U.S. Court of Appeals Docket Number: 00-00008
Lower Court Docket Number: CV-00-00000-LKK

JOHN DOE,

        Petitioner-Appellant,

v.

IVALEE HENRY, In Her Capacity as Warden of
and the CALIFORNIA DEPARTMENT
OF CORRECTIONS.

        Respondent-Appellee.

__________________________________________

APPEAL FROM THE JUDGMENT OF THE
U.S. DISTRICT COURT, EASTERN DISTRICT
STATE OF CALIFORNIA

HONORABLE LAWRENCE K. KARLTON,
CHIEF JUDGE EMERITUS

THOMAS LUNDY
Attorney at Law
CALIFORNIA STATE BAR #: 57656
2500 Vallejo Street, Suite 200
Santa Rosa, CA 95405
(707) 524-8112
Attorney for Appellant
JOHN DOE

    A crucial element of the burglary charge was whether the car was entered with an intent to permanently deprive the owner of its possession or merely to temporarily use the vehicle. In this argument petitioner contends that the prosecution failed to meet its burden of presenting evidence from which the jury could rationally infer an intent to permanently deprive as opposed to an intent to temporarily use the vehicle and, hence, the evidence is only sufficient to support a conviction of attempted joy riding rather than burglary.

    This argument presents two fundamental issues:

    1. Is evidence which is equally probative of two inferences, one indicative of a lesser crime and the other of a greater crime, sufficient to support a conviction of the greater crime?

    2. Assuming that the prosecution’s evidence is insufficient to prove the greater crime, can the reviewing court rely on the possibility that the jury disbelieved the defendant’s testimony to cure the evidentiary deficiency and affirm the conviction as to the greater crime?

    Raised: Amended Petition pages 3-5; ER 93-95; Amended Points and Authorities 6-17; Traverse 3-12.

    Addressed: Findings and Recommendations pp. 20-21; ER 169-70.

            1.     Jackson v. Virginia

    Review: This court reviews de novo the district court’s disposition of a sufficiency of evidence claim on habeas corpus. Mikes v. Borg, 947 Fed.2d 353, 356 (9th Cir.1991). Under Jackson v. Virginia, 443 U.S. 307 (1979), due process requires the reviewing court to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319, emphasis in original; McMillan v. Gomez, 19 Fed.3d 465, 469 (9th Cir. 1994). In making this determination, "all of the evidence is to be considered." Jackson v. Virginia, supra, 443 U.S. at 319.)

    Prejudice: A conviction that fails to meet the Jackson v. Virginia standard violates due process and entitles the convicted defendant to habeas relief. Mikes v. Borg, supra.

    The reviewing court must presume that the jury "resolved any [evidentiary] conflicts in favor of the prosecution, and must defer to that resolution." Wright v. West, 505 U.S. 277, 296-97 (1992), quoting Jackson v. Virginia, supra. However, when conflicting inferences are equally probable or, in other words, when the evidence is in equipoise, "the party with the burden of proof loses." Simmons v. Blodgett, 110 Fed.3d 39, 41-42 (9th Cir. 1997); see also Rexall v. Nihill, 276 Fed.2d 637, 644 (9th Cir. 1960); Reliance Ins. v. McGrath, 671 Fed.Supp 669, 675 (N.D.C.A. 1987); Wilson v. Caskey, 91 Cal.App.3d 124, 129 (1979) ["equal probability does not satisfy a burden of proof...."]. The evidence must provide a reasonable basis to conclude that one inference is "more probable" than the other. See U.S. v. Ramirez-Rodriguez, 552 Fed.2d 883, 844 (9th Cir. 1977) citing Turner v. U.S., 396 U.S. 398 (1970). "If there is nothing more tangible to proceed upon than two or more equally reasonable inferences from a set of facts, and ... under only one of the inferences would the defendant be liable, a jury will not be allowed to resort to conjecture to determine the facts. [Citations.]" Olympia Oyster Co. v. Rayonier, Inc., 229 Fed.Supp. 855, 861 (W.D. Wash. 1964). In other words, circumstantial evidence is "subject to the rule that if the conclusion reached from the facts in the chain of circumstances is equally consonant with the issues to be proven and with some other theory or theories inconsistent therewith, it becomes mere conjecture, and the rule of the burden of proof is not satisfied. [Citations.]" Fegles Constr. Co. v. McLaughlin Constr. Co., 205 Fed.2d 637, 639 (9th Cir. 1953); see also U.S. v. Menesses, 962 Fed.2d 420, 426 (5th Cir. 1992.

            3.     The Prosecution’s Failure To Satisfy Its Burden With Affirmative Evidence 
                    Cannot Be Cured By the Jury’s Possible Disbelief Of The Defendant’s 
                    Testimony Unless Such Testimony Is Inherently Implausible

    It is true that a bare attempt to take the property of another can provide a rational basis for inferring an intent to steal. For example, when money is forcibly taken from a cash register the jury may reasonably conclude that it is more likely than not that the money was taken with an intent to steal. See People v. Poindexter, 255 Cal.App.2d 566, 569 (1967).

    However, the taking of an automobile is fundamentally different from the taking of property such as money. The legislature recognized this distinction by enacting three separate statutory measures which provide punishment for the taking or use of an automobile without the owner’s consent, at the time of petitioner’s trial.[Footnote 1] One requiring an intent to permanently deprive the owner of possession (former California Penal Code § 487, subd. 3 "grand theft auto"); one requiring an intent to permanently deprive or temporarily deprive the owner of title or possession (former California Vehicle Code § 10851 "auto taking") and one requiring only an intent to temporarily use the vehicle. (Former California Penal Code § 499b "joy riding.") These statutes embodied the legislature’s recognition that the mere taking of a vehicle does not demonstrate the taker’s intent because an automobile — by its very nature — is the type of property which, is prone to taking for temporary as well as permanent use. See e.g., People v. Barrick, 33 Cal.3d 115, 135 (1982); Gustine v. State, 97 So. 207 [86 Fla. 24] (1923). Thus, the extent of one’s culpability for auto-taking depends on proof of intent above and beyond that which may be inferred from the unauthorized taking of the vehicle. Ibid. Mere evidence of unlawful taking (e.g., a tampered ignition) "does not reflect on whether the defendant had the specific intent to deprive the owner of possession of a mere intent to use or operate the vehicle..." People v. Barrick, supra, 33 Cal.3d at 135; see also, People v. Neal, 40 Cal.App.2d 115 (1940) [taking and abandoning car not necessarily sufficient to prove intent to deprive owner of title or possession].

    For example, in Gustine v. State, supra, 97 So. 207 [86 Fla. 24], a case factually analogous to the present one, the Florida Supreme Court held that an attempt to "hot-wire" a care was insufficient to show an intent to steal as opposed to an intent to temporarily use the car.

    "If the facts in proof are equally consistent with some other rational conclusion than that of guilt, the evidence is insufficient. If the evidence leaves it indifferent which of several hypotheses is true, or merely establishes some finite probability in favor of one hypotheses rather than another, such evidence cannot amount to proof however great the probability may be. [Citations.]

    If it be assumed that the evidence on behalf of the state is sufficient basis for the inference that defendant intended to move the automobile and to run it, his acts are as consistent with the conclusion that he intended to use it temporarily ... as that he intended to appropriate it and permanently deprive the owner of his possession ...." (Emphasis added.)

Gustine v. State, supra, 86 Fla. at 27-28; see generally Nishikawa v. Dulles, 356 U.S. 129 (1958), discussed below at pp. 29-30 [equally probable inferences of intent from the act committed created an "evidentiary gap"]; Stallings v. Tansy, 28 Fed.3d 1018 (10th Cir. 1994) [prosecution’s reliance solely on the act of passing a forged check created a fatal evidentiary gap as to the element of knowledge].

    Similarly, in the present case the acts of entering and attempting to hot-wire the vehicle by petitioner’s brother were as consistent with the conclusion that he intended to use it temporarily as with the conclusion that he intended to permanently deprive the owner of its possession. Accordingly, unless the record contains others evidence from which the jury could rationally infer that the intent was more likely to permanently deprive than to temporarily use then it should be held that the prosecution failed to meet its burden of proving an essential element of burglary. In the next sections petitioner demonstrates that the surrounding circumstances do not satisfy the prosecution’s burden and, if anything, are more probative of an intent to temporarily use.

    In the present case no such factors were present. Moreover, as discussed in the next section, the actual circumstances of the break-in were no more indicative of an intent to steal than an intent to temporarily use the car.

                    c.     The Other Circumstances And Assumptions Relied Upon By The Appellate
                            Court Were Insufficient

    "Having heard the evidence, having observed the witnesses’ demeanors, and having assessed their credibility, the jury reasonably could reject defendant's claim that, when Ronnie broke into the locked vehicle, the brothers intended only to temporarily use the car without the owner's permission. This is not the typical joyride scenario where one, generally a juvenile, comes upon an unlocked car and impulsively decides to take advantage of the situation. Here, the break-in was committed late at night by two adults, one of whom was armed. After the brothers apparently planned the break-in, Ronnie smashed the window of a relatively new car so the brothers could take it. When caught in the act, defendant used deadly force in trying to avoid being apprehended. Under these circumstances, the jury reasonably could conclude the brothers intended to permanently deprive the owner of the car if they had not been thwarted in their effort." [Citations omitted.] (Slip Opn. pp. 23-24; ER 51-52.)

                            i.     No Evidence Was Presented to Prove a Burglary Is More Likely 
                                   To Occur At 10:00 p.m. Than A Joyride

                            ii.     No Evidence Was Presented to Prove An 18 Year Old Is More Likely 
                                    To Commit An Auto Burglary Than A 17 Year Old

                            iii.     The Break-In Was Actually Committed By The 17 Year Old

    In sum, the age factor is actually less than sufficient -- if anything, it actually supports petitioner’s position.

    Nor was there any evidence that the car, even though locked, was targeted for reasons relating to theft as opposed to temporary transportation. The car was a 7 year old "bottom-of-the-line" Nissan Sentra. (RT 139.) Moreover, the record does not contain any basis for inferring that there were other unlocked cars in the area. To the contrary, it suggests that the residents of the apartment complex were highly upset about a rash of auto break-ins and, therefore, were likely to have locked their cars. [Footnote 12]

    In sum, the breaking of the window is no more probative of an intent to permanently deprive than an intent to temporarily use the car for transportation.

    First, no evidence was presented in support of the court’s assumption that being armed with a knife is more indicative of an intent to steal than an intent to joyride.

    Second, even if this assumption had been proven as an abstract proposition, as applied to present case, it did not provide sufficient evidence of burglary. The weapon involved, a large kitchen knife, was not the type of weapon which suggests a deliberate and sophisticated plan to steal a vehicle. The knife, which Doe found at a picnic area, was bulky and clearly not designed for ease of transportation or efficient use. (RT 1235-38.) Hence, rather than showing the increased sophistication suggestive of an intent to steal, the nature of the weapon is actually more consistent with the amateur, impulsive circumstances more typically associated with joyriding.

    Third, the use of force in this case did not take place when the brothers were "caught in the act" as suggested by the appellate court. It was only after the defendants were later tracked down and confronted by the angry apartment residents that deadly force was used. While the facts are conflicting as to who initiated the deadly force, the fact remains that the residents did assault petitioner and his brother with a baseball bat during the confrontation. (See pp. 8-9, herein.)

    Finally, it must again be noted that it was Ronnie, not petitioner, who entered the vehicle. Thus, it is the crime which Ronnie committed that determines petitioner’s liability. People v. Patterson, supra, 209 Cal.App.3d 610, 614-15; see also People v. Taylor, supra, 12 Cal.3d 686, 698. And, again using the Court’s own assumptions, the fact that Ronnie was not armed and did not use the knife must be considered as evidence that Ronnie committed an attempted joyride rather than a burglary.

    The law regarding reliance on disbelief of the defendant’s testimony as affirmative evidence of guilt is tempered by the fundamental constitutional precept that "[a] defendant, no matter how untrustworthy he may be, is not required to prove his innocence. The People must prove him guilty." People v. Ross, 198 Cal.App. 2d 723, 729 (1961); see also generally Mullaney v. Wilbur, 421 U.S. 684 (1975); U.S. v. Ancheta, 38 Fed.3d 1114, 1117 (9th Cir. 1994); People v. Bamber, 264 Cal.App.2d 625, 632-33 (1968).

    Accordingly, because the defendant has no obligation to testify at all, the courts have consistently limited the circumstances in which the jury’s rejection of the defendant’s testimony can be used to remedy a deficiency in the prosecution’s case. The two situations in which such use may be made of the defendant’s testimony are:

    1. Where the defendant’s testimony is implausible.

    2. Where the record contains other objective evidence which points to a conclusion contrary to the testimony.

    This Court has held that "disbelief of a defendant's own testimony may provide at least a partial basis for a jury's conclusion that the opposite of the testimony is the truth ...", "such disbelief can provide only partial support: there must also be ‘other objective evidence on the record which buttresses the fact finder's drawing of the opposite inferences’. [Citation.]" U.S. v. Martinez, 514 Fed.2d 334, 341 (9th Cir. 1975); see also, U.S. v. Stauffer, 922 Fed.2d 508, 515 (9th Cir. 1990); U.S. v. O’Looney, 544 Fed.2d 385, 391 (9th Cir. 1976) [additional facts must "point [] to a contrary conclusion ...."]. [Footnote 13]

    Additionally, this Court has held that "... in certain restricted circumstances -- where, for example, a witness' story is implausible ... disbelief of testimony can support the truth of what the witness denies. [Citation.]" U.S. v. Martinez, supra, 514 Fed.2d at 341; see also, U.S. v. Stauffer, supra, 922 F.2d at 515 ["... implausible testimony provides a basis for the jury to conclude that the opposite of his testimony is true."]; U.S. v. Ledesma, 499 Fed.2d 36, 43 (9th Cir. 1974) [when defendants elected to testify jury could "not only ... disbelieve their story but also might wonder, quite properly, why their explanation ... was so improbable." (Emphasis added)]; see also Stallings v. Tansy , supra, 28 Fed.3d at 1018 [discussing similar case law in different circuits].

    In sum, "[w]here the only basis for a finding contrary to the testimony of a witness is his demeanor ... a conviction will not be sustained. [Citation.]." U.S. v. Price, 623 Fed.2d 587, 591 (9th Cir. 1980); see also U.S. v. Cisneros, 448 Fed.2d 298, 306, fn. 10 (9th Cir. 1971) [verdict may not be based "solely on demeanor evidence"].

    The U.S. Supreme Court cases are consistent with this Court’s approach. The high court has held that disbelief of a witness cannot alone "fill [an] evidentiary gap in the Government's case." Nishikawa v. Dulles, 356 U.S. 129, 137 (1958) ["disbelief of petitioner's story ... [cannot] fill the evidentiary gap in the Government's case."]; Moore v. Chesapeake & O. R. Co., 340 U.S. 573, 576 (1951) [disbelief of a witness will "not supply a want of proof."]; see also, Bose Corp. v. Consumer’s Union, 466 U.S. 485, 512 (1984).

    On the other hand, the Supreme Court has held that where the defendant’s testimony is inherently improbable or implausible, the reviewing court may rely on the jury’s likely rejection of such testimony to corroborate a guilty inference. Wright v. West, supra, [defendant’s "uncorroborated and confused" and incomplete attempt to explain his possession of 15 stolen items, and his prior conviction, supported the inference that he was the thief]. [Footnote 14]

    In sum, the cases have placed very clear limitations on the reviewing court’s ability to rely upon the jury’s disbelief of the defendant’s testimony as affirmative evidence of guilt: the testimony must be inherently implausible and/or there must be other objective evidence in the record which provides a rational basis for drawing an inference contrary to the defendant’s testimony

    Petitioner’s testimony was far from implausible. To the contrary, his testimony was perfectly consistent with the prosecution’s own witnesses. Petitioner testified that he and his brother attempted to take the car to return home. (RT 1187-1192.) This testimony, was corroborated by the prosecution witness who verified that the ride the defendants had expected was not available and that they needed a way to get home. (RT 126, 131-134.) [Footnote 15]

    Accordingly, because petitioner’s testimony was not inherently implausible, disbelief of such testimony should not be considered as affirmative evidence in support of the conviction. See U.S. v. Martinez, supra, 514 Fed.2d at 341.

    As discussed above (see pp. 14-22 herein), nothing about the break-in itself or the surrounding circumstances provided any rational basis for inferring that the intent was more likely to permanently deprive the owner of possession than to temporarily use the vehicle.

    Hence, the present case involves an "evidentiary gap" analogous to the situation in Nishikawa v. Dulles, supra, 356 U.S. 129. In Nishikawa, the challenged issue was also one of intent: whether the citizen voluntarily evaded the draft by the act of going to Japan when he was subject to conscription in the United States. The citizen testified that he did not leave the U.S. voluntarily because he was conscripted by Japan to whose conscription law, with its penal sanctions, he was subject. Despite the fact that the citizen's trip to Japan could have been voluntary, the Supreme Court held that the government did not meet its burden of proving voluntariness by clear and convincing evidence:

    "Nor can the district judge’s disbelief of petitioner’s story of his motives and fears fill the evidentiary gap in the Government’s case. The Government’s only affirmative evidence was that petitioner went to Japan at a time when he was subject to conscription. [¶] On this record the Government has not established the voluntary conduct that is the essential ingredient of expatriation." Nishikawa v. Dulles, supra, 356 U.S. at 665-666.

    In the present case, there was a similar evidentiary gap. There is nothing inherent in the act committed or the other circumstances which is more probative of an intent to permanently deprive as opposed to an intent to temporarily use the car. See Gustine v. State, supra. Therefore, in the absence of other objective evidence "pointing to a contrary conclusion" (U.S. v. O’Looney, supra, 544 Fed.2d at 391), disbelief of petitioner's testimony cannot be relied upon to "fill the evidentiary gap."

The evidence presented by the prosecution contained a crucial deficiency or gap because it was in "equipoise" as to the intent element of the burglary charge. Simmons v. Blodgett, supra, 110 Fed.3d at 41-42. This evidentiary gap may not be filled by the possibility that the jury rejected petitioner’s testimony because that testimony was not inherently implausible.

    Accordingly, the burglary, murder and attempted murder convictions, should be invalidated. [Footnote 16]  

V

    For the foregoing reasons the petition for writ of habeas corpus should be granted and petitioner’s conviction should be invalidated.

    To counsel’s knowledge, there are no cases pending in this court which are related to the present one, per Circuit Rule 28-2.6.

Dated: February ____, 1998

Footnote 1: These statutes haven been subsequently amended.

Footnote 2: See People v. Chapman, 72 Cal.App.3d 6 (1977); People v. Larrann, 117 Cal.App.2d 485 (1953).

Footnote 3: See People v. Hemmer, 19 Cal.App.3d 1052 (1971).

Footnote 4: See People v. Neal, 40 Cal.App.2d 115 (1940); People v. Holland, 82 Cal.App.2d. 310 (1947).

Footnote 5: See People v. Tiffith, 12 Cal.App.3d 1129 (1970).

Footnote 6: See People v. Nebbitt, 183 Cal.App.2d 452, 457 (1960); People v. Quisenberry, 151 Cal.App.2d 157 (1957).

Footnote 7: See People v. Davis, 88 Cal.App.3d 732, 734 (1979); People v. Livingston, 4 Cal.App.3d 251, 253 (1970).

Footnote 8: See People v. Martinez, 10 Cal.App.4th 1001, 1004 (1992); People v. Brady, 275 Cal.App.2d 984, 996 (1969); People v. Galceran, 178 Cal.App.2d 312, 315-316 (1960).

Footnote 9: See People v. Brady, supra, 275 Cal.App.2d at 996.

Footnote 10: The opinion was modified on rehearing after petitioner pointed out that petitioner's brother was only 17 years old and the car was not relatively new. (Petition for Rehearing, pp. 1-2, ER 86.)

Footnote 11: Moreover, the time of the bread-in corresponded with the brother’s need for a ride home late that night. (RT 133.) They had expected to get a ride from Ms. V's mother, but she was not available. (RT 133-34.)

Footnote 12: The residents of the apartment building at 4001 Watt Avenue in Sacramento had been victimized by numerous burglaries of their automobiles parked in the apartment lot. (RT 152-153, 199-200, 304, 365, 409, 995-6.) During the prior six months, at least ten such car burglaries had occurred. (RT 199-200.)

Footnote 13: In California the courts have consistently held that: "The likelihood that the court may have disbelieved his [defendant’s] testimony cannot be held to sustain the conviction upon a theory that his lack of credibility supplied the deficiencies in the People’s case." People v. Tabizon, 166 Cal.App.2d 271, 274 (1958); see also People v. Jiminez, 21 Cal.3d 595, 613 (1978).

Footnote 14: The inherent implausibility of West’s testimony is clear from the following recitation of that testimony by the Supreme Court:

    "The case against West was strong. Two to four weeks after the Cardova home had been burglarized, over 15 of the items stolen were recovered from West's home. On direct examination at trial, West said nothing more than that he frequently bought and sold items at different flea markets. He failed to offer specific information about how he had come to acquire any of the stolen items, and he did not even mention Ronnie Elkins by name. When pressed on cross-examination about the details of his purchases, West contradicted himself repeatedly about where he supposedly had bought the stolen goods, and he gave vague, seemingly evasive answers to various other questions. [Citation.] He said further that he could not remember how he had acquired such major household items as a television set and a coffee table, and he failed to offer any explanation whatsoever about how he had acquired Cardova's record player, among other things. Moreover, he testified that he had acquired Cardova's second television set from a seller other than Elkins (who remained unidentified) in an entirely unrelated (but roughly contemporaneous) transaction. Finally, he failed to produce any other supporting evidence, such as testimony from Elkins, whom he claimed to have known for years and done business with on a regular basis." Wright v. West, supra, 505 U.S. at 595-96.

Footnote 15: The testimony of prosecution witness, Ms. V was actually more corroborative of an intent to temporarily use the care to drive home than an intent to steal or permanently deprive. She testified that on the evening of the break-in the defendants had been given a ride from their West Sacramento home to Ms. V's apartment on the other side of town (South Watt Avenue) by Ms. V's mother. (RT 126, 131.) The defendants were going to get a ride home from Ms. V's mother. (RT 133-134.) However, when the other girl they were expecting didn't show up the defendants left on foot because Ms. V's mother was not there. (RT 132-133.) They returned 20-25 minutes later asking for a coat hanger or screwdriver. (RT 133-134.) Ms. V said she didn't have one and the defendants left again stating they were going to take the light rail home. (RT 133-134.)

    Petitioner emphasizes that consideration of this additional evidence is not necessary to conclude that the evidence is insufficient since the factors relied upon by the Court of Appeal are themselves patently insufficient. However, when the additional evidence is considered, as a part of the record as a whole (see Jackson v. Virginia, supra, 443 U.S. at 319), the untenability of the California appellate court's position is all the more obvious.

Footnote 16: This error requires invalidation of both the murder and attempted murder convictions. The jury instructions (CT 313-23) and the argument of the prosecutor (RT 1517-18; 1529-30; 1545-46) informed the jury that petitioner’s claim of self-defense as to both convictions was defeated by the prosecution’s theory that a felony (i.e., a burglary) was committed which precluded petitioner from using self-defense to resist attempts to arrest him and his brother. Thus, petitioner’s defense as to both the murder and attempted murder was undermined by improperly allowing the jury to find that a burglary had been committed.

U.S. Court of Appeals Docket Number: 00-00000
Lower Court Docket Number: CV-00-00000-LKK

JOHN DOE,

        Petitioner-Appellant,

v.

IVALEE HENRY, In Her Capacity as Warden of
and the CALIFORNIA DEPARTMENT
OF CORRECTIONS.

        Respondent-Appellee.

__________________________________________

APPEAL FROM THE JUDGMENT OF THE
U.S. DISTRICT COURT, EASTERN DISTRICT
STATE OF CALIFORNIA

HONORABLE LAWRENCE K. KARLTON,
CHIEF JUDGE EMERITUS

APPELLANT’S REPLY BRIEF

THOMAS LUNDY
Attorney at Law
CALIFORNIA STATE BAR #: 57656
2500 Vallejo Street, Suite 200
Santa Rosa, CA 95405
(707) 524-8112

Attorney for Appellant
JOHN DOE

    Respondent does not dispute this authority. Rather respondent contends that the necessary intent was proven by (1) petitioner’s possession of a knife and (2) the jury’s rejection of petitioner’s testimony.

    Preliminarily petitioner notes that respondent mischaracterized the burden of proof and standard of review. (RB 21.) Petitioner’s burden of proof on habeas did not relieve the prosecution of its burden to present substantial evidence at trial. Jackson v. Virginia, 443 U.S. 307(1979). Petitioner has no obligation in this proceeding to affirmatively prove the existence of an intent to temporarily use the vehicle. It was the state’s burden to prove an intent to permanently deprive. In re Winship, 397 U.S. 358 (1970). If on habeas it is shown that the evidence was in a state of equipoise on this issue in state court, then this Court should rule that the prosecution failed to meet its burden. Jackson v. Virginia, supra; Mikes v. Borg, 947 Fed.2d 353, 356 (9th Cir. 1991).

    Respondent contends that petitioner’s possession of the knife could have allowed the jury to "reasonably conclude that appellant acted as a lookout for his brother and had the knife so that he could use force to fend off anyone who interfered with the taking of the vehicle." (RB 20.)

    However, respondent fails to recognize that the essential issue here is not whether the entry was unlawful but whether it was done for the purpose of only temporarily using the vehicle or to permanently deprive the owner of the property.

    As to this issue the knife was not substantially probative. It was a large kitchen knife which was neither a sophisticated weapon nor an auto burglary tool. Hence, the knife was actually more indicative of amateurism than sophistication. At most it indicated the existence of criminal intent. Yet, as already discussed (AOB 14-16), the existence of criminal intent is not the issue. Rather, the question is whether that criminal intent included an intent to permanently deprive rather than to temporarily use the vehicle. On this issue, the possession of the knife did not provide sufficient evidence one way or the other. [Footnote 17]

    Petitioner contended that disbelief of the defendant’s testimony cannot alone provide constitutionally sufficient evidence of a necessary element of the charge unless the testimony is inherently implausible or improbable. (AOB 24-30.) Respondent asserts that (1) inherent implausibility is not required under Wright v. West, 505 U.S. 277 (1992) (hereinafter, "West") (RB 20-21) and (2) petitioner’s testimony was inherently implausible. (RB 21, fn. 10.) Both contentions are wrong.

    "The case against West was strong. Two to four weeks after the Cardova home had been burglarized, over 15 of the items stolen were recovered from West's home. On direct examination at trial, West said nothing more than that he frequently bought and sold items at different flea markets. He failed to offer specific information about how he had come to acquire any of the stolen items, and he did not even mention Ronnie Elkins by name. When pressed on cross-examination about the details of his purchases, West contradicted himself repeatedly about where he supposedly had bought the stolen goods, and he gave vague, seemingly evasive answers to various other questions. [Citation.] He said further that he could not remember how he had acquired such major household items as a television set and a coffee table, and he failed to offer any explanation whatsoever about how he had acquired Cardova's record player, among other things. Moreover, he testified that he had acquired Cardova's second television set from a seller other than Elkins (who remained unidentified) in an entirely unrelated (but roughly contemporaneous) transaction. Finally, he failed to produce any other supporting evidence, such as testimony from Elkins, whom he claimed to have known for years and done business with on a regular basis." (Wright v. West, supra, 505 U.S. at 595-96.) (See AOB 27, fn. 18.)

    The fact that a witness’s testimony is not "the most lucid or even believable" does not render the testimony "inherently implausible." United States v. Rojas, 554 Fed.2d 938, 943 (9th Cir. 1977). Rather to qualify as being inherently implausible or improbable the evidence must be "contrary to the laws of nature or so inconsistent or improbable on its face that no reasonable fact finder could accept it." U.S. v. Ramos-Rascon, 8 Fed.3d 704, 709 (9th Cir 1993); see also United States v. Saunders, 973 Fed.2d 1354, 1359 (7th Cir. 1992).

    Certainly this described the testimony of the defendant in West v Wright. (See p. 5, above.) And, this description is also consistent with the facts of the cases in which this Court has determined that the defendant’s testimony was inherently improbable or implausible. (See U.S. v. Martinez, 514 Fed.2d 334 (9th Cir. 1975); U.S. v. Stauffer, 922 Fed.2d 508 (9th Cir. 1990); U.S. v. Ledesma, 499 Fed.2d 36 (9th Cir. 1974). In each of these cases the defendant’s story was so obviously incredible that no reasonable fact finder could have accepted it:

U.S. v. Martinez, supra, 514 Fed. 2d at 341:

"Here Martinez’s story about driving around for four and one-half hours was nothing if not implausible, and in addition the jury had other reasons to doubt his credibility: he lied about his familiarity with the appearance of cocaine, and testified that he arrived at the border at three or four o’clock when it was getting dark, a statement that is not only self-contradictory, but was contradicted by every customs officer that testified. Martinez admitted that the four occupants were together in Nogales at all times during their visit except for the one to one and one-half hours when he and Sidle were left in the bar by the two women, who "went for a ride." His claim that he had no knowledge of the cocaine thus depends on the assumption that during that one and one-half hours, the two women, who did not speak Spanish and did not know their way around the streets of Nogales, went out and obtained the contraband."

U.S. v. Stauffer, supra, 922 Fed.2d at 515:

"In his own testimony, Stauffer admitted to knowing that the envelopes given to the his brother contained cocaine. Stauffer's coordinated actions (i.e., meeting his brother, driving from Santa Cruz to Santa Rosa, and meeting Wallstrum) are circumstantial evidence suggesting that he was acting to further the conspiracy. Also, there was evidence that Stauffer delivered currency to Wallstrum in payment for the cocaine previously "fronted" by Wallstrum in the automobile. In addition, the jury could have concluded that Stauffer’s threats to retrieve the money Fiori gave Mr. Leonard in Nevada were connected with the conspiracy. The record shows that when Stauffer attempted to collect this debt, Stauffer knew that Wallstrum’s primary source of income was drug trafficking and that all or part of the money he was collecting belonged to Wallstrum. Under these circumstances, viewing the evidence in favor of the government, the evidence appears to be sufficient to support the jury's conviction of Stauffer on the drug conspiracy count. Further, the implausibility of defendant’s testimony that he was uninvolved in the drug transaction between his brother and Wall strum and that he was uninvolved in extortion-type activities supports the jury’s verdict. Stauffer’s implausible testimony provides a basis for the jury to conclude that the opposite of his testimony is true."

U.S. v. Ledesma, supra, 499 Fed.2d at 43:

"Here, Ledesma and Quiroz-Santi, at least one of whom indicated at one point that he was unemployed, said that they flew out from New York to Los Angeles for a three-day holiday vacation because Quiroz-Santi had had a fight with his wife. They said that soon after arriving they met a stranger in a bar, and that for $150 and the stranger’s promise of assistance in finding a rent-controlled apartment back in New York they spent much of the remainder of their vacation attempting to locate the trunk and mail it back east. Taxis were rented at considerable expense to transport themselves and the trunk back and forth across town. The name of the mystery man whom they were supposedly assisting was changed from Coco to Benevadas during the trial in order to make it conform to evidence revealed by the prosecution at trial. When Ledesma arrived at Pena’s apartment to claim the trunk, he made no mention of this stranger; rather, he said that he was planning to use the trunk to send clothes back to New York. In fact, he shipped the trunk to himself, and made no effort to locate Coco-Benevadas. When Ledesma and Quiroz-Santi elected to testify on their own behalf, they assumed the risk that the jury not only would disbelieve their story but also might wonder, quite properly, why their explanation of their conduct was so improbable."

    Respondent seizes upon a few alleged tangential inconsistencies in petitioner’s testimony on cross-examination to assert that his testimony was inherently implausible. However, a fair review of the record demonstrates that petitioner’s testimony was far more plausible than the defendant’s stories in West, Martinez, Stauffer, and Ledesma.

    First, it should be noted that some inconsistencies in testimony on cross-examination are to be expected, especially when an 18-year-old defendant is being cross-examined by a professional litigator. (See U.S. v. Rojas, supra, 554 Fed.2d at 943.)

    Second, the alleged inconsistencies in the present case were not extensive or pronounced. They did not render petitioner’s testimony "so inconsistent or improbable on its face that no reasonable fact finder would accept it." U.S. v. Ramos-Rascon, supra, 8 Fed.3d at 709.

    As to petitioner’s explanation for having the knife, respondent erroneously asserts that petitioner "claimed that he did not even know the knife was in his jacket." (RB 18.) [Footnote 19] To the contrary, petitioner testified that he knew that he had the knife. (SER 60-61; RT 1236:28-1237:1.) Nor was his explanation for having the knife inherently improbable. He testified that he noticed the knife in his jacket pocket after he put it on and he didn’t take the knife out "[f]or protection for one" (SER 56) and because he had no place to put it. (SER 60-61.) Neither of these explanations were inherently implausible.

    As to the alleged inconsistency between petitioner’s stated intent to take the light rail and walking in the opposite direction, petitioner testified that he didn’t know which way he was going. (SER 63; RT 1239.) This testimony is not inherently implausible given the fact that (1) petitioner was not familiar with the area (SER 63; RT 1239) , it was dark (SER 63; RT 1239) and petitioner was intoxicated (SER 10, 16, 65; RT 1186, 1192, 1241.)

    Nor is there anything inherently implausible about petitioner’s denial of knowing that his brother returned to the apartment to obtain a screwdriver or coat hanger. There is no evidence that Ronnie ever communicated this intent to petitioner. (See SER 12; RT 1188.)

    Finally, there is a perfectly plausible explanation for any alleged inconsistencies in petitioner’s testimony regarding the altercation. (RB 18-19.) Petitioner’s original perception of the events and his subsequent recollection could both have been affected by his intoxication and/or the wounds he sustained from being hit in the head with a baseball bat. (RT 894, 897-99, see also SER 34-35; RT 1210-11.)

    Moreover, respondent loses sight of the essential fact that petitioner consistently maintained that his brother intended to take the car to drive home. (AOB 27-28; SER 11-14, 66, 77, 85.) None of the alleged inconsistencies relied upon by respondent undermined that story. Even if the jury discredited the testimony regarding taking the light rail and the possession of the knife, this did not make it inherently implausible that the intent was to take the car for the purpose of driving home. At most these statements were inconsistent with petitioner’s testimony that he did not initially agree with his brother’s idea of "taking a vehicle to ride home in." (SER 11-14, 66, 77, 85.) The fact remains that there was nothing inconsistent or contradictory about petitioner’s testimony that the intent was to use the car to drive home. Indeed, throughout his entire cross-examination petitioner never varied from this testimony and the prosecutor never challenged it. (SER 11-14, 66, 77, 85.)

    In sum, respondent has failed to show that petitioner’s story was "so inconsistent or improbable that no reasonable fact finder could accept it." Hence, disbelief of petitioner’s testimony should not be used as affirmative evidence to fill an evidentiary gap in the prosecution’s evidence. (See U.S. v. Price, 623 Fed.2d 587, 591 (9th Cir. 1980); see also Nishikawa v. Dulles, 356 U.S. 129, 137 (1958) ["disbelief of petitioner's story ... [cannot] fill the evidentiary gap in the Government's case."]; Moore v. Chesapeake & O. R. Co., 340 U.S. 573, 576 (1951) [disbelief of a witness will "not supply a want of proof."].)

V

    For the foregoing reasons as well as those set forth in Appellant’s Opening Brief, the petition for writ of habeas corpus should be granted and petitioner’s conviction should be invalidated.

Dated: May ____, 1998

Footnote 17: The two cases relied upon by the district court, People v. Poindexter, 255 Cal.App.2d 566 (1967) and People v. Butler, 65 Cal.2d 569, 573 (1967) (ER 170) did not involve the question in the present case. First, those cases involved the taking of money not an automobile. (See AOB 14-16.) Moreover, Poindexter and Butler involved a claim of right defense which goes to the lawfulness of the taking. That is, if there is a bona fide claim of right, a taking, even with the intent to permanently deprive, is not unlawful. In that context, Poindexter held that the use of force to take money defeated the claim of right because it was probative of felonious (i.e., unlawful) intent.

    In the present case, by contrast, there is no claim that the vehicle entry was lawful. It is conceded that it was unlawful

    The only question is the intended use. In this context petitioner’s possession of the knife does not fill the evidentiary gap. The knife, a bulky kitchen knife, was not itself a burglary tool or otherwise more indicative of criminal sophistication and intent to steal than an intent to temporarily use the vehicle.

    Hence, under the authorities already discussed (AOB 14-16), the evidence of an unlawful entry and attempt to take the vehicle, without more, was insufficient to prove the necessary intent. People v. Barrick, 33 Cal.3d 115 (1982); Gustine v. State, 97 So. 207 (1923); People v. Neal, 40 Cal.App.2d 115 (1940).

Footnote 18: Moreover, West had a prior conviction upon which the Supreme court relied as a further basis for allowing disbelief of the defendant’s testimony to be considered as affirmative evidence.

Footnote 19: Respondent makes this assertion without citation to the record.