Opinion
For Dion Durrell Hayes, Petitioner: Richard Jay Moller, LEAD ATTORNEY, Richard J Moller Law Offices, Redway, CA.
For W. L. Montgomery, Respondent: Robert M Snider, CAAG - Office of Attorney General, California Department of Justice, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE TO DENY PETITION FOR WRIT OF HABEAS CORPUS AND DISMISS ACTION WITH PREJUDICE [28 U.S.C. § 636; General Order 05-07]
Hon. Jay C. Gandhi, United States Magistrate Judge.
I .
PROCEDURAL AND FACTUAL BACKGROUND
On May 18, 2011, a jury convicted Dion Durrell Hayes (" Petitioner") of one count of first degree murder and two counts of attempted murder. (Lodg. No. 1, Clerk's Transcript (" CT"), at 289-90, 330.) The jury further found true certain firearm and gang enhancement allegations. (Id. at 289-94.) Petitioner was sentenced to state prison for fifty years to life. (Id. at 330.)
By way of background, on July 4, 2005, Petitioner, a member of the 79 Swans street gang, attended a party hosted by another gang, the Seven Trey Hustlers (" Hustlers"), in a Los Angeles territory claimed by both gangs. (Ex. A at 6-7.) Petitioner arrived on an associate's motorcycle, argued with a Hustlers gang member, and then left, threatening to return. (Id. at 6, 15.) A short time later, Petitioner chased Hustler Andre Williams and his brother, Travon Blow, down a nearby alley, where Williams was shot and killed, but Blow escaped over a wall. (Id. at 7-8.) A few minutes later, Blow was fired at again by two men on a bike. (Id. at 6-9.) At trial, despite identification testimony from multiple eyewitnesses, Petitioner argued that he was not present at the shootings. (CT at 33-54; Lodg. No. 2, Reporter's Transcript (" RT"), at 1210-13, 1314-30, 1565-85, 2209-10.)
Petitioner appealed. In a reasoned decision, the California Court of Appeal reversed Petitioner's attempted murder convictions due to a Confrontation Clause violation, but otherwise affirmed the judgment. (Lodg. Nos. 3-6.) The California Supreme Court summarily denied petition for review. (Lodg. Nos. 7-8.)
The Court has reviewed the record, and the evidence is accurately summarized in the Court of Appeal's decision on direct review, which is attached as Exhibit A. (Lodg. No. 6); see also 28 U.S.C. § 2254(e)(1) (facts presumed correct). The Court discusses facts below as are pertinent to habeas relief.
II .
DISCUSSION AND ANALYSIS
Petitioner asserts three grounds for relief, all of which fail on this record. See 28 U.S.C. § 2254(d) (Antiterrorism and Effective Death Penalty Act) (" AEDPA"); Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011).
A. Confrontation Clause Violation
First, Petitioner contends that the admission at trial of eyewitness Spencer Thomas's preliminary hearing testimony violated Petitioner's Sixth Amendment right to confrontation. (Pet. at 5; Pet. Att. 8A at 5-28.) Moreover, Petitioner argues that Thomas's testimony was essential to his murder conviction because it improperly corroborated Blow's less consistent identification testimony. (Id.; Pet. Att. 8A at 7-13; RT at 1314-30.)
At the preliminary hearing, Thomas, a witness to the second shooting, testified that he had identified Petitioner, from a photographic lineup, as the shooter. (CT at 33-54.) However, the prosecution was unable to secure Thomas's attendance at trial. (Ex. A at 3.) Accordingly, the trial court allowed Thomas's hearing testimony to be read into the trial record. (Ex. A at 3-5; CT at 33-54; RT at 334-36, 1565-75, 1580-85.)
At trial, Blow testified that he only caught a glimpse of the shooter in the alley. (RT at 1314.) However, the jury also heard Blow's police interview statements positively identifying Petitioner as the shooter. (RT at 1329-30.) Now, Petitioner argues that the jury must have rejected Blow's identification, because it found that a principal, rather than Petitioner, used a firearm in the murder. (Pet. Att. 8A at 7-13.) However, as explained by the Court of Appeal, the jury's " not true" finding on the allegation that Petitioner personally used a firearm could be " the product of confusion, a jury's desire to extend leniency[, ] or the result of a need for compromise to reach a unanimous verdict." (Ex. A at 15-16 (citing United States v. Powell, 469 U.S. 57, 63-65, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984)) (noting that inconsistent verdicts are often the product of " mistake, compromise, or lenity").) As such, Petitioner fails to establish that the jury disbelieved Blow's identification.
As a general matter, the Sixth Amendment's Confrontation Clause provides in part that a criminal defendant has " the right . . . to be confronted with the witnesses against him." Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Confrontation Clause thus bars " testimonial statements of a witness who [does] not appear at trial unless [the witness is] unavailable to testify, and the defendant . . . had a prior opportunity" to cross-examine the witness. Id. at 53-54, 68. But even where constitutional error is found, a federal habeas court must also " assess the prejudicial impact of constitutional error" under Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Fry v. Pliler, 551 U.S. 112, 121-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007); Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir. 2011). Under the Brecht standard, habeas relief is warranted only if the error had a " substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637-38.
Here, the Court of Appeal found that the admission of Thomas's preliminary hearing testimony was erroneous, because, contrary to the trial court's finding, the prosecution did not properly show due diligence in attempting to locate Thomas for trial. (Ex. A at 11-14.) However, the Court of Appeal found the error harmless as to Petitioner's murder conviction because Thomas " did not witness the shooting in the alley and did not directly implicate Hayes in that crime." (Ex. A at 15.) Assuming, without deciding, that the Court of Appeal was correct in finding that the trial court erred and that the admission of Thomas's testimony violated the Constitution, the sole determination for this Court is whether the Court of Appeal " applied harmless error review in an 'objectively unreasonable' manner." Mitchell v. Esparza, 540 U.S. 12, 18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 75-77, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). To determine whether a Confrontation Clause error was harmless, a court should consider five factors: (1) the importance of the testimony to the prosecution's case; (2) whether the testimony was cumulative; (3) the presence or absence of corroborating or contradictory evidence; (4) the extent of cross-examination permitted; and (5) the overall strength of the prosecution's case. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). While the Court of Appeal did not, and need not, expressly analyze the five Van Arsdall factors, see Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002), its finding of harmless error was reasonable for three reasons:
Notably, the Court of Appeal found the error in admitting Thomas's testimony was not harmless as to Petitioner's attempted murder convictions, and thus reversed them. (Ex. A at 16, 19.)
o Testimony Not Important: First, Thomas's statements were not important to Petitioner's murder conviction. See Van Arsdall, 475 U.S. at 684. Significantly, Thomas was not a witness to the alley shooting and did not discuss that shooting during his preliminary hearing testimony. ( See Ex A. at 15; RT at 1565-75.) Rather, Thomas's statements were limited to the second shooting, which was distinct from the alley shooting in both time and location. ( See id.)
o Witness Was Cross-Examined: Second, Petitioner had the opportunity to fully cross-examine Thomas at the preliminary hearing. (RT at 1580-82); see also Van Arsdall, 475 U.S. at 679. Notably, Thomas's hearing testimony included statements that (1) he was under the influence of drugs and alcohol during both the shooting and his police interview, and (2) the police encouraged him to identify Petitioner. (Id. at 1580-82.)
o Compelling Evidence of Petitioner's Guilt: Third, the overall evidence of Petitioner's guilt was compelling. See Van Arsdall, 475 U.S. at 684. First, the " unchallenged testimony from a number of witnesses" demonstrated that Hayes arrived at the party on a motorcycle, heatedly argued with a rival gang member, and left vowing to return. (Ex. A at 15.) Second, during his police interview, Blow specifically identified Petitioner as the person who fired shots in the alley. (RT at 1538.) Third, another witness corroborated Blow's account by testifying that, shortly after Petitioner left the party, she saw three men chasing a man toward an alley, and then heard several rounds of gunfire. (Id. at 1210-13.) As cogently noted by the Court of Appeal, " there is no reasonable doubt a rational jury would have convicted Hayes of Williams's murder even if it had not heard Thomas's testimony." (Ex. A at 15.)
Thus, viewed in the context of the record as a whole, the Court of Appeal's finding that the admission of Thomas's testimony constituted harmless error was not unreasonable. See Van Arsdall, 475 U.S. at 679; Brecht, 507 U.S. at 637-38.
Accordingly, Petitioner's first claim does not merit federal habeas relief.
B. Jury Instruction
Second, Petitioner alleges that he was deprived of a fair trial because the trial court did not issue a special jury instruction that Petitioner could not be found guilty as an aider and abettor for murder based solely on his membership in a criminal street gang. (Pet. at 5-6; Pet. Att. 8B); see also Calderon v. Superior Court, 87 Cal.App.4th 933, 940-41, 104 Cal.Rptr.2d 903 (2001).
Generally, to warrant federal habeas relief, the omission of a jury instruction must violate a due process right guaranteed by the Fourteenth Amendment. Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). A petitioner faces an " especially heavy" burden in challenging a trial court's failure to give an instruction, because " an omission . . . is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977); Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997).
And, even when an omission violates due process, it warrants habeas relief only if it " had substantial and injurious effect or influence in determining the jury's verdict, " or if there is a " reasonable possibility" that, had the jury been given the instruction, it would have reached a different verdict. Brecht, 507 U.S. at 637; Clark v. Brown, 442 F.3d 708, 726 (9th Cir. 2006).
Here, the omitted instruction did not violate due process for two reasons:
o Proposed Instruction Was Duplicative: First, as noted by the Court of Appeal, the trial's court's given instructions adequately embodied Petitioner's proposed instruction. (Ex. A at 18-19.) Preliminarily, the trial court instructed the jury with CALJIC No. 17.24.3, ordering the jury to consider gang evidence only for the limited purposes of determining: (1) whether the crimes charged were committed for the benefit of a criminal street gang; (2) the identity of the perpetrator; (3) motive; and (4) witness credibility. (Id. at 19; CT at 275.) Importantly, the trial court specifically told the jury not to consider gang evidence " for any other purpose." (Id.) Additionally, the trial court instructed the jury on the principles of aider-and-abettor liability. (Ex. A at 19; CT at 257.) Namely, the jury was instructed that: (1) Petitioner could be held liable as an aider and abettor only if he had acted " with the specific intent or purpose of committing or encouraging or facilitating the commission of the crime"; and (2) mere knowledge of, or presence at, a crime cannot sustain a conviction for aiding and abetting. (Id.) Thus, because the jury was adequately instructed on the relevant law, Petitioner has failed to establish that the trial court's refusal to give the proposed instruction rendered his trial fundamentally unfair. Henderson, 431 U.S. at 156-57.
CALJIC No. 17.24.3 instructs:
The trial court instructed the jury with a modified version of CALJIC No. 3.01, as follows:
o No Prejudice: Second, the trial court's failure to give the proposed jury instruction did not prejudice Petitioner. See Brecht, 507 U.S. at 637-38; see also United States v. Warren, 25 F.3d 890, 895-96 (9th Cir. 1994) (" A court may reject portions of a proposed theory of defense that merely rephrase explanations of the law adequately covered elsewhere in the instructions.").
Accordingly, for the above reasons, Petitioner's second claim does not merit federal habeas relief.
C. Amended Information
Third, Petitioner claims that the trial court violated his Constitutional rights when it granted the prosecution's motion to amend the criminal information to accommodate a theory that Petitioner had aided and abetted Williams's murder. (Pet. at 6; Pet. Att. 8C at 1-9.) More specifically, Petitioner challenges the late addition of enhancement allegations that a principal used a firearm in the commission of Williams's murder. (Id.)
For context, Petitioner's original information charged him with murder and alleged that, during that crime, he personally used and discharged a firearm causing death. (CT at 135-36); see also Cal. Pen. Code § 12022.53(b)-(d). At trial, after jury selection but before opening statements, the prosecutor moved to amend the information to also allege that a principal used a firearm during the murder. (Ex. A at 17; RT at 336); see also Cal. Pen. Code § 12022.53(e). The prosecutor argued that because the evidence showed that the shootings likely involved other perpetrators, the jury should be allowed to determine if Petitioner aided and abetted the person who shot and killed Williams. (RT at 337, 604-05, 608.) Petitioner's counsel objected the motion on three grounds: (1) the proposed amendment was untimely, (2) Petitioner had prepared a defense based on a loneshooter theory, and (3) Petitioner had not cross-examined preliminary hearing witnesses on an aiding-and-abetting theory. (RT at 337, 602-04.) In the end, the trial court granted the prosecutor's motion, finding that the amendment would not affect Petitioner's defense of mistaken identity. (Ex. A at 18; RT at 606, 615.)
As a rule, " the Sixth Amendment guarantees a criminal defendant the fundamental right to be informed of the nature and cause of the charges made against him so as to permit adequate preparation of a defense." Gautt v. Lewis, 489 F.3d 993, 1002 (9th Cir. 2007); see also Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed. 644 (1948). " When determining whether a defendant has received fair notice of the charges against him, " a federal habeas court " begin[s] by analyzing the content of the information." Gautt, 489 F.3d at 1003 (citing Cole, 333 U.S. at 198). Although the information " need not contain a citation to the specific statute at issue, " it " must in some appreciable way apprise the defendant of the charges against him so that he may prepare a defense accordingly." Gautt, 489 F.3d at 1004. Where a petitioner claims that his rights were violated by a late amendment of the charges, he must show not only an error in amending the charges, but also prejudice under Brecht. See Gautt, 489 F.3d at 1016; Brecht, 507 U.S. at 623.
Here, Petitioner's claim fails for two reasons:
o Fair Notice: First, the original information charging Petitioner with first-degree murder adequately apprised Petitioner that he could be convicted either as a principal or as an aider and abettor. See Carothers v. Rhay, 594 F.2d 225, 229 (9th Cir. 1979); see also Lopez v. Smith, 135 S.Ct. 1, 3, 190 L.Ed.2d 1 (2014) (per curiam). " [I]n California the definition of a principal has historically included those who aid and abet . . . and notice as a principal is sufficient to support a conviction as an aider or abettor." People v. Garrison, 47 Cal.3d 746, 776 n.12, 254 Cal.Rptr. 257, 765 P.2d 419 (1989). Thus, the prosecutor's early focus on a lone-shooter theory did not render inadequate Petitioner's notice of potential aider-and-abettor liability. See Lopez, 135 S.Ct. at 4.
o No Prejudice: Second, Petitioner has made no showing of prejudice. See Brecht, 507 U.S. at 637-38. Petitioner's long-held defense was that he was not present at the shooting. ( See Ex. A at 18.) That defense applied just as forcefully against an aiding-and-abetting theory of culpability as against a principle-offender theory. ( See id.) Nor has Petitioner identified any additional arguments or facts that, given earlier notice, he could have presented as a defense to the principal firearm enhancement allegations. Consequently, this Court cannot find that the information's amendment had a " substantial and injurious effect" on Petitioner's verdict. See Brecht, 507 U.S. at 637-38.
Accordingly, for the above reasons, Petitioner's third and final claim does not merit federal habeas relief.
IV .
RECOMMENDATION
In accordance with the foregoing, IT IS RECOMMENDED that the Court issue an Order: (1) approving and accepting this Report and Recommendation; (2) directing that Judgment be entered dismissing this action with prejudice; and (3) denying a certificate of appealability. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Slack v. McDaniel, 529 U.S. 473, 484-85, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
JUDGMENT
IT IS ADJUDGED that the above-captioned action is DISMISSED WITH PREJUDICE for the reasons set forth in the Magistrate Judge's Report and Recommendation.
" Evidence has been introduced for the purpose of showing criminal street gang activities and of criminal acts by gang members. This evidence, if believed, may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show that the crime or crimes charged were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. It may also be used to assist you on 1) the question of identity of the perpetrator, 2) assessing the credibility of witnesses, and 3) whether or not a motive existed for the alleged crimes. For the limited purpose for which you may consider this evidence, you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider such evidence for any other purpose."
(CT at 275.)
" 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 specific intent or purpose of committing or encouraging or facilitating the commission of the crime, and (3) By act or advice, aids, promotes, encourages or instigates the commission of the crime. A person who aids and abets the commission of a crime need not be present at the scene of the crime. Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting."
(CT at 257.)