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Mark v. Castro

United States District Court, N.D. California
Sep 23, 2003
No. C 00-1260 WHA(PR) (N.D. Cal. Sep. 23, 2003)

Opinion

No. C 00-1260 WHA(PR)

September 23, 2003


JUDGMENT


The court having today denied petitioner's habeas petition, judgment is entered in favor of respondent. Petitioner shall obtain no relief by way of his petition.

IT IS SO ORDERED.

DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS

This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. § 2254. Respondent has filed an answer to the Court's order to show cause and a memorandum of points and authorities in support of it, and has lodged exhibits with the court. Petitioner has responded with a traverse. The matter is submitted.

STATEMENT

Petitioner was caught shoplifting a jacket worth $250, and was charged, among other things, with one count of petty theft with a prior conviction, Cal. Pen. Code § 666. The information also charged that he had eleven prior felony convictions, seven theft convictions and had served eight prior prison terms within the meaning of Cal. Pen. Code § 667.5(b).

When the prosecutor asked during voir dire if anyone was reluctant to be a juror, a potential juror said, "I do have some concern. You raised an issue about a-flashlight or a pack of gum. There's been enough articles on the third strike. If this ended up being a third strike, and it was a pack of gum, and you proved it, and we said guilty, and I found out afterwards it was a third strike, I would be upset" (Tr. 171). After an unreported sidebar, the trial judge said, "I will advise you, ladies and gentlemen, this is not a strike case, whether second or third, or first for that matter. It's just not a strike case" (Tr. 25-26).

After the jury was dismissed for the day, the court heard argument on its above response that this was not a Three Strikes case, and concluded that even if had erred by telling the prospective jurors this, any such error was harmless (Tr. 99-104). At the close of trial, the court did not refer in any way to the Three Strikes law in its jury instructions, but asked the jury to weigh the evidence, apply the law and reach a just verdict regardless of the consequences (Tr. 214-215).

The jury found petitioner to be guilty of the current theft. The court had a bench trial on the prior prison term allegations, and found that petitioner had served seven prior prison terms. The court then sentenced petitioner to the middle term of two years for the current theft, and added four one-year enhancements for each of the four most recent prison terms.

Petitioner appealed the judgment, alleging among other things that the trial court violated due process by misinforming the jury about possible sentencing consequences. The California Court of Appeal affirmed the conviction, stating that any possible error created by the judge's response was harmless, although it did not explicitly address the constitutional question. The California Supreme Court denied his petition for review.

As grounds for habeas relief petitioner asserts that his due process rights were violated because the judge's response misled the jury into the mistaken belief that his prior convictions would not enhance his sentence for the current theft. The misleading was material, says petitioner, because it reinforced the prosecutor's "recurring voir dire theme" that this trial was not important", leaving the jury with a significantly "diminished sense of responsibility" for its duty to decide petitioner's guilt (Petn. 5). Petitioner acknowledges that his sentence was enhanced not under the Three Strikes provision, Cal. Pen. Code § 667(b)-(i), but under Cal. Pen. Code § 667.5(b) instead.

DISCUSSION

A. Standard of review

The petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), so the provisions of that act apply to it. See Lindh v. Murphy, 521 U.S. 320, 327 (1997). Under the AEDPA a district court may not grant a habeas petition on a claim that was reviewed on the merits in state court unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" or was based on "an unreasonable determination of the facts in light of the evidence." 28 U.S.C. § 2254(d).

A state court decision is an "unreasonable application of Supreme Court authority if it unreasonably applies the correct governing legal principle to the facts of the prisoner's case. Williams (Terry) v. Taylor, 529 U.S. 362, 413 (2001). The federal court on habeas review may not issue the writ "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the application must be "objectively unreasonable" to support granting the writ. Id. at 409.

B. Issues Presented

The sole issue presented by petitioner is whether the trial court judge's informing prospective jurors that this was not a Three Strikes case violated due process.

Firstly, there is no reason to believe that the judge's remark misled jurors in any way. Petitioner admits that the judge's response was technically correct: his sentence was not in fact enhanced under the Three Strikes provision. The judge's response was also not necessarily misleading, because petitioner's actual sentence enhancement was very different from that under Three Strikes. Three Strikes imposes a term of imprisonment for 25 years to life for a third conviction. Petitioner was not in danger of receiving a sentence of 25 years to life over a pack of gum, as the potential juror asked. Instead, petitioner received six years for the theft of a item worth $250. It was not petitioner's third conviction, but his twelfth. And the enhancements petitioner received were in gradual increments of one year apiece for each prior prison term, instead of a quantum leap of 25 years to life. There is no reason to believe that a juror concerned over the possibility of a 25 year sentence over a pack of gum would feel the same concerns over petitioner's sentence.

Moreover, the Supreme Court has offered some guidance on how jury instruction may affect due process. A petitioner must show that the ailing instruction by itself so infected the entire trial that the resulting conviction violated due process. See Estelle v. McGuire, 502 U.S. 62, 72 (1991). A jury 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. Ibid. 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. United States v. Frady, 456 U.S. 152, 169 (1982) (citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977)). In the face of clear and formal jury instructions to reach a just decision, and not consider punishment, the judge's single comment that petitioner's case did not involve Three Strikes did not diminish the jury's sense of responsibility.

The jury was formally instructed not to discuss or consider the subject of "penalty or punishment" (CT. 233). The Court must presume that the jury followed the court's jury instructions. Richardson v. Marsh, 481 U.S. 200, 206 (1987). It is implausible to suppose that the judge's response could have compelled the jury to disregard the clear jury instructions. See, e.g., Mayfield v. Woodford, 270 F.3d 915, 922-24 (9th Circ. 2001) (no error where court allowed the jury to consider "such guilt phase instructions as it found applicable" because when viewed as a whole the instructions required the jurors to consider all relevant mitigating evidence for the penalty phase). Moreover, since the judge's comment was in response to a prospective juror's asking whether this was a Three Strikes case, he was sending the jury a message that these considerations should not affect its decision, a message which reinforced the jury instructions rather than detracting from them.

Petitioner cites Shannon v. United States as support of his assertion that the judge's response violated due process. 512 U.S. 573, 586 (1994) (general federal practice does not require that a jury be instructed on the sentencing consequences of a verdict of not guilty by reason of insanity). "It is well established that when a jury has no sentencing function, it should be admonished to reach its verdict without regard to what sentence might be imposed . . . providing jurors sentencing information invites them to ponder matters that are not within their province, distracts them from their factfinding responsibilities, and creates a strong possibility of confusion." Ibid. Shannon, however, recognized that some form of jury instruction regarding sentencing consequences may be necessary under certain limited circumstances, for instance, when such information was necessary to remedy a misstatement or error. Id. at 587. This is exactly the situation here. A potential juror was under the impression that this could be a Three Strikes case, and the judge's response was necessary to correct that misunderstanding.

In conclusion, petitioner's due process rights were not violated by the judge's response that this was not a Three Strikes case. Accordingly, the state courts' rejection of the claim was not contrary to, or an unreasonable application of, clearly established Supreme Court authority.

CONCLUSION

The petition for a writ of habeas corpus is DENIED. The clerk shall close the file.

IT IS SO ORDERED.


Summaries of

Mark v. Castro

United States District Court, N.D. California
Sep 23, 2003
No. C 00-1260 WHA(PR) (N.D. Cal. Sep. 23, 2003)
Case details for

Mark v. Castro

Case Details

Full title:DALE L. MARK, Petitioner vs. ROY CASTRO, Warden, Respondent

Court:United States District Court, N.D. California

Date published: Sep 23, 2003

Citations

No. C 00-1260 WHA(PR) (N.D. Cal. Sep. 23, 2003)