Carrillo v. McDonald et al

Filing 15

ORDER Denying Petition For Writ Of Habeas Corpus (Doc. 2 ), ORDER Directing Clerk Of Court To Enter Judgment And Close File, ORDER Declining To Issue Certificate Of Appealability, signed by Magistrate Judge Jennifer L. Thurston on 4/15/2015. CASE CLOSED.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY ROBERT CARRILLO,

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Petitioner,
v.
MIKE McDONALD, Warden,
Respondent.

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Case No.: 1:12-cv-01203-JLT
ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS (Doc. 2)
ORDER DIRECTING CLERK OF COURT TO
ENTER JUDGMENT AND CLOSE FILE
ORDER DECLINING TO ISSUE CERTIFICATE
OF APPEALABILITY

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PROCEDURAL HISTORY

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Petitioner was convicted of two counts of second degree murder (Cal. Pen. Code § 187(a)) for

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which he was sentenced to two indeterminate terms of fifteen years-to-life and discharging a firearm

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pursuant to Penal Code § 12022.53(d) for which he was sentenced to two indeterminate terms to 25-

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years-to-life. (Id.) (Doc. 1, p. 2)

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Petitioner appealed to the California Court of Appeals, Fifth Appellate District (the “5th DCA”),

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which affirmed Petitioner’s convictions. (Lodged Document (“LD”) 11). Petitioner then filed a

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petition for review in the California Supreme Court that was summarily denied. (LD 12; 13). Petitioner

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filed a state habeas petition in the Superior Court of Stanislaus County, raising the additional claims of

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newly discovered evidence of innocence and false evidence. (LD 14) The court denied the petition.

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(LD 18). The California Supreme Court denied Petitioner’s subsequent state habeas petition. (LD 19;
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On July 23, 2012, Petitioner filed the instant petition, presenting seven claims for relief. (Doc.

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1). Respondent’s answer was filed on October 19, 2012. (Doc. 12). On November 6, 2012, Petitioner

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filed his Traverse. (Doc. 14). Respondent contends that a sub-argument in ground one is procedurally

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barred and that ground six is unexhausted. (Doc. 12, pp. 30; 44).
FACTUAL BACKGROUND

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The Court adopts the Statement of Facts in the 5th DCA’s unpublished decision1:

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Introduction

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This double homicide case arose from an abusive domestic relationship between Olivia
Valdovinos and Pete Silverio Garcia in the city of Ceres. Valdovinos was a member of the
extended Simmons family. Charles Simmons, Sr., and his wife, Carmen Simmons, have a
“[v]ery large family.” Their children include their only son, Charles Simmons, Jr., and
daughters, Elia Sharma, Margaret Janis, and Carmen Gutierrez, among others. Elia Sharma is
the mother of appellant Timothy Carrillo and Shankar Sharma, a witness to the homicides.
Margaret Janis is the mother of Olivia Valdovinos. Carmen Gutierrez is the mother of Raquel
and Erica Baca and nine others. Appellant, Valdovinos, and the Bacas are first cousins. Their
other first cousins include Andrea Charles and Angielita Ruiz.

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Testimony of Olivia Valdovinos

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In April 2007, Olivia Valdovinos lived at the Almond Terrace Apartments in Stanislaus County
with her two children and her boyfriend, Pete Silverio Garcia. At 11:00 p.m. on April 14, 2007,
Valdovinos and her cousin, Raquel Baca, took Baca's car and drove to some nightclubs in
Modesto. Garcia remained at their apartment with his friend, Cary Lamond Thompson. During
the course of the evening, Valdovinos told Baca that she and Garcia had a fight earlier in the
evening. The fight concerned Garcia's faithfulness to Valdovinos and Garcia pulled her hair
during the altercation. Valdovinos and Baca spent time together at the Timeless nightclub and
then separated. When Valdovinos decided to leave the club, she drove Baca's car back to her
apartment. She arrived home after 2:00 a.m.

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At 3:00 a.m., Baca returned to the apartments to retrieve her car keys. Valdovinos and Garcia
had gone to bed, but they got up and began talking with Baca. Baca was angry about Garcia's
treatment of Valdovinos and told Garcia he needed to change his behavior. Baca insulted Garcia
by calling him names. Valdovinos recognized that Baca was under the influence of alcohol.
Garcia initially declined to pay attention to Baca, but he then responded by calling her names.
Baca and Garcia cursed each other, and Baca ultimately hit Garcia in the face. Thompson finally
got up to keep Baca from “getting in [Pete's] face.”

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Valdovinos told Garcia and Baca to stop arguing, and she asked Baca to leave the apartment
several times. Valdovinos was concerned that Baca was being too loud and that she might
awaken the apartment manager. When Baca refused to leave, Valdovinos tried to get Garcia to
return to their bedroom. Garcia resisted and told Baca, “‘This is going too far.’” Baca angrily
replied, “‘Oh, you trying to hit me[?] You trying to hit me[?] You think you're bad?’” Baca then
told Garcia, “‘Watch. I'm going to get my cousin Timmy over here.’”

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The 5th DCA’s summary of the facts in its unpublished opinion is presumed correct. 28 U.S.C. §§ 2254(d)(2), (e)(1).
Thus, the Court adopts the factual recitations set forth by the 5th DCA.

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Baca went to retrieve her shoes and Garcia told her, “‘Come on Raquel. This is dumb.... I'm a
fat guy. You're a pimple face.’” At that point, Valdovinos thought the situation had calmed.
However, Baca then gave Garcia an angry look as she walked out the door and said, “‘You'll be
seeing my cousin and my brother.’” Baca departed, and Valdovinos and Garcia went to their
bedroom. Thompson remained on the couch.
Sometime later, Valdovinos heard a knock on a window. Valdovinos was afraid Baca had sent
some people over to the apartment, and Valdovinos did not want a scene. She and Garcia
walked to the front door of the apartment. The television was still on in the living room.
Valdovinos opened the front door and saw her cousin, the appellant, through the security screen
door. She saw a few more people at the bottom of the stairs leading to the apartment. She asked
appellant to leave, but he asked, “‘Where is Pete?’” Valdovinos repeatedly asked appellant to
leave and yelled at one point, “‘Just leave. You're going to get me kicked out.’” Garcia
eventually told appellant, “‘Man, Timmy, what?’”

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Appellant fired a gun, and Valdovinos dropped to the ground. She saw Garcia shoot back at
appellant and then heard a lot of firing. She stayed on the ground and yelled, “‘Stop, stop!’” The
apartment became quiet and she saw Garcia standing but bleeding. He went toward the kitchen,
lied down, told Valdovinos he loved her, and said, “‘Tell my mom I love her.’” When
Valdovinos told Garcia he was going to be okay, he said that appellant shot him in the heart.
Valdovinos immediately called 911. Police arrived a short time later, and Valdovinos claimed
she was the one who shot appellant because she knew Garcia was not supposed to be in
possession of a firearm. Valdovinos admitted a conviction for petty theft on June 8, 2004.

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Testimony of Nancy Chavez

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Nancy Chavez, landlord of the Almond Terrace Apartments, lived directly below the apartment
of Valdovinos and Garcia. Chavez was awakened during the early morning hours of April 15,
2007, by the sound of gunshots. Chavez looked outside her window and saw three large men.
One of the men jumped from a second-floor stairwell to ground level. Chavez saw the trio leave
out the Evans Road exit to the gated complex and she called 911. Chavez's roommate, Manuel
Luna, heard four or five gunshots. He went upstairs and held a towel to Garcia's wound. Luna
said Valdovinos appeared to be in complete shock, and Luna assisted her. Luna said he saw
Thompson with his head lying on the couch and his feet placed toward the left of the couch.

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Testimony of Sergeant Jose Berber
Ceres Police Sergeant Jose Berber arrived at the scene and found Garcia gasping for air and
experiencing pain. Garcia walked toward Berber and fell to the ground on the landing outside
the apartment. Valdovinos cradled Garcia in her arms. Sergeant Berber entered the apartment
and found a plastic-gripped, white metal revolver in the doorway. Ceres Police Officer Brian
Ferreira said a light was on inside the apartment.
Sergeant Berber gave Garcia CPR until paramedics arrived at the scene. Berber said Garcia was
a large man who weighed more than 300 pounds. Sergeant Berber watched as Garcia expired
and then asked Valdovinos who had shot him. She said, “‘It was my cousin. It was my cousin. I
can't believe he did this.’” She told Berber her cousin's name was Timothy Carrillo and said that
he and his brother had been at the apartment. At 4:00 a.m., appellant entered station one of the
Ceres Fire Department and contacted paramedic Julian Bordona. Appellant had sustained two
gunshot wounds but declined to identify himself to Bordona.
Testimony of Criminalist Jennai Lawson
Jennai Lawson, a criminalist with the California Department of Justice Crime Laboratory in
Ripon, testified she discovered a bullet hole in the upper left portion of the security door on
Valdovinos's apartment. She concluded the bullet hole had been made by someone firing inside
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the door toward the exterior of the apartment. Lawson examined a Rossi revolver found in the
entry to the Valdovinos/Garcia apartment at Almond Terrace. The revolver contained five
expended cartridges, and Lawson believed one of the bullets from that firearm had been fired
through the security door. Lawson traced the trajectory of a bullet fired by someone from
outside the apartment. That bullet traveled through the left side of the front door. Cary
Thompson's body was still in the apartment when Lawson arrived. Lawson determined a bullet
passed through the apartment loveseat and hit Thompson in the chest. In Lawson's opinion, the
person who shot the bullet stood very close to the front door or entry way or stood inside the
apartment. Based on the wounds to Garcia and the bullets she saw at the scene, Lawson
believed appellant fired at least four bullets.
Testimony of Dr. Robert D. Lawrence
Robert D. Lawrence, M.D., a forensic pathologist, testified he performed autopsies on both
Thompson and Garcia. Dr. Lawrence found two gunshot wounds in Thompson's chest. One
wound was located on the right side of the breast bone and the second wound was located
further down on the right side. The first wound had an atypical entrance, with an abrasion collar
suggesting that the bullet might have struck something before entering Thompson's body. Dr.
Lawrence detected a piece of foam rubber inside the first bullet hole. Dr. Lawrence found no
gunshot residue around either of the bullets, indicating the shots were not made a close range.
Dr. Lawrence said Garcia sustained a single gunshot wound to his chest near the midline. Both
victims died from shock and hemorrhage due to penetrating gunshot wounds to their chests. Dr.
Lawrence said Thompson had a blood-alcohol level of 0.27 and methamphetamine in his blood.
Dr. Lawrence said Garcia had a blood-alcohol level of 0.21.
Testimony of District Attorney Investigator Froilan Mariscal

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Froilan Mariscal, an investigator with the Stanislaus County District Attorney's Office, said he
assisted in the execution of a search warrant at appellant's residence on Don Pedro Road in
Ceres. Mariscal found a loaded .38–caliber Smith & Wesson six-shot revolver inside a bag in a
small closet. Mariscal gave the weapon to Detective Griebel of the Ceres Police Department.

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Testimony of Criminalist Scott Bauer

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Scott Bauer, a senior criminalist with the California Department of Justice Crime Laboratory,
testified he examined three bullets removed from the bodies of the victims and one bullet
removed from the crime scene. He determined the bullets were not fired from the Rossi revolver
recovered by criminalist Lawson at the apartment. Bauer could not determine whether the
bullets were fired from the Smith & Wesson revolver recovered at appellant's apartment. In fact,
Bauer expressed the opinion that the bullets were most likely not fired from the Smith &
Wesson. He explained, “[A]gain, I couldn't eliminate it or identify it but in my opinion most
likely not.”

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Defense Evidence
Appellant's Medical Report

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On motion of the defense, the court admitted into evidence a three-page Doctor's Medical
Center report, dated December 10, 2008, concerning appellant's physical condition.

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Testimony of Raquel Baca

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Raquel Baca testified that Olivia Valdovinos had sustained multiple injuries during the 18
months she had dated Garcia. At 10:00 p.m. on April 14, 2007, Baca, Valdovinos, and Baca's
cousin, Andrea Charles, went out together to some bars. Baca said she later returned to
Valdovinos's apartment to retrieve her house and car keys. Baca said she had a clear view of

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Valdovinos's apartment because she lived in apartment No. 6, downstairs from Valdovinos's
unit.
When Baca reached Valdovinos's apartment, Garcia and Thompson were in the living room.
Garcia offered Baca some pizza. Because Garcia was dressed in his boxer shorts, Valdovinos
instructed him to go in the bedroom and put on some pants. When Garcia left the living room to
dress, Valdovinos told Baca that he had just pulled her hair and hit her. Garcia then returned to
the kitchen and Baca told him he should respect Valdovinos. Baca and Garcia got into a heated
argument and struck one another in the face.
Baca was upset as she departed Valdovinos's apartment. She stopped at appellant's home, told
him that Garcia had hit her, and also told him about Valdovinos's claims of abuse at the hands
of Garcia. Baca stayed at appellant's home for about 30 minutes and then went back to her firstfloor apartment. At some point she heard appellant tell Valdovinos that he wanted to speak with
Garcia. Appellant was standing by the window to the left of the front door of Garcia's
apartment. Appellant told Valdovinos, “[I]f he [Garcia] wants to be hitting girls, he should
come out and fight like a man.” Valdovinos told appellant to leave, the area in front of her
apartment got quiet, and Valdovinos closed the security door to the apartment.

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Baca next saw Garcia put his head outside the security door, come back inside, and then extend
his arm out and start firing a handgun. Baca said Garcia fired at least four or five shots, and
appellant leaned back against the wall and returned the fire inside the apartment. She testified
she heard the gunshots fired by appellant but did not necessarily see any flashes from a weapon.
Baca confirmed the last shots were fired by appellant. She saw appellant run down the stairwell.
Baca then called 911 and reported the shooting. Baca heard Valdovinos yell, “‘Get an
ambulance here.’” After seeing the police and paramedics arrive at the scene, Baca then left and
went to her mother's home.

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Testimony of Shankar Sharma

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Appellant's half brother, Shankar Sharma, knew both Valdovinos and Garcia and noticed that
Valdovinos sustained bruises to her face on several occasions during their relationship. During
the early morning hours of April 15, 2007, Sharma was at appellant's home with appellant,
cousin Robert Garcia, and friend Lorenzo Martinez. Sharma and the others were drinking beer
when Raquel Baca arrived at appellant's home. Baca was crying, said Valdovinos and Garcia
had gotten into an argument, and said that Garcia had hit and pulled the hair of Valdovinos and
hit Baca herself. After Baca departed, appellant, Sharma, and the others present decided to go
check on Valdovinos. The quartet proceeded to the Valdovinos's apartment in appellant's van.
The gate to the complex was closed but unlocked.

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Appellant knocked on the window to the right of the apartment door and Valdovinos answered.
When appellant asked whether she was okay and whether Garcia was hitting her again,
Valdovinos asked several times for appellant to leave the premises. Appellant eventually
challenged Garcia to a fight, and Garcia opened the door and fired several shots at appellant.
Sharma described Garcia's weapon as a silver revolver. Appellant produced a gun and returned
the fire, sustaining a wound during the exchange. Sharma heard six or seven shots altogether.
Appellant, Sharma, and their two companions returned to appellant's van and proceeded to the
Ceres Fire Department to get medical care for appellant. Sharma said the gate to the apartment
complex was open, so they were able to enter and depart without using a code. Sharma said
Garcia had a reputation in the Sharma/Carrillo family for being a Norteno criminal street gang
member who carried guns.

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Testimony of Lorenzo Martinez

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Lorenzo Martinez testified he was at appellant's home during the early morning hours of April
15, 2007. Martinez, appellant, and several others were relaxing, drinking beer, and playing

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video games. Raquel Baca arrived and spoke with appellant. She was crying and her face was
red and puffy. Raquel said Pete Garcia slapped her in the face and made a red mark. She also
said Garcia hit Valdovinos. She stayed five to eight minutes and then departed. Appellant,
Martinez, and their two companions—Robert Lopez and Shankar Sharma—decided to go to
Garcia's apartment and check on Valdovinos. Martinez understood the purpose of the visit was
to have a fist fight with Garcia and stop him from hitting Valdovinos. The quartet drove
appellant's vehicle to the Almond Terrace Apartments, entered through the unlocked gate, and
walked to the front door of the second-floor apartment.

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Appellant knocked on the kitchen window and the security door of the apartment. Valdovinos
spoke through the door, and appellant asked whether she was all right. Appellant asked to speak
with Garcia. Appellant said, “‘Come outside and fight a real man. Quit hitting on a girl.’”
Garcia came to the door, spoke briefly with appellant, and said he would be right back. When
Garcia returned, he opened the door, stepped outside, and fired several rounds at appellant.
Appellant pulled out a gun and exchanged fire with Garcia. Appellant sustained a wound to his
side and eventually obtained treatment at Memorial Medical Center. Robert Lopez, the nephew
of Raquel Baca, confirmed Lorenzo Martinez's version of events. Lopez said he and Martinez
drove appellant to the Ceres Fire Department and dropped him off there. They then drove back
to appellant's home and parked the car there.

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Testimony of Detective Mark Neri

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Ceres Detective Mark Neri interviewed Raquel Baca on April 20, 2007, at the Ceres Police
Department. Baca gave Neri a detailed chronology of events beginning with the 10:00 p.m. hour
on Saturday, April 14, 2007. Baca described a confrontation with Garcia after she and
Valdovinos had visited a number of nightclubs. Baca said she encouraged Garcia to show
Valdovinos more respect, and Garcia became angry because she was telling him how to treat
her cousin. During the recorded interview, Baca denied telling Garcia, “I'm going to get my
cousin, Tim, to beat your ass.”

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At trial, Baca said she did not give Detective Neri complete information during the interview
because she omitted the fact that Sharma, Martinez, and Lopez were present when she visited
appellant's home after the confrontation with Garcia. Detective Neri testified he conducted a
tape-recorded interview with Valdovinos on the morning of April 15, 2007, at the Ceres police
station. After Neri took that statement, he called Valdovinos back for another recorded
statement. In the first statement, Valdovinos said Garcia was standing directly behind her in the
apartment before shots were fired. In the second statement, Valdovinos said Garcia was
standing to her left. In the second statement, Valdovinos claimed that Raquel Baca told Garcia
as she departed their apartment, “[Y]ou will be seeing my cousin and my brother....”

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Testimony of Andrea Charles

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Andrea Charles, a cousin of appellant and Valdovinos, testified she lived with Valdovinos for
three months beginning in December 2006. Charles saw Valdovinos with injuries on six or
seven occasions. The injuries included black eyes and a “busted lip.” Charles knew Garcia as
her cousin's boyfriend and knew he carried a gun. Charles spent part of the evening of April 14,
2007, with Valdovinos and Baca but ended up spending the night with friends rather than
returning to the Almond Terrace apartment.

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Testimony of Angielita Ruiz
Angielita Ruiz, another cousin of appellant and Valdovinos, testified that Garcia and
Valdovinos dated for about a year and one-half, and that Valdovinos sustained a busted lip,
black eyes, and bruised arms on different occasions during that relationship. Ruiz saw appellant
in possession of a gun “lots of times.” In January 2007, Ruiz stayed with Valdovinos and
Garcia. Ruiz was awakened by the sound of Valdovinos screaming. She went to Valdovinos's
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room and saw Garcia with a gun in his left hand. Garcia attempted to pick up Valdovinos with
his right hand and throw her out a window. Ruiz intervened and Garcia pulled the gun out,
cocked the trigger, and placed it at the side of her head. On another occasion in January 2007,
Ruiz intervened when Garcia held a gun in one hand and hit Valdovinos's head with his other
hand.

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Testimony of Mary Helen Gomez

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Mary Helen Gomez, an aunt of appellant and Valdovinos, testified that Valdovinos sustained
black-and-blue eyes and a “busted” bottom lip at the hands of Garcia about four months before
the events of April 14, 2007.

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Testimony of Sanjuana Vasquez

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Sanjuana Vasquez testified she resided in the apartment to the south (or left) of the apartment
occupied by Valdovinos and Garcia. She heard the sound of rapid shots and an explosion
coming from the latter apartment around 4:00 a.m. on April 15, 2007. She stood up and saw
four men leaving the second floor apartment. One of the men jumped off the balcony. The four
men departed in a northerly direction.

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Testimony of Margaret E. Janis

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Margaret E. Janis testified she was the mother of Olivia Valdovinos and the aunt of the
appellant. Janis said she spoke to her daughter many times about the April 15 incident, and
Valdovinos consistently said she did not know who fired first. Janis also said appellant acted as
a protector of the females in their family and was not afraid of engaging in an altercation with
someone who was abusing a female member of their family. Charles Cahoone, a private defense
investigator, testified he interviewed Margaret Janis after the April 15 incident. According to
Janis, Valdovinos knew that bullets were flying over her head but did not know who fired the
first shot.

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Testimony of Carmen Gutierrez
Carmen Gutierrez testified she was the mother of Raquel Baca and the aunt of appellant.
Gutierrez said Baca came to her home during the early morning hours of April 15. Gutierrez
was asleep at the time. When she awakened, Baca explained what had happened at the Almond
Terrace Apartments. Gutierrez first went to the hospital and then went to Valdovinos's
apartment. Gutierrez saw Valdovinos in a police car at the complex. Gutierrez asked Valdovinos
why she was in the police car, and Valdovinos said she told officers she had shot appellant.
Valdovinos said she lied to protect Garcia, who had a pending case for shooting someone else.
At some unspecified point in time, Valdovinos called Gutierrez from the Ceres Police
Department to get a ride. Gutierrez picked her up and said she was “real upset” because she had
learned that Garcia had passed away. According to Gutierrez, Valdovinos hated appellant
because of what happened and wished that he had died also.
Testimony of Erica Baca

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Erica Baca testified she was the sister of Raquel and the cousin of appellant and Valdovinos.
According to Erica, Valdovinos told detectives that she shot appellant because Garcia was
fighting a gun charge, and she did not want him to go to prison for 15 years. Valdovinos told
Erica she did not know who fired the first shot at the apartment.

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Testimony of Albanita Erebia

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Albanita Erebia testified she visited with Valdovinos and Margaret Janis at the home of Erebia's
aunt and uncle by marriage, Mr. and Mrs. Charles Simmons, Jr. The visit took place right after

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the shooting in the early morning hours of April 15, 2007. Valdovinos said an argument
occurred between her cousin and her husband and “after that everything happened so quickly
and there were just bullets everywhere.” Valdovinos referred to Garcia as her husband and said
he was dead. Erebia asked who shot first and Valdovinos said she did not know because “[i]t all
happened so fast, and it was just bullets were everywhere.” Valdovinos also told Erebia that she
dropped to the floor when the bullets were discharged.
Testimony of Charles Simmons, Jr.
Sacramento County resident Charles Simmons, Jr., testified he was the uncle of appellant, Erica
and Raquel Baca, and Valdovinos. Simmons said he and other family members met twice with
Valdovinos at his home. Albanita Erebia was present during the second such meeting. During
each of those meetings, Simmons said family members “were upset because they had seen
Olivia with “busted lips,” black eyes, and bruises and in some cases had witnessed the infliction
of those injuries. Family members expressed to Simmons their concern that Valdovinos was
being untruthful about the cause of her injuries. During these conversations, Valdovinos said
she did not see who shot first at her apartment.
Valdovinos told her family members that she had said the same thing to police detectives.
Simmons said Valdovinos had sustained very serious spousal abuse at the hands of her former
husband, Condalario Valdovinos. The abuse required her to be hospitalized and to have her jaw
wired shut. In March 2007, Valdovinos arrived at her grandparents' home in Modesto. She had
“a busted lip” with hanging skin and a swollen cheek.

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Valdovinos had a handgun in her purse on that occasion and she said she wanted to use it to
shoot Garcia. Simmons retained possession of the gun for one week and then returned it to
Valdovinos. Garcia ran away after breaking Valdovinos's jaw and was caught and arrested about
a year later. Valdovinos married Garcia while he was in jail. Simmons confirmed that family
members Andrea Charles and Angie Ruiz actually witnessed Garcia striking Valdovinos on at
least one occasion. Simmons did not consider Valdovinos a truthful person because through the
years she had denied being a victim of domestic abuse.

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Testimony of Carmen D. Simmons

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Carmen D. Simmons, grandmother of appellant and Valdovinos, said she and her husband,
Charles Simmons, Sr., temporarily moved to the Sacramento home of their son, Charles
Simmons, Jr., shortly after the shooting. Within a week of the shooting, Carmen Simmons,
Charles Simmons, Sr., Charles Simmons, Jr., Margaret Janis, and Olivia Valdovinos all met at
the home of Charles, Jr. and talked about the shooting. Carmen Simmons said Valdovinos did
not remember who shot first.

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Testimony of Dr. Linda Barnard
Linda Barnard, Ph.D., a licensed marriage and family therapist in private practice, testified
“there were multiple generations of intimate partner battering” in Valdovinos's extended family.
Dr. Barnard said Valdovinos had been the victim of serious intimate partner battering starting at
the age of 15. Valdovinos's first husband beat her so badly that she had to have her face
reconstructed. Her relationship with Pete Garcia resulted in serious injuries from domestic
violence. Dr. Barnard testified that battered women have a tendency to minimize and deny the
extent of violence the experience, particularly if they stay with their partner. Dr. Barnard also
said that 75 to 80 percent of women who initially report domestic violence to law enforcement
either recant or become uncooperative with authorities at some point in the process. Dr. Barnard
said Valdovinos had a history of recanting, minimizing, or denying intimate partner battering
and also said Valdovinos's statements to police after the shooting were the result of intimate
partner battering, including her minimization of “any kind of involvement of domestic violence
by Pete [Garcia].” Dr. Barnard considered Garcia a high-level batterer.
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Dr. Barnard testified that Charles Simmons, Jr., was the only male of his generation, and he
acted as a protector of all of his sisters and intervened when they or their daughters were
subjected to abuse. Simmons told Dr. Barnard that appellant assisted him in that role because
appellant was “part of that older group of the next generation....” According to Barnard,
Simmons said appellant “became the go-to guy for girls in his generation ... who came to him
for help when boyfriends were hurting them or they were having problems and asked him to
help or intervene so he took on that same role Uncle Charles had.” Dr. Barnard was aware that
appellant had been convicted of a misdemeanor battery on his own spouse in 2003 and attended
a 52–week batterer intervention program as a result. Simmons said the intervention program
caused appellant to mature and make changes in his own life.

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Testimony of Officer Gary Soria

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California Highway Patrol Officer Gary Soria testified he went to a traffic stop north of
Paradise Road on Martin Luther King Boulevard on August 29, 2003. Officer Soria assisted in a
search of Pete Garcia, who sat in the right front seat of the detained vehicle. Soria located a
loaded magazine for a weapon in Garcia's pants pocket.

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Testimony of Officer Robert Gumm
Modesto Police Officer Robert Gumm testified he ejected Garcia from the X–Fest festival in
downtown Modesto on the evening of July 23, 2005, because Garcia was making gestures for
Westside, part of the Norteno criminal street gang.
Testimony of Deputy Paul Teso

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Stanislaus County Deputy Sheriff Paul Teso testified that Garcia was a self-admitted member of
the Norteno criminal street gang effective December 8, 2006.

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Testimony of Olivia Valdovinos

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Olivia Valdovinos testified that Pete Garcia never held a gun to her head, never attempted to
push her out of a second-floor window, and never carried a gun in her purse to help Garcia
avoid trouble. She said she carried a gun in her purse because she wanted to and denied that her
uncle, Charles Simmons, Jr., took that gun away from her. Valdovinos said she did not know
who fired first during the shooting at her apartment.

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With respect to events after the shooting, Valdovinos admitted talking to her uncle, Charles, Jr.,
several times about getting some money from appellant's father as an apparent inducement for
her not to testify against appellant. She said the first such conversation with her uncle occurred
at her grandfather's house prior to trial. The second such conversation with her uncle took place
over the telephone and the conversation was recorded. According to a transcript of the
recording, Valdovinos said she had already spoken with appellant's father. During that same
recorded telephone call with Charles, Jr., appellant agreed to take $15,000 down and an
additional sum later. At trial, however, Valdovinos said she never followed through with the
proposed inducement and also said she reported “the conversation” to the district attorney's
office before trial.
Related Testimony of Charles Simmons, Jr.
Charles Simmons, Jr., testified he spoke with Valdovinos in Modesto on June 8, 2009, and she
asked what did appellant's father “have for her not to show up.” Valdovinos did not mention a
specific dollar amount but did mention that she had a pending $5,000 cleanup bill for her
apartment. Valdovinos told Simmons she would not show up in court and testify in return for
whatever appellant's father had.
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During a telephone call with Simmons, Valdovinos said she would take $15,000 up front as
long as she received $5,000 later on. Investigator Charles Cahoone was present during
Simmons's speakerphone conversation with Valdovinos. According to Cahoone, “Olivia asked
if he [Simmons] had spoke[n] to big Tim [appellant's father], and she said if they were still
willing to do it [pay her hush money], that she would not go to jail for not testifying because of
the law against not testifying against relatives.”

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Testimony of Erica Baca

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Erica Baca testified that Valdovinos had spoken to her about Garcia putting a gun to her head
and attempting to push her out of a window. Baca also said that she and Valdovinos had talked
about the trial. According to Baca, “she [Valdovinos] told me if certain issues came up in court,
she was going to lie about them.”

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Testimony of Sergeant Craig Breckenridge
Modesto Police Sergeant Craig Breckenridge testified he arrested Garcia for being in possession
of a loaded firearm on the evening of September 1, 2000. The arrest occurred during a traffic
stop, and Garcia was seated in the rear passenger seat behind the driver. A fellow officer told
Sergeant Breckenridge the location of the weapons. Garcia denied ownership, and the driver of
the vehicle claimed that one of the weapons belonged to his cousin.

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Rebuttal Evidence
Testimony of Shankar Sharma, Lorenzo Martinez, and Robert Lopez

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Shankar Sharma testified he did not see what happened to appellant's gun after the shooting.
Lorenzo Martinez testified he saw appellant fire the weapon but did not see it again after the
shooting. Robert Lopez testified he never saw appellant with a gun and never saw him fire a
weapon.

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Testimony of Margaret Janis

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Margaret Janis testified that she visited her daughter, Valdovinos, and Pete Garcia once or twice
a week at the Almond Terrace Apartments. On one occasion, she saw Valdovinos with a black
eye, but Valdovinos said she incurred the injury when she got into a fight at a club. Janis did not
recall seeing her daughter with “a busted lip.” However, she did remember her daughter saying
she had injured herself in bar fights on several occasions. Janis did not know that appellant had
been convicted of a battery on his wife in 2003 or that he had grabbed his stepmother's neck and
pulled her hair in December 2003.

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Testimony of Defense Investigator Charles Cahoone

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Defense investigator Charles Cahoone interviewed Sharma on January 7, 2009. Sharma told
him he heard Garcia say, “Watch out,” open the security screen door, stick his right foot and
hand out of the door, and hold a chrome revolver in his hand. Sharma told Cahoone that
appellant then stepped in front of Sharma, and Garcia shot at appellant. Sharma saw a flash
from the muzzle of a gun and ran toward the balcony railing. At the railing, Sharma looked back
and saw appellant return shots into the apartment. Cahoone interviewed Lorenzo Martinez and
Robert Lopez that same date and Martinez and Lopez offered similar versions of the events
surrounding the shooting.

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(Doc. 12, Ex. A, pp. 1-11).
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DISCUSSION
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1

I.

Jurisdiction

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Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to

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the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the

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United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.

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7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States

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Constitution. The challenged conviction arises out of the Stanislaus County Superior Court, which is

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located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d).

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On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996

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(“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v.

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Murphy, 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997); Jeffries v. Wood, 114

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F.3d 1484, 1500 (9th Cir. 1997), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by

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Lindh v. Murphy, 521 U.S. 320 (holding the AEDPA only applicable to cases filed after statute’s

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enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed

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by its provisions.

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II.

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A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the

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petitioner can show that the state court’s adjudication of his claim: (1) resulted in a decision that was

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contrary to, or involved an unreasonable application of, clearly established Federal law, as determined

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by the Supreme Court of the United States; or (2) resulted in a decision that “was based on an

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unreasonable determination of the facts in light of the evidence presented in the State court

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proceeding.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S.

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at 412-413.

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Legal Standard of Review

A state court decision is “contrary to” clearly established federal law “if it applies a rule that

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contradicts the governing law set forth in [the Supreme Court’s] cases, or “if it confronts a set of facts

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that is materially indistinguishable from a [Supreme Court] decision but reaches a different result.”

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Brown v. Payton, 544 U.S. 133, 141 (2005), citing Williams, 529 U.S. at 405-406 (2000).

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In Harrington v. Richter, 562 U.S. ___ , 131 S.Ct. 770 (2011), the U.S. Supreme Court

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explained that an “unreasonable application” of federal law is an objective test that turns on “whether
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it is possible that fairminded jurists could disagree” that the state court decision meets the standards set

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forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable application of

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federal law is different from an incorrect application of federal law.’” Cullen v. Pinholster, 131 S.Ct.

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1388, 1410-1411 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court

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“must show that the state court’s ruling on the claim being presented in federal court was so lacking in

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justification that there was an error well understood and comprehended in existing law beyond any

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possibility of fairminded disagreement.” Harrington, 131 S.Ct. at 787-788.

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The second prong pertains to state court decisions based on factual findings. Davis v.

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Woodford, 384 F.3d at 637, citing Miller-El v. Cockrell, 537 U.S. 322 (2003). Under § 2254(d)(2), a

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federal court may grant habeas relief if a state court’s adjudication of the petitioner’s claims “resulted

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in a decision that was based on an unreasonable determination of the facts in light of the evidence

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presented in the State court proceeding.” Wiggins v. Smith, 539 U.S. at 520; Jeffries v. Wood, 114

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F.3d at 1500. A state court’s factual finding is unreasonable when it is “so clearly incorrect that it

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would not be debatable among reasonable jurists.” Id.; see Taylor v. Maddox, 366 F.3d 992, 999-1001

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(9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).

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To determine whether habeas relief is available under § 2254(d), the federal court looks to the

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last reasoned state court decision as the basis of the state court’s decision. See Ylst v. Nunnemaker,

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501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). “[A]lthough we

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independently review the record, we still defer to the state court’s ultimate decisions.” Pirtle v.

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Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

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The prejudicial impact of any constitutional error is assessed by asking whether the error had “a

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substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson,

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507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007)(holding that the Brecht

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standard applies whether or not the state court recognized the error and reviewed it for harmlessness).

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Furthermore, where a habeas petition governed by the AEDPA alleges ineffective assistance of counsel

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under Strickland v. Washington, 466 U.S. 668 (1984), the Strickland prejudice standard is applied and

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courts do not engage in a separate analysis applying the Brecht standard. Avila v. Galaza, 297 F.3d

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911, 918 n. 7 (9th Cir. 2002); Musladin v. Lamarque, 555 F.3d 830, 835 (9th Cir. 2009).
12

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III. Review of Petitioner’s Claims.

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The instant petition itself alleges the following as grounds for relief: (1) use of CALCRIM No.

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3475 was erroneous; (2) use of a jury instruction regarding provocation of a fist fight was erroneous;

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(3) erroneous use of instruction regarding consciousness of guilt from flight; (4) reversible evidentiary

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error; (5) erroneous exclusion of evidence; (6) newly discovered evidence of innocence; and (7)

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ineffective assistance of counsel.

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A. CALCRIM No. 3475

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Petitioner first contends that the trial court erred in instructing the jury with CALCRIM No.

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3475. This contention is without merit.
1. The 5th DCA’s Opinion.

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The 5th DCA rejected Petitioner’s claim as follows:

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Appellant contends the court eliminated his claim of right of self-defense and denied him due
process by giving CALCRIM No. 3475 [right to eject trespasser from real property]. While we
will address appellant's numerous primary and subsidiary contentions, we note the issues of
trespass and defense of real property were not at the heart of this case. We further note that
appellant's single-minded emphasis on the concept of trespass and the giving of CALCRIM No.
3475 overlooks our responsibility to assess the correctness and adequacy of jury instructions by
a consideration of the entire charge, rather than by reference to parts of an instruction or from a
particular instruction. (People v. Holt (1997) 15 Cal.4th 619, 677; People v. Smithey (1999) 20
Cal.4th 936, 963–964.)

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A. Background

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During the jury instruction conference, the court referred to CALCRIM No. 3475, which he
described as dealing “with the right to eject a trespasser from real property.” The court said the
instruction is normally used “when someone is charged with a crime that is ejecting someone
from the property.” Defense counsel opposed the giving of CALCRIM No. 3475. Counsel
acknowledged “[t]he right to use deadly force inside your home when somebody invades it....”
However, he pointed out that appellant yelled at Garcia and did not move toward or open the
apartment door. The prosecution maintained that appellant demanded a confrontation with
Garcia. The prosecution conceded, “[T]hat may not now allow the enjoyment of firing the gun,
but it may allow the response of saying I have a deadly weapon. Get out of here.” The court
noted that CALCRIM No. 3475 did not specifically mention the use of deadly force. Rather,
the instruction mentioned reasonable force and the court elected to give the instruction over
defense objection.

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B. The Instruction
At the apparent request of the prosecution, the court subsequently instructed the jury in
CALCRIM No. 3475, as follows:
“A lawful occupant of a home may request that a trespasser leave the home. If the
trespasser does not leave within a reasonable time and it appears to a reasonable person
that the trespasser poses a threat to the home or the occupants, the lawful occupant may
use reasonable force to make a trespasser leave. A reasonable force means the amount of
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force that a reasonable person in the same situation would believe is necessary to make
the trespasser leave.
“In deciding whether Pete Garcia used reasonable force, consider all the circumstances
as they were known to him and appeared to him and consider whether a reasonable
person in a similar situation with similar knowledge would have believed.”
C. The Arguments of Counsel

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During his opening argument, the prosecutor acknowledged that appellant and his companions
gained access to the Almond Terrace Apartments through the pedestrian gate. The prosecutor
pointed out that appellant's companions could not “decide if it was open, closed, or unlocked,
but clearly they opened it up and got in” during the early morning hours of April 15, 2007. The
prosecutor referred to appellant as a trespasser who went to Garcia's residence at 4:00 a.m. and
noted “there's an instruction on the rights of someone who, you know, protect themselves [sic]
against this kind of conduct.” In his responsive argument, defense counsel acknowledged that
appellant called Garcia out but did not make any attempt to enter the apartment, even when the
screen door was open. Defense counsel further acknowledged: “So wh[ile] you have the right
to reject [a] trespasser, you don't have the right to use unreasonable force, and assaulting him
with a deadly weapon is unreasonable force.” The prosecutor argued on rebuttal that Garcia and
appellant were not similarly situated because one was a homeowner and the other was an
intruder. He maintained Garcia was in his home, was threatened by appellant, and had the right
of self-defense.

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D. Appellant's Contention

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Appellant broadly argues that CALCRIM No. 3475 labeled him a “trespasser,” justified Garcia's
use of reasonable force to make appellant leave his residence, and eliminated appellant's
“meritorious claim of self-defense, in violation of due process.”
Appellant goes on to argue, among other things, that (1) CALCRIM No. 3475 “was a burden
shifting instruction in violation of due process;” (2) the inference that appellant was a trespasser
was unfounded; (3) the evidence was “legally insufficient to establish that appellant was a
trespasser, although it was enough to mislead the jury;” (4) the prosecutor's argument distorted
the instruction, resulting in a denial of due process; and (5) the instruction misled the jury on the
principles of self-defense in violation of appellant's right to due process.

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E. Analysis

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1. General Law of Instructional Error

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If a trial court's instructional error violates the United States Constitution, the standard stated in
Chapman v. California (1967) 386 U.S. 18, 24, requires the People, in order to avoid reversal of
the judgment, to “prove beyond a reasonable doubt that the error ... did not contribute to the
verdict obtained.” (See People v. Simon (1995) 9 Cal.4th 493, 506, fn. 11 (Simon).) But if a
trial court's instructional error violates only California law, the standard is that stated in People
v. Watson (1956) 46 Cal.2d 818, 836, which permits the People to avoid reversal unless “it is
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the error.” (Simon, supra, 9 Cal.4th at p. 506, fn. 11; see also People
v. Mower (2002) 28 Cal.4th 457, 484.)

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2. Validity of CALCRIM No. 3475 and Alleged Shifting of the Burden of Proof

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CALCRIM No. 3475 does not specifically address or allocate the burden of proof. As to the
burden of proof, the trial court initially instructed the jury in CALCRIM No. 103 [reasonable
doubt]: “A defendant in a criminal case is presumed to be [innocent]. This presumption requires
that the People prove the defendant guilty beyond a reasonable doubt. Whenever I tell you the

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People must prove something, I mean they must prove it beyond a reasonable doubt.” The court
went on to instruct the jury in CALCRIM No. 505 [justifiable homicide; self-defense or defense
of another] in pertinent part as follows:
“The defendant is not guilty of murder or manslaughter if he was justified in killing
someone in self-defense or defense of another. The defendant acted in lawful selfdefense or defense of another if:
“One, the defendant reasonably believed that he or someone else was in imminent
danger of being killed or suffering great bodily injury;
“Two, the defendant reasonably believed that the immediate use of deadly force was
necessary to defend against that danger;
“And, three, the defendant used no more force than reasonably necessary to defendant
against that danger. [¶] ... [¶]
“The defendant's belief that he or someone else was threatened may be reasonable even
if he relied on information that was not true. However, the defendant must actually and
reasonably had believed the information was true. If you find that the defendant knew
that Peter Silverio Garcia had threatened or harmed others in the past, you may consider
that information in deciding whether the defendant's conduct and beliefs were
reasonable.
“A defendant is not required to retreat. He ... or she is entitled to stand his or her ground
and defend himself or herself and if reasonably necessary pursue an assailant until the
danger of death or great bodily injury has passed. This is so even if safety could have
been achieved by retreating. Great bodily injury and significant or substantial injury, it is
injury that is greater than minor or moderate harm.
“The People have the burden of proving beyond a reasonable doubt that the killing was
not justified. If they have not met this burden, you must find the defendant not guilty of
murder or manslaughter.
“When the original aggressor is not guilty of a deadly attack but of simple assault or
trespass, the victim has no right to use deadly or other excessive force. If the victim uses
such force, the aggressor's right of self-defense arises.
“If, however, the counterassault be so sudden and perilous that no opportunities be given
to decline or make known to his adversary of his willingness to decline or make known
to the adversary of his willingness to decline to strike if he cannot retreat with safety,
then the greater wrong of the deadly assault is upon the opponent, he would be justified
in ... slaying forthwith in self-defense”
“In reviewing claims of instructional error, we look to whether the defendant has shown a
reasonable likelihood that the jury, considering the instruction complained of in the context of
the instructions as a whole and not in isolation, understood that instruction in a manner that
violated his constitutional rights. [Citations.] We interpret the instructions so as to support the
judgment if they are reasonably susceptible to such interpretation, and we presume jurors can
understand and correlate all instructions given. [Citations.]” (People v. Vang (2009) 171
Cal.App.4th 1120, 1129.) Here, references in CALCRIM No. 3475 to appellant's status as an
alleged trespasser or Pete Garcia's alleged use of reasonable force were complemented and
clarified by the principles of justifiable homicide and the relevant burden of proof as set forth in
CALCRIM No. 505.
In asserting a shift in the burden of proof, appellant acknowledges People v. Watie (2002) 100
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Cal.App.4th 866 (Watie), a factually similar case in which the Third Appellate District upheld
the use of CALJIC Nos. 5.40 and 5.42, predecessor instructions to CALCRIM No. 3475. In
Watie, the defendant's mother lived with his abusive stepfather, an ex-felon, and several
stepsiblings. On May 5, 1999, the defendant's stepfather assaulted his mother during a fight at
their home and she sustained a bloody face. The defendant saw his mother after the fight and he
told her to call the police. She called 911 about an hour later and said the stepfather had no
weapons in the house. A police officer responded to the scene and the defendant's mother told
him she had been the victim of domestic violence. The mother did not go to the hospital or file
charges against the stepfather. (Id. at p. 871–873.)
The defendant offered to pick up his stepsiblings. He put a gun in his back pocket, took two
friends, and went to his mother's home. After a heated conversation, the stepfather challenged
the defendant to a fight. The stepfather then went to the back of the house, and the defendant
thought he was going to get the stepsiblings. The stepfather returned with what the defendant
thought to be a rifle or shotgun and defendant shot him dead with the concealed handgun.
Emergency personnel and police officers responding to the scene found a wooden object
underneath the stepfather's body but no firearm. The defendant was charged with second degree
murder with personal use of a firearm (§§ 187, subd. (a), 12022.5, subd. (a)(1)) and discharging
a firearm in an inhabited dwelling (§ 246). As to both substantive counts, the Sacramento
County District Attorney charged the defendant with personal discharge of a firearm causing
great bodily injury (§ 12022 .53, subd. (d)). A jury found him guilty of the lesser included
offense of voluntary manslaughter (§ 192) and guilty of all of the charged offenses and
allegations. (Watie, supra, 100 Cal.App.4th at pp. 873–875.)
The defendant appealed contending the court erroneously gave CALJIC No. 5.40 [defense of
property—ejection of trespasser] and No. 5.42 [resisting an intruder upon one's property]. He
claimed the trial court erroneously failed to inform the jury that self-defense instructions applied
to the section 246 charge, failed to explain the malice element required to convict for a violation
of section 246, and failed to give a mistake-of-fact instruction to the jury. The Third District
Court of Appeal rejected these contentions and affirmed. The defendant claimed CALJIC Nos.
5.40 and 5.42 should not have been given to the jury because these instructions allowed jurors
to presume the stepfather was acting in lawful defense of his property and effectively removed
the defense of actual self-defense from the jury's consideration. (Watie, supra, 100 Cal.App.4th
at pp. 875–876.)
The Third District held the instructions were proper in light of the facts of the case. The
justification of self-defense requires a double showing: that the defendant was actually in fear of
his life or serious bodily injury and the conduct of the other party was such as to produce that
state of mind in a reasonable person. Generally, if one makes a felonious assault upon another,
or has created appearances justifying the other to launch a deadly counterattack in self-defense,
the original assailant cannot slay his adversary in self-defense unless he or she has first, in good
faith, declined further combat, and second, has fairly notified the adversary that he or she has
abandoned the combat. In addition to the instructions that generally describe self-defense, the
court instructed the jury on the defense of a dwelling, using CALJIC Nos. 5.40 and 5.42. The
right of a victim to defend himself and his property is a relevant consideration in determining
whether a defendant may prevail when he or she seeks to negate malice aforethought by
asserting the affirmative defense of imperfect self-defense. (Watie, supra, 100 Cal.App.4th at
pp. 877–879.)
In Watie, the jury was confronted with two questions: (1) whether the defendant's use of deadly
force was justified as he confronted his stepfather on the front porch of the latter's home and (2)
whether the defendant's unlawful conduct created circumstances that legally justified the
stepfather's use of force. According to the Third District, if the stepfather had a right to use force
to defend himself in his home, then the defendant had no right of self-defense, imperfect or
otherwise. The trial court's instructions on the stepfather's rights and the defendant's right to turn
to deadly force correctly stated the law. The Third District further noted that the jury apparently
credited the defendant's claim of self-defense by finding the defendant guilty of the lesser
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offense of voluntary manslaughter. To do so, the jury must have found that the defendant had,
or regained, the right to defend himself notwithstanding his stepfather's right to defend his
home. The Third District concluded the challenged instructions did not bear on the jury's
verdicts. (Watie, supra, 100 Cal.App.4th at pp. 878–879.)
Appellant claims Watie is inapplicable to the facts of this case because “the defendant in Watie
was properly deemed to be a trespasser” while in this case, “[a]ppellant was not a trespasser.”
Our reading of Watie does not reveal any specific discussion of the crime or concept of trespass,
although the Third District stated without citing to authority: “Moreover, defendant was guilty
of trespass and was threatening [the stepfather] whether defendant was attempting to break into
the house or not.”(Watie, supra, 100 Cal.App.4th at p. 879.) In fact, appellant ultimately
concedes in his opening brief: “Although the subject was not discussed in the Watie opinion, the
defendant was clearly deemed to be a trespasser....” Cases are not authority for propositions not
considered. (People v. Nguyen (2000) 22 Cal.4th 872, 879.) Appellant's claim that the decision
in Watie turned on the defendant's status as a trespasser at the home of his mother and stepfather
is questionable. The use of CALCRIM No. 3475 in this case was consistent with the use of its
predecessor instructions, CALJIC Nos. 5.40 and 5.42, in Watie.
Even if CALCRIM No. 3475 somehow implied that appellant was a trespasser at the Almond
Terrace Apartments, CALCRIM No. 505 protected his due process rights by fully and fairly
setting forth the concepts of lawful self-defense and defense of another.
2. Inference of Appellant as Trespasser
Appellant contends the inference that he was a trespasser was unfounded because there was no
jury instruction defining the term “trespasser.” Neither CALCRIM No. 3475 nor former
CALJIC No. 5.40, upon which appellant relies, sets forth a specific definition of the term
“trespasser.” As respondent points out, a technical definition of “trespasser” was not required
since appellant was not being prosecuted for trespass. In addition, the court instructed the jury in
CALCRIM No. 200 that: “Words and phrases not specifically defined in these instructions are
to be applied using their ordinary, everyday meanings.”
Appellant implies he was not a trespasser in common parlance because Almond Terrace resident
“Raquel [Baca] at least impliedly (if not explicitly) invited appellant to enter the apartment
complex.” On direct examination during the People's case-in-chief, Valdovinos said Raquel and
Garcia got into an argument at their apartment after Raquel returned from drinking. Garcia
eventually told Raquel, “‘Come on, Raquel. This is going too far.’” According to Valdovinos,
Raquel replied, “‘Oh, you trying to hit me? You trying to hit me? You think you're bad?...
Watch. I'm going to get my cousin Timmy over here.’” On direct examination during the
defense case, defense counsel specifically asked Raquel Baca, “Did you ask him [appellant] to
go over to Olivia's apartment and beat up on Pete?” Baca replied, “No.” On direct examination
during the defense case, defense counsel asked Shankar Sharma about the events leading to the
shooting. Sharma said they arrived at Valdovinos's apartment and appellant knocked on the
window. When Valdovinos answered the door, appellant asked, “‘Are you okay?’” Valdovinos
responded, “‘Timmy, what are you doing here? Why are you [here]?’” When appellant asked
whether Garcia was still hitting her, she replied, “‘No, just get out of here.’”

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The totality of the testimony was conflicting, at best. Nevertheless, we do not consider
instructions in isolation (People v. Holt (1997) 15 Cal.4th 619, 677), but determine the
correctness and sufficiency of the jury instructions by assessing the entirety of the charge
(People v. Musselwhite (1998) 17 Cal.4th 1216, 1248). Even if CALCRIM No. 3475 implied
that appellant was a trespasser, CALCRIM No. 505 protected his due process rights by fully and
fairly setting forth the concepts of lawful self-defense and defense of another. Reversible error
did not occur.

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3. Evidence of Trespass as Misleading in Nature

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Appellant contends criminal trespass, as defined by Penal Code section 602 and following
sections, does not apply to the common areas of an apartment complex. He further contends a
standard definition of trespass, such as that set forth in CALCRIM No. 2932 [trespass: entry
into dwelling (Pen.Code, § 602.5(a) & (b))], would have informed the jury of the technical
requirements for trespass and would have allowed the jury to “properly determine[ ] that
appellant was not a trespasser.”
In our view, appellant overemphasizes the brief reference to “trespasser” in CALCRIM No.
3475 to the exclusion of other, properly given instructions. When reviewing purportedly
ambiguous jury instructions, we ask whether there is a reasonable likelihood jurors applied the
challenged instructions in a way that violated the Constitution. (Estelle v. McGuire (1991) 502
U.S. 62, 72; People v. Welch (1999) 20 Cal.4th 701, 766.) In making this determination, we
must keep in mind that instructions are not considered in isolation. Instead, whether instructions
are correct and adequate is determined by consideration of the entire charge to the jury rather
than by reference to parts of an instruction or from a particular instruction. (People v. Holt,
supra, 15 Cal.4th at p. 677; People v. Smithey, supra, 20 Cal.4th at pp. 963–964.)
CALCRIM No. 3475 and its predecessor instructions (CALJIC Nos. 5.40 and 5.42) do not
include a technical definition of the term “trespasser.” Appellant has not cited and we have been
unable to find any specific case authority mandating such a definition as part of an instruction
on the ejection of a trespasser in defense of property or characterizing the absence of such a
definition as reversible error. Nor has appellant cited any authority permitting a defense of
property instruction only when an individual on the premises has been adjudicated guilty of
statutory trespass. Moreover, the court instructed the jury in CALCRIM No. 505 [justifiable
homicide; self-defense or defense of another] and appellant expressly deems that instruction to
be correct. CALCRIM No. 505 states in pertinent part: “When the original aggressor is not
guilty of a deadly attack but of simple assault or trespass, the victim has no right to use deadly
or other excessive force. If the victim uses such force, the aggressor's right of self-defense
arises.”(Italics added.)
Appellant fails to explain why or how the absence of a formal definition of “trespass” makes
CALCRIM No. 3475 deficient while the absence of the same definition makes CALCRIM No.
505 correct. Appellant's claim that CALCRIM No. 3475 was misleading is not supported by the
record or the law and must be rejected.
4. Alleged Prosecutorial Misconduct
In addition to claiming that CALCRIM No. 3475 was “fatally unclear on this record” due to the
absence of a definition for “trespasser,” appellant contends the prosecutor committed prejudicial
misconduct by distorting CALCRIM No. 3475 in his closing argument. He argues on appeal:
“[I]n the present case, the prosecutor built on a jury instruction which might be proper in
some circumstances, but which was misconstrued here. According to the prosecutor,
once appellant appeared at Garcia's door to settle the dispute over the abuse of Olivia
and Raquel, Pete Garcia had a right to pull out his handgun. Normally, this would trigger
the defendant's right to self defense—‘The defendant reasonably believed that he or
someone else was in imminent danger of being killed or suffering great bodily injury.’
But according to the prosecutor, that right to self-defense disappeared due to the
defendant's asserted trespasser status.”
Appellant challenges the following portion of the prosecutor's argument at trial:
“Now, Timothy Carrillo and Pete Garcia were not similarly situated. One's the
homeowner, one's the intruder. If you follow the scenario. For example, if Pete ...
brandished first, showed Timothy that he was armed and Timothy then had his gun at
the ready, Pete Garcia would be entitled to fire first. Why do I say that? Because he's in
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his home, he's being threatened, he has the right at that point of self-defense. He has a
right of self-defense because he knows that if he doesn't fire first, he'll be shot. That's a
scenario where he can fire first, he can be justified in firing first, and there's no right of
self-defense in that situation.
“Remember he's inviting him [to] take out that gun and to show it and whatever. That's
why he's taunting him the whole time. Are you packing Pete? Are you packing? Well,
are you packing? I'm ready for you if you are is the implication, and, of course, he was
packing and he was ready for him.
“And I think it's misplaced the entire inquiry [sic ] if, and it's still not certain, that Pete
did fire first, but under the circumstances, as the person who has the right to defend
himself and this person is there to provoke a fight or quarrel, the jury instruction Mr.
Spokes touched on: ‘The person does not have the right to self-defense if he provokes
the fight or quarrel with the intent to create an excuse to use force.’[¶] It's precisely what
he did in this case. This instruction, albeit real short, can't be any clearer.
“As I said, this fight didn't occur out in public or some parking lot or something like
that. It occurred at the man's home with Olivia there, Cary Thompson there at 4:00
o'clock in the morning with him goading him and continuing to goad Pete. Yes, if things
could have worked out differently, wouldn't it be wonderful. Two people wouldn't be
dead. Wouldn't it ha[ve] been wonderful if someone had suddenly slammed the door and
bolted it. Who knows what may have happened but it didn't happen that way. It didn't
happen that day. The responsibility for those deaths lies with Mr. Carrillo.”

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“To constitute a violation of the federal Constitution, prosecutorial misconduct must ‘“so infect[
] the trial with unfairness as to make the resulting conviction a denial of due process.”’
[Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair
is prosecutorial misconduct under state law only if it involves ‘“the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.”’” (People v.
Benavides (2005) 35 Cal.4th 69, 108.) Appellant failed to object to the comments at the time of
trial, an omission that ordinarily bars consideration of the claim on appeal. (People v. Medina
(1995) 11 Cal.4th 694, 756; People v. Benson (1990) 52 Cal.3d 754, 794.) Appellant has not
supplied any plausible basis for his contention that an objection and admonition could not have
cured any harm that assertedly flowed from the prosecutor's remarks, despite his broad claims
that “[t]he fundamental error was in the jury instruction” and counsel's “argument built directly
on the misleading nature of CALCRIM 3475.”

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Appellant's claim of prosecutorial misconduct at argument must be rejected.

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F. Conclusion

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In evaluating the respective arguments of the parties, we are reminded that a single jury
instruction regarding the right of a residential occupant to eject a trespasser is but an aspect of a
greater issue in this case—the question of justifiable homicide and the role self-defense as
between the deceased victim, Pete Garcia, and the surviving combatant, the appellant himself.
Clearly, the court briefly instructed the jury in the right of an occupant to eject a trespasser from
residential real property (CALCRIM No. 3475). However, appellant's challenge to this
instruction overlooks other pertinent instructions given in this case.

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For example, the court expressly instructed the jury: “Evidence of the defendant's character as a
protector of female family members can by itself create a reasonable doubt.” (CALCRIM No.
350). The court also instructed: “Where the original aggressor i[s] not guilty of a deadly attack,
but of a simple assault or trespass, the victim has no right to use deadly or other excessive force.
If the victim uses such force, the aggressor's right of self-defense arises....” (CALCRIM No.
505). The court further instructed on excusable homicide: accident (CALCRIM No. 510);
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provocation: effect of degree of murder (CALCRIM No. 522); voluntary manslaughter: heat of
passion—lesser included offense (CALCRIM No. 570); and voluntary manslaughter: imperfect
self-defense (CALCRIM No. 571).
Moreover, the court expressly considered giving CALCRIM No. 3471 [right to self-defense:
mutual combat or initial aggressor], which would have supplied appellant with another solid
basis for self-defense. However, appellant's trial counsel objected to the instruction as
inconsistent with the defense theory of the case and the evidence in the case.
Taking the instructions as a whole, and considering the arguments of the parties, we see no
reasonable likelihood that the jurors interpreted CALCRIM No. 3475 to apply in a way that
violated appellant's rights or his ability to present a defense. (See Estelle v. McGuire, supra, 502
U.S. at p. 72 [applying “‘reasonable likelihood’” test to review of ambiguous instructions];
People v. Clair (1992) 2 Cal.4th 629, 663 [same].)

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(Doc. 12, Ex. A, pp. 11-20).
2. Federal Standard.
The issue of whether a jury instruction is a violation of state law is neither a federal question nor

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a proper subject for habeas corpus relief. Estelle, 502 U.S. at 68. ("We have stated many times that

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'federal habeas corpus relief does not lie for errors of state law.' "), quoting Lewis v. Jeffers, 497 U.S.

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764, 780 (1990); Gilmore v. Taylor, 508 U.S. 333, 348-49 (1993) (O’Connor, J., concurring) (“mere

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error of state law, one that does not rise to the level of a constitutional violation, may not be corrected

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on federal habeas”). Indeed, federal courts are bound by state court rulings on questions of state law.

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Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir.), cert. denied, 493 U.S. 942 (1989). In addition,

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“the availability of a claim under state law does not of itself establish that a claim was available under

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the United States Constitution.” Sawyer v. Smith, 497 U.S. 227, 239 (1990), quoting, Dugger v.

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Adams, 489 U.S. 401, 409 (1989).

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In reviewing an ambiguous instruction, the inquiry is not how reasonable jurors could or would

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have understood the instruction as a whole; rather, the court must inquire whether there is a “reasonable

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likelihood” that the jury has applied the challenged instruction in a way that violates the Constitution.

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See Estelle, 502 U.S. at 72 & n. 4; Boyde v. California, 494 U.S. 370, 380 (1990). However, a

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determination that there is a reasonable likelihood that the jury has applied the challenged instruction in

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a way that violates the Constitution establishes only that an error has occurred. See Calderon v.

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Coleman, 525 U.S. 141, 146 (1998). If an error is found, the court also must determine the error had a

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substantial and injurious effect or influence in determining the jury's verdict before granting habeas
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relief. See id. at 146–47 (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
In determining whether instructional error warrants habeas relief, a habeas court must consider

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“‘whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates

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due process’ ... not merely whether ‘the instruction is undesirable, erroneous, or even universally

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condemned.’” Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (quoting Cupp v. Naughten, 414 U.S.

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141, 146-47 (1973)); California v. Roy, 519 U.S. 2, 5 (1996) (challenge in habeas to the trial court’s

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jury instructions is reviewed under the standard in Brecht, 507 U.S. at 637--whether the error had a

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substantial and injurious effect or influence in determining the jury’s verdict.). The burden of

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demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on

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the constitutional validity of a state court's judgment is even greater than the showing required to

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establish plain error on direct appeal. Hanna v. Riveland, 87 F.3d 1034, 1039 (9th Cir. 1996).

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In a criminal case, an evidentiary device must not undermine the fact-finder’s responsibility at

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trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.

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County Court of Ulster County, N. Y. v. Allen, 442 U.S. 140, 156 (1979); In re Winship, 397 U.S. 358,

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364 (1970). A permissive inference is one of the most common evidentiary devices, which allows, but

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does not require, the trier of fact to infer the elemental fact from proof by the prosecutor of the basic

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one and which places no burden of any kind on the defendant. Ulster, 442 U.S. at 157, 99 S.Ct. at

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2224. “Because this permissive presumption leaves the trier of fact free to credit or reject the inference

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and does not shift the burden of proof, it affects the application of the ‘beyond a reasonable doubt’

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standard only if, under the facts of the case, there is no rational way the trier could make the connection

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permitted by the inference.” Id., 442 U.S. at 157, 99 S.Ct. at 2225; U.S. v. Warren, 25 F.3d 890, 897

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(9th Cir. 1994); Sterling v. Roe, 2002 WL 826807 (N.D. Cal. 2002). “A permissive inference violates

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the Due Process Clause only if the suggested conclusion is not one that reason and common sense

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justify in light of the proven facts before the jury.” Francis v. Franklin, 471 U.S. 307, 314-315 (1985).

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The Due Process Clause of the Fourteenth Amendment “protects the accused against conviction

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except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which

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he is charged.” In re Winship, 397 U.S. at 364. The Supreme Court held: “the Constitution does not

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require that any particular form of words be used in advising the jury of the government’s burden of
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proof. Rather, taken as a whole, the instructions must correctly convey the concept of reasonable doubt

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to the jury.” Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239 (1994). This standard reduces the

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chance that an innocent person will be conviction. Winship, at 362. Winship does not require every

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fact upon which the jury relies be proven to a reasonable doubt. Many facts not proven to that standard

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may, collectively, allow the jury to infer an element of the crime is proven beyond a reasonable doubt.

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To enforce Winship’s rule, judges must instruct juries that they cannot return a guilty verdict unless the

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government has met this burden. Cool v. United States, 409 U.S. 275, 278 (1972). A jury conviction

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based upon an impermissibly low quantum of proof violates the jury trial guarantee of the Sixth

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Amendment. Sullivan v. Louisiana, 508 U.S. 275, 278 (1993). A judge can violate a defendant’s rights

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by giving an instruction that undercuts the force of an otherwise proper beyond-a-reasonable-doubt

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instruction. See, e.g., Cool, 409 U.S. at 102-103; Sandstrom v. Montana, 442 U.S. 510, 521 (1979).

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When a jury instruction is susceptible to a reading that would render the verdict unconstitutional

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and another that would generate a proper verdict, the reviewing court considers the challenged

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instruction in light of the full jury charge and in the context of the entire trial. See Naughten, 414 U.S.

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at 145-147(consider charge as whole); United States v. Park, 421 U.S. 658, 675 (1975)(consider context

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of whole trial). The court must then decide whether there is a reasonable likelihood that the jury

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applied the challenged instruction in an unconstitutional manner. Estelle, 502 U.S. at 72. A verdict

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remains valid if a jury instruction only tangentially undercut a proper beyond-a-reasonable-doubt

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instruction. Naughten, 414 U.S. at 149-150.

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3. Analysis.

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Petitioner raises the same state-law arguments here that were rejected by the Court of Appeal.

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He contends that instructing the jury with CALCRIM No. 3475 was erroneous because: (1) it shifted

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the burden of proof in violation of federal due process; (2) the inference that Petitioner was a trespasser

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was unfounded; (3) the evidence was “legally insufficient to establish that Petitioner was a trespasser,

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although it was enough to mislead the jury; (4) the prosecution’s argument distorted the instruction,

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resulting in a denial of due process; and (5) the instruction misled the jury on the principles of self-

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defense in violation of Petitioner’s due process rights.

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While it is clearly-established federal law that “[t]he government must prove beyond a
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reasonable doubt every element of a charged offense,” Victor, 511 U.S. at 5, the Court is unconvinced

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the alleged errors complained of by Petitioner lightened the prosecutor's burden in this case or

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improperly shifted a burden of proof to petitioner. In any criminal case, the prosecutor presents

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evidence to establish that the offense has been committed, and the defendant has the option to rebut that

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evidence to demonstrate that the evidence fails to establish the elements of the offense beyond a

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reasonable doubt. Here, the prosecutor presented evidence that Petitioner was trespassing and therefore

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his legal right to use force against the victim was limited, and the jury was instructed as to how to

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address that evidence under California law. Specifically, the testimony of Raquel Baca, Garcia’s

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girlfriend, established that she had not invited Petitioner and his friends over to start a fight with Baca,

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to defend her, or for any other such purpose. Since it is clear Garcia did not invite Petitioner, a juror

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could reasonably assume that Petitioner was a trespasser. Of course, the jurors could have rejected that

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testimony and concluded as well that Petitioner had been implicitly invited to Baca’s residence to

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protect her against Garcia. However, those factual issues were squarely within the province of the jury

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and CALCRIM 3475 did not, in any way, shift the burden of proof to Petitioner from the prosecution.

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An instruction that, as here, creates a permissive inference does not, ipso facto, shift the burden

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of proof, and will not violate due process unless it cannot be said “‘with substantial assurance’” that the

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inferred fact is “‘more likely than not to flow from the proved fact on which it is made to depend.’”

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County Court of Ulster County v. Allen, 442 U.S. 140, 167 & n. 28 (1979)(quoting Leary v. United

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States, 395 U.S. 6, 36 (1969)). Courts “determine the constitutionality of a permissive inference

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instruction on a case-by-case basis” by reviewing the record evidence to see if the court can say with

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substantial assurance that the inferred fact flows more probably than not from the facts proven in the

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particular case. See, e.g., Ulster County, 442 U.S. at 162-167 (finding instruction constitutional only

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after concluding that inference more probably than not flowed from specific facts proven to jury at

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trial).

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In the Court’s view, the 5th DCA focused on the fundamental issue when it described the central

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question as “the question of justifiable homicide and the role of self-defense as between the deceased

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victim, Pete Garcia, and the surviving combatant, [Petitioner] himself.” The gravamen of Petitioner’s

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argument is that the challenged instruction diminished the viability of his claim of self-defense.
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However, as the 5th DCA noted, the challenged instruction is not viewed in isolation, but rather as part

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of the overall jury charge. The state court noted the jury was specifically instructed that “Evidence of

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the [Petitioner’s] character as a protector of female family members can by itself create a reasonable

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doubt.” Also, the court instructed the jury that “Where the original aggressor i[s] not guilty of a deadly

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attack, but of a simple assault or trespass, the victim has no right to use deadly or other excessive force.

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If the victim uses such force, the aggressor’s right of self-defense arises….” Additional, the jury was

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instructed on excusable homicide through accident, provocation, the effect of degree of murder,

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voluntary manslaughter, heat of passion as a lesser included offense, and voluntary manslaughter

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(imperfect self-defense). Of course, the jury was given the normal instructions on burden of proof as

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well.
Respondent notes that the jury was instructed that “[s]ome of these instructions may not apply

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depending on the finding about the facts in the case. Do not assume just because I give a particular

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instruction that I am suggesting anything about the facts. After you decided what the facts are, follow

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the instructions that you apply to the facts as you find them.” (Doc. 12, p. 36). This is entirely

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consistent with federal habeas law regarding jury instructions. See, e.g., Ulster, 442 U.S. at 157

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(“Because this permissive presumption leaves the trier of fact free to credit or reject the inference and

17

does not shift the burden of proof, it affects the application of the ‘beyond a reasonable doubt’ standard

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only if, under the facts of the case, there is no rational way the trier could make the connection

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permitted by the inference.” ); Francis v. Franklin, 471 U.S. at 314-315 (“A permissive inference

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violates the Due Process Clause only if the suggested conclusion is not one that reason and common

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sense justify in light of the proven facts before the jury.”).

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Here, as a whole, the instructions adequately instructed the jury regarding the burden of proof,

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the defense of self-defense, and the relation of that defense to the reasonable doubt instruction. It is

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specious to assert otherwise. The jury is presumed to have followed those instructions. Weeks v.

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Angelone, 528 U.S. 225, 234 (2000). Moreover, the jury was free to accept or reject the permissive

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inferences referenced above based upon its collective view of the evidence. That it reached a

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conclusion with which Petitioner disagrees is not, by itself, a basis for habeas relief. Accordingly, the

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state court decision is not contrary to nor an unreasonable application of clearly established federal law.
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28 U.S.C. § 2254(d). Hence, the claim will be denied.2

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B. Use Of Instruction On Provocation

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Petitioner next contends that the trial court erred in instructing the jury regarding provocation of

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a fist fight. This contention is also without merit.
1. The 5th DCA’s Opinion.

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The 5th DCA rejected Petitioner’s claim as follows:

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Appellant contends the trial court committed reversible error by giving CALCRIM No. 3472
[right to self-defense; may not be contrived] under the circumstances of this case.

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A. Background

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At the September 15, 2009, jury instruction conference, the trial court mentioned CALCRIM
No. 3472. Defense counsel opposed giving the instruction because he did not believe it fit the
facts of appellant's case. Defense counsel acknowledged that, according to Valdovinos,
appellant called Garcia to come outside of the apartment. However, counsel maintained there
was no mutual combat and his client “certainly was not provoking a deadly fight.” The
prosecutor argued appellant and his three companions went to Garcia's apartment “with the
express purpose to fight him.” The prosecutor also noted that appellant knew that Garcia was
“apt to resort to firearms” and appellant was “prepared and ready to meet that exigency.” In
reply, defense counsel contended the intent to go to the apartment and engage in fisticuffs “is
provoking a fight or a quarrel, but that's not inviting somebody to shoot you.” The court noted
it was ultimately the People's burden to prove the killing was not in self-defense. While defense
counsel agreed with that point, he asserted “if it's mutual combat, there's no self-defense
involved. The way the instruction currently reads, it doesn't draw the line between fisticuffs and
the use of deadly force. If you insert the word ‘deadly’ in front of the word ‘force,’ I would have
no objection to the instruction.” Defense counsel further argued: “The issue is you can't go
over and instigate a fight or a quarrel with the intent to use deadly force, claim self-defense and
use deadly force.” After some additional argument, the court said it would give the instruction
over defense objection and reminded the parties that it was “the People's burden of proof to
prove that Mr. Carrillo had the intent to create an excuse to use force.” The court expressly
permitted defense counsel to argue deadly force.

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The court subsequently instructed the jury in CALCRIM No. 3472 as follows:

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“The person does not have the right to use self-defense if he or she provokes a fight or
quarrel with the intent to create an excuse to use force.”

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Petitioner also contends that the prosecution engaged in misconduct by referencing the challenged instruction and thereby
misled the jury. Respondent’s rejoinder is that the claim is procedurally barred because no contemporaneous objection was
made by the defense. Here, given the Court’s conclusion that the instruction, when considered within the overall general
charge to the jury, was justified, it is difficult to see how comments by the prosecution in closing argument about a justified
instruction could possibly constitute misconduct. Nor, given the foregoing discussion, does the Court see how such
comments could have so confounded the jury that it would rise to the level of a federal due process violation. The general
jury charge provided a wide array of options other than the verdict that it ultimately reached. Many of those options would
have resulted in a shorter sentence than Petitioner received. The heart of Petitioner’s argument seems to be not that the
trial court erred in giving the jury these various options, but rather that the jurors eventually chose an option that carried the
heaviest penal sanctions. However, if the jury was, as here, properly instructed, it is not the function of a federal habeas
court to insert its own judgment for that of the jurors who heard the case. Accordingly, the Court rejects any contention by
Petitioner that the prosecution engaged in misconduct during closing argument.

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B. Closing Arguments

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At closing argument, defense counsel characterized CALCRIM No. 3472 as “a little bit
misleading.” Counsel conceded the appellant went to the apartment and challenged Pete Garcia
to a fist fight and not a gun fight. Counsel advised the jurors: “[R]eading that instruction you
probably should consider the question about whether or not he's going to use deadly force.”
During his closing argument, the prosecutor characterized Garcia as a homeowner and appellant
as an intruder. He maintained even if Garcia brandished a weapon first and appellant “had his
gun at the ready,” Garcia was entitled to fire first because he was being threatened in his home
and had a right of self-defense. The prosecutor reminded the jury that appellant taunted Garcia
by saying, “Are you packing Pete? Are you packing? Well are you packing? I'm ready for you
if you are is the implication, and, of course, he was packing and he was ready for him.” The
prosecutor read the “provokes the fight or quarrel” language of CALCRIM No. 3472 and added,
“It's precisely what he [appellant] did in this case.”

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C. Analysis
Appellant offers a meandering, multifaceted attack on CALCRIM No. 3472. He first implies
that CALCRIM No. 3472 is erroneous on its face. As we observed with respect to CALCRIM
No. 3475 above, the parties have not cited and we have been unable to find any case authority
invalidating or questioning the accuracy of expression of CALCRIM No. 3472. Absent such
authority, we conclude that CALCRIM No. 3472 accurately stated the existing law and the trial
court properly gave the instruction pursuant to California Rules of Court, rule 2.1050(e).
Appellant next contends that CALCRIM No. 3472 is defective because it does not set forth the
principles embodied in former CALJIC No. 5.32, regarding the use of a deadly weapon in
response to an assault with fists. He also contends CALCRIM No. 3472 shifted the burden of
proof from the prosecution to the defense. We initially note that appellant cites to the wrong
CALJIC instruction. Former CALJIC No. 5.31, not 5.32, stated:
“An assault with the fists does not justify the person being assaulted in using a deadly
weapon in self-defense unless that person believes and a reasonable person in that same
or similar circumstances would believe that the assault is likely to inflict great bodily
injury upon [him][her].”
Appellant points out that Penal Code section 197, subdivision (e) is the source for the
underlying principle of CALJIC No. 5.31—that an assault with less than deadly force does not
allow a response with deadly force. He argues:
“By the terms of that statute, a person claiming self-defense must have a ‘reasonable
ground to apprehend a design to commit a felony or to do some great bodily injury, and
imminent danger of such design being accomplished.’ The statute does not justify the
use of deadly force in response to an assault with fists. In order to justify Pete Garcia's
action in drawing his gun, the prosecution had to demonstrate that the defendant's
actions amounted to the imminent commission of a felony or an attack to inflict great
bodily injury—but not the initiation of a mere fist fight. [¶] ... [¶]
“Since no criminal defendant could properly claim self-defense in Garcia's position, the
prosecution could not claim self-defense in his behalf. Therefore, to the extent the
People's case relied on a claim of self-defense attributable to Pete Garcia, Garcia's use of
deadly force could not be justified by a threat of non-deadly force by the defendant.
CALCRIM [No.] 3472 should not have been applied to this record.” (Fn.omitted.)
As we previously observed, “a single instruction is not to be viewed in ‘artificial isolation’;
instead, it must be evaluated ‘in the context of the overall charge.’ [Citations.]” (People v.
Espinoza (1992) 3 Cal.4th 806, 823–824.) “What is crucial for present purposes is the meaning
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that the instructions communicated to the jury. If that meaning was not objectionable, the
instructions cannot be deemed erroneous. [Citation.]” (People v. Benson, supra, 52 Cal.3d at p.
801, italics omitted.)
Here, the court also instructed the jury in CALCRIM No. 505 [justifiable homicide: self-defense
or defense of another], which stated in pertinent part:
“A defendant is not required to retreat. [H]e or she is entitled to stand his or her ground
and defend himself or herself and if reasonably necessary pursue an assailant until the
danger of death or great bodily injury has passed. This is so even if safety could have
been achieved by retreating. Great bodily injury and significant or substantial injury, it is
injury that is great than minor or moderate harm.
“The People have the burden of proving beyond a reasonable doubt that the killing was
not justified. If they have not met this burden, you must find the defendant not guilty of
murder or manslaughter.
“When the original aggressor is not guilty of a deadly attack but of simple assault or
trespass, the victim has no right to use deadly or other excessive force. If the victim uses
such force, the aggressor's right of self-defense arises.
“If, however, the counterassault be so sudden and perilous that no opportunities be given
to decline or make known to his adversary of his willingness to decline or make known
to the adversary of his willingness to decline to strike if he cannot retreat with safety,
then the greater wrong of the deadly assault is upon the opponent, he would be justified
in ... slaying forthwith in self-defense.”
In view of the foregoing portions of CALCRIM No. 505, there was no reasonable likelihood the
jury was misled as to the law of self-defense and justifiable homicide. The charge to the jury
correctly stated the applicable law and there was no error.

16
(Doc. 12, Ex. A, pp. 20-22).
17
2. Federal Standard.
18
The same federal standard applies as in the first claim for relief.
19
3. Analysis.
20
To the extent that Petitioner is contending that CALCRIM No. 3472 was erroneous and did not
21
correctly state California law, such claims are, as mentioned previously, outside the scope of federal
22
23
24

habeas courts since they are exclusively questions of state law and the state court’s determination that
the instruction properly stated California law is binding on this court. Estelle, 502 U.S. at 67 (“We
have stated many times that ‘federal habeas corpus relief does not lie for errors of state law.’”), quoting

25
Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Gilmore v. Taylor, 508 U.S. 333, 348-349 (1993)
26
27

(O’Connor, J., concurring)(“mere error of state law, one that does not rise to the level of a
constitutional violation, may not be corrected on federal habeas”).

28
To the extent that Petitioner maintains that the instruction wrongfully shifted the burden from
27

1

the prosecution to the defense, Petitioner is once again mistaken. Nothing in the instruction specifically

2

refers to the burden of proof and, as was the case with CALCRIM No. 3475, the entire jury charge,

3

taken as a whole, clearly and unequivocally instructed the jury regarding the prosecution’s burden of

4

proof beyond a reasonable doubt as well as its burden to disprove self-defense. Also, as discussed

5

above, the jurors were presented with a variety of options regarding the degree of criminal culpability

6

Petitioner should bear for his conduct. The fact that the jurors ultimately chose the more severe degree

7

of criminal culpability was the result of the jury’s deliberative choices among conflicting evidence, and

8

not the result of a defective jury charge that confused or misled jurors in their deliberations. Under

9

such circumstances, the state court’s adjudication that the instruction did not violate Petitioner’s due

10

process rights was not objectively unreasonable.

11

C. Instruction On Consciousness Of Guilt Resulting From Flight

12

Petitioner next argues that the trial court erred in instructing the jury regarding consciousness of

13
14

guilt resulting from flight. This contention too is without merit.
1. The 5th DCA’s Opinion.

15

The 5th DCA rejected Petitioner’s claim as follows:

16

Appellant contends an instruction on consciousness of guilt from flight was unsupported by the
evidence because appellant “left the scene in a hail of bullets, seriously wounded [and][h]e
immediately sought assistance at a nearby fire station, which was next to the police
department.”

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24

A. Instructional Conference
At the reported jury instruction conference, the court raised CALRIM No. 372 and defense
counsel asserted, “There was no flight.” Counsel maintained appellant left the scene because he
was dying. The prosecutor acknowledged that appellant departed for a dual purpose but
suggested it was a question for the jury. The court noted the objection of the defense but
concluded it was appropriate to give the instruction. The court advised both counsel, “That's
obviously something you can argue both of you in terms of whether Mr. Carrillo fled or not or
was merely attempting to obtain or receive medical treatment....”
B. The Instruction Given to the Jury

26

The court instructed the jury in CALCRIM No. 372 [defendant's flight] as follows:
“If the defendant fled immediately after the crime was committed, that conduct may
show that he was aware of his guilt. If you conclude the defendant fled, it is up to you to
decide the meaning and importance of that conduct.”

27

C. Governing Law

28

Penal Code section 1127c provides:

25

28

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“In any criminal trial or proceeding where evidence of flight of a defendant is relied
upon as tending to show guilt, the court shall instruct the jury substantially as follows:
“The flight of a person immediately after the commission of a crime, or after he is
accused of a crime that has been committed, is not sufficient in itself to establish his
guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or
innocence. The weight to which such circumstance is entitled is a matter for the jury to
determine.
“No further instruction on the subject of flight need be given.”
“This statute was enacted to abolish the common law rule that the jury could not be instructed
on flight unless there was evidence defendant knew he had been accused.” (People v. Pensinger
(1991) 52 Cal.3d 1210, 1243.) “A flight instruction is proper whenever evidence of the
circumstances of defendant's departure from the crime scene or his usual environs, or of his
escape from custody after arrest, logically permits an inference that his movement was
motivated by guilty knowledge.” (People v. Turner (1990) 50 Cal .3d 668, 694.)

10

D. Defense Counsel's Closing Argument

11

During argument, defense counsel cited to the instruction, pointed out it was up to the jury to
decide the meaning and importance of appellant's conduct at the scene, and reminded the jurors
that evidence of flight by itself could not prove guilt. Counsel specifically argued to the jury:
“Well folks, when you've been shot three times.... And they took him [appellant] to the fire
station. Where's the fire station? It's in the same building with the police department. If your
flight is a sign of consciousness of guilt, what are you doing running to the police department?”

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E. Analysis
Section 1127c requires that whenever evidence of flight is relied on to show guilt, the court
must instruct that while flight is not sufficient to establish guilt, it is a fact which, if proved, the
jury may consider. (People v. Williams (1997) 55 Cal.App.4th 648, 651.) A flight instruction is
proper where the evidence shows the defendant departed the scene under circumstances
suggesting his movement was motivated by a consciousness of guilt. Flight requires neither the
physical act of running nor the reaching of a far-away haven. Yet, flight manifestly does
require a purpose to avoid being observed or arrested. Mere return to familiar environs from the
scene of an alleged crime does not warrant an inference of consciousness of guilt. However, the
circumstances of departure from the crime scene may sometimes do so. (People v. Bradford
(1997) 14 Cal.4th 1005, 1055; People v. Carter (2005) 36 Cal.4th 1114, 1182.)
To warrant the giving of CALCRIM No. 372, the prosecution need not provide that the
defendant in fact fled, i.e., departed the scene to avoid arrest. Rather, the prosecution need only
prove that a jury could find that defendant fled and permissibly infer a consciousness of guilt
from the evidence. (People v. Bonilla (2007) 41 Cal.4th 313, 328 [construing CALJIC No. 2.52,
predecessor instruction to CALCRIM No. 372].) Alternative explanations for flight conduct go
to the weight of the evidence, which is a matter for the jury, and not the court, to decide.
(People v. Rhodes (1989) 209 Cal.App.3d 1471, 1477.) CALCRIM No. 372 assumes neither
the guilt of the defendant nor that flight occurred. (People v. Campos (1982) 131 Cal.App.3d
894, 900.) The Third District Court of Appeal recently upheld the constitutionality of
CALCRIM No. 372. (People v. Paysinger (2009) 174 Cal.App.4th 26, 30–31.) This court has
held that CALCRIM No. 372 does not impermissibly presume the existence of a defendant's
guilt or lower the prosecution's burden of proof. (People v. Hernandez Rios (2007) 151
Cal.App.4th 1154, 1159.)
In this case, appellant left the Almond Terrace Apartments with his three friends immediately
after the shooting occurred. The evidence did show that appellant sought medical attention after
29

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the shooting and defense counsel pointed out that fact during argument. Even if we were to
conclude the instruction should not have been given, any error would have been harmless. The
instruction did not assume that flight was established. Rather, the instruction permitted the jury
to make that factual determination and to decide what weight to accord it. (People v. Carter
(2005) 36 Cal.4th 1141182–1183.) Upon review, we must presume the jury followed the law as
presented, and, if flight was not proven, that it was not considered in reaching a verdict. (People
v. Sing Chan (1944) 64 Cal.App.2d 167, 173, disapproved on another ground in People v.
Mathis (1965) 63 Cal.2d 416, 430.)
The giving of CALCRIM No. 372 did not amount to a miscarriage of justice under the facts and
circumstances of this case.
(Doc. 12, Ex. A, pp. 22-24).
2. Federal Standard.
The same federal standard applies as with the previous two claims for relief.
3. Analysis.
Petitioner contends, in essence, that the jury instruction on consciousness of guilt from flight

12

was not supported by evidence at trial because the evidence showed that Petitioner was not attempting

13

flight but rather to seek medical attention for his wounds. However, as the 5th DCA noted, the issue is

14

not whether the instruction was supported by sufficient evidence because the instruction assumed a

15

hypothetical, as it were, which the jury was expressly instructed that it could find true or not,

16

depending upon how the jury weighed the evidence. If the jurors found that Petitioner indeed had

17

sought medical attention and was not attempting to flee, then they were instructed not to consider

18

consciousness of guilt. On the other hand, if the jurors believed that Petitioner and his cohorts had

19

fled the scene of the shooting and then later sought medical attention for Petitioner’s wounds, then

20

could decide the “meaning and importance of that conduct” and, in doing so, they could consider

21

consciousness of guilt.

22

Petitioner argues, unpersuasively, that the instruction shifted the burden to Petitioner.

23

However, nothing in the instruction expressly shifted the burden of proof, nor, indeed, required that

24

the jurors even find that Petitioner fled the scene. On what Petitioner calls the question at the “heart of

25

the case,” i.e., “whether the fatal confrontation was provoked by the [Petitioner] or by Pete Garcia,”

26

the challenged instruction takes no position. It merely instructs the jurors that, should they find that

27

Petitioner fled the scene, they may also infer consciousness of guilt. The state court reasonably found

28

that, if error, the instruction was harmless. Similarly, this Court concludes that giving jurors the
30

1

option of finding that Petitioner fled or sought medical treatment was not prejudicial. Accordingly,

2

any error was harmless. Brecht, 507 U.S. at 623.

3

D. Reversible Evidentiary Error

4

Petitioner contends that the trial court committed reversible evidentiary error when it permitted

5

the introduction of evidence of a handgun found at Petitioner’s house that was not the murder weapon.

6

This contention is likewise without merit.

7

1. The 5th DCA’s Opinion.

8

The 5th DCA rejected Petitioner’s claim as follows:

9

A. Background

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On September 2, 2009, the court and counsel met outside the presence of the jury. The
prosecutor mentioned that the Ceres Police Department had recovered a gun from appellant's
home, and that a cartridge referred to by criminalist Lawson “could have come from that gun,
but that it would be a stretch, but it's possible.” The prosecutor referenced a comparison of testfired bullets with bullets removed from the scene and from body of victim Thompson. The
prosecutor specifically acknowledged: “Based on the agreement of general rifling
characteristics combined with the absence of correspondence in microscopic detail, these bullets
cannot be identified or eliminated as being fired in the Smith & Wesson revolver. However,
based on differences in microscopic detail, they were most likely not fired from the Smith &
Wesson revolver.” Defense counsel maintained the bullets at the scene “most likely [weren't]
fired from that gun, so I think under [Evidence Code section 352,] prejudicial effect outweighed
by zero evidence or zero relevance, since he eliminated it as being the firearm.” The court
allowed the prosecutor to present evidence of the weapon and reminded defense counsel that he
could interpose an objection at the time the prosecutor moved to admit the weapon into
evidence. The court explained: “[T]here is some, although I grant a not real large possibility,
but there is some probative evidence that this firearm could have been the same one, but then
that still comes up with the problem as to how it ended up there [in appellant's residence].”
Criminalist Scott Bauer testified the bullets recovered from the scene and from Thompson's
body were most likely not fired from the Smith & Wesson. He testified on direct examination:
“From my examination of my test fire from the Smith & Wesson revolver, I saw no microscopic
marks that looked similar to those bullets at all, and I would expect if it was fired from the same
firearm, I would see at least some correspondence in those markings, but I didn't see any. But,
again, I couldn't eliminate it or identify it but in my opinion most likely not.” On crossexamination, Bauer confirmed that in his opinion the test bullets were most likely not fired by
the Smith & Wesson.
B. Governing Law

24
25
26
27
28

Evidence Code section 353 states:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based
thereon be reversed, by reason of the erroneous admission of evidence unless:
“(a) There appears of record an objection to or a motion to exclude or to strike the
evidence that was timely made and so stated as to make clear the specific ground of the
objection or motion; and
31

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“(b) The court which passes upon the effect of the error or errors is of the opinion that
the admitted evidence should have been excluded on the ground stated and that the error
or errors complained of resulted in a miscarriage of justice.”
When the prosecution relies on evidence regarding a specific type of weapon, it is error to admit
evidence that other weapons were found in defendant's possession. That is because such
evidence tends to show not that defendant committed the crime, but only that he or she is the
sort of person who carries deadly weapons. (People v. Barnwell (2007) 41 Cal.4th 1038, 1056.)
In the instant case, law enforcement officers found a .38–caliber Smith & Wesson six-shot
revolver inside a bag in appellant's closet sometime after the April 15, 2007, shooting. In the
opinion of criminalist Scott Bauer, the bullets recovered from the bodies of Pete Garcia and
Cary Thompson were most likely not fired from the gun recovered from appellant's closet.
However, Bauer was unable to conclusively say that the Smith & Wesson did not fire the bullets
that struck Garcia and Thompson. The prosecutor frankly acknowledged these facts but
nevertheless sought admission of the weapon because a cartridge referenced by criminalist
Lawson “could have come from that gun, but that it would be a stretch, but it's possible.”
The jury was well aware that appellant discharged a firearm at Pete Garcia in the Almond
Terrace Apartments during the early morning hours of April 15, 2007. However, evidence that
the bullets came from the Smith & Wesson revolver found at appellant's home was minimal.
Criminalist Scott Bauer testified that criminal Lawson recovered four discharged bullets at the
scene. One of the four bullets was recovered from Garcia's body and two of the four were
recovered from Thompson's body. Bauer determined the four bullets were not fired from the
Rossi revolver recovered from the entry of the Valdovinos/Garcia apartment. As to the Smith &
Wesson revolver, Bauer testified he “could not eliminate or identify the bullets as being fired
from the revolver.” Bauer explained: “It's a fine line. The ... bullets that were recovered, they
had some very good markings on them. From my examination of my test fire from the Smith &
Wesson revolver, I saw no microscopic marks that looked similar to those bullets at all, and I
would expect if it was fired from the same firearm, I would see at least some correspondence in
those markings, but I didn't see any. But, again, I couldn't eliminate it or identify it but in my
opinion most likely not.”
Bauer's testimony was tentative at best and the trial court conceded there was “a not real large
possibility” that the Smith & Wesson revolver was the weapon that fired the bullets that killed
Garcia and Thompson. Even if we assume the evidence should have been excluded on the
ground stated (Evid.Code, § 353, subd. (b)), that assumption does not end our inquiry. Reversal
is required only when the errors complained of resulted in a miscarriage of justice. (Evid.Code,
§ 353, subd. (b).) “[A] miscarriage of justice should be declared only when the court, after an
examination of the entire cause, including the evidence, is of the opinion that it is reasonably
probable that a result more favorable to the appealing party would have been reached in the
absence of the error.” (People v. Rains (1999) 75 Cal.App.4th 1165, 1170.) Prejudice is never
presumed; it must be affirmatively demonstrated. (People v. Zunis (2005) 134 Cal.App.4th
Supp 1, 4.)
Appellant claims he was prejudiced because admission of the Smith & Wesson into evidence
served only to demonstrate that he is the sort of person who hoards deadly weapons and has a
propensity for violence. From the entirety of the evidence, the jury was well aware that (1)
appellant engaged in an exchange of gunfire with Pete Garcia at the Almond Terrace
Apartments; (2) Garcia and Thompson died from wounds sustained during that exchange; and
(3) bullets removed from the bodies of Garcia and Thompson did not match the Rossi revolver
which Garcia used at the scene. Appellant's presence and active participation in the gunfight
were well-established by various witnesses. Given these facts and circumstances, we cannot
say a miscarriage of justice occurred because appellant has failed to demonstrate a reasonable
probability that a result more favorable to him would have occurred had evidence of the Smith
& Wesson revolver been excluded.
32

1
(Doc. 12, Ex. A, pp. 24-25).
2
2. Federal Standard.
3
Initially, the Court notes that the Supreme Court has expressly left open the question of
4
whether the admission of propensity evidence violates due process. See Estelle, 502 U.S. at 75, n. 5;
5
see Holgerson v. Knowles, 309 F.3d 1200, 1202 (9th Cir.2002) (habeas relief not warranted unless due
6
process violation clearly established by the Supreme Court); Garceau v. Woodford, 275 F.3d 769, 774
7
8
9
10
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12
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(9th Cir. 2001), reversed on other grounds, Woodford v. Garceau, 538 U.S. 202 (2003)(the Supreme
Court “has never expressly held that it violates due process to admit other crimes evidence for the
purpose of showing conduct in conformity therewith....”). In this regard, in Holley v. Yarborough,
568 F.3d 1091 (9th Cir. 2009), the Ninth Circuit explained as follows:
The Supreme Court has made very few rulings regarding the admission of evidence as a
violation of due process. Although the Court has been clear that a writ [of habeas corpus]
should be issued when constitutional errors have rendered the trial fundamentally unfair
[Citations], it has not yet made a clear ruling that admission of irrelevant or overtly prejudicial
evidence constitutes a due process violation sufficient to warrant issuance of the writ.

14
15

Holley, 568 F.3d at 1101. Hence, the state courts’ rejection of Petitioner’s claim could not have been

16

“contrary to, or an unreasonable application of, clearly established” United States Supreme Court

17

authority, since no such “clearly established” Supreme Court authority exists. 28 U.S.C. § 2254(d)(1).

18

Second, Petitioner’s claim would normally sound only in state law and, therefore, would not be

19

cognizable in federal habeas proceedings. A federal habeas corpus court has no authority to review a

20

state's application of its own laws, but rather must determine whether a prisoner's constitutional or other

21

federal rights have been violated. Estelle, 502 U.S. at 67-68; Jackson v. Ylst, 921 F.2d 882, 885 (9th

22

Cir. 1990). Generally, the admissibility of evidence is a matter of state law, and is not reviewable in a

23

federal habeas corpus proceeding. Estelle, 502 U.S. at 67; Middleton v. Cupp, 768 F.2d 1083, 1085 (9th

24

Cir.), cert. denied, 478 U.S. 1021 (1985).

25

Nevertheless, there can be habeas relief for the admission of prejudicial evidence if the

26

admission was fundamentally unfair and resulted in a denial of due process. Estelle, 502 U.S. at 72;

27

Pulley v. Harris, 465 U.S. 37, 41 (1984); Walters v. Maas, 45 F.3d 1355, 1357 (9th Cir. 1995); Gordon

28

v. Duran, 895 F.2d 610, 613 (9th Cir.1990). However, the failure to comply with state rules of evidence
33

1

alone is neither a necessary nor a sufficient basis for granting federal habeas relief on due process

2

grounds. Jammal v. Van de Kamp, 926 F.2d 918, 919-920 (9th Cir. 1991). Only if there are no

3

permissible inferences that the jury may draw from the evidence can its admission rise to the level of a

4

due process violation. Id. at 920.

5
6

3. Analysis.
First, Respondent correctly points out that no clearly established federal law exists regarding the

7

admission of prejudicial evidence and, alternatively, that the admission of evidence is strictly an issue

8

of state law. The Court agrees with both arguments.

9

However, Petitioner also loses on the merits. Here, the state court concluded that, because the

10

experts could not expressly rule out the weapon found at Petitioner’s residence as the murder weapon, it

11

had some slight probative value. Petitioner has argued the probative value is so miniscule that it would

12

necessarily be outweighed by its prejudicial effect. Respondent, in turn, argues the evidence was

13

“irrelevant” because the prosecution never linked the weapon to the murders. (Doc. 12, p. 47).

14

Obviously, the weighing process required under Penal Code § 452 can be a difficult one where

15

the probative value of the disputed evidence is, as here, not substantial. However, even assuming that

16

the admission of the evidence was improper, it could not have amounted to a violation of Petitioner’s

17

due process rights, i.e., its admission was not “fundamentally unfair.” Estelle, 502 U.S. at 72. This is

18

so because, as the 5th DCA pointed out, the inference the defense contended could be prejudicially

19

drawn from the admission of the weapon was that Petitioner was the type of person had kept in his

20

possession a deadly weapon. Yet the jury had been presented with virtually undisputed evidence that

21

Petitioner went to the victims’ residence and engaged in a shootout with one victim that resulted in the

22

death of both victims. The evidence was also undisputed that the bullets that killed the unarmed second

23

victim were not from the first victim’s gun. Thus, the only reasonable inference was those bullets came

24

from Petitioner’s weapon. Because the jury already had overwhelming evidence that Petitioner was the

25

type of person who not only possessed a deadly weapon, but aggressively used it to kill other

26

individuals, admission of another, unrelated weapon found at his residence—a weapon that had only

27

the most tenuous connection to the crimes at issue--could not and did not impact the jury’s verdict.

28

Accordingly, even if admission of the weapon was error, it was harmless. Brecht, 507 U.S. at 623. The
34

1

state court’s rejection of this claim was not objectively unreasonable under these circumstances.

2

Accordingly, this claim is denied.

3

E. Exclusion Of Evidence

4

Petitioner further contends that the trial court committed reversible error when it erroneously

5
6

excluded evidence of a prior conviction by Garcia. This contention lacks merit.
1. The 5th DCA’s Opinion.

7

The 5th DCA rejected Petitioner’s claim as follows:

8

A. Background

9

During trial, Carmen Gutierrez, Valdovinos's aunt, testified that her niece lied when she said she
shot appellant. She said Valdovinos was trying to protect Pete Garcia “because he already had a
case for shooting somebody else.” On September 8, 2009, shortly after Gutierrez's testimony,
the court and counsel met outside the presence of the jury to discuss the admissibility of the
criminal conviction records of appellant and Garcia. At one point in the discussion, defense
asserted: “... I believe under [Evidence Code section] 1103(a)(1), that I should be able to bring
in instances of specific conduct by ... Mr. Garcia, that tends to show that he acted in conformity
with that character of always carrying guns and ... exhibiting assaultive behavior.” The
prosecutor noted that several witnesses had already testified that Garcia had such a reputation
“and suggested they were present in a room when he held a gun to Ms. Valdovinos' head and
tried to push her out a window.”

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After some discussion, the court noted the door had been opened as to specific instances of
Garcia's conduct but was reluctant because such conduct did not result in convictions. The
court observed, “[W]e'll have to decide how much of that evidence comes in.” Later in the
discussion, the court suggested: “... I can take judicial notice of that conviction [of Garcia on
June 26, 2003] ... and we can state that he was convicted of a [Penal Code section] 243(e)(1),
battery on a cohabitor and leave it at that. I think that would be the cleanest way to do it.” The
prosecutor agreed with the court but defense counsel noted: “Although I intend to present some
testimony concerning the facts and circumstances surrounding Mr. Garcia's felony conviction,
I'll provide you with enough information for you to do a judicial notice of that conviction as
well....” Defense counsel explained that he wanted to bring in an eyewitness to testify that
Garcia shot someone in the back on an earlier occasion and that he reached a plea bargain in the
earlier case. In response, the prosecutor argued such evidence was cumulative because the jury
was aware from other evidence that Garcia had violent propensities and carried weapons. The
prosecutor maintained: “... I don't think that under [Evidence Code section] 352 we should ... be
in a position of trying Pete Garcia all over again for that crime.”
After a recess, the court examined the file in the 2002 assault case against Pete Garcia. The
court noted the original complaint charged attempted murder by Garcia. Defense counsel
maintained he could introduce evidence underlying Garcia's conviction because the language of
Evidence Code section 1103 stated the prior conviction could be proven by acts. The
prosecutor agreed with this legal point but questioned whether testimony about the acts would
be reliable or whether such evidence should be admitted under Evidence Code section 352. The
prosecutor stated: “... I think it is prejudicial under 352 and could open up a whole range of
other people coming in, and then we're going to do a trial of trying the case of whether he was
guilty of attempted murder.” At the conclusion of the proceedings on September 9, 2009, the
court advised counsel he would read reports of the 2002 “event involving attempted murder
charges which resulted in a [Penal Code section] 245 conviction against Mr. Garcia.”
35

4

During a break in the proceedings of September 20, 2009, the court advised counsel he had
reviewed police reports of Garcia's 2002 assault case. Defense counsel noted that a firearm was
involved in the assault case. He suggested that one witness would testify that Garcia fired the
weapon and another witness would testify that Garcia removed the firearm from his waistband
and gave it to a third person to fire. He also maintained he had a right to present such evidence
“to support the testimony of the [trial] witnesses that [Garcia] had a reputation for carrying a
firearm.”

5

The court ultimately ruled:

6

“Under [Evidence Code section] 352 I'm not going to allow any testimony. The simple fact we
would have a trial within a trial concerning whether Mr. Garcia was the one that had the gun or
not. There's plenty of evidence of firearms, loaded firearms being around the house with Olivia,
and obvious evidence that he did use the firearm in this particular case, so I don't think there's
an issue about whether or not he would use a firearm because he obviously did in this case.”

1
2
3

7
8

10

At the conclusion of the evidence, the court informed the jury: “That Pete Silverio Garcia was
convicted of felony assault with force likely to produce great bodily injury on October 16th of
2002.”

11

B. Governing Law

12

Evidence Code section 354 states:

9

13
14
15

“A verdict or finding shall not be set aside, nor shall the judgment or decision based
thereon be reversed, by reason of the erroneous exclusion of evidence unless the court
which passes upon the effect of the error or errors is of the opinion that the error or
errors complained of resulted in a miscarriage of justice and it appears of record that:

16

“(a) The substance, purpose, and relevance of the excluded evidence was made known to
the court by the questions asked, an offer of proof, or by any other means;

17

“(b) The rulings of the court made compliance with subdivision (a) futile; or

18

“(c) The evidence was sought by questions asked during cross-examination or recrossexamination.”

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The rule of Evidence Code section 354 is necessary because, among other things, the reviewing
court must know the substance of the excluded evidence in order to assess prejudice. (People v.
Anderson (2001) 25 Cal.4th 543, 580.) Under California law, it is the burden of the proponent
of evidence to establish its relevance through an offer of proof or otherwise. An offer of proof
should give the trial court an opportunity to change or clarify its ruling and in the event of
appeal would provide the reviewing court with the means of determining error and assessing
prejudice. To accomplish these purposes, an offer of proof must be specific and must set forth
the actual evidence to be produced rather than merely the facts or issues to be addressed and
argued. (People v. Schmies (1996) 44 Cal.App.4th 38, 51, 53.)
Where discretionary power is vested in the trial court, the exercise of that discretion must not be
disturbed on appeal except upon a showing that the court exercised its discretion in an arbitrary,
capricious, or patently absurd manner resulting in a miscarriage of justice. (People v. Rodrigues
(1994) 8 Cal.4th 1060, 1124–1125.) A miscarriage of justice should be declared only when the
reviewing court is convinced after an examination of the entire case, including the evidence,
that it is reasonably probable a result more favorable to the appellant would have been reached
absent the error. (In re Marriage of Smith (1978) 79 Cal.App.3d 725, 751.) Expressed another
way, where a trial court's ruling does not constitute a refusal to allow defendant to present a
defense, but merely rejected certain evidence concerning the defense, the ruling does not
36

2

constitute a violation of due process. In that situation, the appropriate standard of review is
whether it is reasonably probable the admission of the evidence would have resulted in a verdict
more favorable to defendant. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317.)

3

C. Analysis

4

In the instant case, defense counsel introduced evidence to show that Pete Garcia had a
reputation being a member of the Norteno criminal street gang and for carrying guns. Counsel
further introduced evidence that Garcia was twice arrested in possession of loaded firearms. At
the conclusion of the evidence, the court advised the jury that Garcia previously had been
convicted of assault with force likely to produce great bodily injury. The record clearly showed
that Garcia fired a loaded gun at the Almond Terrace Apartments during the early morning
hours of April 15, 2007. A trial judge is not bound to allow cumulative testimony upon the
same point. (Douillard v. Woodd (1942) 20 Cal.2d 665, 669.) Had the court allowed the
defense to show that Garcia previously shot another individual in the back, it is not reasonably
probable that admission of such evidence would have resulted in a more favorable verdict.

1

5
6
7
8
9

The trial court did not abuse its discretion by excluding the proffered evidence.

10
11
12
13
14

(Doc. 12, Ex. A, pp. 26-29).
2. Federal Standard.
a. Confrontation Clause.
The right to confront witnesses, guaranteed by the Sixth and Fourteenth Amendments, includes

15

the right to cross-examine adverse witnesses to attack their general credibility or show their possible

16

bias or self-interest in testifying. Olden v. Kentucky, 488 U.S. 227, 231, 109 S.Ct. 480, 102 L.Ed.2d

17

513 (1988); Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986);

18

Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1973). A Confrontation Clause

19

violation occurs where the defendant is prevented from investigating “a prototypical form of bias” if

20

“[a] reasonable jury might have received a significantly different impression of [the witness'] credibility

21

had respondent's counsel been permitted to pursue his proposed line of cross-examination”). Van

22

Arsdall, 475 U.S. at 680. However, “[t]rial judges retain wide latitude insofar as the Confrontation

23

Clause is concerned” and may impose limitations on cross-examination that are “reasonable” and are

24

not “arbitrary or disproportionate to the purposes they are designed to serve.” Id. at 679; Michigan v.

25

Lucas, 500 U.S. 145, 151, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991). “The Confrontation Clause

26

guarantees an opportunity for effective cross-examination, not cross-examination that is effective in

27

whatever way, and to whatever extent, the defense might wish.” Van Arsdall, 475 U.S. at 679 (quoting

28

Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam)). A
37

1

defendant does not have a right to present irrelevant evidence. Wood v. State of Alaska, 957 F.2d 1544,

2

1549 (9th Cir.1992). The determination of whether evidence is relevant rests in the discretion of the

3

trial court. Id.

4

A two-part inquiry is appropriately used to determine whether a criminal defendant's Sixth

5

Amendment rights were violated by the exclusion of evidence. Wood, at 1549-50. First, the court looks

6

at whether the evidence was relevant. Id. at 1550. If the evidence is relevant, the court looks at whether

7

“legitimate interests outweighed [the defendant's] interest in presenting the evidence.” Id. A Sixth

8

Amendment violation will only be found if the trial court abused its discretion in making its evidentiary

9

ruling. Id. A trial court does not abuse its discretion so long as the jury has “sufficient information”

10
11

upon which to assess the credibility of witnesses. Wood, 957 F.2d at 1550.
The improper denial of a defendant's opportunity to impeach a witness for bias is subject to a

12

harmless-error analysis. Van Arsdall, 475 U.S. at 684; Bockting v. Bayer, 399 F.3d 1010, 1020 (9th

13

Cir.2005) (“Confrontation Clause violations are subject to harmless error analysis and thus may be

14

excused depending on the state of the evidence at trial”). Thus, a petitioner is not entitled to relief

15

unless he can establish that the trial court's error “had substantial and injurious effect or influence in

16

determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). See also Forn v.

17

Hornung, 343 F.3d 990, 999 (9th Cir.2003) (finding that a Confrontation Clause error did not have a

18

“substantial and injurious” effect on the verdict and that the error was therefore harmless).

19
20

b. Due Process.
Petitioner argues the trial court's exclusion of defense impeachment evidence was prejudicial

21

and resulted in a denial of his due process rights. He asserts that he sought to impeach potentially

22

damaging evidence by introducing evidence that would show Pete Garcia had been previously

23

convicted of assault with force likely to produce great bodily injury. However, the admission of

24

evidence is an issue of state law. Simple errors of state law do not warrant federal habeas relief. Estelle,

25

502 U.S. at 67. The ultimate question is whether the state proceedings satisfied due process. Holley,

26

568 F.3d at 1101. “[T]he presence of absence of a state law violation is largely beside the point.” Id.

27

Consequently, “[t]he admission of evidence does not provide a basis for habeas relief unless it rendered

28

the trial fundamentally unfair in violation of due process.” Id. (citations omitted).
38

3. Analysis.

1
2

Although, at first blush, Petitioner’s argument appears to raise serious constitutional concerns,

3

further examination shows that Petitioner’s claim is not that he was not permitted to impeach Garcia,

4

but that he was not permitted to impeach Garcia with one particular piece of evidence, i.e., Garcia’s

5

prior conviction for assault. Petitioner was permitted, however, to present evidence to the jury that

6

Garcia was a gang member with a reputation for carrying guns, that he had been arrested on two

7

separate occasions for possession of loaded firearms, the had had held a gun to another person’s head,

8

that he had shot Petitioner in this case, and that he had been convicted of assault with force likely to

9

produce great bodily injury. Put simply, as the 5th DCA noted, the trial record “clearly showed” Garcia

10

fired a loaded gun at Petitioner on the night of the incident and struck his target. The trial court rejected

11

evidence by the defense of Garcia’s prior conviction impliedly on the grounds that it was cumulative.

12

Given the substantial amount of impeachment evidence the defense was allowed to present, including

13

the fact that Garcia had shot Petitioner on the night in question, it is difficult to see how the additional

14

fact that he had been convicted previously of another assault with a firearm would have assisted the

15

jury in weighing the evidence or would have been anything other than cumulative. As the state court

16

concluded, presenting evidence that Garcia had shot another individual in the back would not, under

17

these circumstances, “have resulted in a more favorable verdict” for Petitioner. Accordingly, the state

18

court adjudication was not objectively unreasonable and, under Brecht, any error was harmless.

19

F. Newly Discovered Evidence Of Innocence

20

Petitioner next contends that newly discovered evidence of innocence requires granting habeas

21

corpus relief. This contention has no merit.
1. The Superior Court Opinion.

22
23

After noting that Petitioner raised two grounds for relief in his state petition, i.e., the conviction

24

was obtained by false evidence, and newly discovered evidence entitles him to a new trial, the Superior

25

Court rejected Petitioner’s claims, reasoning as follows:

26

I. BACKGROUND

27

…

28

Both grounds of the petition are based on the Declaration of Olivia Valdovinos (Exhibit N to the
petition). The statements made by Valdovinos in her declaration are partially evidentiary in
39

1
2
3
4
5
6
7
8
9
10
11

nature and partially explanatory and/or conclusory. For purposes of this order the factual
statements that are relevant to petitioner’s claims are found in paragraphs 6 and 7 of the
Valdovinos declaration.
The statements contained in paragraphs 6 and 7 differ from Valdovinos’ trial testimony to the
extent that she now declares that she did not see a gun in Carrillo’s hand before shot(s) were
fired and that Carrillo could not have fired first because Valdovinos did not see a gun in
petitioner’s hand when the first shot was fired.
II. FALSE EVIDENCE ISSUE
For purposes of Penal Code section 1473, subdivision (b)(1), false evidence is substantially
material or probative on the issue of guilt that was introduced against a defendant at trial. Falso
evidence is substantially material or probative if it is of such significance that it may have
affected the outcome in the sense that with reasonable certainty it could have affected the
outcome. In other words, false evidence passes the indicated threshold if there is a reasonable
probability that, had the false evidence not been introduced, the result would have been
different. The requisite reasonable probability is such as undermines the reviewing court’s
confidence in the outcome. It is dependent on the totality of circumstances and must be
determined objectively. (In Re Sassounian (1995) 9 Cal. 4th 535, 546.)

17

Based on an objective review of the totality of the circumstances, which includes all of the
evidence received by the jury, including reasonable inferences drawn therefrom, and the legal
instructions that were given to the jury, this court concludes that had the alleged false evidence
not been introduced at the trial that it is not reasonably probable that the outcome would have
been different. This court’s confidence in the outcome is not undermined. Petitioner argues
that had “this false evidence not been introduced…a different outcome would have been almost
certain.” This argument is based on petitioner’s belief that Valdovinos’ “false evidence” was
the only evidence supporting the People’s case. Based on this court’s review of the record, this
assertion ignores that nature and extent of all the other inculpatory evidence and the reasonable
inferences that could have been permissibly drawn therefrom. When the alleged “false
evidence” is placed in context with all of the other evidence presented to the jury, then a
different outcome was not reasonably probable.

18

III. NEWLY DISCOVERED EVIDENCE ISSUE

19

Carillo’s argument on this ground can be readily resolved. For Carrillo to prevail on this
argument, he must present newly discovered evidence at which point he may introduce any
evidence not presented at trial and which is not merely cumulative in relation to evidence which
was presented at trial. (In Re Hall (1981) 30 Cal.3d 408, 420.) In the instant case the “newly
discovered evidence” is the information contained in Valdovinos’ declaration, i.e., that the [sic]
Carrillo was not holding a firearm when Valdovinos heard the first shot. That is clearly
cumulative to evidence presented at trial. (See e.g., Baca testimony TT 261, lines 9-19;
Martinex testimony, TT 331, lines 8-17; and Lopez testimony, TT 354, Lines 4-17.)

12
13
14
15
16

20
21
22
23
24
25
26
27

In as much as the “newly discovered evidence” is cumulative in nature it is not the basis upon
which petitioner can seek relief as “newly discovered evidence.” This rule is consistent with the
broader principles that a criminal judgment may be collaterally attacked on habeas corpus on
the basis of newly discovered evidence if such evidence casts fundamental doubt on the
accuracy and reliability of the proceedings. At the guilt phase, such evidence, must undermine
the entire prosecution case and point unerringly to innocence or reduced culpability. (In Re
Lawley (2008) 42 Cal.4th 1231, 1239.) Herein, the newly discovered evidence does not
undermine the entire prosecution case nor does it point unerringly to innocence or reduced
culpability.

28
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1
2
3

(LD 18, pp. 1-3).
2. Federal Standard.
A petitioner who is in state custody and wishes to collaterally challenge his conviction by a

4

petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The

5

exhaustion doctrine is based on comity to the state and gives the state court the initial opportunity to

6

correct the alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose

7

v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988).

8
9

A petitioner can satisfy the exhaustion requirement by providing the highest state court with a
full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v.

10

Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88

11

F.3d 828, 829 (9th Cir. 1996). In this instance, the highest state court would be the California Supreme

12

Court. A federal court will find that the highest state court was given a full and fair opportunity to hear

13

a claim if the petitioner has presented the highest state court with the claim's factual and legal basis.

14

Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1 (1992) (factual basis).

15

Additionally, the petitioner must have specifically told the state court that he was raising a

16

federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th

17

Cir.2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999);

18

Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir.1998).

19
20
21
22

3. Analysis.
Respondent argues that Petitioner’s claims of false testimony and newly discovered evidence
raise no federal issues and thus are not cognizable under § 2254. The Court agrees.
In the instant petition, Petitioner argues newly-discovered evidence constitutes grounds for

23

habeas relief if the evidence bears upon the constitutional of the petitioner’s detention and if it is shown

24

the new evidence “would probably have resulted in the defendant’s acquittal.” (Doc. 2, p. 55).

25

Petitioner cites to California law permitting a prisoner to seek habeas relief where “[f]alse evidence that

26

is substantially material or probative on the issue of guilt or punishment was introduced against [him] at

27

any hearing or trial relating to his incarceration…,” citing Cal. Pen. Code § 1473(b)(1). (Id.).

28

Respondent points out that these two inter-related claims were presented to the state courts,
41

1

including the California Supreme Court, only as violations of state law, i.e., as a violation of §

2

1473(b)(1), for false evidence, and § 1473.6(b), for newly discovered evidence. Nowhere in

3

Petitioner’s state court papers does he present to the state court a federal question regarding either the

4

newly discovered evidence or false evidence claims. (LD 14, pp. 17; 19; LD 19, pp. 39-42).

5

In the Traverse, Petitioner does not attempt to rebut Respondent’s claim of lack of exhaustion.

6

Rather, Petitioner argues tepidly that a “freestanding claim of actual innocence…will support a federal

7

claim.” (Doc. 14, p. 19). However, what will “support” a federal claim and what may be the basis for a

8

federal claim are quite different. Petitioner does not cite, and the Court is unaware of, any federal

9

authority that a petitioner may maintain a free-standing claim of actual innocence based on newly

10

discovered evidence. That being the case, the issues of false evidence and newly discovered evidence

11

of innocence are questions of state law only, which are, as mentioned, not cognizable under federal

12

habeas law. Since Petitioner has never presented these issues as federal constitutional violations, the

13

may not now be raised as federal claims because they are unexhausted. Put another way, as federal

14

claims, they are unexhausted; as state claims, they are non-cognizable. For those reasons, the Court

15

DENIES this claim for relief.

16

G. Ineffective Assistance Of Counsel

17

Petitioner contends that his trial counsel was ineffective for failing to object to the prosecutor’s

18

argument that Petitioner was a trespasser and Garcia was entitled to fire first. (LD 19). This contention

19

is without merit.

20
21

1. Standard of Review.
Petitioner first raised this issue in his state habeas petition in the California Supreme Court.

22

Since the California Supreme Court summarily denied the petition, there is no “reasoned decision” for

23

this Court to review. When a state court reaches a decision on the merits but provides no reasoning to

24

support its conclusion, a federal habeas court independently reviews the record to determine whether

25

habeas corpus relief is available under § 2254(d). Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir. 2011);

26

Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.2003); Greene v. Lambert, 288 F.3d 1081, 1089 (9th

27

Cir.2002) (holding that when there is an adjudication on the merits but no reason for the decision, the

28

court must review the complete record to determine whether resolution of the case constitutes an
42

1

unreasonable application of clearly established federal law); Delgado v. Lewis, 223 F.3d 976, 982 (9th

2

Cir. 2000) (“Federal habeas review is not de novo when the state court does not supply reasoning for its

3

decision, but an independent review of the record is required to determine whether the state court

4

clearly erred in its application of controlling federal law.”). “[A]lthough we independently review the

5

record, we still defer to the state court’s ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th

6

Cir. 2002). “Independent review of the record is not de novo review of the constitutional issue, but

7

rather, the only method by which we can determine whether a silent state court decision is objectively

8

unreasonable.” Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner

9

still has the burden of “showing there was no reasonable basis for the state court to deny relief.”

10
11
12

Harrington, 131 S.Ct. at 784. Accordingly, this Court will independently review the claim herein.
2. Federal Legal Standard For Ineffective Assistance of Counsel.
Effective assistance of appellate counsel is guaranteed by the Due Process Clause of the

13

Fourteenth Amendment. Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective

14

assistance of appellate counsel are reviewed according to Strickland's two-pronged test. Miller v.

15

Keeney, 882 F.2d 1428, 1433 (9th Cir.1989); United States v. Birtle, 792 F.2d 846, 847 (9th Cir.1986);

16

see also Penson v. Ohio, 488 U.S. 75(1988) (holding that where a defendant has been actually or

17

constructively denied the assistance of appellate counsel altogether, the Strickland standard does not

18

apply and prejudice is presumed; the implication is that Strickland does apply where counsel is present

19

but ineffective).

20

To prevail, Petitioner must show two things. First, he must establish that appellate counsel’s

21

deficient performance fell below an objective standard of reasonableness under prevailing professional

22

norms. Strickland, 466 U.S. at 687-88. Second, Petitioner must establish he suffered prejudice in that

23

there was a reasonable probability that, but for counsel’s unprofessional errors, he would have

24

prevailed on appeal. Id. at 694. A “reasonable probability” is a probability sufficient to undermine

25

confidence in the outcome of the appeal. Id. The relevant inquiry is not what counsel could have done;

26

rather, it is whether the choices made by counsel were reasonable. Babbitt v. Calderon, 151 F.3d 1170,

27

1173 (9th Cir.1998).

28

With the passage of the AEDPA, habeas relief may only be granted if the state-court decision
43

1

unreasonably applied this general Strickland standard for ineffective assistance. Knowles v.

2

Mirzayance, 556 U.S. ___, 129 S.Ct. 1411, 1419 (2009). Accordingly, the question “is not whether a

3

federal court believes the state court’s determination under the Strickland standard “was incorrect but

4

whether that determination was unreasonable–a substantially higher threshold.” Schriro v. Landrigan,

5

550 U.S. 465, 473 (2007); Knowles, 129 S.Ct. at 1420. In effect, the AEDPA standard is “doubly

6

deferential” because it requires that it be shown not only that the state court determination was

7

erroneous, but also that it was objectively unreasonable. Yarborough v. Gentry, 540 U.S. 1, 5 (2003).

8

Moreover, because the Strickland standard is a general standard, a state court has even more latitude to

9

reasonably determine that a defendant has not satisfied that standard. See Yarborough v. Alvarado, 541

10

U.S. 652, 664 (2004)(“[E]valuating whether a rule application was unreasonable requires considering

11

the rule’s specificity. The more general the rule, the more leeway courts have in reaching outcomes in

12

case-by-case determinations”).

13

Here, the state court identified the appropriate federal standard by applying Strickland. Thus,

14

the only issue is whether the state court’s adjudication, i.e., that defense counsel’s representation was

15

neither deficient nor prejudicial, was not contrary to or an unreasonable application of Strickland. For

16

the reasons discussed below, the Court concludes that it was not.

17
18

3. Analysis.
In his Traverse, Petitioner concedes Respondent’s argument that defense counsel could not have

19

objected to the prosecutor’s arguments because it was based upon jury instructions that were already

20

approved by the trial judge and given to the jurors. As Petitioner notes, the “prosecutor’s argument was

21

squarely based on CALCRIM 3475, that suggested that the defendant was a trespasser and therefore

22

could be ejected by ‘reasonable force,” up to and including the use of lethal force by Pete Garcia.

23

(Doc. 14, p. 20). Petitioner also agrees, “[a] prosecution argument that merely sums up the trial court’s

24

jury instructions cannot be objected to.” (Id.).

25

Based upon Petitioner’s concession that trial counsel could not have objected to the prosecutor’s

26

comments, no basis exists for a claim that counsel was ineffective for failing to make an objection to

27

such comments. In making his concession, Petitioner emphasizes his claim that the instruction itself

28

was erroneous and violated his constitutional rights, a claim previously addressed, and rejected, in this
44

1

Order. Accordingly, based upon its independent review of this claim, the Court concludes that it should

2

be denied.

3

Moreover, the Court declines to issue a certificate of appealability. A state prisoner seeking a

4

writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of his petition, and

5

an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-336

6

(2003). The controlling statute in determining whether to issue a certificate of appealability is 28

7

U.S.C. § 2253, which provides as follows:

8
9
10
11
12
13
14
15
16
17
18

(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge,
the final order shall be subject to review, on appeal, by the court of appeals for the circuit in
which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the validity of a
warrant to remove to another district or place for commitment or trial a person charged with
a criminal offense against the United States, or to test the validity of such person's detention
pending removal proceedings.
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be
taken to the court of appeals from—
(A) the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a
substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or
issues satisfy the showing required by paragraph (2).

19
20

If a court denied a petitioner’s petition, the court may only issue a certificate of appealability

21

when a petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. §

22

2253(c)(2). To make a substantial showing, the petitioner must establish that “reasonable jurists could

23

debate whether (or, for that matter, agree that) the petition should have been resolved in a different

24

manner or that the issues presented were ‘adequate to deserve encouragement to proceed further’.”

25

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).

26

In the present case, the Court finds that Petitioner has not made the required substantial

27

showing of the denial of a constitutional right to justify the issuance of a certificate of appealability.

28

Reasonable jurists would not find the Court’s determination that Petitioner is not entitled to federal
45

1

habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Thus, the

2

Court DECLINES to issue a certificate of appealability.

3

ORDER

4

For the foregoing reasons, the Court HEREBY ORDERS as follows:

5

1. The petition for writ of habeas corpus (Doc. 2), is DENIED with prejudice;

6

2. The Clerk of the Court is DIRECTED to enter judgment and close the file;

7

3. The Court DECLINES to issue a certificate of appealability.

8
9
10
11

IT IS SO ORDERED.
Dated:

April 15, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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