David M Jassy v. Kevin Chappell

Filing 31

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge James V. Selna. IT IS ORDERED that Judgment be entered denying and dismissing the Petitioner with prejudice. 29 *See Order for details.* (es)

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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DAVID M. JASSY,
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Petitioner,
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v.
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KEVIN CHAPPELL, Warden,
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Respondent.

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NO.

CV 13-8611-JVS (AS)

ORDER ACCEPTING FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS
OF UNITED STATES MAGISTRATE JUDGE

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Pursuant to 28 U.S.C. section 636, the Court has reviewed the
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Petition, all of the records herein and the attached Report and
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Recommendation of United States Magistrate Judge.

After having

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made a de novo determination of the portions of the Report and
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Recommendation to which Objections were directed, the Court concurs
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with and accepts the findings and conclusions of the Magistrate
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Judge. However, the Court addresses certain arguments raised in the
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Objections below.
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Petitioner contends that the Report and Recommendation failed

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to conduct an appropriate harmless error inquiry with regard to

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Petitioner’s instructional error claim, and misconstrued Ninth

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Circuit

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(Objections at 1—11).

precedent

in

relation

to

Petitioner’s

Batson

claim.

The Court does not agree.

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Petitioner claims that, with regard to his instructional error

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claim,

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analysis and “incorrectly viewed the harmless error inquiry as a

the

Report

and

Recommendation

erred

in

its

prejudice

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sufficiency of the evidence test.”

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cites to a recent Ninth Circuit case in which the court reiterated

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“that the relevant question is not simply whether we can be

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reasonably

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defendant] based on the valid theory

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reasonably certain that the jury did convict him based on the valid

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. . . theory.”

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at *4 (9th Cir. May 15, 2015).

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Petitioner was guilty of second degree murder based on an implied

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malice theory.

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jury made this finding pursuant to the appropriate implied malice

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test in People v. Phillips, 64 Cal. 2d 574, 587 (1966) (requiring

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that the “natural consequences of the act were dangerous to life”).

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However, Petitioner maintains that the trial court’s involuntary

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manslaughter

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battery were “crime[s] that posed a high risk of death of great

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bodily act [sic],” and that this error was not harmless because it

certain

that

the

jury

could

have

Petitioner

convicted

[the

. . . but whether we can be

Riley v. McDaniel, No. 11-99004, 2015 WL 2262549,
Here, the jury found that

As set forth in the Report and Recommendation, the

instruction

erroneously

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(Objections at 9.)

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stated

that

assault

and

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reduced the State’s burden to prove the objective component of the

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implied malice element of second degree murder.

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Instructional error claims are evaluated for harmlessness under

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the “Brecht” standard. See Brecht v. Abrahamson, 507 U.S. 619, 623

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(1993) (habeas relief available only where the trial-type error had

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a “substantial and injurious effect or influence in determining the

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jury’s verdict”).

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applies the “Brecht” standard, finding that the purported error did

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not have a “substantial and injurious effect or influence” in

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determining the jury’s verdict.

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instruction

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battery were crimes posing a high risk of death – the jury still

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would have found Petitioner guilty of second-degree murder.

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is because there was overwhelming evidence in the record that

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Petitioner’s forceful head-kick constituted an act committed with

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implied malice.

omitted

The Report and Recommendation appropriately

the

incorrect

That is – even if the jury
statement

that

assault

and

This

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Petitioner also contends that the Report and Recommendation

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ignores Supreme Court precedent and misconstrues Ninth Circuit

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precedent in relation to his Batson claim.

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Petitioner notes that when the trial court invited the prosecutor

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to respond to Petitioner’s Batson claim, the prosecutor made a

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statement indicating that the excusal of potential Hispanic jurors

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was irrelevant because the Petitioner is Black.

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that this was in direct contravention of Powers v. Ohio, 499 U.S.

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(Objections 6—11.)

Petitioner claims

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400 (1991), which held that a criminal defendant may object to

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race-based

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challenges whether or not the defendant and excluded jurors share

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the same race.

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Petitioner did not meet his burden of establishing a prima facie

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case of discrimination in Step One of Batson, it was not necessary

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for the Court to consider the prosecutor’s explanations which is an

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inquiry reserved for the second step of Batson.

exclusions

of

jurors

effected

through

peremptory

The Report and Recommendation found that because

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However, even if the Court were to consider the prosecutor's

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response to the trial judge's request for an explanation (i.e., her

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statement

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irrelevant

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circumstance" for Step One of Batson, Petitioner still has not met

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his burden of establishing a prima facie case of discrimination.

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Johnson v. California, 545 U.S. 161 (2005) (the defendant still has

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the burden of “producing evidence sufficient to permit the trial

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judge to draw an inference that discrimination has occurred.”).

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The prosecutor's response was merely a misstatement of the law, see

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Powers v. Ohio, 499 U.S. 400 (1991) (a defendant can raise a Batson

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claim even if his race differs from that of the excluded juror),

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and, by itself, cannot give rise to an inference of discriminatory

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purpose.

that

the

because

excusal
the

of

potential

Petitioner

is

Hispanic

Black)

as

a

jurors

is

"relevant

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Petitioner’s reliance on several Ninth Circuit cases cited in

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the Report and Recommendation as support for his position that the

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prosecutor’s statements were sufficient to show a prima facie case

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under Batson is similarly misplaced.

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relevant only to the extent it clarifies what constitutes clearly

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established law as determined by the United States Supreme Court.

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28 U.S.C. § 2254(d).

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involved other evidence, including statistical analyses of the jury

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pool, establishing a prima facie case.

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F.3d 1073, 1078—80 (finding inference of discrimination based on

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“bare record of statistical disparities of peremptory strikes”

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against prospective Hispanic jurors); Paulino v. Castro, 371 F.3d

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1083, 1091 (9th Cir. 2014) (determining an inference of bias was

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raised

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possible African-American jurors using five out of six possible

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peremptory

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Laboratories, 740 F.3d 471, 477—78 (9th Cir. 2014) (finding a prima

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facie case where the juror in question was the only self-identified

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gay member of the venire and the subject matter of the litigation

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presented an issue of consequence to the gay community).

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the cases cited by Petitioner, the trial court record here does not

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disclose the exact composition of the venire as a whole or of the

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individual prospective jurors, or contain any information that

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would permit Petitioner to demonstrate a statistical disparity or

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evidence raising an inference of discriminatory intent. The Report

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and Recommendation properly found that Petitioner had failed to

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meet his burden of producing sufficient evidence for the inference

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of discrimination required at step one of Batson.

where

the

Second, all of the cases cited by Petitioner

prosecutor

challenges);

removed

Smithkline

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First, circuit precedent is

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See Fernandez v. Roe, 286

eighty-three

Beecham

Corp.

percent

v.

of

Abbott

Unlike

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Petitioner also claims that because the “[c]onstitution forbids

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striking even a single juror for a discriminatory purpose[,]”

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Snyder v. Louisiana, 552 U.S. 472, 478 (2008), the state court's

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finding that there was no apparent race-neutral challenge to Juror

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M-5435 was enough for the showing of discrimination required at the

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first step of Batson.

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merit.

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for a discriminatory reason, the Court would have to engage in a

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comparative juror analysis to determine whether the prosecutor's

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reasons for striking that juror were indeed race-neutral. Boyd v.

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Newland, 467 F.3d 1139, 1145 (9th Cir. 2004) (“Comparative juror

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analysis refers . . . to an examination of a prosecutor’s questions

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to prospective jurors and the jurors’ responses, to see whether the

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prosecutor treated otherwise similar jurors differently because of

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their membership in a particular group.”). Although the California

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Court

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prosecutor's reasons for striking Juror M-5435, among other jurors,

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what matters is the prosecutor's real reasons, not just potential

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reasons. Paulino v. Castro, 371 F.3d 1083, 1090 (9th Cir. 2004);

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Miller-El v. Dretke, 545 U.S. 231, 252 (2005) (“A Batson challenge

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does not call for a mere exercise in thinking up any rational

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basis.”). Here, the prosecutor never gave her real reasons for

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striking the challenged juror but even if those reasons had been

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provided, the Court would still be unable to conduct a proper

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comparative juror analysis without knowing the race of the jury

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members who ultimately sat on the jury. Miller-El, 545 U.S. at 252-

The Court finds this claim to be without

In order to determine whether a juror was indeed stricken

of

Appeal

and

Petitioner

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both

speculate

about

the

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53 (finding prosecution’s reasons for striking a juror implausible

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based on a consideration of entire voir dire testimony, including

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the

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contrasting voir dire posed to black and nonblack panel members”).

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Accordingly, Petitioner has failed to meet his burden at Step One

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of the Batson inquiry.

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(“the ultimate burden of persuasion regarding racial motivation

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rests with, and never shifts from, the opponent of the strike.”)

prosecution’s

“shuffling

of

the

venire

panel”

and

“the

See Purkett v. Elem, 514 U.S. 765, 768

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Petitioner’s remaining objections are simply re-assertions of

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arguments raised in the Petition.

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in and rejected by the Report and Recommendation and do not cause

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the Court to reconsider its decision to accept the Magistrate

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Judge’s conclusions and recommendations.

These arguments were addressed

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IT IS ORDERED that Judgment be entered denying and dismissing

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the Petitioner with prejudice.

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IT IS FURTHER ORDERED that the Clerk serve copies of this

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Order, the Magistrate Judge’s Report and Recommendation and the

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Judgment herein on counsel for Petitioner and counsel for

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Respondent.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: June 4, 2015.

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___________________________________
JAMES V. SELNA
UNITED STATES DISTRICT JUDGE

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