*1 little no ex if there was or Even GILL, Petitioner-Appellant, Ambrose dispatch tape, Riv to the
culpatory value government still violat argues that the era when it did not discovery request ed AYERS, Warden; Attorney Robert J. tape.12 Assuming, arguendo, produce the California, General State violated Rivera’s dis government Respondents-Appellees. tape by producing the covery request No. 01-55808. existed, it such a violation did when still rights on Rivera’s substantial not encroach Appeals, United States Court relevancy of the of the dubious because Ninth Circuit. tape. on the Am- conversations recorded lani, Argued Sept. and Submitted 2002. The district court 111 F.3d within its acted well discretion therefore Filed March government. to sanction the refusing Conclusion correctly refused to district jury
instruct the that failure enter the of attempting
United States an element
to enter the United States violation § 1326. The district court did not
U.S.C. by refusing its sanction
abuse discretion any discovery government viola- regarding production of the
tions dis-
patch tape containing conversations be- Agents Graving and
tween Jacobs
night government of Rivera’s arrest. The process rights
did not Rivera’s due violate dispatch destroying tape. We AFFIRM conviction.
therefore Rivera’s may tape patch 12. The tapes.” have still existed at the time discovery request Rivera made a for "dis- *3 CA, Goleta, for Goldsen,
Ralph H. petitioner-appellant. Attorney Torreblanca, Deputy
Teresa CA, respon- for General, Diego, San dents-appellees. R. THOMPSON DAVID
Before:
RAWLINSON,
Judges and
Circuit
Judge.
SCHWARZER,*
District
Senior
R.
DAVID
Opinion
Judge
THOMPSON;
by Judge
Dissent
RAWLINSON
THOMPSON,
Judge.
Circuit
R.
DAVID
I
Ambrose
prisoner
state
California
of his
denial
court’s
district
appeals the
pursuant
corpus relief
for habeas
petition
Gill,
a sen-
serving
§ 2254.
to 28 U.S.C.
California’s
life under
years to
tence
he was
Law,”
contends
“Three Strikes
Three
at his
process of law
due
denied
hearing.
Strikes
*
California,
designation.
silting by
Schwarzer,
District
Senior
W
William
The Honorable
Judge
the Northern
District
United States
Gill was convicted of one count
jury on any person, other than an accom-
deadly
assault with a
weapon
three
plice, or ... personally
use[d]
firearm”
counts
of assault
means of force likely
1192.7(c)(8)
under section
or that he “per-
produce
great bodily injury, all
viola-
sonally
a dangerous
use[d]
or deadly weap-
tion of California Penal Code section
1192.7(c)(23):
on” under section
conviction”).
245(a)(collectively, the “1976
One may
245(a)(1)
thus violate section
Under California’s
scheme,
two ways that would not qualify as “seri-
the 1976 conviction could only count as a
ous” felonies under
1192.7,
section
Sub-
upon
“strike”
a finding that Gill
per-
had
(c): First,
division
one may aid and abet
sonally used a dangerous
weap-
the assault without personally inflicting
on during the assault. See CaLPenal Code
*4
great bodily harm or using a firearm.
667(d)
§§
(e), 1192.7(c)(23).
and
At Gill’s
Second, one may commit the assault
sentencing
hearing,
with
“likely”
force
to
great bodily
cause
court considered documentation from the
injury without, however, actually caus-
record of
conviction,
the 1976
including
ing great bodily injury or using a deadly
Gill’s own
paraphrased
statements as
in a
weapon. Accordingly, the
adjudi-
least
probation department report.
court,
The
cated elements of the crime
defined
however, refused to allow Gill to testify to
245(a)(1)
section
are insufficient to es-
explain or refute the statements attributed
tablish a
felony.
“serious”
to him. Because we conclude
that
People v. Rodriguez,
refusal to allow
253, 261,
to
Cal.4th
testify
Gill
violated his
31, 36,
P.2d
process
due
rights
Cal.Rptr.2d 334,
clearly
under
estab-
(1998) (citing People
lished federal
v. Equarte,
law as
by
determined
Cal.3d
Court,
895-96,
P.2d
and the error
was not
Cal.
harmless,
Rptr.
(1986)),
121-22
we
superseded
reverse.
statute on other grounds as stated in Peo
II
James,
ple v.
Not all section violations con- that the offense arose from an incident stitute strikes under California law.1 In Colton, that occurred at a California party. California, “strikes” include “violent felo- group A youths from Colton became 667.5(c) nies” defined in section and “seri- involved physical in a altercation with a ous felonies” 1192.7(c). defined in section group of youths Fontana, from California. 245(a)(1) Section is not explicitly listed in Gill was aligned with the group. Fontana Instead, either section. qualify a sec- Four or persons five from the Colton 245(a)(1) tion strike, conviction as a group injured were by someone from the prosecution must establish that the defen- Fontana group wielding a baseball bat. dant “personally great bodily inflict[ed] in- Gill another man were charged with specified, Unless otherwise all references to sections of the California Penal Code. code opinion sections in this are references law, judge the trial admitted the state- was convicted of one
those assaults. weapon proba- from the deadly attributable to Gill with ments assault count of excluded, means of force hearsay assault report, tion but three counts injury, bodily all produce great report. that likely grounds, sections of 245(a)(1). of section violation request court denied Gill’s making the state- explain reasons finding In violated sec per- did and to assert that he not ments 245(a)(1), have jury could found tion a deadly as sonally use the baseball bat weapon, used that he weapon. likely produce great force employed that he aided someone injury, or bodily making the court noted ruling, this such acts. We cannot else who committed Court and there were California particular jury’s verdict what tell from clearly held appellate court decisions which know, however, do it found. We facts that, of a proving substance per did determine that Gill jury conviction, prosecution is limited to Therefore, weapon. sonally used cases, record of conviction. Those howev- 245(a)(1) qualify the 1976 section convic er, acknowledged, as 1192.7(c)(23), tion a strike under section as *5 the a open question left whether defendant fact prove the had the additional State to See, e.g., similarly People restricted.3 personally had used the baseball that Gill Reed, 217, 229, 184, 13 Cal.4th 914 P.2d deadly weapon.2 bat as a (1996) (“We 192, 106, 114 52 (1) fact, the prove To that state offered: no as a defen- express opinion to whether information, charging the Gill with one dant entitled to call wit- would be live deadly weapon a with count of assault with of dispute [the] to circumstances nesses murder four intent to commit and counts ”); People .... prior the offense Guerre- by likely pro- of of force to assault means ro, 1150, 44 356 748 P.2d Cal.3d n. (2) injury; the great bodily jury duce ver- (1988) (con- Cal.Rptr. finding guilty of one count of dicts Gill may trial look to the cluding a court (a deadly weapon assault with a lesser determining entire record of conviction the crime of included offense of assault of prior-conviction allegations, the truth to weapon with a with intent com- declining but to address “whether on the murder) mit and three counts of assault peculiar facts of an individual case the likely produce of great means force application of the rule set forth herein (3) bodily injury; reflecting a minute order rights violate the of a might constitutional (4) verdicts; the minute jury’s a order defendant”). criminal (5) sentencing hearing; from the 1976 and precluding testifying, Gill from excerpt an from 1976probation depart- if documentation, sentencing were report. court reasoned he ment This ruled, part testify, surprise an of would be original constituted of element injected proceeding, pros- record. with case into the Consistent California (1988)] deadly weapon Cal.Rptr. a Whether bat is a didn’t resolve that issue baseball either, depends under California law on the manner appellate we have so now two courts McCullin, People in which it is used. Supreme saying, and the 'We’re not Cal.Rptr. Cal.App.3d going to decide whether not the defendant or testify.’ Flip a can coin as which side appeal? Draw wants straws?” stated, "Apparently [People The court v.] Guerrero 748 P.2d [44 Cal.3d presenting a difficulty timely petition ecution would have Gill filed for review in in view of the of passage Supreme rebuttal evidence the California Court. That court the 1976 conviction and the time between denied review. sentencing hearing.
1999 Three Strikes Gill corpus then filed habeas Counting the 1976 conviction as a “strike” petition the United States District Law, applying peti- Court. district court denied years to life in court sentenced tion, holding that the state court decision prison.4 was not an application unreasonable sentence, appealed his Three Strikes clearly established federal law as deter- alia, arguing, inter mined by Court of the United in refusing court had allow him to erred granted States. We a ap- certificate of testify. Appeal The California Court of pealability limited to “whether the state Appellate rejected for the Fourth District court’s allow a refusal to [Gill] argument. this The court reasoned that: sentencing hearing regarding the nature of adjudicated ‘The least elements of the conviction an involved unreasonable prior conviction remain the wheth same application clearly established federal questioned er it is in the trial court at law as determined Court.” the time of the determination habitual criminality corpus or on habeas after Ill such determination has final. become jurisdiction We have under 28 U.S.C. People Neither the nor the defendant §§ 1291 and 2253. We review de novo go adjudicated can behind those ele district grant deny court’s decision to ments in an attempt show that *6 prisoner’s state for a petition writ of habe- greater, lesser, committed a or different corpus pursuant as filed to 28 U.S.C. 389, Finley, re [In 68 Cal.2d offense.’ Lambert, 1040, § 2254. Benn v. F.3d 283 384, 393, 381, 733, Cal.Rptr. 438 P.2d 66 (9th Cir.2002) 1051 (citing Miles v. Prunty, (1968) Thus, upon 736 the authority ]. (9th 1104, Cir.1999)), 187 F.3d 1105 cert. prosecution Guerrero
which
rests treats
—
denied,
-,
341,
U.S.
123 S.Ct.
154
permitted
and defense alike—neither is
(2002).
249
L.Ed.2d
reopen
the proceedings to take testi
mony.
petition
We review Gill’s
under
Gill,
v.
People
provisions
Consolidated Case Nos.
the
of the Anti-Terrorism and
G022286,G022287, G022288,
(“AEDPA”)
slip op.
Penalty
at 10- Effective Death
Act
1999)
9,
11 (Cal.Ct.App.
(quoting
petition
March
because Gill
April
filed his
after
Bartow,
1573, 24, 1996,
v.
People
Cal.App.4th
46
AEDPA’s effective date. Lindh v.
482,
(1996)) (em-
1582,
2059,
54
521
Murphy,
487
U.S.
117 S.Ct.
phasis
(1997);
in
also
original).The court
noted
v.
Patterson
Stew
art,
(9th
1243,
Cir.2001).
opportunity
had the same
Gill
as
251 F.3d
1245
prosecution
AEDPA,
to submit
documents from
is
eligible
Under
Gill
conviction,
the record of the
and concluded
habeas
federal
relief unless the decision of
error,
had
Appeal,
“demonstrated no
con-
the California
of
Court
the last
11.
sys-
stitutional
otherwise.” Id. at
reasoned decision from the state court
originally
4.
trial
underlying
court
sentenced Gill to
reversed the conviction
one ol the
years
terms,
of
three consecutive terms
25
to life and
years
currently serving
25
life
years
an additional
term
five
of
and four
years
55
to life.
appellate
months.
the state
Because
precedent
to,
long
A
line of
Court
an un-
contrary
or involved
tem5 was
Beginning with
of,
compels this conclusion.
clearly estab-
application
reasonable
517,
States,
267 U.S.
Cooke United
by the
law as determined
federal
lished
(1925),
390,
the Court
686 the defendant’s con- imposed limitation that because Gill was argues
The State
55-56,
testify.” Id. at
present
right
to
documen
to
opportunity
stitutional
given the
evidence,
oppor
only
evidentiary
and denied
The Arkansas
tary
107
S.Ct.
afforded a suffi
testify, he was
tunity to
trial
in Rock did not allow
rule invalidated
heard and there
be
opportunity
cient
post-hypnot-
to admit
courts
discretion
Amendment violation.
no Fourteenth
was
Here,
Three
testimony.
ic
California’s
the mark. The Su
misses
argument
This
subjected
procedure similarly
Strikes
right
that the
to be
has held
preme Court
him
arbitrary process that denied
to an
testify.
Rock
right
heard includes
beyond the record of con-
any right
go
44, 49,
Arkansas,
107 S.Ct.
testify.
viction and
Rock,
(1987). In
2704,
L.Ed.2d 37
gave
two reasons
grounds
process
on due
Court invalidated
precluding
testify-
Gill from
for its decision
prohibition against
complete
Arkansas’
“surprise”
prosecu-
and the
ing.
It cited
testimony, asserting
refreshed
hypnotically
evi-
difficulty
presenting
tion’s
rebuttal
in a
that a defendant
“it cannot be doubted
lapse of time between
dence because of the
to take the
right
has the
criminal case
and the 1999 Three
the 1976 conviction
testify in his or her
and to
witness stand
court, in
hearing.
appellate
to tes
opportunity
Id. The
Strikes
own defense.”
wrote,
necessary
decision,
corol
primarily
is “a
on the relia-
tify, the Court
its
relied
guarantee
lary
department report
to the Fifth Amendment’s
bility
probation
52,
testimony.” Id. at
compelled
against
opportunity
evidence
and Gill’s
“right
reach
[that]
2704. It is a
reasons,
107 S.Ct.
testimony.
than his
These
procedur
beyond
criminal trial:
es
however,
given
lack substance
the Rock
required
constitutionally
process
al due
important
that “the most
Court’s assertion
includes
extrajudicial proceedings
some
in many
witness for the defense
criminal
testify”
person to
right
of the affected
himself. There is
cases is the defendant
pro
parole
revocation
probation
at
justification today for a rule that denies
no
hearings
at
on the ter
ceedings and even
an
to offer his
accused
Id. at 51 n.
welfare benefits.
mination of
Rock,
testimony.”
own
U.S.
Scarp
(citing Gagnon v.
the state court for application of a harm-
analysis.
less error
remand,
After
V
Sixth Circuit determined
that
exclusion
A
error of
trial-type
constitu
proffered
of the
testimony was not harm-
dimension is
it
tional
harmless unless
had less due to its noncumulative nature and
injurious
a “substantial and
effect or influ because it cast
upon
doubt
the reliability of
in determining
ence
the [fact
ver
finder’s]
confession,
the crucial element of the
Abrahamson,
dict.” Brecht v.
507 U.S. prosecution’s
Sowders,
case. Crane v.
619, 637,
113 S.Ct.
(6th
Cir.1989).
F.2d
(1993)
States,
(quoting Kotteakos v. United
case,
present
In the
the crucial
750, 776,
328 U.S.
66 S.Ct.
90 L.Ed.
evidence
the language
proba
was
from
(1946)).
inquiry
“The
cannot be
report
tion
paraphrased
Gill’s state
merely whether
enough
sup
was
there
probation
ments to the
officer to the effect
result,
port
apart
phase
from the
af
during
the altercation
personally
he
rather,
so,
by the error.
It
fected
is
even
hit persons from the rival faction with a
whether
the error itself had substantial
baseball bat. Gill asserts that he made
so,
If
influence.
or if one
in grave
is left
those
attempt
statements
an
appear
doubt, the conviction cannot stand.” Kot
conciliatory
contrite at a time
an
when
teakos,
[A]n
fairness is an opportunity
Crane,
to be heard.
In
testimony
the excluded
was
That
empty
would be an
one
central to the defendant’s defense. Crane
if the
permitted
State were
Sowders,
to exclude v.
adversarial (quoting S.Ct. 1710 328 U.S. at *10 1239). a baseball bat dur- personally wielded The error was 776, 66 S.Ct. fracas. Fast forward ing Saturday-night a harmless. possible a life facing with Gill under California’s “Three Strikes VI sentence fact, Twenty-one years Law.” after remand this case to the and We reverse sentencing hearing, his “Three Strikes” to issue the with instructions district court the statements sought challenge Gill corpus relieving Gill of the writ of habeas probation depart- attributed to him in the imposed under Cali- court’s sentence state report. The state trial court denied ment Law in reliance on fornia’s prior statement request Gill’s to refute violating California his 1976 conviction contrary at “Three by testifying to the 245(a)(1), unless section Penal Code sentencing hearing. Strikes” period of time afforded within reasonable in request The trial court denied Gill’s Three testify at a new opportunity part recognized the court because hearing on the issue of Strikes time had lessened the likeli- passage of deadly weapon personal of a use obtaining countervailing eyewit- hood of offenses. commission of the 1976 testimony regarding ness the extent of and REMANDED. REVERSED in administer- personal Gill’s involvement ing the blows. The trial court assaultive RAWLINSON, Judge, Circuit binding existence of also considered the Dissenting: prosecution precedent limiting state I respectfully dissent. establishing the record of conviction when acknowledged, federal recently As we the existence of a conviction. lightly. granted not be habeas relief should Appeal Court of con- California Rather, and Effective the Antiterrorism Citing Peo- ruling. firmed the trial court’s (“AEDPA”) Act of 1996 Penalty Death Bartow, ple Cal.App.4th standard for “imposes highly deferential (1996), the Court of demands evaluating rulings[;] state-court Appeal prosecu- declared “neither given the that state court decisions be tion call may nor the defense live wit- doubt”[;] mandates “our benefit of the and Gill, People nesses.” Consolidated Case “co-equal full respect” rulings of our G022286, G022287,G022288, slip. op. Nos. Murphy, 317 F.3d judiciary.” Clark 1999). (Cal.Ct.App. at 10 March (citations (9th Cir.2003) Appeal noted that “a defendant’s omitted). quotation internal marks post-conviction probation statements in a mind, proceed I With cautions report reliably those do reflect the conduct of accompanying to the habeas inquiry first which a defendant was convicted. The review: “whether the state court erred at judge surely any would note deviation omitted). (citation all.” If the Id. at 1044 description crime from evi- of the error, state court no our habeas committed dence adduced at trial.” Id. at 12. inquiry ends. See id. Finally, in disposing process of Gill’s due (“Gill”) claim-, Appeal was con-
Petitioner Ambrose Gill the California Court of ob- reliability [proba- victed in count of assault with served that of the “[t]he 1976 of one deadly weapon report three counts of as- is further ensured fact tion] likely produce sault that defendant had the to chal- means of force great bodily During lenge accuracy report an interview at sen- injury. officer, probation tencing with a admitted that and to correct misstatements. *11 Thus, may while there be a case where due the state I court’s decision. would do the process will demand that a court hear the same. conviction, concerning
defendant 13(citation is not it.” Id. at and inter-
this omitted).
nal quotation marks majority assigns error to the Cali Appeal’s ruling, relying
fornia Court of Supreme opinion
the United States Court’s Arkansas, 44, 55-56,
in Rock v.
MARQUEZ, Plaintiff-Appellee,
Vincent
However,
majority gives
short shrift to
Supreme
recognition
Court’s
that “[o]f
GUTIERREZ,
R J
Defendant-
course,
the right to
relevant testi
Appellant,
mony
may,
is not without limitation [and]
cases,
appropriate
bow to accommodate
legitimate interests
the criminal
Gomes;
White, Warden;
James
Theo
M
proces.”
trial
Id. at
pressly cautioned that the exercise of the United of Appeals, States Court defendant’s right must be consistent with Ninth Circuit. reliability.” “both fairness and Id. at 11, 107 n. 2704. Argued and Submitted Feb. fairness fostered if the defendant Filed March
Js presents testimony at the Three Strikes
Hearing may when the not? State Do
twenty-year-old the in- recollections serve reliability?
terests of The California Appeal questions
Court of answered these negative,
in the and committed no error
doing so. accordance with the dictates Rock, Appeal the California testify
restricted defendant’s after
considering parallel interests of fair- reliability.
ness and The California Court Appeal ruled that on the facts of this
case, defendant’s right to did not
outweigh properly the other interests con-
sidered the court. The district court
gave appropriate respect deference and