Brian Parker v. Larry Small, et al
FILED PER CURIAM OPINION (J. CLIFFORD WALLACE, SIDNEY R. THOMAS and WILLIAM H. ALBRITTON, III) (Judge Thomas concurring) AFFIRMED. FILED AND ENTERED JUDGMENT. 
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN LEE PARKER,
LARRY SMALL, Warden; EDMUND G.
BROWN, JR., Attorney General of
the State of California,
Appeal from the United States District Court
for the Northern District of California
William H. Alsup, District Judge, Presiding
Argued and Submitted
October 11, 2011—San Francisco, California
Filed December 27, 2011
Before: J. Clifford Wallace and Sidney R. Thomas,
Circuit Judges, and William H. Albritton, III,
Senior District Judge.*
Per Curiam Opinion;
Concurrence by Judge Thomas
*The Honorable William H. Albritton, III, Senior District Judge for the
U.S. District Court for Middle Alabama, sitting by designation.
PARKER v. SMALL
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Bradley S. Sandler, Law Office of Bradley S. Sandler, Beverly Hills, California for the petitioner-appellant.
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PARKER v. SMALL
David M. Baskind, Deputy Attorney General, San Francisco,
California for the respondent-appellee.
The right of an accused to have his case heard before a jury
of his peers is a hallmark of our criminal justice system. The
jury’s verdict is of paramount importance in concluding the
accused’s case. Accordingly, the Supreme Court has permitted trial judges to give extra instructions to deadlocked juries
in the hope of encouraging, but not coercing, a jury verdict.
See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L.
Ed. 528 (1896); Lowenfield v. Phelps, 484 U.S. 231, 108 S.
Ct. 546, 98 L. Ed. 2d 568 (1988); Early v. Packer, 537 U.S.
3, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) (per curiam). This
case reaches us on a Certificate of Appealability granted by
the United States District Court for the Northern District of
California on the issue of whether the California Court of
Appeal acted contrary to clearly established federal law as
determined by the Supreme Court of the United States when
it held that the supplemental jury charge given at petitioner’s
trial was not coercive.
The petitioner, Brian Lee Parker, was convicted in the
Superior Court of San Mateo County, California, of murder
and other aggravating enhancements. Parker received a sentence of life without parole for the murder conviction and a
sentence of 37 years to run consecutive to the life sentence for
the enhancements. Parker appealed his conviction to the California Court of Appeal on the ground that the trial judge’s
supplemental instructions to the deadlocked jury were coercive. The Court of Appeal rejected this argument and affirmed
the trial judge, and the California Supreme Court denied
review. Parker then filed a habeas petition in the United States
PARKER v. SMALL
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District Court for the Northern District of California pursuant
to 28 U.S.C. § 2254.
The district court denied the writ of habeas corpus. It did,
however, grant a certificate of appealability on Parker’s claim
that the trial judge’s supplemental jury charge was coercive.
We agree with the district court, and we affirm the denial of
the writ of habeas corpus.
This decision requires us to reiterate this Court’s role under
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) habeas framework, 28 U.S.C. § 2254(d). We sit
here not as a supervisor of state courts, but as enforcer of the
federal AEDPA’s reasonableness standard. Accordingly, we
hold, not that we approve of the instruction given by the California trial court, or even necessarily that we would have
made the same decision as the California Court of Appeal, if
sitting in its place, but that the California Court of Appeal’s
decision meets the federal review standard set forth by the
At the close of Parker’s six weeks trial, the jury was
instructed on the law and on its role, and began deliberating.
The following rendition of the jury’s deliberation is drawn
from the California Court of Appeal’s decision:
On the third day of deliberations, the jury sent a note
to the court stating, “We can’t come to a decision.”
The court inquired as to whether the jury had agreed
to any of the counts, to which the jury responded,
“no.” The court returned a note to the jury which
read, “Given the complexity and length of this trialI believe that you should continue your deliberations
to see if progress can be made in reaching a decision.” Later that day, the jury sent the court another
note, which read, “Regretfully, we all agree that we
PARKER v. SMALL
will not be able to come to a unanimous decision.”
The court responded, “It does not appear that you
have had time to fully and frankly consider the evidence with open minds and fully and frankly interact
with each other to try and reach verdicts. [¶ ] This is
the process in which you are required by law to
engage. If there is something further that the court
can do to assist you, please advise me. Otherwise,
please continue your deliberations.” Still later the
same day, the jury requested and received further
instructions on the definition of “reasonable doubt.”
Then the jury sent another note to the court indicating that it was still deadlocked. The court recessed
for the evening and asked the jury to reflect on the
case that evening and to return the following morning. The jury resumed deliberations the following
day, but again sent the court a note indicating that it
remained deadlocked. The note explained, “We have
one juror who says that because he believes all the
prosecution witnesses lied, he cannot find the defendant guilty-ever. He is unwilling to examine other
evidence. He is wed to the statement the prosecuting
attorney made in closing, ‘If you believe the prosecution witnesses, you must find the defendant
guilty.’ He is unable, even though we have asked
many times, to explain to us how the evidence leads
to a not guilty verdict. We are deadlocked.”
In response to this note, the court instructed the jury
verbatim from an instruction upheld in People v.
Moore (2002) 96 Cal.App.4th 1105, 1121:
“’What I am going to do right now, ladies and gentlemen, is I have further instructions and directions
to give you. It has been my experience on more than
one occasion that a jury which initially reported it
was unable to reach a verdict was ultimately able to
arrive at verdicts on one or more of the counts before
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PARKER v. SMALL
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it. To assist you in your further deliberations, I’m
going to further instruct you as follows:
‘Your goal as jurors should be to reach a fair and
impartial verdict if you are able to do so based solely
on the evidence presented and without regard for the
consequences of your verdict regardless of how long
it takes to do so.
‘It is your duty as jurors to carefully consider, weigh
and evaluate all of the evidence presented at the trial,
to discuss your views regarding the evidence, and to
listen to and consider the views of your fellow
‘In the course of your further deliberations, you
should not hesitate to re-examine your own views or
to request your fellow jurors to re-examine theirs.
You should not hesitate to change a view you once
held if you are convinced it is wrong or to suggest
other jurors change their views if you are convinced
they are wrong.
‘Fair and effective jury deliberations require a frank
and forthright exchange of views.
‘As I previously instructed you, each of you must
decide the case for yourself, and you should do so
only after a full and complete consideration of all of
the evidence with your fellow jurors. It is your duty
as jurors to deliberate with the goal of arriving at a
verdict on the charge if you can do so without violence to your individual judgment.
‘Both the People and the defendant are entitled to the
individual judgment of each juror.
‘As I previously instructed you, you have the absolute discretion to conduct your deliberations in any
PARKER v. SMALL
way you deem appropriate. May I suggest that since
you have not been able to arrive at a verdict using
the methods that you have chosen, that you consider
to change the methods you have been following, at
least temporarily and try new methods.
‘For example, you may wish to consider having different jurors lead the discussions for a period of
time, or you may wish to experiment with reverse
role playing by having those on one side of an issue
present and argue the other side’s position and vice
versa. This might enable you to better understand the
‘By suggesting you should consider changes in your
methods of deliberations, I want to stress I am not
dictating or instructing you as to how to conduct
your deliberations. I merely find you may find it productive to do whatever is necessary to ensure each
juror has a full and fair opportunity to express his or
her views and consider and understand the views of
the other jurors.
‘I also suggest you reread CALJIC instruction 1.00
on page 1 and 1-A, CALJIC instruction 17.40 on
page 40, and CALJIC instruction 17.41 on page 41.
These instructions pertain to your duties as jurors
and make recommendations on how you should
‘The integrity of a trial requires that jurors at all
times during their deliberations conduct themselves
as required by the instructions. CALJIC instruction
1.00 defines the duties of a juror.
‘The decision the jury renders must be based on the
fact[s] and the law. You must determine what facts
have been proved from the evidence received in the
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trial and not from any other source. A fact is something proved by the evidence or by stipulation.
‘Second, you must apply the law I state to you to the
facts as you determine them and in this way, arrive
at your verdict.
‘You must accept and follow the law as I state it to
you regardless of whether you agree with the law. If
anything concerning the law said by the attorneys in
their arguments or at any other time during the trial
conflict[s] with my instructions on the law, you must
follow my instructions.
‘CALJIC 17.40 defines the jury’s duty to deliberate.
The decisions you make in this case must be based
on the evidence received in the trial and the instructions given by the Court. These are the matters this
instruction requires you to discuss for the purpose of
reaching a verdict.
‘CALJIC 17.41 is an instruction which recommends
how jurors should approach their task.
‘You should keep in mind the recommendations this
instruction suggests when considering the additional
instructions, comments and suggestions I have made
in the instructions now presented to you. I hope my
comments and suggestions may have some assistance to you.
‘You’re ordered to continue your deliberations at
this time. If you have other questions, concerns,
requests or any communications you desire to report
to me, please put those in writing on the form my
bailiff has provided you with. Have them signed and
dated by your foreperson and then please notify the
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Later that day the jury requested a copy of this
instruction and the next morning it reached a verdict.
The jury also sent a note to the trial judge which
read, “Thank you for having us continue to deliberate.”
People v. Parker, 2008 WL 1952341, *5-7 (Cal. Ct. App.
May 06, 2008).
Standard of Review
We review the district court’s denial of Parker’s habeas
petition de novo. Yee v. Duncan, 463 F.3d 893, 897 (9th Cir.
2006). Parker’s claim was adjudicated on the merits by the
California Court of Appeal. Therefore, under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), we
may not grant his application “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 Supreme Court of the
United States; or (2) resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d). “Clearly established federal law” means “the governing legal principle or principles set forth by the Supreme
Court at the time the state court renders its decision. Lockyer
v. Andrade, 538 U.S. 63, 71-72, 123 S. Ct. 1166, 155 L. Ed.
2d 144 (2003). In other words, our inquiry is whether the California Court of Appeal reasonably applied the governing
legal principles set forth by the Supreme Court when it determined that the supplemental instruction was not coercive.
The California Court of Appeal’s Decision
 Clearly established federal law provides that “[a]ny
criminal defendant . . . being tried by a jury is entitled to the
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uncoerced verdict of that body.” Lowenfield v. Phelps, 484
U.S. 231, 241 (1988). A supplemental jury charge to encourage a deadlocked jury to try to reach a verdict is not coercive
per se. Allen v. United States, 164 U.S. 492 (1896) (approving
the “Allen charge”); Lowenfield, supra, 484 U.S. at 237 (“The
continuing validity of this Court’s observations in Allen are
beyond dispute . . .”). However, when faced with a claim of
jury coercion, a reviewing court must “consider the supplemental charge given by the trial court ‘in its context and under
all the circumstances.’ ” Lowenfield, supra, 484 U.S. at 237
(quoting Jenkins v. United States, 380 U.S. 445, 446 (1965)
In Lowenfield, the trial judge polled the individual jurors to
learn what each juror thought about his or her ability to reach
a sentencing recommendation in a capital case if given more
time to deliberate. 484 U.S. at 234-35, 108 S. Ct. 546. Only
one juror felt that further deliberation was unnecessary. After
learning that fact, the judge reminded the jury that in the
absence of a unanimous jury recommendation, the court
would impose a sentence of “Life Imprisonment without benefit of Probation, Parole, or Suspension of Sentence.” Id., 108
S. Ct. 546. Thirty minutes later, the jury returned with a verdict sentencing the defendant to death. Id., 108 S. Ct. 546.
 In upholding the denial of the habeas writ, the Supreme
Court found that the Lowenfield instruction was less coercive
than the Allen instruction because the judge did not specifically urge the minority jurors to consider the majority’s view
or the reasonableness of their own view during the supplemental charge. Id. at 237-38, 108 S. Ct. 546. The Supreme
Court was similarly unpersuaded by the fact that the trial
judge knew the identity of the single juror who disfavored
continued deliberation because the trial judge did not know
how that individual felt about the merits of the case—which
the Court determined to be “clearly separate” inquiries. Id. at
240, 108 S. Ct. 546. While the Court noted that a short time
lapse between the presentation of supplemental charges and
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the jury’s return with a verdict suggests coercion, that fact is
just one part of the totality of the circumstances analysis the
Supreme Court requires for determining the presence of jury
coercion. Id., 108 S. Ct. 546. Ultimately, the Lowenfield Court
found that the supplemental charge, even in the context of the
judge’s knowledge about each juror’s desire to continue deliberating and the short time lapse between instruction and verdict, was not coercive. Adhering to the Lowenfield Court’s
guidance, we ask (1) if the California Court of Appeal looked
at the totality of the circumstances in determining whether the
instruction given at Parker’s trial was coercive and (2) if its
determination that it was not was objectively reasonable.
 It is clear from the record that the California Court of
Appeal considered the Moore instruction and its potentially
coercive effect in context and under all the circumstances.
The California Court of Appeal began by finding that the
Moore instruction had been previously upheld and endorsed
in California. Then the Court considered a line of this Circuit’s precedent1 for determining whether the trial judge’s
knowledge of a single holdout made the Moore instruction
coercive. After looking at this Circuit’s precedent, the instruction given at trial, and the circumstances surrounding the presentation of the instruction, the California Court of Appeal
concluded that the supplemental charge did not coerce the
 As long as the California Court of Appeal reviewed all
the facts, and considered the supplemental charge in its context and under all the circumstances in holding that it was not
coercive, then, in the absence of Supreme Court authority to
the contrary, this Court must give deference to the California
Court of Appeal’s judgment. See Woodford v. Visciotti, 537
Although the California Court of Appeal did not cite any Supreme
Court authority in its decision, we ask only whether it reasonably applied
the principles contained in relevant Supreme Court precedent. See Early
v. Packer, supra, 537 U.S. at 8, 123 S. Ct. 362.
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U.S. 19, 24, 123 S. Ct. 357, 154 L. Ed. 2d 279 (2002) (noting
that the 28 U.S.C. § 2254(d) is a “highly deferential standard
for evaluating state-court rulings, which demands that statecourt decisions be given the benefit of the doubt”) (citations
and internal quotations omitted) (per curiam). We offer no
opinion as to whether we would have reached the same result
had we been reviewing this case directly. We hold only that
the California Court of Appeal’s decision is not contrary to,
and does not involve an unreasonable application of, clearly
established federal law as determined by the Supreme Court
of the United States.
Smith v. Curry Distinguished
We also find it appropriate to distinguish the present case
from Smith v. Curry, 580 F.3d 1071(9th Cir. 2009), cert.
denied, ___ U.S. ___, 131 S. Ct. 10, 178 L. Ed. 2d 403
(2010), a case decided by this Circuit with facts somewhat
similar to the present case. In Smith, a divided panel affirmed
the district court’s grant of habeas relief, holding that a California Court of Appeal decision upholding a trial judge’s
actions was an objectively unreasonable application of governing legal principles set forth in Lowenfield. Smith is clearly
distinguishable from this case.
In the Smith case, as here, the trial judge knew both the
division of the jurors and the reason for a single holdout
juror’s reluctance to convict. 580 F.3d at 1082. The Smith trial
judge, however, went beyond an Allen charge to revisit select
pieces of evidence from the trial, and to explain that evidence
in a way highly favorable to the prosecution. Id. The judge
did this with knowledge that the evidence he was highlighting
directly responded to the holdout juror’s concerns. In fact, he
replayed for the jury certain interrogations that would support
a conviction, and, without being asked to do so, sent transcripts of those interrogations back to the jury room. Id. The
panel majority said this recasting of evidence by the judge
essentially “substituted the judge for the jury as to the manner
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and substance of deliberations and thereby denied [the defendant] his constitutional right to the uncoerced verdict of the
jury.” Id. at 1084. Lastly, it took the jury less than one hour
to return with a guilty verdict after being given these supplemental instructions by the trial judge. Id. at 1083-84.
Given all of these facts, Smith found that the California
Court of Appeal’s decision that the judge’s presentation of the
evidence was “scrupulously fair,” was objectively unreasonable, and accordingly, so too was the Court of Appeal’s decision regarding the lack of jury coercion. Id. at 1084. Smith
concluded that “[a]bsent these factors, we might reach a different conclusion. With them, the case represents the most
coercive instruction of any in the coercion cases we have
The judge in Parker’s trial did not go nearly as far to
encourage the jury to reach a verdict as the trial judge did in
Smith. Several of the factors that led this court to grant the
writ in Smith are absent from this case. For example, while it
is true that Parker’s trial judge knew the jurors were split, that
one juror was in favor of acquittal, and that that one juror was
concerned about the believability of the prosecution’s witnesses, the judge did not, as did the trial judge in Smith,
directly address that holdout juror’s concerns during the supplemental instruction or attempt to recast the evidence in a
light more favorable to the prosecution. Whether or not the
California Court of Appeal was correct to conclude that there
was no coercion here, its decision did not involve an objectively unreasonable application of the governing principles set
forth in Lowenfield.
The facial validity of the Moore instruction is not at issue.
Parker contends that the California Court of Appeal’s decision
was an objectively unreasonable application of clearly established federal law as determined by the Supreme Court. For
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the aforementioned reasons, we hold that it was not. Accordingly, the district court’s denial of Parker’s petition for habeas
THOMAS, Circuit Judge, concurring:
Under the circumstances presented by this case, I join my
colleagues in affirming the district court’s denial of Parker’s
petition for habeas corpus. I write separately only to emphasize that the supplemental jury instruction issued in this case
could have an unconstitutionally coercive effect in other contexts, even under the deferential standard of review imposed
by AEDPA. Federal habeas review of the Moore instruction
in future cases, as in this one, will rest on evaluation of the
instruction “in its context and under all the circumstances.”
Lowenfield v. Phelps, 484 U.S. 231, 237 (1988) (quoting Jenkins v. United States, 380 U.S. 445, 446 (1965) (per curium))
(internal quotation marks omitted).
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