Opinion
No. C 00-3104 SI (pr)
June 18, 2001
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
This matter is now before the court for consideration on the merits of John Bruce Clauer's pro se petition for writ of habeas corpus concerning his 1997 conviction in the Santa Cruz County Superior Court. For the reasons discussed below, the petition will be denied.
BACKGROUND
A. The Crimes
On the night of June 11, 1997, as 15-year-old Betty C. was leaving the Surf Bowl in Santa Cruz, Clauer approached her in his truck and asked her if she wanted to smoke pot with him. Cal. Ct. App. Opinion, p. 1. Betty understood that Clauer wanted her to smoke marijuana with him. She declined, and Clauer drove away. Betty continued walking, but was frightened when she saw Clauer's truck about 15 minutes later and thought that Clauer was following her. Betty tried to call a friend, but nobody answered. Clauer again approached Betty and asked whether she wanted to smoke pot with him. She asked him to hold-on and called the Santa Cruz police. Id. at p. 2. Betty was still on the phone with the police dispatcher and Clauer was standing by his truck when police arrived at the scene two minutes later and arrested defendant. Clauer appeared intoxicated, and was belligerent and very abrasive when the police arrived. Officer Parker informed Clauer that he was investigating Betty's call, and Clauer stated, "I don't know what that bitch's problem is." Id. Officer Parker looked in Clauer's truck and saw a marijuana pipe with marijuana in it. The police searched the vehicle, and discovered four one-ounce packages of marijuana. Clauer also had $593 in cash. When the officers arrested Clauer, he became verbally abusive and was belligerent. Clauer continued this behavior on the way to the police station, and for about an hour at the jail. Id.
Clauer testified on his own behalf at trial. Although Clauer was precluded from offering evidence of a medical marijuana defense, he did testify about his marijuana use. He testified that he was a Vietnam veteran, had been diagnosed in 1991 with post-traumatic stress disorder (PTSD), and had been smoking marijuana since he had been in Vietnam. He also testified that he became homeless in May 1997 and was living in his truck on the night of his arrest. Clauer further testified that earlier on the night of his arrest, he drove to Watsonville to buy an ounce of marijuana, bought the ounce for $50, and then bought three additional ounces for $100 more. He denied offering marijuana to Betty. In response to defense counsel's questions, Clauer testified that he became enraged when the police arrived and accused him of hassling Betty, searched his truck, and called him a child molester. RT 811-813.
B. Summary of Proceedings
Clauer was charged with (1) transporting marijuana (Cal. Health Safety Code § 11360(a)); (2) possession of marijuana for sale (id., § 11359); (3) attempting to deter a police officer from performance of his duty by means of force or violence (Cal. Penal Code § 69); and (4) furnishing or offering to furnish marijuana to a minor over the age of fourteen (Cal. Health Safety Code § 11361(b)).
At a jury trial held in the Santa Cruz County Superior Court, Clauer was convicted of transporting marijuana (count 1) and offering marijuana to a minor (count 4). The jury acquitted him of possession for sale (count 2), but did find him guilty of the lesser included offense of simple possession of marijuana (Cal. Health Safety Code, § 11357(c)). The jury found true allegations that Clauer had suffered a prior prison term and prior serious felony conviction. Clauer was sentenced to a term of 11 years in state prison. He appealed. His conviction was affirmed by the California Court of Appeal and his petition for review was denied by the California Supreme Court.
Clauer then filed this action, seeking a federal writ of habeas corpus. The court reviewed the petition and found that Clauer had adequately pled two claims: (1) his right to due process was violated when the trial court refused to allow him to present a medical marijuana defense, and (2) his right to due process and a fair trial was denied when the trial court denied his motion for a mistrial based on inflammatory and inadmissible evidence. Respondent filed an answer in response to the court's Order to Show Cause. Clauer did not file a traverse. The petition is now ready for consideration on the merits.
DISCUSSION
A. Standard of Review
This court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). 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); see Williams (Terry) v. Taylor, 529 U.S. 362 (2000).
B. 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 Clauer has exhausted state court remedies as to his claims.
C. Claim
1. Medical Marijuana Defense
Clauer claims that his right to due process was violated when the trial court refused to allow' him to present a medical marijuana defense. Clauer wanted to introduce evidence that he was using marijuana to treat his PTSD. The trial court granted the prosecutor's motion in limine to preclude the medical marijuana defense because Clauer could not show that he had a doctor's approval for the use as required by the law establishing the defense. As a result of that ruling, Clauer was not able to present evidence that a doctor had recommended the marijuana for therapeutic purposes, although Clauer was still able to testify that he consumed marijuana and that he had PTSD.
a. Proposition 215's Medical Marijuana Defense
In order to analyze Clauer's claim, it is necessary to understand the nature of the medical marijuana defense in California. In November, 1996, California voters enacted Proposition 215, the Compassionate Use Act, to provide for a valid medical marijuana defense to certain state marijuana prosecutions. In relevant part, the statute provides as follows:
The United States Supreme Court recently held that "medical necessity is not a defense to manufacturing and distributing marijuana." United States v. Oakland Cannabis Buyers' Cooperative and Jeffrey Jones, 121 S.Ct. 1711, 1719. The Court's decision, however, was based on the federal Controlled Substances Act, 21 U.S.C. § 801 et seq., and does not preclude a medical marijuana defense to a state law violation.
(b)(1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows:
(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.
(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.
* * * *
(b)(2) Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.
* * * *
(d) Section 11357 [of the Health Safety Code], relating to the possession of marijuana, and Section 11358 [of the Health Safety Code], relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.
Cal. Health Safety Code § 11362.5
While Proposition 215 provides a medical marijuana defense to the charges of possession (§ 11357) and cultivation (§ 11358) of marijuana, and in limited situations to the charge of transportation (§ 11360) of marijuana, the statute is not to be used as a blanket exemption from the state's marijuana laws. See People v. Trippet, 56 Cal.App.4th 1532 (Cal.Ct.App. 1997); Cal. Health Safety Code § 11362.5. "[B]oth the statute's drafters and the proponents took pains to emphasize that, except as specifically provided in the proposed statute, neither relaxation much less evisceration of the state's marijuana laws was envisioned." Id. at 1545-1546.
In Trippet, a jury found the defendant guilty of transportation (§ 11360) and possession (§ 11357) of marijuana after marijuana was found in her car when she was stopped for a traffic violation. Trippet, 56 Cal.App.4th at 1536-1537. While her appeal was pending, Proposition 215 was enacted and the California Court of Appeal requested further briefing on the relevance of Proposition 215 to defendant's case. Id. at 1537. The court rejected Trippet's "rather candid invitation to interpret the statute as a sort of "open sesame' regarding the possession, transportation and sale of marijuana" (id. at 1546 (footnote omitted)) and limited the defense. Section 11362.5 "specifically identifies only two penal provisions (out of five), . . . section 11357, dealing with possession, and section 11358 dealing with cultivation, etc. . . . We may not infer exceptions to our criminal laws when legislation spells out the chosen exceptions with such precision and specificity." Trippet, 56 Cal.App.4th at 1550; sec also People ex rel Lungren v. Peron, 59 Cal.App.4th 1383, 1389 (Cal.Ct.App. 1997) (holding that the sale and possession for sale of marijuana continue to be proscribed despite passage of Proposition 215).
However, the court recognized that "practical realities dictate that there be some leeway in applying section 11360 (transportation of marijuana) in cases where a Proposition 215 defense is asserted in companion charges. The results might otherwise be absurd . . . The test should be whether the quantity transported and the method, timing and distance of the transportation are reasonably related to the patient's current medical needs. If so, . . . there should and can be an implied defense to a section 11360 charge; otherwise there is not." Id. at 1550-1151.
In order to establish a medical marijuana defense, a physician must recommend or approve the use of marijuana (§ 11362.5(d) provides that §§ 11357 and 11358 shall not apply to a patient who possesses or cultivates marijuana "upon the written or oral recommendation or approval of a physician"). Although the statute does not specifically require "prior" approval, Trippet suggested that in most circumstances, the approval must predate or be contemporaneous with the possession. Trippet, 56 Cal.App.4th at 1548 n. 13: "Although prior approval will ordinarily be the case, having in mind the breadth of the term we can readily conceive of exigent circumstances in which the physician's approval might well be contemporaneous with the possession, or even subsequent to the possession although prior to actual usage." Id. In People v. Rigo, 69 Cal.App.4th 409, the court concluded that this footnote in Trippet did not validate physician approval subsequent to arrest, where "appellant did not seek medical approval until the consequences of the justice system gave him the impetus to do so and did not do so in a reasonable amount of time for reasons independent of his arrest." Rigo, 69 Cal.App.4th at 413. td. at 412-413. In Rigo, the court found no exigent circumstances to validate approval of medicinal marijuana use when the defendant failed to obtain medical approval until three and one-half months after he was arrested. Id. at 414.
Whether some "exigent circumstances" would be sufficient to warrant post-arrest, post- use approval, and if so, exactly what those circumstances might be, does not appear yet to have been squarely decided by the California courts.
b. State Court Analysis of Clauer's Medical Marijuana Defense Claim
The trial court granted the prosecution's in limine motion to preclude Clauer from presenting a medical marijuana defense under section 11362.5. The California Court of Appeal found no error in this ruling.
The Court of Appeal recognized that under the specific terms of the statute, a medical marijuana defense is only applicable to a charge of possession (§ 11357) or cultivation (§ 11358) of marijuana. Under Trippet, if the other requirements of § 11362.5 are met, the defense may also be valid for a charge of transportation of marijuana. Cal. Ct. App. Opinion, p. 5. It seems fairly clear that Clauer did not have a medical marijuana defense to his charge of offering marijuana to a minor. (§ 11361(b)).
This case is complicated by the fact that while Clauer was not charged with possession of marijuana (§ 11357), for which a medical marijuana defense may be permitted, he was convicted of possession as a lesser included offense to the charge of possession for sale of marijuana (§ 11359), of which he was acquitted. If Clauer had a valid defense for the possession charge, then it was for the "trier of fact to determine whether Clauer was transporting the marijuana for his own medical use." Cal. Ct. App. Opinion, p. 5. "In an appropriate case, the jury should be instructed that if it finds the defendant did not possess the requisite intent to sell marijuana, the jury should consider whether he possessed the drug for personal medical purposes." Id. Although the trial court failed to give such an instruction, the Court of Appeal ultimately determined that this was not improper because Clauer had failed to meet the threshold requirements for a medical marijuana defense.
In order for Clauer to have a valid medical marijuana defense, he must have had adequate physician approval. Clauer contends he made a sufficient offer of proof that he had adequate physician approval from Dr. Tod Mikuriya and from an unnamed doctor from the Veterans Administration (VA) for the medicinal use of marijuana. The Court of Appeal determined that he did not. Id. Without such approval, the requirements of section 11362.5 were not met and the defense was not applicable. Id.
Dr. Mikuriya's alleged approval was too late to provide a defense. More than four months after Clauer was arrested, a court-authorized report by psychiatrist Dr. Mikuriya concluded that "cannabis use for [defendant] is of medical necessity." Id. The Court of Appeal noted that Rigo had found that where the defendant failed to seek medical approval until three and one half months after he was arrested, there were no "exigent circumstances" to validate the approval or recommendation. The Court of Appeal then found that in the present case, the report was dated more than four months after defendant's arrest, and thus the trial court was correct in ruling that Dr. Mikuriya's report could not be used as the basis of the medical marijuana defense. Id. at 6.
Although the record before this court does not include Dr. Mikuriya's report, Clauer does not contest the California Court of Appeal's recitation of its contents.
Clauer further claims that he made an offer of proof that a VA doctor recommended he smoke marijuana prior to his arrest. On several occasions during the trial, including while he was making a Marsden motion, Clauer stated that a VA doctor recommended he smoke marijuana. Id. at p. 6. Clauer argued that the doctor was unable to officially prescribe the drug because it was against federal policy. Id. at pp. 6-7. The Court of Appeal concluded that Clauer did not make a sufficient offer of proof:
People v. Marsden, 2 Cal.3d 118 (Cal. 1970)
"An offer of proof must consist of material that is admissible, it must be specific in indicating the purpose of the testimony, the name of the witness and the content of the answer to be elicited." In this case, defendant's statements, standing alone, constitute inadmissible hearsay. Defendant never indicated that his random remarks about the VA doctor were to be used to present a medical marijuana defense. In addition, the statements are unclear as to the person making the recommendation and the time it was made. Thus, the court properly rejected this vague offer which did not indicate with precision the purpose of the offer, the evidence to be presented and the witness who was to present it.
Id. at p. 7.
c. Clauer's Federal Constitutional Claim
The U.S. Constitution gives a criminal defendant the right to present a defense. "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment . . . or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, . . . the Constitution guarantees criminal defendants `a meaningful opportunity to present a complete defense.'" Crane v. Kentucky, 476 U.S. 683, 690 (1986) (citations omitted). But the right to present a defense is not absolute. "The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Taylor v. Illinois, 484 U.S. 400, 410 (1998) (refusing to overturn a conviction where trial court excluded witness' testimony because defense counsel committed a blatant and willful violation of the discovery rules by not disclosing the witness' existence and the judge doubted the witness' veracity).
The California Court of Appeal recognized that while there are circumstances under which a medical marijuana defense would be valid, it was not applicable to this situation because Clauer's offer of proof concerning physician approval was inadequate. Dr. Mikuriya's report, coming four months post-arrest and with no separate showing of exigent circumstances, was untimely under Trippet and Rigo; and defendant's "random remarks" about a VA doctor were neither specific nor sufficiently tied to the claimed defense to amount to a proper offer of proof. Since Clauer could not establish a necessary element of the defense, his evidence would have been irrelevant. Clauer did not have the unfettered right to offer testimony" that was irrelevant or "otherwise inadmissible under standard rules of evidence" Taylor, 484 U.S. at 410. The state appellate court's decision was not contrary to or an unreasonable application of clearly established Federal law on the right to due process or the constitutional right to present a defense. Clauer is not entitled to the writ on this claim.
2. Denial of Request for a Mistrial Based on Inflammatory Statements by a Witness
a. Background
Clauer claims that his right to due process and a fair trial was violated by the trial court's denial of his motion for a mistrial on the grounds that a police officer's testimony was unacceptably inflammatory and prejudicial.
The facts giving rise to this claim were recited in the California Court of Appeal decision.
Officer Bauer testified that at the police station while defendant was being booked he responded to defendant's diatribe about sexual acts he would like to perform with Bauer's wife or mother by saying that defendant was "one to be talking" because "I believe[d] he was a child molester." When asked why he made that statement, Bauer responded that it was his opinion that defendant would have hurt the victim very badly or even killed her if the police had not arrived when they did.
Defense counsel immediately objected on the grounds that Bauer's statement was speculation and inflammatory and that it was "outrageous" for Bauer to have said that. The court sustained the objection and admonished the jury to disregard the statement. Thereafter, on cross-examination Bauer acknowledged that he had spoken in anger, and that he knew nothing about defendant.
After the court excused the jury, defense counsel moved for a mistrial, arguing that it was not possible for the jury to disregard such blatantly improper and inflammatory comments. She maintained the officer's remarks were "deliberately planting information in this jury's mind about what could have happened."
Although the Court of Appeal determined that the officer testified that he called Clauer a child molester at the police station, Clauer claims that he was called a child molester shortly after the police arrived at the scene, which instigated his belligerent reaction there, as well as at the police station. RT 812, 848.
The trial court denied Clauer's motion for a mistrial based on the witness' statement. The Court of Appeal found no abuse of discretion in the trial court's denial of the motion.
b. Clauer's Due Process Claim
The admission of evidence is not subject to federal habeas review unless a specific constitutional guarantee is violated or the error is of such magnitude that the result is a denial of the fundamentally Fair trial guaranteed by due process. See Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999); Colley v. Sumner, 784 F.2d 984, 990 (9th Cir.), cert. denied, 479 U.S. 839 (1986). The due process inquiry in federal habeas review is whether the admission of evidence was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. See Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Colley, 784 F.2d at 990. Furthermore, juries are presumed to follow a court's limiting instructions with respect to the purposes for which evidence is admitted. See Aguilar v. Alexander, 125 F.3d 815, 820 (9th Cir. 1997). Extreme situations may arise, however, that defeat this presumption, when the instructions given will not be sufficient to overcome the prejudice from improperly admitted evidence. See id.
Even when the improper material heard by the jury is not actually admitted as evidence, a similar approach is used. That is, the inquiry is whether the improper statements so infected the trial with unfairness as to make the resulting conviction a denial of due process. Cf. Greer v. Miller, 483 U.S. 756, 765-66 (1987) (reversal not required where prosecutor's very improper question concerning defendant's post-arrest silence was followed by a prompt objection and curative instructions from the court to the jury); see e.g., Darden v. Wainwright, 477 U.S. 168, 179-83 (1986) (no reversal required where prosecutor's comments during closing argument were improper but to some extent were an invited response to defense's argument and trial court instructed jury that the arguments were not evidence). And the existence of a curative instruction to the jury is recognized as having a neutralizing effect on the improper material, although some material might be so "devastating' that there is an overwhelming probability" that the jury will be unable to follow the court's instructions. See Greer, 483 U.S. at 766 n. 8.
The appropriate standard on federal habeas corpus review of a state conviction for determining whether the trial error warrants relief is whether the error had a substantial and injurious effect or influence in determining the jury's verdict. See Brecht v. Abrahamson, 507 U.S. 619 (1993). Under this standard, habeas petitioners may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in "`actual prejudice.'" See id. (citing United States v. Lane, 474 U.S. 438, 449 (1986)); Johnson v. Sublett, 63 F.3d at 930 (finding prosecutorial vouching "could not have had substantial impact on the verdict necessary to establish reversible constitutional error" under Brecht).
Under the circumstances present here, the testimony of the insult hurled at Clauer did not so infect the trial with unfairness as to make the resulting conviction a denial of due process. The witness testimony that he told Clauer he thought Clauer was a child molester was followed by a prompt objection by defense counsel and an admonishment to the jury by the judge. After the objection and admonishment, defense counsel returned to the topic and cross-examined the witness to show that the statement was utterly baseless: the witness acknowledged under cross-examination that he spoke in anger and "knew nothing about" Clauer. RT 610. Finally, as the trial court acknowledged, evidence that any officer called Clauer a child molester in the field did have a purpose: it supported Clauer's defense to the charge that he committed the crime of attempting to deter a police officer from the performance of his duties. The evidence of the insult tended to show why Clauer reacted with such hostility to the officer. RT 601. Clauer testified that he knew from his experience in prison that anyone who is deemed a child molester is a "dead man" in prison. RT 816.
Like the California Court of Appeal, this court believes that the trial court's "timely and specific admonition, which the jury is presumed to have followed, cured any prejudice resulting from the witness's improper statement." Cal. Ct. App. Opinion, p. 8 (citation omitted). The California Court of Appeal's rejection of Clauer's constitutional claim was not contrary to or an unreasonable application of clearly established federal law. Clauer is not entitled to the writ of habeas corpus on this claim.
CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus is DENIED. The clerk shall close the file.
JUDGMENT
The petition for writ of habeas corpus is denied on the merits.
IT IS SO ORDERED AND ADJUDGED.