Opinion
No. C 02-2959 MMC (PR).
August 24, 2004
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Mario Enriquez ("petitioner"), a California prisoner, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After reviewing the petition, the Court found all four claims cognizable. The Court ordered respondent to show cause why the petition should not be granted based on these cognizable claims. Respondent has filed an answer denying the petition, along with a supporting memorandum. Petitioner has filed a traverse.
PROCEDURAL BACKGROUND
In 1994, petitioner was charged in Santa Cruz County Superior Court with driving under the influence of phencyclidine (PCP), having suffered within the preceding seven years three separate convictions for, respectively, driving under the influence (Count 1), being under the influence of PCP (Count 2), and driving while his license was suspended or revoked following a conviction for driving under the influence (Count 3). Petitioner was convicted of the first two counts. The California Court of Appeal reversed petitioner's conviction for driving under the influence, as a result of instructional error. Subsequently petitioner was retried on Count 1 and a jury found him guilty of that charge. A judge of the Santa Clara County Superior Court sentenced petitioner to twenty-five years to life after the jury additionally found that he had suffered three prior "strike" convictions. The California Court of Appeal affirmed that conviction. The Supreme Court of California denied petitioner's petition for direct review and subsequent petition for a writ of habeas corpus.
FACTUAL BACKGROUND
Josephine Martinez ("Josephine") testified to the following sequence of events. On June 19, 1994, Josephine's daughter, Christine Martinez ("Christine") and Christine's boyfriend, petitioner, came to the front door of Christine's family home at 369 Fleming Avenue in San Jose. Josephine noticed that Christine appeared to be under the influence of PCP and asked another daughter to call the police. Christine's sister called the Santa Clara County Sheriff's Department to report that Christine and petitioner were leaving the family home in a blue Chevrolet Sprint and were possibly under the influence of PCP.
Reserve Deputy Sheriff Michael Phillips ("Phillips") testified as follows. He proceeded toward the Martinez family home and observed the blue Chevrolet Sprint parked on the roadside. Petitioner was in the driver's seat and Christine was in the passenger seat. After Phillips stopped 25 feet behind the Sprint, petitioner drove approximately 400 feet and pulled into the driveway at the Martinez family home. Phillips followed and parked his patrol car directly behind the Sprint. After Phillips got out of his vehicle, he saw petitioner grab the top of the door and roof and lift himself from his car. While standing there, petitioner appeared to be sweating profusely as he swayed from side to side. Petitioner's speech was slurred and jumbled, his eyes were glossy, and he had an odor of alcohol. In the process of handcuffing petitioner, Phillips noted that petitioner's muscles were tight, his skin temperature was extremely high, and his pulse rate was 130 per minute, as compared to the normal rate of 50-70 per minute. Phillips performed a nystagmus test on petitioner's eyes which was positive for eye bounce. Using a pupillometer, Phillips measured the petitioner's dilated pupils at 6.0. From these symptoms, Phillips concluded that petitioner was under the influence of PCP and arrested him. Phillips did not conduct a field dexterity test, and admitted that he did not see defendant drive erratically.
A nystagmus test is a common field sobriety test that measures the involuntary spasmodic motion of the eyeball.
A pupillometer is a device used to measure the diameter of the pupil.
A blood sample was drawn from petitioner that same day. Toxicologist Alice King ("King") testified that a July 1, 1994 analysis of that sample contained .38 micrograms of PCP per milliliter. King further testified that simply knowing the amount of PCP in the system does not permit a deduction as to how the drug physically affects the person. Randall Basalt, a toxicologist called by the defense, testified that the level of PCP in the blood does not necessarily dictate the physical behavior a person will demonstrate.
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. 1910, 1920 (2001). 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 v. Abrahamson, 507 U.S. 619, 638 (1993). A federal court must presume the correctness of the state court's factual findings. 28 U.S.C. § 2254(e)(1).
B. Legal Claims
1. Admission of Blood Evidence at Retrial
Petitioner claims that the trial court violated his rights to due process by failing to exclude the blood test evidence at his retrial for driving under the influence.
After petitioner's first trial, the blood sample was released to the Santa Clara County Crime Lab ("Lab"). In December 1997, at his retrial, petitioner moved to exclude expert testimony as to the blood analysis because the Lab had informed him that the remaining portion of the sample was too small to retest and was destroyed after three years. At the hearing on the motion, the prosecutor stated that the supervisor of the Lab had advised the prosecution that the Lab retained samples for three years absent a request to preserve the evidence. The trial court denied petitioner's motion.
The failure to preserve potentially useful evidence does not constitute a denial of due process of law unless a criminal defendant can show bad faith on the part of the police. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988). In California v. Trombetta, 467 U.S. 479 (1984), the defendants had filed a motion to suppress Intoxilyzer test results because the arresting officers had failed to preserve samples of the defendants' breath. See id. at 482. The Supreme Court, noting that (1) the police officers had acted in good faith and in accord with normal practice in failing to preserve breath samples and (2) the chances were low that the preserved samples would have been exculpatory given the accuracy of the Intoxilyzer,see id. at 488-489, held the Due Process Clause "does not require that law enforcement agencies preserve breath samples in order to introduce the results of breath-analysis tests at trial." Id. at 491.
The Intoxilyzer is a device used in California to measure the concentration of alcohol in the blood of motorists suspected of driving while under the influence. California v. Trombetta, 467 U.S. 479, 481 (1984).
Here, as in Trombetta, there is no indication that state officials acted in bad faith in failing to preserve the blood sample. As noted, the supervisor of the Lab stated that the Lab only retains samples for three years absent a request to preserve the evidence. Additionally, the Lab had no reason to suspect that petitioner would seek a retest of the sample and, consequently, acted in accord with normal practice when it discarded the sample after three years. Although petitioner contends the State was aware of his appeal, petitioner fails to demonstrate that either the prosecutor or the Lab had reason to suspect the appeal would lead to a request from petitioner to retest the sample. Petitioner thus fails to show that the State acted in bad faith when it discarded the remainder of the blood sample.
In addition to the failure to preserve the sample, petitioner argues, the Lab failed to draw enough blood for him to have his own expert test it prior to the retrial. In particular, petitioner argues that the Lab acted in bad faith by drawing an insufficient amount of blood and by subjecting his blood sample to additional tests for the purpose of depleting the sample. This argument is without merit. Toxicologist Alice King testified that several standard analyses were done on the blood sample. The Lab tested the blood sample for alcohol, PCP, methamphetamine, cocaine, and heroin. King further testified that in order to conduct the analyses, the Lab had to utilize nearly the entire blood sample. There is no indication in the record that the Lab subjected petitioner's blood to any tests not reasonably warranted by his behavior, or that the lab purposefully depleted the sample. Petitioner thus fails to show that the State acted in bad faith in its use of the blood sample.
Finally, there is little chance that the preserved sample would have been exculpatory. 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, 507 U.S. at 638. Petitioner argues that his counsel was denied the opportunity to retest the blood sample and determine whether petitioner's symptoms on the day of the arrest were caused by "other influences." Assuming, arguendo, that a retest would have revealed "other influences," such results would not negate the fact that the initial blood test disclosed the presence of PCP in petitioner's system. Consequently, a retest of that sample would not have exculpated petitioner of driving under the influence of PCP, and the failure to preserve the blood sample for the retrial did not have a "substantial and injurious effect or influence in determining the jury's verdict." See Brecht, 507 U.S. at 638.
Accordingly, petitioner is not entitled to habeas relief on his claim that the trial judge improperly failed to exclude evidence.
2. Judicial Impartiality
Prior to the retrial, petitioner moved to disqualify the trial judge on the ground that he had been the sentencing judge on one of petitioner's prior convictions. The trial court denied the motion. Following the return of the guilty verdict but prior to the sentencing hearing, the judge disclosed that he was a member of a fraternal organization, Los Pescadores of San Jose, whose membership included the prosecutor. The judge indicated that he and the prosecutor did not associate in the club, that he had minimal to no contact with the prosecutor, and that the club forbids talking about work while involved in club activities. Nonetheless, the judge offered to recuse himself from further proceedings; petitioner requested recusal, and the judge granted the request.
Petitioner claims that the trial court violated his right to a trial with a fair and impartial judge when the trial judge failed to recuse himself at the outset of the retrial. The due process clause guarantees a criminal defendant the right to a fair and impartial judge. See In re Murchison, 349 U.S. 133, 136 (1955); Kennedy v. Los Angeles Police Dep't, 901 F.2d 702, 709 (9th Cir. 1989). A federal habeas court reviews a state trial judge's refusal to recuse himself under the abuse of discretion standard used by federal appellate courts to review a district judge's refusal to recuse himself. See Poland v. Stewart, 117 F.3d 1094, 1103 (9th Cir. 1997). Recusal is appropriate where a "reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned."Yagman v. Republic Ins., 987 F.2d 622, 626 (9th Cir. 1993).
Here, petitioner argues he was deprived of a fair and impartial trial because the trial judge did not disclose information regarding his association with the prosecutor. A judge's social acquaintance with parties, witnesses, or attorney's appearing in a case does not require judicial recusal. See United States v. Dandy, 998 F.2d 1344, 1349-1350 (6th Cir. 1993) (holding judge's social acquaintance with owners and president of allegedly defrauded company did not require recusal from criminal prosecution); see also Parrish v. Bd. of Comm'rs of the Alabama State Bar, 524 F.2d 98, 104 (5th Cir. 1975) (holding judge's acquaintance with several of the defendants as well as with defense counsel did not require recusal). In the instant case, the trial judge's limited association with the prosecutor as a member of a fraternal organization does not require recusal. Petitioner points to no other conduct by the trial judge suggesting a lack of judicial fairness or impartiality.
Accordingly, petitioner is not entitled to relief on his claim that the trial judge failed to timely recuse himself.
3. Jury Instruction Regarding The "Impaired Driving" Requirement
Petitioner claims that the trial court's response to a question from the jury during deliberations was incorrect and confusing, and thereby violated his right to due process and to a jury trial. During jury deliberations, the jury sent a note to the court asking: "To prove this crime, does a person have todemonstrate impaired driving while under the influence?" (Emphasis in original). In responding to the jury's question, the trial court paraphrased the note as "To prove this crime does a person have to demonstrate an impairment while under the influence?" and reread CALJIC No. 16.832, which states:
The manner in which a vehicle is being operated is not sufficient in itself to establish the driver of the vehicle either is or is not under the influence of a drug. However, the manner in which the vehicle is being operated is a factor to be considered in light of all the proved surrounding circumstances in deciding whether the person operating the motor vehicle was or wasn't under the influence of a drug.
The trial court then told the jury that the answer to its question was "no."
"When a jury makes explicit its difficulties, a trial judge should clear them away with concrete accuracy." Bollenbach v. United States, 326 U.S. 607, 612-13 (1946). The trial judge has a duty to respond to the jury's request for clarification with sufficient specificity to eliminate the jury's confusion. See Beardslee v. Woodford, 358 F.3d 560, 574-75 (9th Cir. 2004). The trial judge has wide discretion in charging the jury, a discretion that carries over to the judge's response to a question from the jury. See Arizona v. Johnson, 351 F.3d 988, 994 (9th Cir. 2003). Also, just as a jury is presumed to follow the trial court's instructions, it is presumed to understand the trial court's answer to a question. See Weeks v. Angelone, 528 U.S. 225, 234 (2000).
To the extent petitioner argues that the trial court's response was not a correct statement of California law, the argument fails. The California Court of Appeal determined that the pattern instruction and the trial court's response in the negative to the jury's question was correct as a matter of state law. See Respt.'s Exh. A at 5. A determination of state law by a state appellate court is binding in a federal habeas action and may not be "disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise." Hicks v. Feiock, 485 U.S. 624, 629-30 n. 3 (1988) (quoting West v. American Telephone Telegraph Co., 311 U.S. 223, 237-38 (1940)). Here, petitioner does not provide any evidence suggesting that the California Supreme Court would consider the instruction or the trial court's negative answer to be an incorrect statement of the state law.
Petitioner's argument that the trial court's response to the jury's question was confusing also fails. CALJIC No. 16.833 clearly instructs that poor driving is only a factor to be considered in determining whether the driver was under the influence, and that the jury could find petitioner committed the crime even if he was not driving poorly. To the extent the jury did not understand this from the initial reading of the instructions, the trial court, in responding "no" to their question, could not have clarified for the jury any more simply or succinctly that it did not have to find petitioner was driving poorly. Petitioner argues that the trial court's substitution of the term "impairment" for "impaired driving" in its paraphrasing of the note was confusing because it allowed the jury to convict him even if it found he was not under the influence. The difference between the trial court's paraphrasing of the note and the note as worded by the jury was slight, and the jury knew the question it had asked. Moreover, CALJIC No. 16.832 was immediately reread to the jury, and that instruction clearly refers to driving; it discusses "the manner in which a vehicle is being operated," and whether "the driver of the vehicle" is "under the influence of a drug." In this context, the jury could not have reasonably understood the trial court's use of the term "impairment" to mean anything other than "impaired driving." Finally, the jury had been instructed that driving while under the influence of drugs was an essential element of the charged offense (RT at 255), which made clear to the jury that they could not find petitioner guilty unless they found he was under the influence of drugs.
In sum, the trial court's response to the jury's question was neither confusing nor a misstatement of California law. Accordingly, petitioner is not entitled to relief on his claim that the trial judge improperly instructed the jury.
4. Cruel and Unusual Punishment
Petitioner claims that his sentence of 25 years to life violates his Eighth Amendment right to be free from cruel and unusual punishment. In light of two United Supreme Court decisions, this claim must be denied. In Lockyer v. Andrade, 538 U.S. 63 (2003), the Supreme Court rejected the contention that Supreme Court case law in this area was of sufficient clarity to constitute "clearly established" federal law within the meaning of 28 U.S.C. § 2254(d), with the exception of "one governing legal principle," specifically: "A gross disproportionality principle is applicable to sentences for terms of years." See id. at 72. The Supreme Court further noted that the precise contours of that principle are "unclear" and "applicable only in the `exceedingly rare' and `extreme' case."See id. at 73 (citation omitted). In Lockyer, the petitioner was accused of stealing a total of $153 worth of videotapes from two different stores. See id. at 66. The jury found the petitioner guilty of two counts of petty theft with a prior conviction and further found that the petitioner had suffered three prior felony convictions that qualified under California's "three strikes" law, specifically three counts of first degree residential burglary. See id. at 68. The Supreme Court, observing that "[t]he gross disproportionality principle reserves a constitutional violation for only the extraordinary case," held the California Court of Appeal's affirmance of the petitioner's sentence of two consecutive terms of 25 years to life was not an unreasonable application of clearly established federal law. See id. at 77. In Ewing v. California, 538 U.S. 11 (2003), the petitioner was accused of stealing three golf clubs, priced at $399 each; he was convicted of one count of felony grand theft and allegations that he had been convicted previously of four felonies qualifying under California's three strikes law, specifically, one robbery and three burglaries, were found true. See id. at 18-19. The Supreme Court affirmed the California Court of Appeal's holding that a sentence of 25 years to life under such circumstances was not grossly disproportionate and therefore did not constitute cruel and unusual punishment under the Eighth Amendment. 538 U.S. 11, 30-31 (2003). Looking beyond the petitioner's most recent offense, Justice O'Connor's plurality opinion observed:
When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice. To the contrary, our cases establish that "States have a valid interest in deterring and segregating habitual criminals". [citations omitted]Id. at 25.
Here, petitioner's sentence of 25 years to life is not grossly disproportionate to the crime for which he stands convicted. Although the offense of driving under the influence is a crime that can be treated either as a felony or a misdemeanor under California law, the trial court declined to reduce the offense from a felony to a misdemeanor because petitioner had suffered three prior convictions for the same offense within the preceding seven years. As noted, a court may properly consider a petitioner's criminal history in determining the proportionality of a sentence under the Eighth Amendment. See, e.g., id. at 29. ("[W]e must place on the scales not only [the petitioner's] current felony, but also his long history of felony recidivism.") Here, petitioner had incurred three separate convictions for driving under the influence within the preceding seven years as well as three prior "strike" convictions for assault with a deadly weapon and robbery, and two prior serious felony convictions for possession of controlled substances. (See Respt.'s Exh. A at 1.)
Recently, in Ramirez v. Castro, 365 F.3d 755 (9th Cir. 2004), the Ninth Circuit Court of Appeals held a sentence of 25 years to life for one count of petty theft was grossly disproporationate where the petitioner's prior criminal history "[was] comprised solely of two 1991 convictions for second-degree robbery obtained through a guilty plea, for which his total sentence was one year in county jail and three years of probation," and the prior offenses were "more accurately described as `confrontation petty theft.'" Id. at 768.
Here, in contrast to a nonviolent shoplift, which Ramirez described as an offense that "did not threaten to cause grave harm to society," see id., petitioner's most recent conviction is for an offense that does threaten such harm. Indeed, Ramirez listed "third offense driving while intoxicated" among prior felonies it characterized as "serious and violent." See id. at 769. Moreover, petitioner's prior "strike" convictions include serious felonies for which he completed separate prison terms. Consequently, petitioner, unlike the petitioner in Ramirez, does not present the "extremely rare case that gives rise to an inference of disproportionality."See id. at 770.
In sum, the California Court of Appeal's determination that petitioner's sentence was not grossly disproportionate to his crime was not an unreasonable application of or contrary to clearly established federal law within the meaning of 28 U.S.C. § 2254(d)(1).
The reasoning of the California Court of Appeal differs from the reasoning set forth herein; the state court employed the analytic framework prescribed in a decision of the California Supreme Court. Nevertheless, the California Court of Appeal reached the same conclusion, that there was no Eighth Amendment violation, a conclusion that is correct under the proper federal standard. As petitioner's federal constitutional rights were not violated, habeas relief is not warranted. The fact that the state court reached the correct conclusion by way of reasoning that differs from the governing federal standard does not change this result. Cf. Early v. Packer, 123 S.Ct. 362,365 (2002) (holding state court's failure to cite to federal case law does not entitle petitioner to habeas relief pursuant to § 2254(d)(1)).
Accordingly, petitioner is not entitled to habeas relief on his Eighth Amendment claim.
CONCLUSION
In light of the foregoing, the petition for a writ of habeas corpus is hereby DENIED.The Clerk shall close the file and terminate any pending motions.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.[x] Decision by Court. This action came to trial or hearing before the Court. The issues 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 hereby DENIED.