Opinion
No. C 02-1674 TEH (pr).
July 14, 2003.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
This matter is now before the court for consideration of the merits of the pro se petition for writ of habeas corpus filed by Paul Henry Kaiser. For the reasons discussed below, the court will deny the petition.
BACKGROUND
A. Procedural History
Following a jury trial in Santa Clara County Superior Court, Paul Henry Kaiser was convicted of assaulting a peace officer with a firearm (Cal. Penal Code § 254(d)(1)), exhibiting a firearm in the presence of a peace officer (Cal. Penal Code § 417(c)), and two counts of possessing a firearm with a violent prior conviction (Cal. Penal Code § 12021.1(a)). He also was found to have suffered three prior felony convictions. Kaiser was sentenced to a total term of 50 years to life in prison with a determinate consecutive 20-year term, according to respondent.
Kaiser appealed. The California Court of Appeal affirmed the conviction and the California Supreme Court denied Kaiser's petition for review.
Kaiser then filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition was dismissed with leave to amend and he thereafter filed an amended petition. Respondent moved to dismiss the amended petition on the ground that petitioner had not exhausted state court remedies as to the claims raised therein, as required under 28 U.S.C. § 2254(b)(1). In response to the motion to dismiss, petitioner filed a motion for leave to file a second amended petition, which the court permitted. His second amended petition did not contain the unexhausted claims that were in the amended petition and contained only the claims asserted by his attorney in the state court appeal, i.e., that (1) his Sixth Amendment right to effective assistance of counsel was denied because his counsel failed to request a jury instruction on the knowledge element for the crimes with which he was charged, and (2) his Sixth and Fourteenth Amendment rights to jury trial were violated because the jury instructions did not include the knowledge element for the crimes with which he was charged. Because Kaiser voluntarily amended his petition — and filed a second amended petition eliminating the exhaustion problem before the court ruled on the motion to dismiss — the court dismissed the motion to dismiss as moot and requested briefing on the two claims presented in the second amended petition. The parties have had an opportunity to file their briefs and the matter is now ready for the court's consideration.
B. The Crimes
The evidence presented at trial was described in the California Court of Appeal's opinion and is summarized below:
Kaiser's current incarceration arose out of an encounter he had with Santa Clara County Deputy Sheriff Andrew Vasquez at about 4:00 p.m. on December 23, 1997. At the time, Deputy Vasquez was on a routine parol in full uniform and driving a Jeep Cherokee marked as a police car and with emergency lights. Kaiser was walking along a residential road and carrying a duffle bag.
When Deputy Vasquez drove by Kaiser, Kaiser looked in Vasquez's direction and then looked back at the ground. Vasquez thought something was odd about Kaiser's demeanor and returned to find him. Deputy Vasquez stopped his Jeep about ten feet behind Kaiser. Kaiser turned and started walking toward the Jeep and approached the Jeep's door despite Vasquez's motion for him to stand in front of the Jeep. They conversed.
Kaiser told Vasquez he was on his way home, but appeared not to know how far away his "home" was. Vasquez told Kaiser he was going to conduct a pat-down search to which Kaiser replied, "No, you're not" and reached to open his duffel bag. Kaiser initially ignored Vasquez's instruction to move away from the bag but then stopped unzipping the bag and stood up when Vasquez yelled at him to stop. Kaiser then "rammed" his hand into his front jacket pocket — an action that led Vasquez to believe he was reaching for a weapon. Vasquez grabbed Kaiser and leapt onto his back. After a struggle, Kaiser pulled out a handgun from his pocket and started raising it toward Vasquez's head. Kaiser responded to Vasquez's instruction to drop the gun by saying "I'm not dropping it, you're dead. I'll kill you." Kaiser disentangled himself from Vasquez and pointed the gun at Vasquez's chest. Vasquez backed away and Kaiser followed him. Kaiser took the radio offered by Vasquez and jogged toward the Jeep. Vasquez drew his gun and fired at Kaiser when Kaiser was about 15 yards away. Although they exchanged gunfire — Vasquez shot 15 times and Kaiser shot once — neither was hit by a bullet. When Vasquez was reloading his weapon, Kaiser surrendered, stood up and threw his gun across the street. Kaiser was taken into custody when other officers arrived.
After being advised of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436 (1966), Kaiser told the police about the encounter, admitting that he had seen a sheriff and that he recognized Vasquez's vehicle as a police car. Kaiser told the sergeant interviewing him that he drank 2 or 3 16-oz. beers between 1:00 and 2:30 p.m. (i.e., 1-1/2 to 3 hours before the encounter). The sergeant observed no signs of intoxication in Kaiser. Kaiser also said he was looking for a house he had inherited from his grandfather on Woodwardia Street but was currently living elsewhere in San Jose. Kaiser also said he had inherited ownership of several corporations, including Taylor Made Business Products, and that he had a large trust account. Apparently, no evidence was presented at trial as to whether Kaiser's grandfather lived at the address on Woodwardia, whether Kaiser had inherited the house, whether Kaiser had an ownership interest in several corporations, or whether he had a large trust account. There also apparently was no evidence as to whether these statements were delusions (as opposed to lies or the truth). The California Court of Appeal recognized that "the trial record as a whole supports an inference that most, if not all, of defendant's claims were untrue." Cal. Ct. App. Opinion, p. 4.
JURISDICTION AND VENUE
This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in Santa Clara County, California, within this judicial district. 28 U.S.C. § 84, 2241(d).
EXHAUSTION
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c). The parties do not dispute that state court remedies were exhausted for the claims asserted in the second amended petition.
STANDARD OF REVIEW
This court may entertain a petition for 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). The petition may not be granted with respect to any claim that was adjudicated 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).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts."Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
DISCUSSION
A. Instructional Error Claim
The first claim springs from the elementary criminal law principle that, for most crimes, the mens rea and actus rea must exist together. Kaiser was convicted of assault with a firearm on a peace officer and exhibiting a firearm in the presence of a peace officer. For assault with a firearm on a peace officer, the prosecution must prove that the defendant "knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties." Cal. Penal Code § 245(d)(1). For the crime of exhibiting a firearm in the presence of a peace officer, the prosecution must prove that the defendant "knows, or reasonably should know, by the officer's uniformed appearance or other action of identification by the officer, that he or she is a peace officer engaged in the performance of his or her duties." Cal. Penal Code § 417(c).
Kaiser claims that the jury was not properly instructed on the knowledge required for the crimes of which he was convicted. In short, he claims that the jury wasn't instructed on the requirement of a union of bad mental state and bad act because the jury was not given a specific instruction that explicitly stated that he had to assault/exhibit a firearm at the same moment he knew or reasonably should have known that the victim was a peace officer. Although the defense didn't request it at trial, Kaiser now claims the court sua sponte should have given CALJIC 3.31.5 or a similar instruction that would have informed the jury of the requirement.
CALJIC 3.31.5 provides:
In the crime[s] charged in Count[s] _____ and _____ there must exist a union or joint operation of act or conduct and a certain mental state in the mind of the perpetrator. Unless this mental state exists the crime to which it relates is not committed.
[The mental state[s] required [is] [are] included in the definition[s] of the crime[s] set forth elsewhere in these instructions.]
In the crime of _________, the necessary mental state is ________.
The California Court of Appeal rejected the instructional error claim because the instructions as a whole adequately instructed on the knowledge required. Cal. Ct. App. Opinion, pp. 6-8. The court noted that under existing state law precedent, "if the trial court has set forth the requisite mental state in a separate instruction, then there is no need to restate this in CALJIC 3.31.5." Cal. Ct. App. Opinion, p. 6 (citing People v. Laster, 52 Cal.App.4th 1450, 1469 (Cal.App. 1997)). The court explained that it was enough that Kaiser's trial court had given CALJIC 9.20 and CALJIC 9.21, which defined the elements of the crimes of assault with a firearm on a peace officer and exhibiting a firearm in the presence of a peace officer. Cal. Ct. App. Opinion, p. 7. "Thus, the jury was clearly and plainly told it had to find that defendant knew (or reasonably should have known) that Officer Vasquez was a peace officer engaged in the performance of his duties. It is true that the jury was not expressly told that there had to be a `union or joint operation' between defendant's knowledge and his conduct, but if anything, the instructions were more clear and less likely to confuse than had that language been used. Had the members of the jury held any reasonably doubts as [to] whether defendant knew that Officer Vasquez was a peace officer engaged in the performance of his duties, they would have known that the crimes had not been proved. CALJIC No. 9.20 and CALJIC No. 9.21 both state `In order to prove this crime, each of the following elements must be proved.'" Cal. Ct. App. Opinion, pp. 7-8.
A state trial court's refusal to give an instruction does not alone raise a ground cognizable in a federal habeas corpus proceedings. See Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). The error must so infect the trial that the defendant was deprived of the fair trial guaranteed by the Fourteenth Amendment. See id. Whether a constitutional violation has occurred will depend upon the evidence in the case and the overall instructions given to the jury. See Duckett v. Godinez, 67 F.3d 734, 745 (9th Cir. 1995), cert. denied, 517 U.S. 1158 (1996). A criminal defendant is entitled to adequate instructions on the defense theory of the case, as long as some evidence supports it. See Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 2000) (error to deny defendant's request for instruction on simple kidnaping where such instruction was supported by the evidence).
When considered as a whole, the instructions given adequately conveyed to the jury the principle that Kaiser had to have the necessary level of knowledge at the time he committed the criminal act. The jury was instructed that there must be a concurrence of an act with general criminal intent. See CT 203. The jury was further instructed with CALJIC 9.20 and CALJIC 9.21, which required that the defendant possess a certain level of knowledge at the time of the act. See CT 176, 204-205, 210-211.
For the assault on a peace officer charge, the jury was instructed that: "Every person who commits an assault [with a firearm] upon the person of a [peace officer] engaged in the performance of [his] duties and who knows or reasonably should know that the person is a [peace officer] and is engaged in the performance of [his] duties is guilty of a violation of Penal Code section 245(d)(1)." CT 204 (brackets in original). The jury was further instructed that five elements had to be proven to prove that crime, and one of the elements was "That person knew or reasonably should have known that the [peace officer] was engaged in the performance of [his] duties." CT 205. The instruction adequately conveyed to the jury that, to be guilty, the defendant had to assault at a time when he knew or reasonably should have known that the officer was engaged in the performance of his duties. This is so even though the instructions did not explicitly describe the need for concurrence in time of a particular level of knowledge and the bad act.
For the exhibiting a firearm charge, the jury was instructed: "Every person who, in the immediate presence of a peace officer engaged in the performance of [his] duties, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, and who knows, or reasonably should know, by the officer's uniformed appearance or other action of identification by the officer, that he is a peace officer engaged in the performance of his duties, is guilty of a violation of Penal Code section 417, subdivision (c)." CT 210 (brackets in original). The jury was further instructed that three elements must be proven to prove that crime, and one of the elements was "The person knew, or reasonably should have known, by the uniformed appearance of, or other actions of identification by, the peace officer, that the latter was a peace officer engaged in the performance of [his] duties." CT 211. The instruction adequately conveyed to the jury that, to be guilty, the defendant had to exhibit the weapon at a time when he knew or reasonably should have known that the officer was engaged in the performance of his duties.
In light of the overall instructions, the failure to give CALJIC 3.31.5 sua sponte did not violate Kaiser's right to due process. The absence of the instruction highlighting the need for a concurrence in time of a particular level of knowledge with the bad act was not necessary to afford due process in light of the other instructions given to the jury. And even if the instruction should have been given, the failure to give it did not have a substantial and injurious effect on the jury's verdict. The evidence was quite straightforward that Kaiser recognized that it was a peace officer he encountered that day. He told the investigating officer that he saw the police car and that it was a sheriff who had passed him on the street and circled back to stop him. The evidence also was clear that the peace officer was in full uniform and driving a car marked as a police car. And the evidence was that Deputy Vasquez jumped on Kaiser to subdue him only after Kaiser said he wouldn't allow a pat-down search, refused Vasquez's commands to stop and reached into his pocket as if to grab a weapon.
The state appellate court's rejection of the instructional error claim was not contrary to or an unreasonable application of clearly established federal law. Kaiser is not entitled to the writ on this claim.
B. Ineffective Assistance Of Counsel Claim
Kaiser asserts that he received ineffective assistance of counsel because counsel did not request jury instructions that "Kaiser's consumption of alcohol and his delusions could be considered in determining whether he had the knowledge that Vasquez was engaged in the performance of his duties." Second Amended Petition, p. 10.
The California Court of Appeal rejected this claim, reasoning that counsel was not ineffective for failing to seek instructions to which the defense was not entitled. Kaiser was not entitled to an instruction that alcohol consumption could be considered in determining knowledge because the evidence did not support such an instruction. Cal. Ct. App. Opinon, pp. 8-9. Under state law, an intoxication instruction is not required in every case in which a defendant has consumed any alcohol; rather, there must be evidence of an actual intoxicating effect of the alcohol to support the inference that the required mental state did not exist before such an instruction is appropriate. "Here there was not even any evidence that defendant showed `symptoms' of having consumed intoxicating substances. Rather, there was express testimony that he showed no such symptoms. Under this state of the evidence, and the preceding authorities, defendant would not have been entitled to an instruction on intoxication even had his counsel requested one. Counsel cannot be held to have provided ineffective assistance for failing to ask for that to which defendant was not entitled." Cal. Ct. App. Opinion, p. 9.
The state appellate court's analysis was similar for the claim that counsel was ineffective for not requesting an instruction on the effect of delusions on the knowledge requirement. The court noted that there was little if any direct evidence that defendant's statements were even false, let alone delusional. "He could have simply been lying, in a misguided attempt to impress, or, in the case of claiming to own a home in the vicinity, to establish an excuse for being where he was." Cal. Ct. App. Opinion, p. 9. The court also determined that there was no evidence that defendant's alleged delusions prevented him from understanding that Vasquez was a peace officer engaged in the performance of his duties. Cal. Ct. App. Opinion, pp. 9-10.
The Sixth Amendment to the U.S. Constitution guarantees not only assistance, but effective assistance, of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). The purpose of the right is to ensure a fair trial, and the benchmark for judging any claim of ineffectiveness is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." See id. To prevail on an ineffective assistance of counsel claim, a habeas petitioner must show that (1) counsel's performance was "deficient," i.e., his "representation fell below an objective standard of reasonableness" under prevailing professional norms, id. at 687-88, and (2) prejudice flowed from counsel's performance, i.e., that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different, see id. at 691-94. The relevant inquiry underStrickland is not what defense counsel could have done, but rather whether his choices were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998), cert. denied, 525 U.S. 1159 (1999).
The California Court of Appeal's rejection of Kaiser's ineffectiveness claims was not contrary to or an unreasonable application of clearly established federal law. The California Court of Appeal determined that the omitted instructions could not have been obtained under state law because there was not sufficient evidence to support them. And due process did not require an instruction for which there was no evidentiary support. See Hopper v. Evans, 456 U.S. 605, 611 (1982);Miller v. Stagner 757 F.2d 988, 993 (9th Cir.), amended, 768 F.2d 1090 (9th Cir. 1985), cert. denied, 475 U.S. 1048, 1049 (1986). Under the evidence presented, Kaiser was not entitled to an instruction on intoxication. Kaiser has not pointed to any evidence that he was acting in an intoxicated manner. The only evidence at trial was to the contrary, i.e., that he did not appear to be intoxicated. Although he told the investigating officer that he had consumed 2-3 16-oz. beers 1-1/2 to 3 hours before the encounter, that was not evidence warranting an intoxication instruction, especially in light of the undisputed affirmative testimony by the investigating officer that Kaiser did not appear at all intoxicated. See RT 219-220. In light of the absence of evidence to support the intoxication instruction, counsel's failure to request the instruction did not amount to deficient performance. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996), cert. denied, 519 U.S. 1142 (1997) (failure to take futile action can never be deficient performance).
Counsel also did not engage in deficient performance by failing to request an instruction on the effect of delusions on the knowledge requirement. There was not enough evidence of delusional thought to support such an instruction. The investigating officer testified that Kaiser said he knew it was a peace officer who was stopped and talked to him; Kaiser told the investigating officer he had seen a sheriff as he was on the street, that the sheriff drove past him, and then pulled up behind him. Kaiser also told the investigating officer that he recognized the car as a police car. See RT 223. And Deputy Vasquez testified that he was dressed in a police uniform and driving a vehicle marked as a police vehicle. See RT 80-81, 118, 140-141. Although there was evidence that Kaiser may have told some tall tales, he has not shown that any evidence was presented that the statements were delusional and the statements were not delusional on their face. Apparently, no evidence was presented at trial as to whether Kaiser's grandfather lived at the address on Woodwardia, whether Kaiser had inherited the house, whether Kaiser had an ownership interest in several corporations, or whether he had a large trust account. There also apparently was no evidence as to whether these statements were delusions (as opposed to lies or the truth). The trial court even sustained an objection to defense counsel's efforts to argue that Kaiser's thoughts were delusional because there was no evidence to support the claim of delusional thinking.See RT 331-332. Moreover, as the state appellate court noted, there was absolutely no evidence connecting the alleged delusional comments to the knowledge requirement: even assuming the statements were delusions, they were delusions about Kaiser's wealth and were not shown to have any effect on his ability to perceive that it was a peace officer with whom he was dealing. In light of the absence of evidence that Kaiser was delusional, counsel did not engage in deficient performance by failing to request an instruction regarding delusions.
Moreover, Kaiser has not established that counsel's failure to seek the instructions resulted in any prejudice to him. Counsel would not have obtained the instruction had he asked for them. And even if, somehow, the instructions were actually given to the jury, there is no reasonable probability that the result of the proceedings would have been different because the jury would not have found proof lacking on the required state of knowledge on the evidence that was presented to it.
The California Court of Appeal's rejection of the ineffectiveness claim was not contrary to or an unreasonable application of clearly established federal law. See Early v. Packer, 123 S.Ct. 362, 365 (2002) (per curiam) ("Avoiding these pitfalls does not require citation of our cases — indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.") Kaiser is not entitled to the writ on this claim.
CONCLUSION
The petition for writ of habeas corpus is denied on the merits. The clerk shall close the file.
IT IS SO ORDERED.