Alford v. Lizarraga

189 F.Supp.3d 945

David Patrick Alford, Plaintiff,

v.Joe A. Lizarraga, Defendant.

Case No. 14-cv-02904-JST

United States District Court, N.D. California.

Signed May 31, 2016

Dennis Patrick Riordan, Donald Meredith Horgan, Riordan & Horgan, San Francisco, CA, for Plaintiff.

Leif M. Dautch, California State Attorney General's Office, San Francisco, CA, for Defendant.

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

JON S. TIGAR, United States District Judge

Before the Court is Plaintiff David Patrick Alford's Petition for a Writ of Habeas Corpus, ECF No. 18. The government filed an answer to the petition, ECF No. 21, and Alford filed a traverse, ECF No. 26. The Court will grant the petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

No party before the Court disputes that the state court presiding over David Alford's murder trial committed federal constitutional error. The California Court of Appeal held, and the government does not dispute, that the state trial court erred by admitting as evidence a pre-trial custodial interrogation of Alford that was conducted in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The only question before the Court is whether this error was harmless under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Alford's trial took place in February and March of 2011 in the County of Santa Cruz, based on events that occurred on April 20, 2009. Alford was convicted of second degree murder on March 18, 2011. Both sides adopt the California Court of Appeal's statement of the facts:

There is little dispute about the events leading to defendant's murder conviction. All agree that defendant fatally shot Hans Hugo Heath in the head as Heath sat in the front passenger seat of defendant's Lexus sport-utility vehicle and that defendant disposed of Heath's body by casting it over the side of a coastal highway. The only dispute at trial concerned defendant's mental state when he killed the victim.

Almost all of the evidence regarding the few disputed facts came from defendant's testimony. There were no witnesses to the killing other than perhaps defendant's 24–year–old daughter, Laura Alford (Laura). Because the state charged her with being an accessory (Pen.Code, § 32 ) to the murder of Heath—although the parties inform us that the jury acquitted her—she was not required to testify and did not do so.

The prosecution's favored theory, advanced through cross-examination and at closing argument, was that defendant killed Heath in anger, and with sufficient premeditation and deliberation to constitute a first degree murder (Pen Code, § 189 ), due to the victim's belligerence, uncouth behavior, and vulgarity.

Defendant testified that on April 20, 2009, he met Heath at a liquor store near defendant's home in Santa Cruz. Heath, considerably intoxicated, was loitering there, and defendant, evidently out of courtesy or a desire to converse, invited him over to his house.

Laura was at the house when her father showed up with his guest. Heath tried to put his arms around Laura and dance with her. Laura pushed him away. Heath also made licentious remarks about Laura's physical attributes. Defendant told Heath to stop. Heath commented that he had just been released from the California State Prison at San Quentin, could slit the throats of defendant and his wife at any time and kill their children, and would be indifferent to doing it.

As tensions arose, Heath "started kicking at me" and "throwing punches," defendant testified. The record suggests generally that defendant had an obsession with tidiness, and defendant not only had to deal with Heath's physical aggression but was irritated that Heath was lying on his couch without removing his boots and hat. He decided that Heath should leave. Defendant, Heath, and Laura went to the Lexus and got in. Laura drove; Heath was in the front passenger seat and defendant sat behind him.

Heath continued to make belligerent remarks and soon he "started grabbing at Laura's arms and at the steering wheel." As the vehicle swerved, defendant tried to grab Heath, flailed at him, and yelled at him to get his hands off Laura. At the same time Heath was grappling with Laura, he flailed back at defendant, trying to grab his arms and hair. Defendant was afraid for the safety of Laura; he feared that Heath was about to cause a serious automobile accident. "I was extremely concerned we were going to have an accident with the vehicle," he testified, "and that we would be seriously injured...." He was also trying to get Heath to "stop attacking my daughter." It was "a matter of self defense" and "of protecting my daughter," he explained on cross-examination.

Then defendant killed Heath, using a handgun that was in a camera case at his feet in the rear seat. On direct examination, he testified as follows:

"Q. Why did you grab the pistol?

"A. Because I wanted to hit him in the head with it to inflict enough pain so he would stop grabbing at my daughter and the steering wheel and I could sit him up in the front seat and regain control of the vehicle.

"Q. Which hand did you have the pistol in?

"A. My right hand.

"Q. How were you holding it?

"A. By the handle.

"Q. What did you attempt to do with it?

"A. I tried to hit him in the head with it to inflict enough pain that he would stop attacking my daughter.

"[¶] ... [¶]

"Q. Were you doing anything with your left hand at that point?

"A. ... I was pulling his ... head ... to sit him up[,] pulling his head in the opposite direction.

"Q. So what did you actually do with the gun?

"A. Well, I came down to hit him in the head. I believe that I grazed his head.

And then there was a flash and a bang and I realized that the gun had discharged.

"Q. Were you expecting that to happen?

"A. No, by no means was I expecting it to happen.

"Q. Did you intend to have the gun discharge?

"A. No, sir.

"[¶] ... [¶]

"Q. After the gun went off, what happened to Mr. Heath?

"A. Unfortunately, Mr. Heath went completely limp. And I was able to sit him up in the seat in an upright position.

"[¶] ... [¶]

"Q. Could you tell at that time what had happened to him?

"A. Unfortunately, yes.

"Q. What could you determine?

"A. I determined that the round went through the back of his neck and out the ... left side of his skull.

"Q. What was going through your mind at that point?

"A. Panic. Total panic. I did not—could not believe what had transpired."

Later, defendant and his counsel had this exchange before the jury:

"Q. Did you want to kill Mr. Heath?

"A. No, by no means.

"Q. Did you intend to kill him?

"A. No, sir.

"Q. Did you intend for the gun to go off?

"A. No, sir.

"[¶] ... [¶]

"Q. What were you trying to do when you took the gun out?

"A. Trying to stop him from attacking my daughter."

Cross-examination of defendant elicited a detailed second-by-second description of the moments before he killed Heath:

"Q. ... [W]hat part of the gun were you holding?

"A. I was holding the handle, the—where the clip goes inside.

"Q. The grip?

"A. The grip.

"Q. So you just had your hand around it, the grip?

"A. That's correct.

"Q. And then you started hitting him in the head?

"A. That is correct.

"[¶] ... [¶]

"A. ... I'm hitting with the butt of the gun with the bottom of the clip.

"[¶] ... [¶]

"Q. Sort of overhead and the gun's coming out the bottom of your hand and you're hitting him with it?

"A. That's correct.

"[¶] ... [¶]

"Q. Now, you heard the testimony that Mr. Heath was shot on the right side of his neck; right?

"A. Correct.

"Q. How's the gun hit[ting] him there if you're hitting him only with the butt?

"A. It may have slid down. Apparently it had slid down past the top of his head down toward his neck.

"Q. Apparently?

"A. Apparently so. I mean, that's quite obvious. There's a hole there.

"[¶] ... [¶]

"Q. And it's your testimony that somehow when you were hitting him in the head, holding just the grip, that the gun somehow accidently fired and shot him in the back of the neck and passed through his skull?

"A. That is correct. And my hand was on the other side of his head.

"[¶] ... [¶]

"Q. You're holding his head—

"A. Trying to pull him off Laura, yes.

"Q. Now, when you picked up the gun, did you stick your finger in the trigger guard?

"A. More than likely.

"Q. You don't remember?

"A. Not specifically, no, but that's how typically you hang on to the gun the best.

"[¶] ... [¶]

"Q. To use as a bludgeon to hit somebody with? You think you hold on to it with your finger in the trigger guard?

"A. Yes, ma'am.

"Q. Were you trying to shoot him?

"A. No, ma'am.

"Q. Then why did you put your finger in the trigger guard if in fact you did?

"A. Because that's how you typically can hang on to the handle without it flying out of your hand the best.

"Q. So you don't think you could have just held the handle without putting your finger in the guard and hit him with the butt?

"A. I believe the gun probably would have went flying out of my hand.

"Q. Why do you think that?

"A. Because of just the way you hold the grip on the gun.

"[¶] ... [¶]

"Q. Now, you testified that you hadn't had any experience with guns?

"A. That's correct.

"Q. Why did you testify earlier ... that that's where you hold a gun is by putting your finger in the trigger guard?

"A. Well, that's what I've seen from the past 40 years as far as someone holding a gun and shooting it."

Also on cross-examination, defendant testified that he told Heath he could kill him just as Heath was threatening to kill everyone in defendant's family. But defendant considered Heath's threats to be the ramblings of a drunk person and not conveying a serious menace. As cross-examination continued, defendant could not explain why he failed to register the gun despite knowing that it had to be registered. Defendant also testified that he had Laura drive home. He dropped her off and drove away with Heath's body in the vehicle. He deposited the body at an isolated spot along the coast.

Defendant acquired the gun in the early 1990s. A neighbor in Oregon, where he used to live, gave it to him. He would carry it

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