PETER C. LEWIS, Magistrate Judge.
Petitioner Michael Palma, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus (Pet.) pursuant to 28 U.S.C. § 2254, challenging his convictions in San Diego County Superior Court case number SCD209562 for three counts of assault with a semi-automatic firearm, one count of assault by means likely to produce great bodily injury, and various gang allegations. (Pet. at 6-37
This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from these facts, are entitled to statutory presumption of correctness). The following statement of facts is taken from the California Court of Appeal's opinion denying Palma's direct appeal of his convictions.
(Lodgment No. 6 at 3-4.)
On August 4, 2008, the San Diego County District Attorney filed an amended information charging Michael Palma with three counts of assault with a deadly weapon, a violation of California Penal Code (Penal Code) § 245(b) (counts one through three), and one count of assault by means likely to create great bodily injury, a violation of Penal Code § 245(a)(1) (count four). (Lodgment No. 1, vol. 1 at 0005-07.) As to each count, the amended information alleged the crime was committed for the benefit of, at the direction of, and in association with, a criminal street gang with the specific intent to promote, further, and assist in criminal activity by gang members, within the meaning of Penal Code § 186.22(b)(1). (Id.)
On August 15, 2009, a jury convicted Palma of all charges and found all the gang allegations to be true. (Lodgment No. 1, vol. 2 at 0277-80.) He was sentenced to eleven years in state prison. (Id. at 0282.)
Palma appealed his conviction to the California Court of Appeal for the Fourth Appellate District, Division One. (Lodgment Nos. 3-5.) The state appellate court affirmed his conviction in a written opinion filed March 23, 2010. (Lodgment No. 6.) Palma then filed a Petition for Review in the California Supreme Court. (Lodgment No. 7.) The California Supreme Court denied the petition "without prejudice to any relief to which defendant might be entitled after this court decides People v. Durango, S176886, People v. Gutierrez, S176620, People v. Lopez, S177046, and/or People v. Rutterschmidt, S176213." (Lodgment No. 8.)
Palma filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court on July 22, 2011. (ECF No. 1.) Respondent filed an Answer and Memorandum of Points and Authorities in Support of the Answer on October 17, 2011. (ECF No. 8.) Palma filed a Traverse on November 4, 2011. (ECF No. 10.)
This Petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320 (1997). Under AEDPA, a habeas petition will not be granted with respect to any claim adjudicated on the merits by the state court unless that adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002). In deciding a state prisoner's habeas petition, a federal court is not called upon to decide whether it agrees with the state court's determination; rather, the court applies an extraordinarily deferential review, inquiring only whether the state court's decision was objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004).
A federal habeas court may grant relief under the "contrary to" clause if the state court applied a rule different from the governing law set forth in Supreme Court cases, or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the "unreasonable application" clause if the state court correctly identified the governing legal principle from Supreme Court decisions but unreasonably applied those decisions to the facts of a particular case. Id. Additionally, the "unreasonable application" clause requires that the state court decision be more than incorrect or erroneous; to warrant habeas relief, the state court's application of clearly established federal law must be "objectively unreasonable." See Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision and presumes it provides the basis for the higher court's denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991). If the dispositive state court order does not "furnish a basis for its reasoning," federal habeas courts must conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Andrade, 538 U.S. at 75-76); accord Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). However, a state court need not cite Supreme Court precedent when resolving a habeas corpus claim. See Early, 537 U.S. at 8. "[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent,]" id., the state court decision will not be "contrary to" clearly established federal law. Id. Clearly established federal law, for purposes of § 2254(d), means "the governing principle or principles set forth by the Supreme Court at the time the state court renders its decision." Andrade, 538 U.S. at 72.
Palma presents four claims in his petition. First, Palma contends he was denied his federal due process rights when the trial court refused to bifurcate the substantive criminal charges from the gang allegations. (Pet. at 6-14, ECF No. 1; Traverse at 8-11, ECF No. 10.) Second, Palma argues the gang expert improperly testified as to Palma's subjective knowledge and intent. (Pet. at 15-20, ECF No. 1; Traverse at 11-12, ECF No. 10.) Third, Palma alleges his Sixth Amendment Confrontation Clause rights were violated by the gang expert's use of hearsay. (Pet. at 21-29, ECF No.1; Traverse at 12-14, ECF No. 10.) Finally, Palma contends the prosecutor improperly commented on his failure to testify, in violation of his Fifth Amendment rights, as delineated in Griffin v. California, 380 U.S. 609 (1965). (Pet. at 30-37, ECF No.1; Traverse at 14-15, ECF No. 10.) As to each of these claims, Respondent contends the state court's adjudication was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Mem. of P. & A. Supp. Answer at 7-24, ECF No. 8.) As to claims one, two and three, Respondent also contends Palma has failed to state a federal question. (Id.)
Palma contends the trial judge violated his federal due process right to a fair trial when he refused to bifurcate the gang allegations from the substantive criminal charges. (Pet. at 6-14, ECF No. 1; Traverse at 8-11, ECF No. 10.) Palma argues this unfairly prejudiced him in front of the jury because its purpose was to show he had a criminal disposition and acted in accordance with that disposition by committing the substantive criminal offenses. (Pet. at 8-14, ECF No. 1.) Respondent first argues Palma is not entitled to relief because his claim involves only the application of state evidentiary law, which is not cognizable on federal habeas review. (Mem. of P. & A. Supp. Answer at 7, ECF No. 8.) In the alternative, Respondent argues the state court's resolution of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Id. at 7-19.)
Palma raised this claim in the Petition for Review he filed in the California Supreme Court. (See Lodgment No.7.) As noted about, the California Supreme Court summarily denied the petition without prejudice to any relief Palma may be entitled to once People v. Dungo, People v. Gutierrez, People v. Lopez, and People v. Rutterschmidt are decided. Accordingly, this Court must "look through" to the state appellate court's decision denying the claim as the basis for its opinion. Ylst, 501 U.S. at 805-06. The state appellate court wrote:
(Lodgment No. 6 at 6-10.)
In Davis v. Woodford, 384 F.3d 628 (9th Cir. 2004), the Ninth Circuit discussed the circumstances under which improper joinder violates a defendant's federal due process rights as follows:
Id. at 638.
Cross-admissibility of evidence and the joinder of a weak evidentiary case with a strong one is of particular concern, because it makes it "difficult for a jury to compartmentalize the damaging information." Sandoval, 241 F.3d at 772; but see Hollie v. Hedgpeth, 2011 WL 5142956 (9th Cir. Oct. 31, 2011) (stating that "[t]he Supreme Court has never held that a trial court's failure to provide separate trials on different charges implicates a defendant's right to due process").
California courts and the Ninth Circuit use the same factors to evaluate whether misjoinder violates federal due process: cross-admissibility of the evidence, whether some of the charges are likely to inflame the jury, and whether a weak case has been joined with a strong one or two weak cases have been joined together so the strength of the evidence of all charges is enhanced. People v. Mendoza, 24 Cal.4th 130, 161 (2000) (cited in the appellate court's opinion, Lodgment No. 6 at 6-7); Davis, 384 F.3d at 638. Accordingly, the state court's denial of the claim is not "contrary to" any principal of clearly established Supreme Court Featherstone, Park and Davis purport to establish. See Williams, 529 U.S. at 412-13.
The state appellate court's denial of this claim is also not contrary to clearly established Supreme Court law. Id. In its opinion, the state court first analyzed whether any of the gang evidence would have been cross-admissible in separate trials. (Lodgment No. 6 at 7-8.) The state court concluded, and this Court agrees, that evidence of Palma's gang membership, the structure and culture of gangs, and why Palma, as a gang member, would have been aware that someone in the crowd confronting Jesus Nevarez would have had a gun, would have been cross-admissible in separate trials to prove motive and intent.
Evidence of the predicate acts needed to establish the gang allegations, however, as the state appellate court also correctly concluded, would not have been cross-admissible. (Id. at 7-8.) This evidence, therefore, could have had a "spillover effect." But, as the state appellate court also reasonably found, because much of the gang testimony would have been cross-admissible, the jury would have been made aware of a significant amount of gang testimony even if there had been separate trials, and any "spillover effect" was therefore minimal. (Lodgment No. 6 at 10.) Moreover, Palma contends the admission of the testimony supporting the gang allegations was "unnecessary" and that "excessive use of this inflammatory evidence clearly violated petitioner's right to due process of law under the federal constitution as interpreted by the United State Supreme Court in Estelle v. McGuire (1991) 502 U.S. 62 and Spencer v. Texas (1967) 385 U.S. 554." (Pet. at 12., ECF No. 1.) The Ninth Circuit, however, has stated that when a petitioner alleges misjoinder of counts had an inflammatory effect on the jury such that the jury's ability to determine guilt on separate counts was improperly influenced, a petitioner must show that the jury was actually inflamed. See Park v. California, 202 F.3d at 1150. Palma has made no such showing.
Joinder of the charges was also not improper because a weak case was not joined with a strong one or with another weak case to bolster the strength of both cases. The relative strength of the evidence supporting the substantive crimes and the gang allegations crimes was very similar because both sets of charges depended almost entirely on the credibility of Detective Harberth. Harberth's testimony provided the support for the prosecution's contention that Palma knew someone in the crowd who confronted Jesus Nevarez had a gun, because in gang culture, this is what is expected. (Lodgment No. 2, vol. 5 at 671-72.) This provided the support for the knowledge and intent elements of the substantive crimes. (See Lodgment No. 1, vol. 1 at 0138 [assault with a semi automatic firearm requires the defendant to have willfully committed an act with a semiautomatic firearm with the knowledge that his action would lead to the application of force upon someone].) Harberth's testimony about predicate acts and Palma's membership in FMK supported the prosecution's contention that FMK is a gang and the shooting was committed for the benefit of FMK. (Id. at 657-92.)
Lastly, the jury was given the following limiting instruction regarding Harberth's testimony about the predicate gang acts:
(Lodgment No. 1, vol. 2 at 0116.)
Thus, the jury was appropriately cautioned against considering the evidence of predicate crimes for the gang allegation as proof of the substantive criminal charges. Jurors are presumed to follow the instructions they are given. See Fields v. Brown, 503 F.3d 755, 782 (9th Cir. 2007), citing Kansas v. March, 548 U.S. 163, 179 (2006).
For all the foregoing reasons, the Court concludes the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Williams, 529 U.S. at 412-13. Palma is not entitled to relief as to this claim.
Palma argues Detective Harberth improperly testified about an "ultimate fact" that was within the jury's province to decide, namely, whether Palma had the specific knowledge of the shooter's intent to use the gun to shoot the victims. (Pet. at 15-20, ECF No. 1; Traverse at 11-12, ECF No. 10.) Specifically, Palma complains that Detective Harberth testified that when gang members show up together at a house or residence to confront someone, they know someone in the group is carrying a gun and is prepared to use it if necessary. (Id.; Lodgment No. 2, vol. 5 at 672.) Respondent contends this does not state a federal constitutional question because it is simply a matter of state evidentiary law. (Mem. of P. & A. Supp. Answer at 19-20, ECF No. 8.) In the alternative, Respondent argues the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Id. at 20-23.)
Palma raised this claim in the Petition for Review he filed in the California Supreme Court. (See Lodgment No.7.) As previously noted, the California Supreme Court summarily denied the petition without prejudice to any relief Palma may be entitled to once People v. Dungo, People v. Gutierrez, People v. Lopez, and People v. Rutterschmidt are decided. Accordingly, this Court must "look through" to the state appellate court's decision denying the claim as the basis for its opinion. Ylst, 501 U.S. at 805-06. The state appellate court denied the claim as follows:
(Lodgment No. 6 at 11-13.)
Notably, Palma does not cite any United States Supreme Court or Ninth Circuit authority for the proposition that the federal constitution is violated when a state court permits an expert to testify regarding an ultimate fact that is within the province of the jury to resolve. Indeed, as Respondent points out, the Ninth Circuit has concluded that there is no clearly established Supreme Court law supporting this contention. In Moses v. Payne, 555 F.3d 742 (9th Cir. 2009), Petitioner objected to the testimony of the medical examiner, a ballistics expert, and a social worker, all of whom testified that the death of the victim was a homicide, on the ground that the question whether the death was the result of homicide or suicide "improperly intruded on the province of the jury and thereby deprived [him] of a fair trial." Id. at 761. The Ninth Circuit concluded Moses was not entitled to relief under 28 U.S.C. § 2254 because there were no Supreme Court cases that "support[ed] the general proposition that the Constitution is violated by the admission of expert testimony concerning an ultimate issue to be resolved by the trier of fact." Id. As in Moses, because there is no such clearly established Supreme Court law, this Court cannot conclude under AEDPA that the state court's denial of this claim was contrary to, or an unreasonable application of, clearly established Supreme Court law. See Carey v. Musladin, 549 U.S. 70, 76-77 (2006). Thus, Palma is not entitled to relief as to this claim. Williams, 529 U.S. at 412-13.
In this third claim, Palma contends his Sixth Amendment rights, as defined in Crawford v. Washington, 541 U.S. 36 (2004), were violated when the gang expert was permitted to testify to the predicate acts used to prove the gang allegations based on hearsay from police reports prepared by others and out-of-court statements. (Pet. at 21-29, ECF No. 1; Traverse at 12-14, ECF No. 10.) Respondent counters that the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Mem. of P. & A. Supp. Answer at 16-27, ECF No. 8.)
Palma raised this claim in the Petition for Review he filed in the California Supreme Court. (See Lodgment No. 7.) As previously noted, the California Supreme Court summarily denied the petition without prejudice as to any relief Palma may be entitled to once People v. Dungo, People v. Gutierrez, People v. Lopez, and People v. Rutterschmidt are decided. Accordingly, this Court must "look through" to the state appellate court's decision denying the claim as the basis for its opinion. Ylst, 501 U.S. at 805-06. The state appellate court, citing California law as well as the controlling United States Supreme Court law, Crawford, denied the claim as follows:
(Lodgment No. 6 at 14-16.)
The Supreme Court has not yet resolved the question whether expert testimony which is based on inadmissible hearsay falls under Crawford's prohibition against the admission of out-of-court testimonial statements which the defendant has not had the opportunity to cross-examine. Indeed, the Supreme Court recently granted certiorari on a similar issue. See People v. Williams, 238 Ill.2d 125 (2010), cert. granted, Williams v. Illinois, 131 S.Ct. 3090 (June 28, 2011) (considering whether an expert may testify about the substance of a DNA analysis report in which he took no part). Thus, this Court cannot conclude the state court's denial of the claim was contrary to, or an unreasonable application of, clearly established Supreme Court law. See Musladin, 549 U.S. at 76-77 (holding that when there is no clearly established Supreme Court law, a Court cannot conclude under AEDPA that the state court's denial of this claim was contrary to, or an unreasonable application of, clearly established Supreme Court law).
In addition, courts who have considered this question have concluded that Crawford does not prohibit an expert from giving his or her expert opinion, even if that opinion is based on inadmissible hearsay, so long as the expert is not merely parroting that hearsay. As the court in United States v. Ramos-Gonzalez, 664 F.3d 1, 5 (1st Cir. 2011) stated:
Id. at 5; see also United States v. Law, 528 F.3d 888, 912 (D.C. Cir. 2008).
In the present case, Detective Harberth did not simply repeat the testimonial hearsay contained in the reports and statements upon which he relied to conclude that FMK was a gang and that Palma committed the crimes of which he was accused for the benefit of FMK. Rather, he testified as to his expert opinion based on those reports. (See Lodgment No. 2, vol. 5 at 653-820, vol. 6 at 830-58.) Moreover, even if the Court were to find a Sixth Amendment occurred, such violations are subject to harmless error review under Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Here, the trial judge gave a limiting instruction during Harberth's testimony, telling the jury that Harberth would be "considering statements made by various witnesses in this case," and that the jury could consider those statements "only to evaluate Detective Harberth's opinion [and not] as proof that the information contained in the statements is true." (Lodgment No. 2, vol. 5 at 657.) They were also given a similar instruction during deliberations. (See Lodgment No. 1, vol. 1 at 0116.
For all the foregoing reasons, the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Williams, 529 U.S. at 412-13. Palma is not entitled to relief as to this claim.
Finally, Palma claims the prosecutor improperly commented on his failure to testify in his own defense, as proscribed in Griffin v. California, 380 U.S. 609 (1965). (Pet. at 30-37, ECF No. 1; Traverse at 14-15, ECF No. 10.) Respondent contends the state appellate court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Mem. of P. & A. Supp. Answer at 28-31, ECF No. 8.)
Palma raised this claim in the Petition for Review he filed in the California Supreme Court. (See Lodgment No. 7.) As previously noted, the California Supreme Court summarily denied the petition without prejudice to any relief Palma may be entitled to once People v. Dungo, People v. Gutierrez, People v. Lopez, and People v. Rutterschmidt are decided. Accordingly, this Court must "look through" to the state appellate court's decision denying the claim as the basis for its opinion. Ylst, 501 U.S. at 805-06. The state appellate court denied the claim as follows:
(Lodgment No. 6 at 16-18.)
"The Due Process Clause prohibits a prosecutor from commenting on a defendant's decision not to testify." Hovey v. Ayers, 458 F.3d 892, 912 (9th Cir. 2006), citing Griffin v. California, 380 U.S. 609, 615 (1965). Prosecutors can commit Griffin error in two ways: by directly commenting on a defendant's failure to testify and by indirectly doing so. The Ninth Circuit has further defined this standard as follows:
Id., citing Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987).
In Palma's case the prosecutor stated the following during his rebuttal argument:
(Lodgment No. 2, vol. 7 at 1223) (emphasis added).
The state court found that the prosecutor was commenting on the fact that Palma knew what he was doing then and cannot now change that intent. (Lodgment No. 6 at 17.) This Court agrees the prosecutor's comment was intended, in part, to convey that Palma went to Nevarez's house with the intent to assault, and that he knew that was his intent at the time. This is simply a comment on the state of the evidence of Palma's intent at the time of the crime. The prosecutor's comments about Palma's current knowledge of his intent at the time of the shooting, however, walks a much closer line to Griffin.
The prosecutor argued that Palma "knows it now[,] [h]e knows why he went there," which appears to be a reference to Palma's current knowledge about his intent at the time of the shooting. Thus, it could be interpreted as an indirect comment on Palma's failure to explain his intent at the time of the shooting because Palma is the only person who could tell the jury what his intent was.
Indeed, the prosecutor's comments in this case are similar to the prosecutor's comments in Hovey. Hovey was accused of kidnapping and killing a young girl. Evidence presented at trial included testimony from two doctors, whose expert opinion was that the victim's wounds could have been caused by a knife. Hovey, 458 F.3d at 899. Two jailhouse informants also testified Hovey told them he had a knife with him when he kidnapped the victim and that he used the knife to kill her. Id. During closing argument, the prosecutor told the jury Hovey had "never said anything to you about why, why he did these things," and that Hovey "said he used a knife . . . [and had] never told you anything different." Id. at 912. The Ninth Circuit concluded these were indirect comments on Hovey's failure to testify:
Id.
Even if a court finds that a prosecutor commented, either directly or indirectly, on a petitioner's decision not to testify, however, reversal of a conviction is only required if: "(1) the commentary is extensive; (2) an inference of guilt from silence is stressed to the jury as a basis for the conviction; and (3) where there is evidence that could have supported acquittal." Jeffries v. Blodgett, 5 Cal.3d 1180, 1192 (9th Cir. 1993), citing Lincoln, 807 F.2d at 809. Here, as in Hovey, any Griffin error was harmless. The prosecutor's statements were very minimal and brief in the context of closing arguments, consisting of four lines in an argument that spanned forty-five pages. (See Lodgment No. 2, vo. 7 at 1150-77, 1205
-23.) The prosecutor did not stress to the jury they should find Palma guilty of the charges specifically because he did not testify. Rather, he suggested, in rebuttal to defense counsel's argument that the prosecution had failed to prove what was inside Palma's mind, that Palma knew then and knows now that his intent at the time of the crime made him guilty of the charges. (Id. at 1178.) The evidence against Palma, however, was hardly overwhelming and was based entirely on circumstantial evidence and expert testimony as to whether Palma knew a fellow gang member brought a gun to the confrontation with Nevarez. Nevertheless, on habeas review, Palma must establish that any Griffin error had a "substantial and injurious effect on the verdict." Beardslee v. Woodford, 358 F.3d 560, 588 (9th Cir. 2004) citing Brecht, 507 U.S. at 637. Given this high standard on federal habeas review, it is not conceivable to this Court that the jury would have come to a different conclusion had the prosecutor not made the comments Palma complains of.
For all the foregoing reasons, Palma has not established the state court's denial of this claim was contrary to, or an unreasonable application of, clearly established Supreme Court law. Williams, 529 U.S. at 412-13. Accordingly, he is not entitled to relief as to this claim.
The Court has considered the Petition, the Answer and Memorandum of Points and Authorities in Support of the Petition, the Traverse, as well as all the Lodgments and Exhibits submitted by the parties. For the reasons outlined above, the Court
