Robertson v. Pichon

• Decision Date: 02 March 2017
• Docket Number: No. 15-16463,15-16463
• Parties: Wade ROBERTSON, Petitioner–Appellant, v. Rise Jones PICHON, Judge of Santa Clara Superior Court; Attorney General of the State of California, Respondents–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

849 F.3d 1173

Wade ROBERTSON, Petitioner–Appellant,

v.Rise Jones PICHON, Judge of Santa Clara Superior Court; Attorney General of the State of California, Respondents–Appellees.

No. 15-16463

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 18, 2016, San Francisco, California

Filed March 2, 2017

Marc J. Zilversmit (argued), San Francisco, California, for Petitioner–Appellant.

Jill M. Thayer (argued), Deputy Attorney General; Peggy S. Ruffra, Supervising Deputy Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General; Office of the Attorney General, San Francisco, California; for Respondents–Appellees.

Before: Sidney R. Thomas, Chief Judge, and Carlos T. Bea and Sandra S. Ikuta, Circuit Judges.

Concurrence by Chief Judge Thomas

OPINION

IKUTA, Circuit Judge:

Wade Robertson was found guilty by a California state jury of driving under the influence of alcohol and possession of a billy club and was sentenced to 12 days in jail and three years on probation. Robertson appeals the district court's denial of his petition for a writ of habeas corpus.¹ We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

I

The evening of April 27, 2006, Wade Robertson, was celebrating with four others at Nola's Restaurant in Palo Alto, California. The group ordered 24 shots of liquor and six mixed drinks over the course of four hours. In addition, Robertson paid for a separate round of drinks with a $100 bill, and according to the waitress, told her to keep the change.

Shortly after midnight, Robertson complained to the manager on duty, Shiraz Qadri, that the waitress had failed to return the change for the $100 bill. In order to avoid problems, Qadri reduced Robertson's credit card bill by $90. Qadri testified that throughout this interaction, Robertson appeared intoxicated, with "dilated eyes, red face, red eyes" and with alcohol on his breath. Qadri offered to call Robertson's group a cab. Robertson declined.

After Robertson left the restaurant, Qadri saw him walk over to a white pickup truck. Agent Dan Ryan, a Palo Alto police officer on patrol that evening, also saw Robertson standing outside a parked pickup truck on the street near the restaurant. As Robertson prepared to take off in the truck, Qadri flagged down Agent Ryan and told him, "Hey, those guys told me they were going to take a cab and they have been drinking pretty heavily."

Not long afterward, Agent Ryan saw the white truck make an illegal left turn a few blocks away from the restaurant, cutting off another vehicle. Agent Ryan followed the truck, caught up to it when the driver pulled into a gas station, and initiated a traffic stop. Robertson quickly exited the truck and began walking towards the patrol vehicle. Once Robertson got out of the truck, Agent Ryan recognized him from the prior encounter. Agent Ryan recalled that Robertson "had an odor of an alcoholic beverage on his breath." According to Agent Ryan, Robertson loudly and aggressively asked him why he had been stopped, and denied that he had been drinking. When Agent Ryan pointed out the smell of alcohol on his breath, Robertson called him a liar.

At that point two additional officers, David Guy and Cole Ghilarducci, arrived at the scene, and observed Agent Ryan administering a series of field sobriety tests. Robertson performed poorly: the nystagmus gaze test² indicated the presence of blood alcohol, and he displayed poor coordination and balance. Based on the field sobriety tests and Robertson's demeanor, Agent Ryan concluded that Robertson had been driving under the influence of alcohol. Officer Guy testified that he reached the same conclusion, and that it was not a close call. When Officer Guy looked into the white truck, he saw a billy club lying between the driver and passenger seats. He collected the billy club for evidence.

Agent Ryan arrested Robertson and took him to the police department's booking area. When Agent Ryan asked Robertson to take a breath test, he refused. He also refused to take a blood test. At that point, Agent Ryan gave Robertson a form issued by the California Department of Motor Vehicles, which provided the following information, among other things:

1. You are required by state law to submit to a chemical test to determine the alcohol and/or drug content of your blood.

2. a. Because I believe you are under the influence of alcohol, you have a choice of taking a breath or blood test....

4. Refusal or failure to complete a test may be used against you in court. Refusal or failure to complete a test will also result in a fine and imprisonment if this arrest results in a conviction of driving under the influence.

5. You do not have the right to talk to an attorney or have an attorney present before stating whether you will submit to a test, before deciding which test to take, or during the test....

After Robertson read the form, he told Agent Ryan that he wanted to speak with his attorney before submitting to any chemical test. Pointing to section 5 of the form (which actually stated he did not have the right to an attorney), Robertson said "See, I have the right to an attorney right here, and I want my attorney." Agent Ryan tried to correct this misreading of section 5, but when Agent Ryan asked Robertson again to take a breath test, Robertson replied, "Absolutely not," and in response to the request to take a blood test, Robertson replied, "No, I will not take a blood test."

At some point during the booking process, Agent Ryan gave Robertson Miranda warnings. After reading Robertson his rights, Agent Ryan asked Robertson if the billy club that Officer Guy found in Robertson's truck belonged to him. Robertson said, "[Y]es, it belonged in the truck." He then asked "if it was a misdemeanor to possess that in California?" Agent Ryan told him it "could be charged either as a misdemeanor or a felony," and gave Robertson a copy of the California Penal Code so he could read the law for himself. Agent Ryan also administered a second series of field sobriety tests in the booking area. These tests, which were recorded on videotape, showed that Robertson again performed poorly.

Robertson was subsequently charged with two criminal counts. First, he was charged with misdemeanor driving under the influence of alcohol in violation of section 23152(a) of the California Vehicle Code,³ along with an enhancement for refusing to submit to a chemical test as provided under section 23577 of the Vehicle Code (referred to here as a "refusal enhancement").⁴ Second, he was charged with misdemeanor possession of a billy club in violation of section 12020(a)(1) of the California Penal Code.⁵

Robertson filed a pretrial motion to suppress evidence obtained during the traffic stop. Robertson argued that Agent Ryan had not been directly behind Robertson's truck. From this fact, Robertson argued, it could be inferred that Agent Ryan had not observed the illegal left turn and therefore, the traffic stop was unlawful. To support this theory, two expert witnesses testified that bank surveillance photographs of the intersection where Robertson made the illegal left turn showed that Agent Ryan's police car was not immediately behind Robertson's truck. Robertson also called two eyewitnesses to testify that Agent Ryan's police car was not behind his truck. The trial court denied the motion to suppress. It stated that it did not credit the testimony of the eyewitnesses, but did credit Agent Ryan's testimony that he personally observed Robertson's illegal left turn.

Robertson subsequently filed a motion in limine to admit into evidence the bank surveillance photographs and related expert testimony at trial. The trial court denied the motion, stating that the legality of the traffic stop had already been fully litigated, but that it would allow Robertson to renew his motion at trial to use the evidence to challenge Agent Ryan's credibility.

At trial, Agent Ryan testified regarding the traffic stop, the field sobriety tests conducted at the scene, and the events in the booking area in the police department. He also testified that the billy club was similar to batons used by the Palo Alto police department. Robertson's trial counsel did not object to the admission of these statements.

For the defense, Robertson's counsel introduced eyewitness testimony that Robertson had not been drinking the night of April 27 and that he was not drunk when he left the restaurant. A field sobriety expert testified that Agent Ryan had improperly administered several of the field sobriety tests. Robertson contended that the smell of his breath was attributable to hypoglycemia

. A licensed private investigator testified that the billy club had nonviolent uses such as checking tire pressure and serving as a handle for a tire jack. Robertson attempted again to introduce the bank surveillance photos to impeach Agent Ryan's credibility, but the court did not permit it, on the ground "that the probative value is substantially outweighed by the undue consumption of time."

At the close of evidence, Robertson moved for a judgment of acquittal on the charge of possessing a billy club in violation of section 12020(a)(1) on the ground that the evidence was insufficient to establish that Robertson knew that the billy club was a weapon or could be used as a weapon. The trial court denied the motion, holding that the evidence that Robertson had asked Agent Ryan whether possession of the billy club was a misdemeanor showed that Robertson knew the billy club was a weapon.

In closing argument, the prosecutor criticized Robertson's theory of the case, arguing:

Ladies and gentlemen, to find reasonable doubt in this case you got to believe Shiraz Qadri lied about a complete stranger; Agent Ryan lied about a complete stranger that night; Officer Guy lied about a complete stranger that night; that defendant just can't follow instructions, that he just has horrible balance, despite being a wrestler which requires great balance. He lies

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