(HC) Presley v. Madden, No. 2:2014cv01991 - Document 25 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 8/3/2015 RECOMMENDING that petitioner's 1 application for a writ of habeas corpus be denied; and the District Court decline to issue a certificate of appealability. Referred to Judge Garland E. Burrell, Jr.; Objections due within 14 days. (Yin, K)

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(HC) Presley v. Madden Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEWAYNE PRESLEY, 12 Petitioner, 13 14 No. 2:14-cv-1991 GEB GGH P v. FINDINGS AND RECOMMENDATIONS RAYMOND MADDEN,1 15 Respondent. 16 Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus 17 18 pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him 19 on March 4, 2010, in the Sacramento County Superior Court on charges of first degree attempted 20 murder, assault with a firearm, and battery causing serious bodily injury, as well as various 21 enhancements. (CT 228.) Petitioner seeks federal habeas relief on the following grounds: (1) the 22 conviction was obtained by violation of the double jeopardy clause; (2) the trial court erred in 23 providing a new instruction to a jury that was deliberating; (3) it was prejudicial error to admit 24 improper expert testimony regarding petitioner’s intent to benefit a gang; and (4) “jury was 25 1 26 27 28 The court grants respondent's request to substitute Raymond Madden, the current warden of Centinela State Prison, as respondent in this matter. See Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994) (“A petitioner for habeas corpus relief must name the state officer having custody of him or her as the respondent to the petition.”); Rule 2(a), 28 U.S.C. foll. § 2254). 1 Dockets.Justia.com 1 instructed pursuant to a version of an [aider and abettor] instruction whose ‘equally guilty’ 2 language has since been excised.” Upon careful consideration of the record and the applicable 3 law, the undersigned will recommend that petitioner’s application for habeas corpus relief be 4 denied. 5 BACKGROUND 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 In its memorandum and opinion, which was certified for partial publication, the California Court of Appeal for the Third Appellate District provided the following factual summary: Presley and Whitaker III beat and tried to shoot Melvin Weathers at the behest of Whitaker, in retaliation for a prior incident in which Weathers had broken Whitaker's jaw. Presley and Whitaker III, and a broken rifle, were found near the scene. Whitaker's sister, Beverly Robinson, reported that Whitaker had “hyped” up the other defendants into attacking Weathers. Each defendant was a member of the East Side Piru gang. Each defendant was convicted of attempted premeditated murder and other charges, and each received a life sentence. After the first jury was selected, the trial court delayed swearing in the jury, pending resolution of prosecution witness problems. When those problems were resolved adversely to the People, they moved to dismiss the case for lack of evidence. The trial court granted the motion, and the People later refiled the charges. Defendants then moved to dismiss the refiled charges, contending that allowing the People to refile the charges improperly thwarted double jeopardy protections, and violated due process principles. The trial court denied the defendants' motions, and the jury trial ensued. In the published portion of this opinion (Part I), we first describe the events leading to the dismissal of defendant's first case. Then, as we explain, we assume the trial court erred in finding good cause to delay swearing in the first jury, but conclude that this error does not require reversal of the convictions arising from the jury verdicts, because defendants have not suffered a double jeopardy or due process violation. In the unpublished portion of this opinion (Part II), we describe the facts relevant to the jury trial from which defendants' appeals were taken, and reject all other contentions raised. However, we have discovered an error in the abstracts of judgment that must be corrected as to each defendant. Accordingly, we shall affirm the judgments and direct the trial court to prepare corrected abstracts of judgment. [The background facts pertaining to the Double Jeopardy and Due Process claims will be repeated in that section.] 28 2 1 2 3 4 5 6 7 8 Weathers, age 38, testified he had known Whitaker since they were 16. In December 2007, Weathers “sucker punched” Whitaker in the jaw. About two weeks later, on December 27, 2007, Weathers was attacked by “Wheezy” (Presley), who split Weathers’s head. As Weathers struggled with Presley, Whitaker III approached with a long gun. Weathers pushed the gun barrel away, and “that’s when he fired on me.” Weathers woke up in the hospital. Whitaker’s sister, Gwendolyn Davis, had Weathers sign a letter seeking to retract the charges. [N. 11] Weathers thought the attack was in retaliation for his earlier fight with Whitaker. Weathers had identified photographs of Whitaker III as showing the person with the gun, Presley as the person hitting him, and Whitaker as the person he had recently punched. [N. 11] Davis testified Weathers had asked her to write that letter because he was illiterate. 9 10 11 12 At the hospital, Weathers told a deputy three men attacked him, including “James Whitaker” (as the deputy had recorded the name) and “Wheezy,” who Weathers thought was “James Whitaker’s” son, Weathers thought both of these men were “East Side Piru,” and “James Whitaker” had told Weathers he had “disrespected him in front of some people,” and had told him “I’m going to do something to you[.]” 13 14 15 16 17 18 A neighbor, David Penn, testified he saw two people fighting with Weathers. The taller attacker had a long rifle pointed to Weathers’s head, and Weathers was holding the rifle barrel. The taller man tried to chamber a round, then turned the rifle around and clubbed Weathers with the butt several times “Like a golf club[,]” then the two men fled. Penn testified exhibit 51 (in two parts, marked 51-A and 51-B) looked like the rifle he saw the men use, and which broke “after the last hit[.]” Penn had identified the shorter of the two men at a field showup shortly after the incident, but he could not identify that man in court. Deputy Kristen Cook testified Penn had identified Presley. 19 20 Constance Goins, Whitaker’s sister, denied knowing or having said anything about what happened, but admitted Whitaker was upset at Weathers for breaking his jaw. 21 22 Beverly Robinson, also Whitaker’s sister, testified she told a deputy what she had heard from others, and denied making specific statements to a detective. 23 24 25 26 27 28 However, Detective Nathan Wise testified he spoke with Robinson on May 22, 2008, and she said people (including her sister, Goins) were mad at her for speaking to the police and wanted her to change her story. Robinson told him she was angry at Whitaker for making her nephew Whitaker III “do his dirty work” for him. Robinson said Whitaker told her son (Kevin Davis) that he had a gun and needed help “handling” Weathers, and Whitaker “might not make it back[.]” Robinson said Whitaker told Whitaker III and Presley “they had to do this for East Side Piru” and the men left after Whitaker “was giving them liquor and pumping them up” 3 1 2 shortly before the shooting. Robinson said that Whitaker had told people Robinson was “snitching,” and when Robinson had left the courtroom earlier, Detective Wise overheard her say she could not live in Rancho Cordova anymore. 3 4 5 6 7 8 9 10 11 12 13 14 Deputy Charles Gailey testified he spoke to Robinson the day after the incident. Robinson said the police caught two people, but Whitaker got away, and she was mad that he had involved her nephew in the incident. She had been with all three defendants the night before, and Whitaker “hyped them up and talked them into doing his dirty work” for him. Deputy Gailey also spoke with Kevin Davis, who told him the defendants had been drinking together, Whitaker “is a coward and he hyped the other two up and got them to fight his battle” and Whitaker said he had a “chopper” (a gun), and might not make it back. [N. 12] [N.12] Davis testified he was not with any of the defendants the day before he spoke to a deputy, and he denied making the various statements to the deputy. Deputy Ian Carver found unfired rifle cartridges and one fired casing near where Weathers was found unconscious. Carver’s canine partner “Ike” found Whitaker III and Presley nearby. Another officer testified Whitaker III wore red and black clothing with a “P” on the belt, as typically worn by East Side Piru gang members. Another officer found the rifle about a quarter of a mile away in some bushes, near where the two later-detained men had jumped a fence. 15 16 17 A criminalist testified the rifle found nearby could have been used to “cycle” the cartridges found at the scene, but because of the rifle’s poor condition, he was not able to fire it and determine for sure. The barrel was bent and the stock had blood spatters on it, consistent with the rifle having been used as a bludgeon. [N. 13] 18 19 20 21 22 23 24 25 26 27 28 [N. 13] Presley’s jury heard testimony that Presley’s DNA was not found on the rifle. Detective Burk Stearns testified about his gang expertise. He had particular experience with the East Side Piru members to wear red clothing, and have a “P” on their belts. They strived for respect and reputation, and retaliated against those that impaired their goals. It was important for a member to “[put] in work” for the gang, such as by committing an assault for another gang member. Gang activities included drug sales, homicides, vehicle thefts, assaults, and robberies. Gang violence discouraged victims or witnesses from reporting gang activities or testifying about them. Stearns “validated” Presley (“Wheezy”) as an East Side Piru member based on his arrest while in possession of narcotics and a loaded gun, a “’Chedda Boys’” tattoo (which referred to a subset of the East Side Piru gang), his association with the Whitakers, and his fight with a rival Crip member while in jail. [N. 14] Stearns validated Whitaker III (“Little G”) as an East Side Piru member, based on gang tattoos, clothing, the “P” belt buckle, associating 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 with the other defendants, and information from other law enforcement sources. [N. 15] Stearns validated Whitaker (“G”) as an East Side Piru member based on the instant crimes, a prior incident involving drug sales while wearing gang clothing in a gang area, and other times Whitaker had worn gang clothing. In response to a hypothetical based closely on the facts of this case, Detective Stearns opined the incident would be gang-related. The younger assailants would be putting in work toward enhancing their gang status, and the gang would benefit by signaling that its members cannot be attacked. In response to a further question, based on an older gang victim’s instructions to younger gang members to retaliate, Stearns testified this would bolster his opinion that the later attack was gang related. [N. 14] In testimony before the Presley jury, Stearns also referred to documents from Presley’s jail cell referring to “Chedda Boys” and other gang subjects. [N. 15] The trial court excluded on Miranda grounds (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]) a statement by Whitaker III admitting he was a gang member, and also refused to allow the gang expert to rely on that statement. We express no view on the propriety of the latter ruling. Detective Stearns was present when Robinson told Detective Wise that she heard Whitaker tell her son (Davis) that Whitaker had a gun and needed help “handling” Weathers. She also said people were “getting on” her for talking to police, but it was not right for Whitaker to make his son do his dirty work. Robinson’s sister (Goins) had told Robinson to change her story. Robinson said Whitaker said he might not make it back, he gave the other defendants liquor, and told them they had to do it for East Side Piru. Presley’s counsel partly argued he was intoxicated and that he did not have the intent for aider liability. 19 20 21 22 23 24 Presley’s jury found him guilty of attempted premeditated murder, found he personally inflicted great bodily injury, committed the crime to benefit a gang, and that a principal personally used a firearm. (§§ 664/187), subd. (a), 12022.7, subd. (a), 186.22, subd. (b)(1); see § 12022.53, subd. (e).) The jury also found him guilty of assault with a firearm and battery causing serious bodily injury (§§ 245, subd. (a)(2), 243, subd. (d)), with various findings, sentences on which were stayed. The court sentenced him to an unstayed prison term of life (with a parole eligibility period of seven years) plus 13 years. Presley timely appealed. 25 26 (Res’t’s Lod. Doc. 23 at 2, 213 Cal.App.4th 999, 1002-1003, 153 Cal. Rptr.3d 165 (2013); 27 Res’t’s Lod. Doc. 23 at 17-22.) 28 After petitioner’s judgment of conviction was affirmed by the California Court of Appeal, 5 1 he filed a petition for review in the California Supreme Court. (Resp’t’s Lod. Doc. 24.) The 2 Supreme Court denied the petition without comment or citation on May 22, 2013. (Resp’t’s Lod. 3 Doc. 25.) Petitioner filed a petition for writ of certiorari on the double jeopardy issue with the 4 Supreme Court on August 17, 2013, and it was denied on November 14, 2013. (Resp’t’s Lod. 5 Docs. 26, 27.) On September 15, 2014, petitioner filed a habeas petition with Kern County 6 Superior Court. (Resp’t’s Lod. Doc. 28.) It was denied on October 14, 2014. (Resp’t’s Lod. 7 Doc. 29.) On August 19, 2014, petitioner filed the instant federal habeas petition in this court. 8 DISCUSSION 9 I. AEDPA Standards 10 The statutory limitations of federal courts’ power to issue habeas corpus relief for persons 11 in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective 12 Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states: 13 14 15 16 17 18 19 20 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 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. For purposes of applying § 2254(d)(1), clearly established federal law consists of holdings 21 of the United States Supreme Court at the time of the last reasoned state court decision. 22 Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir.2013) (citing Greene v. Fisher, ___ U.S. 23 ___, 132 S.Ct. 38, 44 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir.2011) (citing 24 Williams v. Taylor, 529 U.S. 362, 405–06, 120 S. Ct. 1495 (2000)). Circuit court precedent may 25 be instructive in determining what law is clearly established by the Supreme Court and whether a 26 state court applied that law unreasonably. Stanley, 633 F.3d at 859. However, circuit precedent 27 may not be “used to refine or sharpen a general principle of Supreme Court jurisprudence into a 28 specific legal rule that th[e] [Supreme] Court has not announced.” Marshall v. Rodgers, ––– U.S. 6 1 ––––, ––––, 133 S. Ct. 1446, 1450 (2013) (citing Parker v. Matthews, ___ U.S. ___, 132 S. Ct. 2 2148, 2155 (2012)). Nor may it be used to “determine whether a particular rule of law is so 3 widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, 4 be accepted as correct. Id. 5 A state court decision is “contrary to” clearly established federal law if it applies a rule 6 contradicting a holding of the Supreme Court or reaches a result different from Supreme Court 7 precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640, 123 S. Ct. 8 1848 (2003). Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court 9 may grant the writ if the state court identifies the correct governing legal principle from the 10 Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's 11 case.2 Lockyer v. Andrade, 538 U.S. 63, 75, 123 S. Ct. 1166 (2003); Williams, 529 U.S. at 413; 12 Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court “may 13 not issue the writ simply because that court concludes in its independent judgment that the 14 relevant state-court decision applied clearly established federal law erroneously or incorrectly. 15 Rather, that application must also be unreasonable.” Williams, 529 U.S. at 412. See also Schriro 16 v. Landrigan, 550 U.S. 465, 473, 127 S. Ct. 1933 (2007); Lockyer, 538 U.S. at 75 (it is “not 17 enough that a federal habeas court, in its independent review of the legal question, is left with a 18 ‘firm conviction’ that the state court was ‘erroneous.’ ”). “A state court's determination that a 19 claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on 20 the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 21 770 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140 (2004)).3 22 2 23 24 25 26 27 28 The undersigned also finds that the same deference is paid to the factual determinations of state courts. Under § 2254(d)(2), a state court decision based on a factual determination is not to be overturned on factual grounds unless it is “objectively unreasonable in light of the evidence presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford, 384 F.3d 628, 638 (9th Cir.2004)). It makes no sense to interpret “unreasonable” in § 2254(d)(2) in a manner different from that same word as it appears in § 2254(d)(1) – i.e., the factual error must be so apparent that “fairminded jurists” examining the same record could not abide by the state court factual determination. A petitioner must show clearly and convincingly that the factual determination is unreasonable. See Rice v. Collins, 546 U.S. 333, 338, 126 S. Ct. 969, 974 (2006). 3 “For purposes of § 2254(d)(1), ‘an unreasonable application of federal law is different from an 7 1 Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner 2 must show that the state court's ruling on the claim being presented in federal court was so 3 lacking in justification that there was an error well understood and comprehended in existing law 4 beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. 5 The court looks to the last reasoned state court decision as the basis for the state court 6 judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). 7 If the last reasoned state court decision adopts or substantially incorporates the reasoning from a 8 previous state court decision, this court may consider both decisions to ascertain the reasoning of 9 the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). 10 “[Section] 2254(d) does not require a state court to give reasons before its decision can be 11 deemed to have been ‘adjudicated on the merits.’” Harrington, 562 U.S. at 100. Rather, “[w]hen 12 a federal claim has been presented to a state court and the state court has denied relief, it may be 13 presumed that the state court adjudicated the claim on the merits in the absence of any indication 14 or state-law procedural principles to the contrary.” Id. at 784-85. This presumption may be 15 overcome by a showing “there is reason to think some other explanation for the state court's 16 decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 17 2590 (1991)). Similarly, when a state court decision on a petitioner's claims rejects some claims 18 but does not expressly address a federal claim, a federal habeas court must presume, subject to 19 rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___, 20 133 S. Ct. 1088, 1091 (2013). 21 When it is clear, however, that a state court has not reached the merits of a petitioner's 22 claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal 23 habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 24 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003). 25 26 The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 27 28 incorrect application of federal law.’” Harrington, 562 U.S. at 101, citing Williams v. Taylor, 529 U.S. 362, 410, 120 S. Ct. 1495 (2000). 8 1 365 (2002). Where the state court reaches a decision on the merits but provides no reasoning to 2 support its conclusion, a federal habeas court independently reviews the record to determine 3 whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. 4 Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo 5 review of the constitutional issue, but rather, the only method by which we can determine whether 6 a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no 7 reasoned decision is available, the habeas petitioner still has the burden of “showing there was no 8 reasonable basis for the state court to deny relief.” Harrington, 562 U.S. at 98. 9 A summary denial is presumed to be a denial on the merits of the petitioner's claims. 10 Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze 11 just what the state court did when it issued a summary denial, the federal court must review the 12 state court record to determine whether there was any “reasonable basis for the state court to deny 13 relief.” Harrington, 562 U.S. at 98. This court “must determine what arguments or theories ... 14 could have supported, the state court's decision; and then it must ask whether it is possible 15 fairminded jurists could disagree that those arguments or theories are inconsistent with the 16 holding in a prior decision of [the Supreme] Court.” Id. at 786. “Evaluating whether a rule 17 application was unreasonable requires considering the rule’s specificity. The more general the 18 rule, the more leeway courts have in reaching outcomes in case-by-case determinations.’” Id. 19 Emphasizing the stringency of this standard, which “stops short of imposing a complete bar of 20 federal court relitigation of claims already rejected in state court proceedings[,]” the Supreme 21 Court has cautioned that “even a strong case for relief does not mean the state court’s contrary 22 conclusion was unreasonable.” Id., citing Lockyer v. Andrade, 538 U.S. 63, 75, 123 S. Ct. 1166 23 (2003). 24 The petitioner bears “the burden to demonstrate that ‘there was no reasonable basis for the 25 state court to deny relief.’” Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting 26 Harrington, 562 U.S. at 98). 27 II. Double Jeopardy and Due Process 28 Petitioner claims that after the jury was selected and empaneled, the prosecution 9 1 convinced the court to delay the jury’s swearing in until after a due diligence hearing, which the 2 prosecution lost. The prosecution then dismissed the case for insufficient evidence, only to re-file 3 it at a later time. Petitioner argues that even though the jury was not sworn, his double jeopardy 4 and due process rights were violated. 5 Respondent contends that because the jury was not sworn, double jeopardy did not attach. 6 For the same reason, respondent argues that petitioner did not have a right to a particular jury, the 7 one that was empaneled but not sworn. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The California Court of Appeal recited the following background and analysis: A. Background Defendants initially were charged in case No. 07F19992. November 6, 2008, was the last day to bring the case to trial, because none of the defendants had waived time. (See Pen.Code, § 1382.) [N. 2] The People announced “ready” for trial, and the case was assigned to the first trial court. [N. 2] Further date references are to 2008 unless otherwise specified. Further undesignated statutory references are to the Penal Code. When the trial court asked if the People had any matters to be heard, the People replied that they wanted the trial deemed “commenced” to avoid a speedy trial dismissal, and the parties agreed the trial had indeed commenced. [N. 3] Later, the People conceded that Weathers had not been subpoenaed, but stated they would seek to have Weathers's prior testimony admitted. The trial court lifted the stay of a bench warrant for Robinson, who had been subpoenaed and failed to appear. [N. 3] For purposes of section 1382, providing a statutory speedy trial right, trial begins when elements “vital to undertaking a trial be present” and the parties are “‘ready to proceed[.]’” (People v. Hajjaj (2010) 50 Cal.4th 1184, 1196–1197, 117 Cal.Rptr.3d 327, 241 P.3d 828; see Perryman v. Superior Court (2006) 141 Cal.App.4th 767, 776, 46 Cal.Rptr.3d 306 (Perryman) [trial begins “when jeopardy attaches ... or when the litigation of contested issues otherwise begins”].) Had the trial not been deemed started at that time, the People would have had to show good cause for a continuance to secure their witnesses. (Perryman, supra, 141 Cal.App.4th at pp. 777–778, 46 Cal.Rptr.3d 306.) On November 12, the People moved in limine to introduce the preliminary hearing testimony of Weathers and Robinson, and the defense sought discovery of efforts made to locate them. The prior testimony could be admitted if and only the People showed those witnesses were “unavailable[,]” which turned on whether the 10 1 2 People “exercised reasonable diligence” to ensure their appearance. (Evid.Code, §§ 240, subd. (a)(5), 1291, subd. (a)(2); see People v. Bunyard (2009) 45 Cal.4th 836, 849, 89 Cal.Rptr.3d 264, 200 P.3d 879.) 3 4 5 On Thursday, November 13, the People stated a diligence report would be ready the next court day, Monday, but the defense objected and sought a “live” hearing on diligence. The trial court directed the clerk to have a panel of jurors available on Monday morning. 6 7 8 On Monday, November 17, after the People filed a fourth amended information, the trial court asked if there was “any matter” to address before jury selection, the People said there was not, and jury selection began. Later, defense counsel acknowledged receipt of discovery on diligence. 9 10 11 On Wednesday, November 19, the People presented to the court a deputy's testimony about efforts to find Robinson. Without objection, the trial court continued the diligence hearing to “the most convenient opportunity that we have after we either select the jury or during jury selection[.]” Jury selection continued that day. 12 13 14 15 On Thursday, November 20, the jurors and alternates were selected but not sworn. The People announced they had additional witnesses to present regarding diligence, and defense counsel referred to an earlier objection to the court's failure to swear the jury. The People's witnesses testified about efforts to locate Robinson and Weathers, and the trial court heard argument on the People's motion. 16 17 18 On Friday, November 21, after the People recalled one witness, the trial court found the People had not shown adequate diligence with respect to either Weathers or Robinson, and denied the People's motion to allow the witnesses' prior testimony to be introduced at trial. 19 20 21 22 23 24 25 26 27 28 On Monday, November 24, the People moved to dismiss the case for insufficiency of the evidence, in light of the trial court's evidentiary ruling. (See § 1385.) [N. 4] One defense counsel objected that the dismissal should be with prejudice, alleging the People were “Judge shopping.” Another defense counsel stated: “We objected to the lack of swearing in of the jurors ... prior to the selection of the alternates, and we continue to believe that jeopardy should have attached last week[.]” [N. 4] Insufficient evidence is a valid ground for a section 1385 dismissal, as is a dismissal to allow the People to secure further witnesses. (See People v. Hatch (2000) 22 Cal.4th 260, 268–271, 92 Cal.Rptr.2d 80, 991 P.2d 165; People v. Orin (1975) 13 Cal.3d 937, 946, 120 Cal.Rptr. 65, 533 P.2d 193.) The trial court stated it had found “good cause not to swear the jury upon their selection, nor the alternates. [¶] The Court was well aware, as were all counsel, that the People were attempting in 11 1 2 3 4 5 various ways to secure the presence of the victim, Lamont Weathers and ... witness Beverly Robinson. [¶] We had not yet concluded the diligence hearing, so there was no firm evidence of what efforts had been discharged by the People in that regard. [¶] So the Court, with that scenario, found there was sufficient cause not to swear the jury.” The trial court also stated it had been “anticipating” that the People might not show due diligence. The trial court granted the motion to dismiss, and later thanked and excused the jurors. 6 7 8 9 10 11 12 13 14 15 16 The People refiled the charges on November 26; a second trial court presided over the refiled case. Each defendant entered a plea of once in jeopardy, moved to dismiss raising due process and double jeopardy grounds, and later raised those issues in their new trial motions. The defense argued the first trial court should not have delayed swearing the jury to allow the People “time to fix the problems in their case” and then allow them to dismiss and refile after they failed to fix those problems. Instead of seeking a continuance before jury selection began (see fn. 3, ante), when the People “declared ready, for all purposes, [they took] the risk that [they] would not be able to get [their] witnesses.” As a result, defendants were subjected to increased incarceration and lost the opportunity to have that first jury “decide their fate with the evidence that was available to the People at the time, which ... they admit was absolutely nothing.” The People's consistent response was that jeopardy had not attached, and that the first trial court “knew exactly what he was doing in not swearing [in] the jury. He was taking things in a certain order, well within [his] rights.” 17 18 19 20 21 22 23 The second trial court denied the various defense motions, finding that jeopardy had never attached.[N. 5] [N. 5] We reject the People's claim that defendants were mounting an improper collateral attack on the first trial court's ruling. (Cf. Armstrong v. Armstrong (1976) 15 Cal.3d 942, 950–952, 126 Cal.Rptr. 805, 544 P.2d 941.) As defense counsel argued below, the second trial court had a duty to rule on the motions to dismiss, and was not merely reviewing the prior judge's rulings for error as such. By moving to dismiss, defendants preserved their claims. (See Batts, supra, 30 Cal.4th at p. 676, 134 Cal.Rptr.2d 67, 68 P.3d 357 [“ ‘a claim of double jeopardy is most appropriately raised by way of a pretrial motion to dismiss' ”].) 24 B. Analysis 25 26 27 28 Before analyzing the specific defense contentions, we first review some general rules about double jeopardy. “The Fifth Amendment to the United States Constitution, which applies to the states through the Fourteenth Amendment [citation] ), protects defendants from repeated prosecution for the 12 1 2 3 same offense [citations], by providing that no person shall ‘be subject for the same offense to be twice put in jeopardy of life or limb....’” (People v. Batts (2003) 30 Cal.4th 660, 678, 134 Cal.Rptr.2d 67, 68 P.3d 357 (Batts).) The California Constitution contains a similar provision. (Cal. Const., art. I, § 15 [“Persons may not twice be put in jeopardy for the same offense”].) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 In Downum v. United States (1963) 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (Downum), the parties “announced ready” but, after the jury was sworn, the prosecutor asked for it to be discharged because a witness could not be found. The trial court discharged the jury, and later overruled a plea of former jeopardy. (Downum, supra, 372 U.S. at p. 735, 83 S.Ct. at pp. 1033–1034, 10 L.Ed.2d at p. 102.) In reversing the judgment, Downum endorsed a Ninth Circuit case on similar facts, holding “‘The fact is that, when the district attorney impaneled the jury without first ascertaining whether or not his witnesses were present, he took a chance.... The situation presented is simply one where the district attorney entered upon the trial of the case without sufficient evidence to convict.’ ” (Id. at p. 737, 83 S.Ct. at p. 1035, 10 L.Ed.2d at p. 102, quoting Cornero v. United States (9th Cir.1931) 48 F.2d 69, 71.) Downum has been characterized as involving “a particularly unpardonable fault of the prosecutor—unpreparedness.” (Schulhofer, Jeopardy and Mistrials (1977) 125 U.Pa.L.Rev. 449, 466.) A later high court case described Downum as involving “a defective procedure that would lend itself to prosecutorial manipulation” and where the procedure “operated as a postjeopardy continuance to allow the prosecution an opportunity to strengthen its case.” (Illinois v. Somerville (1973) 410 U.S. 458, 464, 469, 93 S.Ct. 1066, 1070, 1073, 35 L.Ed.2d 425, 431, 434.) Thus, it is clear that had the jury been sworn, the People would not have been able to legally refile the charges after successfully moving to dismiss them, because double jeopardy principles prevent “a prosecutor or judge from subjecting a defendant to a second prosecution by discontinuing the trial when it appears that the jury might not convict.” (Green v. United States (1957) 355 U.S. 184, 188, 78 S.Ct. 221, 224, 2 L.Ed.2d 199, 204– 205 ( Green ); see State v. Stani (N.J.App.Div.1984) 197 N.J.Super. 146, 151, 484 A.2d 341, 343 [“the State may not retreat from the field when its case turns sour and then be permitted to sally forth on a future day before a new jury when its case is refreshed and reinforced”].) [N. 6] 23 24 25 26 27 28 [N. 6] Of course, if a judge learns a juror is unfit, or for other reasons it is impossible for the trial to continue, the jury must be discharged and a retrial is permitted for “manifest necessity [.]” (Wade v. Hunter (1949) 336 U.S. 684, 689–690, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978–979; see Batts, supra, 30 Cal.4th at p. 679, 134 Cal.Rptr.2d 67, 68 P.3d 357.) We note a disagreement about the scope of Green in the recent divided decision in Blueford v. Arkansas (2012) 566 U.S. –– ––, 132 S.Ct. 2044, 182 L.Ed.2d 937, after a sworn jury failed to 13 1 return verdicts. That issue is not germane here. 2 We now address defendants' specific claims of error. 3 4 5 6 7 8 9 10 11 12 13 14 15 1. Abuse of Discretion We accept, for purposes of argument, defendants' view that the first trial court abused its discretion by delaying swearing the jury for reasons extrinsic to jury selection. By statute, after all parties have exercised or passed exercising peremptory challenges, “the jury shall then be sworn, unless the court, for good cause, shall otherwise order.” (Code Civ. Proc., § 231, subds. (d) & (e).) The trial court's discretion to find such good cause “will not be set aside absent a clear showing of abuse.” (People v. Niles (1991) 233 Cal.App.3d 315, 320–321, 284 Cal.Rptr. 423 (Niles) [construing former § 1088].) Further, the trial court has the inherent discretionary power “To provide for the orderly conduct of proceedings before it[.]” (Code Civ. Proc., § 128, subd. (a)(3); see People v. Alvarez (1996) 14 Cal.4th 155, 209, 58 Cal.Rptr.2d 385, 926 P.2d 365.) But discretion is always delimited by applicable legal standards, a departure from which constitutes an “abuse” of discretion. (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297–1298, 255 Cal.Rptr. 704; see County of Yolo v. Garcia (1993) 20 Cal.App.4th 1771, 1778, 25 Cal.Rptr.2d 681 [“the range of judicial discretion is determined by analogy to the rules contained in the general law and in the specific body or system of law in which the discretionary authority is granted”].) 16 17 18 19 20 21 22 Certainly a problem regarding jury selection would provide good cause to delay swearing a jury. (See People v. DeFrance (2008) 167 Cal.App.4th 486, 503–504, 84 Cal.Rptr.3d 204 (DeFrance) [“There was a real, substantive and objective need to reopen jury selection”]; Niles, supra, 233 Cal.App.3d at pp. 320– 321, 284 Cal.Rptr. 423 [no abuse of discretion in denying request to reopen to allow peremptory challenge, because the facts about the seated juror had been known before]; People v. Griffin (2004) 33 Cal.4th 536, 564–567, 15 Cal.Rptr.3d 743, 93 P.3d 344 (Griffin); accord, In re Mendes (1979) 23 Cal.3d 847, 851, 153 Cal.Rptr. 831, 592 P.2d 318 (Mendes) [after jury proper—but no alternates— sworn, juror excused after she advised that her brother died during the night, and the parties were permitted to select another juror].) 23 24 25 26 But here, the sole reason for not swearing the jury was to avoid the rule of Downum, supra, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100, because the first trial court anticipated it might rule against the People on their evidentiary motion. The People provide no authority upholding delay in swearing a jury for reasons unrelated to jury selection. 27 28 Generally, a trial court abuses its discretion by basing a discretionary decision on improper factors. (See, e.g., People v. 14 1 2 3 4 5 Sandoval (2007) 41 Cal.4th 825, 847, 62 Cal.Rptr.3d 588, 161 P.3d 1146; People v. Carmony (2004) 33 Cal.4th 367, 378, 14 Cal.Rptr.3d 880, 92 P.3d 369.) Accordingly, we shall assume for purposes of argument that the first trial court abused its discretion by basing its decision on a factor unrelated to jury selection. 2. Double Jeopardy Assuming the first trial court erred by not timely swearing the jury, the result did not violate double jeopardy as such. 6 7 8 9 10 11 12 13 14 15 16 17 18 The United States and California high courts apply a brightline rule: In a jury trial, jeopardy attaches when the jury is sworn. (Crist v. Bretz (1978) 437 U.S. 28, 37–38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24, 32–33 ( Crist ); People v. Riggs (2008) 44 Cal.4th 248, 278, fn. 12, 79 Cal.Rptr.3d 648, 187 P.3d 363 [“once a jury has been sworn, jeopardy has attached” for state and federal double jeopardy] (Riggs); Curry v. Superior Court (1970) 2 Cal.3d 707, 712, 87 Cal.Rptr. 361, 470 P.2d 345 ( Curry ).) [N. 7] [N. 7] There may be a distinction between swearing the jury proper and swearing the alternates. (See Griffin, supra, 33 Cal.4th at pp. 565–566, 15 Cal.Rptr.3d 743, 93 P.3d 344; Mendes, supra, 23 Cal.3d at pp. 852–856, 153 Cal.Rptr. 831, 592 P.2d 318; cf. People v. Cottle (2006) 39 Cal.4th 246, 254–258, 46 Cal.Rptr.3d 86, 138 P.3d 230; DeFrance, supra, 167 Cal.App.4th at p. 503, 84 Cal.Rptr.3d 204.) Not surprisingly, the parties express differing views on that point. As resolution of this issue is not necessary to our decision in this case, we need not and do not address it. Accordingly, the second trial court correctly concluded it was bound to overrule the pleas of former jeopardy, and deny the dismissal and new trial motions to the extent they were based solely on double jeopardy claims. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937 (Auto Equity Sales).) 19 20 21 22 23 24 Defendants invite us to “fix jeopardy at the point where the jurors are indeed chosen, viewing the oath as an administrative technicality that has no bearing on the question of jeopardy, except, perhaps, where good cause [to delay swearing the jury] has actually been established and proved.” They correctly contend that California courts may invoke independent state grounds to interpret the California Constitution's double jeopardy provision more broadly than the analogous federal provision. (See, e.g., People v. Hanson (2000) 23 Cal.4th 355, 97 Cal.Rptr.2d 58, 1 P.3d 650; People v. Fields (1996) 13 Cal.4th 289, 297–298, 302, 52 Cal.Rptr.2d 282, 914 P.2d 832 (Fields).) 25 26 27 28 However, our Supreme Court precedent fixes the point of attachment of jeopardy in a jury trial as the time when the jury is sworn, not the point it should have been sworn. (Riggs, supra, 44 Cal.4th at p. 278, fn. 12, 79 Cal.Rptr.3d 648, 187 P.3d 363; Curry, supra, 2 Cal.3d at p. 712, 87 Cal.Rptr. 361, 470 P.2d 345.) We are not free to change that rule. (See Auto Equity Sales, supra, 57 15 1 Cal.2d at p. 455, 20 Cal.Rptr. 321, 369 P.2d 937.) 2 However, these conclusions about double jeopardy, in and of themselves, do not necessarily resolve defendant's due process claims. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 3. Due Process Defendants reimport from double jeopardy jurisprudence harms against which that doctrine protects, and claim that the occurrence of such harms deprived them of due process. First, they contend they were deprived of their right to be tried by the jury that had been selected and was ready to try the case. Second, analogizing to cases of outrageous governmental conduct and prosecutorial misconduct, they accuse the People of manipulating the proceedings to secure a second opportunity to muster evidence against them. We are not persuaded by either claim. Before addressing the specifics of these two defense claims, we outline some of the purposes served by the double jeopardy rule. Our Supreme Court has stated: “It prevents the state from having a second opportunity to marshal evidence which it failed to produce at the first opportunity. It reduces the risk that, by effectively lessening the People's burden of proof, an innocent person might be convicted. It protects an accused from the embarrassment, expense and ordeal of a second trial.” (Mendes, supra, 23 Cal.3d at p. 855, 153 Cal.Rptr. 831, 592 P.2d 318.) The rule also ensures “that the defendant's right to have his fate decided by the first jury empaneled is protected[.]” (Weston v. Kernan (9th Cir.1995) 50 F.3d 633, 636 (Weston).) [N. 8] [N. 8] Other purposes served by the doctrine have been mentioned, but are not relevant to this appeal. (See, e.g., Fields, supra, 13 Cal.4th at pp. 298–299, 52 Cal.Rptr.2d 282, 914 P.2d 832; Weston, supra, 50 F.3d at p. 636.) 20 We now address defendants' due process claims separately. 21 a. Right to a Particular Jury 22 23 24 25 26 27 28 Precedent holds that the right to be tried by the particular jury that has been selected is protected by double jeopardy principles. (See Crist, supra, 437 U.S. at p. 36, 98 S.Ct. at p. 2161, 57 L.Ed.2d at pp. 31–32 [referring to the “strong tradition that once banded together a jury should not be discharged until it had completed its solemn task of announcing a verdict”]; Downum, supra, 372 U.S. at p. 736, 83 S.Ct. at p. 1034, 10 L.Ed.2d at p. 102 [referring to the “valued right of a defendant to have his trial completed by the particular tribunal summoned to sit in judgment on him” but explaining such right “may be subordinated to the public interest—when there is an imperious necessity to do so”]; but see Arizona v. Washington (1978) 434 U.S. 497, 505 & fn. 16, 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 98 S.Ct. 824, 830, 54 L.Ed.2d 717, 728 [“a rigid application of the ‘particular tribunal’ principle is unacceptable” and departing from the ideal does “not invariably create unfairness”].) However, in these and similar cases, the courts were referring to juries that had been selected and sworn and did not suggest the “particular jury” interest extends any further. For example, our Supreme Court has held that “a criminal defendant who is in the midst of trial has an interest ... in having his or her case resolved by the jury that was initially sworn to hear the case—and in potentially obtaining an acquittal from that jury. [Citation & fn.] It also follows that in certain circumstances, conduct by the prosecution or the court that results in mistrial, thereby terminating the trial prior to resolution by the jury, may impair that aspect of a defendant's protected ‘double jeopardy’ interest.” (Batts, supra, 30 Cal.4th at p. 679, 134 Cal.Rptr.2d 67, 68 P.3d 357, emphases added.) And, when addressing cases discussing the “ ‘particular tribunal’ or ‘chosen jury’ ” issue, the high court observed “these cases do no more than determine that jeopardy attaches once a jury and alternates are chosen [citation], and that granting an unnecessary mistrial bars retrial [citation]. They do not stand for the proposition that defendant becomes immune from further prosecution merely because one particular juror is improperly discharged, an alternate substituted, and an actual verdict duly entered.” (People v. Hernandez (2003) 30 Cal.4th 1, 8, 131 Cal.Rptr.2d 514, 64 P.3d 800 (Hernandez ).) Here, defendants were not in the “midst of trial” because they were never placed in jeopardy. Nor do they claim there was anything relatively favorable to them about the first jury, or relatively unfavorable to them about the second juries. [N. 9] Instead, defendants claim that, having completed jury selection, they had the abstract right to have that jury and no other decide their fate, based on then-extant evidence. [N. 9] The jury trial ultimately was conducted with two juries, one for Presley and one for the Whitakers, for reasons irrelevant to this discussion. However, precedent holds that the right to a “particular” jury applies when and only when a jury has been sworn, and jeopardy has actually attached. (See Hernandez, supra, 30 Cal.4th at p. 8, 131 Cal.Rptr.2d 514, 64 P.3d 800; Batts, supra, 30 Cal.4th at p. 679, 134 Cal.Rptr.2d 67, 68 P.3d 357.) We are not free to expand that rule. (See Auto Equity Sales, supra, 57 Cal.2d at p. 455, 20 Cal.Rptr. 321, 369 P.2d 937.) Accordingly, we must reject the claim that defendants had a due process right to have the first jury decide their fate, before jeopardy had actually attached. b. Governmental Misconduct We agree with defendants that the People improperly announced “ready” before commencing jury selection, without knowing whether their key witnesses were available, instead of 17 1 2 3 4 5 6 7 8 9 10 11 seeking a continuance. (See fn. 3, ante.) However, this impropriety does not show intentional manipulation of the proceedings, as opposed to ignorance or neglect. Further, any error was not structural, and defendants fail to show any prejudice flowing from the dismissal and refiling of the charges. The “extreme” double jeopardy cases are those “in which a prosecutor requests a mistrial in order to buttress weaknesses in his evidence. Although there was a time when English judges served the Stuart monarchs by exercising a power to discharge a jury whenever it appeared that the Crown's evidence would be insufficient to convict,[Fn.] the prohibition against double jeopardy as it evolved in this country was plainly intended to condemn this ‘abhorrent’ practice.” (Arizona v. Washington, supra, 434 U.S. at pp. 507–508, 98 S.Ct. at p. 831, 54 L.Ed.2d at p. 729.) Here, the People dismissed the first case before jeopardy attached. A prosecutorial dismissal, “if entered before jeopardy attaches, neither operates as an acquittal nor prevents further prosecution of the offense.” (Bucolo v. Adkins (1976) 424 U.S. 641, 642, 96 S.Ct. 1086, 1087, 47 L.Ed.2d 301, 303; see 1 Torcia, Wharton's Crim. Law (15th ed. 1993) Defenses, § 61, pp. 455–456.) 12 13 14 15 16 17 18 19 One learned treatise would add a caveat to this rule: “Although jeopardy attaches in a jury trial only after jury selection is complete and the judge has sworn the entire jury ... pre-jeopardy attempts to terminate the trial and start over may deny a defendant due process in egregious circumstances.” (6 LaFave, et al., Crim. Proc. (3d ed. 2007) Double Jeopardy, § 25.1(d), p. 588, emphasis added.) And a commentator suggests that the rule that jeopardy attaches when jury is sworn or first witness in court trial testifies “overlooks the very real possibility that successive indictments, though dismissed before trial, may be used as instruments of oppression and may be nearly as vexatious to the defendant as a series of trials.” (Comment, Twice in Jeopardy (1965) 75 Yale L.J. 262, 263, fn. 3.) Accordingly, we shall assume but do not hold that prosecution after a pre-jeopardy dismissal might be barred in “egregious circumstances.” 20 21 22 23 24 25 By analogy, defendants refer to cases that address the doctrine of “outrageous” government conduct, flowing from due process fairness grounds. (See People v. Smith (2003) 31 Cal.4th 1207, 1223–1227, 7 Cal.Rptr.3d 559, 80 P.3d 662 [declining to decide viability of doctrine]; People v. Wesley (1990) 224 Cal.App.3d 1130, 1142, 274 Cal.Rptr. 326 [California has “come very close” to applying the doctrine]; People v. Peppars (1983) 140 Cal.App.3d 677, 685–687, 189 Cal.Rptr. 879; see generally, 1 Witkin & Epstein, Cal.Crim. Law (3d ed. 2000) Defenses, § 102, pp. 442–444 [describing the muddled caselaw] (Witkin ).) If viable, the doctrine is short in reach: 26 27 28 “When conduct on the part of the authorities is so outrageous as to interfere with an accused's right of due process of law, proceedings against the accused are thereby rendered improper. [Citations.] Dismissal is, on occasion, used by courts to discourage flagrant and 18 1 2 3 4 5 6 7 8 9 10 11 shocking misconduct by overzealous governmental officials in subsequent cases.” (Boulas v. Superior Court (1986) 188 Cal.App.3d 422, 429, 233 Cal.Rptr. 487, emphasis added.) Nothing the People did in this case reflects “flagrant and shocking misconduct [.]” The fact their efforts to find key witnesses were found by the first trial court to fall short of satisfying the diligence required under Evidence Code sections 240 and 1291, does not mean the People acted with an improper motive. Further, as defendants concede, had the first trial court declined to delay swearing the jury until the conclusion of the People's evidentiary motion, the People could have immediately moved to dismiss their case against defendants, and refiled it if and when they were able to secure their witnesses. Defendants turn this point around and argue: “Thus, the People made a tactical choice and engaged in gamesmanship from the beginning: they took a risk, and bluffed, and lost.” But this does not change the fact that it was within the People's power to move to dismiss before jury selection. The fact that the People participated in jury selection while their evidentiary motion was pending does not reflect flagrant or shocking misconduct. 12 13 The defense analogy to cases where a prosecutor provokes a mistrial fares no better, because the remedy in such cases is a subsequent fair trial, not dismissal of the charges. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Two mistrial rules apply in California. The first, compelled by federal precedent, provides that, “If a motion for mistrial is granted on the basis of prosecutorial misconduct, the Double Jeopardy Clause does not preclude a retrial unless the prosecutor intentionally provoked the mistrial.” (1 Witkin, supra, Defenses, § 127, p. 474; see Oregon v. Kennedy (1982) 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416.) The second, based on independent state grounds, bars a retrial if a prosecutor commits misconduct to thwart a looming acquittal, “if a court, reviewing all of the circumstances as of the time of the misconduct, finds not only that the prosecution believed that an acquittal was likely and committed misconduct for the purpose of thwarting such an acquittal, but also determines, from an objective perspective, that the prosecutorial misconduct deprived the defendant of a reasonable prospect of an acquittal.” (Batts, supra, 30 Cal.4th at pp. 665–666, 134 Cal.Rptr.2d 67, 68 P.3d 357; see id. at pp. 695–697, 134 Cal.Rptr.2d 67, 68 P.3d 357.) But Batts emphasized that “the normal and usually sufficient remedy for the vast majority of instances of prejudicial prosecutorial misconduct that occur at trial is provided under the federal and state due process clause, and calls for either a declaration of mistrial followed by retrial, or a reversal of a defendant's conviction on appeal followed by retrial. The remedy mandated by the double jeopardy clause—an order barring retrial and leading to the dismissal of the criminal charges against the defendant without trial—is an unusual and extraordinary measure that properly should be invoked only with great caution.” (Batts, supra, 30 Cal.4th at p. 666, 134 Cal.Rptr.2d 67, 68 P.3d 357; see 19 1 2 3 4 5 6 7 8 9 10 Sons v. Superior Court (2004) 125 Cal.App.4th 110, 121, 22 Cal.Rptr.3d 647 (Sons) [“misconduct, even flagrant misconduct, ordinarily is corrected by a fair retrial”].) Nor have defendants established that this is a case calling for per-se reversal. In cases of federal constitutional error ( Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (Chapman)), per-se reversal is reserved for “structural” flaws, such as “the total deprivation of the right to counsel at trial, a biased judge, unlawful exclusion of members of the defendant's race from a grand jury, denial of the right to selfrepresentation at trial, and denial of the right to a public trial.” (People v. Flood (1998) 18 Cal.4th 470, 493, 76 Cal.Rptr.2d 180, 957 P.2d 869; see People v. Aranda (2012) 55 Cal.4th 342, 363– 365, 145 Cal.Rptr.3d 855, 283 P.3d 632.) “If, on the other hand, ‘ “the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.”’” (People v. Mil (2012) 53 Cal.4th 400, 410, 135 Cal.Rptr.3d 339, 266 P.3d 1030.) 11 12 13 14 15 16 17 18 19 20 21 22 But in this case, the assumed error in failing to promptly swear the first jury is based on the state-law procedural rule that a jury should be sworn promptly after selection. (See Part I–B–1, ante.) It was not federal constitutional error. Thus, defendants must show actual prejudice, which they fail to do. Apart from the contentions raised and resolved adversely to them in the unpublished portion of this opinion (Part II, post), and the double jeopardy claims we have already rejected, defendants do not contend the second trial was unfair. We acknowledge that defendants had to undergo two preliminary hearings. But each defendant had appointed counsel for both cases and they do not claim they suffered any increased financial costs because of the dismissal and refiling of charges. [N. 10] Further, there is no claim that they failed to receive full presentence custody credits for any additional jail time as a result of any delay. [N. 10] Defendants each retained counsel after the jury verdicts, and before sentencing. But defendants do not claim they suffered any additional financial costs because of the dismissal of the first case itself. 23 24 25 26 27 Finally, in arguing for reversal, defendants also analogize to statutory speedy trial cases. But in such cases, even where the People have failed to act with diligence, an error in finding good cause is reversible if and only if the defendant shows a miscarriage of justice at the ensuing trial. (People v. Martinez (2000) 22 Cal.4th 750, 769, 94 Cal.Rptr.2d 381, 996 P.2d 32; People v. Rodriguez (1971) 15 Cal.App.3d 481, 484–485, 93 Cal.Rptr. 182; cf. Perryman, supra, 141 Cal.App.4th 767, 46 Cal.Rptr.3d 306 [ pretrial writ relief].) 28 20 1 2 3 Thus, the second jury trial cured any harm caused by the People's impropriety in announcing “ready” when they were not ready, or by any error in the first trial court's delaying swearing the jury for reasons extrinsic to jury selection. (See Batts, supra, 30 Cal.4th at p. 666, 134 Cal.Rptr.2d 67, 68 P.3d 357; Sons, supra, 125 Cal.App.4th at p. 121, 22 Cal.Rptr.3d 647.) 4 c. Conclusion 5 6 7 8 Even assuming the first trial court erred in delaying swearing the jury, the result was neither a double jeopardy violation nor a due process violation. And even if we were to find the People engaged in some form of misconduct, no structural error occurred and defendants have not shown that any prejudice flowed from any misconduct. Therefore, there is no basis to reverse defendants' convictions that followed their jury trial. 9 10 11 People v. Whitaker, 213 Cal.App.4th 999, 1003-1014, 153 Cal.Rptr.3d 165 (2013). The Double Jeopardy Clause of the Fifth Amendment, made applicable to the state 12 through the Fourteenth Amendment, guarantees that no person shall “be subject for the same 13 offense to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V. Double jeopardy can 14 occur in three situations: (1) a second prosecution for the same offense after acquittal; (2) a 15 second prosecution for the same offense after conviction; and (3) multiple punishments for the 16 same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225 (1977); see also Turner v. 17 Calderon, 281 F.3d 851, 889 (9th Cir. 2002) (quoting Staatz v. Dupnik, 789 F.2d 806, 808 (9th 18 Cir. 1986)). “Such protections are intended to insure that ‘the State with all its resources and 19 power [is] not . . . allowed to make repeated attempts to convict an individual for an alleged 20 offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live 21 in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even 22 though innocent he may be found guilty.’” Turner, 281 F.3d at 889 (quoting Green v. United 23 States, 355 U.S. 184, 187-88, 78 S. Ct. 221 (1957)). It is well settled that in a jury trial jeopardy 24 attaches when the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 35, 98 S. Ct. 2156 25 (1978); Serfass v. United States, 420 U.S. 377, 388, 95 S. Ct. 1055 (1975). 26 Petitioner seems to argue that since the jury was empaneled, and its swearing was delayed 27 due to prosecution tactics unrelated to the jury itself, his double jeopardy rights attached and he 28 had a right to have the first empaneled jury decide his case. (ECF No. 1 at 92.) Here, the simple 21 1 response is that the jury was not sworn and therefore jeopardy had not attached.4 2 There was no error in the finding that good cause existed for granting the prosecution's 3 request for a continuance and dismissing the jury because of the resulting delay. As one of the 4 witnesses was a victim in the case, there is no doubt as to the importance of that witness' 5 testimony, as well as the testimony of Whitaker’s sister, Beverly Robinson. Furthermore, the 6 record fails to demonstrate any malevolent motive on the part of the prosecution in requesting a 7 delay. The Court of Appeal correctly noted the prosecution did not know whether their key 8 witnesses were available, but this fact, while possibly showing ignorance or neglect, did not show 9 an “intentional manipulation of the proceedings.” Although the prosecution conceded that it had 10 not subpoenaed Weathers, it had subpoenaed Robinson for trial, but she failed to appear. 11 Moreover, petitioner’s double jeopardy and due process rights were not violated in regard 12 to his right to a particular jury. It is true that a defendant has a right to a particular tribunal as part 13 of the protection against multiple prosecutions. Wade v. Hunter, 336 U.S. 684, 689 (1949). 14 Nevertheless, such right attaches only when double jeopardy is put in play by the swearing in of 15 the jury. Crist, 437 U.S. at 35. Furthermore, even after jeopardy has attached, the right to a 16 particular jury “must in some instances be subordinated to the public's interest in fair trials 17 designed to end in just judgments.” United States v. Jorn, 400 U.S. 470, 480, 91 S. Ct. 547 18 (1971) (citing Wade). Petitioner argues that Downum v. United States, 372 U.S. 734, 736 (1963) 19 recognized a defendant’s right to a particular jury. Downum, however, was decided squarely on 20 the fact that the jury had been sworn, unlike this case, and it is therefore distinguishable on this 21 important basis. Id. at 736-37. The four dissenters to this opinion recognized the importance of 22 the pivotal act of swearing in the jury: “As I see the problem, the issue is whether the action of 23 the prosecutor in failing to check on the presence of his witness before allowing a jury to be 24 sworn was of such moment that it constituted a deprival of the petitioner's rights and entitled him 25 to a verdict of acquittal without any trial on the merits.” Id. at 743 (5-4 decision) (Clark, J., 26 dissenting) (emphasis added). Petitioner’s other cited case, Oregon v. Kennedy, 456 U.S. 667 27 28 4 Petitioner so concedes as the petition states, “[b]ut because the jury had not been sworn jeopardy did not attach.” (ECF No. 1 at 92.) 22 1 (1982), additionally stands for clearly established Supreme Court authority that a jury must first 2 be sworn before defendant may claim the right to a particular jury. 3 One can be sympathetic to a claim of manipulation here, albeit non-malevolent 4 manipulation. The prosecution knew it was up against the state speedy trial clock, and it knew 5 that it had not secured the presence of witnesses. Rather than simply dismiss before jury 6 selection, it desired to hedge its bets, and convinced the trial judge to avoid swearing the jury so 7 that it would know what previous “testimony” would be admitted. It is possible to envision 8 circumstances where prosecution manipulation of the “swearing requirement” was so outrageous 9 and deliberate that the right to a particular jury would be violated, e.g, no sworn jury awaiting an 10 admissibility ruling on evidence introduced well into the prosecution case in chief. However, any 11 such argument fails in an AEDPA context for two reasons. First, the undersigned is unable to 12 locate any established Supreme Court authority establishing that pre-swearing manipulation by 13 the prosecution states a Double Jeopardy problem no matter how characterized. While there have 14 been suggestions that such manipulation might be a different question, see Illinois v. 15 Sommerville, 410 U.S. 458, 464, 93 S. Ct. 1066 (1973); United States v. Pitts, 569 F.2d 343, 347 16 n.5 (5th Cir. 1978), there is no holding of the Supreme Court to this effect. Indeed, the Supreme 17 Court recently held that the swearing of the jury is a bright line for Double Jeopardy purposes not 18 amenable to circumstantial review. Martinez v. Illinois, __U.S.__, 134 S. Ct. 2070, 2074-75 19 (2014). 20 Secondly, the California appellate court thoroughly reviewed the “manipulation” issue and 21 found, despite the assumed presence of a state law violation, that no purposeful manipulation 22 occurred. There is no possible way to term this factual decision as AEDPA unreasonable. 23 24 25 26 27 28 Consequently, the undersigned recommends denial of petitioner's first claim. III. New Jury Instruction During Deliberation Petitioner next claims that he was denied his right to a fair trial when the court provided a new jury instruction to a jury which was already deliberating. The California Court of Appeal rejected petitioner’s claim as set forth in the following portion of the opinion: 23 1 2 3 4 5 6 7 8 Presley contends the trial court should not have added an instruction on vicarious arming and reopened arguments after his jury began deliberations. This argument fails to persuade. During deliberations, Presley’s jury sent a note on a Friday asking in part “Is it true that on the offense of personal use of a firearm, we cannot use the argument of aiding and abetting?” The trial court sent a written reply indicating it would not answer the question without consulting counsel, advising the jury not to speculate about the answer until all counsel could be contacted, and promising “should you determine to recess your deliberations due to this fact it will be promptly addressed on Monday.” [N. 19] Later that day, the jury asked for some testimony to be read back. [N. 19] The trial court’s response also answered another, unrelated, jury question. 9 10 11 12 13 14 15 16 17 18 The following Monday, the court reporter read back the requested testimony. Then the trial court and counsel discussed how to answer the remaining jury question. The trial court told the jury that “your understanding is correct” and that the jury had to find that Presley “personally used a firearm.” The court referred the jury to CALCRIM No. 3146, already in the jury’s instructional “packet,” which defined personal use of a firearm during the commission of the charges. However, the trial court then reinstructed the jury—over Presley’s objection—with CALCRIM No. 1402, which had not been given previously, due to “a mistake” as the trial court found. CALCRIM No. 1402 defines a firearm enhancement where the defendant is a principal in a gang offense and another principal in that offense personally uses a firearm. (§§ 186.22, subd. (b), 12022.53, subd. (e)(1).) This enhancement had been charged against Presley, but had not been included in the information as read to the jury, and was not referenced by section number in the verdict, only by description. 19 20 21 22 23 24 25 26 27 28 The parties then gave brief arguments to the jury, which resumed its deliberations. Presley’s jury found that he did not personally use a firearm, but found that he was a principal in a gang offense in which another principal did personally use a firearm. As the trial court pointed out, by statute a trial court has the power to instruct the jury “At the beginning of the trial or from time to time during the trial[.]” (§ 1093, subd. (f).) Further, “When the state of the pleadings requires it, or in any other case, for good reasons, and in the sound discretion of the court, the order prescribed in Section 1093 may be departed from.” (§ 1094; see People v. Valenzuela (1977) 76 Cal.App.3d 218, 220-221.) Further, a more general statute provides: “It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.” (§ 1044; see, e.g., People v. Ruiloba (2005) 131 Cal.App.4th 674, 691 [this 24 1 statute grants trial courts broad discretion].) 2 In People v. Young (2007) 156 Cal.App.4th 1165 (Young), we upheld a trial court’s decision to reinstruct a jury after an impasse, stating, “when the court is faced with a deadlocked jury, it must proceed carefully, lest its actions be viewed as coercive. [Citation.] At the same time, when faced with questions from the jury, including that they have reached an impasse, ‘a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury.’” (Young, supra, 156 Cal.App.4th at pp. 1171-1172.) And People v. Ardoin (2011) 196 Cal.App.4th 102 (Ardoin), upheld a trial court’s discretion to give a supplemental instruction on felony murder in response to a jury question, but found the trial court erred harmlessly by not reopening to allow defense counsel to provide argument about that new instruction. (Ardoin, supra, 196 Cal.App.4th at pp. 127-134.) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Here, we find no abuse of discretion. Although Presley’s jury did not report an impasse, or ask about the precise issue leading to the supplemental instruction, in ascertaining how to respond to a jury question related to another firearm enhancement, the trial court discovered a critical omission in the instructions. The trial court properly gave a supplemental instruction, in order to insure the jury would fairly resolve all pleaded issues. Further, as Presley concedes, both counsel were allowed to argue about that supplemental instruction to the jury. Contrary to Presley’s speculation, we will not presume that the jury gave undue importance to the supplemental instruction over all other instructions, nor assume that the supplemental instruction undermined the arguments already given. 17 18 In our view, the trial court’s action furthered the ultimate goal of the trial, which was to ascertain the truth. (§ 1044.) We find no abuse of discretion on this record. 19 20 21 22 23 24 25 26 27 Presley also asserts the prosecutor intentionally withdrew liability under section 12055.23, subdivision (e), for tactical reasons, and claims the charge should not have been resurrected by the trial court’s reinstruction. But the trial court considered the prosecutor’s explanations and found the issue arose due to a mistake. Later, after Presley’s newly-retained counsel raised the issue in a new trial motion, the trial court again rejected the claim that the prosecutor had withdrawn the instruction for tactical reasons, telling Presley’s new counsel: “I understand you’re at a disadvantage because you weren’t there, but that didn’t happen.” We will not reweigh the evidence to contradict the trial court’s finding about the prosecutor’s motives. (See People v. Riccardi (2012) 54 Cal.4th 758, 787 [in reviewing alleged bias in jury selection “the trial court is ‘well positioned’ to ascertain the credibility of the prosecutor’s explanations”].) 28 25 1 (Res’t’s Lod. Doc. 23 at 31-34.) 2 In general, a challenge to a jury instruction solely as an error of state law does not state a 3 claim cognizable in a federal habeas corpus action. See Waddington v. Sarausad, 555 U.S. 179, 4 192 n. 5, 129 S. Ct. 823 (2009) (“we have repeatedly held that ‘it is not the province of a federal 5 habeas court to reexamine state-court determinations on state-law questions,’” quoting Estelle v. 6 McGuire, 502 U.S. 62, 67–68, 112 S. Ct. 475 (1991)); see also Gutierrez v. Griggs, 695 F.2d 7 1195, 1197 (9th Cir. 1983); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985). The 8 standard of review for a federal habeas court “is limited to deciding whether a conviction violated 9 the Constitution, laws, or treaties of the United States.” Estelle, 502 U.S. at 62. In order for error 10 in the state trial proceedings to reach the level of a due process violation, the error had to be one 11 involving “fundamental fairness.” Id. at 73. The Supreme Court has defined the category of 12 infractions that violate fundamental fairness very narrowly. Id. 13 In order to establish a due process violation, petitioner must show both ambiguity in the 14 instructions and a “reasonable likelihood” that the jury applied the instruction in a way that 15 violates the Constitution, such as relieving the state of its burden of proving every element 16 beyond a reasonable doubt. Waddington, 555 U.S. at 190, 129 S. Ct. at 831. Petitioner must 17 show that the ailing instruction by itself so infected the entire trial that the resulting conviction 18 violates due process. Estelle, 502 U.S. at 72. Additionally, the instruction may not be judged in 19 artificial isolation, but must be considered in the context of the instructions as a whole and the 20 trial record. Id. The court must evaluate jury instructions in the context of the overall charge to 21 the jury as a component of the entire trial process. See United States v. Frady, 456 U.S. 152, 169, 22 102 S. Ct. 1584 (1982). Furthermore, even if it is determined that the instruction violated the 23 petitioner’s right to due process, a petitioner can only obtain relief if the unconstitutional 24 instruction had a substantial influence on the conviction and thereby resulted in actual prejudice 25 under Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710 (1993), which is whether the 26 error had substantial and injurious effect or influence in determining the jury’s verdict. See 27 Hedgpeth v. Pulido, 555 U.S. 57, 61–62, 129 S. Ct. 530 (2008) (per curiam). 28 The state appellate court's determination is neither contrary to nor an unreasonable 26 1 application of controlling Supreme Court law. First, this court will not revisit the Court of 2 Appeal's determination that giving the instruction was not an error of state law. A further 3 instruction was necessary to clarify the instruction previously given which concerned a separate 4 theory of liability, personal use, as compared to vicarious liability through gang affiliation, which 5 was necessary to give in a separate instruction. When a jury presents a question in order to clarify 6 its difficulties, the court “should clear [the jury’s difficulties] away with concrete accuracy.” 7 Bollenbach v. U.S., 326 U.S. 612, 612-613, 66 S. Ct. 402 (1946). “[T]he district court has the 8 responsibility to eliminate confusion when a jury asks for clarification of a particular issue.” U.S. 9 v. Hayes, 794 F.2d 1348, 1352 (9th Cir. 1986). The court has discretion to choose the manner in 10 which it fulfills this obligation. Wilson v. United States, 422 F.2d 1303, 1304 (9th Cir. 1970); 11 United States v. Collom, 614 F.3d 624, 631 (9th Cir. 1979). Questions or disputes which arise as 12 a result of questions during jury deliberations should be resolved by the court after consultation 13 with counsel, in supplemental instructions. See U.S. v. Birges, 723 F.2d 666, 670-71 (9th Cir. 14 1984). Furthermore, 15 16 17 18 [b]ecause the jury may not enlist the court as its partner in the factfinding process, the trial judge must proceed circumspectly in responding to inquiries from the jury. The court may properly attempt to avoid intrusion on the jury's deliberations by framing responses in terms of supplemental instructions rather than following precisely the form of question asked by the jury. 19 United States v. Walker, 575 F.2d 209, 214 (9th Cir. 1978). See also Arizona v. Johnson, 351 20 F.3d 988, 994 (9th Cir. 2003); United States v. Nunez, 889 F.2d 1564, 1569 (6th Cir. 1989) 21 (although a trial court “must respond to questions concerning important legal issues,” it “must be 22 careful not to invade the jury's province as fact-finder”). 23 The trial court properly determined to respond to the jury’s question by answering it 24 directly, and by giving another instruction relating to a separate count (Count 1) in the complaint. 25 (RT. 1885-92.) Both counsel were permitted to provide argument to the court about the new 26 instruction before it was given, (RT. 1870-1886), and to the jury at the time the new instruction 27 was given. (RT. 1894-95.) 28 Petitioner’s counsel, in arguing to prevent the additional instruction from being given, 27 1 emphasized the prosecutor’s decision, over numerous meetings and communications and on the 2 prosecutor’s own request, to withdraw the vicarious arming allegation from consideration based 3 on a tactical decision. Therefore, defense counsel argued, both sides did not argue the issue of 4 vicarious use of a firearm during the trial. Defense counsel objected to the reintroduction of these 5 allegations to the jury during the middle of trial. (RT. 1873-79.) The court heard this argument, 6 as well as argument from the prosecution that the instruction given in regard to section 7 12022.5(3)(e), instruction number 402, was legally incorrect as written, and it would not apply to 8 petitioner. Therefore, the prosecution argued, it was not a tactical decision on his part to give a 9 supplemental instruction on vicarious liability for firearm use by another gang member, but rather 10 to provide a legally correct instruction. (RT. at 1879-80.) The prosecution argued that this 11 instruction would require no new evidence whatsoever. 12 The court then provided its reasoning, based on the judge’s own research. First, the judge 13 provided authority for his discretion to provide a new instruction during the course of the trial. 14 (Id. at 1881.) Next, he addressed the legal error in the firearm instruction that was previously 15 given, as pointed out by the prosecution, and noted that with three defendants, two juries, two sets 16 of jury instructions, and three verdict forms, such a mistake could be made. (Id. at 1882.) He 17 then posited that the instruction previously given would cause confusion to a jury because aiding 18 and abetting does not apply to it, and it requires personal use. The court seemed to imply that 19 confusion would naturally occur because there was no evidence of personal use of a firearm by 20 petitioner. (Id. at 1883.) Since the new instruction involved a “completely distinct legal matter,” 21 asking only whether petitioner was a principal in a gang offense and whether another principal in 22 the gang personally used a firearm, it could not affect the credibility of petitioner’s counsel and 23 therefore would not prejudice petitioner in regard to argument already made. (Id. at 1883.) The 24 court did not accept the defense argument that the prosecution made a tactical decision to leave 25 out this instruction and then request it during deliberations. The judge pointed out that the 26 prosecution during trial had argued consistently with its position on the enhancement, as had the 27 defense, and had not wavered in its position. 28 Both sides had the opportunity to present evidence to support and refute the allegation that 28 1 the crimes were committed for the benefit of the gang, and that Whitaker, in the same gang, 2 personally discharged the firearm. (Id. at 1883-84.) The judge concluded: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 So my point is, I’m sure – it may have been mistaken, but I’m sure it wasn’t tactical because there’s been no tactical advantage to anyone, nor can there be, unless [the prosecutor] abandons the case he’s been arguing all the way through. As far as a concern that if they are given the additional instruction that was omitted the other day, and the inquiry is added to the jury form on Count 1, that that somehow makes the argument that was advanced with respect to the B count less credible is one that, you know, I understand the advocacy that underlies it, but I can’t connect the two. We’re talking about two complete different theories of liability, where in one case we’re asking did he personally use – did your client personally use a firearm, and we’re going to tell them that means personal. The other one doesn’t ask if he personally used a firearm, it asks if somebody else did. And again, those are two completely different things. So I have to admit that I don’t see the potential for prejudice to anyone here. In fact, the jury’s going to be advised in a minute that you were exactly right in terms of the absence of aiding and abetting on the B count. So all that having been said, the Court is going to find that by virtue of its inclusion in the Complaint; by virtue of it not being abandoned on the record; and by virtue of the Court’s finding, after considering all of this, that this wasn’t some sort of tactical decision, it was a mistake that was made in connection with the assemblage of a very long series of jury instructions, including the inquiry as a sub-inquiry to the street gang allegations, which is the last one on Count 1, I’m going to give the jury 1402. I’m going to allow counsel the opportunity to argue anything they wanted to about it, and I’m going to include the inquiry on an amended Count 1 that goes back with them. (RT. 1884-85.) The supplemental instruction permitting a firearm enhancement where the defendant is a 22 principal in a gang offense and a different principal personally uses a firearm, was a legally 23 accurate instruction and was mistakenly omitted from the original instructions with no malicious 24 motivation on the part of the prosecution. Petitioner’s argument that the prosecutor made a 25 tactical decision to originally omit the instruction and that it was not a mistake, is based on pure 26 speculation. Petitioner has presented no facts supporting this assertion, and there is no evidence 27 of misconduct by the prosecutor. Nor are the circumstances so suspicious that a reasonable jurist 28 would probably conclude that the prosecution was manipulating procedure for tactical reasons. 29 1 The jury instructions in this case were not problematic as they were in Bollenbach, which 2 is distinguishable. In that case, the judge gave a cursory supplemental instruction in response to a 3 jury instruction which was described on review as “mistaken” and “simply wrong.” 326 U.S. at 4 611, 613. The Supreme Court in that case did caution that supplemental jury instructions given in 5 response to the jury's mid-deliberations can have a greater impact than initial instructions. Id. at 6 612 (“Particularly in a criminal trial, the judge's last word is apt to be the decisive word”). 7 Bollenbach was decided on its specific facts which are not to be found in this case: the question 8 from the jury had “clearly indicated that the[y] were confused,” the judge’s response was cursory 9 and inaccurate, and included “a plain hint from the judge that a verdict ought to be forthcoming.” 10 Id. at 612–13. The jury returned with a guilty verdict only five minutes later. Id. at 610. The 11 Supreme Court held that where a supplemental instruction “is a specific ruling on a vital issue and 12 misleading, the error is not cured by a prior unexceptional and unilluminating abstract charge.” 13 Id. at 612 (emphasis added). 14 In petitioner’s trial, however, although the jury expressed limited confusion as evidenced 15 by its submission of a question about vicarious arming, its confusion was limited to this issue of 16 the original firearm instruction, albeit the “new” instruction was an indirect result of the initially 17 expressed confusion. Nor did the trial judge give a misleading or inaccurate response to the 18 jury’s question, but gave both an answer and a separate instruction which clearly clarified the 19 issue. The judge did not suggest that a verdict should be forthcoming, and the jury did not return 20 a verdict until a few hours later. (RT. 1898-1900, 1962-63.) Bollenbach is inapplicable, and no 21 relief can be granted on this claim. 22 Petitioner desired a windfall from the mistake here, and the failure to receive the “gift” 23 does not constitute substantial harm. One can imagine that a trial judge could get involved in 24 rectifying so many of the prosecution’s mistakes that he loses the status of a neutral judge. 25 However, that is a different claim than the one presented here, and the facts are far from the limit 26 of a trial judge’s discretion to ensure that both sides are treated fairly. 27 IV. Gang Expert Testimony 28 Petitioner next claims that his due process rights were violated when a gang expert was 30 1 permitted to testify regarding petitioner’s intent to benefit a gang. Specifically, petitioner claims 2 that although the prosecutor phrased his question to the expert as a hypothetical, the detective’s 3 responses were not within the hypothetical, but were based on the facts of this case, including his 4 opinion that this case was a gang related offense. Petitioner claims that the law permits 5 hypotheticals in these situations, but does not permit questions directly pertaining to a defendant, 6 citing People v. Xue Vang, 52 Cal.4th 1038 (2011). The California Court of Appeals cited this 7 case, and in fact relied on it in discussing this claim as follows: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants contend Detective Stearns, the prosecution’s gang expert, improperly gave ultimate issue testimony and improperly referred to them personally in answering hypothetical questions. We find no error. Detective Stearns testified at an in limine hearing (see Evid. Code, § 402) about his gang expertise, including with the Rancho Cordova East Side Piru Blood gang. “Little Gene” (Whitaker III) was a member, as shown by his juvenile record, tattoos, and clothing. “Big G” (Whitaker) was a member, based on clothing, prior arrests, and this incident. So was “Wheezy” (Presley), based on tattoos, self-admissions, arrest history, and associations. This incident was gang related. At trial, Detective Stearns was asked hypothetical questions, as we have summarized ante. The trial court twice admonished the jury about an expert’s ability to rely on hearsay material, and admonished that the gang evidence could not be used to show criminal propensity. In addition to these admonishments, the juries were instructed on the proper use of expert evidence and hypothetical questions (see CALCRIM Nos. 332, 1403), and defendants do not fault these instructions or admonishments as such. In Detective Stearns’s opinion, the younger assailants would be working toward enhancing their gang status, at the behest of the older gang member who had been attacked, and the gang as a whole would benefit by signaling that its members cannot be attacked without retaliation. In contending Detective Stearns’s testimony should have been excluded, defendants generally rely on a broad interpretation of People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), asserting that it holds a gang expert cannot answer hypothetical questions about intent. (AOB 73, 79; ARB 27-28) We disagree. Our Supreme Court has rejected Killebrew, to the extent it can be read so broadly. (People v. Vang (2011) 52 Cal.4th 1038 (Vang) [in part clarifying and in part disapproving Killebrew]; see also People v. Gonzalez (2006) 38 Cal.4th 932, 946, fn. 3 [“It would be incorrect to read Killebrew as barring the questioning of 31 1 2 3 4 5 6 expert witnesses through the use of hypothetical questions regarding hypothetical persons”]; People v. Garcia (2007) 153 Cal.App.4th 1499, 1512-1513.) “To the extent that Killebrew, supra, 103 Cal.App.4th 644, was correct in prohibiting expert testimony regarding whether the specific defendants acted for a gang reason, fn the reason for this rule is not that such testimony might embrace the ultimate issue in the case. ‘Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.’ [Citations.] Rather, the reason for the rule is similar to the reason expert testimony regarding the defendant’s guilt in general is improper.” (Vang, supra, 52 Cal.4th at p. 1048.) 7 8 9 Defendants complain that Detective Stearns referred to “the older defendant” who directed “the two younger defendants,” and also referred to one “individual” who said, “This is on East Side Piru[.]” Their point is that these specific references effectively eliminated the hypothetical nature of the expert testimony. 10 11 However, as the People point out, no objection to this nomenclature was lodged. In any event, the juries would understand the expert was speaking hypothetically. 12 13 14 15 16 17 18 Moreover, it was proper to tether the hypothetical closely to the facts, indeed, it was essential to do so: “[H]owever much latitude a party has to frame hypothetical questions, the questions must be rooted in the evidence of the case being tried, not some other case. [¶] The reason for this rule should be apparent. A hypothetical question not based on the evidence is irrelevant and of no help to the jury.” (Vang, supra, 42 Cal.4th at p. 1046.) To preclude a hypothetical question because it is thinly disguised from the actual facts transforms the requirement that a hypothetical question be rooted in the evidence into a prohibition – or at least into the confounding rule that the party posing the question must disguise from the jury the fact it is rooted in the evidence – not ‘thinly,’ it appears, but thickly.” (Vang, supra, at p. 1046.) 19 20 21 22 23 24 25 26 27 28 Defendants also fault Detective Stearns for trying “to sneak in an inadmissible opinion” by referring to “a prior incident between G and the victim.” But the trial court sustained a prompt objection, and the prosecutor directed the witness to stay “within the hypothetical[.]” This stray passage does not support the claim that Detective Stearns acted with improper motives in testifying. Finally, defendants cursorily contend the evidence violated federal due process. We disagree. “Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must ‘be of such quality as necessarily prevents a fair trial.’ [Citation.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.” (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920; see People v Partida (2005) 37 Cal.4th 428, 439.) Defendants claim that because the evidence was inadmissible under state law, its introduction violated due process. However, as we have explained, as admission of the 32 1 2 3 evidence did not violate state law, defendant’s federal claim fails. (Res’t’s Lod. Doc. 23 at 26-28.) Petitioner’s claim that the prosecution’s gang expert testimony was based on an ultimate 4 issue, petitioner’s intent to benefit a gang, is one that arises out of state law, and is not cognizable 5 on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 71–72, 112 S. Ct. 475 (1991). In 6 order for the testimony to implicate petitioner’s constitutional rights, an error must have so fatally 7 infected the proceedings as to render them fundamentally unfair. Jammal v. Van de Kamp, 926 8 F.2d 918, 919–20 (9th Cir.1991). In the context of admission of erroneous, prejudicial evidence, 9 it is an open question whether the Supreme Court has ever made a holding that such violated due 10 11 process. Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). Furthermore, there is no Supreme Court authority establishing that it is erroneous to 12 permit an expert to testify concerning an ultimate issue of fact. Moses v. Payne, 555 F.3d 742, 13 761 (9th Cir. 2009). The Ninth Circuit has recognized, however, that “[i]t is well-established ... 14 that expert testimony concerning an ultimate issue is not per se improper.” Hangarter v. 15 Provident Life & Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004) (citation omitted). “A 16 witness is not permitted to give a direct opinion about the defendant's guilt or innocence,” but “an 17 expert may otherwise testify regarding even an ultimate issue to be resolved by the trier of fact.” 18 United States v. Lockett, 919 F.2d 585, 590 (9th Cir. 1990) (internal citation omitted). See Fed. 19 R. Evid. 704(a) (“An opinion is not objectionable just because it embraces an ultimate issue.”). 20 Moreover, as the appellate court reasoned, not only was petitioner’s jury twice 21 admonished about an expert’s reliance on hearsay material, (RT. 1491, 1526), and further 22 admonished not to consider the gang testimony as evidence of general bad character of a 23 defendant and propensity to commit the crimes in this case, (RT. 1526), the court also instructed 24 the jury at length on proper use of expert testimony and hypothetical questions. (RT. 1544, 1752- 25 53, 1755, 1783). The jury is presumed to follow the court's instructions and admonitions. See 26 Francis v. Franklin, 471 U.S. 307, 324 n. 9, 105 S. Ct. 1965 (1985) (the Supreme Court 27 “presumes that jurors, conscious of the gravity of their task, attend closely [to] the particular 28 language of the trial court's instructions in a criminal case and strive to understand, make sense 33 1 2 of, and follow the instructions given them”). Detective Stearns’ testimony regarding whether the crime was committed for the benefit 3 of a criminal street gang is perfectly appropriate for other reasons also. First, it is important to 4 ask whether expert opinion testimony would assist the jury. See People v. Prince, 40 Cal.4th 5 1179, 1222, 57 Cal.Rptr.3d 543, 156 P.3d 1015 (2007), cert. denied, 552 U.S. 1106, 128 S. Ct. 6 887 (2008). Second, the court has much discretion in determining whether to admit expert 7 testimony on the ultimate issue of whether the crime was committed for the benefit of a criminal 8 street gang. See People v. Vasquez, 58 Cal.App.4th 494, 507–08, 68 Cal.Rptr.2d 135 (1997). 9 See also Cal. Evid.Code § 805 (“Testimony in the form of an opinion that is otherwise admissible 10 is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.”). 11 In any event, this court has reviewed the transcript of Detective Stearns’ testimony and 12 finds that the Court of Appeals’ opinion was reasonable. The gang expert stayed within the 13 hypothetical for the most part, and when he strayed on one occasion and referred to the facts of 14 the case, an objection was immediately sustained. (RT. 1537-1548, 1542). The expert’s 15 testimony which referred to two younger defendants being directed by the older defendant to do 16 the crime for East Side Piru, (RT. 1548), was necessary to link the hypothetical to the facts of this 17 particular case. The hypothetical cannot be posed in a vacuum, but as the court of appeals stated, 18 “must be rooted in the evidence of the case being tried, not some other case.” (Res’t’s Lod. Doc. 19 23 at 27.) 20 Thus, petitioner cannot show that the appellate court's denial of this claim was contrary to 21 or an unreasonable application of clearly established federal law under the AEDPA, and therefore 22 petitioner cannot prevail on this claim. 23 V. Jury Instruction that an Aider and Abettor is “Equally Guilty” of the Crime 24 Petitioner claims that his due process rights were violated when the trial court improperly 25 instructed the jury that the defendant is ‘equally guilty’ of the crime committed by the perpetrator 26 which he aided and abetted, and that such language has since been excised. If such language had 27 not been used in his trial, petitioner claims that he might have been convicted of a lesser crime 28 than attempted murder. 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner raised this claim on direct appeal. The California Court of Appeal rejected petitioner’s claim as set forth in the following portion of the opinion: Defendants contend CALCRIM No. 400, as given to each jury in this case, is defective because it refers to an aider and abettor being “equally guilty” with the principal. We deem this contention to be forfeited, and further conclude that any error was harmless. We previously have held that the failure to request a modification to this instruction in the trial court forfeits the precise contention raised in this appeal: “Generally, a person who is found to have aided another person to commit a crime is ‘equally guilty’ of that crime. [Citation.] “However, in certain cases, an aider may be found guilty of a greater or lesser crime than the perpetrator. [Citations] “Because the instruction as given was generally accurate, but potentially incomplete in certain cases, it was incumbent on [defendants] to request a modification if [they] thought it was misleading on the facts of this case. [Their] failure to do so forfeits the claim of error.” (People v. Lopez (2011) 198 Cal.App.4th 1106, 1118-1119 (Lopez); see also People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163-1165.) We adhere to the views expressed in Lopez (which rejected contrary views expressed in People v. Nero (2010) 181 Cal.App.4th 504, relied on by defendants herein) and conclude the claim has been forfeited. [N.16] [N. 16] During deliberations, the Whitaker jury asked if was possible “to convict the other defendant of aiding and [abetting] the lesser included offense?” The trial court replied: “In this case you are charged to determine the guilt or innocence of two separate defendants. You have been given separate verdict forms relating to each defendant, setting forth the questions you must answer as they relate to each defendant. [¶] You must separately consider the evidence as it applies to each defendant, and decide each charge for each defendant separately.” Contrary to Whitaker’s claim, this does not avoid forfeiture because no modification to CALCRIM No. 400 was sought. Moreover, the reply accurately emphasized that the jury had to determine each defendant’s liability separately, further undermining the claim that CALCRIM No. 400 would have been misinterpreted, at least to the Whitaker jury. Moreover, the trial court instructed each jury with CALCRIM No. 401, which told each jury that aider liability required the People to prove a defendant knew of the perpetrator’s purpose and shared the perpetrator’s intent. And defendants do not claim any error in the instructions defining the intent required for 35 1 2 3 the substantive charges. Because we presume the juries would correlate the various instructions (see People v. Sanchez (2001) 26 Cal.4th 834, 952), they would not have used the “equally guilty” language to truncate their duty to determine each defendant’s intent. Thus, any error in the “equally guilty” language was harmless. (See Lopez, supra, 198 Cal.App.4th at pp. 1119-1120.) 4 5 (Res’t’s Lod. Doc. 23 at 22-24.) 6 A. Procedural Default 7 As set forth above, the California Court of Appeal concluded that petitioner forfeited this 8 claim of jury instruction error by failing to request a modification to this instruction with the trial 9 court. Respondent argues that the state court's finding of forfeiture constitutes a state procedural 10 bar precluding this court from addressing the merits of that claim. Respondent insists that this 11 claim is barred because in the Ninth Circuit the contemporaneous objection bar has been held to 12 be an adequate and independent state procedural rule, and in this case, the defense at trial failed to 13 request a modification of the aider and abettor instruction given. (ECF No. 21 at 37). 14 State courts may decline to review a claim based on a procedural default. Wainwright v. 15 Sykes, 433 U.S. 72, 97 S. Ct. 2497 (1977). As a general rule, a federal habeas court “‘will not 16 review a question of federal law decided by a state court if the decision of that court rests on a 17 state law ground that is independent of the federal question and adequate to support the 18 judgment.’“ Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) 19 (quoting Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546 (1991)). The state rule is 20 only “adequate” if it is “firmly established and regularly followed.” Id. (quoting Ford v. Georgia, 21 498 U.S. 411, 424, 111 S. Ct. 850 (1991)); Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003) 22 (“[t]o be deemed adequate, the state law ground for decision must be well-established and 23 consistently applied.”). The state rule must also be “independent” in that it is not “interwoven 24 with the federal law.” Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000) (quoting Michigan 25 v. Long, 463 U.S. 1032, 1040–41, 103 S. Ct. 3469 (1983)). Even if the state rule is independent 26 and adequate, the claims may be heard if the petitioner can show: (1) cause for the default and 27 actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider 28 the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 749–50. 36 1 Respondent has met his burden of adequately pleading an independent and adequate state 2 procedural ground as an affirmative defense. See Bennett, 322 F.3d at 586. Petitioner does not 3 deny that his trial counsel did not raise a contemporaneous objection to the trial court’s issuance 4 of this jury instruction, despite counsel’s objections and argument in regard to other proposed jury 5 instructions. (RT. 1715-1735). Although the state appellate court addressed petitioner's due 6 process claim on the merits and found that any error was harmless, it also expressly held that the 7 claim was forfeited on appeal because of defense counsel's failure to object. Petitioner has failed 8 to meet his burden of asserting specific factual allegations that demonstrate the inadequacy of 9 California's contemporaneous-objection rule as unclear, inconsistently applied or not well- 10 established, either as a general rule or as applied to him. Bennett, 322 F.3d at 586; Melendez v. 11 Pliler, 288 F.3d 1120, 1124–26 (9th Cir. 2002). Petitioner's claim therefore appears to be 12 procedurally barred. See Coleman, 501 U.S. at 747; Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 13 S. Ct. 1038 (1989); Paulino v. Castro, 371 F.3d 1083, 1092–93 (9th Cir. 2004). See Fairbanks v. 14 Ayers, 650 F.3d 1243, 1256 (9th Cir. 2011) (finding that the contemporaneous objection bar can 15 be applied) 16 Petitioner has also failed to demonstrate that there was cause for his procedural default or 17 that a miscarriage of justice would result absent review of the claim by this court. See Coleman, 18 501 U.S. at 748; Vansickel v. White, 166 F.3d 953, 957–58 (9th Cir.1999). For the reasons 19 explained below, even if the claim was not procedurally barred, it lacks merit and should be 20 denied. 21 B. Merits of the Claim 22 A challenge to a jury instruction solely as an error of state law does not state a claim 23 cognizable in a federal habeas corpus action. See Estelle v. McGuire, 502 U.S. 62, 71–72, 112 S. 24 Ct. 475 (1991) (habeas corpus is unavailable for alleged error in the interpretation or application 25 of state law); see also Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983); Middleton v. 26 Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985). The standard of review for a federal habeas court “is 27 limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United 28 States.” Estelle, 502 U.S. at 62. In order for error in the state trial proceedings to reach the level 37 1 of a due process violation, the error had to be one involving “fundamental fairness.” Id. at 73. 2 The Supreme Court has defined the category of infractions that violate fundamental fairness very 3 narrowly. Id. 4 In order to establish a due process violation, petitioner must show both ambiguity in the 5 instructions and a “reasonable likelihood” that the jury applied the instruction in a way that 6 violates the Constitution, such as relieving the state of its burden of proving every element 7 beyond a reasonable doubt. Waddington v. Sarausad, 555 U.S. 179, 190, 129 S. Ct. 823, 831 8 (2009). Petitioner must show that the ailing instruction by itself so infected the entire trial that 9 the resulting conviction violates due process. Estelle, 502 U.S. at 72. Additionally, the 10 instruction may not be judged in artificial isolation, but must be considered in the context of the 11 instructions as a whole and the trial record. Id. The court must evaluate jury instructions in the 12 context of the overall charge to the jury as a component of the entire trial process. See United 13 States v. Frady, 456 U.S. 152, 169, 102 S. Ct. 1584 (1982). Furthermore, even if it is determined 14 that the instruction violated the petitioner’s right to due process, a petitioner can only obtain relief 15 if the unconstitutional instruction had a substantial influence on the conviction and thereby 16 resulted in actual prejudice under Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710 17 (1993), which is whether the error had substantial and injurious effect or influence in determining 18 the jury’s verdict. See Hedgpeth v. Pulido, 555 U.S. 57, 61–62, 129 S. Ct. 530 (2008) (per 19 curiam). 20 Respondent argues that despite a procedural bar, the state appellate court found that any 21 error was harmless. In this regard, the court’s additional instruction, CALCRIM 401, served to 22 correct any potential error of eliminating the burden to prove petitioner had the same intent as the 23 perpetrator. This instruction informed the jury that petitioner must know of the perpetrator’s 24 intent, share that intent, and intended to aid and abet the perpetrator. (CT 57.) That instruction, 25 read in conjunction with CALCRIM 400, which required aiding and abetting the perpetrator, and 26 instructing that an aider and abettor is “equally guilty of the crime whether he committed it 27 personally or aided and abetted the perpetrator who committed it,” (CT 56), explained to the jury 28 how to determine petitioner’s intent as an aider and abettor, and defined and detailed the 38 1 circumstances under which petitioner could be found liable for the same crimes as the perpetrator. 2 While there may be circumstances where an aider and abettor may be liable for a lesser crime so 3 that CALCRIM 400 may be improper, that is not the case here. There was overwhelming 4 evidence that petitioner had the intent to commit first degree attempted murder. 5 Furthermore, in light of the trial court’s instructions which were read together and clearly 6 explained the intent requirements for aider and abettor as described above, the California Court of 7 Appeal's conclusion that any instructional error was harmless is neither contrary to, nor an 8 unreasonable application of, Supreme Court harmless error jurisprudence. See Fry v. Pliler, 551 9 U.S. 112, 119, 127 S. Ct. 2321 (2007) (in order to grant habeas relief where a state court has 10 determined that a constitutional error was harmless, a reviewing court must determine that the 11 state court's decision was “contrary to” or an “unreasonable application” of Supreme Court 12 harmless error precedent, and that the petitioner suffered prejudice under Brecht from the 13 constitutional error); Mitchell v. Esparza, 540 U.S. 12, 17–18, 124 S. Ct. 7 (2003) (same); 14 Inthavong v. LaMarque, 420 F.3d 1055, 1059 (9th Cir. 2005) (same). Petitioner did not suffer 15 prejudice as a result of any potential error, and the appellate court’s decision was neither 16 “contrary to” or an “unreasonable application” of harmless error precedent. Therefore, the giving 17 of CALCRIM 400 with the “equally guilty” language did not violate petitioner’s right to due 18 process, and this claim should be denied. 19 CONCLUSION 20 For all of the foregoing reasons, the petition should be denied. Pursuant to Rule 11 of the 21 Federal Rules Governing Section 2254 Cases, this court must issue or deny a certificate of 22 appealability when it enters a final order adverse to the applicant. A certificate of appealability 23 may issue only “if the applicant has made a substantial showing of the denial of a constitutional 24 right.” 28 U.S.C. § 2253(c)(2). For the reasons set forth in these findings and recommendations, 25 a substantial showing of the denial of a constitutional right has not been made. 26 Accordingly, IT IS HEREBY RECOMMENDED that: 27 1. Petitioner’s application for a writ of habeas corpus be DENIED; and 28 2. The District Court decline to issue a certificate of appealability. 39 1 These findings and recommendations are submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 3 after being served with these findings and recommendations, any party may file written 4 objections with the court and serve a copy on all parties. Such a document should be captioned 5 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 6 shall be served and filed within fourteen days after service of the objections. Failure to file 7 objections within the specified time may waive the right to appeal the District Court’s order. 8 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 Dated: August 3, 2015 10 /s/ Gregory G. Hollows 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 GGH:076/Pres1991.hc 16 17 18 19 20 21 22 23 24 25 26 27 28 40

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