Unpublished Disposition, 865 F.2d 266 (9th Cir. 1988)

MEMORANDUM^** 

FACTUAL BACKGROUND

John A. Vladovic, a state prisoner, appeals pro se the district court's denial of his petition for a writ of habeas corpus. He was convicted in a Washington State court of one count of attempted first degree robbery, one count of first degree armed robbery, and four counts of first degree kidnapping. He was sentenced to concurrent terms of ten years for the attempted robbery, life in prison for the robbery, and life in prison for three of the kidnapping counts. He received a sentence of twenty years, to run consecutively, on the fourth kidnapping count.

The appellate court reviews de novo a district court's decision on a petition for habeas corpus. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir. 1986), cert. denied, 108 S. Ct. 198 (1987). It reviews for clear error any factual findings made by the district court in deciding the petition. Hayes v. Kincheloe, 784 F.2d 1434, 1436 (9th Cir. 1986), cert. denied, 108 S. Ct. 198 (1987).

The federal courts, in reviewing a state court proceeding on a writ of habeas corpus, must presume that any fact finding by the state court is correct. Sumner v. Mata, 449 U.S. 539, 547 (1981). There are three ways this presumption can be overcome: 1) if a party alleges a procedural deficiency in the state court (see 28 U.S.C. § 2254(d) (1)-(7)); 2) if the state court's record does not fairly support the factual determination or 3) if the petitioner establishes by convincing evidence that even if the factual determination is fairly supported by the record, it is erroneous. Id. at 546-47; Brooks v. Kincheloe, 848 F.2d 940, 943 (9th Cir. 1988).

The state court made the following findings of facts:

This case arises from an incident at Bagley Hall on the University of Washington campus. An armed man wearing a ski mask entered the chemistry department at Bagley Hall. He secured the area by gathering the five employees from various offices into one room, forcing them to lie on the floor, binding their hands and taping their eyes. The armed man then admitted one or more confederates. The robbers removed the employees' wallets from their pockets but left the wallets at the scene. After the incident one employee, Mr. Jensen, discovered $12 was missing. When apprehended, petitioner had $30 on his person.

One robber took Mr. Jensen, the storeroom manager, into another room where the chemistry department's safe was kept. The safe contained $7,000 worth of platinum crucibles. The robber, unable to open the safe, began to unbind Mr. Jensen so that he could open the safe. The police then arrived. The robber who was wearing the green ski mask disappeared. Another robber, wearing a different colored ski mask, exchanged gunfire with the police and then surrendered. When apprehended he was still wearing the ski mask. This man was identified as Robert May, petitioner's codefendant at trial.

Petitioner was apprehended as he walked out of the storeroom on the same floor where the above events took place. He was not wearing a mask at the time, nor was he armed. A gun and green ski mask were later found in the same general area where petitioner had been found. Petitioner testified that he was in Bagley Hall to meet a student and was forced into the storeroom by one of the robbers. He also testified that during his captivity he saw several armed men escape through a tunnel system running under the university campus when the police arrived.

The arresting officer testified that upon his arrest petitioner made several inculpatory statements. Petitioner denied making those statements.

State v. Vladovic, 99 Wash. 2d 413, 662 P.2d 853, 854-55 (1983).

The district court found that appellant had exhausted his state remedies on each ground raised in his habeas petition.

II

DISCUSSION

In order to state a claim for habeas relief, a state prisoner must allege that his detention violates the Constitution, a federal statute, or a treaty. 28 U.S.C. § 2241(c); Pulley v. Harris, 465 U.S. 37, 41 (1984). Appellant argues that by being found guilty of both robbery and kidnapping, the state violated his constitutional right to due process by "pyramiding" and not merging the two crimes and violated his constitutional right to protection from double jeopardy by making defendant suffer multiple punishments for the same offense. Issues of state law on which the highest state court has ruled are binding on a federal court, absent an error of law which is so egregious as to deny constitutional rights. Pulley, 465 U.S. at 42. The Supreme Court of Washington has ruled on the issue of whether or not petitioner's crimes should merge, and whether double jeopardy applied. State v. Vladovic, 99 Wash. 2d 413, 662 P.2d 853 (1983).

Merger occurs when proof of one crime is a necessary element to prove another crime; the two crimes merge into the more culpable crime and are not separately punishable. Vladovic, 662 P.2d at 856. For example, in Washington, the applicable first degree rape statute requires the State to prove conduct constituting at least one additional crime (such as assault or kidnapping) other than rape to prove first-degree rape. State v. Johnson, 92 Wash. 2d 671, 600 P.2d 1249, 1253 (1979) (Johnson I) .

In Johnson I, the Washington Supreme Court found that

the Legislature intended that punishment for first-degree rape should suffice as punishment for crimes proven in aid of the conviction, which are incidental to and elements of the central crime.

Id., 600 P.2d at 1253.

In Vladovic, the Washington Supreme Court compared the applicable statutes and found that the kidnapping was not incidental to the robbery and legislative intent did not reveal that the offenses of robbery or attempted robbery merge into a kidnapping conviction. Vladovic, 662 P.2d at 855-857. The statutes provide in relevant part that:

A person commits robbery when he unlawfully takes personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which case the degree of force is immaterial.

RCW 9 A. 56.190.

(1) A person is guilty of robbery in the first degree if in the commission of a robbery or of immediate flight therefrom, he:

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(b) Displays what appears to be a firearm or other deadly weapon ...

RCW 9 A. 56.200.

(1) A person is guilty of an attempt to commit crime if, with intent to commit a specific crime, he does any act which is a substantial step toward the commission of that crime.

RCW 9 A. 28.020.

(1) A person is guilty of kidnapping in the first degree if he intentionally abducts another person with intent:

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(b) To facilitate commission of any felony or flight thereafter ... [The underlying felony charged hereunder was the robbery of Mr. Jensen.]

RCW 9 A. 40.020.

The following definitions apply in this chapter:

(1) "Restrain" means to restrict a person's movements without consent and without legal authority in a manner which interferes substantially with his liberty. Restraint is "without consent" if it is accomplished by (a) physical force, intimidation, or deception, ...

(2) "Abduct" means to restrain a person by ... (b) using or threatening to use deadly force ...

RCW 9 A. 40.010; Vladovic, 662 P.2d at 855-56.

The state court found that kidnapping is not an element necessary to prove either first degree robbery or first degree attempted robbery. Id., 662 P.2d at 857. They also found that the robbery was not merely incidental to the kidnapping so as to cause robbery to merge into the kidnapping charges. Id., 662 P.2d at 857-58.

RCW 9 A. 40.020(1) (b) provides that kidnapping is in the first degree if it facilitates the commission of any felony or flight thereafter. Thus, if the petitioner had been charged with first degree kidnapping and robbery of the same victim, the merger doctrine might be applicable. Here, the jury found petitioner guilty of attempting to steal the contents of the safe, robbery in the first degree for stealing money from Mr. Jensen's wallet, and four counts of kidnapping in the first offense for restraining chemistry department employees other than Mr. Jensen. Id., 662 P.2d at 855. The Washington Supreme Court found these offenses were committed with independent purposes involving injuries to different people, and thus the robbery does not merge into the kidnapping. Id., 622 P.2d at 857-58.

Washington State also recognizes a second form of merger, "kidnapping merger." State v. Allen, 621 P.2d 143, 145 (1980). When the kidnapping is merely incidental to another offense it merges. Id. Otherwise, because Washington State does not require asportation in its kidnapping statute, every robbery with a deadly weapon (e.g., a gun) incidentally and intentionally restrains someone with deadly force. See Vladovic, 662 P.2d at 864 (Judge Utter, dissenting). However, in this case, Vladovic is being charged with kidnapping or robbery of different victims--so even under this form of merger, the crimes do not merge.

The constitutional protection against double jeopardy prohibits, inter alia, imposing multiple punishments for a single offense. Whalen v. United States, 445 U.S. 684, 688 (1980); North Carolina v. Pearce, 395 U.S. 711, 717 (1969).

The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.

Blockberger v. United States, 284 U.S. 299, 304 (1930). See also Vladovic, 662 P.2d at 858 ("In order to be the 'same offense' for purposes of double jeopardy the offenses must be the same in law and in fact").

The elements of robbery, as instructed by the trial court to the jury in this case are: (1) a taking of personal property (2) from the person or in one's presence (3) by the use or threatened use of force, or violence, or fear of injury, (4) such force or fear being used to obtain or retain possession of the property, and (5) displaying what appears to be a deadly weapon. RCW 9 A. 56.190, .200; Vladovic, 662 P.2d at 858.

The elements of first degree kidnapping on which the court instructed the jury were: (1) intentionally abducting the victim (further defined as restraint of a person by using or threatening to use deadly force), (2) with the intent to facilitate the commission of a felony. RCW 9 A. 40.020(1) (b); Vladovic, 662 P.2d at 858-59. In order to prove robbery, the state must prove a taking of property--an element not required in kidnapping. The state also must prove the use or threatened use of "deadly" force. Robbery requires only a taking by "force" and the display of "what appears to be a deadly weapon." Id., 662 P.2d at 859. Each offense requires proof of an element which the other does not.

Robbery does not require being armed with a "deadly" weapon. Kidnapping does require "deadly" force. The Washington Supreme Court struck the findings that Vladovic was armed with a firearm as to the convictions of robbery and attempted robbery. Vladovic, 662 P.2d at 860. The crimes are distinguishable not only because their basic elements are different and because they had different victims but also because the court struck the finding as to deadly weapon use in the robbery, thereby precluding appellant from being punished for it. Therefore, under the Blockberger test, Vladovic's convictions for first degree robbery and first degree kidnapping do not violate the double jeopardy clause.

Appellant argues that the Blockberger test does not apply here because it is contrary to legislative intent. See Albernaz v. United States, 450 U.S. 333 (1981). The Albernaz exception to the Blockberger rule is inapplicable because there is no clear indication of contrary legislative intent.

Appellant argues that the rule of lenity mandates a single penalty for his two convictions. This rule only applies when there is a statutory ambiguity. Albernaz, 450 U.S. at 342-43. Under the rule of lenity, the courts will not interpret criminal statutes so that an individual's penalty is increased "when such an interpretation can be based on no more than a guess as to what Congress intended." Id. (citing Ladner v. United States, 358 U.S. 169, 178 (1958)). Legislative silence as to whether consecutive sentences can be imposed does not indicate that there is an "ambiguity" in the statute. Albernaz, 450 U.S. at 341-42. There is no ambiguity here so the rule of lenity is inapplicable.

Appellant's equal protection argument also fails. In order to show a violation of the Equal Protection Clause, appellant must show more than just the disparate impact that only he had been singled out to be punished for both crimes. He must show that this disproportionate adverse effect is the result of discriminatory purpose. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 272 (1979). Appellant cannot show that his conviction and sentence establish a suspect classification scheme that is discriminatory. The statutes upon which his conviction is based apply to all persons charged with the commission of the crimes of robbery or kidnapping or both in Washington. "The Fourteenth amendment guarantees equal laws not equal results." Id.

The statutes on their face do not single out appellant or any group classification to which he belongs, save those convicted for violations of the statutes. Appellant cannot show that the statutes were enacted with a discriminatory purpose against him. Without this, appellant has no equal protection claim.

Appellant alleges that by denying his motion to sever his trial from his co-defendant May, the state denied him a constitutionally fair trial. Ordinarily, "defendants jointly charged are to be jointly tried." United States v. Van Cauwenberghe, 827 F.2d 424, 431 (9th Cir. 1987), cert. denied, 108 S. Ct. 773 (1988) (citing United States v. Ramirez, 710 F.2d 535, 545 (9th Cir. 1983)). A trial judge may order a severance if a defendant may be significantly prejudiced by a joint trial with his co-defendants. Van Cauwenberghe, 827 F.2d at 431. Whether severance should be granted is within the sound discretion of the trial court. Id. In order to prove an abuse of discretion, the defendant has to show that a joint trial was "so prejudicial that the trial judge could exercise his discretion in only one way." United States v. Arbelaez, 719 F.2d 1453, 1460 (9th Cir. 1983), cert. denied, 467 U.S. 1255 (1984). Vladovic has the burden of proving "clear," "manifest," or "undue" prejudice from the joint trial and he must show that the prejudice was of "such magnitude that he was denied a fair trial." Van Cauwenberghe, 827 F.2d at 431 (citing United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.), cert. denied, 449 U.S. 856 (1980)). He must show more than that a separate trial would have given him a better chance for acquittal; he must show a violation of a substantive right. Id. First, Vladovic argues that he was unable to call May as a witness because of May's fifth amendment right not to testify; second, he argues that the evidence against May, because he had engaged in a shoot out with police, was "conclusive and sensational" and therefore prejudicial to appellant.

Vladovic and May were originally jointly tried. A mistrial as to Vladovic was called due to a prejudicial remark from a juror; the trial court subsequently, over Vladovic's counsel's objections, also called a mistrial as to May. After retrial and conviction of both defendants, May was granted a writ of habeas corpus due to a violation of double jeopardy (a product of the mistrial called as to him). Vladovic claims that because May should not have been a defendant in the second trial, he was wrongfully denied that opportunity to call him as a witness.

Vladovic submitted an affidavit in support of this claim to the district court in the habeas petition. It stated that Vladovic had never met his co-defendant prior to the date of their arrest and that May had offered, while both defendants were housed at King County Jail immediately after their arrest, to give exonerating testimony on the appellant's behalf. Appellant has not demonstrated that his co-defendant actually would testify in his favor or that this testimony would exculpate him. See United States v. Wood, 550 F.2d 435, 438 (9th Cir. 1976) (no abuse of discretion in denying severance if defendant fails to demonstrate that his co-defendant would actually testify and makes no offer of proof of such); United States v. Cruz, 536 F.2d 1264, 1267-68 (9th Cir. 1976) (no abuse of discretion unless showing that co-defendant would actually testify). The prejudice caused appellant because of the more convincing and inflammatory evidence against May was cured by the trial court's careful instructions to the jury to consider the guilt or innocence of each defendant separately.

The prejudicial effect of evidence relating to the guilt of codefendants is generally held to be neutralized by careful instruction by the trial judge.... [O]ur court assumes that the jury listened to and followed the trial judge's instructions.

Escalante, 637 F.2d at 1202.

Here all the charges arose from the same events at the University of Washington. According to appellees' version of the record, appellant attempted to show how much more clearly guilty May was because of the shoot out with police. Appellant was arrested at the scene, with a mask and gun nearby and his voice and facial similarities were used to identify him. He made inculpatory statements at the scene and had two prior robbery convictions which weighed against his credibility as a witness. If the record shows this to be true, this evidence along with the fact the trial judge carefully instructed the jury, refutes appellant's contention he was denied a fair trial. The trial judge did not abuse his discretion in denying appellant his motion to sever.

Appellant asserts allegations of misconduct by the state which resulted in suppression of evidence and witnesses, failure to preserve evidence and prejudicial delay of disclosure. None of the allegations made by appellant would have altered the verdict even if true. The district court found that appellant's contentions were basically without proof and without merit. In order to be a constitutionally unfair trial, defendant must show his defense was actually prejudiced. United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). Appellant has failed to show actual prejudice.

Appellant alleges the evidence presented at trial was insufficient to sustain his conviction for robbery in the first degree. He specifically alleges that there was no proof that Mr. Jensen's $12 was taken and that appellant had it. The Constitution requires that each element of a crime be proven beyond a reasonable doubt. In re Winship, 397 U.S. 358 (1970). In a federal habeas corpus challenge, the appellant is entitled to relief only if he can show that viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found proof of guilty beyond a reasonable doubt. Newton v. Superior Court, 803 F.2d 1051, 1059 (9th Cir. 1986), cert. denied, 107 S. Ct. 2464 (1987); Jackson v. Virginia, 443 U.S. 307, 316 (1979).

The evidence to support the conviction includes the testimony of the robbery victim inculpating the appellant in the acts of binding the victim's hands, blindfolding the victim, removing the victim's wallet, and carrying a gun during these acts. A police officer made a positive identification of appellant at the crime scene and another officer saw appellant near the crime scene. The appellant made inculpatory statements and the gun and ski mask were found near him when he was apprehended. The fact that appellant proffered his own version of the story does not make the evidence the jury considered insufficient. A rational trier of fact could have found proof beyond a reasonable doubt here.

CONCLUSION

Appellant has failed to demonstrate that he was denied any of his federal constitutional rights. Thus, appellant has not stated a claim for habeas relief and the district court's order denying appellant's petition is AFFIRMED.

AFFIRMED.