Brown v. Attorney Gen. of Cal.

• Decision Date: 27 February 2014
• Docket Number: Case No. 11-cv-00977-JST
• Court: U.S. District Court — Northern District of California
• Parties: NAPOLEON BROWN, Plaintiff, v. THE ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, et al., Defendants.

NAPOLEON BROWN, Plaintiff, v. THE ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, et al., Defendants.

Case No. 11-cv-00977-JST

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

February 27, 2014

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; GRANTING CERTIFICATE OF APPEALABILITY

Before the Court is the above-titled petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254 by petitioner Napoleon Brown, challenging the validity of a judgment obtained against him in state court. Respondent filed an answer to the petition and petitioner has filed a traverse.

I. PROCEDURAL HISTORY

On May 10, 2005, a San Francisco County jury found petitioner guilty of murder (Cal Penal Code § 187(a)¹), four counts of robbery (§ 212.5) and carjacking (§ 215) and found true robbery and carjacking felony-murder special circumstances (§ 190.2(a)(17)(A) & (L)) and personal use of a firearm and arming enhancements except as to the carjacking count. (Clerk's Transcript ("CT") at 1834-35.) The trial court granted petitioner a new trial on the murder count and he was sentenced to 44 years and fourth months on the other counts. (CT at 2112, 2148.)

Petitioner directly appealed the judgment in the California Court of Appeal. On July 21, 2009, in a reasoned opinion, the California Court of Appeal affirmed the judgment and the ordergranting petitioner's motion for a new trial on the murder charge. (Ex. 13.²) On October 28, 2009, the California Supreme Court summarily denied the petition for review. (Ex. 15.) Petitioner's state habeas petitions were denied. On November 29, 2011, the prosecution amended the murder charge to involuntary manslaughter and petitioner pled no contest to involuntary manslaughter and was resentenced to a total term of 42 years and four months in state prison on all counts. (Ex. 21.) The operative first amended petition in this case was filed on January 26, 2012.³

II. STATEMENT OF FACTS

The following background facts describing the crime and evidence presented at trial are from the opinion of the California Court of Appeal.⁴:

The Prosecution's Case

On June 19, 2000, between 12:00 a.m. and 12:30 a.m., two African-American men entered the Johnny Rockets restaurant on Chestnut Street in San Francisco as three employees were closing the store and preparing to leave. One of the men, later identified by two of the employees as [petitioner], was carrying a chrome semi-automatic handgun. The other wore a red bandana over his face. The men forced the employees to the basement and made them lie face-down on the floor. The man with the bandana took money from each of the employees while [petitioner] escorted one of the employees to the safe and demanded that he open it. About this time, a fourth employee returned to the restaurant. The man with the bandana forced the employee to join the others in the basement and removed money from his pockets. [Petitioner] removed at least $7,200 from the safe before leaving the restaurant. Once the men left the premises, the employees called the police and reported the robbery.

Shortly after 12:30 a.m., Officer Gary Watts noticed two African-American men walking briskly towards him on Chestnut Street. One was carrying what appeared to be a red bank deposit bag. About 30 feet from him, they turned a corner and ran to a parked car in the next block that "appeared to be waiting . . . with the taillights on." The men got into the passenger side of the car, which immediately sped off. Watts ran to his unmarked police car, returned to the area in his car, and saw a vehicle two blocks ahead-the only vehicle in sight. As he pursued the car, he heard a radio dispatch concerning the robbery at the restaurant. He relayed what he had seen and reported that he was in pursuit of a car with the license plate number 4JLK910, later determined to be a Ford Escort. As the car approached the Golden Gate Bridge, Watts pulled next to it. He saw an African-American

man in the passenger seat and an African-American woman driving the car. He could not see into the back seat because of the heavily tinted rear windows. Watts sped past the Ford and called for the Highway Patrol to stop the car. Watts waited in the bridge parking lot for the Ford to pass him and followed it on to the bridge. He did not activate his lights or attempt to stop the car.

Suddenly, the Ford pulled into the buffer lane in the center of the bridge and stopped. Watts stopped his car about 75 feet behind the Ford. The driver's side door of the Ford opened and the female driver fell out, as if she had been pushed or kicked from the car. She tried to break the fall with her hands and rolled into the oncoming lane of southbound traffic, where she lay face-down, crying hysterically. As Watts got out of his car, a man exited the passenger side of the Ford. Watts yelled for him to "get down on the ground" but he ignored the command, entered the driver's seat of the Ford and drove off. Watts had "no doubt" that the man he saw was codefendant Thorn. He could not see into the car and did not know if [petitioner] was in the back seat.

As the car drove away, Watts saw headlights approaching in the southbound direction and yelled for the female to get up. The woman, later identified as Lenties White, did not rise from the pavement before being struck by the oncoming car, which did not break or swerve before hitting her. Using videotape from the bridge surveillance cameras, Watts estimated that approximately 19 to 24 seconds elapsed from the time he pulled up behind the Ford until White was hit by the oncoming car.

At 12:57 a.m., Watts broadcast that the woman had been hit and that the robbery suspects were headed towards Marin. Minutes later three additional officers arrived on the bridge. Officers Michele Aschero and Keith Pasquinzo approached White, who was lying gravely injured on the road. Aschero asked the woman her name and date of birth and the woman identified herself as Lenties White with a birth date of May 17, 1975. When Aschero asked her what had happened, White responded that "S.B." "threw me out of the car." The officers asked her to repeat the identity, and both officers clearly heard her say "S.B." White also told the officers that S.B. lived at the intersection of McAllister and Fillmore and she asked them to contact her mother Sandra McNeil. The paramedic who responded to the bridge described White's level of consciousness and awareness as "remarkable," noting in his report that despite her traumatic injury, she "remain[ed] oriented times two throughout transport." White died at the hospital later that morning from blunt force trauma and the resulting blood loss. She had a significant amount of cocaine in her system at the time of her death.

Meanwhile, at approximately 1:09 a.m., Highway Patrol Officer Paul Perez spotted the robbery suspect's car traveling northbound on Highway 101 past Marin City. He activated his emergency lights and with four additional patrol cars followed the car on a high speed chase. The car was eventually stopped and the sole occupant, Thorn, was arrested. Inside the Ford, officers located two Johnny Rockets security cards. Thorn had $46 dollars on his person, but no money was found in the car.

At trial, Samantha Jefferson claimed to remember very little about the morning of June 20. Her interviews with the police were admitted as prior inconsistent statements. In those interviews she told police that [petitioner] appeared at her home at approximately 5:00 a.m.

that morning asking about White. He indicated that he thought something might have happened to her and he told Jefferson to turn on the news because he thought White was dead. They watched news coverage about the accident on the bridge involving a woman whose identity had not yet been released. [Petitioner] told her that White had been taken hostage while trying to buy cocaine. Jefferson told him she did not believe him, but [petitioner] insisted he had nothing to do with White's death. Jefferson also told the police that [petitioner] used the nickname "S.B."

Kermit Allen was the driver of the car that hit White on the bridge. When Allen voluntarily surrendered at the toll plaza, officers determined that he was under the influence of alcohol and arrested him. Allen's blood sample at 3:15 a.m. had an alcohol content of .10 percent. Highway Patrol Officer McClellen testified that based on his reenactment of the accident, he believed even a sober driver would have struck White.

Police recovered a red bandana in the lobby area of the Johnny Rockets restaurant. DNA testing matched [petitioner's] DNA to samples taken from the bandana.

On June 20, 2000, Police Inspectors Anthony Camilleri and Antonio Casillas interviewed [petitioner's] sister, London Breed. She told them that [petitioner] was known as "Sonny" or "Sonny Boy." She thought he might also use the name "S.B." While the interview was in progress, [petitioner] called Breed and spoke briefly with Camilleri. He told Camilleri that he used the nicknames "Sonny" and "S.B." and acknowledged that he had been with White the previous night until about 10:00 p.m. Camilleri urged defendant to come to the police station to make a statement and [petitioner] agreed "to call [him] later to make an appointment." Breed called later that day, however, and told Camilleri that [petitioner] would not be coming to the station.

Luette Harris, who was with [petitioner] at the time of his arrest, also knew [petitioner] to use the nickname "S.B." [Petitioner] lived on Eddy Street near Webster, which is about three blocks from McAllister and Fillmore.

On August 6, 2000, [petitioner] was arrested on a warrant. He tried to flee but was apprehended without incident.

The Defense Case

Dr. Steven Clark testified as an expert on eyewitness identification. He explained that memory tends to fade over time so that an early identification is the most reliable; approximately 20 to 25 percent of the time people make false identifications...