Opinion
NO. CV 11-9219-ODW(E)
07-26-2012
MONICA HUJAZI, Petitioner, v. SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES, Respondent.
ORDER ACCEPTING FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS OF
UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on counsel for Petitioner and counsel for Respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
_______________
OTIS D. WRIGHT II
UNITED STATES DISTRICT JUDGE
MONICA HUJAZI, Petitioner,
v.
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES, Respondent.
NO. CV 11-9219-ODW(E)
REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Otis D. Wright II, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on November 7, 2 011. The Petition asserts that the trial court denied Petitioner the right to put on a defense by allegedly finding that the subject offenses are "strict liability" offenses under California law (Ground One). On January 31, 2012, Respondent filed an Answer and a Memorandum of Points and Authorities in support thereof. Petitioner filed a Reply on May 16, 2012. Respondent lodged certain exhibits ("Respondent's Lodgments") on June 1, 2012.
Petitioner filed an earlier petition attacking a different conviction that raised a claim similar to the claim raised herein. See Huiazi v. Superior Court, Case No. CV 11-1555-ODW(E). The Magistrate Judge is filing a Report and Recommendation in the earlier filed case concurrently herewith.
Petitioner also filed an earlier petition attacking the same conviction, raising the claim raised herein, plus a claim of ineffective assistance of counsel. See Huiazi v. Superior Court. Case No. CV 1123 69ODW(E). The Court dismissed that petition without prejudice for failure to exhaust available state remedies. See id. (Docket Entry Nos. 3538).
BACKGROUND
On March 26, 2 009, a Los Angeles County Superior Court jury found Petitioner guilty of 24 counts of violating Los Angeles Municipal and County Building, Fire, and Health and Safety Codes regarding her maintenance of the apartment building located at 207 N. Oxford Avenue (Reporter's Transcript ["R.T."], pp. 382-91; Clerk's Transcript ["C.T."], pp. 96-108) . The trial court ordered Petitioner to serve 90 days in county jail, but suspended imposition of Petitioner's sentence and placed Petitioner on 36 months of summary probation with a condition that Petitioner complete 4 00 hours of community service by a date certain and pay fines (R.T. 457-58; C.T. 116-33).
The counts charged: (1) failure to maintain fire protection equipment, fire assembly, fire protective signaling system, and smoke detector, and maintaining the same in a state of disrepair; (2) failure to maintain exit signs and smoke detectors; (3) failure to maintain sufficient light to enable persons to find, distinguish, and use exits; (4) maintaining fire assembly doors, activated by smoke detectors and self-closing devices, that were wedged, blocked, obstructed, and otherwise impaired from proper operation, and failing to keep said doors in a closed position and equipped with approved self-closing devices; (5) failure to maintain, test, repair, and/or provide certifications for fire alarm systems, wet and dry standpipes, fire escapes, and/or fire doors; (6) terminating the water heater ventilation pipe at an improper location; (7) altering, reconstructing, and repairing electrical wiring without a permit; (8) failing to maintain the physical elements of the building by cleaning, painting, staining, or refinishing; (9) failing to provide each apartment door opening into an interior corridor with an approved self-closing or automatic device; (10) failing to maintain exit signs internally and externally illuminated; (11) failing to maintain in clean and sanitary condition and in good repair the (a) walls and ceilings of every room, structure, and portion thereof; (b) electrical service, lines, switches, outlets, fixtures and fixture coverings and supports; (c) doors, windows, window screens, cabinets, and frames; (d) floor and floor coverings; (e) plumbing fixtures, shower enclosures, waste water drain lines, water supply lines, counters, drainboards, and adjoining wall and floor areas to protect against water damage; (12) failing to provide exit doors openable from the inside without the use of a key; (13) adding, altering, changing, constructing, installing, locating, maintaining, moving, occupying, relocating, removing, renovating, repairing, replacing, and using a plumbing system, water connected dispenser, fire sprinkler system, rainwater piping, standpipe, subsurface draining pipe, swimming pool piping, reclaimed water piping, and underground fire protection piping system except as provided by Los Angeles Municipal Code; and (14) failing to make watertight plumbing fixtures in contact with walls and/or floors. See C.T. 1-22 (Misdemeanor Complaint); R.T. 382-91 (verdicts); see also Respondent's Lodgment 7, pp. 1-2 n.l (summarizing counts).
On January 18, 2011, the Los Angeles County Superior Court Appellate Division affirmed the judgment in a reasoned decision (Respondent's Lodgments 7, 10). On February 7, 2011, the Appellate Division summarily denied Petitioner's "Petition for Rehearing and Transfer to the Court of Appeal" (Respondent's Lodgments 8, 9).
Petitioner filed a "Petition for Writ of Mandate/Prohibition After Transfer from Appellate Division" in the California Court of Appeal, which the Court of Appeal denied summarily on February 24, 2011 (Respondent's Lodgments 11-12 (citing Cal. R. Ct. 8.1005(a)).On September 14, 2011, Petitioner lodged with the Court in a prior case (Case No. CV 11-2369-ODW(E), Docket No. 33) a "Petition for Writ of Mandate to Exhaust State Remedies" that Petitioner submitted to the California Supreme Court purporting to raise Ground One herein. On November 7, 2011, Petitioner lodged with the Court the California Supreme Court's October 19, 2011 summary denial of that petition.
Rule 8.1005(a) provides in relevant part:
The appellate division may certify a case for transfer to the Court of Appeal on its own motion or on a party's application if it determines that transfer is necessary to secure uniformity of decision or to settle an important question of law.
SUMMARY OF TRIAL EVIDENCE
The following factual summary is taken from the opinion of the Los Angeles County Superior Court Appellate Division in People v. Huiazi (Respondent's Lodgment 7). See Galvan v. Alaska Dep't of Corrections, 397 F.3d 1198, 1199 & n.l (9th Cir. 2005) (taking factual summary from Court of Appeal opinion).
[Petitioner] owned a building located at 207 North Oxford in the County of Los Angeles. The building contained approximately 32 apartments. The building was inspected on different occasions by Lee Bruce of [the] Los Angeles Housing Department and Luis Jaramillo of the Los Angeles Fire Department.(Respondent's Lodgment 7, pp. 2-3).
Mr. Bruce inspected the building on October 31, 2009. He took photographs of the building and those photographs formed the basis for the charges in counts 24 through 36. The photographs were admitted into evidence and depicted the following building code violations: (1) a missing temperature and pressure release valve extension on a water heater; (2) an unapproved use of an electrical conduit; (3) a broken rain gutter; (4) a defective emergency egress door; (5) an exit sign that was not illuminated; (6) a defective wall with "knocked out" portions of plaster; (7) two defective ground fault interruptor outlets; (8) three defective cabinets; (9) a hole in the wall located under a sink; (10) defective grouting in a kitchen; (11) a defective bathroom window; (12) an improper "double-key deadbolt lock" on an entry door; (13) the absence of ventilation in a kitchen; (14) defective caulking in a bathroom; (15) incomplete construction of a cabinet and counter in a kitchen; (16) a defective shower enclosure; (17) missing and cracked kitchen tiles; (18) ripped carpeting in a living room; (19) defective drywall and plaster surrounding a bathroom sink; and (20) a cracked and
peeling bathtub.
In November, 2008, Mr. Jaramillo inspected the building and took photographs. These photographs formed the basis of counts 1 through 11 and were admitted into evidence. They depicted the following fire code violations: (1) a missing handle on a water spigot used for fire suppression in an emergency; (2) absence of exit signs over ten fire doors; (3) two defective smoke detectors; (4) three fire doors improperly propped open; (5) two dysfunctional magnetic devices used to hold doors open; (6) four fire doors that did not "self-close and latch"; (7) a defective piping system that adversely impacted the water supply used to fight fires; and (8) the absence of directional exit signs in the basement.
Mr. Jaramillo also determined [Petitioner] did not have required records indicating the smoke detectors and the fire alarm had been tested.
STANDARD OF REVIEW
Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the 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); Woodford v. Visciotti. 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor. 529 U.S. 362, 405-09 (2000) . This standard of review is "highly deferential" and "difficult to meet." Harrington v. Richter, 131 S. Ct. 770, 786 (2011); Woodford v. Visciotti, 537 U.S. at 24. "The petitioner carries the burden of proof." Cullen v. Pinholster, 131 S. Ct. 13 88, 1398 (2011).
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision. Lockyer v. Andrade, 538 U.S. 63 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts. . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result.See Early v. Packer, 53 7 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. at 407 (citation omitted).
"In order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been 'objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005).
In applying these standards, the Court looks to the last reasoned state court decision. See DeWeaver v. Runnels, 556 F.3d 995, 997 (9th Cir.), cert, denied, 130 S. Ct. 183 (2009). Where there exists only a summary denial, "a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter. 131 S. Ct. at 786; see also Cullen v. Pinholster. 131 S. Ct. at 1403 (quoting same) . This is "the only-question that matters under § 2254(d)(1)." Harrington v. Richter, 131 S. Ct. at 786 (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. at 786-87 ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").
DISCUSSION
I. Petitioner's Claim that the Trial Court Denied Her the Right to Put on a Defense Does Not Merit Habeas Relief.
Petitioner claims that the trial court denied her the right to put on a defense by ruling that the charged offenses were "strict liability" offenses under California law (Petition, Ground One; Reply, p. 1). Specifically, Petitioner argues that the trial court prevented her from attempting to prove that her tenants had caused the subject conditions at the property, either by destroying the property or by destroying Petitioner's repairs to the property (Reply, p. 1; see also Respondent's Lodgment 4, p. 12, and Respondent's Lodgment 6, p. 1, Respondent's Lodgment 11, p. 5). As discussed below, Petitioner's argument does not merit habeas relief.
A. The Trial Court's Rulings
Prior to the start of trial, the prosecution filed motions in limine seeking rulings establishing that: (1) some or all of the counts pleaded were strict liability offenses; and (2) the defense may not assert a legal impossibility defense and therefore the court must exclude all references to Petitioner's alleged inability to bring the property in compliance. See Respondent's Lodgment 3a, pp. 7-24 (motions in limine citing, inter alia, People v. Bachrach, 114 Cal. App. 3d Supp. 8, 170 Cal. Rptr. 773 (Cal. App. Super. 1980) ("Bachrach").
In Bachrach. a defendant landlord had been convicted "of Los Angeles Municipal Code public safety and fire prevention violations for failure to provide exit signs, failure to secure a vacant building, failure to provide a garbage bin with heat activated closing devices, maintaining an antenna less than seven feet high on an accessible roof, failure to maintain a fire door, failure to correct hazardous conditions after notice, and failure to have a wet standpipe system tested within a five-year period. Bachrach, 114 Cal. App. 3d Supp. at 12 n.2, 170 Cal. Rptr. at 775 n.2. In affirming the conviction, the Los Angeles County Superior Court Appellate Department found that the violations were strict liability offenses, designed to protect the safety of tenants. The Bachrach court explained:
The [trial] court correctly instructed the jury that intent was not an element of any of the offenses with which the defendant was charged. These offenses being, as they are, against the public health and safety and against the public welfare, do not require proof of intent nor criminal negligence, but are governed by rules of "strict liability." The rationale given for imposing strict liability to the proscribed acts include the following: Statutes of this nature are primarily concerned with the protection of the public and not with the punishment and correction of offenders.
Petitioner opposed the motion, arguing that strict liability-should not apply to violations like those at issue and that she should be permitted to introduce evidence that the tenants allegedly-interfered with her asserted attempts to remedy the code violations. See Respondent's Lodgment 3b (Plaintiff's opposition). Petitioner also filed proposed jury instructions essentially adding to the charged offenses a proposed element that the defendant had the "power" to prevent or to remedy the code violations. See Respondent's Lodgment 3c.
After hearing extensive argument (R.T. 14-52), the trial court reaffirmed its tentative ruling that strict liability would apply to the charged crimes as public welfare offenses under Bachrach. See R.T. 57; see also R.T. 18-19 (tentative ruling). The trial court
Bachrach, 114 Cal. App. 3d Supp. at 12-13; 170 Cal. Rptr. at 775-76 (internal footnote and citations omitted; quoting Morissette v. United States, 342 U.S. 246, 256 (1952)). noted that, in order for Petitioner to present an impossibility-defense, Petitioner would have to have "substantial evidence" that repairs were objectively impossible (R.T. 17). The court explained:
* * *
Whether a legislative body intended the doctrine of strict liability to apply to a given statute is determined by the subject matter, the language, the evil sought to be prevented by the enactment of the statute. From the subject matter, the language, and the purpose of the laws which the jury found the defendant violated, the legislative intent in their enactment is clear. These laws were adopted to protect the lives and property of persons in crowded apartments. While these laws impose obligations upon apartment house owners such as the defendant "[he]. . . is in a position to prevent [the violations] with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities."
It's not simply that you have the landlord, for example, testifying that on such and such a date she tried to fix the screen. That's not substantial evidence, in my view. ¶ To get to the objective impossibility, you would have to show much more. How much more I don't know, because I don't know where that line is, but it's substantial evidence that it was objectively impossible for [Petitioner] to comply with the law. Not difficult. Not very difficult. Objectively impossible.(R.T. 17). The trial court deferred ruling on whether the defense of impossibility would be allowed, giving the defense an opportunity to make a record outside the presence of the jury regarding the evidence of impossibility the defense proposed to present (R.T. 44-45, 56-57).
Once the trial had begun, and before any witnesses were called to testify, the defense proffered its evidence related to the impossibility defense (R.T. 127). Outside the presence of the jury, the trial court ruled:
Although the actual proffer is not a part of the record, it appears that at least portions of the proffer are attached as Exhibit B to Respondent's Lodgment 3b. The trial court summarized the defense proffer as follows:
Some handwritten notes dated November 30th, 2008, of someone who apparently was - and I'm just assuming it - came to the apartment house at 207 Oxford, took photographs, noticed various things such as a screen removed, a stay out sign on a particular unit, 406. Various observed situations, most of them or many of them are screen removal, door locks being removed.(R.T. 129-30).
And then a declaration from an on-site manager, Christine DePauw, dated October 10 summarizing that they were not receiving cooperation from tenants as far as maintenance issues were concerned about a scheduled pest control service, that the tenants demanding that the extermination service be terminated. That was on October 9th. And it doesn't appear that there's any other date or incident that is referred to in the declaration, but that's on a quick reading.
A declaration of Joshua Harvey and Adam Brubaker, who were general contractors who went one day, November 7, to apartment number four telling the tenant that they wanted to make repairs. She would not allow any maintenance personnel inside and telling them that - that is, Mr. Harvey and Mr. Brubaker - that she was -the lawyer told her not to let the repair people in, and that she would only wait - she would only allow the City to come in and fix her apartment.
And I'm summarizing, obviously, the declaration of Mr. Harvey and Mr. Luis going on a second day, November 10th, 2008, to an apartment because they were informed that the gas was not working. And they tried to coordinate with the gas company. There was some allegation that there was potential tampering and the effect it had on the hot water and the fact that they reset the automatic pilot light.
As I think I indicated to all sides very early on, Ms. Hujazi is going to have a right to put on a defense, if she chooses. She will have the right to confront the witnesses that the People call. The only issue is whether or not she has the right to show that another committed the violation.(R.T. 128). The trial court noted that Petitioner provided no evidence that she took any action to remove the tenants or to bring suit against the tenants as part of her efforts to bring the property in compliance (R.T. 130; see also R.T. 173 (court explaining, "[A]11 . . . the proffer seems to indicate is that there were some uncooperative tenants in the period from October 27th to November 1st and then also on November 3 0th, but that there was absolutely no indication of what the defendant did either in the way of trying to evict uncooperative tenants or bring money damage suits. And I'm not saying that even had she done . . . that, that it would constitute substantial evidence of impossibility, but there isn't any."); R.T. 178-79 (trial court again explaining the deficiency in the defense proffer)).
I've already ruled that, under the Bachrach case, it's this court's view that such evidence is irrelevant. . . . But at least based upon what I have read, I don't see how, under any circumstances, the proffered evidence. . . would rise to legal impossibility. . .
At the close of trial, the trial court denied Petitioner's proposed jury instructions in light of its earlier rulings on strict liability and the defense of impossibility. See R.T. 298.
B. State Court Post-Conviction Proceedings
On direct appeal, Petitioner challenged the trial court's determination that the offenses were strict liability offenses. See Respondent's Lodgment 4, pp. 1-12; Respondent's Lodgment 6, pp. 1-3. The Los Angeles County Superior Court Appellate Division rejected the appeal, finding that the trial court committed no error in concluding that the offenses were strict liability offenses under California law (Respondent's Lodgment 7, pp. 3-5).
In a collateral petition to the California Supreme Court, Petitioner argued, inter alia, "Petitioner was prohibited from putting on a defense." (Docket Entry 33 filed in Action No. CV 11-1555-ODW(E)). The California Supreme Court summarily denied this petition (Docket Entry 3 in present action).
C. Analysis
As previously stated, this Court may grant the Petition only if the state court adjudication (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"; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented to the state court. See 28 U.S.C. § 2254(d); see also Harrington v. Richter, 131 S. Ct. 770, 786 (2011). Thus, to the extent Petitioner may be claiming that the trial court rulings violated California law, Petitioner is not entitled to habeas relief. See Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010) ("it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts") (original emphasis); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (mere errors in the application of state law are not cognizable on federal habeas review). The Appellate Division held that the trial court did not err in determining that the charged crimes were strict liability crimes and in instructing the jury accordingly (Respondent's Lodgment 7, pp. 4-11). It is not for this Court to reexamine the state court's determination on this state law issue. See Waddincrton v. Sarausad, 555 U.S. 179, 192 n.5 (2009) ("we have repeatedly held that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions") (citation and internal quotations omitted); Bradshaw v. Richey, 546 U.S. 74, 76 (2005) ("a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus"); see also Holgerson v. Knowles, 309 F.3d 1200, 1202 (9th Cir. 2002), cert. denied, 538 U.S. 1005 (2003) (federal habeas court "bound by California's interpretation of its state law") (citation omitted); Garrison v. Trombley. 2009 WL 311102, at *9 (E.D. Mich. Feb. 9, 2009) (federal habeas court bound by state court's interpretation of state law as imposing "strict criminal liability").
To the extent Petitioner may claim that the trial court's rulings violated federal law, Petitioner also is not entitled to habeas relief. Petitioner has cited no clearly established United States Supreme Court decisional law, and this Court has found none, determining the per se unconstitutionality of strict liability offenses or the unconstitutionality of strict liability offenses like the ones here involved. To the contrary, in Morissette v. United States, 342 U.S. 246, 255 (1952) ("Morissette"), the Supreme Court recognized that strict liability often is imposed for "public welfare offenses," i.e., offenses that are "in nature of neglect where the law requires care, or inaction where it imposes a duty." Id. As the Ninth Circuit has explained:
The [Morissette] Court developed the exception for public welfare offense from the statutory presumption of mens rea because of hazards arising out of the Industrial Revolution, which created "dangers [that] have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare."Humanitarian Law Project v. U.S. Dept. of Justice. 352 F.3d 382, 402 n.14 (9th Cir. 2003), vacated on other grounds by, 393 F.3d 902 (9th Cir. 2004) (quoting Morissette, 342 U.S. at 254; emphasis added).
The fact that lawmakers have "sought to make such regulations more effective by invoking criminal sanctions to be applied by the familiar technique of criminal prosecutions and convictions" has not rendered these regulations unconstitutional. Morissette, 342 U.S. at 254-60 (discussing with approval state regulatory cases that have abandoned the "ingredient of intent," but conceding that no precise criteria have been set forth for distinguishing between crimes that require a "mental element" and crimes that do not); Staples v. United States, 511 U.S. 600, 607 n.3 (1994) ("[W]e have referred to public welfare offenses as 'dispensing with' or 'eliminating' a mens rea requirement or 'mental element' and have described them as strict liability crimes. While use of the term 'strict liability' is really a misnomer, we have interpreted statutes defining public welfare offenses to eliminate the requirement of mens rea; that is, the requirement of a 'guilty mind' with respect to an element of the crime. Under such statutes we have not required that the defendant know the facts that make his conduct fit the definition of the offense.") (citing, inter alia, Morissette, 342 U.S. at 250, 263); see also United States v. Dotterweich, 320 U.S. 277, 280-81 (1943) (such legislation acts "in the interest of the larger good [by putting] the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger"); United States v. Hanousek, 176 F.3d 1116, 1121 (9th Cir. 1999), cert. denied, 528 U.S. 1102 (2000) ("It is well established that a public welfare statute may subject a person to criminal liability for his or her ordinary negligence without violating due process.") (citations omitted); People v. Vurckio, 162 Misc. 2d 876, 880, 619 N.Y.S. 2d 510, 512 (N.Y. City Crim. Ct. 1994) ("Since the turn of the [20th] century, state courts have discontinued inquiry into 'intent' in a limited class of offenses, such as labor law and building code violations.").
Petitioner argues that the Supreme Court has "severely narrowed" Morissette, citing Smith v. California, 361 U.S. 147 (1959) ("Smith") and Carella v. California, 491 U.S. 263 (1989) ("Carella") (Petition, Ground One; Reply, p. 3). Petitioner's argument is unpersuasive. In Smith, the Supreme Court struck down as unconstitutional a Los Angeles Municipal Code provision imposing strict liability on a bookseller possessing obscene material, finding that the ordinance's failure to require any knowledge on the part of the bookseller would impose a "severe limitation" on the public's access to constitutionally-protected expression. Smith, 361 U.S. at 153-55. Smith did not undermine the rationale of Morissette that strict liability is permissible for public welfare offenses that concern public health, safety or welfare without implicating freedom of expression. See Smith, 361 U.S. at 153 (contrasting the unconstitutional booksellers ordinance with food and drug legislation which involves a public interest "so great" as to "warrant the imposition of the highest standard of care on distributors").
The Carella decision is even more inapposite than Smith. In Carella, the Supreme Court found unconstitutional "mandatory" jury instructions that "directly foreclosed independent jury consideration of whether the facts proved established certain elements of the [charged] offenses." Carella, 491 U.S. at 266. The instructions provided that intent to commit theft by fraud is presumed in certain circumstances, when such intent was a specific element of the charged crime. Id. at 264. Here, unlike in Carella, the trial court found that intent was not an element of the charged offenses. Carella does not invalidate strict liability offenses or otherwise undermine Morissette.
There is no clearly established Supreme Court law defining the precise criteria courts should employ in determining which crimes constitutionally require a mental element and which crimes do not. See Morissette, 342 U.S. at 260; see also Powell v. State of Texas, 392 U.S. 514, 535 (1968) ("this Court has never articulated a general constitutional doctrine of mens rea"). Because of this lack of clarity, and the case law permitting strict liability under similar public welfare regulations, the state courts were not unreasonable in rejecting Petitioner's constitutional claims. Thus, habeas relief is unavailable. See 28 U.S.C. § 2254(d); Feliciano v. McNeil, 2009 WL 1971635, at *15 (N.D. Fla. July 6, 2009) ("Given the lack of clearly established Supreme Court precedent on the criteria for determining when criminal intent is required and when it is not, this court cannot say that the state court's denial of relief on this claim is contrary to clearly established federal law"; habeas relief denied to petitioner who had been convicted of statutory rape without fault and sentenced to more than seven years in prison); see also Tart v. Commonwealth of Massachusetts, 949 F.2d 490, 503 (1st Cir. 1991) (rejecting constitutional challenge to criminal statute imposing strict liability for landing raw fish without a commercial fishing permit).
Buttressing this conclusion are Supreme Court pronouncements underscoring the importance to the public welfare of code provisions such as those involved in the present case. In Morissette, the Supreme Court noted that " [c]ongestion in cities and crowding of quarters called for health and welfare regulations undreamed of in simpler times." Morissette, 342 U.S. at 254. In Frank v. State of Md.. 359 U.S. 360, 371-72 (1959) (overruled on other grounds by Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523 (1967)), which upheld warrantless inspections of dwellings for enforcement of city health codes, the Supreme Court stated:
The need to maintain basic, minimal standards of housing, to prevent the spread of disease and of that pervasive breakdown in the fiber of a people which is produced by slums and the absence of the barest essentials of civilized living, has mounted to a major concern of American government. The growth of cities, the crowding of populations, the increased awareness of the responsibility of the state for the living conditions of its citizens, all have combined to create problems of the enforcement of minimum standards. . . . Time and experience have forcefully taught that the power to inspect dwelling places. . . is of indispensable importance to the maintenance of community health. . . .
Petitioner's assertion that trial court rulings deprived her of the right to present a defense is similarly unavailing. "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." Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (citations and internal quotations omitted); Chambers v. Mississippi, 410 U.S. 284, 302 (1973) ("Chambers"); Chia v. Cambra. 360 F.3d 997, 1003 (9th Cir. 2004), cert, denied, 544 U.S. 919 (2005) ("The Supreme Court has made it clear that the erroneous exclusion of critical, corroborative defense evidence may violate both the Fifth Amendment due process right to a fair trial and the Sixth Amendment right to present a defense.") (citations and internal quotations omitted). However, "Chambers . . . does not stand for the proposition that the defendant is denied a fair opportunity to defend himself whenever a state . . . rule excludes favorable evidence." United States v. Sheffer, 523 U.S. 303, 316 (1998).
"While the Constitution . . . prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury." Holmes v. South Carolina. 547 U.S. at 320 (citations omitted); see also Moses v. Payne, 555 F.3d 742, 758 (9th Cir. 2009). Thus, "the Constitution permits judges to exclude evidence that is repetitive . . . , only marginally relevant or poses an undue risk of harassment, prejudice or confusion of the issues." Holmes v. South Carolina, 547 U.S. at 326-27 (citations, internal brackets and quotations omitted).
Petitioner relied on dictum in Park, 421 U.S. at 676-77, to argue that her alleged impossibility evidence was relevant to a viable defense. See R.T. 14; Respondent's Lodgment 3b, p. 5. In Park, the Supreme Court held that the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 301(k), imposed on corporate agents not only the duty to seek out and remedy violations, but also the duty to implement measures to ensure that violations will not occur. Park, 421 U.S. at 673-74. The Court observed that a requested instruction on "objective impossibility" or lack of "power or capacity" should be given if a defendant first presents sufficient evidence to put such a defense at issue. See United States v. Y. Hata & Company, Ltd., 535 F.2d 508, 510-11 (9th Cir. 1976), cert, denied. 429 U.S. 828 (1976) ("Hata") (discussing same).
While Park suggests that responsible corporate agents may raise a defense of powerlessness to prevent or correct a violation, (citing United States v. Weisenfeld Warehouse Co., 376 U.S. 86, 91 (1964)), Park makes clear that there must be sufficient supporting evidence to do so. Park, 421 U.S. at 673, 677. What is required is more than merely a showing that the responsible party did not cause a violation or that some efforts to remedy a violation were frustrated. See United States v. Starr, 535 F.2d 512, 515 (9th Cir. 1976) (allegations that food violations were due to "natural phenomenon" of vermin fleeing a nearby plowed field to contaminate a warehouse, and subsequent sabotage of corrective efforts by a third party, did not negate the warehouser's duty of "foresight and diligence" to support an objective impossibility defense); Hata, 535 F.2d at 511 (assuming, arguendo, that Park impossibility defense is available to an individual, allegations that repair attempts were unsuccessful would not support impossibility defense).
In the present case, regardless of whether the tenants originally-caused the violations or frustrated some of Petitioner's alleged efforts to remedy the violations, Petitioner's offer of proof fell far short of a sufficient showing that it had been impossible for Petitioner to correct the violations. Petitioner stipulated that she was the owner, manager or person in control of the property (R.T. 316). In this capacity, Petitioner was responsible for maintenance of the properties and for remedying the identified violations. "The accused, if [s]he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed [her] responsibilities." Morissette, 342 U.S. at 256. While Petitioner may have claimed that she was "powerless" to prevent or correct the violations, the trial court reasonably concluded that Petitioner's offer of proof was inadequate to support such a claim. This Court agrees that Petitioner's offer of proof fell far short of the required showing of objective impossibility. For the same reason, the exclusion of Petitioner's scant proffered evidence relevant to a purported objective impossibility defense had no "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson. 507 U.S. 619, 637-38 (1993) (federal habeas relief unavailable for trial-type errors that are not of "substantial and injurious effect"); see Fry v. Pliler, 551 U.S. 112 (2007) (Brecht standard applies to federal habeas review of Chambers errors).
In her Reply, Petitioner argues for the first time that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963) ("Brady") by allegedly suppressing evidence that Petitioner purportedly had been targeted by a law firm specializing in tenant rights (Reply, pp. 1-2). Under Brady, the suppression by the prosecution of evidence favorable to an accused violates due process "where the evidence is material either to guilt or to punishment. ..." Id. at 87. Suppressed evidence is material under Brady if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Kyles v. Whitley, 514 U.S. 419, 433 (1995).
Given the strict liability nature of the subject offenses, as discussed above, there plainly exists no reasonable probability that introduction of the allegedly suppressed evidence would have altered the result of Petitioner's trial. Whether the defense theory should be characterized as "impossibility," "obstruction," or something else, the result of the trial doubtlessly would have remained the same even if the alleged suppression of evidence had not taken place. The obvious lack of merit of Petitioner's belated Brady claim obviates any need to analyze whether the claim is exhausted or unexhausted. See Cassett v. Stewart. 406 F.3d 614, 62324 (9th Cir. 2005), cert, denied. 546 U.S. 1172 (2006) (habeas court may deny on the merits unexhausted claim that is not "colorable").
RECOMMENDATION
For the all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.
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CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.
Petitioner's citations of United States v. Park, 421 U.S. 658 (1975) ("Park") and Staples v. United States, 511 U.S. 600 (1994) do not alter the Court's conclusion. Petitioner suggests that these cases clearly establish that whether a crime requires a mental element depends on whether the harm sought to be prevented is imminent or inherent (in which case no mental element would apply), or merely a possibility (in which case a mental element would apply). See Reply, pp. 4-5. The cited cases establish no such principle. The Park case, discussed further infra, concerned whether the manager of a corporation and the corporation itself could be held strictly liable for Federal Food, Drug and Cosmetic Act violations. The Park Court stated that the regulations at issue dispensed with the conventional requirement for awareness of some wrongdoing because the regulations "touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection." See Park, 421 U.S. at 668 (quoting United States v. Dotterweich, 320 U.S. at 280) . The Park Court said nothing about imminence or inherence of harm being a touchstone with respect to the absence or presence of a mental element requirement. In Staples v. United States, the Supreme Court expressly declined to establish any rule regarding when crimes may or must require a mental element. See Staples v. United States, 511 U.S. at 619-20 ("As we noted in Morissette: 'Neither this Court nor, so far as we are aware, any other has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not.' We attempt no definition here, either.") (internal citation omitted).