Ambrose Gill v. Robert J. Ayers, Warden Attorney General of the State of California

322 F.3d 678, 2003 Cal. Daily Op. Serv. 2039, 2003 U.S. App. LEXIS 3929, 2003 WL 751328

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 6, 2003
• Docket: 01-55808
• Status: Published

Opinions

Opinion by Judge DAVID R. THOMPSON; Dissent by Judge RAWLINSON

DAVID R. THOMPSON, Circuit Judge.

I

California state prisoner Ambrose Gill appeals the district court’s denial of his petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Gill, serving a sentence of 55 years to life under California’s “Three Strikes Law,” contends that he was denied due process of law at his Three Strikes sentencing hearing.

In 1976, Gill was convicted of one count of assault with a deadly weapon and three counts of assault by means of force likely to produce great bodily injury, all in violation of California Penal Code section 245(a)(collectively, the “1976 conviction”). Under California’s Three Strikes scheme, the 1976 conviction could only count as a “strike” upon a finding that Gill had personally used a dangerous or deadly weapon during the assault. See CaLPenal Code §§ 667(d) and (e), 1192.7(c)(23). At Gill’s Three Strikes sentencing hearing, the court considered documentation from the record of the 1976 conviction, including Gill’s own statements as paraphrased in a probation department report. The court, however, refused to allow Gill to testify to explain or refute the statements attributed to him. Because we conclude that the refusal to allow Gill to testify violated his due process rights under clearly established federal law as determined by the Supreme Court, and the error was not harmless, we reverse.

II

The prior “strike” Gill challenges in this appeal is his 1976 conviction of four counts of violating California Penal Code section 245(a) (currently section 245(a)(1), assault with a deadly weapon or by force likely to produce great bodily injury).

Not all section 245(a)(1) violations constitute strikes under California law.¹ In California, “strikes” include “violent felonies” defined in section 667.5(c) and “serious felonies” defined in section 1192.7(c). Section 245(a)(1) is not explicitly listed in either section. Instead, to qualify a section 245(a)(1) conviction as a strike, the prosecution must establish that the defendant “personally inflict[ed] great bodily injury on any person, other than an accomplice, or ... personally use[d] a firearm” under section 1192.7(c)(8) or that he “personally use[d] a dangerous or deadly weapon” under section 1192.7(c)(23):

One may thus violate section 245(a)(1) in two ways that would not qualify as “serious” felonies under section 1192.7, Subdivision (c): First, one may aid and abet the assault without personally inflicting great bodily harm or using a firearm. Second, one may commit the assault with force “likely” to cause great bodily injury without, however, actually causing great bodily injury or using a deadly weapon. Accordingly, the least adjudicated elements of the crime defined in section 245(a)(1) are insufficient to establish a “serious” felony.

People v. Rodriguez, 17 Cal.4th 253, 261, 949 P.2d 31, 36, 70 Cal.Rptr.2d 334, 340 (1998) (citing People v. Equarte, 42 Cal.3d 456, 465, 722 P.2d 890, 895-96, 229 Cal.Rptr. 116, 121-22 (1986)), superseded by statute on other grounds as stated in People v. James, 91 Cal.App.4th 1147, 1149, 111 Cal.Rptr.2d 292, 293-94 (2001).

At Gill’s Three Strikes sentencing hearing, the prosecutor offered documentation from Gill’s 1976 section 245(a)(1) conviction to prove that the conviction qualified as a “strike.” The documentation disclosed that the offense arose from an incident that occurred at a Colton, California party. A group of youths from Colton became involved in a physical altercation with a group of youths from Fontana, California. Gill was aligned with the Fontana group. Four or five persons from the Colton group were injured by someone from the Fontana group wielding a baseball bat. Gill and another man were charged with those assaults. Gill was convicted of one count of assault with a deadly weapon and three counts of assault by means of force likely to produce great bodily injury, all in violation of section 245(a)(1).

In finding that Gill violated section 245(a)(1), the jury could have found that he used a deadly weapon, that he employed force likely to produce great bodily injury, or that he aided someone else who committed such acts. We cannot tell from the jury’s verdict what particular facts it found. We do know, however, that the jury did not determine that Gill personally used any weapon. Therefore, to qualify the 1976 section 245(a)(1) conviction as a strike under section 1192.7(c)(23), the State had to prove the additional fact that Gill had personally used the baseball bat as a deadly weapon.²

To prove that fact, the state offered: (1) the information, charging Gill with one count of assault with a deadly weapon with intent to commit murder and four counts of assault by means of force likely to produce great bodily injury; (2) the jury verdicts finding Gill guilty of one count of assault with a deadly weapon (a lesser included offense of the crime of assault with a deadly weapon with intent to commit murder) and three counts of assault by means of force likely to produce great bodily injury; (3) a minute order reflecting the jury’s verdicts; (4) a minute order from the 1976 sentencing hearing; and (5) an excerpt from the 1976 probation department report. This documentation, the court ruled, constituted part of the original record. Consistent with California case law, the trial judge admitted the statements attributable to Gill from the probation report, but excluded, on hearsay grounds, other sections of that report. The court denied Gill’s request to testify to explain his reasons for making the statements and to assert that he did not personally use the baseball bat as a deadly weapon.

In making this ruling, the court noted there were California Supreme Court and appellate court decisions which clearly held that, in proving the substance of a prior conviction, the prosecution is limited to the record of conviction. Those cases, however, as the sentencing court acknowledged, left open the question whether a defendant is similarly restricted.³ See, e.g., People v. Reed, 13 Cal.4th 217, 229, 914 P.2d 184, 192, 52 Cal.Rptr.2d 106, 114 (1996) (“We express no opinion as to whether a defendant would be entitled to call live witnesses to dispute [the] circumstances of the prior offense .... ”); People v. Guerrero, 44 Cal.3d 343, 356 n. 1, 748 P.2d 1150, 1157, 243 Cal.Rptr. 688, 696 (1988) (concluding that a trial court may look to the entire record of conviction in determining the truth of prior-conviction allegations, but declining to address “whether on the peculiar facts of an individual case the application of the rule set forth herein might violate the constitutional rights of a criminal defendant”).

In precluding Gill from testifying, the sentencing court reasoned that if he were to testify, an element of surprise would be injected into the proceeding, and the prosecution would have difficulty presenting rebuttal evidence in view of the passage of time between the 1976 conviction and the 1999 Three Strikes sentencing hearing. Counting the 1976 conviction as a “strike” and applying the Three Strikes Law, the court sentenced Gill to 80 years to life in prison.⁴

Gill appealed his Three Strikes sentence, arguing, inter alia, that the sentencing court had erred in refusing to allow him to testify. The California Court of Appeal for the Fourth Appellate District rejected this argument. The court reasoned that:

‘The least adjudicated elements of the prior conviction remain the same whether it is questioned in the trial court at the time of the determination of habitual criminality or on habeas corpus after such determination has become final. Neither the People nor the defendant can go behind those adjudicated elements in an attempt to show that he committed a greater, lesser, or different offense.’ [In re Finley, 68 Cal.2d 389, 393, 438 P.2d 381, 384, 66 Cal.Rptr. 733, 736 (1968) ]. Thus, the authority upon which Guerrero rests treats prosecution and defense alike—neither is permitted to reopen the proceedings to take testimony.

People v. Gill, Consolidated Case Nos. G022286, G022287, G022288, slip op. at 10-11 (Cal.Ct.App. March 9, 1999) (quoting People v. Bartow, 46 Cal.App.4th 1573, 1582, 54 Cal.Rptr.2d 482, 487 (1996)) (emphasis in original).The court also noted that Gill had the same opportunity as the prosecution to submit any documents from the record of the conviction, and concluded that Gill had “demonstrated no error, constitutional or otherwise.” Id. at 11.

Gill timely filed a petition for review in the California Supreme Court. That court denied review.

Gill then filed the present habeas corpus petition in the United States District Court. The district court denied the petition, holding that the state court decision was not an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States. We granted a certificate of ap-pealability limited to “whether the state court’s refusal to allow [Gill] to testify at a sentencing hearing regarding the nature of a prior conviction involved an unreasonable application of clearly established federal law as determined by the Supreme Court.”

Ill

We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de novo a district court’s decision to grant or deny a state prisoner’s petition for a writ of habe-as corpus filed pursuant to 28 U.S.C. § 2254. Benn v. Lambert, 283 F.3d 1040, 1051 (9th Cir.2002) (citing Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999)), cert. denied, — U.S. -, 123 S.Ct. 341, 154 L.Ed.2d 249 (2002).

We review Gill’s petition under the provisions of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) because Gill filed his petition after April 24, 1996, AEDPA’s effective date. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir.2001). Under the AEDPA, Gill is not eligible for federal habeas relief unless the decision of the California Court of Appeal, the last reasoned decision from the state court system⁵ was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court. 28 U.S.C. § 2254(d)(1) (2000). As the Supreme Court has recently explained,

[u]nder the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.

Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O’Connor, J.).

IV

Gill contends that had he been able to testify at his Three Strikes hearing, his testimony would have explained the statements attributed to him in the probation department report and would have established that he did not personally use a deadly weapon. He argues that the sentencing court’s failure to allow him to testify violated his Fourteenth Amendment due process right to present a defense, and was an objectively unreasonable application of federal law as clearly established by decisions of the Supreme Court. We agree.

A long line of Supreme Court precedent compels this conclusion. Beginning with Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925), the Court held that, in a criminal contempt proceeding for an act that occurred outside open court, a court must afford “the opportunity of the accused to present his defense by witnesses and argument.” Id. at 536, 45 S.Ct. 390. Later, in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), citing to Cooke, the Court held that denial of the right to be heard by counsel was a “denial of a hearing, and, therefore, of due process in the constitutional sense.” Powell, 287 U.S. at 69, 53 S.Ct. 55.

The Court subsequently applied these elements of due process to defendants in recidivist proceedings. In Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954), the Court, relying in part on Powell, held that it was a denial of due process guaranteed by the Fourteenth Amendment to deny a defendant an opportunity to obtain counsel to defend against a recidivist charge. Id. at 10, 75 S.Ct. 1. See also Chewning v. Cunningham, 368 U.S. 443, 447, 82 S.Ct. 498, 7 L.Ed.2d 442 (1962) (holding that, because “a trial on a charge of being a habitual criminal is such a serious one (Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4), the issues presented under Virginia’s statute so complex,, and the potential prejudice resulting from the absence of counsel so great,” counsel must be supplied to a defendant charged with habitual criminality). In Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), the Court, citing Chewning, Chandler and Reynolds v. Cochran, 365 U.S. 525, 81 S.Ct. 723, 5 L.Ed.2d 754 (1961), stated that “[although these cases were specifically concerned with the right to assistance of counsel, it would have been an idle accomplishment to say that due process requires counsel but not the right to reasonable notice and[an] opportunity to be heard.” Id. at 452, 82 S.Ct. 501. The Court held that implicit in its earlier decisions was a requirement that a defendant “receive reasonable notice and an opportunity to be heard relative to [a] recidivist charge.... ” Id. There can be no doubt that Supreme Court precedent has clearly established that due process, including the right to be heard, applies to recidivist proceedings.

In 1967, the Supreme Court applied these due process guarantees in the context of a sentencing proceeding in which the petitioner received a sentence beyond the statutory maximum for the crime he committed. Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). In Specht, instead of being sentenced for the “indecent liberties” of which he was convicted, Specht was sentenced under Colorado’s Sex Offenders Act, which authorized a sentence of one day to life “if the trial court ‘is of the opinion that any ... person [convicted of specified sex offenses], if at large, constitutes a threat of bodily harm to members of the public, or is an habitual offender and mentally ill.’ ” Id. at 607, 87 S.Ct. 1209 (quoting Colo.Rev. Stat. Ann. § 39-19-1 (1963)) (alterations in Specht). The Court compared sentencing hearings under Colorado’s Sex Offenders Act to sentencing hearings “under recidivist statutes” which present “a distinct issue;” and held that in a sentencing hearing under Colorado’s Sex Offenders Act, a defendant is entitled to the full panoply of due process guarantees of the Fourteenth Amendment including the right to be present with counsel, to have the opportunity to be heard, to confront and cross-examine adverse witnesses, and to offer evidence of his own. Id. at 610, 87 S.Ct. 1209.⁶

California’s Three Strikes Law, like Colorado’s Sex Offenders Act, authorizes sentences beyond the statutory maximum for the current offense, upon proof of additional facts. In the California scheme, the prosecution must prove either the fact of a prior conviction, or, as here, facts pertaining to that prior conviction. The State contends that Specht is distinguishable because Specht’s sentence was based on facts other than a prior conviction, whereas Gill’s sentence is based on his 1976 conviction. That argument fails. While it is true that Gill’s Three Strikes sentence is based on his 1976 conviction, that conviction will not support his sentence without proof of the additional fact of personal use of a deadly weapon. As in Specht, that determination presents a distinct issue.⁷

The State argues that because Gill was given the opportunity to present documentary evidence, and denied only the opportunity to testify, he was afforded a sufficient opportunity to be heard and there was no Fourteenth Amendment violation. This argument misses the mark. The Supreme Court has held that the right to be heard includes the right to testify. Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). In Rock, the Court invalidated on due process grounds Arkansas’ complete prohibition against hypnotically refreshed testimony, asserting “it cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense.” Id. The opportunity to testify, the Court wrote, is “a necessary corollary to the Fifth Amendment’s guarantee against compelled testimony.” Id. at 52, 107 S.Ct. 2704. It is a “right [that] reaches beyond the criminal trial: the procedural due process constitutionally required in some extrajudicial proceedings includes the right of the affected person to testify” at probation and parole revocation proceedings and even at hearings on the termination of welfare benefits. Id. at 51 n. 9, 107 S.Ct. 2704 (citing Gagnon v. Scarpelli, 411 U.S. 778, 782, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)).

Although the Court has recognized that a defendant’s right to testify may be restricted, “restrictions of a defendant’s right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve. In applying its evidentiary rules a State must evaluate whether the interests served by a rule justify the limitation imposed on the defendant’s constitutional right to testify.” Id. at 55-56, 107 S.Ct. 2704. The Arkansas evidentiary rule invalidated in Rock did not allow trial courts any discretion to admit post-hypnotic testimony. Here, California’s Three Strikes procedure similarly subjected Gill to an arbitrary process that denied him any right to go beyond the record of conviction and testify.

The sentencing court gave two reasons for its decision precluding Gill from testifying. It cited “surprise” and the prosecution’s difficulty in presenting rebuttal evidence because of the lapse of time between the 1976 conviction and the 1999 Three Strikes hearing. The appellate court, in its decision, relied primarily on the reliability of the probation department report and Gill’s opportunity to present evidence other than his testimony. These reasons, however, lack substance given the Rock Court’s assertion that “the most important witness for the defense in many criminal cases is the defendant himself. There is no justification today for a rule that denies an accused the opportunity to offer his own testimony.” Rock, 483 U.S. at 52, 107 S.Ct. 2704.

We conclude that the state court’s decision denying Gill the right to testify violated his Fourteenth Amendment right to due process. Applying the clear error standard of review, that decision was an objectively unreasonable application of clearly established federal law as determined by the Supreme Court. See Van Tran v. Lindsey, 212 F.3d 1143, 1153-54 (9th Cir.2000) (reasonableness of state court decision reviewed for clear error). Under the AEDPA, Gill is entitled to habeas corpus relief unless the state court’s erroneous decision was harmless. See Shackleford, 234 F.3d at 1077-79.

V

A trial-type error of constitutional dimension is harmless unless it had a “substantial and injurious effect or influence in determining the [fact finder’s] verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). “The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.” Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239.

In Crane v. Kentucky, the Court held that a harmless error analysis should be applied to a case bearing striking similarities to the present case. Crane v. Kentucky, 476 U.S. 683, 691, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986). In Crane, the Court held that Kentucky’s exclusion of a habeas petitioner’s testimony bearing upon the circumstances of his confession violated his Fourteenth Amendment right to a fair trial, reasoning that:

[A]n essential component of procedural fairness is an opportunity to be heard. That opportunity would be an empty one if the State were permitted to exclude competent, reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant’s claim of innocence. In the absence of any valid state justification, exclusion of this kind of exculpatory evidence deprives a defendant of the basic right to have the prosecutor’s case encounter and “survive the crucible of meaningful adversarial testing.”

Id. at 690-91, 106 S.Ct. 2142 (citations omitted). The Court remanded the case to the state court for application of a harmless error analysis. After remand, the Sixth Circuit determined that the exclusion of the proffered testimony was not harmless due to its noncumulative nature and because it cast doubt upon the reliability of the confession, the crucial element of the prosecution’s case. Crane v. Sowders, 889 F.2d 715, 718 (6th Cir.1989).

In the present case, the crucial evidence was the language from the probation report that paraphrased Gill’s statements to the probation officer to the effect that during the altercation he personally hit persons from the rival faction with a baseball bat. Gill asserts that he made those statements in an attempt to appear conciliatory and contrite at a time when an admission of personal weapon use had no effect on the sentence he would receive. He contends that had he been able to testify at his Three Strikes hearing he could have explained this and could have established that he did not personally use the baseball bat as a deadly weapon.

We do not know whether the sentencing court would have believed Gill’s testimony, but if it had, that testimony would have refuted the allegation of personal weapon use. Gill was entitled to have the sentencing court hear that testimony.

In Crane, the excluded testimony was central to the defendant’s defense. Crane v. Sowders, 889 F.2d at 718(citing Crane v. Kentucky, 476 U.S. at 690, 106 S.Ct. 2142). Here, Gill’s testimony was not only central to his defense, it was his only defense. The denial of the right to present that testimony deprived Gill of his constitutional right to present a defense. That error had a “substantial and injurious effect or influence in determining the [fact finder’s] verdict.” Brecht, 507 U.S. at 637, 113 S.Ct. 1710 (quoting Kotteakos, 328 U.S. at , 66 S.Ct. 1239). The error was not harmless.

VI

We reverse and remand this case to the district court with instructions to issue the writ of habeas corpus relieving Gill of the state court’s sentence imposed under California’s Three Strikes Law in reliance on his 1976 conviction of violating California Penal Code section 245(a)(1), unless Gill is afforded within a reasonable period of time the opportunity to testify at a new Three Strikes sentencing hearing on the issue of personal use of a deadly weapon in the commission of the 1976 offenses.

REVERSED and REMANDED.

1 . Unless otherwise specified, all references to code sections in this opinion are references to sections of the California Penal Code.

2 . Whether a baseball bat is a deadly weapon under California law depends on the manner in which it is used. People v. McCullin, 19 Cal.App.3d 795, 801, 97 Cal.Rptr. 107, 111 (1971).

3 . The court stated, "Apparently [People v.] Guerrero [44 Cal.3d 343, 748 P.2d 1150, 243 Cal.Rptr. 688 (1988)] didn’t resolve that issue either, so now we have two appellate courts and the Supreme Court saying, 'We’re not going to decide whether or not the defendant can testify.’ Flip a coin as to which side wants to appeal? Draw straws?”

4 . The trial court originally sentenced Gill to three consecutive terms of 25 years to life and an additional term of five years and four months. Because the state appellate court reversed the conviction underlying one ol the 25 years to life terms, Gill is currently serving 55 years to life.

5 . Because the California Supreme Court denied review of Gill's habeas petition without comment, "we 'look through' tire unexplained California Supreme Court decision! ] to the last reasoned decision, the state appellate court’s decision, as the basis for the state court's judgment.” Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir.2000) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)), cert. denied, 534 U.S. 944, 122 S.Ct. 324, 151 L.Ed.2d 242 (2001).

6 . It is noteworthy that the California Supreme Court in People v. Reed (in which that court declined to address whether the defendant had a right to call witnesses to dispute the circumstances of a prior conviction), cited to Specht in dismissing the government's contention that a defendant has no constitutional right to confront witnesses in a sentence enhancement proceeding: "The United States Supreme Court has held that 'under recidivist statutes where an habitual criminal issue is "a distinct issue” [citation] ... [d]ue process ... requires [the defendant] be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own.’” Reed, 13 Cal.4th at 228 n. 6, 52 Cal.Rptr.2d 106, 914 P.2d 184 (quoting Specht, 386 U.S. at 610, 87 S.Ct. 1209) (alterations in Reed).

7 . Gill has no right to relitigate the fact of the 1976 assault conviction. See Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 402-04, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001). Gill, however, does not attack his 1976 conviction. The 1976 conviction for violation of California Penal Code section 245(a)(1) embraced the possibility that Gill used a deadly weapon, but did not require proof that he -personally used such a weapon. The charge that Gill personally used a deadly weapon introduced a new factual issue at the Three Strikes hearing.