Arvel M. Jackson v. Josie Gastelo

Filing 34

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Andre Birotte Jr. It is Ordered that: (1) Petitioner's application for a stay is denied as moot; and (2) Judgment shall be entered denying and dismissing the Petition with prejudice. (Attachments: # 1 Report and Recommendation) (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ARVEL M. JACKSON,

) NO. CV 16-7063-AB(E)
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Petitioner,
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v.
) REPORT AND RECOMMENDATION OF
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JOSIE GASTELO, Warden,
) UNITED STATES MAGISTRATE JUDGE
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Respondent.
)
______________________________)

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This Report and Recommendation is submitted to the Honorable

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André Birotte, Jr., United States District Judge, pursuant to 28

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U.S.C. section 636 and General Order 05-07 of the United States

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District Court for the Central District of California.

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PROCEEDINGS

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On September 20, 2016, Petitioner filed:

(1) a “Petition for

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Writ of Habeas Corpus By a Person in State Custody” (“Petition”),

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accompanied by a copy of Petitioner’s petition for review filed in the

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California Supreme Court (“attachment”); and (2) a “Motion for Stay of

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Abeyance Procedure.”

The Petition was unverified, and the section of

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the form Petition provided for a statement of grounds for relief was

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blank.

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claims of alleged instructional error and a claim challenging the

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sufficiency of the evidence to support Petitioner’s conviction.

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Petitioner sought a stay to exhaust four new, unexhausted claims

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(apparently claims of alleged ineffective assistance of trial and

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appellate counsel).

The California Supreme Court petition for review contained two

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On September 22, 2016, the Magistrate Judge issued a Minute Order

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directing Petitioner to file a verification of the Petition.

The

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Minute Order further stated that the Court would presume that, in the

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present federal Petition, Petitioner intended to allege the grounds

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for relief contained in the California Supreme Court petition for

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review, unless Petitioner advised the Court otherwise.

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On October 11, 2016, Petitioner filed a document titled “Notice

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of Verification of Habeas Petition[;] Motion for Grounds to Be Used in

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the Petition.”

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and attached a memorandum setting forth the claims of instructional

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error and evidentiary insufficiency contained in the California

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Supreme Court petition for review.

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erred in sending the Court the California Supreme Court petition for

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review “to be used as ground [sic] in his Petition,” but added that

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the Court should refer to the petition for review “if it may aid the

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Court in deciding [Petitioner’s] case.”

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///

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///

This document provided a verification of the Petition

Petitioner stated that he had

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On October 26, 2016, Respondent filed an opposition to

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Petitioner’s motion for a stay.

On January 19, 2017, the Court issued

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an “Order Denying Motion for Stay.”

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On February 14, 2017, Respondent filed an Answer, asserting,

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inter alia, that Grounds One and Two of the Petition are unexhausted

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because Petitioner did not present those grounds as federal claims to

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the California Supreme Court.

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On March 23, 2017, Petitioner filed an “Application for Stay

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Abeyance [sic] Due to Unexhausted Claims, etc.,” requesting a stay to

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permit Petitioner to exhaust Grounds One and Two of the Petition.

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March 24, 2017, Petitioner filed a Traverse addressing the merits of

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the Petition.

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Petitioner’s Application for Stay, etc.”

On

On April 12, 2017, Respondent filed an “Opposition to

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BACKGROUND

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A jury found Petitioner guilty of:

(1) battery causing serious

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bodily injury on Petitioner’s wife Mary Jones in violation of

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California Penal Code section 243(d), a lesser offense to mayhem;

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(2) possession of a firearm by a felon in violation of California

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Penal Code section 29800(a)(1); (3) misdemeanor spousal battery in

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violation of California Penal Code section 243(e)(1); and (4) assault

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with a firearm in violation of California Penal Code section 245(a)(2)

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(Reporter’s Transcript [“R.T.”] 1586-88; Clerk’s Transcript [“C.T.”]

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169, 172-75, 178-80).

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Petitioner personally used a firearm in the commission of the

The jury found true the allegations that

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aggravated battery and the assault within the meaning of California

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Penal Code section 12022.5(a) and personally inflicted great bodily

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injury upon Mary Jones under circumstances of domestic violence within

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the meaning of California Penal Code section 12202.7(e) (R.T. 1586-88;

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C.T. 169, 174).

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infliction of corporal injury to a spouse (R.T. 1586-87; C.T. 168,

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171).

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2139-41; C.T. 244).

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four months in state prison (R.T. 3028-30; C.T. 298-302).

The jury acquitted Petitioner of mayhem and

The court found true various prior conviction allegations (R.T.
Petitioner received a sentence of 29 years and

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The California Court of Appeal ordered an amendment to the

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abstract of judgment but otherwise affirmed (Respondent’s Lodgment 1;

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see People v. Jackson, 2015 WL 1951886 (Cal. App. Apr. 30, 2015)).

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The California Supreme Court denied Petitioner’s petition for review

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summarily (Respondent’s Lodgments 2, 3).

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SUMMARY OF TRIAL EVIDENCE

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The following summary is taken from the Court of Appeal’s

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decision in People v. Jackson, 2015 WL 1951886 (Cal. App. Apr. 30,

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2015).1

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In the months leading up to August 2012, defendant
suspected he was being stalked by “the Mexicans,” whom he

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The Court has reviewed the Reporter’s Transcript and
has confirmed that the Court of Appeal’s summary of the evidence
is accurate except as otherwise noted herein.
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believed meant to kill him.2

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in league with them.

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words, telling her, “Before I let them get me, you’ll go

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first.”

He suspected that his wife was

At first, he threatened his wife with

She felt threatened.

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The threats escalated.

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In early August 2012, defendant again accused his wife of

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aiding “the Mexicans,” again threatened to hurt her, and

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proceeded to shove her head into the sofa with his hand.

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Three weeks later, in late August, he told his wife “the

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Mexicans” were coming to attack him in the apartment they

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shared.

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gun and watched the window shades of his second-story

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bedroom window as his wife lay on the bed.

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shadow cross the window shade and heard noises, he fired a

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shot that penetrated the bed frame and box spring before

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dismembering two of his wife’s toes.

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her toes on that foot to gangrene.

After telling her, “They’re here,” he retrieved a

When he saw a

She later lost all of

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(Respondent’s Lodgment 1, p. 2; see People v. Jackson, 2015 WL

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1951886, at *1) (footnote renumbered).

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Defendant’s paranoia regarding “the Mexicans” was tied
to his regular use of illegal narcotics. The trial court
excluded any defense of voluntary intoxication, and defendant
does not challenge that ruling on appeal.
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PETITIONER’S CONTENTIONS

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Petitioner contends:

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1. The trial court allegedly erred by failing to instruct the

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jury that the defense of accident assertedly applied to the charge of

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assault with a firearm (Ground One);

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2.

The trial court allegedly erred by failing to give a mistake

of fact instruction (Ground Two); and

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3.

The evidence allegedly did not suffice to show that

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Petitioner possessed the requisite intent to support the convictions

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for battery and assault with a firearm (Ground Three).

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STANDARD OF REVIEW

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Under the “Antiterrorism and Effective Death Penalty Act of 1996”

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(“AEDPA”), a federal court may not grant an application for writ of

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habeas corpus on behalf of a person in state custody with respect to

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any claim that was adjudicated on the merits in state court

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proceedings unless the adjudication of the claim:

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decision that was contrary to, or involved an unreasonable application

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of, clearly established Federal law, as determined by the Supreme

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Court of the United States”; or (2) “resulted in a decision that was

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based on an unreasonable determination of the facts in light of the

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evidence presented in the State court proceeding.”

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2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v.
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(1) “resulted in a

28 U.S.C. §

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Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09

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(2000).

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“Clearly established Federal law” refers to the governing legal

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principle or principles set forth by the Supreme Court at the time the

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state court renders its decision on the merits.

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S. Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).

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A state court’s decision is “contrary to” clearly established Federal

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law if:

Greene v. Fisher, 132

(1) it applies a rule that contradicts governing Supreme

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Court law; or (2) it “confronts a set of facts . . . materially

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indistinguishable” from a decision of the Supreme Court but reaches a

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different result.

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omitted); Williams v. Taylor, 529 U.S. at 405-06.

See Early v. Packer, 537 U.S. at 8 (citation

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Under the “unreasonable application” prong of section 2254(d)(1),

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a federal court may grant habeas relief “based on the application of a

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governing legal principle to a set of facts different from those of

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the case in which the principle was announced.”

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538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537

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U.S. at 24-26 (state court decision “involves an unreasonable

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application” of clearly established federal law if it identifies the

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correct governing Supreme Court law but unreasonably applies the law

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to the facts).

Lockyer v. Andrade,

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“In order for a federal court to find a state court’s application

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of [Supreme Court] precedent ‘unreasonable,’ the state court’s

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decision must have been more than incorrect or erroneous.”

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Smith, 539 U.S. 510, 520 (2003) (citation omitted).
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Wiggins v.

“The state

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court’s application must have been ‘objectively unreasonable.’”

Id.

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at 520-21 (citation omitted); see also Waddington v. Sarausad, 555

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U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th

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Cir. 2004), cert. dism’d, 545 U.S. 1165 (2005).

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habeas court must determine what arguments or theories supported,

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. . . or could have supported, the state court’s decision; and then it

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must ask whether it is possible fairminded jurists could disagree that

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those arguments or theories are inconsistent with the holding in a

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prior decision of this Court.”

“Under § 2254(d), a

Harrington v. Richter, 562 U.S. 86,

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101 (2011).

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2254(d)(1).”

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Habeas relief may not issue unless “there is no possibility fairminded

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jurists could disagree that the state court’s decision conflicts with

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[the United States Supreme Court’s] precedents.”

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for obtaining habeas corpus from a federal court, a state prisoner

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must show that the state court’s ruling on the claim being presented

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in federal court was so lacking in justification that there was an

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error well understood and comprehended in existing law beyond any

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possibility for fairminded disagreement.”

This is “the only question that matters under §
Id. at 102 (citation and internal quotations omitted).

Id.

“As a condition

Id. at 103.

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In applying these standards, the Court looks to the last reasoned

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state court decision.

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(9th Cir. 2008).

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state court summarily denies a claim, “[a] habeas court must determine

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what arguments or theories . . . could have supported the state

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court’s decision; and then it must ask whether it is possible

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fairminded jurists could disagree that those arguments or theories are

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inconsistent with the holding in a prior decision of this Court.”

See Delgadillo v. Woodford, 527 F.3d 919, 925

Where no reasoned decision exists, as where the

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Cullen v. Pinholster, 563 U.S. 170, 188 (2011) (citation, quotations

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and brackets omitted).

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Additionally, federal habeas corpus relief may be granted “only

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on the ground that [Petitioner] is in custody in violation of the

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Constitution or laws or treaties of the United States.”

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2254(a).

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of whether the petition satisfies section 2254(a) prior to, or in lieu

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of, applying the standard of review set forth in section 2254(d).

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28 U.S.C. §

In conducting habeas review, a court may determine the issue

Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).

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DISCUSSION3

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I.

Petitioner Is Not Entitled to Federal Habeas Relief on His
Challenge to the Sufficiency of the Evidence.

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Petitioner contends the evidence did not suffice to support

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Petitioner’s convictions for battery causing serious bodily injury and

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aggravated assault, alleging that the evidence purportedly did not

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show that Petitioner intended to fire the gun at his wife (Traverse,

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p. 15).

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assertedly pointed the gun downward throughout the incident and never

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aimed the gun at his wife (id., p. 17).

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testimony that he supposedly did not intend to shoot his wife and

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allegedly had “no idea” the gun was pointing in her direction (id.).

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Petitioner also cites Mary Jones’ testimony that prior to the incident

Petitioner contends the evidence showed that Petitioner

Petitioner cites his own

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For clarity of discussion, the Court has reordered
Petitioner’s claims.
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she and Petitioner allegedly were not arguing and that Jones

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purportedly did not think Petitioner posed any threat to her (id.).

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Petitioner also refers to evidence that the bullet struck Jones on a

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downward trajectory (id.).

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sufficiency of the evidence claim on the merits (Respondent’s Lodgment

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1, pp. 6-7; see People v. Jackson, 2015 WL 1951886, at *3).

The Court of Appeal rejected Petitioner’s

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A.

Governing Legal Standards

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On habeas corpus, the Court’s inquiry into the sufficiency of

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evidence is limited.

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totally devoid of evidentiary support as to render [Petitioner’s]

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conviction unconstitutional under the Due Process Clause of the

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Fourteenth Amendment.”

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1975), cert. denied, 423 U.S. 1062 (1976) (citations and quotations

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omitted).

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determines that no “rational trier of fact could have found the

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essential elements of the crime beyond a reasonable doubt.”

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v. Virginia, 443 U.S. 307, 317 (1979).

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was “so unsupportable as to fall below the threshold of bare

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rationality.”

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(2012).

Evidence is sufficient unless the charge was “so

Fish v. Cardwell, 523 F.2d 976, 978 (9th Cir.

A conviction cannot be disturbed unless the Court

Jackson

A verdict must stand unless it

Coleman v. Johnson, 566 U.S. 650, 132 S. Ct. 2060, 2065

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Jackson v. Virginia establishes a two-step analysis for a

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challenge to the sufficiency of the evidence.

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Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc).

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reviewing court must consider the evidence in the light most favorable

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to the prosecution.”

United States v.
“First, a

Id. (citation omitted); see also McDaniel v.
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Brown, 558 U.S. 120, 133 (2010).4

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usurp the role of the trier of fact by considering how it would have

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resolved the conflicts, made the inferences, or considered the

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evidence at trial.”

United States v. Nevils, 598 F.3d at 1164

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(citation omitted).

“Rather, when faced with a record of historical

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facts that supports conflicting inferences a reviewing court must

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presume - even if it does not affirmatively appear in the record -

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that the trier of fact resolved any such conflicts in favor of the

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prosecution, and must defer to that resolution.”

At this step, a court “may not

Id. (citations and

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internal quotations omitted); see also Coleman v. Johnson, 132 S. Ct.

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at 2064 (“Jackson leaves [the trier of fact] broad discretion in

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deciding what inferences to draw from the evidence presented at trial,

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requiring only that [the trier of fact] draw reasonable inferences

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from basic facts to ultimate facts”) (citation and internal quotations

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omitted); Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (“it is the

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responsibility of the jury — not the court — to decide what

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conclusions should be drawn from evidence admitted at trial”).

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State need not rebut all reasonable interpretations of the evidence or

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“rule out every hypothesis except that of guilt beyond a reasonable

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doubt at the first step of Jackson [v. Virginia].”

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Nevils, 598 F.3d at 1164 (citation and internal quotations omitted).

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Circumstantial evidence and the inferences drawn therefrom can be

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sufficient to sustain a conviction.

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1114-15 (9th Cir. 2011).

The

United States v.

Ngo v. Giurbino, 651 F.3d 1112,

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The Court must conduct an independent review of the
record when a habeas petitioner challenges the sufficiency of the
evidence. See Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir.
1997). The Court has conducted the requisite independent review.
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At the second step, the court “must determine whether this

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evidence, so viewed, is adequate to allow any rational trier of fact

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to find the essential elements of the crime beyond a reasonable

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doubt.”

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internal quotations omitted; original emphasis).

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“may not ask itself whether it believes that the evidence at the trial

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established guilt beyond a reasonable doubt.”

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internal quotations omitted; original emphasis).

United States v. Nevils, 598 F.3d at 1164 (citation and
A reviewing court

Id. (citations and

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In applying these principles, a court looks to state law for the

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substantive elements of the criminal offense, but the minimum amount

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of evidence that the Constitution requires to prove the offense “is

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purely a matter of federal law.”

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2064.

Coleman v. Johnson, 132 S. Ct. at

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B.

Analysis

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In her interviews with police, Jones stated:

(1) Petitioner

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previously had threatened Jones and shoved her face into a sofa;

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(2) during this previous incident, Petitioner accused Jones of working

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with the Mexicans who supposedly were after Petitioner and Petitioner

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said “I’ll see you go first before they come after me”; (3) on the day

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of the shooting Petitioner said that the Mexicans were coming to get

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him, that Jones was working with and “fucking” the Mexicans and that

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the Mexicans were at the window; (4) Petitioner accused Jones of

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trying to get him killed; (5) Petitioner accused Jones of setting him

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up with the Mexicans and said “you’re trying to get killed”; (6) after

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Petitioner entered the bedroom with the gun, he began “clicking” the
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cylinder of the gun; (7) Jones’ foot was elevated on the wood part of

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the bed when Petitioner shot her; (8) after Petitioner shot Jones,

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Petitioner dropped the house phone in a hamper and left; and (9) Jones

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thought Petitioner had shot her intentionally (C.T. 84-86, 91-92, 95-

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96, 98-99, 101, 108-11).

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In recorded phone calls with Jones after the shooting, Petitioner

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told Jones:

(1) Jones should tell police that someone was showing off

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with the gun and it went off; (2) Jones should go to her mother’s

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home for at least a month; (3) Jones should not “show” because “if you

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don’t pop up they have to drop it”; (4) if Jones did not “show,”

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Petitioner would be “good to go”; (5) Jones should “plead the 5th”;

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(6) Petitioner hoped Jones was “smart enough to disappear”; (7) Jones

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should tell the police that her statements to police were coerced

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and that she was on medication when she made the statements;

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(8) Petitioner had “Bubba” come to the apartment after the shooting

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because Petitioner “had to get that thing out of the freezer”;

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(9) Petitioner thought the gun was pointed at the window; and

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(10) Jones should tell the police she had lied earlier when she said

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Petitioner was “high” (C.T. 108-12, 120-23).

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At trial, Jones testified:

(1) when Jones returned home on the

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day of the incident, Jones did not expect to see Petitioner because

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he and she had argued and Petitioner was supposed to move out;

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(2) Petitioner had a gun and was smoking a pipe containing white

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rocks; (3) Petitioner said the Mexicans were after him and were at the

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window; (4) Jones did not see the position of the gun because she was

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watching television; (5) Petitioner said “[t]hey’re going to kill me
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but I’m going to give you what you want,” a statement which Jones

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considered a threat because she thought Petitioner would kill her

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before he killed the Mexicans;5 (6) Petitioner said, “before I let

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them get me you’ll go first”;6 (7) Petitioner said Jones was working

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with the Mexicans and setting Petitioner up; (8) following

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Petitioner’s departure after the shooting, Jones hopped over to

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retrieve the phone and called 911; (9) Jones knew that Petitioner was

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violating a restraining order by calling her after the incident;

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(10) after the incident, Petitioner told Jones to tell police that

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either Petitioner or “Bubba” shot Jones and she did not know which

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one; (11) Petitioner told Jones not to meet with the prosecution and

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not to talk any more to the detective; (12) Petitioner told Jones to

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tell the police the shooting was an accident; and (13) Petitioner told

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Jones the case would go away if she did not come to court (R.T. 642-

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43, 644-45, 647-49, 658-60, 663-64, 667-69, 682, 699-701, 703-05,

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736).

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Jones also testified that, when she turned around and saw

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Petitioner with the gun, she supposedly saw Petitioner holding the gun

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down, aimed at the floor (R.T. 718, 739).

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Petitioner fired the shot approximately fifteen minutes later, and

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also said that she did not see the gun at the time she was shot

However, Jones said

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Jones testified, however, that Petitioner made this
statement months before the incident, and that she could not
recall telling police about this statement because she supposedly
was drowsy and on medication when interviewed in the hospital
(R.T. 662, 680).

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6

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Jones later said Petitioner made this statement
earlier, on a different day (R.T. 682).
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because she was watching television (R.T. 718, 733, 740).

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When Petitioner testified, he contradicted much of Jones’ version

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of events.

However, Petitioner did state that:

(1) although

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Petitioner was smoking cocaine before the shooting, he “knew what was

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happening”; (2) Petitioner retrieved the gun from under the pillow and

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crossed the room to the window, pulling the hammer back on the gun;

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(3) Petitioner either backed up or turned around and went back towards

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the dresser; (4) Petitioner did not aim the gun at the window or at

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his wife; (5) on his way back from the window, Petitioner attempted to

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uncock the gun, but the gun went off; (6) the gun was pointed toward

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the dresser and Petitioner thought the gun was “pointed straight”;

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(7) when Petitioner was trying to uncock the gun he did not see where

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it was pointing because he was “high”; (8) Petitioner thought the

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bullet had gone “straight”; (9) Petitioner initially thought the

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bullet went through the dresser or through the floor; and (10) after

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the shooting, Petitioner put the gun in the freezer and then left

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because he did not want to go to jail (R.T. 1216-20, 1222, 1241, 1243-

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48, 1251, 1258-60).

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21

A defense firearms expert testified that the trajectory of the

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bullet into the footboard and box spring of the bed was a downward

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angle of 20 degrees and an angle 23 degrees from right to left (R.T.

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1295).

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that the bullet entered the footboard of the bed approximately 22 1/2

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inches above the ground and entered the box spring approximately 19

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inches above the ground (R.T. 1331-32).

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///

In rebuttal, a detective testified that measurements showed

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A rational juror considering the evidence described above could

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have determined that Petitioner deliberately shot his wife.

In

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arguing for a contrary conclusion, Petitioner faults the Court of

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Appeal for purportedly considering only “isolated bits of evidence”

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and “ignoring all conflicts in the evidence” (Petition, attachment,

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pp. 6, 14).

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Court must presume that the jury resolved all evidentiary conflicts in

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favor of the prosecution, and cannot revisit the jury’s credibility

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determinations.

However, under the Jackson v. Virginia standard, this

See Cavazos v. Smith, 132 S. Ct. at 6-7 (jury

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entitled to credit prosecution experts’ testimony despite conflicting

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testimony by defense experts); McDaniel v. Brown, 538 U.S. at 131-34

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(ruling that the lower federal court erroneously relied on

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inconsistencies in trial testimony to deem evidence legally

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insufficient; the reviewing federal court must presume that the trier

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of fact resolved all inconsistencies in favor of the prosecution, and

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must defer to that resolution).

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version of the shooting rather than Petitioner’s, and a federal habeas

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court must defer to that credibility determination.

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Terhune, 376 F.3d 950, 957-58 (9th Cir. 2004) (jury’s resolution of

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the issues concerning the witnesses’ credibility is “entitled to near-

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total deference under [Jackson v. Virginia]”) (citations omitted);

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United States v. Franklin, 321 F.3d 1231, 1239-40 (9th Cir.), cert.

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denied, 540 U.S. 858 (2003) (in reviewing the sufficiency of the

24

evidence, a court does not “question a jury’s assessment of witnesses’

25

credibility” but rather presumes that the jury resolved conflicting

26

inferences in favor of the prosecution).

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///

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///

The jury evidently credited Jones’

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See Bruce v.

1

Accordingly, the Court of Appeal’s rejection of Petitioner’s

2

challenge to the sufficiency of the evidence was not contrary to, or

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an unreasonable application of, any clearly established Federal law,

4

as determined by the Supreme Court of the United States. See 28 U.S.C.

5

§ 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 (2011).

6

Petitioner is not entitled to federal habeas relief on this claim.

7
8
9

II.

Petitioner’s Claims of Instructional Error Do Not Merit Federal
Habeas Relief.7

10
11

A.

Governing Legal Standards

12
13

“[I]nstructions that contain errors of state law may not form the

14

basis for federal habeas relief.”

15

342 (1993); see also Estelle v. McGuire, 502 U.S. 62, 71-72 (1991)

16

(“the fact that the instruction was allegedly incorrect under state

17

law is not a basis for habeas relief”); Dunckhurst v. Deeds, 859 F.2d

18

110, 114 (9th Cir. 1988) (instructional error “does not alone raise a

Gilmore v. Taylor, 508 U.S. 333,

19
20
21
22
23
24
25
26
27
28

7

Respondent previously took the position that
Petitioner’s instructional error claims (Grounds One and Two of
the Petition) appeared to be exhausted. See “Opposition to
Petitioner’s Motion for Stay of [sic] Abeyance Procedure, etc.,”
filed October 26, 2016, p. 6) (stating that Petition “appeare[d]
to be neither fully unexhausted nor mixed” but also stating that
Respondent could not yet determine the exhaustion issue pending
the receipt of documents from Petitioner’s direct appeal).
Respondent now contends that Ground One and Two of the Petition
are unexhausted. For the reasons discussed herein, because
Grounds One and Two are not “colorable,” the Court should deny
these claims on the merits. See Cassett v. Stewart, 406 F.3d
614, 623–24 (9th Cir. 2005), cert. denied, 546 U.S. 1172 (2006).
Accordingly, Petitioner’s application for a stay to complete the
exhaustion of these claims should be denied as moot.
17

1

ground cognizable in a federal habeas corpus proceeding”).

When a

2

federal habeas petitioner challenges the validity of a state jury

3

instruction, the issue is “whether the ailing instruction by itself so

4

infected the entire trial that the resulting conviction violates due

5

process.”

6

F.3d 898, 904 (9th Cir.), cert. denied, 549 U.S. 1027 (2006).

7

court must evaluate the alleged instructional error in light of the

8

overall charge to the jury.

9

(2004); Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Villafuerte v.

Estelle v. McGuire, 502 U.S. at 72; Clark v. Brown, 450
The

Middleton v. McNeil, 541 U.S. 433, 437

10

Stewart, 111 F.3d 616, 624 (9th Cir. 1997), cert. denied, 522 U.S.

11

1079 (1998).

12

likelihood that the jury has applied the challenged instruction in a

13

way that prevents the consideration of constitutionally relevant

14

evidence.”

15

cert. denied, 565 U.S. 946 (2011) (citation and internal quotations

16

omitted).

17

but whether there is a reasonable likelihood it did.

18

omitted; original emphasis).

19

“technical parsing” of the challenged instruction, but rather should

20

consider the instruction as the jury would, “with a commonsense

21

understanding of the instructions in the light of all that has taken

22

place at trial.”

23

omitted).

24

///

25

///

26

///

27

///

28

///

The court must decide whether “there is a reasonable

Rhoades v. Henry, 638 F.3d 1027, 1042 (9th Cir. 2010),

The question is not whether the jury could have done so,
Id. (citation

The court should not engage in a

Id. at 1042-43 (citation and internal quotations

18

1

B.

The Failure to Give an Accident Instruction on the

2

Aggravated Assault Charge Does Not Merit Federal Habeas

3

Relief.

4
5

In California, one who commits a crime “through misfortune or by

6

accident” is not criminally liable “when it appears that there was no

7

evil design, intention or culpable negligence.”

8

26(5).

9

accident “amounts to a claim that the defendant acted without forming

Cal. Penal Code §

A defendant’s contention that he or she committed the crime by

10

the mental state necessary to make his or her action a crime.”

11

v. Jennings, 50 Cal. 4th 616, 674, 114 Cal. Rptr. 3d 133, 237 P.3d 474

12

(2010) (citation and internal quotations omitted).

13

law, an accident instruction is a “pinpoint” instruction which the

14

court need give only upon request by the defense, provided that other

15

instructions inform the jury of the requisite mental element of the

16

offense.

17

408, 252 P.3d 968 (2011).

People

Under California

People v. Anderson, 51 Cal. 4th 989, 999, 125 Cal. Rptr. 3d

18
19

Using CALCRIM 3404, the trial court instructed the jury that

20

Petitioner was not guilty of mayhem, battery with serious bodily

21

injury or corporal injury to a spouse “if he acted without the intent

22

required for that crime, but acted instead accidentally,” and the

23

court stated that the jurors “could not find [Petitioner] guilty of

24

these crimes unless [the jurors were] convinced beyond a reasonable

25

doubt that [Petitioner] acted with the required intent” (R.T. 1543;

26

C.T. 159).

27

accident instruction with respect to the charge of assault with deadly

28

///

However, the court refused a defense request to give the

19

1

weapon (R.T. 1268-70).8

2
3

Petitioner contends the trial court erred by failing to give the

4

accident instruction with respect to the aggravated assault charge.

5

The California Court of Appeal ruled that any alleged error was

6

harmless because the jury obviously rejected any accident defense

7

(Respondent’s Lodgment 1, pp. 4-5; see People v. Jackson, 2015 WL

8

1951886, at *2).

9

testified, and his counsel argued, that the shooting purportedly was

The Court of Appeal reasoned that:

(1) Defendant

10

an accident; and (2) the trial court gave an accident instruction with

11

respect to the charge of battery causing serious bodily injury, a

12

charge as to which the jury convicted Petitioner (Respondent’s

13

Lodgment 1, pp. 4-5 ; see People v. Jackson, 2015 WL 1951886, at *2).

14
15

Petitioner’s claim is not colorable for several reasons.

First,

16

Petitioner appears to allege only a claim of state law error not

17

cognizable on federal habeas corpus review.

18

502 U.S. at 67-68; see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010)

19

(per curiam) (“it is only noncompliance with federal law that renders

20

a State’s criminal judgment susceptible to collateral attack in the

21

federal courts”) (original emphasis); Hendricks v. Vasquez, 974 F.2d

22

1099, 1105 (9th Cir. 1992) (“Federal habeas will not lie for errors of

23

state law”).

24

///

See Estelle v. McGuire,

25
26
8

27
28

The court omitted the accident instruction from the
initial reading of the final instructions. During a break during
the defense closing, however, the court read the accident
instruction to the jury (R.T. 1541-43)
20

1

Second, the United States Supreme Court has never held that a

2

trial court’s failure to give a pinpoint instruction violates the

3

constitution where the jury received instructions concerning the

4

elements of the offense.

5

*13 (C.D. Cal. Dec. 28, 2010), adopted, 2011 WL 977020 (C.D. Cal.

6

Mar. 14, 2011) (recognizing absence of any such United States Supreme

7

Court jurisprudence); see also Pese v. Runnels, 2009 WL 248374, at *10

8

(N.D. Cal. Jan. 29, 2009), aff’d, 551 Fed. App’x 434 (9th Cir.), cert.

9

denied, 135 S. Ct. 87 (2014) (denying habeas relief on claim of

See Villela v. Kirkland, 2010 WL 6195251, at

10

improper pinpoint instruction, given the lack of United States Supreme

11

Court authority prohibiting the use of pinpoint instructions).

12

absence of such Supreme Court authority, Petitioner cannot obtain

13

federal habeas relief on this claim.

14

70, 77 (2006) (“Given the lack of holdings from this Court [on the

15

issue presented], it cannot be said that the state court

16

“unreasonabl[y] applied clearly established Federal law.”) (internal

17

brackets and citation omitted); Moses v. Payne, 555 F.3d 742, 758–59

18

(9th Cir. 2009) (habeas relief unavailable where the Supreme Court had

19

articulated no “controlling legal standard” on the issue); 28 U.S.C. §

20

2254(d).

In the

See Carey v. Musladin, 549 U.S.

21
22

Rather, the United States Supreme Court has held that the failure

23

to give an instruction will not violate the constitution where other

24

instructions adequately inform jurors of the required elements of the

25

offense.

26

and a confederate robbed a severely intoxicated man and left the

27

victim partially clothed on an unlit rural road on a snowy night.

28

at 147.

In Henderson v. Kibbe, 431 U.S. 145 (1977), the defendant

A speeding truck hit the victim and killed him.
21

Id.

The

Id.

1

trial court failed to give a causation instruction, although the court

2

did read the indictment and the second-degree murder statute to the

3

jury and explained the meaning of some of the statutory language

4

at 148-49.9

5

omission should be evaluated “by comparison with the instructions that

6

were given,” and that, in light of the instructions that were given

7

“the omission of more complete instructions on the causation issue”

8

did not render the trial unfair so as to violate due process.

9

156-57; see also Duckett v. Godinez, 67 F.3d 734, 743 (9th Cir. 1995)

Id.

The Supreme Court held that the significance of the

Id. at

10

(“it is not reversible error to reject a defendant’s proposed

11

instruction on his theory of the case if other instructions, in their

12

entirety, adequately cover that defense theory”) (citation and

13

quotations omitted; original emphasis).

14
15

Here, other instructions adequately informed the jury of the

16

requisite intent for the crime of assault with a firearm.

17

instructed the jury that various charged crimes, including the crime

18

of assault with a firearm, required proof of “wrongful intent,” and

19

that a person acted with wrongful intent “when he or she intentionally

20

[did] a prohibited act” (R.T. 1354-55; C.T. 135).

21

charge of assault with a firearm, the court told the jury that the

22

prosecution was required to prove that Petitioner committed the

The court

With respect to the

23
9

24
25
26
27
28

The trial court in Henderson v. Kibbe instructed the
jury that second degree murder required proof that the defendant
acted recklessly in conduct which created a grave risk of death
to another or caused the death of another, and that the defendant
“act[ed] recklessly with respect to a result or to a
circumstances [sic] described by a statute defining an offense
when he was aware of and consciously disregarded a substantial
and unjustifiable risk that such result will occur or that such
circumstance exists.” Id. at 149.
22

1

assault “willfully” and that Petitioner “was aware of facts that would

2

lead a reasonable person to realize that his act by its nature would

3

directly and probably result in the application of force to someone”

4

(R.T. 1505-06; C.T. 151).

5

commits an act willfully when he or she does it willingly or on

6

purpose” and that it was “not required that he or she intend to break

7

the law, hurt someone else or gain any advantage” (R.T. 1506; C.T.

8

151).

9

to all of [the] instructions and consider them together” (R.T. 1345;

The court told the jury that “[s]omeone

The court also instructed the jury to “[p]ay careful attention

10

C.T. 125).

By convicting Petitioner of assault with a firearm, the

11

jury necessarily found that Petitioner did not shoot his wife by

12

accident.

13

pinpoint accident instruction with respect to the assault charge did

14

not render Petitioner’s trial fundamentally unfair.

15

2016 WL 8735695, at *28 (C.D. Cal. Sept. 13, 2016) (failure to give

16

accident instruction with respect to charge of assault with a deadly

17

weapon not unconstitutional, where jury received instructions

18

concerning the elements of the offense).10

In these circumstances, the court’s failure to give a

See Bell v. Soto,

Accordingly, the Court of

19
10

20
21
22
23
24
25
26
27
28

The Ninth Circuit has suggested that “the defendant’s
right to adequate jury instructions on his or her theory of the
case might, in some cases,” raise a cognizable ground for federal
habeas relief. See Solis v. Garcia, 219 F.3d 922, 929 (9th Cir.
2000), cert. denied, 534 U.S. 839 (2001); see also Clark v.
Brown, 450 F.3d at 904 (state court’s jury instructions violate
due process if they deny the criminal defendant “a meaningful
opportunity to present a complete defense”) (quoting California
v. Trombetta, 467 U.S. 479, 485 (1984)). It is questionable
whether this proposition is supported by any clearly established
United States Supreme Court law with respect to an accident
instruction, particularly in light of Henderson v. Kibbe, supra.
In any event, for the reasons discussed herein, the failure to
give an accident instruction on the aggravated assault charge did
not deny Petitioner the right to present a defense. Other
(continued...)
23

1

Appeal’s rejection of this claim was not contrary to, or an

2

unreasonable application of, any clearly established Federal law, as

3

determined by the Supreme Court of the United States.

4

§ 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 (2011).

See 28 U.S.C.

5
6

Finally, and in any event, any alleged error was harmless under

7

the harmless error standard applicable to federal habeas cases set

8

forth in Brecht v. Abrahamson, 507 U.S. 619 (1993) (“Brecht”).

9

forbids a grant of habeas relief for a trial-type error unless the

Brecht

10

error had a “substantial and injurious effect or influence in

11

determining the jury’s verdict.”

12

Appeal observed, Petitioner testified repeatedly that the shooting

13

purportedly was an accident, and his attorney vigorously argued

14

accident in closing (see R.T. 1223, 1225, 1227, 1244, 1249, 1254,

15

1530, 1539-40, 1554).

16

“[a]ccident means without intent” (R.T. 1540).

17

court instructed the jury on the elements of aggravated assault using

18

the same definition of “willfully” as that used in the charge of

19

battery causing serious injury (see R.T. 1505-06; C.T. 149, 151)

20

(instructing that someone committed an act “willfully” when he did it

21

“willingly or on purpose”).

22

battery and assault.

23

Rptr. 3d 593, 131 P.3d 995, cert. denied, 549 U.S. 998 (2006)

24

(“Defendant claimed that the gun discharged accidentally.

Id. at 637-38.

As the Court of

Petitioner’s counsel told the jury that
Furthermore, the trial

The jury found Petitioner guilty of

See People v. Huggins, 38 Cal. 4th 175, 41 Cal.

By

25
26
10

27
28

(...continued)
instructions permitted Petitioner’s counsel to argue, as counsel
did argue, that Petitioner lacked the requisite intent to commit
aggravated assault.
24

1

accepting the prosecution’s version, the jury necessarily concluded

2

that defendant intended to kill the victim.”).

3

respect to the firearm enhancements, the court instructed the jury

4

that, to show Petitioner personally used a firearm within the meaning

5

of California Penal Code section 12022.5(a), the jury was required to

6

find that Petitioner intentionally displayed a weapon in a menacing

7

manner, hit someone with a weapon or fired the weapon (R.T. 1509; C.T.

8

155).

9

that Petitioner had acted intentionally, not accidentally (R.T. 1586;

Additionally, with

The jury found true this personal use allegation, thus finding

10

C.T. 174).

11

Feb. 9, 2016) (jury’s finding that the petitioner personally and

12

intentionally discharged a firearm “necessarily means that the jury

13

found that the firearm was not accidentally discharged”; hence

14

counsel’s failure to request an accident instruction not prejudicial

15

under Strickland v. Washington, 466 U.S. 668 (1984) (citations

16

omitted)).11

17

instruction with respect to the aggravated assault charge did not have

18

any “substantial and injurious effect or influence in determining the

19

jury’s verdict.”

See White v. Foulk, 2016 WL 492794, at *14 (E.D. Cal.

For these reasons, the omission of the accident

Brecht, 507 U.S. at 637-38.

20
21

For all of the foregoing reasons, Petitioner’s claim that the

22

failure to give an accident instruction on the aggravated assault

23

charge rendered Petitioner’s trial unfair is not a “colorable” claim.

24

See Cassett v. Stewart, 406 F.3d 614, 623–24 (9th Cir. 2005), cert.

25
26
27
28

11

Under Strickland v. Washington, to obtain federal
habeas corpus relief a petitioner alleging ineffective assistance
of counsel must show a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been
different. Strickland v. Washington, 466 U.S. at 694.
25

1

denied, 546 U.S. 1172 (2006).

2

Petitioner is not entitled to habeas

relief on this claim.

3
4

C.

5

The Failure to Give a Mistake of Fact Instruction Does Not
Merit Federal Habeas Relief.

6
7

Petitioner also faults the trial court for failing to give a

8

mistake of fact instruction (Petition, attachment, pp. 12-13).

9

trial court and counsel discussed such an instruction (R.T. 1269-74).

10

The court characterized the purported mistake of fact as Petitioner’s

11

alleged ignorance that the gun was pointed at his wife and the

12

supposed accident as the alleged accidental discharge of the gun (see

13

R.T. 1269-70, 1273-74).

14

characterizations (R.T. 1273).

15

added a mistake of fact instruction to the jury instructions (R.T.

16

1362).

17

did not give any mistake of fact instruction.

The

Petitioner’s counsel concurred with these
The court told counsel that it had

However, for reasons not apparent from the record, the court

18
19

“[T]he particular ‘defense’ of mistake of fact requires, at a

20

minimum, an actual belief in the existence of circumstances which, if

21

true, would make the act with which the person is charged an innocent

22

one.”

23

236 (2013) (internal quotations and citations omitted).

24

general intent crime any mistake of fact must be both reasonable and

25

actual before it is presented to the jury.”

26

App. 4th 335, 350, 15 Cal. Rptr. 3d 592 (2015) (citation omitted).

27

Under California law, a mistake of fact instruction is a “pinpoint”

28

instruction which a trial court need not give sua sponte when other

People v. Lawson, 215 Cal. App. 4th 108, 115, 155 Cal. Rptr. 3d

26

“[F]or a

People v. Givan, 233 Cal.

1

instructions adequately inform the jury of the mental elements of the

2

crime.

3

117.

Id. at 344; see also People v. Lawson, 215 Cal. App. 4th at

4
5

Petitioner claims that, had the jury received a mistake of fact

6

instruction, the jury allegedly “could have found that Petitioner

7

believed that the gun was pointed down and not in his wife[’s]

8

direction” (Traverse, p. 9).

9

stating that, regardless of the distinction the trial court drew

The Court of Appeal rejected this claim,

10

between the accident and mistake theories, “as far as the jury was

11

concerned, the defendant’s aim and his trigger-pulling were both

12

presented - in the evidence, during argument, as in the jury

13

instructions - as a single course of accidental conduct,” and that the

14

jury’s verdict showed the jury had determined that the shooting was

15

willful (Respondent’s Lodgment 1, p. 5; see People v. Jackson, 2015 WL

16

1951886, at *3).

17

any error was harmless because the record did not support the

18

proffered mistake (i.e. that Petitioner purportedly thought the gun

19

was pointed down when he fired the shot) (Respondent’s Lodgment 1, pp.

20

5-6; see People v. Jackson, 2015 WL 1951886, at *3).

21

record rather showed that Petitioner reportedly had no idea where the

22

gun was pointed and that in fact the gun was pointed at his wife

23

(id.).

The Court of Appeal also ruled that, in any event,

Rather, the

24
25

Again, Petitioner’s claim of instructional error is not

26

“colorable.”

27

misapplied state law in failing to give a mistake of fact instruction,

28

any such claim is not cognizable on federal habeas review.

To the extent Petitioner contends the trial court

27

See

1

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Wilson v.

2

Corcoran, 562 U.S. 1, 5 (2010).

3

Supreme Court has never held unconstitutional a trial court’s failure

4

to give a pinpoint instruction such as a mistake of fact instruction,

5

Petitioner cannot obtain federal habeas relief on this claim.

6

Carey v. Musladin, 549 U.S. 70, 77 (2006); Moses v. Payne, 555 F.3d

7

742, 758–59 (9th Cir. 2009); see also Henderson v. Kibbe, 431 U.S.

8

156-57.

Moreover, because the United States

See

9
10

In any event, the failure to give a pinpoint mistake of fact

11

instruction did not render Petitioner’s trial fundamentally unfair.

12

There was little, if any, evidence to support a mistake of fact

13

instruction based on a supposed “mistake” as a result of which

14

Petitioner purportedly believed that the gun was pointed down at the

15

time he fired the shot.

16

of the shooting the gun obviously was pointed at Petitioner’s wife.

17

Petitioner was standing at the time of the shot and his wife was lying

18

on the bed with her feet on the footboard, so the trajectory of the

19

bullet necessarily was at a downward angle.

20

and sometimes conflicting testimony at trial concerning the direction

21

the gun was pointing at the time of the shot.

22

Petitioner testified that the gun allegedly was pointed “straight” and

23

at the dresser before he supposedly attempted to uncock the gun, and

24

that the gun went off as he attempted to uncock it.

25

Petitioner also testified that, at the time he assertedly was

26

attempting to uncock the gun, Petitioner allegedly did not see the

27

direction in which the gun was pointing.

28

in a recorded conversation, that Petitioner allegedly thought the gun

As the Court of Appeal observed, at the time

28

Petitioner gave confused

As indicated above,

However,

Petitioner also told Jones,

1

was pointed at the window.

Petitioner did not then say that he fired

2

the gun at his wife mistakenly, thinking the gun was pointed down.

3
4

Additionally, with respect to the crimes of battery with serious

5

bodily injury, misdemeanor battery and aggravated assault, the trial

6

court instructed the jury that:

7

battery, jurors were required to find that Petitioner willfully

8

touched Jones in a harmful or offensive manner; and (2) to find

9

Petitioner guilty of assault, jurors were required to find that

(1) to find Petitioner guilty of

10

Petitioner willfully did an act with a firearm that by its nature

11

would directly and probably result in the application of force to a

12

person (R.T. 1505-07; C.T. 150, 151, 153).

13

court instructed the jury that a person acted willfully when he or she

14

acted willingly and on purpose and that the prosecution was not

15

required to show that Petitioner intended to break the law, hurt

16

someone or gain any advantage (see R.T. 1505-07; C.T. 150, 151, 153).

17

These instructions adequately informed the jury of the mental state

18

necessary to prove these charges.

19

pinpoint mistake of fact instruction did not deny Petitioner a fair

20

trial.

21

Godinez, 67 F.3d 734, 743 (1995).

As indicated above, the

Accordingly, the failure to give a

See Henderson v. Kibbe, 431 U.S. at 156-57

Duckett v.

22
23

For all of these reasons, the Court of Appeal’s rejection of this

24

claim was not contrary to or an unreasonable application of, any

25

clearly established Federal law, as determined by the Supreme Court of

26

the United States.

27

562 U.S. at 100-03.

28

relief on this non-colorable claim.

See 28 U.S.C. § 2254(d); Harrington v. Richter,
Petitioner is not entitled to federal habeas

29

1

RECOMMENDATION

2
3

For the reasons discussed above, IT IS RECOMMENDED that the Court

4

issue an order:

(1) accepting and adopting this Report and

5

Recommendation; (2) denying Petitioner’s application for a stay as

6

moot; and (3) denying and dismissing the Petition with

7

prejudice.

8
9

DATED:

May 5, 2017.

10
11
12

/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
30

1
2

NOTICE
Reports and Recommendations are not appealable to the Court of

3

Appeals, but may be subject to the right of any party to file

4

objections as provided in the Local Rules Governing the Duties of

5

Magistrate Judges and review by the District Judge whose initials

6

appear in the docket number.

7

Federal Rules of Appellate Procedure should be filed until entry of

8

the judgment of the District Court.

No notice of appeal pursuant to the

9

If the District Judge enters judgment adverse to Petitioner, the

10

District Judge will, at the same time, issue or deny a certificate of

11

appealability.

12

and Recommendation, the parties may file written arguments regarding

13

whether a certificate of appealability should issue.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Within twenty (20) days of the filing of this Report