Presley v. Madden

DEWAYNE PRESLEY, Petitioner, v. RAYMOND MADDEN,¹ Respondent.

No. 2:14-cv-1991 GEB GGH P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

August 3, 2015

FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on March 4, 2010, in the Sacramento County Superior Court on charges of first degree attempted murder, assault with a firearm, and battery causing serious bodily injury, as well as various enhancements. (CT 228.) Petitioner seeks federal habeas relief on the following grounds: (1) the conviction was obtained by violation of the double jeopardy clause; (2) the trial court erred in providing a new instruction to a jury that was deliberating; (3) it was prejudicial error to admit improper expert testimony regarding petitioner's intent to benefit a gang; and (4) "jury wasinstructed pursuant to a version of an [aider and abettor] instruction whose 'equally guilty' language has since been excised." Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.

BACKGROUND

In its memorandum and opinion, which was certified for partial publication, the California Court of Appeal for the Third Appellate District provided the following factual summary:

Presley and Whitaker III beat and tried to shoot Melvin Weathers at the behest of Whitaker, in retaliation for a prior incident in which Weathers had broken Whitaker's jaw. Presley and Whitaker III, and a broken rifle, were found near the scene. Whitaker's sister, Beverly Robinson, reported that Whitaker had "hyped" up the other defendants into attacking Weathers. Each defendant was a member of the East Side Piru gang. Each defendant was convicted of attempted premeditated murder and other charges, and each received a life sentence.

After the first jury was selected, the trial court delayed swearing in the jury, pending resolution of prosecution witness problems. When those problems were resolved adversely to the People, they moved to dismiss the case for lack of evidence. The trial court granted the motion, and the People later refiled the charges. Defendants then moved to dismiss the refiled charges, contending that allowing the People to refile the charges improperly thwarted double jeopardy protections, and violated due process principles. The trial court denied the defendants' motions, and the jury trial ensued.

In the published portion of this opinion (Part I), we first describe the events leading to the dismissal of defendant's first case. Then, as we explain, we assume the trial court erred in finding good cause to delay swearing in the first jury, but conclude that this error does not require reversal of the convictions arising from the jury verdicts, because defendants have not suffered a double jeopardy or due process violation.

In the unpublished portion of this opinion (Part II), we describe the facts relevant to the jury trial from which defendants' appeals were taken, and reject all other contentions raised. However, we have discovered an error in the abstracts of judgment that must be corrected as to each defendant. Accordingly, we shall affirm the judgments and direct the trial court to prepare corrected abstracts of judgment.

[The background facts pertaining to the Double Jeopardy and Due Process claims will be repeated in that section.]

Weathers, age 38, testified he had known Whitaker since they were 16. In December 2007, Weathers "sucker punched" Whitaker in the jaw. About two weeks later, on December 27, 2007, Weathers was attacked by "Wheezy" (Presley), who split Weathers's head. As Weathers struggled with Presley, Whitaker III approached with a long gun. Weathers pushed the gun barrel away, and "that's when he fired on me." Weathers woke up in the hospital. Whitaker's sister, Gwendolyn Davis, had Weathers sign a letter seeking to retract the charges. [N. 11] Weathers thought the attack was in retaliation for his earlier fight with Whitaker. Weathers had identified photographs of Whitaker III as showing the person with the gun, Presley as the person hitting him, and Whitaker as the person he had recently punched.

[N. 11] Davis testified Weathers had asked her to write that letter because he was illiterate.

At the hospital, Weathers told a deputy three men attacked him, including "James Whitaker" (as the deputy had recorded the name) and "Wheezy," who Weathers thought was "James Whitaker's" son, Weathers thought both of these men were "East Side Piru," and "James Whitaker" had told Weathers he had "disrespected him in front of some people," and had told him "I'm going to do something to you[.]"

A neighbor, David Penn, testified he saw two people fighting with Weathers. The taller attacker had a long rifle pointed to Weathers's head, and Weathers was holding the rifle barrel. The taller man tried to chamber a round, then turned the rifle around and clubbed Weathers with the butt several times "Like a golf club[,]" then the two men fled. Penn testified exhibit 51 (in two parts, marked 51-A and 51-B) looked like the rifle he saw the men use, and which broke "after the last hit[.]" Penn had identified the shorter of the two men at a field showup shortly after the incident, but he could not identify that man in court. Deputy Kristen Cook testified Penn had identified Presley.

Constance Goins, Whitaker's sister, denied knowing or having said anything about what happened, but admitted Whitaker was upset at Weathers for breaking his jaw.

Beverly Robinson, also Whitaker's sister, testified she told a deputy what she had heard from others, and denied making specific statements to a detective.

However, Detective Nathan Wise testified he spoke with Robinson on May 22, 2008, and she said people (including her sister, Goins) were mad at her for speaking to the police and wanted her to change her story. Robinson told him she was angry at Whitaker for making her nephew Whitaker III "do his dirty work" for him. Robinson said Whitaker told her son (Kevin Davis) that he had a gun and needed help "handling" Weathers, and Whitaker "might not make it back[.]" Robinson said Whitaker told Whitaker III and Presley "they had to do this for East Side Piru" and the men left after Whitaker "was giving them liquor and pumping them up"shortly before the shooting. Robinson said that Whitaker had told people Robinson was "snitching," and when Robinson had left the courtroom earlier, Detective Wise overheard her say she could not live in Rancho Cordova anymore.

Deputy Charles Gailey testified he spoke to Robinson the day after the incident. Robinson said the police caught two people, but Whitaker got away, and she was mad that he had involved her nephew in the incident. She had been with all three defendants the night before, and Whitaker "hyped them up and talked them into doing his dirty work" for him. Deputy Gailey also spoke with Kevin Davis, who told him the defendants had been drinking together, Whitaker "is a coward and he hyped the other two up and got them to fight his battle" and Whitaker said he had a "chopper" (a gun), and might not make it back. [N. 12]

[N.12] Davis testified he was not with any of the defendants the day before he spoke to a deputy, and he denied making the various statements to the deputy.

Deputy Ian Carver found unfired rifle cartridges and one fired casing near where Weathers was found unconscious. Carver's canine partner "Ike" found Whitaker III and Presley nearby. Another officer testified Whitaker III wore red and black clothing with a "P" on the belt, as typically worn by East Side Piru gang members. Another officer found the rifle about a quarter of a mile away in some bushes, near where the two later-detained men had jumped a fence.

A criminalist testified the rifle found nearby could have been used to "cycle" the cartridges found at the scene, but because of the rifle's poor condition, he was not able to fire it and determine for sure. The barrel was bent and the stock had blood spatters on it, consistent with the rifle having been used as a bludgeon. [N. 13]

[N. 13] Presley's jury heard testimony that Presley's DNA was not found on the rifle.

Detective Burk Stearns testified about his gang expertise. He had particular experience with the East Side Piru members to wear red clothing, and have a "P" on their belts. They strived for respect and reputation, and retaliated against those that impaired their goals. It was important for a member to "[put] in work" for the gang, such as by committing an assault for another gang member. Gang activities included drug sales, homicides, vehicle thefts, assaults, and robberies. Gang violence discouraged victims or witnesses from reporting gang activities or testifying about them.

Stearns "validated" Presley ("Wheezy") as an East Side Piru member based on his arrest while in possession of narcotics and a loaded gun, a "'Chedda Boys'" tattoo (which referred to a subset of the East Side Piru gang), his association with the Whitakers, and his fight with a rival Crip member while in jail. [N. 14] Stearns validated Whitaker III ("Little G") as an East Side Piru member, based on gang tattoos, clothing, the "P" belt buckle, associatingwith the other defendants, and information from other law enforcement sources. [N. 15] Stearns validated Whitaker ("G") as an East Side Piru member based on the instant crimes, a prior incident involving drug sales while wearing gang clothing in a gang area, and other times Whitaker had worn gang clothing. In response to a hypothetical based closely on the facts of this case, Detective Stearns opined the incident would be gang-related. The younger assailants would be putting in work toward enhancing their gang status, and the gang would benefit by signaling that its members cannot be attacked. In response to a further

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