REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable S. James Otero, 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 October 25, 2013. Respondent filed an Answer on December 23, 2013. Petitioner filed a Reply on February 12,
BACKGROUND
An Information charged Petitioner with: (1) the murder of Brian Vasquez in violation of California Penal Code section 187(a) (Count 1); (2) gross vehicular manslaughter while intoxicated in violation of California Penal Code section 191.5(a) (Count 2); (3) driving under the influence and causing bodily injury to another person in violation of California Penal Code section 23153(a), a lesser included offense of the offense charged in Count 2 (Count 3); (4) driving with a blood alcohol content of .08 percent or more and causing bodily injury to another person in violation of California Penal Codes section 23153(b), a lesser included offense of the offense charged in Count 2 (Count 4); and (5) misdemeanor driving without a license in violation of California Vehicle Code section 12500(a) (Count 5) (Clerk's Transcript ["C.T."] 86-88). The Information further alleged that in the commission of the section 23153(b) violation Petitioner personally inflicted great bodily injury on Vasquez (C.T. 87).
After a trial at which Petitioner did not testify, a jury found Petitioner guilty of gross vehicular manslaughter (Count 2) (Reporter's Transcript ["R.T."] 814; C.T. 416). The jury deadlocked on the second-degree murder charge (Count 1), and the court declared a mistrial as to that count (R.T. 811-14; C.T. 415-17).1 Petitioner testified at his second trial, at which the court granted a prosecution motion to dismiss Counts 3 and 4 (R.T. 828; C.T. 453-54). The jury at the second trial found Petitioner guilty of second-degree murder (Count 1) (R.T. 1796-87; C.T. 551, 563). Petitioner received a sentence of fifteen years to life (R.T. 1818-19; C.T. 572-73, 597-98).
The Court of Appeal corrected an error in the sentencing minute order and the abstract of judgment with respect to mandatory fees, but otherwise affirmed the judgment (Respondent's Lodgment 6; see People v. Osborn [sic], 2013 WL 956930 (Cal. App. Mar. 13, 2013)). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 8).
SUMMARY OF TRIAL EVIDENCE
The following summary of the evidence at the second trial is taken from the opinion of the California Court of Appeal in People v. Osborn, 2013 WL 956930 (Cal. App. Mar. 13, 2013). See Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012), cert. denied, 133 S.Ct. 2766 (2013) (presuming correct statement of facts drawn from state court decision); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).
On December 8, 2009, defendant visited Brandy Reid at her home in Perris at about 7:00 p.m. with his coworker Kenny Crellin. Defendant asked Reid to go with him to a bar in Lake Elsinore, but she refused. Defendant told Reid he had drunk two "40s," meaning two 40-ounce bottles of beer, just before going to her house. Defendant, Crellin, and Reid's brother, Brian Vasquez, went to the bar with defendant driving them in his mother's pickup truck.
Security videos from the bar, played for the jury, showed the three men enter at 8:26 p.m., buy a pitcher of beer, and leave at 8:52 p.m. Defendant said he drank two or three glasses of beer at the bar.
The three men left for defendant's neighborhood in Menifee and stopped on the way to buy a 12-pack of beer. At about 9:30 p.m., they arrived at a house where Crispin Zabala and two other men lived, a few houses away from defendant's home. Defendant said he drank five beers while at the house.
Zabala started arguing with defendant about bringing Vasquez into the house because Zabala did not know Vasquez. Defendant had had a fight with Zabala a few days before, and Zabala thought defendant brought Vasquez to assist in beating Zabala up. Zabala called Vasquez names and badgered him, then suggested they "take it outside." The men went outside, and Zabala continued to accuse Vasquez of coming to the house to cause problems. At first, Vasquez remained calm, but eventually he started yelling back. Defendant said he did not see Zabala and Vasquez fight, and he did not see Zabala stab Vasquez, but defendant was hit hard on the back of the head and had a temporary blackout. When he "came to," he did not see Vasquez; Crellin said Vasquez had left on Crellin's bicycle.
Shortly after 10:00 p.m., Richard Kunath, who lived in Menifee, heard a man (later identified as Vasquez), screaming loudly and using profanity in his neighborhood. The yelling also awakened Kunath's next-door neighbor, Sandra Buchanan. Kunath and Buchanan saw Vasquez standing near another neighbor's house, yelling and beating on the side of the house. Vasquez crumpled to the ground, and Kunath and Buchanan believed he was drunk. A DVD from the security camera on Buchanan's house was played for the jury.
Kunath and Buchanan saw a pickup drive down the street with its lights off and saw a man, later identified as Crellin, running along outside the pickup. Someone said, "There he is," or "He's over here," and the pickup stopped in front of the house where the man was slumped over. Crellin and the driver of the pickup, later identified as defendant, shook Vasquez and tried to get him to stand, but Vasquez kept collapsing. Defendant and Crellin picked him up, but dropped him to the ground so they could open the tailgate of the pickup. They then picked him up again and threw him into the bed of the pickup, making a thud. Vasquez did not move or make a sound. Someone yelled, "Get the fuck out of here." Defendant got into the pickup and "peeled out," very fast, while Crellin left on foot. The pickup went through a dip in the road, and Vasquez's body bounced up and thudded down. Defendant made a fast and erratic left turn. Buchanan and Kunath thought defendant was picking up a drunk friend and taking him home, so they did not then call the police. The next morning, they found a trail of blood along the street to where the man had been pounding on the neighbor's house. They also found a wallet with Vasquez's identification, and they called the police.
Between 11:00 and 11:30 that night, defendant walked into a market at the corner of Highway 74 and Menifee Road. The clothing on the right side of his body was covered with blood spatter, and he appeared sweaty. He said he needed to use the telephone, but when the clerk gave it to him, he just looked at it and then asked the clerk to call for help. He said he had been driving a dead body to the hospital and had gotten into a collision. The clerk called 911. Defendant told the clerk his fiancée's2 brother had called, saying he had been stabbed and needed to go to the hospital. Defendant had picked up the brother and had been in an accident when checking on the brother while he was driving. He said when he came to after the accident, the body was gone. The clerk relayed the conversation to the 911 dispatch operator. The clerk believed defendant had been drinking because his eyes were red and glossy and he smelled of alcohol, although his speech was not slurred. He seemed like he was in shock and showed no emotion.
Sheriff's Deputy Terrell Young arrived at the market at about 11:50 p.m. Defendant showed signs of intoxication, including red eyes, slurred speech, and an unsteady gait, and he had urinated on himself. He was coherent, however, and he told the deputy he had been in a collision. Investigator Angel Gasparini arrived at the market after 1:00 a.m. the next morning, and he observed the same signs of intoxication. Defendant failed a horizontal gaze nystagmus test for intoxication. Defendant's blood was drawn at 2:41 a.m., and his blood alcohol content was then 0.19 percent. A forensic toxicologist testified it would have been 0.24 percent at 11:00 p.m.
Officers located the accident scene about a mile down Highway 74 from the market. At that spot, Ethanac Road bends to the south and becomes Matthews Road, and Highway 74 comes south and bends to the east. The two roads are adjacent at the arc of each curve. Ethanac is about six feet higher than Highway 74, and there is an 18-inch high guardrail on Highway 74. The speed limit on both roads is 45 miles per hour.
Physical evidence showed defendant had been driving east on Ethanac, but failed to negotiate the curve and instead continued straight, crossing from the eastbound lane across the westbound lane and striking the guardrail on the northwest edge of Ethanac. The impact caused the pickup to go airborne and clear the guardrail. Metal was torn off the pickup and embedded in the guardrail, and the force of the impact tore the metal of the pickup's front passenger wheel assembly so the hub and tire fell off a few hundred feet down Highway 74. After the pickup landed on Highway 74, it continued about 900 feet east down the roadway, crossing from the outside lane to the inner lane. The bare metal where the wheel and hub had been torn off gouged the concrete of the highway. The three remaining tires blew out, and all fluids drained from the pickup.
Vasquez was ejected from the pickup. He flew about 200 feet from the second point of impact and then struck a post of the guardrail and landed on Highway 74. The impact caused an internal decapitation; his spinal column was fractured, and his spinal cord was cut both at the base of the neck and lower on his back. Eleven of his ribs were broken, his intestines were extensively bruised, he had cuts to his right kidney, his aorta was severed, and a large portion of his right shoulder was missing. The cause of death was major trauma, including the internal decapitation, brain hemorrhaging, and transected aorta. His heart had been beating at the time of the collision. Vasquez had two stab wounds on his chest; however, the impact injuries made it impossible to determine which injuries to the liver and lungs had been caused by the stabbing versus the impact. With immediate medical treatment, the stab wounds were potentially survivable.
Blood in the bed of the pickup indicated he had been in the bed, not the cab, before the collision. A blood smear on the pillar of the passenger side appeared to have been from someone reaching into the pickup from the outside, not from someone seated inside.
An accident reconstruction expert stated his opinion that the pickup had been traveling at more than 70 or 80 miles per hour to achieve the force of impact necessary to cause the damage. There were no tire friction marks on the road, indicating the driver had not braked or tried to make a sharp turn to avoid the guardrail. A video from a nearby business recorded the end portion of the accident and was played for the jury.
In 2002, the car defendant was driving hit a parked car and pushed it into the yard of a residence in Washington State; both cars were severely damaged. Defendant was intoxicated. The arresting officer talked to him about the seriousness of drinking and driving and the danger that someone could be killed. Defendant responded he knew that and should have known better.
Defendant testified in his own behalf. He admitted he had entered a plea of guilty to driving under the influence of alcohol in Washington in 2002 and that he had gone to a victim impact panel (described by Paul Ossorio below). However, defendant never attended the court-ordered eight-hour alcohol education class. His sister had been killed by a driver under the influence of alcohol, and his friend killed herself in a collision when she was driving under the influence of alcohol.
Defendant testified that after the fight at the Zabala house, he got in his pickup to look for Vasquez; Crellin found Vasquez on the ground, apparently unconscious. They put him in the bed of the pickup because defendant thought he might vomit from drinking, and the cold air might sober him up. Defendant did not know Vasquez had been stabbed, and he did not notice wounds or blood when he picked Vasquez up. He wanted to get out of the area to get away from the fight so he drove past his mother's house and past open businesses to Ethanac Road. Just before he reached Ethanac Road, Vasquez knocked on the rear window and said he was cold. Defendant stopped and helped Vasquez get into the passenger side. Defendant still did not know Vasquez had been hurt; Vasquez walked to the passenger side and climbed into the cab on his own.
Just before they reached the intersection of Murrieta and Ethanac, Vasquez said he had been stabbed and pointed to his stomach. Defendant saw an open wound and a lot of blood, and he decided to take Vasquez to a hospital as quickly as he could. He did not feel "buzzed," and it did not occur to him that he would crash or that anyone could get killed. Just before he reached the curve on Ethanac, he looked over and saw that Vasquez's eyes were rolled back and his mouth was open. Defendant thought Vasquez was dying, and he took his eyes off the road while driving to hit Vasquez on the chest to revive him. He then heard a loud boom. The crash was a blur, and he thought he had a flat tire.
He did not look over at Vasquez, but drove to the side of the road, got out, and walked around the pickup and saw that all his tires were flat; he did not notice the front wheel was missing. He then looked in the cab and saw that Vasquez was gone. He walked around for several minutes looking for Vasquez, drank a beer to calm himself down, and then walked to the market on Highway 74 to call for help.
He knew it was dangerous to drink and drive, but he was not thinking about it when he drove Vasquez away. He had not planned to drive after leaving the Zabala house because he lived only a few houses away.
(Respondent's Lodgment 6, pp. 3-10; see People v. Osborn, 2013 WL 956930, at *1-4) (footnote renumbered).
PETITIONER'S CONTENTIONS
Petitioner contends:
1. Evidence of the emotional effect of the death of a witness' family member in an unrelated drunk-driving incident allegedly violated Petitioner's right to a fair trial (Ground One);
2. The prosecutor allegedly committed misconduct in closing argument by assertedly appealing to the passion and prejudice of the jury (Ground Two);
3. Petitioner's trial counsel allegedly rendered ineffective assistance by failing to object to the claimed prosecutorial misconduct (Ground Three);
4. The admission of a photograph of the victim while alive allegedly violated Petitioner's right to a fair trial (Ground Four);
5. The trial court allegedly violated Petitioner's rights to confront witnesses and to present evidence by limiting the cross-examination of a prosecution expert witness (Ground Five); and
6. Cumulative error allegedly denied Petitioner a fair trial (Ground Six).
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).
"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 on the merits. Greene v. Fisher, 132 S.Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (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, 537 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). "Under § 2254(d), 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. 770, 786 (2011). This is "the only question that matters under § 2254(d)(1)." Id. (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."). "AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burt v. Titlow, 134 S.Ct. 10, 16 (2013).
In applying these standards, the Court looks to the last reasoned state court decision, here the decision of the California Court of Appeal. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008).
Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
DISCUSSION
I. Petitioner's Challenges to the Admission of Evidence (Grounds One and Four) Do Not Merit Habeas Relief.
Petitioner challenges: (1) the admission of testimony concerning the emotional effect of the death of a witness' family member in an unrelated drunk driving incident (Ground 1); and (2) the admission of a photograph of Vasquez while alive (Ground Four). For several reasons, neither challenge merits habeas relief.
First, "`the admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process.'" Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (quoting Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir.), cert. denied, 516 U.S. 1017 (1995)); see also Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991) (proper analysis on federal habeas review is "whether the admission of the evidence so fatally infected the proceedings as to render them fundamentally unfair"). "The Supreme Court has made very few rulings regarding the admission of evidence as a violation of due process." Holley v. Yarborough, 568 F.3d at 1101. "Although the Court has been clear that a writ should issue when constitutional errors have rendered the trial fundamentally unfair [citation], it has not yet made a clear ruling that admission of irrelevant or overly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Id.; see also Spencer v. California, 512 Fed. App'x 682, 685 (9th Cir.), cert. denied, 134 S.Ct. 108 (2013). In the absence of such "clearly established Federal law," Petitioner is not entitled to habeas relief on his challenges to the admission of evidence. See 28 U.S.C. § 2254(d).
Second, and in any event, Petitioner's claims fail for the reasons discussed below.
A. Testimony Concerning the Emotional Effect of the Death of a Witness' Family Member in a Drunk Driving Incident
1. Background
At the second trial, the prosecution proceeded on a theory of second-degree, implied malice murder.3 "Second degree murder is the unlawful killing of a human being with malice aforethought, but without the additional elements that it be willful, deliberate and premeditated, which are required for first degree murder." People v. Superior Court (Costa), 183 Cal.App.4th 690, 697, 107 Cal.Rptr.3d 576 (2010) (citations omitted). "Malice may be implied when a person does an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows his conduct endangers the life of another and who acts with conscious disregard for life." People v. Watson, 30 Cal.3d 290, 300, 179 Cal.Rptr. 43, 637 P.2d 279 (1981) (citation, internal quotations and ellipses omitted). "One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others." Id. at 301 (citation and internal quotations omitted). "Implied malice is determined by examining the defendant's subjective mental state to see if he or she actually appreciated the risk of his actions." People v. Superior Court (Costa), 183 Cal. App. 4th at 697 (citations omitted).
After Petitioner suffered a conviction in 2002 for driving under the influence in the State of Washington, Petitioner attended a state-sponsored victim impact panel program (R.T. 1478).4 Panel member Paul Ossorio described the operation of the program, and also described the impact upon Ossorio and his family of his brother's killing by a drunk driver (R.T. 1434-50). As summarized by the Court of Appeal, Ossorio testified that he liked to begin the program by telling the attendees:
"they should feel encouraged that they are there" and they "shouldn't feel guilty and that they should be open-minded and that we aren't going to chastise them or be condescending, and we really do hope that they take the information that we provide them in the form of testimony and use it to create a better future for themselves and for our community. [¶] Because the things that I say to them, it obviously can't take away my pain or the fact that my brother's dead. But I do believe that by sharing it, they can make a better choice in the future, which, in turn, would make our community safer. [¶] I talk about how my brother was killed. He was struck — killed by a drunk driver on December 23rd, 1992. And the circumstances surrounding his death, they were . . . particularly tragic because he didn't die on impact. It took him over four and a half hours to die, and the injuries that he suffered, and I go — typically go into detail about that aspect. But he . . . suffered tremendously, and it was very painful for us. [¶] We were all able to get to the hospital. [Ossorio's brothers] . . . got there, and they were able to say `Goodbye' to him. And myself and my mom, we didn't make it in time. And so he died by the time we had gotten there. And this was December 23rd. So, you know, it was Christmas. [¶] And so, you know, the other things I talk about is the — how it's surreal, you know. Like Christmas now isn't like it is for other folks because we . . . tend to think of Christmas as our time that Todd died, and we — I talk about how we go visit him at his grave and just emphasize, you know, that really, that one person could have made a different choice. And if that person had chosen to do something different, then all the pain in my family's life and all the years would be gone from our . . . lives. And that's powerful. [¶] It's because . . . they are not there to see all of these moments that I talk about. They are not there to see us cry. They are not there to see us stand over his grave, but they certainly relate on the fact of family."
(Respondent's Lodgment 6, pp. 27-29; see People v. Osborn, 2013 WL 956930, at *4; R.T. 1444-46).
Petitioner contends this allegedly "irrelevant and inflammatory" testimony denied Petitioner a fair trial. The Court of Appeal rejected this contention, ruling that Petitioner's prior experiences, including his prior conviction and attendance at the mandatory educational program, were relevant to the issue of whether Petitioner had actual knowledge of the dangers of driving under the influence (Respondent's Lodgment 6, pp. 12-13; see People v. Osborn, 2013 WL 956930, at *5). The Court of Appeal concluded that Ossorio's testimony "was therefore highly probative on the issues of defendant's actual knowledge of the dangers to human life of drunk driving and his conscious disregard for human life" (Respondent's Lodgment 6, p. 13; see People v. Osborn, 2013 WL 956930, at *5).
2. Discussion
To the extent Petitioner alleges state law error, habeas relief is unavailable. The correctness of a state evidentiary ruling presenting only an issue of state law is not reviewable on federal habeas corpus. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
To the extent Petitioner advances a constitutional claim, for the following reasons admission of the challenged testimony did not render Petitioner's trial fundamentally unfair. See Jackson v. Brown, 513 F.3d 1057, 1082 (9th Cir. 2008) ("we cannot disturb the state trial court's admission of [evidence] on due process grounds in a habeas proceeding unless the admission . . . rendered the trial fundamentally unfair.") (citation and internal quotations omitted; original brackets and ellipses).
Under Ninth Circuit standards, the admission of evidence can violate due process "only when there are no permissible inferences the jury may draw from the evidence." Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir. 1998) (original emphasis; citation and internal quotations omitted). As the Court of Appeal ruled, evidence of a Petitioner's prior conviction for driving under the influence and attendance at a program concerning the dangers and effects of driving while intoxicated was relevant to show that Petitioner was subjectively aware of the dangers of driving while intoxicated. See People v. Murray, 225 Cal.App.3d 734, 744-45, 275 Cal.Rptr. 498 (1990) (defendant's participation in education programs on the dangers of drunk driving admissible to show his "awareness of the life-threatening risks of drunk driving"; People v. Brogna, 202 Cal.App.3d 700, 709, 248 Cal.Rptr. 761 (1988) (defendant's participation in an "alcohol education program which emphasized the dangers of driving while intoxicated is relevant to prove the [defendant's] awareness of the life threatening risks caused by his conduct"); see also People v. Ochoa, 6 Cal.4th 1199, 1025-26, 26 Cal.Rptr.2d 23, 864 P.2d 103 (1993) (in gross vehicular negligence case, evidence of defendant's attendance at traffic school relevant to show his actual awareness of risks of driving drunk).
Ossorio's testimony arguably exceeded the evidence strictly necessary to establish Petitioner's participation in the program and the program's bearing on Petitioner's understanding of the dangers of driving under the influence. Nevertheless, no material constitutional error occurred. The court instructed the jury not to let bias, sympathy, prejudice or public opinion influence its decision (R.T. 850; C.T. 555). The jury is presumed to have followed its instructions. See Weeks v. Angelone, 528 U.S. 225, 226 (2000).
Furthermore, the evidence that Petitioner drove under the influence with a subjective appreciation of the risk was so compelling as to vitiate any possible prejudicial impact of the challenged testimony. The defense did not deny that Petitioner drove the truck after having consumed a substantial amount of beer, or that Vasquez died from blunt force trauma suffered in the truck crash, or that driving under the influence was an act dangerous to human life (see R.T. 1749-52, 1765, 1767-68). The key issue was Petitioner's state of mind at the time of the incident, i.e. whether Petitioner acted with the requisite "conscious disregard" (see R.T. 1768 [this issue characterized as "critical" in closing argument by Petitioner's counsel]). Petitioner advanced a necessity defense, contending he acted out of a necessity to get Vasquez to a hospital (see R.T. 1770-71). Even so, Petitioner admitted that everyone knew it was dangerous to drink and drive, and that drinking and driving was illegal and could kill someone (R.T. 1604-05). Petitioner admitted that a drunk driver had killed Petitioner's sister and that one of Petitioner's friends had killed herself driving under the influence (R.T. 1673-74). Petitioner admitted that on the night of the incident he drove under the influence although he knew it to be dangerous and that someone could die as a result (R.T. 1677). Petitioner admitted that although he knew it was dangerous to do so he still "chose to drive" (R.T. 1674).5 In such circumstances, the challenged testimony did not render Petitioner's trial fundamentally unfair. For the same reasons, any error was harmless under the harmless error standard for federal habeas corpus cases set forth in Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) ("Brecht") (forbidding a grant of habeas relief for a trial-type error unless the error had a "substantial and injurious effect or influence" on the outcome of the case). Accordingly, Petitioner is not entitled to habeas relief on Ground One of the Petition.
B. Admission of Photograph of the Victim
Prior to both trials, Petitioner unsuccessfully moved to exclude a photograph of the victim taken before the incident (C.T. 178-80; 477-79). The prosecution introduced a photograph of the victim at both trials (R.T. 36-37, 947; C.T. 444, 488, 564). At the second trial, the trial court observed that a photograph of the victim smiling at the camera did "not make him unique in any way" (R.T. 826).
The Court of Appeal ruled that the trial court did not abuse its discretion in admitting the photograph because the photograph was relevant to identify the victim (see Respondent's Lodgment 6, p. 22; People v. Osborn, 2013 WL 956930, at *8).
To the extent Petitioner alleges state law error, Petitioner is not entitled to habeas relief. See Estelle v. McGuire, 502 U.S. at 67-68. In any event, admission of the photograph did not render either of Petitioner's trials fundamentally unfair. Nothing in the record suggests that the content of the photograph, a picture of the victim smiling at the camera, was likely to inflame the jury. The court instructed the jury at both trials not to let bias, sympathy, prejudice or public opinion influence its decision (R.T. 29-30, 850; C.T. 200, 555). As previously stated, the jury is presumed to have followed its instructions. See Weeks v. Angelone, 528 U.S. at 226.
Furthermore, the strength of the prosecution's case at both trials mitigated any possible prejudicial effect from admission of the photograph. As indicated above, at the first trial the jury found Petitioner guilty of gross vehicular manslaughter. In California, the elements of that offense are: "(1) driving a vehicle while intoxicated; (2) when so driving, committing some unlawful act, such as a Vehicle Code offense with gross negligence, or committing with gross negligence an ordinarily lawful act which might produce death; and (3) as a proximate result of the unlawful act or the negligent act, another person was killed." See People v. Wilson, 219 Cal.App.4th 500, 509, 162 Cal.Rptr.3d 43 (2013) (citation omitted); People v. Verlinde, 100 Cal.App.4th 1146, 1159, 123 Cal.Rptr.2d 322 (2002).
At the first trial, the evidence showed that at the time of the incident Petitioner was driving between 60 and 70 miles per hour, well over the speed limit of 45 miles per hour (R.T. 366, 407-08, 416-17). Toxicologist Maureen Black testified that approximately three hours after the crash Petitioner's blood alcohol level was .19%, and that Petitioner's blood alcohol level probably was .24% at the time of the incident, rendering Petitioner incapable of driving safely (R.T. 489, 491, 512). A forensic pathologist testified that the cause of death was blunt force trauma, not the stabbing (R.T. 606, 610). The jury heard a tape of Petitioner's recorded interview with a law enforcement officer three days after the incident in which Petitioner stated that: (1) Petitioner was traveling at "maybe 70 or 80" before the crash; (2) at the time Petitioner consented to give a blood sample he thought he was "going to come over the legal limit"; (3) Petitioner probably drank "at least a pitcher" of beer before the incident; (4) Petitioner knew that drinking and driving was illegal and said "you don't know who you could hit and hurt"; (5) a drunk driver hit Petitioner's sister, and one of Petitioner's friends had died after drinking and driving; and (6) Petitioner previously had served a probation term for driving under the influence in Washington State, and had attended alcohol education classes (R.T. 629; C.T. 308, 317-18, 320-22).6 The evidence overwhelmingly proved the elements of gross vehicular manslaughter.
Similarly, the strength of the evidence at the second trial mitigated any possible prejudicial influence of the victim's photograph on the second degree murder verdict. In these circumstances, the challenged evidence did not render Petitioner's trial fundamentally unfair. For the same reasons, any error was harmless under the Brecht harmless error standard. See Faith v. Clark, 2012 WL 2376327, at *20 (E.D. Cal. Jun 22, 2012) (admission of victim's photograph not prejudicial under Brecht in light of the strength of the evidence against the petitioner). Petitioner is not entitled to habeas relief on Ground Four of the Petition.
II. Petitioner's Claim of Prosecutorial Misconduct Does Not Merit Habeas Relief.
A. Background
Petitioner contends the prosecutor committed misconduct in closing argument "by appealing to the passion and prejudice of the jury," allegedly urging the jury to convict Petitioner "in order to send a message to the community and because of the danger the entire community faced from drunk drivers" (Pet., p. 8).7 Petitioner does not identify the particular statements challenged, but it appears Petitioner's claim concerns the same statements challenged on direct review (see Traverse, p. 1). The Court of Appeal described the challenged statements as follows:
The prosecutor began her argument in the second trial as follows: "We live in a culture, we live in a society where this type of behavior is not acceptable. It's wrong, It's wrong. [¶] The law is created in such a way so that we can live as a civilized society. Right? We have traffic laws . . . in order to save lives, to protect lives, and so that we can live and work and be around one another in a civilized manner. . . . We have these laws in effect to protect one another and to protect ourselves. ¶] . . . [¶] But we as a society trust the laws and we trust those regulations and hope that others will follow them as well. . . . [¶] That's why this case is so important. . . . And we as a culture, we as a community live and abide by these laws all day, every day. Whether you think about them consciously or subconsciously they are engrained in our minds."
She further argued: "As a society . . . we have decided that people who drink and drive are going to be culpable for . . . their conduct. Right? So if [Vasquez] would have, in fact, not have been in this state of distress that he would have been in and this man having his prior experience, having his prior knowledge, he still could potentially be charged with murder. And rightfully so as you look at the instructions, okay.
"And we want as a society for people to be held accountable for the things that they have done. And we want people to make the right choices. As we get behind our cars to drive home, as we get in the cars to drive to the grocery store, we can know and be reassured that someone else isn't just going to disregard what we've created as a community and take someone's life like that.
"Because driving a vehicle . . . and until maybe you've gotten into a collision, it's a very dangerous thing. And you may not realize it until you're actually struck and you realize wow, someone could get hurt very easily, very quickly.
"This case, ladies and gentlemen, isn't just about [defendant]. And I want to show you a quote, [`]Injustice anywhere is a threat to justice everywhere. Whatever affects one directly affects us all indirectly.[`]
"This is one of my favorite quotes as a prosecutor. And I think it's so relatable in this particular case. Because every day, each and every one of us, everyone in the community, can relate to the facts of this case when it deals with someone who's been drinking and driving. It happens to everyone. It's not only with one economic—socioeconomic group or individual. It doesn't affect only one race. It affects everybody all day, every day. And that's why you're here now. Right? To evaluate the case as it's been presented to you.
"And this case isn't just about [defendant]. This case is about seeking justice for [Vasquez] as well. And if you think about the things that were done to this man on that night and you think the way he was treated, you can appreciate the value of our laws. You can appreciate the values of our community and the regulations that we've created."
Finally, the prosecutor argued in rebuttal, "We as a community do not want people who are drunk driving other injured individuals to the hospital." Defense counsel did not object to the argument.
(Respondent's Lodgment 6, pp. 14-16 (original brackets); see People v. Osborn, 2013 WL 956930, at *7-8; R.T. 1722-23, 1739-40, 1782).
The Court of Appeal ruled that the prosecutor's statements did not constitute misconduct (Respondent's Lodgment 6, pp. 17-19; see People v. Osborn, 2013 WL 956930, at *7-8).
B. Discussion
To obtain federal habeas relief based on allegedly improper prosecutorial remarks, "it is not enough that the prosecutor's remarks were undesirable or even universally condemned." Darden v. Wainwright, 477 U.S. 168, 181 (1986) ("Darden") (internal quotations omitted). Prosecutorial misconduct merits habeas relief only where the misconduct "`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Id. (citation omitted); Bonin v. Calderon, 59 F.3d 815, 843 (9th Cir. 1995), cert. denied, 516 U.S. 1051 (1996) ("To constitute a due process violation, the prosecutorial misconduct must be so severe as to result in the denial of [the petitioner's] right to a fair trial."). The Court must consider the entire proceeding to determine whether the alleged misconduct rendered the trial so unfair as to violate due process. See Sechrest v. Ignacio, 549 F.3d 789, 807-08 (9th Cir. 2008), cert. denied, 558 U.S. 938 (2009).
"In fashioning closing arguments, prosecutors are allowed reasonably wide latitude and are free to argue reasonable inferences from the evidence." United States v. McChristian, 47 F.3d 1499, 1507 (9th Cir. 1995) (citation omitted). "The arguments of counsel are generally accorded less weight by the jury than the court's instructions and must be judged in the context of the entire argument and the instructions." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 898 (9th Cir. 1996) (citing Boyde v. California, 494 U.S. 370, 384-85 (1990)); see also Waddington v. Sarausad, 555 U.S. 179, 195 (2009).
In pre-AEDPA cases and federal criminal cases, the Ninth Circuit has held that prosecutors may not urge jurors to convict a criminal defendant in order to protect community values or send a message to the community. See United States v. Sanchez, 659 F.3d 1252, 1256 (9th Cir. 2011); United States v. Weatherspoon, 410 F.3d 1142, 1149 (9th Cir. 2005); Allen v. Woodford, 395 F.3d 979, 1016 (9th Cir.), cert. denied, 546 U.S. 858 (2005). The United States Supreme Court has not addressed this specific issue.
Recently, however, the Supreme Court ruled that certain alleged prosecutorial misconduct in closing did not warrant habeas relief under the AEDPA standard of review. Parker v. Matthews, 132 S.Ct. 2148 (2012) ("Parker"). In Parker, the Court of Appeals for the Sixth Circuit had granted habeas relief on a claim that the prosecutor had committed misconduct in closing argument by suggesting that the petitioner had colluded with his lawyer and a witness to manufacture an "extreme emotional disturbance" defense. Applying the AEDPA standard of review, the United States Supreme Court reversed the Sixth Circuit. Id. at 2155. The Supreme Court reasoned that, even if the prosecutor's comments directed the jury's attention to inappropriate considerations, the petitioner had not shown that the comments were "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 2155 (quoting Harrington v. Richter, 131 S. Ct. at 786-87). The Supreme Court stated that in Darden the Court had upheld a closing argument "considerably more inflammatory" than the one at issue in Parker,8 and that "particularly because the Darden standard is a very general one, leaving courts more leeway in reaching outcomes in case-by-case determinations," the Sixth Circuit's grant of habeas relief was unwarranted. Parker, 132 S. Ct. at 2155 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
In Petitioner's case, the prosecutor did not expressly urge the jury to convict Petitioner solely to further community values or to send a message to the community. Even in the challenged remarks, the prosecutor told the jury to consider the court's instructions and to evaluate the evidence. See United States v. Wilkes, 662 F.3d 524, 542 (9th Cir. 2011), cert. denied, 132 S.Ct. 2119 (2012) (prosecutor's alleged exhortation to jurors to "vindicate" their own rights not misconduct, where prosecutor referred jurors to the court's instructions). The prosecutor also made other comments in closing reminding the jury to analyze the evidence, decide the facts and follow the instructions (R.T. 1722-23, 1739, 1741, 1775-76, 1780). Furthermore, the court instructed the jury that the statements of counsel are not evidence (R.T. 844, 851; C.T. 555). As previously stated, the jury is presumed to have followed its instructions. See Weeks v. Angelone, 528 U.S. 225, 226 (2000). Under these circumstances, this Court cannot say that the challenged remarks were "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Parker, 132 S. Ct. at 2155; see United States v. Wilkes, 662 F.3d at 542 (prosecutor's comments not prejudicial where government's evidence was strong and court instructed the jury that the attorneys' comments were not evidence). For the same reasons, the challenged comments could not have had any "substantial and injurious effect or influence in determining the jury's verdict" within the meaning of Brecht. See Shaw v. Terhune, 380 F.3d 473, 478 (9th Cir. 2004) (Brecht applies to claim of prosecutorial misconduct). In sum, Petitioner is not entitled to habeas relief on Ground Two of the Petition.
III. Petitioner Is Not Entitled to Habeas Relief on His Claim of Ineffective Assistance of Trial Counsel.
A. Governing Legal Standards
To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 697 (1984) ("Strickland"). A reasonable probability of a different result "is a probability sufficient to undermine confidence in the outcome." Id. at 694. The court may reject the claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; see Gentry v. Sinclair, 705 F.3d 884, 889 (9th Cir.), cert. denied, 134 S.Ct. 102 (2013) ("[f]ailure to meet either [Strickland] prong is fatal to a claim"); Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other.") (citation omitted).
Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford, 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (quoting Strickland, 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. The court may "neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight. . . ." Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.") (citations omitted). Petitioner bears the burden to show that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 131 S. Ct. at 787 (citation and internal quotations omitted); see Strickland, 466 U.S. at 689 (petitioner bears burden to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy") (citation and quotations omitted).
A state court's decision rejecting a Strickland claim is entitled to "a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Harrington v. Richter, 131 S. Ct. at 785. "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. at 788.
"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently." Id. at 791-92 (citations omitted). Rather, the issue is whether, in the absence of counsel's alleged error, it is "`reasonably likely'" that the result would have been different. Id. at 792 (quoting Strickland, 466 U.S. at 696). "The likelihood of a different result must be substantial, not just conceivable." Id.
B. Discussion
1. Failure to Object to Ossorio's Allegedly Prejudicial Testimony
Petitioner claims his trial counsel ineffectively failed to object to Ossorio's allegedly prejudicial testimony (Pet., p. 8). The Court of Appeal rejected these claims, ruling that because the admission of the challenged testimony was not erroneous, any claim of ineffective assistance failed (Respondent's Lodgment 6, p. 14; see People v. Osborn, 2013 WL 956930, at *5).
Petitioner is not entitled to habeas relief on this claim. The Court of Appeal's ruling establishes that an objection to the testimony on the basis of state evidentiary law would have been futile. See Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) ("state courts are the ultimate expositors of state law"); accord, Waddington v. Sarausad, 555 U.S. at 192 n.5. Because, as discussed above, the admission of the challenged testimony did not render Petitioner's trial fundamentally unfair, an objection on the basis of federal law would have been equally futile. Therefore, Petitioner has failed to show counsel's unreasonableness or any resulting prejudice. See Tutton v. Duffy, 2013 WL 3733587, at *15 (E.D. Cal. July 15, 2013), adopted, 2013 WL 5773282 (E.D. Cal. Sept. 19, 2013) ("Because the evidence did not infect the proceedings with fundamental unfairness, any effort by counsel to exclude the evidence on that ground would have been futile. Petitioner has not shown that any prejudice resulted from counsel's failure to object to the [evidence].").
2. Failure to Object to Alleged Prosecutorial Misconduct
Petitioner also claims his trial counsel ineffectively failed to object to the alleged prosecutorial misconduct discussed above (Pet., p. 8). The Court of Appeal rejected these claims, ruling that because the challenged statements by the prosecutor were not erroneous, any claim of ineffective assistance failed (Respondent's Lodgment 6, p. 20; see People v. Osborn, 2013 WL 956930, at *7). The Court of Appeal also ruled that trial counsel reasonably could have determined that the prosecutor's argument did not constitute misconduct and that any objection would have called further attention to the argument (Respondent's Lodgment 6, p. 20; see People v. Osborn, 2013 WL 956930, at *7).
"Because many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements, the failure to object during closing argument and opening statement is within the `wide range' of permissible professional legal conduct." Cunningham v. Wong, 704 F.3d 1143, 1159 (9th Cir.), cert. denied, 134 S.Ct. 169 (2013) (quoting United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993)) (internal quotations and brackets omitted). Moreover, for the reasons discussed above, the challenged comments did not render Petitioner's trial fundamentally unfair. Therefore, Petitioner has failed to show counsel's unreasonableness or any resulting prejudice. See Simonton v. Evans, 2008 WL 4891222, at *13 (S.D. Cal. Nov. 10, 2008) (where prosecutor's comment did not render petitioner's trial fundamentally unfair, defense counsel's decision to refrain from objecting to the comment was not objectively unreasonable).
IV. Petitioner's Confrontation Clause Claim Does Not Merit Habeas Relief.
A. Background
At Petitioner's second trial, toxicologist Maureen Black testified that Petitioner's blood alcohol level at 2:41 a.m. on the morning following the incident was .19% (R.T. 1310, 1329). She further testified that, using an alcohol elimination rate of .017% per hour and assuming all the alcohol Petitioner drank had been fully absorbed, Petitioner's likely blood alcohol level at the time of the incident had been .24 percent (R.T. 1314). Black also said that, assuming a person in Petitioner's situation had stopped drinking 30 minutes prior to the crash, his blood alcohol level at the time of the incident could have been .20%, depending on the amount of alcohol consumed "recently to" the collision (R.T. 1314-15). With respect to absorption, Black said if the alcohol were not fully absorbed, it would be more difficult to determine a blood alcohol level, because the subject's system would contain alcohol that had not yet entered the blood (R.T. 1312).
On cross-examination, Black said her opinions were based on average elimination and absorption rates (R.T. 1338). Black testified that alcohol elimination rates varied from .010% per hour to as high as .030% for experienced users, but that she used an assumed, standard elimination rate of .017%, a rate she characterized as "very conservative" and suitable for the moderate social drinker (R.T. 1323-26). She said that, although individual elimination rates varied, she had never known or used an individual's specific elimination rate (R.T. 1324).
Black described the absorption of alcohol in the stomach and small intestine, saying that some alcohol would break down in the stomach and never enter the bloodstream (R.T. 1331-32). Black said full absorption on an empty stomach took "about one hour, plus or minus, say, 15 minutes on either end," but cautioned that a faster rate of consumption would accelerate absorption (R.T. 1337). She testified that absorption could occur in as little as 30 minutes or as long as two hours (R.T. 1337). Researchers, including Black, reportedly used the one hour figure because it was the "mean value" or average (R.T. 1338). Black said various factors affected absorption rates, including whether the subject had a full stomach (R.T. 1330). Asked what percentage of the total would break down in the stomach, Black said she could not "really project that" (R.T. 1332). Black could not compare absorption rates for a drinker with an empty stomach and one with a full stomach because she did not know the amount and kind of food or the size of the stomach (R.T. 1332). Black acknowledged that there was "literature" concerning the difference in absorption rates of various kinds of alcohol but said she had not seen studies quantifying the difference and said she did not "dwell on those differences" (R.T. 1333). Black testified that when she gave an opinion concerning a person's blood alcohol level at a particular time it was not important for her to know the absorption rate of the individual (R.T. 1334). Black explained: "Because I'm not talking about one individual because I don't go through testing with one particular individual to test those rates of absorption." (R.T. 1334). Asked whether she had ever relied on a person's specific absorption rate, such as that of Petitioner, Black responded that she could not determine that rate, explaining: "I haven't done any testing that would give me an exact absorption rate for this particular person" (R.T. 1339).
Petitioner's counsel posed a hypothetical based on Petitioner's consumption of specified amounts of alcohol at various times (R.T. 1340-44). Black testified that a 160-pound person who ate three enchiladas and drank two 40-ounce beers would have a blood alcohol level of .19% "if all of it went through" and "on an empty stomach," although the percentage could be "a little lower because of those three enchiladas" (R.T. 1339-40). Black said the level would change "somewhat" based on the person's actual absorption time and elimination rate, and the level "could be between a .16 and a .19" (R.T. 1340). Petitioner's counsel then added to the hypothetical by asking Black to assume that the subject started to drink again approximately four and a half hours later, and asked Black to calculate the subject's blood alcohol level prior to the resumption of consumption (R.T. 1343-44). Black said that if the elimination rate were .017%, the blood alcohol level of a person who had consumed two 40-ounce beers would have dropped over the four and a half hours, through elimination, to .12% - .15% (R.T. 1346-47). She said that if the elimination rate were .024%, a person who previously had consumed two 32-ounce beers could have a blood alcohol level of approximately.08% after four and a half hours (R.T. 1347-48).
After a break during which the hypothetical was discussed at sidebar, the court asked defense counsel to restate the hypothetical as it had been discussed during the break (R.T. 1348). Petitioner's counsel then posed a hypothetical to Black, who testified that, assuming an individual's consumption of two 32-ounce beers and three enchiladas at 4:15 p.m., one and a half beers at 8:40, five 12-ounce beers at 10:10 and one 12-ounce beer after the accident at 10:40, with a blood draw of .19 at 2:14 a.m., and using the .017% absorption rate, the subject would have a blood alcohol level of .20 at the time of the accident (R.T. 1349-50).
Later, Petitioner's counsel objected on Confrontation Clause grounds, asserting that the court had prevented him from asking Black a hypothetical question favorable to the defense "dealing with certain rates of elimination," which allegedly had compelled counsel "to stick with the average rate of consumption or elimination" (R.T. 1386).9 The following then occurred:
[Petitioner's counsel]: I think had I fully examined this witness with the defense rates that I wanted to use, the jury would have been informed of a completely different BAC level at the time of the accident.
I know this isn't a DUI case, but I think there's some relevance if not just psychological, the difference between Mr. Osborn [sic] potentially being .11, .12 - .12 at the time of the accident versus a .20. Leave it at that.
The Court: Well, my memory is different than yours. I think that what I prevented was — during the break, you and Miss Black were having a difference of opinion about whether or not she was able to give an opinion based on the hypothetical you wanted to give her. And I think what I required her to do was use standard absorption rates. And you wanted her to assume — I think you were calling it an hour and a half rate, and she said I don't know what an hour and a half rate is and I cannot use that in my calculation.
. . . And at that point, I said that she was going to use the rate that she wants to use. And if — and then she did.
Now, as for burnoff rates, she's articulated to the jury the burnoff rate she used. It's a standard — it's a mathematical calculation.
If you want to use a different burnoff rate, you can do the mathematics yourself and tell the jury that there's a different calculation. `Cause it's just straight math at this point. And she acknowledged that burnoff rate does vary from individual to individual.
(R.T. 1386-87).
Petitioner claims the trial court violated his Confrontation Clause right by restricting his ability to cross-examine Black (Pet., p. 9). In rejecting this claim, the Court of Appeal ruled that any error was harmless because even if Petitioner's counsel had elicited testimony from Black that Petitioner's blood alcohol level assertedly was .110% or .120%, Petitioner "still would have been impaired" (Respondent's Lodgment 6, p. 25; see People v. Osborn, 2013 WL 956930, at *10). The Court of Appeal also ruled that the incriminating evidence Petitioner acted in conscious disregard of human life was "overwhelming" (Respondent's Lodgment 6, p. 25; see People v. Osborn, 2013 WL 956930, at *10).
B. Discussion
In limited circumstances, the exclusion of crucial evidence may violate the Constitution. See Holmes v. South Carolina, 547 U.S. 319, 324 (2006) ("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.") (citations and internal quotations omitted); Chambers v. Mississippi, 410 U.S. 284, 302 (1973); Ortiz v. Yates, 704 F.3d 1026, 1035 (9th Cir. 2012) (arbitrary or disproportionate restriction on a defendant's ability to cross-examine adverse witnesses as to the biases or motives for testifying can violate the Sixth Amendment). The Sixth Amendment confrontation right includes a right to cross-examination and a right to present relevant evidence. Wood v. Alaska, 957 F.2d 1544, 1549 (9th Cir. 1992). A Confrontation Clause violation occurs when the defendant is "prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby to expose to the jury the facts from which jurors could appropriately draw inferences relating to the reliability of the witness." Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986) (citation and internal quotations omitted). A violation occurs when a reasonable trier of fact "might have received a significantly different impression" of a witness' credibility if the court had not limited the cross-examination. See id. at 680; Slovik v. Yates, 556 F.3d 747, 753 (9th Cir. 2009). Confrontation Clause errors are subject to harmless error analysis. See Coy v. Iowa, 487 U.S. 1012, 1021-22 (1988); Delaware v. Van Arsdall, 475 U.S. at 684.
Petitioner does not specify the question(s) his counsel allegedly was prevented from asking Black. To the extent counsel wanted to pose hypothetical questions assuming absorption or elimination rates other than those rates used by the witness, Petitioner has not shown that his asserted inability to pose such questions denied Petitioner a fair trial. The witness testified that she did not have sufficient information to use a more specific absorption rate. Furthermore, even assuming arguendo the witness would have testified that Petitioner's blood alcohol level at the time of the incident could have been as low as .11 or .12, as counsel speculated, Black opined, without contradiction, that a person with a blood alcohol level as low as .08% was too impaired to drive safely (R.T. 1298). Particularly in light of the strength of the prosecution's case, Petitioner has not shown that using a different elimination or absorption rate in a hypothetical question to Black would have materially aided the defense.
For the foregoing reasons, the Court of Appeal's rejection of this claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S.Ct. 770, 785-87 (2011). Petitioner is not entitled to habeas relief on Ground Five of the Petition.
V. Petitioner Is Not Entitled to Habeas Relief on His Claim of Cumulative Error.
The Court of Appeal rejected Petitioner's claim of cumulative error, reasoning that "whether considered singly or cumulatively, any assumed errors were harmless" (Respondent's Lodgment 6, p. 25; see People v. Osborn, 2013 WL 956930, at *10).
"While the combined effect of multiple errors may violate due process even when no single error amounts to a constitutional violation or requires reversal, habeas relief is warranted only where the errors infect a trial with unfairness." Payton v. Cullen, 658 F.3d 890, 896-97 (9th Cir. 2011), cert. denied, 133 S.Ct. 426 (2012). Habeas relief on a theory of cumulative error is appropriate when there is a "`unique symmetry' of otherwise harmless errors, such that they amplify each other in relation to a key contested issue in the case." Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011), cert. denied, 133 S.Ct. 424 (2012) (citation omitted). Here, no such symmetry of otherwise harmless errors exists. Particularly in light of the strength of the prosecution's case, the claimed errors did not render Petitioner's trial fundamentally unfair. Petitioner is not entitled to habeas relief on Ground Six of the Petition.
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.
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.
