Free Response to Order to Show Cause - District Court of California - California

Case 3:07-cv-04736-JSW

Document 6-2

Filed 12/07/2007

Page 1 of 22

1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANER. GILLETTE Chief Assistant Attorney General 3 GERALD A. ENGLER Senior Assistant Attorney General 4 PEGGY S. RUFFRA SupervisingDeputy Attorney General 5 JULIET B. HALEY, State Bar No. 162823 Deputy Attorney General '6 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 7 Telephone: (415) 703-5960 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

12

13 SAINT DEJUAN MOORE,
14 Petitioner, 15 16 C 07-04736 JSW

v.
BEN CURRY, Warden,

17 Respondent. 18 19

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANSWER
20 21 22 23 24 25 26 27 28

Case 3:07-cv-04736-JSW
1
2

Document 6-2

Filed 12/07/2007

Page 2 of 22

TABLE OF CONTENTS
P~

3 STATEMENT OF THE CASE

1

4 STATEMENTOFFACTS
5

2 4
5

STANDARD OF REVIEW

6 ARGUMENT

7
8

I.

THE STATE COURT'S REJECTION OF PETITIONER'S CLAIM OF GRIFFIN ERROR WAS NOT OBJECTIVELY UNREASONABLE
A. B. State Court's Analysis Of The Claim Petitioner Has Failed To Establish That The State Court's Rejection OfThe Claim Was An Unreasonable Application Of Griffin

5
6 7

9 10

11 II.
12

13

ANY ERROR IN THE PROSECUTOR'S COMMENT REGARDING THE PRESUMPTION OF INNOCENCE WAS WAIVED BY PETITIONER'S FAILURE TO OBJECT AND WAS NOT IN ANY EVENT IMPROPER OR DENY PETITIONER DUE PROCESS
A.

14 15 16 17
A. Factual Background

9

The State Court's Finding That The Remark Did Not Lower The Burden Of Proof Was Not Objectively Unreasonable 10
12 12

III.

THE STATE COURT REASONABLY CONCLUDED THAT THE PROSECUTOR'S ARGUMENT WAS PROPER

18
IV.
19

THE STATE COURT WAS NOT UNREASONABLE IN CONCLUDING THAT THE COURT'S PROMPT ADMONITION CURED ANY HARM

20
CONCLUSION

13

21 22 23 24 25 26 27 28
Memorandum of Points and Authorities in Support of Answer - Moore v. Curry - C 07-04736 JSW
1

16

-----~

... _

------------

Case 3:07-cv-04736-JSW

Document 6-2

Filed 12/07/2007

Page 3 of 22

1

TABLE OF AUTHORITIES Page

2 3 Cases
4 5

Allen v. United States 164 U.S. 492 (1896)

11
8 8

6 Babbitt v. Calderon 151 F.3d 1170 (9th Cir. 1998)
7

Bashor v. Risley 8 730 F.2d 1228 (9th Cir. 1984) 9 Berger v. United States 295 U.S. 78 (1935) 10 Boyde v. California 11 494 U.S. 370 (1990) 12 Brecht v. Abrahamson 507 U.S. 619 (1993) 13 Carey v. Musladin 14 127 S.Ct. 649 (2006) 15 Coleman v. Thompson 501 U.S. 722 (1991) 16 Darden v. Wainwright 17 477 U.S. 168 (1986)
18 Davis v. Woodford 384 F.3d 628 (9th Cir.2004) 19 Donnelly v. DeChristoforo 20 416 U.S. 637 (1974)

13
12 4, 8 4

10,13
7

13
7, 14 8 7 4
5

21 Dubria v. Smith 224 F.3d 995 (9th Cir. 2000) (en bane) 22 Duckett v. Godinez 23 67 F.3d 734 (9th Cir. 1995) 24 Early v. Packer 537 U.S. 3 (2002) (per curiam) 25 Fry v. Pliler 26 _ U.S. _ , 127 S.Ct. 2321 (2007) 27 Griffin v. California 380 U.S. 609 (1965) 28
Memorandum of Points and Authorities in Support of Answer - Moore v. CUrlY - C 07-04736 JSW
11

5,6, 8,9

Case 3:07-cv-04736-JSW
1

Document 6-2

Filed 12/07/2007

Page 4 of 22

TABLE OF AUTHORITIES (continued) Page

2
Hamilton v. Mullin 4 436 F.3d 1181 (10th Cir 2006)
5 6 3

11 2 10 7,8

Hernandez v. Small 282 F.3d 1132 (9th Cir. 2002)

Jackson v. Giurbino 364 F.3d 1002 (9th Cir. 2004) 7 Johnson v. Sublett 63 F.3d 926 (9th Cir. 1995)

8 9

Kansas v. Marsh _U.S. _,126 S.Ct. 2516 (2006) 10
11

9
13

Lawn v. United States 355 U.S. 339 (1958)

12 Lockyer v. Andrade 13 538.U.S. 63 (2003)
14 Mahorney v. Wallman 917 F.2d 469 (10th Cir. 1990) 15

4
11

Miller-El v. Cockrell 16 357 U.S. 322 (2003)
17

4 7
10, 13 10 15

Ortiz-Sandoval v. Gomez 81 F.3d 891 (9th Cir. 1996)

18

Paulino v. Castro 371 F.3d 1083 (9th Cir. 2004) 19 Rich v. Calderon 187 F.3d 1064 (9th Cir. 1999)

20 21

Richardson v. Marsh 22 481 U.S. 208 (1987)
23 24 25 26 27 28

Smith v. Phillips 455 U.S. 209 (1982) Taylor v. Kentucky 436 U.S. 478 (1978) Thompson v. Borg 74 F.3d 1571 (9th Cir. 1996) Tillman v. Cook 25 F.Supp.2d 1245 (D. Utah 1998)
Memorandum of Points and Authorities in Support of Answer - Moore v. Curry - C 07-04736 JSW
111

7
11

7
11

Case 3:07-cv-04736-JSW

Document 6-2

Filed 12/07/2007

Page 5 of 22

TABLE OF AUTHORITIES (continued)
1

Page

2

3 United States v. Garcia-Guizar 4 160 F.3d 511 (9th Cir. 1998) United States v. Koon 5 34 F.3d 1416 (9th Cir.1994) 6 United States v. Lester 7 749 F.2d 1288 (9th Cir.1984) United States v. Lopez 8 803 F.2d 969 (9th Cir, 1986) 9 United States v. Robinson 10 485 U.S. 25 (1988) United States v. Sanchez 11 176 F.3d 12144 (9th Cir.1999) 12 United States v. Williams 13 989 F.2d 1061 (9th Cir.1993) 14 United States v. Young 470 U.S. 1(1985) 15 Viereck v. United States 16 318 U.S. 236 (1943) 17 Wainwright v. Sykes 433 U.S. 72 (1977) 18 Weeks v. Angelone 19 528 U.S. 225 (2000) 20
21 22 23 24 Statutes 25 United States Code, Title 28 § 2254(d) 26 § 2254(e)(1) 27 28
Memorandum of Points and Authorities in Support of Answer - Moore v. Curry - C 07-04736 JSW
IV

8
14 14 13
8

13 14 13 14 10,13
9
4

Williams v. Taylor 529 U.S. 362 (2000) Woodford v. Visciotti 537 U.S. 19 (2002) (per curiam)

4

4

2,4

-

---------~

------------

Case 3:07-cv-04736-JSW

Document 6-2

Filed 12/07/2007

Page 6 of 22

TABLE OF AUTHORITIES (continued)
1

Page
1 1 1 1 1 1 1

2

California Penal Code § 211 3 § 245, subdivision (a) § 664 4 § 667.5, subdivision (b) § 12021, subdivision (a)(I) 5 § 12022.7, subdivision (a) § 12280, subdivision (b) 6 7

8
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 -Moore v. Curry - C 07-04736 JSW
V

Case 3:07-cv-04736-JSW

Document 6-2

Filed 12/07/2007

Page 7 of 22

1 EDMUND G. BROWN JR. Attorney General of the 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 JULIET B. HALEY, State Bar No. 162823 Deputy Attorney General . 6 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 7 Telephone: (415) 703-5960 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 DNISION

12
13

SAINT DEJUAN MOORE,
14 Petitioner, 15

C 07-04736 JSW

v.
16

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANSWER

BEN CURRY, Warden,
17 Respondent. 18 19 20 21

STATEMENT OF THE CASE
On April 8, 2005, the Alameda County District Attorney filed an information charging

22 petitioner Moore and co-defendant Barrow with attempted second degree robbery, in which Barrow 23 personally inflicted great bodily injury. Cal. Penal Code, §§ 211, 664, 12022.7, subd (a). 1 CT 18924 190, 192-193. Petitioner alone was charged with assault by force likely to produce great bodily

25 injury, possession of a firearm by a felon and possession of an assault weapon (Cal. Penal Code, §§ 26 245, subd. (a), 12021, subd (a)(I), 12280, subd. (b). 2 CT 230-232. It was further alleged that 27 petitioner Moore had served a prior qualifying prison term. Cal. Penal Code, § 667.5, subd. (b). 28 On June 30, 2005, a jury found petitioner guilty ofthe respective charges. 2 CT 304-307.
Memorandum of Points and Authorities in Support of Answer - Moore v. Curry - C 07-04736 JSW

1

Case 3:07-cv-04736-JSW

Document 6-2

Filed 12/07/2007

Page 8 of 22

1

On July 27,2005, the court found the allegation ofpetitinoer's prior prison term to be

2 true. 2 CT 406. Petitioner was sentenced to a state prison term offive years four months. 2 CT 4013 403,406-409. Petitioner's appeal was denied on December 28,2006, in an unpublished opinion. 4 Exh. C. Review was summarily denied by the California Supreme Court on March 14, 2007. Exh. 5 D. Petitioner filed the instant habeas petition in this Court on September 14, 2007.

6
7

STATEMENT OF FACTS The state court of appeal found the facts to be as follows. This summary constitutes a

8 factual finding thatis presumed correct under 28 U.S.C. § 2254(e)(1). Hernandez v. Small, 282 F .3d 9 1132, 1135 n. 1 (9th Cir. 2002). 10 11 12
13

On Sunday, January 30,2005, at approximately 8:30 p.m., Sergio Garcia drove into the parking lot of a check cashing business at High Street and International Boulevard. He went into the business to buy some money orders. His 22-year-old wife, Claudia Ayala, stayed in the car. So did her 16-year-old sister, Reyna Alaya. Although it was nighttime, it was "not too" dark-there was "50 percent lighting" from advertising signs. After he bought the money orders, Sergio went back to his car. As he was unlocking the driver's door, a man came up to him from his right side and asked him for his money. The man's tone ofvoice was a "little bit mad and strong." Sergio described the man as AfricanAmerican, thin, wearing a sweatshirt with a hood over his head, and sporting an earring in his right ear. Sergio told the man that he did not have any money. The man lunged at Sergio and tried to take his wallet from his left pants pocket. The two men grappled and fell to the ground. Sergio positively identified defendant Barrow in court as the man who approached and assaulted him, and was certain of his identification. A second man arrived and started pulling on Sergio's leg. Sergio described the second man as African-American, "a little heavier," wearing a dark shirt with white lettering, and with "an angry face." Sergio positively identified defendant Moore in court as the second man, and was certain of his identification. Claudia got out ofthe car and screamed at defendants to leave Sergio alone. She put her hand on Moore's shoulder. Moore turned and struck Claudia in the face with a closed fist. Claudia screamed. Moore hit her again. Claudia positively identified Barrow in court as the first man, and Moore as the second man. Barrow struck Sergio on the left side of his face. Sergio stood up and screamed for someone to call the police for help. He saw that Claudia's face was swollen. Barrow and Moore then left, walking away slowly. The assault had lasted about a minute and a half. Sergio and Claudia got back into their car, and began to follow defendants. Defendants started to run. Claudia called 911 on her cell phone and reported the assault, but she was nervous and had trouble communicating with the operator. (Claudia spoke in both Spanish and English.) Sergio took the phone and spoke to the 911 operator in Spanish.
Memorandum of Points and Authorities in Support of Answer - Moore v. Curry - C 07-04736 JSW

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

2
-------~~~-

Case 3:07-cv-04736-JSW

Document 6-2

Filed 12/07/2007

Page 9 of 22

1 2 3 4

Sergio followed defendants until they got into a parked car. Sergio described the car as a white Cadillac or Pontiac with chrome rims and tinted rear windows. Sergio identified a photograph of the white car in court. The white car drove in Sergio's direction and stopped. The driver got out and made a motion as ifhe were drawing a gun. Sergio put his car in reverse and backed away. The driver got back into the white car and drove off. Sergio followed the white car. At some point, Sergio lost sight of the white car for about two minutes.

5

6 7
8

The tape of the 911 call was played for the jury, and depicts Claudia telling the 911 operator that the white car's license plate number was "4WCE642," which the operator later repeated (erroneously) as "4 WTEC42." Sergio took over the conversation with the operator while he was still following the white car. He first gave the number given by Claudia, but then said that was wrong and gave the license plate number as "2VVM660." During the chase, Reyna wrote down the license plate number of the white car on an envelope. There were actually two numbers on the envelope-Sergio identified the bottom number, 2VVM660, as the license plate number he saw on the white car. He identified the license plate number both from the envelope and from two photographs ofthe white car. Sergio explained the discrepancy between the two license plate numbers. The first number was given to him by 16-year-old Reyna, who apparently was nervous and did not read the white car's license plate number correctly; the second number, 2VVM660, was the number Sergio himselfactually saw on the white car. Claudia testified that she, Sergio, and Reyna were all nervous while they tried to get the license plate number as Sergio chased the white car. Sergio. stayed on the line with the 911 operator and relayed the locations ofthe white car as he followed it. Eventually, a police car met up with him and he pointed out the white car in front of him. The police car began to follow the white car with its lights activated. Sergio followed. After a freeway chase, the police caught up to the white car and stopped it in Emeryville. Sergio parked nearby. The police came over to Sergio's car and spoke with Sergio and Claudia. The police took Sergio in a squad car to the place where the white car had been stopped. Sergio identified two men, the one who had assaulted him (defendant Barrow) and the one who had assaulted Claudia (defendant Moore). Claudia also made an in-field identification of Barrow and Moore. Defendant Moore was found in possession of a Tec-9 pistol, which is an assault weapon.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

As a result ofthe incident, Sergio suffered a fractured lower jaw, which required surgery to wire his jaws together. The injury was on the left side, consistent with his having been struck by a right-handed person. Defendants did not testify or present any witnesses. In closing argument, their counsel argued a defense ofmistaken identity. Stressing the existence oftwo different license plate numbers, counsel argued that Sergio and Claudia had identified the wrong car and were mistaken in their identification of defendants-and that defendants were innocent. The jury convicted defendants Barrow and Moore ofthe attempted second degree robbery ofSergio, during which Barrow personallyinflicted great bodily injury. Thejuryconvicted defendant Moore ofthe assault by means of force likely to produce great bodily injury of Claudia, plus two offenses related to the assault weapon possession. The trial court sentenced defendant Barrow to five years in prison and defendant Moore to five years four
Memorandum of Points and Authorities in Support of Answer - Moore v. Curry - C 07-04736 JSW

3

Case 3:07-cv-04736-JSW

Document 6-2

Filed 12/07/2007

Page 10 of 22

1

months.

2 Exh. C, at 1-4.

3
4

STANDARD OF REVIEW
.A federal court may grant a writ ofhabeas corpus to a state prisoner only ifthe state court's

5 rulings "resulted in a decision that was contrary to, or involved an unreasonable application of, 6 clearly established Federal law, as determined by the Supreme Court of the United States" or were 7 "based on an unreasonable determination ofthe facts in light ofthe evidence presented" in the state 8 courts. 28 U.S.C. § 2254(d). Under the "contrary to" clause, a state court's decision is contrary to

9 federal law ifit "~ontradicts the governing law set forth in our cases" or ifit "confronts a set offacts
10 that are materially indistinguishable from a decision ofthis Court and nevertheless arrives at a result 11 different from our precedent." Williams v. Taylor, 529 U.S. 362, 405-406 (2000); see also Early v.

12 Packer, 537 U.S. 3, 8 (2002) (per curiam). If there is no Supreme Court precedent that controls a
13 legal issue raised by a petitioner in state court, the state court's decision cannot be contrary to, or an 14 unreasonable application of, clearly established federal law. Carey v. Musladin, 127 S.Ct. 649, 65315 54 (2006) (denying habeas relief in absence of clearly established federal law). 16 In order to warrant habeas relief, the state court's application ofclearly established federal

17 law must not be merely erroneous, incorrect, or even "clear error," but "objectively unreasonable."

18 Lockyer v. Andrade, 538 U.S. 63, 76 (2003); see also Williams v. Taylor, 529 U.S. at 409; Woodford
19 v. Visciotti, 537 U.S. 19,24 (2002) (per curiam). It is the habeas petitioner's burden to make that 20 21 22 23 24 25 26 27 28 showing. Woodford, at 25. In the same way, a "decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light ofthe evidence presented in the state-court proceeding." Miller-El v. Cockrell, 357 U.S. 322, 340 (2003). State court factual determinations are presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(I). Even if the state court's ruling is contrary to or an unreasonable application of Supreme Court precedent, that error justifies overturning the conviction only ifthe error had "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U. S. 619, 637 (1993). The Brecht standard applies to all § 2254 cases, regardless ofthe type ofharmless error
Memorandum of Points and Authorities in Support of Answer - Moore v. Curry - C 07-04736 JSW

4
....

__

._~-_.

-

.-

--~~-~

~-~----~

. _ . . __

...·

-

--_.._ - - - - - - -

Case 3:07-cv-04736-JSW

Document 6-2

Filed 12/07/2007

Page 11 of 22

1 review conducted by the state courts. Fry v. Pliler, _ 2
3

U.S. _ _ , 127 S.Ct. 2321 (2007).

ARGUMENT

I.
THE STATE COURT'S REJECTION OF PETITIONER'S CLAIM OF GRIFFIN!! ERROR WAS NOT OBJECTIVELY UNREASONABLE During the prosecutor's closing jury argument, the following interruptions by defense

4

5
6

7 counsel and rulings by the court occurred: 8 9 10 11 12 13 14 MS. YNOSTROZA: Thank you. 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1. Griffin v. California, 380 U.S. 609 (1965)
Memorandum of Points and Authorities in Support of Answer - Moore v. Curry - C 07-04736 JSW

Now, although the defense is not required to call any witnesses, the burden ofproof is completely on me, the District Attorney's Office, to prove beyond a reasonable doubt the defendant's guilt. The defense in this case both failed to call logical witnesses in this case.
MR. YUN [Barrow's lawyer]: Your Honor, I would object. That's shifting the burden here. MR. WOHLSTADTER [Moore's lawyer]: I'm going to object on Griffin error.

THE COURT: I think case law has held-I haven't heard what the argument is yet. The case law says it's fair commentary.

MR. WOHLSTADTER: Judge, by "logical witnesses", she is implying, I think, an improper reference.

THE COURT: You mow, obviously-and I will put it right out here-it's obviously improper since the jury cannot consider in any way the fact that a defendant didn't testify. It's improper to argue, to implicate something that the defense didn't do, because they have a constitutional right and they have exercised it. That's not to be contemplated and it's not fair to argue. But there is an argument, and I don't mow what she is going to argue yet. She is ready to jump on it right now. I don't know what she is going to argue yet, so we will see. But the jury is cautioned in that regard. MS. YNOSTROZA: What I'm doing at this time is I'm commenting on the state of the evidence and the failure ofthe defense to introduce material evidence or to call logical witnesses. I'm citing and reading from changing the names to the two defendants in this case that you have heard about here in this courtroom, but it's a case, good case law, People v. Morris, and the cite is 46 Ca1.3dat page 1. Everything comes together. The bits ofthe puzzle come together to fit the point of defendant Barrow and defendant Moore, and nothing points at anybody else.

5

Case 3:07-cv-04736-JSW

Document 6-2

Filed 12/07/2007

Page 12 of 22

1 2
3

Keep in mind that there is not a shred of evidence, not a shred to suggest that anybody else did the attempt robbery or assaulted Sergio or Claudia other than defendants Barrow and Moore. Not a shred. There is no shred of evidence to indicate that defendant Moore or defendant Barrow were anywhere else on the evening of January 30th, 2005. Nothing. Put yourself in the position ofbeing a defendant, and you can bet your boots, if you had anything to offer by way of evidence, by way of alibi, that you would offer it. Be assure ofthat. Be assured ofthe fact that any defense attorney would make sure that ifany such evidence existed, you would have it. You don't have it. MR. WOHLSTADTER: Your Honor, I'm going to object to that as improper argument. I don't know the facts ofthat case. THE COURT: You want to join? MR. YUN: Ijoin. THE COURT: Your objections are noted for the record.
11 RT 2495-2497.

4 5
6

7 8 9 10
11

12

.Petitioner contends the prosecutor's argument constituted an improper reference to the

13 petitioner's choice not to testify. He argues unpersuasivelythat given the shortness of time between 14 when the attempted robbery and assaults occurred, and when the white Pontiac was seen again by 15 the victims, there were no "logical witnesses" who could have testified where petitionerwas in order 16 to provide them with an alibi. Petitioner therefore maintains that the prosecutor's comments on the 17 absence ofthese witnesses improperly invited the jury to draw a negative inference from his failure 18 to testify. Petitioner does not address the alternative ground of the prosecutor's argument, viz. the, 19 absence of material evidence. Said contention was reasonably rejected by the state court. 20 A. 21 22 23 24 25 26 27 28

State Court's Analysis Of The Claim
Defendants contend the prosecutor commented on their right to not testify, in violation of Griffin v. California (1965) 380 U.S. 609 (Griffin). The prosecutor argued as follows: ''Now, although the defense is not required to call any witnesses, the burden of proof is completely on me, the District Attorney's Office, to prove beyond a reasonable doubt the defendants' guilt. The defense in this case both failed to call logical witnesses in this case." After defendants objected, citing Griffin, the trial court clarified that the jury could not consider defendants' failure to testify. The prosecutor further argued: "What I'm doing at this time is I'm commenting on the state ofthe evidence and the failure ofthe defense to introduce material evidenceor to call logical witnesses. [~~] '" [~~] [~~] Keep in mind that there is not a shred of evidence, not a shred to suggest that anybody else did the attempt[ed] robbery or assaulted Sergio or Claudia other than defendants....Not a shred. There is no shred ofevidence to indicate that defendant[s] were anywhere else on the evening of January 30,2005. Nothing. [~~] Put yourself in the position of being a defendant, and you can bet your boots, if you had

Memorandum of Points and Authorities in Support of Answer - Moore v. Curry - C 07-04736 JSW

6

Case 3:07-cv-04736-JSW

Document 6-2

Filed 12/07/2007

Page 13 of 22

1 2 3 4 5 6 7 8 9

anything to offer by way of evidence, by way of alibi, that you would offer it. Be assured of that. Be assured of the fact that any defense attorney would make sure that if any such 'evidence existed, you would have it. You don't have it." Theprosecutor's comments are not Griffin error but a legitimate comment on the lack of defense alibi evidence. " Griffin ... protects a defendant's right not to have the prosecutor comment on his failure to testify. A prosecutor is permitted, however, to comment on a defendant's failure to introduce material evidence or call logical witnesses. [Citation.]" (People v. Brown (2003) 31 Ca1.4th 518, 554 (Brown ); see People v. Morris (1988) 46 Ca1.3d 1, 35-36 (Morris), disapproved on unrelated grounds in In re Sassounian (1995) 9 Ca1.4th 535, 543-544, fn. 5, 545, fn. 6.) Both Brown and Morris approve of arguments such as the one made by the prosecutor in this case, commenting on the lack of alibi evidence. (Brown, supra, 31 Ca1.4th at pp. 552, 554; Morris, supra, 46 Ca1.3d at pp. 35-36.) "By directing the jury's attention to the fact defendant never presented evidence that he was somewhere else when the crime was committed, the prosecutor did no more than emphasize defendant's failure to present material evidence. He did not capitalize on the fact defendant failed to testify." (Brown, supra, at p. 554.)

10

11 Exh. C, at 15-16. 12 B.

Petitioner Has Failed To Establish That The State Court's Rejection Of The Claim Was An Unreasonable Application Of Griffin
"[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct

13
14

15 is the fairness ofthe trial, not the culpability ofthe prosecutor." Smith v. Phillips, 455 U.S. 209, 219 16 (1982). Habeas relief is warranted only if the prosecutor's comments in closing argument "so 17 infected the trial with unfairness as to make the resulting conviction a denial of due process." 18 Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation omitted); accord, Johnson v. Sublett, 63 19 F.3d 926, 929 (9th Cir. 1995). Because the standard of review on federal habeas corpus is "the 20 21 22 23 24 25 26 27 28 narrow one of due process, and not the broad exercise of supervisory power," even improper argument does not necessarily violate a defendant's constitutional rights. Thompson v. Borg, 74 F.3d 1571, 1576 (9th Cir. 1996) (citation omitted); Duckettv. Godinez, 67 F.3d 734, 743 (9th Cir. 1995). In determining whether a due process violation occurred, "[t]he arguments of counsel are generally accorded less weight by the jury than the court's instructions and must be judged in the context of the entire argument and the instructions." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 898 (9th Cir. 1996). "A court should not lightly infer that a prosecutor intended an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora ofless damaging.interpretations." Donnelly v. DeChristoforo, 416 U.S.
Memorandum of Points and Authorities in Support of Answer - Moore v. Curry - C 07-04736 JSW

7

Case 3:07-cv-04736-JSW

Document 6-2

Filed 12/07/2007

Page 14 of 22

1 637,647 (1974); accord, Babbitt v. Calderon, 151 F.3d 1170, 1179-1180 (9th Cir. 1998); Dubria
2 v. Smith, 224 F.3d 995, 1103 (9th Cir. 2000) (en bane),

3

Further, if constitutional error occurred, habeas relied is unavailable unless the error had

4 a substantial and injurious effect or influence on the jury's verdict. Johnson v. Sublett, 63 F.3d 926, 5 930 (9th Cir.1995) (citing Brecht v. Abrahamson, 507 U.S. 619 (1993)).

6

As the state court correctly observed, a prosecutor may comment on a defendant's failure

7 to produce material evidence or to call logical witnesses. United States v. Robinson, 485 U.S. 25, 8 26-34 (1988); United States v. Garcia-Guizar, 160 F.3d 511,521-22 (9th Cir.1998) (prosecutor did 9 not shift the burden ofproof in commenting on the defendant's failure to produce evidence). And a 10 prosecutor may comment on the absence of evidence even when such evidence was available, but 11 inadmissible, so long as there is sufficient evidence to support the prosecutor's version of events.
12

See Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir.1984) (finding no misconduct where the

13 prosecutor argued that the defendant had one intention when an inadmissible polygraph test 14 suggested that he had a different intention). 15 This is exactly what occurred here. The prosecutor invited the jury, to "[p Jut yourself in

16 the position of being a defendant, and you can bet your boots, if you had anything to offer by way 17 of evidence, by way of alibi, that you would offer it. Be assured of that. Be assured ofthe fact that 18 any defense attorney would make sure that if any such evidence existed, you would have it. You 19 don't have it." 11 RT 2497. Petitioner's speculation about the possible lack of alibi evidence to 20 establish his whereabouts does not detract from the prosecutor's remarks being properly confined 21 to the absence of any such exonerating evidence. The lack of any prosecutorial reference, indirect 22 or otherwise, to the petitioner's failure to take the stand and testify likewise signifies that there was

23 no Griffin error here. 24 Moreover, petitioner's argument ignores the impact of the court's instruction to the jury.

25 Before the prosecutor had even been allowed to finish her comments, defense counsel objected, and 26 27 the court addressed counsel's premature objections by admonishing the jury that it would be improper for them to "consider in any way the fact that a defendant didn't testify ... because they

28 have a constitutional right and they have exercised it. That's not to be contemplated and it's not fair
Memorandum of Points and Authorities in Support of Answer - Moore v. Curry - C 07-04736 JSW

8

Case 3:07-cv-04736-JSW

Document 6-2

Filed 12/07/2007

Page 15 of 22

1 to argue." 11 RT 2495-2496. Juries are presumed to follow the court's instructions. Weeks v. 2 Angelone, 528 U.S. 225,233 (2000); Kansas v. Marsh, _U.S. _ , 126 S.Ct. 2516, 2528 (2006). 3 Thus, even if the prosecutor's remarks, though specifically directed as comments on the state of 4 evidence, could have been interpreted by the jury to allow them to draw the inference from silence 5 now suggested by petitioner, the court's instruction overcame any inclination to hold petitioner's 6 failure to testify against him. 7 Finally, assuming that the prosecutor's argument could somehow be construed as Griffin

8 error, the remarks did not have a substantial or injurious effect on the verdict. Any Griffin error 9 contained in the prosecution's remarks was indirect at most, brief when viewed in context of the 10 84-page closing argument and 26-page rebuttal argument, mild, and did not suggest an inferenceof 11 guilt be drawn from petitioner's silence. And most significantly, the evidence against petitioner

12 was overwhelming. Both victims positively identified him, he was found almost immediately after 13 the crime in the vehicle that had been identified by the victims, he fled on foot when stopped by 14 police, and when detained, asked without any prompting "if someone had gotten robbed or 15 something". 4 RT 900':'902,922,953,955,957; 5 RT 972-73. Last, a Ioaded P millimeter Lugar 16 brand Intratec model firearm, designed as a semi-automatic weapon, plus a magazine for it, were 17 found inside his backpack. 2 RT 302-03, 4RT 960-62; 5RT 1033-60. The state court's denial of 18 petitioner's Griffin claim was not unreasonable. 19 20 21 22 23 24 25· 26 27 28 During closing argument to the jury the prosecutor also made the following comments, to which there were no defense objections: The presumption of innocence was talked a lot about during jury selection. There was mention of it in closing by both defense attorneys. The presumption of innocence is important, and it exists at the beginning of all criminal cases. But at the close of evidence, and specifically the close of evidence in this case, the presumption of innocence disappears. It's not something that sticks with the person come thick or thin. The state of the evidence is that these defendants are no longer presumed innocent,
Memorandum of Points and Authorities in Support of Answer - Moore v. CUrlY - C 07-04736 JSW

II.

ANY ERROR IN THE PROSECUTOR'S COMMENT REGARDING THE PRESUMPTION OF INNOCENCE WAS WAIVED BY PETITIONER'S FAILURE TO OBJECT AND WAS NOT IN ANY EVENT IMPROPER OR DENY PETITIONER DUE PROCESS

9

Case 3:07-cv-04736-JSW
1 2 3

Document 6-2

Filed 12/07/2007

Page 16 of 22

because they have been proven guilty beyond a reasonable doubt. 11 RT 2500. Petitioner contends the prosecutor violated his constitutional rights by misstating the law

4 as it applied to the presumption of innocence. The state court rejected the claim as follows: 5 6 7 8 9 10 11 12 13 14 15 16 17 Exh. C, at 16. 18 A. 19 20 To begin, petitioner did not object to this remark. The state court correctly observed that The State Court's Finding That The Remark Did Not Lower The Burden Of Proof Was Not Objectively Unreasonable The prosecutor argued that "The presumption of innocence is important, and it exists at the beginning of all criminal cases. But at the close of evidence, and specifically the close of evidence in this case, the presumption of innocence disappears." Defendants contend this was a misstatement ofthe law in violation oftheir constitutional rights. Relying to some extent on older authorities, defendants claim that the presumption of innocence continues throughout the trial and the deliberations of the jury, and is dispelled only by a verdict of guilt. (See, e.g., People v. Hardwick (1928) 204 Cal. 582, 594-595; People v. Ye Foo (1907) 4 Cal.App. 730, 740.)
It does not appear that this instance ofalleged misconduct has been preserved for appellate review by a proper objection and request for admonition. (See Brown, supra, 31 Cal.4th at p. 553.) ill any case, there is no error. Penal Code section 1096 states that defendant "is presumed to be innocent until the contrary is proved...." This language is contained in CALJIC No. 2.90, which was given to the jury in the present case. Thus, the jury was properly instructed on the presumption of innocence and was not misled by the prosecutor's remark. The jury doubtless knew defendants were presumed innocent until the People had proven to the contrary, i.e., presented evidence of their guilt beyond a reasonable doubt. (See People v. Goldberg (1984) 161 Cal.App.3d 170, 189.) The presumption of innocence is overcome when the jury is convinced that a defendant is guilty beyond a reasonable doubt and returns a verdict in accordance with that quantum of proof.

21 his failure to do so waived any claim of misconduct under state law. Accordingly, federal habeas 22 review ofpetitioner's prosecutorial misconduct claim is procedurally barred. See, e.g., Coleman v.

23
24

Thompson, 501 U.S. 722, 750 (1991); Wainwrightv. Sykes, 433 U.S. 72, 86-87, 97 (1997); Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th Cir. 2004) (California's contemporary-objection rule

25 precludes federal habeas review); Jackson v. Giurbino, 364 F.3d 1002, 1006-1007 (9th Cir. 2004) 26 27 28 (failure to object to prosecutor's closing argument); Rich v. Calderon, 187 F.3d 1064,1070 (9th Cir. 1999) (same). Considered on the merits, the claim fails as well. The prosecutor's unchallenged statements
Memorandum of Points and Authorities in Support of Answer - Moore v. Curry - C 07-04736 JSW

10
~------ ---~-~-~~-

Case 3:07-cv-04736-JSW

Document 6-2

Filed 12/07/2007

Page 17 of 22

1 here did not constitute misconduct under either federal or state law, or otherwise "denigrate" the 2 presumption of innocence. ill Allen v. United States, 164 U.S. 492 (1896), the United States 3 Supreme Court expressed how the presumption of innocence operates. It 4 5 6 "stayed with [the defendant] until it is driven out ofthe case by the testimony. It is driven out of the case when the evidence shows, beyond a reasonable doubt, that the crime as charged has been committed, or that a crime has been committed. Whenever the proof shows, beyond a reasonable doubt, the existence of a crime, then the presumption of innocence disappears from the case."

7 Id. at 500 (quoting from the trial court's instruction in that case)
8

The Supreme Court has more recently observed about the presumption that:
It is. now generally recognized that the "presumption of innocence" is an inaccurate, shorthand description of the right ofthe accused to "remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion; i. e., to say in this case, as in any other, that the opponent of a claim or charge is presumed not to be guilty is to say in another form that the proponent of the claim or charge must evidence it."

9 10 11

12 Taylor v. Kentucky, 436 U.S. 478,483, n. 12 (1978).

13

Consequently, the prosecutor was not far offthe mark when she asserted during argument

14 that petitioner and his codefendant were "no longer presumed innocent, because they had been 15 proven guilty beyond a reasonable doubt." 11 RT 2500. This argument did not misstate the law. 16 In essence, the prosecutor was urging that because the evidence proved petitioner's guilty beyond 17 a reasonable doubt, the presumption of innocence was rebutted. 18 Nor was the prosecutor's argument in this case comparable to that found objectionable in

19 Mahorney v. Wallman, 917 F.2d 469, 471 (10th Cir. 1990), in which petitioner claims a "very

20 similar presentation" was made. Pet at 7. Other federal court decisions have distinguished Mahorney 21 because the prosecutor there essentially told the jury to disregard the presumption of innocence.s' 22 See Hamilton v. Mullin, 436F.3d 1181,1188 (10thCir2006); Tillman v. Cook, 25 F.Supp.2d 1245, 23 1278 (D. Utah 1998). Unlike Mahorney, the prosecutor here did not ask the jury to disregard the

24 presumption of innocence. Rather the prosecutor linked that presumption directly to the state's 25 2. "I submit to you ... under the law and under the evidence, that [the presumption of 27 innocence] has been removed, that that presumption no longer exists, that that presumption has been removed by evidence and he is standing before you now guilty. That presumption is not there any 28 more." Mahorney v. Wallman, 917 F.2d at 471 (italics added).
Memorandum of Points and Authorities in Support of Answer - Moore v. Curry - C 07-04736 JSW

26

11

Case 3:07-cv-04736-JSW

Document 6-2

Filed 12/07/2007

Page 18 of 22

1 burden to prove its case beyond a reasonable doubt. Thus, there is no reasonable likelihood that the 2 jury understood or applied the complained-ofcomments in an improper or erroneous manner. This

3 conclusion is further bolstered by the fact that arguments ofcounsel "generally carry less weight with 4 a jury than do instructions from the court, ... are usually billed in advance to the jury as matters of
5 argument, not evidence, ... and are likely viewed as the statements of advocates," whereas the 6 instructions from the court "are viewed as definitive and binding statements ofthe law." Boyde v. 7

California, 494 U.S. 370, 384 (1990). And the jury was properly instructed regarding the burden

8 of proof and told to follow the law as stated by the court. 10 RT 2283. On this record, petitioner 9 has failed to establish that the state court's rejection of the claim was unreasonable. 10
11

III.

THE STATE COURT REASONABLY CONCLUDED THAT THE PROSECUTOR'S ARGUMENT WAS PROPER
Petitioner contends, based on the prosecutor calling the witnesses "honest about what

12

13

14 happened," that the jury reasonably took the remark as a personal guarantee of one who had 15 investigated the case and come to the conclusion that the witnesses were honest. This claim is

16 utterly without merit. It was reasonably rejected by the state court on the basis that the complaint 17 was waived based on petitioner's failure to object and that the" prosecutor was properly commenting 18 on the credibility of certain witnesses based upon their testimony and demeanor during trial." Exh 19 C, at 17. Its conclusion is sound. 20 21 22 23 24 25 26 27 28

A.

Factual Background
Co-defendant's Moore's lawyer argued to the jurythatthe prosecution's eyewitnesses were

coached and their testimony tainted. 11 RT 2407, 2409. In response, the prosecutor urged that: The witnesses who came in here were honest about what happened. Sometimes they couldn't provide more information above and beyond what they said at the Preliminary Hearing. Sometimes they could. This wasn't drama. They are not actors. This isn't scripted. This isn't a situation where they were asked or told to do anything in particular. They were only asked to come in here and tell the truth. Each of them told you that, and they did their best to do so. It's not comical. 11 RT 2482-2483. Again, the improper vouching claim has been forfeited because petitioner failed to object
Memorandum of Points and Authorities in Support of Answer - Moore v. Curry - C 07-04736 JSW

12

Case 3:07-cv-04736-JSW

Document 6-2

Filed 12/07/2007

Page 19 of 22

1 to the prosecutor's comments and seek a curative admonition from the court. See, e.g., Coleman, 2 501 US. at 750; Wainwright v. Sykes, 433 US. at 86-87, 97; Paulino v. Castro, 371 F.3d 1083, 3 1092-93. 4 Considered on the merits, the claim fails as well. It is well established that a prosecutor

5 may not vouch for the credibility of a witness. United States v. Sanchez, 176 F.3d 1214, 1224 (9th 6 Cir.1999); United States v. Lopez, 803 F.2d 969, 973 (9th Cir.1986) (improper to suggest that 7 witness found credible by the grandjury should therefore be credible to the trialjury). Prosecutorial 8
miscond~ct

occurs when a prosecutor vouches for the credibility of a witness by giving personal

9 assurances of the witness's truthfulness or suggesting that there is information not presented to the 10 jurywhich supports the witness's testimony. See Berger v. United States, 295 U.S. 78, 86-88 (1935); 11 see also Lawn v. United States, 355 US. 339, 359-60 n. 15 (1958). Such vouching is misconduct 12 because it poses two dangers: it may lead the jury to convict on the basis of evidence not presented, 13 and it carries with it the imprimatur of the government. See United States v. Young, 470 U.S. 1, 18 14 (1985). To warrant habeas relief, prosecutorial vouching must so infect the trial with unfairness as 15 to make the resulting conviction a denial ofdue process. Davis v. Woodford, 384 F.3d 628, 644 (9th 16 Cir.2004) (citation omitted). 17 , Here, when the prosecutor indicated that the witnesses were being honest, she did so in

18 the context of the information they provided at the preliminary hearing, a situation in which they 19 were not asked or told to do anything in particular. This was permissible argument, as her comments 20 simply urged the jury to credit their testimony based on matters within the record, not matters within 21 the prosecutor's own personal knowledge. The state court found so and its rejection of the claims 22 on the merit was not unreasonable. 23 24 25 26 Finally, the following occurred during the prosecutor's closing argument in regard to what

IV.
THE STATE COURT WAS NOT UNREASONABLE IN CONCLUDING THAT THE COURT'S PROMPT ADMONITION CURED ANY HARM

27 the prosecutor viewed as the jury's responsibility to the community: 28 Youjurors are the voice ofthe community. Ifyou want to acquit the defendants based on
Memorandum of Points and Authorities in Support of Answer - Moore v. Curry - C 07-04736 JSW

13

Case 3:07-cv-04736-JSW

Document 6-2

Filed 12/07/2007

Page 20 of 22

1 2 3 4 5 6 7

this license plate discrepancy, as the defense attorneys have tried to blow it up into a big issue, that's your decision. If you want to acquit them and release them back into your community to prey on other people in our community. MR. WOHLSTADTER: I object -MR. YUN: I object. MR. WOHLSTADTER: -- and cite for misconduct and move -THE COURT: Mr. Wohlstadter-MR. WOHLSTADTER: May I approach? THE COURT: At sidebar. No speaking objections. MR. WOHLSTADTER: May we approach? THE COURT: You may. (Short discussion off the record)

8

9 10 11 12 13 14

THE COURT: Thank you. Please move on, Ms. Ynostroza. THE COURT: Thank you, Ms. Ynostroza. ['t!] I want to caution the jury about the comment made by Ms. Ynostroza about the potential for future harm of these two defendants should not be considered by you. That should not have been a part of your argument. Please remember that the instruction does indicate that both the People and the defendants have a right to expect that you will conscientiously consider and weigh the evidence, apply the law, and reach just verdicts, regardless of the consequences. 11 RT 2503. It is well established that prosecutors may not make comments calculated to arouse the

15 passions or prejudices of the jury. Viereck v. United States, 318 U.S. 236, 247-48 (1943). A 16 prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, 17 preserve civil order, or deter future lawbreaking. The problem in such prosecutorial appeals is that 18 the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence. Jurors 19 may be persuaded by such appeals to believe that, by convicting a defendant, they will assist in the 20 21 22 23 solution of some pressing social problem. United States v. Koon, 34 F .3d 1416, 1443 (9th Cir.1994) On the other hand, a prosecutor may ask the jury to act as a '" conscience ofthe community'" unless such a request is '" specifically designed to inflame the jury. '" United States v. Williams, 989 F.2d 1061, 1072 (9th Cir.1993) (quoting United States v. Lester, 749 F.2d 1288, 1301 (9th Cir.1984));

24
25 26 27 28

United States v. Koon, 34 F.3d 1416, 1444 (1994) .
.Additionally, as discussed elsewhere, when assessing the remarks of a prosecutor, the Supreme Court instructs that "a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through a lengthy exhortation, will draw that meaning from the plethora ofless damaging interpretations." Donnelly v. DeChristoforo,
Memorandum of Points and Authorities in Support of Answer - Moore v. Curry - C 07-04736 JSW

14
------

~----------

Case 3:07-cv-04736-JSW
1 416 U.S. 637,647. 2

Document 6-2

Filed 12/07/2007

Page 21 of 22

In this case, the state court found that while the remarks were improper under state law,

3 the trial court's immediate admonition to the jury cured any harm. Exh. C, at 17. Its conclusion is 4 sound and supported by the record.
5

Right after petitioner objected to the prosecutor's argument, the trial court directed the

6 prosecutor to "move on," and admonished her in front of the jury that this "should not have been a 7 part of your argument." 11 RT 2503. The court then directed the jury instead to "consider and 8 weigh the evidence, apply the law, and reach just verdicts, regardless ofthe consequences." 11 RT 9 2503. The prosecutor never repeated the remarks. 10 Where a trial court has instructed the jury to disregard a prosecutor's improper statement,

11 it is presumed that the jury followed the admonition. Such cautionary instructions by the trial court 12 are generally deemed effective in counteracting any prejudice from counsel's statements. 13 Richardson v. Marsh, 481 U.S. 208, 211 (1987). Moreover, the jury was also instructed that it was 14 not to be influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, 15 or public feeling. The jury is also presumed to have followed this instruction. 16

In sum, the complained-ofremark is not the type which was so inflammatory that it would

17 have caused the jury to convict petitioner on passion rather than evidence. It was brief, and the jury 18 was immediately admonished as to its impropriety. On this record the state court was not

19 unreasonable in concluding that the admonition was effective. 20 III 21 III

22 III 23 24 25 26 27 28
Memorandum of Points and Authorities in Support of Answer - Moore v. Cuny - C 07-04736 JSW

15
.~------------------ .~--_ ..

Case 3:07-cv-04736-JSW
1

Document 6-2

Filed 12/07/2007

Page 22 of 22

CONCLUSION
Accordingly, respondent respectfully requests that the petition be denied. Dated: December 7, 2007 Respectfully submitted,

2

3
4
5

EDMUND G. BROWN JR. Attorney General ofthe State of California DANE R. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General PEGGY S. RUFFRA Supervising Deputy Attorney General

6 7

8
9 10

11
12

/s/ Juliet B. Haley

JULIET B. HALEY Deputy Attorney General
Attorneys for Respondent
40194428.wpd

13
14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

SF2007402709

Memorandum of Points and Authorities in Support of Answer - Moore v. Curry - C 07-04736 JSW

16