Caldwell v. Frauenheim

• Decision Date: 13 January 2022
• Docket Number: 2:19-cv-0023 JAM DB
• Court: U.S. District Court — Eastern District of California
• Parties: DERRICK RAY CALDWELL Petitioner, v. SCOTT FRAUENHEIM, Respondent.

DERRICK RAY CALDWELL Petitioner,
v.
SCOTT FRAUENHEIM, Respondent.

No. 2:19-cv-0023 JAM DB

United States District Court, E.D. California

January 13, 2022

FINDINGS AND RECOMMENDATIONS

DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE.

Petitioner, a state prisoner, proceeds pro se and in forma pauperis with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges a judgment of convictions entered on April 14, 2016 in the Solano County Superior Court. Petitioner was convicted of robbery in the second-degree (Cal. Penal Code § 211) and assault by means of force likely to produce great bodily injury (Cal. Penal Code § 245(a)(4)), with three prior convictions. Petitioner claims that there was insufficient evidence of force likely to cause great bodily injury as to the assault offense, and the prosecution engaged in prejudicial misconduct by implicitly referring to his failure to testify and improperly shifting the burden of proof. For the reasons set forth below, it is recommended that the petition be denied. ////

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BACKGROUND

I. Facts Established at Trial

The California Court of Appeal for the First Appellate District provided the following summary of the facts presented at trial:

Around 8:15 p.m. on November 15, 2015, D.C. and L.W., two employees of Buffalo Wild Wings at the Solano Mall in Fairfield, were taking a cigarette break behind the restaurant. As the two talked, D.C. was also sending text messages on his cell phone

A man wearing a gray sweatshirt with the hood covering most of his upper face, gray sweatpants, and gray shoes approached the two employees. L.W. asked him if she could help him “because he wasn't dressed in a typical uniform or anything that would convey he worked at the mall.” L.W described the man as an African American with “[m]edium to dark” skin in his late twenties or early thirties who was at least six feet tall, had a “thinner frame ” and had “stubbly” facial hair, and at trial she identified him as Caldwell. Similarly, D.C. described the man, whom he also identified as Caldwell at trial, as a tall African American with “[d]ark” skin in his late thirties or early forties who had a normal build and “scruffy” facial hair.

After asking L.W. how her night was going, Caldwell snatched the cell phone from D.C.'s hands. D.C. tried to retrieve his phone by grabbing for it, at which point Caldwell punched him in the face, and D.C. “stumble[d] down to the ground” onto his hands and knees. As D.C. tried to get up, Caldwell kicked him in the face, knocking D.C.'s glasses off and causing D.C. to stumble again.

Meanwhile, L.W. opened the restaurant's back door and called for help. J.B., a manager at the restaurant, came outside and saw Caldwell, whom J.B. described as about six feet tall with a slim build and “[d]ark” skin, fighting D.C.^[1] J.B. chased Caldwell across the parking lot as Caldwell fled with the cell phone. As they were running up some steps, both J.B. and Caldwell fell, and Caldwell kicked J.B. in the face, causing his nose to bleed. Caldwell was able to escape, and J.B. called 911.

Officers Bee Xiong and Robert Piro of the Fairfield Police Department responded to Buffalo Wild Wings soon after the robbery and assault occurred. J.B. gave a brief description of the suspect, which Officer Xiong described as “the same description that was given out to dispatch, a black male adult approximately six feet tall, wearing ... a gray sweater ... and dark-colored pants.” Later, the officer reviewed a copy of a security video recording from the restaurant, which showed Caldwell “lunge[ ]” at D.C. as he wound up his arm to punch D.C. before the two men moved out of the camera's view, followed by “a brief scuffle” between them and J.B.'s

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pursuit of Caldwell.^[2]The copy of the recording was played for the jury.

Officers Xiong and Piro used the “Find My iPhone” application on J.B.'s cell phone to track D.C.'s cell phone. The application initially showed that D.C.'s phone was in the bushes near a Ross store in the mall, and Officer Piro checked that location but did not find anything. Officer Xiong then informed Officer Piro that the application “was pinging in the area of Northbay Medical Center.” Both officers responded to the parking lot of the medical center's offices, which were closed for the night.

Officer Xiong spotted Caldwell lying in the driver's seat of a car parked in the lot. Caldwell was wearing a dark-colored shirt and pants, and a black jacket covered his torso and face. Officer Xiong testified that although it was a cold night, Caldwell was sweating, and he did not appear to be under the influence of a controlled substance. The officer called D.C.'s number and heard the phone ringing inside Caldwell's car. Officer Xiong then retrieved the phone from the car's glove compartment. The car was full of clothing, but the officers were unable to find any clothing that matched the witnesses' description of what the suspect had been wearing.

After the officers detained Caldwell, whose driver's license said that he was six feet, three inches tall, a third Fairfield police officer took D.C. to the Northbay Medical Center parking lot to see whether D.C. could identify Caldwell. The officer gave D.C. a standard admonishment not to assume that Caldwell was the suspect merely because he was in custody. D.C. indicated he was unsure whether Caldwell was the suspect because Caldwell was wearing different clothes. After moving closer, D.C. recognized Caldwell's facial features and identified him as the suspect.

Shortly afterward, Caldwell was brought outside the Buffalo Wild Wings for two other showups. First, L.W. was asked to identify him and given the same admonishment that D.C. received. After she commented that Caldwell was wearing different clothes than the suspect's, a police officer told her that “sometimes they do change their clothes” and asked her “to focus on [Caldwell's] face and his height.” She then identified Caldwell, telling the police that she was “99 to a hundred percent certain.” At trial, she testified that she was now around “75 percent sure” about the identification.

J.B. was also asked to identify Caldwell after being read the same admonishment. J.B. testified that at the time, he told the police that “ ‘it looks like him' ” and that Caldwell matched the description but that the clothing was different and J.B. was not “ ‘a hundred percent sure' ” about the identification.

Dr. Robert Shomer, Ph.D., an experimental psychologist, testified f or the defense as an expert in memory perception and eyewitness

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identification. He stated that several factors can bear on the reliability of an identification, including the lighting, the witness's stress level and opportunity to observe, and whether the witness has characteristics similar to those of the person being identified. He testified that field showups, the procedure used here, are “extremely problematic” because they are “inherently suggestive.” He also testified that “there is no usable relationship between how confident and sure somebody is of their eye[]witness ID and the actual accuracy of that ID” and noted that to date 330 people had been exonerated of crimes after being erroneously identified. He made clear, however, that he was not offering an opinion on whether a particular witness's identification was accurate. Caldwell did not testify.

(ECF No. 17-6 at 85-88); People v. Caldwell, No. A148195, 2017 WL 4129190, at *1-2 (Cal.Ct.App. Sept. 19, 2017).

II. Procedural Background

A. Judgment

A jury convicted petitioner of second-degree robbery and assault by means of force likely to produce great bodily injury, and the trial court found as true that he had three prior convictions. (ECF No. 17-3 at 181-82, 185, 187.) The trial court imposed an aggregate prison term of eight years. (Id. at 201.)

B. State Appeal and Federal Proceedings

Petitioner timely appealed his convictions, raising three claims: (1) petitioner was denied his right to due process by filing of an information charging an offense not in the complaint and not supported by probable cause at the preliminary hearing; (2) there was insufficient evidence of force likely to cause great bodily injury as to the assault offense; and (3) prosecution engaged in prejudicial misconduct by making a Griffin^[3] error by implicitly referring to defendant's failure to testify and improperly shifting the burden of proof. (ECF No. 17-6 at 3-33.) The California Court of Appeal denied his claims on September 19, 2017. (Id. at 85-99.) Petitioner sought review in the California Supreme Court. (Id. at 101-17.) On January 10, 2018, the California Supreme Court summarily denied review. (Id. at 137.) Petitioner did not seek collateral review. The present petition was filed on December 10, 2018, and Respondent has filed an answer. (ECF No1. 1, 17.)

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STANDARDS OF REVIEW APPLICABLE TO HABEAS CORPUS CLAIMS

A court can entertain an application for a writ of habeas corpus by a person in custody under a judgment of a state court on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for an alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000) (stating that “a violation of state law standing alone is not cognizable in federal court on habeas.”).

This court may not grant habeas corpus relief unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the

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