Opinion
No. C 99-4206 MMC (PR)
June 6, 2001
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
John Otis Cleveland ("petitioner"), a prisoner of the State of California, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was initially assigned to a magistrate judge (James, J.). After petitioner consented to the magistrate judges jurisdiction, the magistrate judge found four claims, liberally construed, to be cognizable, and ordered respondent to show cause within sixty days why the petition should not be granted. On January 10, 2000, respondent requested reassignment to a United States district judge and, on February 25, 2000, the action was reassigned to the undersigned. Respondent filed an answer denying the petition, along with a memorandum and accompanying exhibits. Petitioner filed a traverse.
BACKGROUND
Petitioner was convicted by a jury in Sonoma County Superior Court of two counts of forcible oral copulation, one count of false imprisonment by violence or menace, possession of methamphetamine, possession of an assault weapon, possession of a firearm by a felon, and possession of cocaine. Allegations of a prior violent felony and a prior serious felony were found true by the trial court. Petitioner was sentenced to twenty-nine years in state prison on May 15, 1997. The California Court of Appeal affirmed petitioners conviction, but remanded for reconsideration of part of the sentencing. In September, 1998, the Supreme Court of California denied his petition for review, which contained the same issues raised here.
FACTUAL BACKGROUND
The California Court of Appeal summarized the factual background of this case as follows:
The victim of most of the offenses, Timothe Underwood, moved into appellant's house at 1100 Gossage Road in Petaluma in early February of 1996. Her arrangement with appellant was that she would "work around" the house, cleaning, cooking and caring for the animals, until she was able to pay rent. Appellant also suggested that Underwood try to get a job "down at Sonoma Joe's . . . dealing blackjack or 21." Underwood testified that she found living at appellant's house to be "very uncomfortable." Appellant made "sexual advances," and was quite "demanding." He kept pornographic movies, "sex magazines," and guns in the house. Janeth Winters also began living at appellant's house within a week after Underwood. Winters and Underwood were already slightly acquainted with each other through a mutual friend named Patrick, and had used drugs together in the past, although Underwood "didn't like" Winters. Underwood and Winters shared a bedroom in appellant's house, but "didn't get along very well," so Underwood often stayed away. Underwood wanted to begin earning money so she could leave appellant's house.
Underwood began unpaid "in formal training" at Sonoma Joe's, and by March 11, 1996, was told that she was ready to work as a dealer and "would start making tips in two days." About 1:30 am., she called appellant, who sent Winters in his car to bring Underwood home from work.
When Underwood arrived home, she proceeded to appellant's upstairs bedroom and told him, "I make tips in two days." Appellant seemed angry, and responded. "We'll see about that." Underwood went to her room to change from her work clothes into a sweatshirt and shorts, but was summoned back to appellant's bedroom. Appellant and Winters were both present. They glared at Underwood, and accused her of "unacceptable" behavior. Appellant said Winters "was going to be the mistress of the house," and Underwood "had to listen to everything she said." Underwood "wanted to go to bed," so she did not argue.
Appellant then sent Underwood out to purchase some methamphetamine. After Underwood returned, appellant asked her if she wanted "a line" of methamphetamine. Underwood declined, but after appellant called her "an ungrateful bitch," she agreed and "did a line" with him and Winters in his bedroom Appellant repeated that Winters was "in charge," and Underwood had to "listen to her." When Underwood proclaimed that she was "not going to listen," Winters locked the door to the bedroom at appellant's direction.
Underwood was frightened and began crying. Appellant told Underwood that they "were going to tie" her to the bed. About a week before, Underwood had agreed to be handcuffed to the bed "fully clothed," with the stipulation that she would be released immediately up on request, but on this occasion she "didn't want to be in there," and "said no." Appellant and Winters each grabbed one of her arms as she struggled and protested. Although Underwood continued to kick at them, they eventually managed to handcuff her wrists to the headboard, and tie her feet to bottom [sic] of the bed.
In response to appellant's order, Winters cut off Underwood's clothes with scissors. Underwood begged appellant to let her go, but he told her, "Shut up. You're ruining my fantasy." Underwood was "real mad" as well as frightened, and told them she "wouldn't go along with this." She also began to insult Winters. Appellant then directed Winters to gag and blindfold Underwood, which she did, although "she kind of seemed reluctant." Whenever Underwood struggled, Winters hit her in the legs with a riding crop.
Once, Underwood managed to loosen her left foot and kick Winters, which prompted Winters to strike her hard near the left knee with a wooden stick. After Underwood's left foot was again secured to the bed, appellant told Winters to insert a dildo in Underwood's anus. Winters force fully penetrated Underwood "a little" with the dildo, but "gave up after a while." Appellant and Winters continued to smoke crank and discuss "what they were going to do" to Underwood. Appellant suggested that Winters force Underwood to "perform oral sex on her," but Winters expressed fear that Underwood would "bite" her. Winters told appellant, "Well, if you're not afraid, why don't you make her do that to you, make her suck your dick." Underwood continued to cry and plead, "Please don't do that."
Appellant and Winters released Underwood from the bed, but tied her legs together and handcuffed her wrists behind her back. A "choker collar" and leash were also placed on Underwood. After the gag was taken off, appellant used the leash to pull Underwood to him and ordered her to orally copulate him. Any time Underwood stopped, the collar was pulled. Underwood was then forced to "perform oral sex" on Winters.
At around 7:30 am., Underwood was allowed to make a telephone call and leave, ostensibly to visit a friend in jail. After failing to reach two other friends. Underwood called Patrick and pleaded, "Come and get me." He arrived at the house at 8:15 am. As they drove away in the car, Underwood began to cry and finally told Patrick what happened. Patrick convinced her to report the incident to the police.
Pursuant to an agreement with the prosecution, Winters entered a guilty plea to one count of assault with a deadly weapon, and testified against appellant at trial. According to Winters, when Underwood returned to the house after purchasing the methamphetamine at appellant's request he explained that he wanted the two women to engage in a "control domination" sex game that was his "sexual fantasy." When Underwood protested, he ordered her to get up on the bed," and began shouting obscenities at her. As appellant handcuffed Underwood's hands to the headboard of the bed, Winters tied her feet to the bed posts. Appellant also directed Winters to gag and blindfold Underwood. When Underwood began crying hysterically and "having trouble breathing. Winters replaced the gag and blindfold with a "choker collar chain" attached to a long leash.
Appellant demanded that Underwood "orally copulate him." Underwood resisted but when appellant began to choke her with the dog collar, she did as she was told. The two women then orally copulated each other as ordered by appellant. Winters portrayed herself as an unwilling partner in the acts, compelled to participate "out of fear" of appellant. Winters admitted that she struck Underwood with a "back scratcher" in the head, which was the basis for her plea of guilty to assault.
A search warrant was executed at appellant's residence the next day. Among other items, officers seized: handcuffs and neckties attached to hinges bolted on the headboard of the bed in appellant's bedroom; cotton rope, speaker wire and part of a necktie attached to the bedposts; leg irons; a broken handcuff; leather whips; a leash and choke chains; numerous firearms; and methamphetamine found in various containers, Cocaine, methamphetamine and drug paraphernalia had also previously been discovered in a brown leather pouch found near appellant's truck after an accident that occurred on November 10, 1994.
Appellant testified in his defense that on the evening of March 11, 1996, Underwood left the house at about 11:00 p.m. in his Taurus station wagon with $50 of his money. He gave Underwood the money to buy "into the game" as a dealer at Sonoma Joe's Casino. She told appellant that she "got the job at Sonoma Joe's," and was working the "third shift," so she would not return until morning. After appellant had a conversation with Tom Muir, the manager of Sonoma Joe's, and learned that Underwood had not gone to work as she stated, he was angry and left a message for her to come home. She arrived home at 2:30 am., whereupon appellant told her to "pack up her things and get out." In an attempt to "disarm" and "pacify" appellant, Underwood said, "I want to get tied up and Janeth can do it." Winters, who had been threatened and "hurt" by Underwood in the past, was agreeable. Underwood had been restrained by appellant at her request once before, so she knew to "say the exit word" if "she wanted to stop."
Appellant and Winters put handcuffs and leg restraints on Underwood, along with a blindfold. According to appellant, however, Underwood's clothes were not removed. While appellant watched, Winters got a vibrator from Underwood's room and said, "I m going to F you in the asshole," Winters poked at Underwood with the vibrator, but never penetrated her, while Underwood kicked, moved around and cursed. When Underwood "said the exit word" after no more than 30 minutes, appellant promptly removed the restraints and handcuffs.
A "domination collar" was then p laced on Underwood by Winters. Underwood orally copulated Winters "or about two hours" voluntarily and with great "intensity." Appellant then sat on the bed to talk to them. Underwood apparently thought he wanted her to perform an act of oral copulation on him. She put her head on his lap, but he was uninterested and did not respond. He moved over to the chair. Underwood and Winters then "went back at it" until dawn. Appellant testified that he watched but did not direct the proceedings between Winters and Underwood.
The defense also presented the testimony of Julia Elliott, the general manager of Sonoma Joe's Casino, who, upon examination of records determined that Underwood was never formally trained or employed as a dealer, as she had testified. Thomas Muir, a friend of who was employed at Sonoma Joe's as a blackjack dealer and shift supervisor, testified that he once observed Underwood in group of dealer trainees, but that "She was never employed there."
The California Court of Appeal refers to petitioner as appellant.
See People v. Cleveland, slip op. A078711 at 2-6 (Cal Ct. App. July 13, 1998) (Respt. Exh. 3) (hereinafter "Slip Op.").
DISCUSSION
A. Standard of Review
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a); Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1 resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d; Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). When analyzing a claim that there has been an unreasonable application of federal law, a district court should first consider de novo whether the state court's decision was erroneous and then determine whether the error constituted an unreasonable application of controlling law under AEDPA. See Van Tran v. Lindsey, 212 F.3d 1143, 1154-55 (9th Cir.), cert. denied 121 S.Ct. 340 (2000). Habeas relief is warranted only if the constitutional error at issue had a substantial and injurious effect or influence in determining the jury's verdict. Brecht Abrahamson, 507 U.S. 619, 638 (1993); Bains v. Cambra, 204 F.3d 964, 977-78 (9th Cir.), cert. denied, 121 S.Ct. 627 (2000).
In determining whether the state court's decision is contrary to, or involved an unreasonable application of, clearly established federal law, a federal court looks to the decision of the highest state court to address the merits. LaJoie v. Thompson, 201 F.3d 1166, 1172 n. 9 (9th Cir. 2000). In this case. the highest court to address the merits of petitioner's claims is the California Court of Appeal. See Respt. Exhs. 3 5.
B. Legal Claims
Petitioner's pending claims for federal habeas corpus relief are: (1) the trial court improperly denied his requests to substitute counsel;(2) in issuing jury instructions, the trial court misled the jury into believing that aiding and abetting a sex offense is a general intent crime; (3) the trial court's instruction on accomplice testimony effectively directed the jury to find petitioner guilty; and (4) the trial court failed to instruct the jury that its verdict had to be unanimous.
1. Substitution of Counsel
Petitioner complains that the trial court's failure to conduct a hearing and grant his request for appointment of new counsel violated his constitutional rights to due process and to counsel.
Respondent argues that petitioner procedurally defaulted this claim because he failed to follow California's procedural rules mandating contemporaneous objections to trial court rulings. A federal court will not review questions of federal law decided by a state court if the decision also rests on a state law ground that is independent of the federal question and adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). In cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. See id. at 750. Here the California Court of Appeal denied this claim both on procedural grounds and also on its merits. Where the state court decision rests on clearly alternate grounds, one invoking a state procedural bar and the other addressing the merits, the state procedural ground is considered sufficiently independent to preclude habeas review. See Bargas v. Burns, 179 F.3d 1207, 1214 (9th Cir. 1999).
The procedural portion of the California Court of Appeal's opinion reads as follows:
As a threshold matter, we observe that appellant neglected to press for a hearing or ruling on his complaints with his appointed attorney, and counsel thereafter continued to represent him for the remainder of the trial. Neither appellant nor his attorney indicated on the record following discussions with the trial court that appellant still wished to dismiss counsel. Appellant's dissatisfaction with the representation afforded him may have been transitory. Therefore, he has run afoul of a fundamental rule of appellate review that failure to secure a ruling and thus grant the trial court an opportunity to correct error constitutes waiver of an issue on appeal. (People v. Ramos (1997) 15 Cal.4th 1133, 1171; People v. Morris (1991) 53 Cal.3d 152, 189-90.)
Slip. Op. at 9. The rule cited here by the Court of Appeal that a defendant secure a ruling from the trial court in order to preserve an issue on appeal is a part of California's contemporaneous objection rule, codified by California Evidence Code § 353. See People v. Ramos, 15 Cal.4th 1133, 1171 (1997) (holding that in order to comply with § 353 and properly preserve an issue for appeal, "the proponent [of the objection] must secure an express ruling from the court"); People v. Morris, 53 Cal.3d 152, 189-90 (1991) (same), overruled on other grounds by People v. Stansbury, 9 Cal.4th 824 (1995). The contemporaneous objection rules in § 353 are sufficiently independent and adequate procedural rules to support the denial of a federal petition on the grounds of procedural default. See Vansickel v. White, 166 F.3d 953, 957-58 (9th Cir. 1999) (affirming denial of a federal petition on grounds of procedural default based on California contemporaneous objection rules). Petitioner makes no argument, nor is any apparent, that cause and prejudice or a miscarriage of justice excuses the procedural default in this case. Accordingly, petitioner's claim of constitutional error in the trial court's failure to appoint substitute counsel is barred by the doctrine of procedural default.
2. Jury Instructions
a. Aiding and Abetting Instructions
Petitioner claims that errors in the aiding and abetting instructions so infected his trial that it became fundamentally unfair in violation of his right to due process. To obtain federal collateral relief for errors in the jury charge, the petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. See Estelle v. McGuire, 502 U.S. 62, 72 (1991); Cupp v. Naughten, 414 U.S. 141, 147 (1973). The instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. See Estelle, 502 U.S. at 72. In other words, the court must evaluate jury instructions in the context of the overall charge to the jury as a component of the entire trial process. See United States v. Frady, 456 U.S. 152, 169 (1982) (citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977)); Prantil v. California, 843 F.2d 314, 317 (9th Cir.), cert. denied, 488 U.S. 861 (1988).
In this case the prosecutor advanced the theory that petitioner aided and abetted Winters in forcing Underwood to orally copulate her. The trial court issued two instructions regarding aiding and abetting, CALJIC 3.01 and CALJIC 3.04. CALJIC 3.01 states:
A person aids and abets the commission of a crime when he or she, (1) with knowledge of the unlawful purpose of the perpetrator and (2) with the intent or purpose of committing, encouraging, or facilitating the commission of the crime, by act or advice aids, promotes, encourages or instigates the commission of the crime.
CALJIC 3.04 states:
A person who, by threat, menace, command or coercion compels another to commit any crime is guilty of the crime so committed.
Petitioner's defense at trial was that, although he aided Underwood's oral copulation of Winters, he believed it was consensual and therefore lawful. According to petitioner, under California law, his belief that Underwood consented precludes his conviction as an aider and abettor because under such circumstances he could not have specifically intended to aid and abet an unlawful, i.e. forcible, oral copulation. Petitioner argues that these aiding and abetting instructions were erroneous because they allowed the jury to convict him as an aider and abettor without necessarily finding that he specifically intended to aid and abet Winters to force Underwood to engage in oral copulation.
The Court of Appeal, however, rejected petitioner's interpretation of California law on this point and found the instructions to be correct statements of California's law regarding aiding and abetting. The Court of Appeal's interpretation of California law is binding on this Court. Hicks v. Feiock, 485 U.S. 624, 629 (1988); see also Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) (holding challenge to jury instruction based solely on error under state law does not state claim cognizable in federal habeas corpus proceedings). The California Court of Appeal found that to be liable as an aider and abettor under California law, petitioner did not need to specifically intend to aid and abet forcible acts; as long as the copulation he intended to facilitate was in fact forcible and therefore unlawful, he is guilty of aiding and abetting it. See Slip Op. at 15-17. The Court of Appeal reasonably concluded that nothing in the instructions allowed the jury, as petitioner asserts, to convict him for encouraging consensual copulation. See id. at 17 (emphasis added). CALJIC 3.04 required that petitioner facilitate a "crime" and CALJIC 3.01 required petitioner's "knowledge" of the perpetrator's "criminal purpose." As the Court of Appeal concluded, if the jury found that the copulation was consensual and therefore lawful, these instructions would have precluded the jury from finding petitioner guilty as an aider and abettor. See Id. Under California law as pronounced by the California Court of Appeal, the jury instructions on aiding and abetting did not render the trial fundamentally unfair so as to violate petitioner's right to due process. Habeas relief on this claim is accordingly denied.
This is because, under California law, neither the crime of forcible oral copulation nor aiding and abetting requires specific intent. See Slip Op. at 15-17. Because forcible oral copulation is a general intent crime, see id, at 15, Winters did not need to know that her actions were forcible for her actions to be unlawful. See CALJIC 3.30 (defining general intent under California law). And since aiding and abetting simply requires the intent to facilitate or encourage the perpetrators' unlawful acts, see id. at 15-17, petitioner likewise did not need to know that Winters's actions were forcible and therefore unlawful; as long as he intended to encourage or facilitate Winters's unlawful actions, he is liable as an aider and abettor under California law. See id.
b. Accomplice Instruction
Petitioner also claims that the jury instruction regarding accomplice testimony violated his constitutional rights because it effectively directed the jury to find him guilty. The instruction was based on CALJIC 3.16 and stated: "If the crimes set forth in Counts I-IV were committed by anyone, the witness Janeth Winters was an accomplice as a matter of law and her testimony is subject to the rule requiring corroboration." Petitioner argues that the impact of this instruction in the context of the evidence presented was to tell the jury that Winters was guilty of Counts I, II and IV, that Winters was an accomplice in those crimes with some other person, and that the only other person it could have been was petitioner.
As petitioner was not convicted of Count III, this claim only addresses his convictions on Counts I, II and IV.
Petitioner misreads the instruction. In reviewing an instruction, the inquiry is not how reasonable jurors could have understood the instruction; rather, the court must inquire whether there is a "reasonable likelihood" that the jury applied the challenged instruction in a way that violates the Constitution. See Estelle v. McGuire, 502 U.S. at 72 n. 4; Boyde v. California, 494 U.S. 370, 380 (1990). The instruction does not state that either Winters or petitioner was guilty of any of the charges. Rather, the instruction states that "if" the charged crimes "were committed by anyone" then Winters was an accomplice. This plainly allows room for the jury to conclude that no one — including petitioner — was guilty of the crimes charged. Therefore, there is not a reasonable likelihood that the jury would have believed from this instruction that they were required to find petitioner guilty. Accordingly, the instruction did not violate petitioner's right to due process and this claim for habeas relief is denied.
Winters had pled guilty to a separate count of assault with a deadly weapon.
c. Unanimity Instruction
Although a general unanimity instruction, CALJIC 17.50, was given, petitioner claims that his constitutional rights were violated because the trial court failed to issue a unanimity instruction directed towards the specific counts of oral copulation. Petitioner argues that although he was charged with only two counts of forcible oral copulation, evidence of three acts of oral copulation was submitted: oral copulation of Winters by Underwood; oral copulation of petitioner by Underwood; and oral copulation of Underwood by Winters.
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 is deprived the fair trial guaranteed by the Fourteenth Amendment. See id. The failure to give a specific unanimity instruction, such as CALJIC No. 17.01, when more than one act could constitute the offense charged may constitute a cognizable ground for federal habeas relief if it so infects the trial that the defendant is thereby deprived of the fair trial guaranteed by the Fourteenth Amendment. See Dunckhurst v. Deeds 859 F.2d 110, 114 (9th Cir. 1988); compare Schad v. Arizona, 501 U.S. 624, 630-45 (1991) (holding specific unanimity instruction not required where one offense is prosecuted on basis of alternate legal theories as opposed to alternate acts). Whether the trial has been rendered fundamentally unfair so as to violate due process will depend upon the evidence in the case and the overall instructions given to the jury. See Duckett, 67 F.3d at 745.
In light of the Court's conclusion that the failure to give this instruction did not violate due process, the Court need not reach respondent's argument that habeas relief is unavailable under § 2254(d)(1) due to a lack of Supreme Court precedent.
The failure to give a unanimity instruction specifically directed at the oral copulation counts did not render the trial fundamentally unfair in this case. Given the evidence presented, there is no reasonable possibility that the jury disagreed as to which acts constituted the charged offenses of oral copulation. Cf. People v. Melendez, 224 Cal.App.3d 1420, 1433-34 (1990) ("Where a single crime can be proven by different theories based upon different acts and at least two of these theories rely on different evidence, and where the circumstances demonstrate a reasonable possibility that a juror will find one theory proven and the other not proven but that all of the jurors will not agree on the same theory, a unanimity instruction [CALJIC No. 17.01] must be given."). The vast majority of the evidence concerning oral copulation centered around two acts of oral copulation: by Underwood on petitioner, and by Underwood on Winters. These two acts were described at length by Underwood, petitioner, and Winters, and the prosecution's argument to the jury relied solely on these two acts as the bases of the two charges. The third act of oral copulation was briefly alluded to on one occasion in Winters' testimony. It was not mentioned by petitioner or Underwood or anywhere else in the record, and was not argued to the jury as a basis for any of the charges. Under these circumstances, it is unlikely that the jury disagreed as to which acts constituted the two acts of forcible oral copulation. As result, the failure to issue a unanimity instruction specifically directed to the oral copulation charges did not render the trial so unfair as to violate petitioner's right to due process. Accordingly, habeas relief on this claim is denied.
CONCLUSION
In light of the foregoing, the petition for a writ of habeas corpus is DENIED. All pending motions are TERMINATED and the clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
[x] Decision by court. This action came to trial or hearing before the Court. The issue have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED the petition for a writ of habeas corpus is DENIED.
All pending motions are TERMINATED.