In re Moore

• Decision Date: 04 October 2005
• Docket Number: No. D045553.,D045553.
• Citation: 133 Cal.App.4th 68,34 Cal.Rptr.3d 605
• Court: California Court of Appeals Court of Appeals
• Parties: In re Leonard MOORE, Jr. on Habeas Corpus.

34 Cal.Rptr.3d 605

133 Cal.App.4th 68

In re Leonard MOORE, Jr. on Habeas Corpus.

No. D045553.

Court of Appeal, Fourth District, Division One.

October 4, 2005.

[34 Cal.Rptr.3d 606]

Donovan & Donovan and Casey Donovan for petitioner.

[34 Cal.Rptr.3d 607]

Bill Lockyer, Attorney General and Robert W. Foster, Deputy Attorney General, for respondent.

HUFFMAN, Acting P.J.

Petitioner Leonard Moore, Jr. was sentenced to a total term of 34 years to life in prison after a jury convicted him on July 24, 2000, of six forcible sex offenses and found he had kidnapped the victim which substantially increased her risk of harm. On appeal, Moore raised various issues, including whether the trial court erred by admitting a portion of a 911 tape over defense counsel's objections it was not probative and was cumulative, time-consuming, and prejudicial, as well as its admission violated his right of confrontation.

On December 19, 2002, in the unpublished opinion People v. Meza, case no. D037249, 2002 WL 31839359, we affirmed Moore's convictions, concluding, among other things, that Moore had waived his confrontation claim on appeal because he had failed to make a timely objection on that ground at trial and his other contentions regarding the 911 tape had no merit. Moore's petition for review was denied by our Supreme Court on February 15, 2003. On October 6, 2003, the United States Supreme Court denied Moore's petition for a writ of certiorari.

On March 8, 2004, the United States Supreme Court issued its decision in Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (Crawford), which announced a new rule regarding the effect of the confrontation clause on the admission of hearsay statements in criminal prosecutions. (Id. at p. 71, 124 S.Ct. 1354.) On September 27, 2004, citing Crawford in support, Moore filed a petition for writ of habeas corpus in the superior court, claiming his trial counsel provided ineffective assistance by failing to object to the admission of the 911 tape on grounds it would violate his 6th Amendment right to confrontation. The court denied the petition on November 23, 2004.

Moore filed this instant petition for habeas relief on December 17, 2004, raising the same ineffective assistance of trial counsel claim as raised in his earlier petition before the superior court again relying on Crawford, supra, 541 U.S. 36, 124 S.Ct. 1354. After receiving an informal response, we issued an order on March 4, 2005 to show cause why the relief prayed for in Moore's petition should not be granted. After reviewing the briefing and record filed in this matter, we requested supplemental briefing on whether Crawford applies retroactively in this case, or at all in a habeas corpus proceeding. We conclude it does not apply retroactively in this case, and accordingly, we find that Moore has failed to meet his burden of showing he was denied the effective assistance of trial counsel under the law applicable at the time of his trial and deny his petition for habeas relief.

BACKGROUND

Because our opinion in People v. Meza, supra, (D037249) sets forth in detail the facts supporting Moore's convictions, we will only briefly summarize them to set the scene for our discussion below. Moore was convicted of committing four of his forcible sex crimes on his victim, Autumn T., on March 9, 2000, in concert with his codefendant Luis Carlos Meza. Earlier that date, Autumn and Joel Holmes had been drinking with a group of friends in Tijuana, B.C. Mexico. On the way back to their car after crossing the border, Autumn and Holmes got separated from the group and could not find Holmes's car. When Moore and Meza approached them in a car Meza was driving, Holmes asked if they could give them a ride and help them find Holmes's car. Moore and Meza agreed and after about 10 minutes of driving around, Meza stopped and ordered Holmes out of the car at gunpoint.

When Autumn attempted to leave with Holmes, Moore closed the door and told her to put her head down. After getting back in the car, Meza threatened Autumn with the gun and drove to a motel where he and Moore forced her to engage in various sex acts. When they were done, they put Autumn back in the car, drove her to a trolley station and dropped her off. Autumn told the people at the station she had been raped. A man called 911 for Autumn, relaying information she provided.

In defense, Moore claimed Autumn voluntarily went to the motel with him and Meza, consented in many of the sexual acts, and only started crying and becoming hysterical after Meza attempted to have further sexual encounters with her and she complained of pain.

During trial, the court admitted two-and-one-half minutes of the over six minute 911 tape which was edited to include only the parts where Autumn's voice was audible over her crying along with the voice of a man identified as Douglas on the tape who relayed the dispatcher's questions to Autumn and Autumn's answers back to the dispatcher. Douglas did not testify at trial. Over defense counsel's objections, the court found the tape relevant to the issue of consent because it showed Autumn's demeanor, including her crying, which corroborated her claim she had not consented to the sexual acts, found it to be admissible as an excited utterance and prior consistent statement, both exceptions to the hearsay rule, and found it was more probative than prejudicial. The court also ordered all references to Autumn's crying deleted from the transcript of the redacted tape. Moore's trial counsel did not make any objection to the 911 call based upon the right of confrontation or seek a curative instruction regarding Douglas's statements.

DISCUSSION

The Legal Framework

Although a defendant will generally be procedurally barred from raising "on habeas corpus an issue that could have been presented at trial" (In re Seaton (2004) 34 Cal.4th 193, 200, 17 Cal.Rptr.3d 633, 95 P.3d 896), a defendant has recourse from such bar when his rights are violated at trial and defense counsel does not object. (Ibid.) "If counsel's omission falls `below an objective standard of reasonableness ... under prevailing professional norms' (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674), the defendant may assert the error in a habeas corpus petition `clothed in "ineffective assistance of counsel" raiment.' [Citation.] The defendant would be entitled to habeas corpus relief if there is a `reasonable probability' [citation] that defense counsel's incompetence in not objecting affected the trial's outcome." (Seaton, supra, 34 Cal.4th at p. 200, 17 Cal.Rptr.3d 633, 95 P.3d 896, fn. omitted.)

Thus, even though Moore has dressed his claim of confrontation clause violation, which was not raised at trial in this case in "ineffective assistance of counsel" clothing, he will only be entitled to habeas relief if he meets his burden of showing that his trial counsel's performance was both professionally deficient and that there is a "`reasonable probability that, but for counsel's unprofessional errors, the result would have been different.'" (People v. Ledesma (1987) 43 Cal.3d 171, 217-218, 233 Cal.Rptr. 404, 729 P.2d 839 (Ledesma).) In other words, Moore must show that his counsel's deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair before his claim of ineffective assistance of counsel will have merit. (Lockhart v. Fretwell (1993) 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (Fretwell).) Where the record on review sheds no light on why counsel failed to do or not do any challenged thing, "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," claims of ineffective assistance of counsel are generally unsuccessful on review. (People v. Pope (1979) 23 Cal.3d 412, 426, 152 Cal.Rptr. 732, 590 P.2d 859.)

Retroactivity of Crawford v. Washington

Before we can proceed to examine whether counsel was deficient in his representation of Moore at trial by failing to object on grounds the admission of the 911 tape segment violated Moore's right to confrontation, we must determine what law was applicable to the admissibility of such evidence. Moore maintains the new rule announced in Crawford, supra, 541 U.S. 36, 124 S.Ct. 1354 is applicable because it was decided while his case was on direct review and "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final...." (Griffith v. Kentucky (1987) 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649.) Alternatively, he relies on the recent Ninth Circuit Court of Appeals case, Bockting v. Bayer (9th Cir.2005) 399 F.3d 1010, 1021-1024 (Bockting), which held by a two-to-one vote that Crawford was a new watershed rule of criminal procedure entitled to retroactive application, to assert Crawford is applicable to cases like his on collateral review.

As the attorney general correctly points out in his supplemental briefing, the record clearly shows Moore's case was final and he had exhausted his direct appeal avenues at the time the decision in Crawford, supra, 541 U.S. 36, 124 S.Ct. 1354 announced a new rule of procedural constitutional law. Because the holding in Bockting, supra, 399 F.3d 1010 is not binding on this court, and is in conflict with every other federal circuit court that has addressed the issue of whether Crawford is to apply retroactively to a habeas proceeding after direct review is final (see Mungo v. Duncan (2nd Cir.2004) 393 F.3d 327, 334-336 (Mungo); Dorchy v. Jones (6th Cir.2005) 398 F.3d 783, 788; Murillo v. Frank (7th Cir.2005) 402 F.3d 786, 790; Bintz v. Bertrand (7th Cir.2005) 403 F.3d 859, 867-869 (Bintz); Evans v. Luebbers (8th Cir.2004) 371 F.3d 438, 444-445; Brown v. Uphoff (10th Cir.2004) 381 F.3d 1219, 1227 (Uphoff)), we review the matter de novo to determine...