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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETIE Chief Assistant Attorney General 3 GERALD A. ENGLER Senior Assistant Attorney General 4 PEGGY S. RUFFRA Supervising Deputy Attorney General 5 STAN HELFMAN, State Bar No. 49104 Supervising Deputy Attorney General 6 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 7 Telephone: (415) 703-5854 Fax: (415) 703-1234 8 Email: [email protected] 9 Attorneys for Respondent 10
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

12 13

HENRY LEE TOWNSEND,
14 Petitioner, 15

C 07-4904 PJH (PR)

v.
16

DERRAL ADAMS, Warden,
17 Respondent. 18 19 20 21 22 23 24 25 26 27 28

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANSWER

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TABLE OF CONTENTS
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3 STATEMENT OF THE CASE 4 STATEMENTOFFACTS 5 STANDARD OF REVIEW 6 ARGUMENT
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I.

THE STATE COURTS REASONABLY REJECTED PETITIONER'S CLAIM THAT CALJIC NO. 2.15 VIOLATED DUE PROCESS THE STATE COURT REASONABLY REJECTED PETITIONER'S CLAIM HE WAS IMPROPERLY IMPEACHED WITH PRIOR CONVICTIONS

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9

II.

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11 CONCLUSION

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1 2 3 Cases 4 Barnes v. United States 415 U.S. 837 (1973) 5 Brecht v. Abrahamson 6 507 U.S. 619 (1993) 7 Early v. Packer 537 U.S. 3 (2002) 8 Estelle v. McGuire 9 502 U.S. 62 (1991) 10 Fry v. Pliler 127 S.Ct. 2321 (2007) 11 Jammal v. Van De Kamp 12 974 F.2d 1099 (9th Cir. 1992)

TABLE OF AUTHORITIES
Page

5 8,12 5 7,10 8 10 3 5, 7 11 11 11 12 11

13 LaJoie v. Thompson
217 F.3d 663 (9th Cir. 2000) 14
People v. Barker 15 91 Cal.App.4th 1166 (2001)

16 People v. Castro 186 Cal.App.3d 1211 (1986) 17 People v. Dillingham 18 186 Cal.App.3d 688 (1986) 19 People v. Green 34 Cal.App.4th 165 (1995) 20 People v. Lepolo 21 55 Cal.App.4th 85 (1997) 22 People v. Mendoza 78 Cal.App.4th 918 (2000) 23 People v. Muldrow 24 202 Cal.App.3d 636 (1988) 25 People v. Narvaez 104 Cal.App.4th 1295 (2002) 26 People v. Prieto 27 30 Cal.4th 226 (2003) 28
Memorandum of Points and Authorities in Support of Aoswer - C 07-4904
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pm (PR)

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TABLE OF AUTHORITIES (continued)
1 2 3 4 5 6 7 8 9 10 11 12

Page
People v. Riel
22 Cal.4th 1153 (2002)

7
3,5 5

Williams v. Taylor 120 S.Ct. 1495 (2000) Woodford v. Visciotti 537 U.S. 19 (2002)

Statutes
California Penal Code § 484g, subd. (a) § 488 § 496, subd. (a) United States Code, Title 28 § 2254(a) § 2254(d)

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1

3 3

13 Other Authorities
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Memorandum of Points and Authorities in Support of Answer - C 07-4904 PJH (PR)

California Jury Instructions, Criminal No. 1.01 No. 2.00 No. 2.02 No. 2.15 No. 2.23 No. 2.90 No. 9.40 No. 14.65

8 8 8 1,4,5,7,8 12 8 8 8

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1 EDMUND G. BROWN JR. Attorney General ofthe State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GERALD A. ENGLER Senior Assistant Attorney General 4 PEGGY S. RUFFRA Supervising Deputy Attorney General 5 STAN HELFMAN, State Bar No. 49104 Supervising Deputy Attorney General 6 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 7 Telephone: (415) 703-5854 Fax: (415) 703-1234 8 Email: [email protected] 9 Attorneys for Respondent 10
11

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION HENRY LEE TOWNSEND, C 07-4904 PJH (PR) Petitioner, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANSWER Respondent.

12 13 14 15 16 DERRAL ADAMS, Warden, 17 18 19 20 21

v.

STATEMENT OF THE CASE Townsend was convicted, following a jury trial, of receiving stolen property (CaL Pen.

22 Code, § 496, subd. (a» and misdemeanor use ofa stolen access card (pen. Code, §§ 484g, subd. (a), 23 488.) The court found two prior strike convictions true. The court sentenced Townsend to a term 24 of25 years to life. On appeal, Townsend claimed the trial court erred in giving CALJIC No. 2.15, 25 allowing impeachment with prior convictions, and failing to stay sentence on the misdemeanor. On 26 March 28,2007, the Court of Appeal found no error and affirmed. Exh. A, p. 2. 27 On April 30, 2007, Townsend sought review in the California Supreme Court. The

28 petition was denied on June 13,2007. Exhs. B, C.
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Petitioner filed the federal habeas corpus petition on September 21, 2007. The order to

2 show cause was issued September 28,2007. 3 4 5 2-4. 6 7 8 9 On September 12, 2004, at approximately 9:30 p.m., a man snatched Trinh Tuyet Trinh's purse as she parked her car in front of her home. The purse contained a wallet, checkbook, credit card and cell phone. Trinh followed the man onto the street and saw him get into a white truck driven by another person. She flagged down a car and told the occupants, Gabriel Medina and Randall Kennedy, that someone had stolen her purse. She pointed to a white Explorer that was driving away,and Medina and Kennedy followed. The Explorer, exceeding the speed limit, drove through two red lights on surface streets before entering the freeway. Medina and Kennedy lost the Explorer after it crossed several lanes to make a sudden exit. They returned to where they had left Trinh and gave the Explorer's license plate number to the police. A tow hitch on the Explorer obscured the view of the license plate, causing Kennedy and Medina to misidentify one character, but the police eventually focused on an Explorer registered to defendant. They located the vehicle in San Jose in the very early hours of the morning. The hood of the Explorer was warm, indicating it had been driven recently. Looking into the vehicle, Officer Edward Perea observed a credit car with Trinh's name and a couple of cell phones in the center console. The officers knocked on defendant's door and arrested defendant, telling him it was in connection with an earlier incident involving his vehicle. When defendant first saw the officers, he burst into tears. He said he did not know that the guy was going to do what he did and offered to show the officer where that person lived. Defendant identified the place where he said he had dropped off his passenger. Officer Perea knocked on doors in the neighborhood and eventually located Tavita Wooden, who matched a description Trinh had given him of the man who had taken her purse. Officer Perea was unable to arrest Wooden at that point. After being read his rights, defendant agreed to talk and told Officer Perea that Anthony Johnson, a friend, had asked him for a ride to the Motel 6. When shown a photograph of Wooden, defendant identified him as Anthony Johnson. After they were on their way, defendant said Wooden told him to stop in another location and Wooden got out of the vehicle. When Wooden came back to the Explorer, he told defendant to hurry away and defendant complied: Defendant said he did not knowhe was being followed but that he was scared. He told Officer Perea that Wooden was clutching a black purse when he returned to the car and started going through it as they drove away. Wooden pulled out various items, including a cell phone and credit card. Defendant admitted that the cell phone and credit card Officer Perea had seen in the Explorer came from the purse. He also admitted that he had used the credit card topurchase gasoline at a Unocal 76 station. Defendant testified on his own behalf at trial and further explained that Wooden was an acquaintance who had asked defendant for a ride home. On the way to Wooden's house, Wooden asked defendant to stop in the general area ofthe Motel 6, where Wooden needed to make a "quick run." Wooden left the car and defendant waited for about 20 to 25 minutes for Wooden to return. Defendant did not know Wooden was going to commit a robbery. Wooden returned to the vehicle and told defendant to "go, go, go." Wooden seemed jittery and anxious and was clutching an object that defendant later saw was a purse. He asked Wooden what had happened, but Wooden just told him to go and get out of there. Defendant was scared and thought Wooden had done "something wrong." Defendant had
Memorandum of Points and Authorities in Support of Answer - C 07-4904 PJH (PR)

STATEMENT OF FACTS
The statement offacts is from the opinion ofthe Court ofAppeal in H030025, Exh. A, pp.

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been to prison before and wanted to get away quickly for fear ofbeing incarcerated again. He started the truck and left. When defendant saw Wooden rifling through the purse, he believed that Wooden had done "something" and gotten defendant involved in it. At one point, defendant asked Wooden, "what did you do, you just robbed somebody[,]" and Wooden confirmed his suspicion. Wooden left some of the items that he had taken in defendant's car. Defendant purchased gasoline with Trinh's credit card about two or three hours after dropping off Wooden. As defendant was pumping the gas, he stopped because he realized he was doing something wrong. He later said that he took the card from the center console to buy gas, mistaking it for his, and stopped pumping gas when he realized it was not his card? At home, defendant told his wife what had happened and they discussed what he should do next. About a halfhour later, the police knocked at the door. He did not call the police because he was afraid that as a convicted felon he would be implicated in the crime, but he tried to be helpful by leading them to Wooden.

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He also testified, however, that he picked up the credit card and cell phone from the floor and put them in the center console when he got home, but that he did not go home before going to get gas.
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STANDARD OF REVIEW

13 14 A federal court may entertain a petition for a writ ofhabeas corpus "in behalf of a person

15 in custody pursuant to the judgment of a State court only on the ground that he is in custody in 16 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The 17 petition may not be granted with respect to any claim that was adjudicated on the merits in state court 18 unless the state court's adjudication ofthe claim: "(1) resulted in a decision that was contrary to, or 19 involved an unreasonable application of, clearly established Federal law, as determined by the 20 Supreme Court ofthe United States; or (2) resulted in a decision that was based on an unreasonable 21 determination of the facts in light of the evidence presented in the State court proceeding." Id. § 22 2254(d); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). In deciding whether the state court's 23 decision in contrary to or an unreasonable application of clearly established federal law, the federal 24 court looks to the decision ofthe highest state court to address the merits of a petitioner's claim in 25 a reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000).
26 III 27 III 28 III
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ARGUMENT
I.

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THE STATE COURTS REASONABLY REJECTED PETITIONER'S CLAIM THAT CALJIC NO. 2.15 VIOLATED DUE PROCESS
Petitioner claimed in the California Court ofAppeal and Supreme Court, as he claims here,

5

6 that the trial court's use ofCALJIC No. 2.15 violated his due process rights because it reduced the 7 prosecution's burden of proof. The Court of Appeal rejected petitioner's attack on CALJIC No. 8 2.15: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Memorandum of Points and Authorities in Support of Answer - C 07-4904 PJH (PR)

Defendant argues that the court's use ofCALJIC No. 2.15 violated his due process rights.' Specifically, he contends the jury instruction shifted the burden of proof to defendant and "reduced the burden of proof' by permitting "conviction upon conscious possession coupled with slight evidence of guilt[.]" Defendant acknowledges, however, that the California Supreme Court has repeatedly upheld CALJIC No. 2.15 against due process claims. (See, e.g., People v. Yeoman (2003) 31 Ca1.4th 93,131 (Yeoman); People v. Prieto (2003) 30 Ca1.4th 226, 248 (Prieto); People v. Holt (1997) 15 Ca1.4th 619, 677 (Holt).) In Yeoman, supra, 31 Ca1.4th 93, 131, the California Supreme Court rejected the argument that CALJIC No. 2.15 violates due process by creating mandatory inferences or conclusive presumptions that shift the burden ofproofto the defense. The court explained that the instructions permit, but do not require, the jury to draw the inferences described, and that "[a] permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury." (Ibid., internal citations omitted.) In this case, reason and common sense justify the conclusion that defendant's possession of Trinh's recently stolen property tended to show that he was guilty of receiving stolen property. (See id. at pp. 131-132.) There is strong corroborating evidence that defendant withheld the property knowing it was stolen. Defendant testified that he saw Wooden return with the purse and take items out of it, including the cell phone and card. When defendant asked Wooden ifhe had robbed someone, Wooden said yes. Defendant found the card and cell phone in the car after dropping off Wooden and moved the items to the center console of car. Finally, defendant used the credit car knowing (or, at least, belatedly realizing) that it was not his. The high court also has found that there is "no possibility that giving the jury the additional admonition that it could not rely solely on evidence that defendant possessed recently stolen property would be understood by the jury as suggesting that it need not find all ofthe statutory elements of [the crimes charged] had been proven beyond a reasonable

' As given in this case, CAU1C No. 2.15 states, in part: "If you find that a defendant was in conscious possession of recently stolen property, the fact of that possession is not by itself sufficient to permit an inference that the defendant is guilty of the crimes charged in counts 1 and 2. [~ Before guilt may be inferred, there must be corroborating evidence tending to prove defendant's guilt. [~ However, this corroborating evidence need only be slight and need not by itself be sufficient to warrant an inference guilt. [~ Please, remember that to convict the defendant of the crimes charged, you must be satisfied beyond a reasonable doubt.

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doubt." (Holt, supra, 15 Ca1.4th at p. 677; see also Prieto, supra, 30 Cal.4th at p. 248 [rejecting argument that instruction's reference to "slight" corroborating evidence lowers the prosecution's burden ofproof].) In this case, moreover, the court expressly reiterated the reasonable doubt standard within the CALJIC No. 2.15 instruction. We are bound by the California Supreme Court's determinations regarding the constitutional validity ofCALJIC No. 2.15 (see Auto Equity Sales, Inc. v. Superior Court ofSanta Clara County (1962) 57 Cal.2d 450, 455), and find no basis for defendant's due process claim. Exh. A, pp. 4-6.

5
6 7 A state court decision is not "contrary to" clearly established federal law unless the

8 decision applies a rule that contradicts controlling Supreme Court authority, or reaches a result that 9 differs from the result the Supreme Court reached on "materially indistinguishable" facts. See Early 10 v. Packer, 537 U.S. 3, 8 (2002); Williams, 529 U.S. at p. 406. State court decisions that are not
II

"contrary to 'Supreme Court authority may not be set aside on federal habeas unless' they are not

12 merely erroneous, but 'an unreasonable application' of clearly established federal law, or are based

13 on an unreasonable determination of the facts." Early, 537 U.S. at II. An "unreasonable
14 application" is not merely erroneous or incorrect; it is "objectively unreasonable." Woodford v.

15 Visciotti, 537 U.S. 19,25 (2002).
16 Petitioner has not demonstrated that the Court of Appeal's decision is contrary, to or an

17 unreasonable application of, clearly established federal law. 18 Petitioner claimed in the state courts that CALJIC No. 2.15 violates due process because

19 the "slight" corroboration language impermissibly reduces the government's burden ofproof. This 20 21 22 23 24 25 claim was properly rejected. In claiming that the "slight" corroboration language harms defendants because it reduces the people's burden ofproof, petitioner errs. The instruction actually benefits the defendant because it increases the People's burden by requiring corroboration. In People v. Barker, 91 Ca1.App.4th 1166 (2001), the court found the trial court properly gave CAUIC No. 2.15 with respect to robbery, but should not have extended it to murder. Relying

26 partlyonBarnesv. United States, 415 U.S. 837 (1973), the Barker court explained whyCALJICNo.
27 2.15 does not violate due process: 28
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Barker acknowledges CALJIC No. 2.15 has withstood numerous challenges (see Barnes v. United States (1973) 415 U.S. 837, 843-846 [93 S.Ct. 2357, 2362-2363, 37 L.Ed.2d 380] (Barnes); People v. Holt (1997) 15 Ca1.4th 619,676-677 (Holt); People v. Mendoza (2000) 24 Ca1.4th 130, 176-177 (Mendoza)), and is based upon a longstanding rule oflaw which allows a jury to infer guilt of a theft-related crime from the fact a defendant is in possession of recently stolen property when coupled with slight corroboration by other inculpatory circumstances which tend to show guilt (see People v. McFarland (1962) 58 Ca1.2d 748, 754-758 (McFarland); People v. Anderson (1989) 210 Ca1.App.3d4l4, 420432 (Anderson) . . . . In Barnes, the United States Supreme Court noted that for centuries courts have instructed juries that an inference of guilty knowledge may be drawn from the fact of unexplained possession of stolen goods. (Barnes, supra, 412 U.S. at p. 843 [93 S.Ct. atp. 2362].) The court in Barnes found that such inference comported with due process if "the evidence necessary to invoke the inference is sufficient for a rational juror to find the inferred fact beyond a reasonable doubt. ..." (Ibid.) In California CALJIC No. 2.15 has evolved from cases holding that proof of possession of recently stolen property is insufficient by itselfto support a guilty verdict as to a theftrelated offense. (See McFarland, supra, 58 Ca1.2d at pp. 754-758, 473; People v. Clark (1953) 122 Ca1.App.2d 342, 345.) It is a permissive, cautionary instruction which inures to a criminal defendant's benefit by warning the jury not to infer guilt merely from a defendant's conscious possession of recently stolen goods, without at least some corroborating evidence tending to show the defendant's guilt. (See People v. Johnson (1993) 6 Ca1.4th 1, 35-37 (Johnson); People v. Gamble (1994) 22 Ca1.App.4th 446, 452455 (Gamble).) Such an inference of guilt has been held not to relieve the prosecution of its burden of establishing guilt beyond a reasonable doubt. (McFarland, supra, 58 Cal.2d at pp. 756-757, Gamble, supra, 22 Ca1.App.4th at pp. 453-454, Anderson, supra, 210 Ca1.App.3d at pp. 430-432.) The prosecutor's use of this permissive inference comports with due process unless there is no rational way for the jury to make the logical connection which the presumption permits. (Ulster County Courtv. Allen (1979) 442 U.S. 140, 157 [99 S.Ct. 2213, 2224-2225, 60 L.Ed.2d 777]; see also Gamble, supra, 22 Ca1.App.4th at pp.454-455.) As the court in Gamble found, "the language ofCAUIC No. 2.15 contemplates its use for far more than knowingly receiving stolen property charges, for in the body of the instruction is a blank for insertion of the named charge" to which it applies. (Gamble, supra, 22 Ca1.App.4th at p. 453.) Such deduction is supported by the Use Note to CALJIC No. 2.15 (6th ed.1996) page 57, which provides that such instruction "will serve to cover the effect ofpossession of recently stolen property in [the offenses of] robbery, burglary, theft and receiving stolen property," and by the court's observation in McFarland that the inference "is applicable whether the crime charged is theft, burglary, or knowingly receiving stolen property. [Citation.]" (McFarland, supra, 58 Ca1.2d at p. 755.) Further, "it is not just the inference as to defendant's knowledge that the property was stolen that may be drawn, but in the context of theft crimes other than receiving stolen property, CALJIC No. 2.15 by its very language permits the jury in a proper case to infer the identity of defendant as the one who committed the crime." (Gamble, supra, 22 Ca1.App.4th at p. 453.) CALJIC No. 2.15 has also been held appropriate in cases where the inference to be drawn in theft-related crimes concerned the defendant's intent to steal (Holt, supra, 15 Ca1.4th at pp. 676-677, Johnson, supra, 6 Cal.4th at pp. 35-38), or whether the property in the defendant's possession had even been stolen from the victims (Holt, supra, at pp. 676-677; Johnson, supra, at pp. 35-38.) More recently our Supreme Court has upheld the giving of CALJIC No. 2.15 in several
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murder cases, but only with regard to the crime of burglary in Johnson, supra, 6 Cal.4th at pages 36-38, of robbery and burglary in Smithey, supra, 20 Cal.4th at pages 975-979, and with regard to robbery, burglary and kidnaping to commit robbery inMendoza, supra, 24 Cal.4th at pp. 176-177. ... [n6] From the history and development ofCALJIC No. 2.15, we glean that the instruction has been used in theft-related cases because there is a substantial connection between the established fact of conscious possession of recently stolen property and the inferred fact, i.e., knowledge that the property in the defendant's possession was stolen (McFarland, supra, 58 Cal.2d at pp. 754-758). With the inference from the knowledge and conscious possession ofsuch property, and slight additional evidence as corroboration, the intent to steal, identity, and the determination a defendant committed the acts necessary to constitute robbery and burglary have been found to naturally and logically flow and thus support the giving of CALJIC No. 2.15. (See Smithey, supra, 20 Cal.4th at pp. 975-979; Holt, supra, 15 Cal.4th at pp. 676-677.)

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10 (People v. Barker, supra, 91 Cal.App.4th at pp. 1173-1175, and fn. 6; see also People v. Narvaez, 11 104 Cal.App.4th 1295, 1304 (2002).) 12 In People v. Prieto, 30 Cal.4th 226 (2003) the California Supreme court specifically

13 rejected the claim CALJIC No. 2.15 lowers the prosecution's burden of proof.

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CALJIC No. 2.15 did not directly or indirectly address the burden of proof, and nothing in the instruction absolved the prosecution of its burden of establishing guilt beyond a reasonable doubt. Moreover, other instructions properly instructed the jury on its duty to weigh the evidence, what evidence it may consider, how to weigh that evidence, and the burden of proof. In light of these instructions, there is "no possibility" CALJIC No. 2.15 reduced the prosecution's burden of proof in this case.

18 (30 Cal.4th at p. 248 (See also People v. Riel, 22 Cal.4th 1153,1200 (2002) [standard instructions 19 on circumstantial evidence do not reduce the prosecution's burden ofproofJ.) 20 On federal habeas review, the question is whether there was a reasonable likelihood that

21 the jury misinterpreted the law in a way potentially unfavorable to the defense. Estelle v. McGuire, 22 502 U.S. 62, 72 (1991). 23 As noted in the quoted excerpt from Barker, CALJIC No. 2.15 has generally been held to

24 be favorable to the defendant because it tells the jury conscious possession of recently stolen 25 property alone is insufficient for an inference of guilt. The second paragraph ofthe instruction tells 26 the jury it "may consider" the types of additional corroborating evidence specified, but it does not 27 require the jury to do so. The trial court instructed the jury on the required elements ofrobbery and 28 receiving stolen property and instructed further that each of the elements must be proved beyond a
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1 reasonable doubt. (4 RT 229-231; 1 CT 115, 122-123, 126; CALJIC Nos. 2.90, 9.40, 14.65.) The 2 jury was instructed to evaluate the totality of the evidence, including circumstantial evidence from 3 which inferences may reasonably be drawn, and how to weigh that evidence. (CALJIC Nos. 1.01, 4 2.00,2.02; 1 CT 96, 99, 100.)
5

Considering the instructions in their entirety, there is no reasonable likelihood they

6 suggested the jury need not find all the elements of robbery and receiving stolen property had been 7 proved beyond a reasonable doubt.

8

Nor was any error prejudicial. SeeBrechtv. Abrahamson, 507 U.S. 619, 637 (1993); Fry

9 v. Pliler, 127 S.Ct. 2321 (2007). Obviously, the jurors were not misled by CALJIC No. 2.15 to 10 convict petitioner irrespective ofthe evidence. They acquitted him ofrobbery. (I CT 199-20 I.) In II addition, petitioner's explanation was wholly unworthy of belief. For example, he acknowledged

12 that he saw Johnson run back to his car clutching a black purse. Petitioner drove Johnson away and 13 watched Johnson pull items out of the purse, including the cell phone and credit card. (3 RT 10014 102.) Petitioner asked Johnson ifhe robbed someone; Johnson said yes. (3 RT 165.) Petitioner

15 acknowledged he picked up the stolen cell phone and credit card from the car floor and put them on 16 the center console. (3 RT 165.) Nevertheless, petitioner claimed that when he used this credit card 17 to pump gas, he thought it was his card. (3 RT 131, 162-163.) Petitioner was unable to rationally 18 explain how he thought a credit card Johnson removed from the stolen purse was his. Petitioner also 19 testified he did not realize what Johnson was pulling from the purse and did not know the cell phone 20 and credit card were in his car until he found them on the car floor when he got home. (3 RT 159, 21 165-166.) This means petitioner drove home before he took the stolen credit card to the gas station

22 to pump gas. (3 RT 165.) But petitioner also denied driving home before going to the gas station 23 to pump gas. (3 RT 166.) Petitioner already knew the stolen credit card was on the console of his 24 car, as he had picked it up from the car floor and put it there. (3 RT 167.) Petitioner's testimony that

25 he used the credit card thinking it was his own lacked any credible foundation. (3 RT 162.) 26 Moreover, the evidence of petitioner's guilt of receiving stolen property was overwhelming. Even

27 without CALJIC No. 2.15, the jury would have found petitioner was in knowing possession of the 28 property stolen from Trinh.
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II.

THE STATE COURT REASONABLY REJECTED PETITIONER'S CLAIM HE WAS IMPROPERLY IMPEACHED WITH PRIOR CONVICTIONS
According to the Order to Show Cause, petitioner claims the trial court violated due

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5 process by allowing him "to be impeached by all of his prior convictions, rather than limiting the 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 number which could be used, and that court's failure to sanitize the conviction for robbery with use of a firearm." OSC at p. 2. The California Court of Appeal rejected this claim: In an unreported conference in chambers on December 5,2005, the trial court heard defendant's Castro' motion to limit the admission of defendant's prior convictions for impeachment purposes. The court subsequently noted its determinations on the record. The court excluded the use of defendant's 1987 conviction for battery with serious bodily injury, conviction for sodomy, 1991 conviction for receiving stolen property, and 1992 conviction for use of an access card. The court ruled that it would permit defendant to be impeached with his 1986burglary, 1991 petty theft, 1991 felony forgery, 1992 petty theft, and 1994 robbery. Defendant testified and correspondingly admitted a first degree burglary in 1986, misdemeanor petty theft and felony forgery in 1991, felony theft in 1992, and armed robbery in 1994. Defendant argues that the court abused its discretion in allowing admission of these offenses. We disagree.... The California Constitution authorizes the use of prior felony convictions "without limitation" for purposes of impeachment of any person in a criminal proceeding. (Cal. Const., art. I, § 28, subd. (f).) Such use is limited only by the demands of the Fourteenth Amendment, which requires that convictions used for impeachment be relevant to the credibility of the witness, and by the broad discretion granted to the trial court pursuant to Evidence Code section 352. (Castro, supra, 38 Cal.3d at pp. 313-314; People v. Hinton (2006) 37 Cal. 4th 839,887-888, quoting Castro.) Defendant does not argue that his prior convictions for theft-related crimes do not reflect on his credibility. "California courts have repeatedly held that prior convictions for burglary, robbery, and other theft-related crimes are probative on the issue of the defendant's credibility." (People V. Mendoza (2000) 78 Cal.App.4th 918, 925 (Mendoza), citing cases.) Defendant instead challenges the court's discretionary decision to allow five prior convictions, including an armed robbery. We review the trial court's ruling for abuse of discretion. (See People v. Green (1995) 34 Cal.App.4th 165, 182-183 (Green).) We first note that "there is no limitation on the number of prior convictions with which the defendant's credibility can be impeached." (Mendoza, supra, 78 Cal.App.4th at p. 927, citing cases.) ,,, [W]hether or not more than one prior felony should be admitted is simply one of the factors which must be weighed against the danger of prejudice. ", (Green, supra, 34 Cal.App.4th at p. 183 [affirming admission of six prior convictions].)

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People

V.

Castro (1985) 38 Cal.3d 301 (Castro).

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Defendant nevertheless argues that allowing five convictions in this case was '''prosecutorial overkill", and that because the five admitted priors occurred during a short period oftime, they are not probative ofhis credibility as a witness. However, the asserted "short period of time" in fact spanned eight years, and indicates a sustained pattern of conduct rather than a temporary indiscretion. California courts have held that the pattern created by the systematic occurrence of felony convictions over a number of years may itself be relevant to a witness's credibility. (See People v. Muldrow (1988) 202 . CaLApp.3d 636,649; see also Green, supra, 34 CaLApp.4th at p. 183 [affirming the use of six prior auto theft convictions over 16 years for impeachment purposes, reasoning that the defendant's "series of crimes may be more probative than a single crime"].) In this case, the combination ofthe frequency ofthe convictions and their relevance to dishonesty is highly probative of defendant's credibility. Additionally, the trial court excluded four other prior convictions, which indicates its careful consideration of defendant's entire record in ruling on the Castro motion. Defendant argues that the trial court should have omitted the firearm aspect of the 1994 robbery because its impeachment value is outweighed by its inflammatory effect. We find no abuse of discretion in its admission. First, the armed robbery conviction was not identical to the crimes charged, a fact that increases the potential for prejudice and the potential need for "sanitization" ofthe prior conviction. (See generally People v. Foreman (1985) 174 CaLApp.3d 175, 180-182.) Second, the reference to the armed robbery was brief and any impact lessened by the explicit instruction regarding the limited use of the evidence. (See People v. Lepolo (1997) 55 CaLApp.4th 85, 91-92 & fn. 6 [holding that any prejudicial impact of the admission of a prior conviction for brandishing a weapon "was kept to a minimum by the manner in which it was introduced to the jurors and by the instruction directing that they may consider such evidence only in assessing [the defendant's] credibility"].) Finally, the jury acquitted defendant ofthe crime most similar to the 1994 armed robbery conviction, second degree robbery, which indicates the lack of an inflammatory effect or prejudicial impact. We conclude the court acted within its discretion in allowing the admission of the five prior convictions for impeachment purposes.

18 Exh. A, pp. 6-9. 19 Petitioner has not demonstrated that the Court ofAppeal's rejection ofhis claim is contrary

20 to, or an unreasonable application of, clearly established United States Supreme Court authority. The 21 admissibility of such evidence is ordinarily a matter of state law. Estelle v. McGuire, 502 U.S. at 22 70-71. Only if no permissible inference can be drawn from highly prejudicial evidence is due

23 process violated. Jammal v. Van De Kamp, 974 F.2d 1099, 1105 (9th Cir. 1992). Petitioner's 24 assertions fall short of demonstrating a violation offederal due process. On December 5, 2005, the

25 trial court heard motions and stipulations at an unreported conference in chambers (1 RT 3,5), then 26 stated its rulings on the record. (1 RT 5-7.) With respect to petitioner's motion regarding

27 impeachment with prior convictions, the court ruled that the People would not be permitted to use 28 petitioner's 1987 conviction for battery with serious bodily injury, his 1991 conviction for sodomy
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1 in a penal institution, his 1991 conviction for receiving stolen property, and his 1992 conviction for 2 use of an access card. The court ruled the People could impeach petitioner, ifhe testified, with his 3 1986 conviction forresidential burglary, his 1991 conviction for petty theft, his 1991 conviction for 4 felony forgery, his 1992 conviction for petty theft, and his 1994 conviction for robbery. (1 RT 7.) 5 Petitioner testified. (3 RT 121.) On direct examination, petitioner testified he was convicted offirst 6 degree burglary in 1986 when he was 18 years old, misdemeanor petty theft and felony forgery in 7 1991, and robbery in 1994, and that his criminal history made him reluctant to contact the authorities

8 in this case. (3 RT 135-136.) On cross-examination, petitioner acknowledged he was convicted of 9 felony residential burglary in 1986, felony theft in 1992, and robbery while personally armed with 10 a firearm in 1994. (3 RT 179.) Although petitioner complains that the court should have limited the 11 number of convictions and should have excluded or sanitized the robbery with personal use of a 12 firearm, it is clear the trial court properly exercised its discretion. It limited the number of prior 13 convictions available for impeachment. The court ruled the People could not use four of the priors 14 (battery with serious bodily injury, sodomy in penal institution, receiving stolen property, unlawful 15 use of access card) and could use five (burglary, petty thefts, forgery, robbery). (1 RT 7.) Petitioner 16 makes no claim burglary, theft, forgery, and robbery lack probative value on the issue of his 17 credibility. Plainly, under California law they do. (People v. Mendoza, 78 Cal.App.4th 918,925 18 (2000) [burglary, robbery, various theft related crimes].) The number of priors allowed was not 19 exceptionally high. The judge disallowed four of nine. There is no automatic limitation on the 20 number of prior convictions with which a defendant's credibility can be impeached. See People v. 21 Mendoza, 78 Cal.App.4th 918, 927 [ten properly allowed]; People v. Green, 34 Cal.App.4th 165, 22 183 (1995) [six]; People v. Muldrow, 202 Cal.App.3d 636,646 (1988) [six]; People v. Castro, 186

23 Cal.App.3d 1211, 1216-1217 (1986) [five]; People v. Dillingham, 186 Cal.App.3d 688, 694-695 24 (1986) [three]. Petitioner does not specify whether the court should have disallowed one or two 25 additional priors or all ofthem, or which ofthe five should have been disallowed. Petitioner has not 26 demonstrated the court violated due process by admitting and excluding the evidence. 27 Petitioner claims "most of the priors occurred within a short period of time and so were

28 not probative of a persistent disposition to no evil." (AOB 20.) As the state court found, the prior
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1 convictions spanned eight years and demonstrated "a sustained pattern of conduct rather than a 2 temporary indiscretion." Plainly, this criminal history of multiple convictions reveals petitioner's 3 character for dishonesty. Impeachment of petitioner with only one or two priors would have given 4 him a "false aura of veracity." 5 Petitioner also claimed in the Court ofAppeal that "the impeachment value ofthe gun use

6 in the 1994 robbery was greatly outweighed by its inflammatory effect, an effect which would surely 7 tempt the jury to the punish petitioner for being the kind of person who has engaged in armed 8 robbery in the past ...." Petitioner's hyperbole notwithstanding, the jury acquitted him of the 9 robbery charge. (1 CT 199-201.) Thus, as the state court concluded, the jurors were not misled. 10 Moreover, petitioner's personal possession of a firearm in the commission of robbery has ample 11 bearing on his readiness to do evil, and therefore on his integrity as a witness. In People v. Lepolo, 12 55 Cal.AppAth 85 (1997), the court rejected the claim that the trial court abused its discretion in 13 allowing prejudicial evidence ofdefendant's brandishing a machete during a prior incident involving 14 a confrontation with police officers. The Court of Appeal reasoned that threatening harm with a 15 machete or a gun has more than slight bearing on veracity. (55 Ca1.AppAth at 91.) The Lepolo court 16 also noted that the potential for prejudicewas minimized because the reference was briefand the jury 17 was instructed that it may consider such evidence only in assessing Lepolo's credibility, but that it 18 did "not necessarily destroy or impair his believability." (55 Ca1.AppAth at 92; see CALJIC No. 19 2.23.) Likewise here, the reference to petitioner's possession of a firearm in the commission of the 20 robbery was brief and tame. There was no evidence he fired the weapon, injured anyone with it, or 21 even waved it around as Lepolo did. (3 RT 179.) Petitioner's jury was instructed, via CALJIC No. 22 2.23, on the limited use of this evidence. (1 CT 108.) And, as noted, the jury acquitted petitioner 23 of the robbery charge. Little prejudice was threatened by admission of the evidence and none

24 occurred. 25 In any event, there was no prejudice under Brecht. The trial court reasonably exercised

26 its discretion and permitted use of five priors and disallowed use of four. The jury was not 27 misled-it acquitted petitioner ofthe charged robbery. It is undisputed petitioner was in possession 28 ofvery recently stolen property, that he knowingly drove Johnson and the loot from the scene ofthe
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1 robbery; and that he used the victim's access card to pump gas. His claim that he pumped gas 2 thinking that this was his credit card was inherently unbelievable. 3

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CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus should be denied. Dated: May 27, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General PEGGY S. RUFFRA Supervising Deputy Attorney General

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lsi Stan Helfman
STAN HELFMAN Supervising Deputy Attorney General Attorneys for Respondent

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