subsequently excused by the defense with the defense's seventh challenge (RT 139, 176, 224)), Juror No. 2042 (the nurse who was initially seated and ultimately served at trial as Juror No. 4 (RT 42, 91-92, 219)), and Juror No. 7558 (who was initially seated as Juror No. 13, was seated as Juror No. 12 at the time of the operative Batson/Wheeler motion, and was subsequently excused by the defense with the defense's ninth challenge (RT 138, 175, 244)) were not African American, and each wore bright clothing to court. (RT 42, 138, 139, 175, 176, 219). The prosecutor did not challenge any of them.
Juror No. 0538's house had been burglarized on two occasions. (RT 139, 148). Juror No. 7558 had been the victim of a robbery. (RT 138, 152). This Court recognizes that such attributes arguably make these two jurors unsuitable for comparative analysis with C.B. Nonetheless, Juror No. 2042 shared two characteristics with C.B. that made her unacceptable to the prosecutor, yet the prosecutor conducted no voir dire examination of Juror No. 2042 on any topic, and never challenged the juror. This Court finds such evidence alone sufficient to undermine the credibility of the prosecutor's third basis for challenging C.B., especially in light of the fact that this Court finds the prosecutor's other asserted reasons to be pretextual. See Ali, 584 F.3d at 1192 ("[W]e have already concluded that the prosecutor offered two (or three) pretextual reasons for striking [the juror]. That the other reasons were pretextual raises an inference that this final rationale is also a make-weight.").
Second, the prosecutor never asked C.B. about her brightly-colored clothing or the extent to which her style of dress may have reflected a sympathetic personality. The prosecutor's failure to examine C.B. on the matter prior to exercising a peremptory strike based thereon suggests that the asserted reason was not genuine. See Miller-El, 545 U.S. at 244; United States v. Collins, 551 F.3d at 922; Green, 532 F.3d at 1033.
Third, the prosecutor did not engage in any follow-up questioning about other jurors being clothed in bright colors. Such failure to challenge, or engage in any meaningful voir dire examination of non-African American jurors who shared one or more allegedly objectionable attributes with C.B. is further evidence that this asserted reason for challenging C.B. was merely a pretext for racial discrimination. Miller-El, 545 U.S. at 246; McClain, 217 F.3d at 1220.
Finally, although a juror's clothing may constitute a race-neutral reason for a peremptory strike where the manner of dress suggests a juror's possible bias (see, e.g., People v. Wheeler, 22 Cal.3d at 275 (prosecutor may fear bias because juror's clothes or hair length suggest unconventional lifestyle); People v. Allen, 115 Cal.App.4th 542, 551 (2004) (assertion simply that juror's manner of dress objectionable, without elaboration, insufficient to state race-neutral reason for peremptory strike); People v. Barber, 200 Cal.App.3d 378, 396 (1988) (fact that juror wearing "Coors jacket" which may have suggested lack of respect for court system constituted non-biased reason for exercising challenge), here, the prosecutor's expression of concern - that C.B.'s bright clothing rendered her sympathetic or emotional person - particularly given the other evidence in the record, is implausible.
iv. Summary
As reflected in the above analysis, the prosecutor's asserted reasons for striking C.B. are based on mischaracterizations of the record, are implausible, do not relate to the trial at hand, and/or are undermined by a comparison between C.B. and other non-African American jurors who had similar characteristics, but were not excused by the prosecution. Accordingly, this Court must conclude that the prosecutor's peremptory strike of C.B. was actually motivated by unlawful discrimination and that the California Court of Appeal's decision which affirmed the trial court's determination that the prosecutor's peremptory challenge of C.B. was not racially motivated, was based on an unreasonable determination of the facts in light of the evidence presented. Since even a single racially motivated peremptory challenge is constitutional error that cannot be deemed harmless, petitioner is entitled to conditional habeas relief on his Batson claim.
Respondent argues that habeas relief should be denied because the instant case lacks additional evidence of discrimination "of the magnitude involved in Miller-El ( i.e., the prosecution's use of a "jury shuffle" to skew the racial composition of the jury, disparage questioning of African American and white prospective jurors, and historical evidence of the prosecution's practice of discrimination during jury selection). (Supp. Answer at 15). However, the case-specific evidence of discrimination identified in Miller-El is not required for a successful Batson challenge. Kesser, 465 F.3d at 368 ("Neither the discriminatory shuffle and jury selection manuals in Miller-El nor the racist comments here are required for a successful Batson challenge, and these factors alone will not succeed unless accompanied by a showing that nonracial justifications for striking a minority juror are pretextual."). (RT 218-19, 225). In any event, as discussed above, here, a sensitive inquiry into the available direct and circumstantial evidence of intent - including the degree to which the prosecutor's articulated reasons for exercising a challenge against C.B. relate/do not relate to the case, the degree to which they are supported by/mischaracterize the record, as well as a comparative analysis - expose the prosecutor's reasons for striking C.B. as pretextual.
B. Petitioner's Evidentiary Claim Does Not Merit Habeas Relief
Petitioner contends that the trial court denied him due process and a fair trial when it admitted evidence that petitioner had previously robbed the same location. (Petition at 5, 5b; Traverse at 9-12). The California Court of Appeal - the last state court to render a reasoned decision on the issue - rejected petitioner's claim on the merits. (Lodged Doc. 2 at 8-10). Petitioner is not entitled to federal habeas relief on this claim.
1. Additional Pertinent Facts
Prior to trial, the prosecution filed a motion pursuant to California Evidence Code section 1101(b), seeking to admit evidence that in 1994 petitioner had robbed the same warehouse ("1994 Robbery"). (CT 16-21; RT 15-17). During the 1994 Robbery, three security guards were on duty when three armed robbers, one of whom was petitioner, entered the guard shack. One robber took a guard to search for cargo to steal while petitioner and the second robber forced the other two guards to the back of the property, where petitioner ordered them to lie down and tied them up. A fourth guard, unaware of the robbery, asked a robber on lookout duty whether the robber was there for a cargo pick-up. The lookout pulled out his gun and moved the guard to a cargo container, where he forced the guard to lie down.
The prosecutor sought admission of evidence of the 1994 Robbery, in part, to prove petitioner's identity. (CT 18-19; RT 17). Over defense counsel's objection, the trial court admitted the evidence because the 1994 Robbery was sufficiently similar to one at issue in the pending trial to be probative of petitioner's identity. (RT 37-39). On its own motion under California Evidence Code section 352, the trial court concluded that the probative value of the evidence was not outweighed by any undue prejudice. (RT 37-40).
The prosecutor said "we're asking that evidence [of the 1994 Robbery] be brought in under 1101(b) to prove identity, because in this case identity is the key issue. Because the defense is challenging the identification of the two security guards in our case." (RT 17).
California Evidence Code section 352 provides:
On direct appeal, the California Court of Appeal concluded that, while there were differences between the 1994 Robbery and the current case, "there were enough similarities to allow the [trial] court to admit the 1994 evidence without abusing its discretion." (Lodged Doc. 2 at 9-10). The Court of Appeal rejected plaintiff's unsupported argument that the trial court also abused its discretion by not finding the evidence unduly prejudicial. (Lodged Doc. 2 at 10).
The Court of Appeal noted the following similarities between the two crimes:
2. Pertinent Law
"A habeas petitioner bears a heavy burden in showing a due process violation based on an evidentiary decision." Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir.), as amended on reh'g, 421 F.3d 1154 (9th Cir. 2005). "The admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process." Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir.), cert denied, 516 U.S. 1017 (1995) (citation omitted); see also Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (discussing standard; noting that the Supreme Court has not made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of a writ of habeas corpus). The "[a]dmission of evidence violates due process only if there are no permissible inferences the jury may draw from it." Boyde, 404 F.3d at 1172 (quoting Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991)) (internal quotation marks omitted; emphasis in original); see also Windham, 163 F.3d at 1103-04 (admission of "other acts" evidence will violate due process only where there are no permissible inferences the jury may draw from it).
In addition, habeas relief is available for evidentiary error only when petitioner demonstrates he has suffered prejudice as a result of a due process violation - that is, the error had "a substantial and injurious effect' on the verdict." Dillard v. Roe, 244 F.3d 758, 767 n.7 (9th Cir.), cert. denied, 534 U.S. 905 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).
3. Analysis
First, to the extent petitioner suggests that the trial court incorrectly applied California state court rules of evidence when it admitted evidence of the 1994 Robbery, petitioner is not entitled to federal habeas relief. A state court's evidentiary ruling is generally not subject to federal habeas review. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (admissibility of evidence is generally a matter of state law and will rarely support federal habeas corpus relief); Jammal, 926 F.2d at 919-20 (whether trial court violated a state rule of evidence "largely beside the point" on habeas review); see also Johnson v. Sublett, 63 F.3d 926, 931 (9th Cir.), cert. denied, 516 U.S. 1017 (1995) (argument that admission of wooden clubs found at defendant's house was unconstitutional due to lack of evidence linking clubs to crimes "presents state-law foundation and admissibility questions that raise no federal habeas issues") (citation omitted).
Petitioner's argument that the trial court incorrectly applied Federal Rule of Evidence 404(b) also cannot justify habeas relief. (Traverse at 9-11). Since the California courts are not subject to the Federal Rules of Evidence, this Court cannot conclude that failure to comply with such federal rule was contrary to, or an unreasonable application of, Supreme Court precedent.
Second, the Supreme Court has expressly reserved the question of whether using evidence of a defendant's past crimes, even to show that he has a propensity for criminal activity, could ever violate due process. Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir.) (citing Estelle, 502 U.S. at 75 n.5), cert. denied, 555 U.S. 871 (2008). Because the Supreme Court has expressly left this question unanswered, this Court cannot conclude that the state court unreasonably applied clearly established federal law by admitting evidence of petitioner's 1994 Robbery. See Larson, 515 F.3d at 1066.
Finally, to the extent petitioner's claim is reviewable based upon a potential denial of due process, it lacks merit, as petitioner has not shown that admission of the evidence fatally infected the proceedings so as to render them fundamentally unfair. Both California and Federal rules of evidence allow evidence of prior criminal activity to prove, inter alia, identity. See Cal. Evid. Code § 1101(b) ("Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove... identity...."); Fed. Rule Evid. 404(b) ("Evidence of other crimes, wrongs, or acts [may be]... admissible... as proof of... identity."); United States v. LeMay, 260 F.3d 1018, 1026-27 (9th Cir. 2001) (noting that evidence that a defendant had committed similar crimes in the past is routinely admitted in criminal prosecutions under Federal Rule of Evidence 404(b) to prove preparation, identity, intent, motive, absence of mistake or accident), cert. denied, 534 U.S. 1166 (2002). Here, as the trial court noted, and both lawyers acknowledged, identity was a significant issue in petitioner's case. (CT 16-19; RT 37). Evidence that petitioner had been involved in a prior, similar crime against the same warehouse was highly relevant to the issue of identity.
The California Court of Appeal's rejection of petitioner's evidentiary claim was not contrary to, or an objectively unreasonable application of, any clearly established federal law, and did not constitute an unreasonable determination of the facts in light of the evidence presented. Accordingly, petitioner is not entitled to habeas relief on this claim.
C. Petitioner's Claim of Prosecutorial Misconduct Does Not Merit Habeas Relief
Petitioner contends that the prosecutor committed unconstitutional misconduct when he elicited testimony from two prosecution witnesses that petitioner had been involved in several prior robberies, which violated the trial court's order excluding evidence of any of petitioner's prior crimes other than the 1994 Robbery. (Petition at 6, 6b; Traverse at 12-14). The California Court of Appeal - the last state court to render a reasoned decision on the issue - rejected petitioner's claim on the merits. (Lodged Doc. 2 at 11-13). Petitioner is not entitled to federal habeas relief on this claim.
1. Pertinent Facts
After petitioner drove the stolen trailer away from the Universal Warehouse on the evening of June 18, 2001, the guards called the police. A detective with a joint state-federal task force investigating warehouse robberies responded and called his supervisor when he arrived at the scene. During the call, the supervisor urged the detective to investigate petitioner as a possible suspect.
At petitioner's trial, the supervisor testified, in pertinent part, as follows:
Q [D]id [the detective] call you about this robbery that had just occurred at Universal Warehouse?
A Yes, he did.
Q And did you have a discussion with him?
A Yes.
Q Did you provide him information as to possible suspects?
A Yes.
Q And what information did you provide to him?
A I provided him with the information as to who the suspect might be.
Q And whose name did you provide.
A Michael Jackson.
Q And why did you provide the name of Michael Jackson?
A The M.O. of the crime was consistent with investigations that I had conducted in the past.
(emphasis added).
Defense counsel moved for a mistrial based on the supervisor's testimony. Counsel noted that the trial court had previously ruled that the prosecution could offer evidence of only one of petitioner's prior crimes - the 1994 Robbery. Defense counsel argued that the supervisor's reference to "investigations" (in the plural) suggested that petitioner had committed multiple crimes in the past, and thus violated the court's order.
The trial court denied the motion for mistrial. The court observed that the supervisor had referred to "investigations" only once. The court also doubted jurors had understood the plural "investigations" as hinting petitioner had committed numerous other crimes. In addition, neither defense counsel nor the court offered a curative instruction, both believing additional discussion about the issue could serve only to draw unnecessary attention to the supervisor's testimony.
The prosecutor also called an agent of the Federal Bureau of Investigation ("FBI") to testify. After petitioner was arrested for the 1994 Robbery, the agent had questioned petitioner about other warehouse robberies. The prosecutor's examination of the FBI agent alluded to those robberies:
Q [D]uring the course of that interview... did he give you information about his modus operandi? Do you understand that term, modus operandi?
A Yes, I do.
Q His modus operandi in conducting cargo thefts in the area?
A Yes, he did.
Q [H]ow did he describe his modus operandi in the conduction of cargo thefts in the area?
A First he talked about... the typical burglary kit.... Duct tape used to secure the security guard. Bolt cutters used to cut chains and fences. Two-way radios. Snatch bar, which is a slight hammer, used to punch the ignition of the tractor of the truck. The screwdriver used as a key to start the tractor. Flashlight, gloves and a ski mask.
Q So he told you these are part of the cargo theft kit. That all of these things he would normally have in his possession when he did cargo thefts?
A Yeah, that's correct.
Defense counsel objected to the testimony. At sidebar, the court expressed concern that the prosecutor's examination left the impression that petitioner had committed numerous robberies. The prosecutor stated that he understood the court's order to exclude evidence of other robberies, but thought that he was nonetheless permitted to use evidence from the 1994 Robbery, which included petitioner's post-arrest interview with the FBI. The trial court then clarified its order, stating that the prosecutor could ask about petitioner's 1994 Robbery, but could not frame his questions in a manner that suggested petitioner had committed other robberies.
2. Pertinent Law
"On a petition for writ of habeas corpus, the standard of review for a claim of prosecutorial misconduct is the narrow one of due process, and not the broad exercise of supervisory power.'" Renderos v. Ryan, 469 F.3d 788, 799 (9th Cir. 2006), cert. denied, 551 U.S. 1159 (2007) (quoting Darden v. Wainright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974))). Prosecutorial misconduct merits habeas relief only where the misconduct "so infec[t][ed] the trial with unfairness as to make the resulting conviction a denial of due process.'" Greer v. Miller, 483 U.S. 756, 765 (1987) (quoting Donnelly, 416 U.S. at 643). To constitute a due process violation, the prosecutorial misconduct must be so severe as to result in the denial of the petitioner's right to a fair trial. Bonin v. Calderon, 59 F.3d 815, 843 (9th Cir. 1995), cert. denied, 516 U.S. 1051 (1996) (citation omitted). In other words, prosecutorial misconduct invites reversal of a conviction when it appears more probable than not that the alleged misconduct affected the jury's verdict. United States v. McChristian, 47 F.3d 1499, 1508 (9th Cir. 1995) (citation omitted).
3. Analysis
First, petitioner fails to show improper conduct by the prosecutor. As the Court of Appeal noted, there is no evidence that the prosecutor anticipated the supervisor would reference plural "investigations." Moreover, the prosecutor could reasonably have thought that the trial court's original ruling would allow examination of the FBI agent about his interview with petitioner regarding his "modus operandi" and leadership in other robberies.
When it ruled under California Rule of Evidence 1101(b) that evidence of petitioner's 1994 Robbery was admissible, the trial court stated that the prosecutor could "use the [interview] statement [to the FBI agent] that was made as it relates to the [petitioner's] involvement in that [1994] robbery...." (RT 39). The prosecutor asked further, "[y]ou mean to where [petitioner] gives the statement to [his] modus operandi and his leadership in the other robberies, " and the trial court responded "That's correct." (RT 39). Based on this exchange, the Court of Appeal reasonably concluded that the trial court had not abused its discretion finding that the prosecutor's examination of the FBI agent during trial did not constitute intentional misconduct. The Court of Appeal explained:
Second, even if the prosecutor's examination of the two witnesses was improper, the testimony elicited did not deprive petitioner of a fair trial. As the Court of Appeal reasonably concluded, the jury likely did not interpret the supervisor's testimony about "investigations" to suggest that petitioner had committed more than the single robbery. That both defense counsel and the court felt offering a curative instruction would unnecessarily draw attention to the fleeting comment supports this conclusion. The prosecutor did not mention the supervisor's comment in closing argument, nor did he reference testimony from the FBI agent regarding plaintiff's "modus operandi" with respect to other robberies. Moreover, the trial court instructed the jury that it could consider evidence of petitioner's prior criminal activity solely to prove identity. (CT 153-54; RT 572). The jury is presumed to have followed the court's instructions. Weeks v. Angelone, 528 U.S. 225, 226 (2000). In sum, the challenged testimony did not "so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process." Darden, 477 U.S. at 181.
The trial court instructed the jury with CALJIC 2.50, which provides, in part:
The California Court of Appeal's rejection of petitioner's prosecutorial misconduct claim was not contrary to, or an objectively unreasonable application of, any clearly established federal law, and did not constitute an unreasonable determination of the facts in light of the evidence presented. Accordingly, petitioner is not entitled to habeas relief on this claim.
VI. RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the District Judge issue an Order: (1) approving and accepting this Report and Recommendation; and (2) directing that Judgment be entered conditionally granting habeas relief on petitioner's Batson claim and directing respondent to discharge petitioner from all adverse consequences of the judgment in Los Angeles County Superior Court Case No. TA063472 unless petitioner is brought to retrial within ninety (90) days of the entry of the Judgment herein, plus any additional delay authorized under State law.
The customary remedy in cases where the jury selection violated a defendant's equal protection rights, is to "requir[e] [the prisoner's] release from custody, unless the State elects to retry [the prisoner] within a reasonable time [as] determined by the district court." Ali, 584 F.3d at 1197.
One reason the prosecutor cited for dismissing C.B. was her purportedly poor memory about the details of her prior jury experience. During voir dire, the prosecutor asked her about the charges for two of the three trials on which she had previously sat, and she recalled both were theft cases. Her memory faltered only as to how long ago she had served on the first trial, which she believed was "about four years." The record shows, however, that other jurors were equally, if not more, uncertain about the details of their prior jury experience, making C.B.'s answers unexceptionable. For example, one juror stated he was summoned for jury duty "somewhere about six or seven years" earlier [referring to Juror No. 7124/4795, who was initially seated and ultimate served at trial as Juror No. 6 (RT 42, 93-94)]. Another juror had served on numerous juries but was unsure whether they were criminal or civil, although one involved "robbery, theft. I can't remember" [referring to Juror No. 4206, who was initially seated and ultimately served at trial as Juror No. 5 (RT 92)]. Another juror could not remember whether she had served on two or three juries, but her most recent service was a murder trial "two or three years" earlier [referring to Juror No. 7785, who was initially seated as Juror No. 17 and ultimately served at trial as Juror No. 1 (RT 236-38)]. The second trial she could remember was "an assault, I guess, case" from "probably, oh, maybe 15 years ago" [RT 238]. But as for the third jury on which she may (or may not) have served, she could only offer, "It seems like I was on one more, but I can't really recall that one" [RT 238]. ¶... Moreover, ...[as to] the prosecutor's assertion that C.B.'s career as a nurse made her a "sympathetic" person unsuitable to be a juror[, ]... the prosecutor accepted two other jurors who were nursing professionals, one a registered nurse and the second a certified nurse's assistant working toward getting a nursing credential [referring to Juror No. 2042, who was initially seated and ultimately served at trial as Juror No. 4, and Juror No. 8059, who was initially seated as Juror No. 16 and ultimately served at trial as Juror No. 11 (RT 91-92, 104, 138)].
(Lodged Doc. 3 at 6-7).
THE COURT: How many times have you served on a jury that deliberated? [¶] [C.B.]: Three times. [¶] THE COURT: Okay. And without telling us what the verdict was, just tell us was a verdict reached, or did the jury hang, or were you unable to reach a verdict? [¶] [C.B.]: There was a verdict reached. [¶] THE COURT: Were you the foreperson? [¶] [C.B.]: No.
(RT 89).
[Prosecutor]: Now, the prior service that you had - when was the last time that you served on the jury? [¶] [C.B.]: Last year. [¶] [Prosecutor]: Last year. What type of case was it? [¶] [C.B.]: Theft. [¶] [Prosecutor]: And can you remember the previous time you served? [¶] [C.B.]: Yes, I think. I think that was - about four years ago. [¶] [Prosecutor]: All right. What type of case was it? [¶] [C.B.]: Same thing, theft. [¶] [Prosecutor]: Theft. And did - I think you said that each one of those juries that you served on reached a verdict? [C.B.]:
Yes.
(RT 107).
PROSPECTIVE JUROR NO. [0482]: I have previous experience as a jury [sic.] and not guilty. [¶] THE COURT: Don't tell us what it was. But were you the foreperson? [¶] PROSPECTIVE JUROR NO. [0482]: Excuse me? [¶] THE COURT: Were you the foreman on that case? [¶] PROSPECTIVE JUROR NO. [0482]: No. [¶] THE COURT: How long ago was that? [¶] PROSPECTIVE JUROR NO. [0482]: Maybe two years. [¶] THE COURT: What were the charges? [¶] PROSPECTIVE JUROR NO. [0482]: It was a fight between two ladies.... [¶] THE COURT: So someone was charged with battery or assault? [¶] PROSPECTIVE JUROR NO. [0482]: Yeah.
(RT 138, 144).
Respondent also notes that three or four African-American jurors remained on the jury panel when petitioner made his second Wheeler/Batson motion. (Supp. Answer at 15). Such fact may be evidence of a nondiscriminatory motive for striking C.B., but it is not dispositive. See Miller-El, 545 U.S. at 249-50 (finding Batson violation even though prosecutor accepted a black panel member who served on jury); Turner, 121 F.3d at 1254 (fact that African-American jurors remained on the panel "may be considered indicative of a nondiscriminatory motive"), cert. denied, 522 U.S. 1153 (1998); Gonzalez, 585 F.3d at 1210 (fact that at the time of petitioner's Wheeler motion, three African-American jurors remained on the venire and two in the jury box, and prosecutor had "quite a few" peremptory strikes remaining but did not excuse any of the remaining African-American jurors considered as evidence of nondiscriminatory motive); see also Batson, 476 U.S. at 96, (court must consider "all relevant circumstances" in determining whether a particular defendant has raised an inference of discrimination). Here, the other evidence in the record demonstrates that the prosecutor's reasons for striking C.B. were pretextual.
The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
Both robberies occurred in the early morning. Both sets of robbers tried to catch the guards flat-footed with the ruse of one robber pretending to be a truck driver arriving for a pick-up. By not wearing masks, the robbers tried to avoid alarming the guards before the robbers could overpower them. The robbers herded the guards to a more secure location and physically restrained them to ensure they did not interfere with the robbery. Finally, when law enforcement located the stolen tractor trailers but had not yet arrested anyone, [petitioner] called the FBI to set up an alibi by pretending to be a tipster reporting details of the robbery, including the robbers' identities and the tractor-trailer's location.
(Lodged Doc. 2 at 9).
Plainly, the [trial] court did not want the jury to hear any references to any prior robberies other than the 1994 robbery. But it is also clear that the prosecutor understood the court's order to permit questioning about [petitioner's] modus operandi. Given the somewhat confusing colloquy between court and counsel concerning the scope of the court's order, the court's finding of no prosecutorial misconduct was not an abuse of discretion.
(Lodged Doc. 2 at 13).
Evidence has been introduced for the purpose of showing that [petitioner] committed the [sic] crime other than that for which he is on trial. Except as you will otherwise be instructed, this evidence, if believed, may not be considered by you to prove that [petitioner] is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining [¶]... if it tends to show the identity of the person who committed the crime, if any, of which [petitioner] is accused.
(RT 572).