Criminal Appeal

AEDPA Applied to Propensity Evidence and Attorney Conflict

In an interesting 2-1 decision filed last week, the Ninth Circuit remanded for an evidentiary hearing on a state (Nevada) prisoner's claim of conflicted trial counsel; the court also rejected the defendant's claim that the use of propensity evidence to convict him violated his federal constitutional right to due process. Alberni v. McDaniels (9th Cir. no. 05-15570, filed Aug. 9, 2006). It's the propensity claim that interests me more, as other crimes evidence is now routinely admitted for propensity purposes, without limitation, in California sex-offense and domestic-violence cases. The California Supreme Court has held that such use of propensity evidence does not violate the constitution (unless it is unduly prejudicial, as compared to its probative value, under a traditional weighing under Evidence Code section 352 (similar to such weighing under FRE 403).)The Alberni decision is a reminder that state prisoner's will not be able to obtain federal habeas relief on such claims.

Judge Alarcón, joined by Senior District Judge H. Russel Holland of the D. of Alaska sitting by designation, first analyzed the propensity evidence claim, noting that in 2001 the Ninth

Judge Alarcón, joined by Senior District Judge H. Russel Holland of the D. of Alaska sitting by designation, first analyzed the propensity evidence claim, noting that in 2001 the Ninth Circuit had, "[i]n Garceau v. Woodford, 275 F.3d 769 (9th Cir. 2001), rev’d on other grounds, 538 U.S. 202 (2003), acknowledged that the 'Supreme Court  has never expressly held that it violates due process to admit other crimes evidence for the purpose of showing conduct in conformity therewith.' Id. at 774. In fact, the Supreme Court reserved determination of this question in Estelle v. MacGuire, 502 U.S. 62 (1991)." That status of propensity jurisprudence does not bode well for a habeas petitioner seeking relief under AEDPA, which allows habeas relief to state prisoners only when the state court decision is contrary to, or an unreasonable of, clearly established U.S. Supreme Court authority.

Noting that "every circuit, in cases decided prior to the enactment of AEDPA, has acknowledged, at least implicitly,that the improper introduction of evidence may violate due process if it renders a trial fundamentally unfair," and also noting "the corresponding unlikelihood the Supreme Court will ever resolve the question it reserved in Estelle, [footnote citing cert denials omitted]" Judge Alarcón concluded that the petitioner's "argument that this Court should apply general principles of due process articulated by the Supreme Court is somewhat attractive." Nevertheless, in light of the express reservation of the issue in Estelle v. MacGuire, Judge Alarcón concluded that relief was not available under AEDPA, i.e. a bunch of circuit law was not controlling in an AEDPA case.

Judge McKeown concurred with this portion of the majority opinion, writing separately "to underscore that the Supreme Court’s decision to pass on a question, even expressly, is not automatically the death knell for habeas relief." Nevertheless, she agreed the state of SCOTUS propensity jurisprudence did not allow relief in this case because "the current reach of due process for propensity evidence does not extend past the generic and very narrow standard of 'fundamental fairness' or 'fundamental conceptions of justice,' Dowling v. United States, 493 U.S. 342, 352-53 (1990), which, for the purposes of AEDPA’s clearly established federal law requirement, is barely one step removed from the Constitution’s recitation of due process itself."

Confrontation Clause and Propensity Evidence Claims Rejected in Domestic Violence Appeal; But AG Wins Re-Sentencing. People v. Price, no. A101668 (Cal.Ct.App. 1/4, June 30, 2004).

(1) No confrontation clause (i.e. Crawford) violation for admission of statement of unavailable witness where defendant had opportunity to cross-examine witness at preliminary hearing. Note: Although, in the end, it was not essential to the decision, the AG flip-flopped during the course of this case with respect to whether the witness's statement to police officers was testimonial. In the end, the AG argued it was not testimonial. (2) No due process violation in admission of prior act of domestic violation for propensity purposes (Cal.Evid.Code sec. 1109); (3) Unlawful sentence required resentencing.

If Propensity Evidence Is Used, Defendant May Introduce Evidence that He Was Acquitted of the Prior Offense. People v. Mullens, no. D041452 (Cal.Ct.App. (4th Dist., Div. 1) June 17, 2004).

[I]n a sex offense prosecution in which the trial court has admitted Evidence Code[Fn.] section 1108 propensity evidence that the defendant has committed an uncharged sex offense, it is error to exclude admission of evidence that the defendant has been acquitted of that offense, and such error is reversible if it is prejudicial under the Watson harmless error test (People v. Watson (1956) 46 Cal.2d 818, 836).

No Instructional Error In Nail Gun Murder Trial. People v. Pescador, no. C042759 (Cal.Ct.App. 3d dist. June 8, 2004).
"Suspecting his wife, Norma Pescador, of infidelity, defendant Manolito Pescador fired 10 nails into her head with a nail gun, killing her" and there were no errors in his jury instructions.

(1) No error in instructing pursuant to CALJIC 8.71 and 8.72, which create presumptions for convictions for lesser homicide offenses when there jurors have a reasonable doubt as to the degree of the offense. Jury would not read instructions as requiring that they unanimously find that they cannot agree on the degree: (2) No error in instructing pursuant to CALJIC 2.50.02, which permits jury to rely on prior acts of domestic violence to find that he had a propensity to commit the current offense.