Brooks v. Soto et al
Filing
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FINDINGS and RECOMMENDATIONS Regarding Petition for Writ of Habeas Corpus, referred to Judge O'Neill, signed by Magistrate Judge Stanley A. Boone on 12/5/2014. Objections to F&R Due Within Thirty Days. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JONQUEL BROOKS,
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Petitioner,
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Case No. 1:13-cv-01683-LJO-SAB-HC
FINDINGS AND RECOMMENDATION
REGARDING PETITION FOR WRIT OF
HABEAS CORPUS
v.
J. SOTO, Warden,
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Respondent.
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Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant
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18 to 28 U.S.C. § 2254. (Pet., ECF No. 1). He is represented in this action by Charles Carbone,
19 Esq.
Respondent is the Warden of California State Prison, Los Angeles County.
He is
20 represented in this action by Rebecca Whitfield, Esq., of the California Attorney General’s
21 Office.
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I.
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BACKGROUND
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Petitioner is currently in the custody of the California Department of Corrections and
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Rehabilitation pursuant to a judgment of the Superior Court of California, County of Fresno,
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following his conviction by jury trial on July 26, 2009, of the following charges: one count of
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first degree murder in which he personally and intentionally discharged a firearm, proximately
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1 causing death (Cal. Penal Code § 187(a) and 12022.53(d)); two counts of attempted murder in
2 which he personally and intentionally discharged a firearm, proximately causing great bodily
3 injury (Cal. Penal Code §§ 187(a), 664, and 12022.53(d)); and one count of attempted murder in
4 which he personally and intentionally discharged a firearm (Cal. Penal Code § 187(a), 664, and
5 12022.53(c)). (Pet., Ex. A.) He was sentenced to serve an aggregate term of nine years and four
6 months plus 100 years to life. (Id.)
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Petitioner timely filed a notice of appeal. On December 21, 2010, the California Court of
8 Appeal, Fifth Appellate District, reversed the judgment and remanded the matter to the trial court
9 to hear and determine Petitioner’s motion for new trial, though it found no prejudicial error in the
10 trial itself. (Id.) The motion for new trial was held before the trial judge, and the judge modified
11 the amount of restitution but reinstated the judgment and sentence. (Pet., Ex. B.) Petitioner
12 appealed to the Fifth District Court of Appeals, and the judgment was affirmed on May 16, 2012.
13 (Id.) Petitioner then filed a petition for review in the California Supreme Court. (Pet., Ex. C.)
14 On August 22, 2012, the petition was summarily denied. (Pet., Ex. D.) Next, Petitioner filed a
15 petition for writ of habeas corpus in the California Supreme Court. (Pet., Ex. E.) The petition
16 was summarily denied on March 13, 2013. (Pet., Ex. F.)
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Petitioner filed the instant federal petition for writ of habeas corpus in this Court on
18 October 17, 2013. The petition presents the following four grounds for relief: (1) The trial court
19 violated federal law when it prohibited Petitioner from presenting evidence that he was
20 frightened during the shooting; (2) The trial court misdescribed the State’s burden and deprived
21 Petitioner of his Sixth Amendment right to a jury trial; (3) The State violated Petitioner’s federal
22 right to an impartial judge when the state court denied Petitioner’s motion to have a new judge
23 decide his motion for new trial; and (4) Self-defense and related jury instructions violated
24 Petitioner’s right to present a defense and a fair trial.
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Respondent filed an answer to the petition on March 12, 2014. Petitioner filed a traverse
26 on March 21, 2014.
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II.
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STATEMENT OF FACTS1
A. Prosecution Evidence
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The University Village Apartments is a three-story complex on
East Barstow near Cedar. It provides housing for students at
Fresno State University. The individual apartment units consist of
separate sleeping quarters, each with lock on the door, and a
common living room/kitchen area. Apartment 126, which is on the
ground floor, has four separate bedrooms. As of May 7, 2007,
[footnote omitted], Lewis Carrol resided in bedroom A, appellant
resided in bedroom B, Rion Spears resided in bedroom C, and
Guillermo Meneses resided in bedroom D.
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About a month before May 7, appellant showed Meneses a gun.
Carrol recalled appellant showing him a pistol a couple of times
between Christmas and spring break. At one point, appellant told
Carrol that he had “gotten jumped” by some Mexicans and hit with
a bottle, and that his left eye had been hurt and he could go blind if
he were hit there again. As a result, appellant, who was African–
American, was not quick to trust Hispanics. However, he and
Carrol, who was Native American and Hispanic, had only normal
roommate problems that were not attributable to race. Although
Carrol never observed appellant to be nervous or have a problem
around large groups of people, appellant did not like to be touched.
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Eyewitness accounts differed as to what took place on May 7.
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Guillermo Meneses—
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Meneses was in his room, studying, at approximately 11:00 p.m.
Taking a break, he went into Carrol's room to play video games.
He saw Brant Daniels, Rodrick Buycks, Drew Pfeiff, Kodi Shiflett,
and a couple of other people walk in through the hallway. At no
time did Meneses see a weapon in any of their hands.
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The group headed toward appellant's room, and Daniels and
Buycks started talking to appellant. The conversation quickly
escalated into a confrontation in the hallway in front of appellant's
room. Shiflett and Pfeiff were kind of in the back, and, when
Meneses stepped out of Carrol's room, Pfeiff told him that they
thought appellant had stolen a PlayStation 2 console.
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Daniels and Buycks accused appellant of taking the console;
appellant denied it. This went back and forth a few times near the
door to appellant's room. Meneses saw Daniels enter appellant's
bedroom, and appellant loudly told him to get out. At some point,
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The Fifth District Court of Appeal’s summary of the facts in its December 1, 2010, opinion is presumed correct. 28
U.S.C. §§ 2254(d)(2), (e)(1). Petitioner does not present clear and convincing evidence to the contrary; thus, the
Court adopts the factual recitations set forth by the state appellate court. See Vasquez v. Kirkland, 572 F.3d 1029,
1031 n.1 (9th Cir. 2009) (“We rely on the state appellate court’s decision for our summary of the facts of the
crime.”).
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Buycks approached appellant; Daniels, who was trying to be the
peacemaker, physically touched appellant in an attempt to create
space between the two. He told Buycks, “‘calm down, he's going
to give it to us,’” although Meneses had never heard appellant
admit he took the PlayStation. Meneses did not recall any other
touching of appellant or any threatening gestures such as balling up
or pounding of fists, although at some point he heard Daniels say
to appellant that appellant had better tell them where the
PlayStation was. It did not appear to Meneses that anyone was
under the influence of alcohol, and he did not see anyone force any
doors.
Daniels exited appellant's room, and the group walked toward the
kitchen and the door. Appellant told the group more than once to
get out of his house. It seemed to Meneses that the four visitors
were starting to walk out. Daniels told appellant that appellant had
better give them a call when he got the PlayStation 2 back. As the
four were on their way out, Meneses saw a gun in appellant's hand.
Those in the group asked if he were serious and told him to put it
away. They kept arguing, and appellant fired a warning shot at the
ground. When the group moved back into the kitchen, and prior to
seeing the gun, Meneses activated his cell phone’s video recorder
because he thought there was going to be a fight. He recorded 15
seconds, which was all his phone allowed. The video was played
for the jury. Loud arguing and the first shot can be heard on the
recording, which we have viewed. At the time, Daniels was by the
kitchen counter.
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Fearing for his own safety, Meneses grabbed Carrol and they
locked themselves in Carrol's room. Meneses then heard what
sounded like at least four shots and “a bunch of commotion.”
Meneses could not tell whether it stayed in the room or moved
elsewhere.
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Lewis Carrol—
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Carrol and Meneses were in Carrol's room at about 11:00 p.m.
Someone knocked at the apartment door, but Carrol did not see if
appellant opened it. When interviewed by Officer Williams at the
apartment complex, Carrol related that five subjects came to the
front door and appellant let them in. The conversation started off
“real loud,” but Carrol did not think anything of it at first. When it
stayed loud, however, he and Meneses left the bedroom. Carrol
saw appellant arguing with Daniels and Buycks. Shiflett and Pfeiff
were also there, as was another male Carrol did not know, but that
person left. Daniels and Buycks said they knew appellant took
their PlayStation 2, and that he had better give it back. Appellant
repeatedly denied having the item. The subject of a stolen
PlayStation was a surprise to Carrol, but he remembered hearing
appellant talking on the phone and asking somebody for some
cords. According to Carrol, appellant had his own Playstation
before the first week of May.
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The argument moved to the hallway by appellant's room. Either
Daniels or Buycks started to go into appellant's room, and
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appellant said the person was not about to go through appellant's
things. When Daniels and Buycks said they just wanted to get the
PlayStation back, appellant said he did not have it and did not
know what they were talking about. Carrol believed Daniels went
in appellant's room and appellant followed him inside. Pfeiff, who
was acting normally, told Carrol they knew appellant had the
PlayStation. Carrol was ready to take appellant's side if things got
violent.
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The argument seemed most intense between appellant and Buycks.
They were kind of coming at each other, and Daniels, who was in
the doorway to but a little outside of appellant's room, pushed
appellant sideways into the room. Appellant told Daniels to get off
him and not to touch him. To Carrol, Daniels's movement appeared
to look to appellant like an aggressive act. Carrol told Officer
Williams that there were two main people arguing with appellant,
that they were arguing in appellant’s bedroom, and that it appeared
Daniels was restraining appellant from attacking the third person.
Insofar as Carrol could see, however, none of the visitors had a
weapon.
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When the argument moved from appellant's room toward the
kitchen, everyone noticed that appellant had a gun in his hand. It
was a revolver appellant had previously shown Carrol. Appellant
had shown Rion Spears, who also lived in apartment 126, a .22–
caliber revolver that held six shots. Spears was aware that
appellant was selling marijuana out of the residence. Spears kept
two guns in his room when he lived at the University Village
Apartments, although he did not sell marijuana.
In October or November of 2006, appellant told Buycks, Daniels,
and Jason Davenport that he had spent the day at the shooting
range, firing all different kinds of guns. Appellant specifically
mentioned a .22. He said it was one of the best weapons with
which to murder someone because it was a revolver, so there were
no shell casings, and a person did not really have to aim with it but
just hit the target in the upper body because the bullets rattle
around.
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One of the group asked appellant what he needed that for.
Appellant said they needed to leave. They asked if he was serious,
and he said yes, he was serious, that they needed to leave and he
did not have their PlayStation. The exchanges were laced with
profanity and racial epithets. Appellant was holding the gun in his
right hand and swinging it, with his elbow bent at about a 90–
degree angle.
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The group continued to argue. Everyone was moving around.
Appellant was in the area between the living space and the kitchen.
Shiflett and Pfeiff were in and out. Daniels was in the kitchen, and
Buycks was in the kitchen toward the apartment entryway. Nobody
made any kind of threatening gesture toward appellant.
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Appellant stomped his foot and again said the group had to leave.
About this time, the first shot went off. The gun was pointed down,
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and Carrol saw appellant flinch. The group did not retreat; instead,
the argument continued, and Buycks asked if appellant was
serious. Appellant said he was, and that they needed to leave.
Daniels said all right, that they saw how it was. Carrol estimated
that all told, appellant asked the group to leave about five times.
Buycks made a gesture toward appellant, which Carrol interpreted
as Buycks putting up a front and acting like he was coming at
appellant although he really was not. This occurred kind of in the
doorway. The door from the kitchen into the hallway outside the
apartment was open, and Daniels was restraining Buycks.
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Meneses and Carrol went back into Carrol's room. Carrol still did
not see any of the visitors with any weapons. At no time did he see
any of the group pound his fist into his hand in a threatening way,
and he did not hear Daniels say anything about having people who
would come and get appellant. However, Daniels and Buycks were
both over six feet tall, and Buycks was stockier than Daniels. Both
were taller than appellant.
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As Carrol started to shut the door to his room, he looked back
down the hallway. He believed someone who had been at the
apartment earlier that evening had returned, and that this person
sort of “sparked” the group, which had been starting to leave, so
that another argument erupted. There was confusion over whether
this person was Eric Stinnie or Kelvin King. Carrol saw appellant
on the side of the breakfast bar with the gun pointed toward the
entrance. Carrol shut and locked his door, then heard several shots.
It sounded like a few were fired inside the apartment and a few
outside. It then sounded like appellant went back to his room, shut
and locked his door, and then took off.
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Carrol and Meneses exited Carrol's room about three to five
minutes after the shots. Nobody was left in the apartment.
Appellant telephoned Carrol half an hour to an hour later and
asked if Carrol knew he did not want to shoot them and that they
would not leave. Appellant gave the impression of wondering if
what he did was right and asking what Carrol had seen and if
Carrol thought it was justified.
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Rodrick Buycks—
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Buycks was six feet two inches tall, weighed about 205 or 210
pounds, and lived down the hall from appellant at the time of
events. They were on a recreational basketball team together, along
with Shiflett and Daniels. Their relationship was friendly. Shiflett
and Pfeiff were Buycks's roommates, and Daniels was a friend.
The front door of their unit was usually unlocked so that their
friends could come and go.
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A week or two before May 7, Buycks's PlayStation 2 went missing
from the common living area of the unit. Certain cords had to be
plugged into it to make it work. Buycks suspected the item was
either in appellant's apartment or a particular apartment upstairs,
but, about a day after the item went missing, appellant telephoned
and asked if Buycks had cords for a PlayStation 2. Buycks talked
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to his roommates, and they concluded appellant had probably
stolen the PlayStation 2. They decided to talk to him about it. As a
result, at about 11:00 p.m. on May 7, Buycks, Daniels, Pfeiff, and
Shiflett headed over to appellant's apartment. They were dressed
casually in shorts and T-shirts. No one had any kind of weapon;
they were not anticipating trouble, even though appellant had
shown Buycks a .22–caliber revolver once or twice before.
Buycks's group knocked on the door and rang the doorbell of
appellant's unit, and appellant answered the door. The group then
went into the living room/kitchen area and started talking. There
was a period of regular conversation, then things became heated.
Daniels and Buycks were mostly doing the talking; Buycks
demanded that appellant return the PlayStation 2, and appellant
denied taking it.
Appellant started walking back toward his bedroom, and Buycks
and Daniels followed. Appellant entered his room. Buycks, who
was in the doorway area, saw him grab at something around his
bed area. After a minute or two, appellant came back out. He
seemed to become more angry.
The discussion moved back toward the living room/kitchen area.
Buycks did not notice anything in appellant's hands until appellant
pulled a gun and shot at the ground. This was in the kitchen/living
room area. Buycks believed that he was standing in front of the
door at the time, while Daniels was near the end of the counter.
Someone else was standing by the refrigerator, which put that
person closer to the apartment entrance than Daniels. Just before
the shot was fired, a friend of appellant's, whom Buycks did not
know but believed may have been Kelvin King, came into the
apartment.
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When the first shot was fired, Buycks and his group moved closer
to the door. Buycks told appellant that he knew appellant had his
PlayStation 2, and he wanted it back. There was a lot of shouting
going on, and Buycks could not remember clearly whether anyone
else said anything to appellant. Appellant was yelling at them to
get out. One of Buycks's group opened the door, and appellant shot
three more times. Buycks actually saw him fire the three rounds.
The first time appellant fired, he was pointing the gun at Pfeiff; the
second time, he was pointing it at Daniels; and the third time, he
was pointing it at Buycks. Buycks and his companions ran. The
whole incident lasted 10 to 15 minutes.
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Buycks was shot once in the neck. During the incident, no one in
his group forced open any door, pushed appellant, or knocked
appellant to the ground. Nobody made any threats of physical force
or violence or that they were going to come back. Buycks believed
Daniels probably gestured with his hands during the incident, but it
was not done in a threatening manner. It was just how Daniels
talked. Buycks did not see anyone take a fist and pound it into the
palm of his hand.
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Drew Pfeiff—
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As of May 7, Pfeiff, who was approximately six feet tall and 250
pounds, lived with Buycks, Shiflett, and a third person in
apartment 128, which was next door to appellant's unit. Appellant
would occasionally come over to play video games. Once, he
showed Pfeiff a revolver he was carrying on his person as he came
in from an exit that led outside onto a public street. Although Pfeiff
did not trust appellant, they had no disputes when appellant visited.
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On the evening of May 7, upon concluding that appellant was the
one who had stolen the PlayStation 2, Pfeiff, Buycks, Shiflett, and
Daniels went to appellant's apartment. Eric Stinnie, who lived on
the third floor of the complex and was friends with the group and
with appellant, had gone to appellant's a bit ahead of the group.
When they arrived, the door was closed. Somebody knocked, and
appellant answered and let them in. They walked into the common
living area, and Buycks told appellant that they knew he was the
one who took the PlayStation, and that they wanted to give him the
opportunity to do the right thing and give it back. Buycks's
demeanor was very calm at this time. Appellant became very
defensive. He denied taking it, and said he did not need to steal
because he had lots of money.
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After Buycks and appellant began to go back and forth, appellant's
roommates came out. Pfeiff had a very friendly discussion with
them, and so had his back turned to the argument between Buycks
and appellant. Pfeiff felt appellant go into his room. He did not
know where Daniels was and did not see anyone follow appellant
to his doorway or into his room. When appellant came back out,
Pfeiff saw a gun in his hand. Appellant began yelling at the group
to get out of his house. People were yelling back, and somebody
questioned the need for a firearm. No one in the group was armed.
Appellant did not say anything in response to the comment that the
gun was not needed; instead, he just fired. Those in the group were
making their way toward the door to leave, and the shot was fired
in their direction. When the first shot was fired, Pfeiff was three to
six feet from appellant.
Pfeiff and his companions tried to get to the door as fast as they
could. They were no longer arguing about the PlayStation, but
were making comments about the gun and saying don't shoot.
Daniels was ahead of Pfeiff, getting ready to go out the door, and
he turned back and asked if appellant was going to shoot them.
Pfeiff heard a gunshot and saw a pained look on Daniels's face.
Pfeiff was shot in the shoulder and may have actually been the first
person shot, but initially did not realize he was wounded. No more
than half a minute elapsed between the first shot and the remaining
shots. Pfeiff estimated that approximately five minutes elapsed
from the time he entered appellant's apartment to the time he ran
out.
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Pfeiff made his way out the door and turned left toward his
apartment. Pfeiff recalled hearing Kelvin King outside the
apartment as Pfeiff was exiting. As he ran south down the hallway,
he heard shots being fired behind him. It sounded like the gun was
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being fired in the hallway, not inside apartment 126.
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To Pfeiff's knowledge, no one in his group was under the influence
of alcohol or drugs when they went to appellant's apartment. No
one forced any doors open, and he did not see anyone push or hit
appellant. He did not see appellant knocked to the ground, and did
not hear anyone threaten appellant. He did not hear Daniels say
anything about having someone to come get appellant. He did not
see anyone pound their fists into their hands.
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Kodi Shiflett—
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As of May 7, Shiflett resided in apartment 128. He was on the
same recreational basketball team as appellant, whom he had
known since high school. Shiflett was aware of appellant being in
possession of a revolver on several occasions during 2007. Most of
the time, it was in his pocket. Fresno Police Detective Alcorn
interviewed Shiflett not long after the shooting. Shiflett told him
that this was the first time he had ever seen appellant with a gun,
although appellant had said he had one. In Shiflett's opinion,
appellant tried to project a tough guy, streetwise persona.
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When Shiflett and his roommates got together before going to
appellant's apartment to discuss the missing PlayStation, no
violence was mentioned or contemplated. They had had no
problems with appellant prior to that time, but they believed he had
the PlayStation, and so they were going to go to his apartment and
get it back from him. It did not appear to Shiflett that anyone was
under the influence of alcohol or drugs.
When the group arrived at appellant's apartment, Daniels either
knocked or just walked in. Daniels and Buycks then started asking
somewhat loudly for the PlayStation and saying they knew
appellant had it. Appellant responded that he did not have it and
did not know what they were talking about. The argument then got
very loud and went back and forth, with Daniels and Buycks
saying they knew appellant had the PlayStation and appellant
denying it.
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During the initial argument, Shiflett was by the front door to the
apartment. Daniels and Buycks were inside a bit farther, between
the breakfast bar and a wall. They were facing appellant, who was
somewhat in the living room. Appellant then went to his room.
Daniels went with him. Buycks went to the hallway, but did not go
all the way into the room. Shiflett went to the start of the hallway
that led from the living area to appellant's room. It sounded like
Daniels and appellant were still arguing, then Daniels said “‘what's
that’” or “‘what's this.’” It appeared Daniels was pointing. Up to
this point, Shiflett had not seen anyone touch or be physical with
appellant.
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Daniels exited appellant's room almost immediately. He and
Buycks started walking toward the front door, and Shiflett and
Pfeiff followed. When appellant came out of his room, Shiflett saw
that he had a gun by his side. Shiflett did not remember anyone
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arguing at that point, although Daniels asked appellant if appellant
was going to shoot them.
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At the time appellant fired the first shot, Shiflett was standing right
next to the front door. Appellant was standing near the end of the
breakfast bar. Daniels was directly in front of appellant, and
Buycks was to Daniels's left, along the wall. Pfeiff was to Shiflett's
left. Just prior to appellant firing, nobody had touched or pushed
him or made any threatening gesture toward him.
The first shot was fired at the floor. After it went off, it seemed like
Shiflett's group was kind of frozen. Shiflett could not remember if
anything was said. Appellant fired again, and Shiflett started to
move for the door. This time, the gun was pointed at the group.
Shiflett could not recall it being pointed at anyone in particular.
Shiflett, who was uninjured, was first out the door. As he ran, he
heard other shots being fired. It sounded like the gun had travelled
from inside the apartment out into the hallway. Shiflett turned into
one the breezeways, then saw appellant and someone he believed
to be King, going upstairs. King had been present in appellant's
apartment just before the first shot.
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At no time during the entire event did Shiflett see anybody force
open any doors, push or shove appellant, or knock him to the
ground. Shiflett's group was standing about three feet from
appellant at the time of the first shot. Shiflett testified that his
group was about a foot to a foot and a half away, but, when asked
to demonstrate the distance at trial, pointed to something the court
described as a minimum of three feet away. Nobody was touching
appellant at that time. Shiflett did not hear anybody threaten
appellant, nor did he hear Daniels say anything about having
someone to come get appellant. Shiflett did not see anyone pound
their fist into their palm in an aggressive manner.
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As of May 7, Albert Ticer lived in apartment 102. Daniels was his
roommate. At about 11:00 or 11:15 that night, Daniels came into
the apartment, said that appellant had just shot him, and collapsed.
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Daniels, who was six feet two and a half inches tall and weighed
about 156 pounds at the time of his death, sustained five gunshot
wounds. He was grazed on the neck and one finger, and shot in the
left front chest, the left back, and the left arm. The wounds were
inflicted by .22–caliber bullets from a distance of more than two to
two-and-a-half feet. The cause of death was perforation of the
heart, liver, and left lung, due to multiple gunshot wounds.
Toxicology tests showed Daniels had a small amount of marijuana
in his system, and his blood-alcohol content was 0.06 percent.
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Police were dispatched to the University Village Apartments at
approximately 11:16 p.m. on May 7. Inside apartment 126, officers
found possible bullet strike marks on a kitchen wall, the kitchen
floor, and inside the entry door to the apartment. The marks were
consistent with a small caliber such as a .22. There were no signs
of forced entry into the unit or into the bedrooms inside the unit.
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Outside apartment 128, which was directly south of and adjoined
apartment 126, was a .22–caliber bullet.
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B.
Defense Evidence
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Appellant, who was 19 years old when the shootings occurred,
testified that when he was 15, he attended his cousin's graduation,
then they and two friends went to a party in Union City. Appellant
was uncomfortable, and he and his cousin started to leave. As they
did, appellant commented that he had told his cousin they should
have gone to another party in Hayward or Oakland, because the
party they were at was “‘fucking weak.’” Someone said, “‘What?’”
Because they were in a cul-de-sac, the sound echoed and appellant
could not tell who said it, so he repeated that the party was
“‘fucking weak.’” Someone said it was his sister's party. As
appellant turned, someone swung at him. Appellant ducked, but
was hit in the head with a bottle. His cousin ran. Appellant was hit
in the head with another bottle, punched four or five times, and
kicked for about a minute. No one came to his assistance, but,
because appellant kept getting back up, his assailants finally ran.
During the incident, 30 or 40 people were chanting the name of a
local Norteno gang.
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As a result of the altercation, appellant was hospitalized for four
days and had to have surgery. He had a piece of glass inside his
left eye, and also suffered a brain hemorrhage, detached retina,
brain trauma, a concussion, and a fractured skull. An eye specialist
told him that if he took a shot to the head or the eye, he could lose
his eye and possibly his life. After the attack, appellant was no
longer able to trust many Hispanics and did not want to be touched
by too many people, and he had a fear of being around too large a
crowd and not knowing exactly how they were going to react. At
trial, appellant acknowledged that he had two Hispanic roommates
as of May 7, and that of the four in Daniels's group, only Shiflett
was Hispanic. Pfeiff was Caucasian, while Daniels and Buycks
were African–American.
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While appellant was in high school, he did a lot of volunteer work,
including talking to and mentoring at-risk youth. As a result, he
became friends with a lot of people, and in fact became so close to
his friend Phillip that he referred to Phillip as his brother. Phillip
was murdered on March 23, 2007. There were “a lot of threats
behind his death” because of appellant's close friendship with
Phillip, and this led to appellant purchasing a six-shot, .22–caliber
Ruger revolver from Brant Daniels. Although appellant smoked
marijuana and kept it in his room, and occasionally sold some to
some of the residents in the apartment complex, he did not have a
gun due to his marijuana use. The weapon was solely for
protection, because he was receiving death threats.
At about 10:30 or 10:45 p.m. on May 7, appellant was playing a
video game with Kelvin King. Eric Stinnie was also there. He had
wanted to use a program on appellant's computer to burn a CD, and
appellant had set up the program for him, but instead Stinnie just
watched appellant and King play their game. When King got a call
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from his girlfriend and went to leave, Stinnie told appellant that he
did not have a CD to burn and would be back. Appellant, who was
five feet nine inches tall and weighed about 143 pounds at the
time, had smoked marijuana with King about two hours earlier; by
the time of the incident, appellant was no longer feeling high.
Appellant walked King and Stinnie to the door and then locked it.
Stinnie called about five minutes later and said he was at the door,
so appellant let him in. Appellant closed the door and thought he
locked it, and he returned to his room. He was on the phone when
he heard the door open. Daniels, Buycks, Shiflett, and Pfeiff—all
of whom were taller than appellant—came in. Daniels and Buycks
exchanged greetings with appellant, then started yelling and
demanding to know where their PlayStation was. Appellant said he
did not have it.
At this point, Daniels and Buycks were in the kitchen, with Shiflett
and Pfeiff behind them. Appellant was at the beginning of the tiles
for the kitchen floor. Daniels and Buycks kept accusing appellant
of stealing the PlayStation or knowing who did, and appellant kept
denying it. They then told him to call the person he was always
with. Appellant agreed, and told them that when he got it done, it
was over, and they all should get out of his house.
Appellant believed they were referring to King, so he telephoned
King and told him to come over. King agreed. Appellant walked
toward his bedroom. He knew the others were following him, but
he had already told them that they were not coming in his room, so
he did not think they would enter. As he got to his doorway,
however, he felt a nudge or push in his back. Daniels was closest
to him at the time. Appellant grabbed his phone and reached under
his bed and grabbed his gun. He was feeling threatened. At some
point, Daniels went into appellant's bedroom, and Buycks followed
into the hallway. They were yelling and pounding their fists into
their hands and demanding the PlayStation. Appellant said he did
not have it and told Daniels to get out of his room. He then made
one more call to King to tell him to hurry and ask where he was.
King said he was there, so appellant told the others that King was
there and they could clear things up. As appellant and the others
moved away from appellant's room, he kept telling them to get out
of his house.
King was standing in the living room. Appellant asked him if they
had the PlayStation, and King said no and told the group to now
get out of the house. The visitors began to walk like they were
going to leave, and appellant thought the situation was going to be
over. Instead, Daniels turned around. There was a little bump.
Appellant had his hand on the gun and the gun by his side, and he
squeezed the trigger and shot himself in the right thigh. The bullet
went into the ground, nicking his foot. Appellant was in the
entrance hall, by the end of the breakfast counter. Multiple people
said things. Appellant continued to tell the group to get out of his
house. King also told them to leave. Daniels said, “ ‘it's like that,
dawg, what the fuck you gonna do, shoot us?’ “ Daniels also said
he had people on the way who could beat appellant anyway. He
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and Buycks had been hitting their fists into their hands since
shortly after they entered the apartment.
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To appellant's knowledge, nobody but him had a weapon. He had
never seen any weapons in apartment 128, but there were a lot of
bottles in there, and he had been hit by a bottle before. Appellant
was in fear because he was wounded, he could smell liquor on
their breath, and he did not want to be put in a situation to be
jumped again. Nobody was leaving, so he pointed the gun to see if
they would leave when they saw it. They did not. Appellant waved
the gun sideways and told them to get out. They still did not go,
and so he fired into the crowd. Buycks lunged at him, and
appellant shot again. Everyone froze and still did not leave.
Appellant was concerned for his safety because he was wounded,
and he was also concerned about why they were not leaving. He
shot into the crowd one more time, but by then they had opened the
door and so were turning to leave, but he had already fired. They
then ran out the door, and he ran into his room. Scared and not
knowing what was going to happen, he put on his shoes and fled.
Appellant estimated that perhaps 15 to 20 minutes elapsed between
when he realized Daniels and the others were in his apartment to
when he put on his shoes.
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Appellant threw the gun as he was on the stairs near the back
parking lot. After leaving the complex, he tucked his hair into his
beanie and started walking to a friend's house. On the way, he
received an instant message from Will, who said he had heard what
happened. Will told appellant to watch out for himself because
there were people from Los Angeles out looking for him.
Appellant knew Will to be an associate of Daniels. Both were from
Los Angeles. In fear of these people, appellant cut his hair and
changed his clothes at his friend's house, then got a ride to another
location. He then called his mother, who lived in Houston, Texas,
and his father, who lived in Hayward. He told them he had been
involved in a shooting and he needed them to get him an attorney.
His father retained an attorney, and appellant's surrender to police
was arranged. Although appellant's attorney advised police where
he believed the gun could be located, it was never found.
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When appellant left the University Village Apartments, he did not
know anyone was dead. Appellant did not intend to kill anybody.
Dr. Howsepian, a psychiatrist, opined that at the time of the
shooting, appellant was suffering primarily from posttraumatic
stress disorder (PTSD). He also had a dependency on marijuana.
PTSD is a response to a traumatic event. A traumatic event
involves a perception of danger that is associated with a feeling of
horror, helplessness, or intense fear. This is followed by a series of
symptoms that can be clustered into three general areas:
reexperiencing symptoms, such as nightmares or intrusive
thoughts; avoidance and numbing symptoms, where the individual
avoids reminders of what traumatized him or her; and hyperarousal
symptoms, which are symptoms that keep a person in a constant
state of arousal tension, being on edge, or being vigilant and
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watching his or her environment to try to avoid being
retraumatized. For a diagnosis of PTSD, the person must have a
certain number of symptoms in each cluster, must have been
exposed to a trauma, must have significant distress or impairment
in function as a result, and must have had the symptoms for at least
a month. If the person is treated properly, many individuals will no
longer meet the criteria after a few months to a few years. Without
proper treatment, the median time course is approximately three
years. Some people remain chronic for decades. Psychiatric
injuries make one more vulnerable to later psychiatric injuries.
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It is common for people with PTSD to abuse alcohol or street
drugs. In the case of marijuana, most people report feeling calmed
and hungry. In a significant minority, however, other symptoms
such as significant anxiety or even paranoia may be present.
Appellant told Howsepian that the drug did not make him
paranoid, but instead caused him to be more alert and energetic. It
is also not uncommon for people with PTSD to carry weapons.
They do so to protect themselves, as the world is perceived to be
dangerous. According to Fresno Police Detective Galvan, drug
dealers will carry weapon to protect themselves, their money, and
their drugs. In his experience, it is common for street-level dealers
to have guns on them at the time they are selling the drugs.
Howsepian explained that the 2004 attack was “profoundly
traumatic” for appellant. One of the most important consequences
of being traumatized in a way that precipitates PTSD is that the
world is viewed very differently after the trauma. It is viewed as
being dangerous and unpredictable, and the individual has a sense
of significant insecurity. That appellant's cousin and friends left his
side during the assault was highly likely to have amplified the
sense of unpredictability, insecurity, and dangerousness of his
world. The serious injury to appellant's eye caused him to have
anxiety about reinjuring his eye and going blind, and caused a
heightened sense of trying to keep his head and face safe from
trauma.
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Given that the attack was perpetrated by Hispanic men, it was not
surprising that appellant had anxiety and fear and wanted to avoid
Hispanic men walking in groups at the mall, for example, shortly
after the attack. Moreover, due to generalization, an individual
might be traumatized by one ethnic group, but then perceive
potential threats by other people in different groups. Most people
have the ability to tolerate people of the same ethnic group that
might have assaulted them, as long as there is no sense of threat
from them. The important ingredient is whether the individual
senses some threat or perceives something in his environment that
he feels is dangerous to him.
In addition to the 2004 attack, appellant reported a long series of
traumatic incidents, starting with significant physical abuse at the
hands of his mother's boyfriend when he was very young, as well
as several firearm-related traumas, being robbed at gunpoint at age
16, and a series of deaths of friends. Appellant also reported
receiving a number of threatening phone calls. Someone suffering
from PTSD following a series of assaults with firearms may
14
respond to a perceived threat by having the body act before the
mind does. The usual progression is a sense of threat causing fear
that will result in escape if possible or in the person acting to
deflect the threat. Stressful events unrelated to the trauma an
individual has experienced may put that person into a kind of
physiological hyperdrive that amplifies the sense of threat. When
an individual is caught up in the kind of confrontation with which
people suffering from PTSD have to contend, he or she often will
not be able to clearly think through his or her options, such as
using one's cell phone to call for help.
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With respect to the present case, appellant was approached in a
confrontational manner by a group of angry individuals. He felt
trapped, had physical disabilities, and had a history of being
traumatized. He felt he had nowhere to go and no way to flee the
potential threat. In Howsepian's opinion, these things added up to
an individual who perceived the threat in an amplified way and felt
the need to act quickly to save himself.
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(Pet., Ex. A.)
11
III.
12
DISCUSSION
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A.
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Jurisdiction
Relief by way of a petition for writ of habeas corpus extends to a person in custody
pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws
or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v.
Taylor, 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as
guaranteed by the U.S. Constitution. The challenged conviction arises out of Fresno County
Superior Court, which is located within the jurisdiction of this Court. See 28 U.S.C. § 2254(a);
28 U.S.C. § 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its
enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th
Cir. 1997) (en banc). The instant petition was filed after the enactment of the AEDPA and is
therefore governed by its provisions.
26
B.
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Standard of Review
Under the AEDPA, relitigation of any claim adjudicated on the merits in state court is
28
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1 barred unless a petitioner can show that the state court’s adjudication of his claim:
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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
7 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 131 S.Ct 770, 178 L.Ed.2d 624 (2011);
8 Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 413.
9
As a threshold matter, this Court must "first decide what constitutes 'clearly established
10 Federal law, as determined by the Supreme Court of the United States.'" Lockyer, 538 U.S. at 71
11 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is “clearly established Federal law,” this
12 Court must look to the "holdings, as opposed to the dicta, of [the Supreme Court's] decisions as
13 of the time of the relevant state-court decision." Williams, 592 U.S. at 412. "In other words,
14 'clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles
15 set forth by the Supreme Court at the time the state court renders its decision." Id. In addition,
16 the Supreme Court decision must “‘squarely address [] the issue in th[e] case’ or establish a legal
17 principle that ‘clearly extend[s]’ to a new context to the extent required by the Supreme Court in
18 . . . recent decisions”; otherwise, there is no clearly established Federal law for purposes of
19 review under AEDPA. Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (quoting Wright v.
20 Van Patten, 552 U.S. 120, 125 (2008)); Panetti v. Quarterman, 551 U.S. 930 (2007); Carey v.
21 Musladin, 549 U.S. 70 (2006). If no clearly established Federal law exists, the inquiry is at an
22 end and the Court must defer to the state court’s decision. See Carey, 549 U.S. at 77; Wright,
23 552 U.S. at 126; Moses, 555 F.3d at 760.
24
If the Court determines there is governing clearly established Federal law, the Court must
25 then consider whether the state court's decision was “contrary to, or involved an unreasonable
26 application of,” [the] clearly established Federal law.” Lockyer, 538 U.S. at 72 (quoting 28
27 U.S.C. § 2254(d)(1)). “Under the ‘contrary to’ clause, a federal habeas court may grant the writ
28 if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a
16
1 question of law or if the state court decides a case differently than [the] Court has on a set of
2 materially indistinguishable facts.” Williams, 529 U.S. at 412-13; see also Lockyer, 538 U.S. at
3 72. “The word ‘contrary’ is commonly understood to mean ‘diametrically different,’ ‘opposite
4 in character or nature,’ or ‘mutually opposed.’” Williams, 529 U.S. at 405 (quoting Webster's
5 Third New International Dictionary 495 (1976)). “A state-court decision will certainly be
6 contrary to [Supreme Court] clearly established precedent if the state court applies a rule that
7 contradicts the governing law set forth in [Supreme Court] cases.” Id. If the state court decision
8 is “contrary to” clearly established Supreme Court precedent, the state decision is reviewed
9 under the pre-AEDPA de novo standard. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en
10 banc).
11
“Under the ‘reasonable application clause,’ a federal habeas court may grant the writ if
12 the state court identifies the correct governing legal principle from [the] Court’s decisions but
13 unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at
14 413. “[A] federal court may not issue the writ simply because the court concludes in its
15 independent judgment that the relevant state court decision applied clearly established federal
16 law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411;
17 see also Lockyer, 538 U.S. at 75-76. The writ may issue only “where there is no possibility
18 fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme
19 Court’s] precedents.” Harrington, 131 S.Ct. at 784. In other words, so long as fairminded jurists
20 could disagree on the correctness of the state courts decision, the decision cannot be considered
21 unreasonable.
Id.
If the Court determines that the state court decision is objectively
22 unreasonable, and the error is not structural, habeas relief is nonetheless unavailable unless the
23 error had a substantial and injurious effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619,
24 637 (1993).
25
Petitioner has the burden of establishing that the decision of the state court is contrary to
26 or involved an unreasonable application of United States Supreme Court precedent. Baylor v.
27 Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the
28 states, Ninth Circuit precedent remains relevant persuasive authority in determining whether a
17
1 state court decision is objectively unreasonable. See LaJoie v. Thompson, 217 F.3d 663, 669
2 (9th Cir. 2000); Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999).
3
The AEDPA requires considerable deference to the state courts. “[R]eview under §
4 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on
5 the merits,” and “evidence introduced in federal court has no bearing on 2254(d)(1) review.”
6 Cullen v. Pinholster, __ U.S. __, __, 131 S.Ct. 1388, 1398-99 (2011). “Factual determinations
7 by state courts are presumed correct absent clear and convincing evidence to the contrary.”
8 Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (citing 28 U.S.C. § 2254(e)(1)). However, a
9 state court factual finding is not entitled to deference if the relevant state court record is
10 unavailable for the federal court to review. Townsend v. Sain, 372 U.S. 293, 319 (1963),
11 overruled by, Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).
12
C.
Review of Claims
13
1.
Exclusion of Evidence
14
In his first claim for relief, Petitioner alleges the trial court violated Petitioner’s rights to
15 due process and a fair trial when it excluded evidence that Petitioner was afraid. Petitioner
16 contends the trial court’s rulings prevented him from presenting a defense.
17
This claim was presented on direct appeal to the Fifth District Court of Appeal and was
18 denied in a reasoned decision. Petitioner did not present it in the petition for review before the
19 California Supreme Court, but he did present it in a subsequent habeas petition. The California
20 Supreme Court summarily denied the petition. Federal courts review the last reasoned state
21 court opinion. Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991). Therefore, the Court must review
22 the opinion of the Fifth District Court of Appeal.
23
In rejecting Petitioner’s claim, the appellate court stated as follows:
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A. Background
27
Appellant's defense at trial was that he was afraid and acted in selfdefense. During defense counsel's cross-examination of Lewis
Carrol concerning what took place during the confrontation, the
following occurred:
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“Q. And you stated earlier that—that Jonquel seemed angry?
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“A. Right.
“Q. Did you ever see him become frightened?
“MR. FRANCIS [prosecutor]: Objection. Speculation.
“THE COURT: I'll sustain. It's vague also.
“MS. BOULGER: Yes.
7
“Q. During this time period after the first shot, did you—did it ever
appear to you that Jonquel was frightened?
8
“A. I think he might have been a little scared.
9
“MR. FRANCIS: Objection. The answer is non-responsive. It is
based on speculation.
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“THE COURT: Hold on. The objection is speculation? Lacks
foundation?
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“MR. FRANCIS: Yes.
13
“THE COURT: Sustained.
14
“MR. FRANCIS: Ask that it be stricken.
15
“THE COURT: Answer will be stricken. Jury is admonished not to
consider it.
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“MS. BOULGER: Q. Okay. You discussed that you saw he was
angry. Did you see him display any other emotions?
18
“A. Frustration.” (Italics added.)
19
Appellant now contends the judgment must be reversed because
the trial court excluded evidence that appellant was afraid during
the confrontation. Appellant says that because Lewis was a
percipient witness, a foundation was laid for him to render an
opinion, and his opinion—that appellant seemed scared—was not
speculation but instead was proper lay opinion testimony.
Appellant further says the prosecutor was allowed to present
evidence that appellant lacked fear, but appellant was not allowed
to present testimony supporting his claim that he was afraid.
Because the impressions of the percipient witness were vital to his
defense, the argument runs, their erroneous exclusion constituted
federal constitutional error.
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B. Analysis
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27
28
“A lay witness may testify to an opinion if it is rationally based on
the witness's perception and if it is helpful to a clear understanding
of his testimony. (Evid.Code, § 800.)” (People v. Farnam (2002)
28 Cal.4th 107, 153.) “Perception” is “the process of acquiring
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knowledge ‘through one's senses' [citation], i.e., by personal
observation.” (People v. McAlpin (1991) 53 Cal.3d 1289, 1306, fn.
omitted.) The rule “merely requires that witnesses express
themselves at the lowest possible level of abstraction. [Citation.]
Whenever feasible ‘concluding’ should be left to the jury;
however, when the details observed, even though recalled, are ‘too
complex or too subtle’ for concrete description by the witness, he
may state his general impression. [Citation.]” (People v. Hurlic
(1971) 14 Cal.App.3d 122, 127.) A trial court's decision whether to
admit lay opinion “will not be disturbed ‘unless a clear abuse of
discretion appears.’ [Citations.]” (People v. Mixon (1982) 129
Cal.App.3d 118, 127; see People v. Medina (1990) 51 Cal.3d 870,
887, affd. sub nom. Medina v. California (1992) 505 U.S. 437.)
In the present case, defense counsel asked if it appeared to Carrol
that appellant was frightened. The question—which, we note, did
not elicit an objection—was proper and, had Carrol responded
affirmatively, no valid objection could have been raised to the
answer. (See People v. Chatman (2006) 38 Cal.4th 344, 397
[although lay witness generally may not give opinion about
another's state of mind, percipient witness may testify about
objective behavior and describe behavior as being consistent with
particular state of mind]; In re Lucas (2004) 33 Cal.4th 682, 710
[witness observed that defendant avoided and seemed afraid of
certain individuals]; People v. Petznick (2003) 114 Cal.App.4th
663, 670 [witness testified that defendant seemed nervous and
scared].) Courts do not always draw such a fine distinction
between state of mind and objective behavior. For example, in
People v. Kennedy (2005) 36 Cal.4th 595, 621, disapproved on
another ground in People v. Williams (2010) 49 Cal.4th 405, 459,
the high court concluded that a witness's “opinion about
defendant's state of mind on the night of the murder was
admissible because it was based on her perceptions and helped to
better understand her testimony. [Citations.]” (See also People v.
Webb (1956) 143 Cal.App.2d 402, 412 [holding that lay witnesses
may given opinions as to state of mind short of insanity affecting
the formation of a specific intent].)
Carrol did not answer affirmatively, however; instead, he testified
as to what he thought appellant might have been feeling. It was this
answer that drew the objection, and rightly so. Appellant says
Carrol was actually only relating the impression he received from
his observations, namely that appellant seemed scared. Although it
is conceivable the answer could have been interpreted this way, it
is clearly not how the prosecutor or the trial court interpreted it.
We cannot say the trial court abused its discretion by interpreting
the answer as calling for speculation and constituting conjectural
lay opinion. (See People v. Thornton (2007) 41 Cal.4th 391, 429
[under deferential abuse-of-discretion standard, reviewing court
would not second-guess trial court's ruling that asking witness
whether it appeared from vehicle occupants' behavior that they
knew each other was speculative].)
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28
Appellant complains that the prosecutor was able to present similar
testimony over defense objection. He points to the prosecutor
20
asking Meneses if he was familiar with the term “claustrophobia”
and if he noticed anything like that with appellant. As previously
noted, however, the prosecutor did not object when defense
counsel asked a somewhat similar question to Carrol, but only to
Carrol's answer. Meneses's answer, by contrast, was clearly based
on his observations of appellant. When the prosecutor asked Carrol
what appellant's state of mind or mood was when he was being
accused of taking the PlayStation, defense counsel's objection, that
the question called for speculation, was sustained. A similar
defense objection was sustained when the prosecutor asked Carrol
whether the fact there were a lot of spectators seemed to prevent
appellant from possibly fighting someone during an intramural
basketball game. Accordingly, we reject the notion that the trial
court's rulings were somehow unfair or one-sided.
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8
Last, assuming error occurred, in light of the record as a whole, it
is not reasonably probable the error affected the outcome of trial.
(People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see People
v. San Nicolas (2004) 34 Cal.4th 614, 663.) Contrary to appellant's
assertion, this is simply not a situation in which the error rises to a
level of constitutional dimension. (See People v. Fudge (1994) 7
Cal.4th 1075, 1102–1103; compare Green v. Georgia (1979) 442
U.S. 95, 97; Chambers v. Mississippi (1973) 410 U.S. 284, 302.)
9
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13 (Pet., Ex. A.)
14
A criminal defendant has a well-recognized constitutional right to present a complete
15 defense. Crane v. Kentucky, 476 U.S. 683, 690 (1986) (“Whether rooted directly in the Due
16 Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation
17 clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a ‘meaningful
18 opportunity to present a complete defense.’”). Necessary to the realization of this right is the
19 ability to present evidence, including the testimony of witnesses. Washington v. Texas, 388 U.S.
20 14, 19 (1967).
21
However, “[a] defendant's right to present relevant evidence is not unlimited, but rather is
22 subject to reasonable restrictions,” such as evidentiary and procedural rules. United States v.
23 Scheffer, 523 U.S. 303, 308 (1998). In fact, “state and federal rulemakers have broad latitude
24 under the Constitution to establish rules excluding evidence from criminal trials,” id., and the
25 Supreme Court has indicated its approval of “well-established rules of evidence [that] permit
26 trial judges to exclude evidence if its probative value is outweighed by certain other factors such
27 as unfair prejudice, confusion of the issues, or potential to mislead the jury.” Holmes v. South
28 Carolina, 547 U.S. 319, 326 (2006). Evidentiary rules do not violate a defendant's constitutional
21
1 rights unless they “infring[e] upon a weighty interest of the accused and are arbitrary or
2 disproportionate to the purposes they are designed to serve.” Id. at 324 (alteration in original)
3 (internal quotation marks omitted); see also Scheffer, 523 U.S. at 315 (explaining that the
4 exclusion of evidence pursuant to a state evidentiary rule is unconstitutional only where it
5 “significantly undermined fundamental elements of the accused's defense”). In general, it has
6 taken “unusually compelling circumstances ... to outweigh the strong state interest in
7 administration of its trials.” Perry v. Rushen, 713 F.2d 1447, 1452 (9th Cir.1983).
8
In the Supreme Court cases cited by Petitioner, however, the Court addressed established
9 state evidentiary rules. In Crane, the Supreme Court rejected the Kentucky Supreme Court’s
10 ruling that “once a confession has been found voluntary . . . the evidence that supported that
11 finding may not be presented to the jury for any other purpose. Crane, 476 U.S. 683 at 687. In
12 Washington, the Supreme Court determined that statutes which prevented codefendants or
13 coparticipants in a crime from testifying for one another, thus precluding the defendant from
14 introducing his accomplice's testimony that the accomplice had in fact committed the crime,
15 violated the Sixth Amendment because “the State arbitrarily denied [the defendant] the right to
16 put on the stand a witness who was physically and mentally capable of testifying to events that
17 he had personally observed.” Washington, 388 U.S. at 23. In Chambers, the Supreme Court
18 “found a due process violation in the combined application of Mississippi's common-law
19 ‘voucher rule,’ which prevented a party from impeaching his own witness, and its hearsay rule
20 that excluded the testimony of three persons to whom that witness had confessed. Scheffer, 523
21 U.S. at 316 (citing Chambers v. Mississippi, 410 U.S. 284, 302 (1973).
22
In this case, the issue concerns a discretionary ruling by the trial judge. As the Ninth
23 Circuit pointed out in Brown v. Horell, “the Supreme Court has not decided any case either
24 ‘squarely address[ing]’ the discretionary exclusion of evidence and the right to present a
25 complete defense or ‘establish[ing] a controlling legal standard’ for evaluating such exclusions.
26 Brown v. Horell, 644 F.3d 969, 983 (9th Cir. 2011) (quoting Moses v. Payne, 555 F.3d 742, 757
27 (9th Cir. 2009)). This is fatal to Petitioner’s claim. Similar to the petitioners in Brown and
28 Moses, Petitioner cannot show that the state appellate court's ruling was either contrary to or an
22
1 unreasonable application of clearly established Supreme Court precedent.
Petitioner’s
2 contention that relief is appropriate in the absence of a decision on point if the state court
3 decision “unreasonably refuses to extend [a legal principle from our precedent] to a new context
4 where it should apply,” Williams v. Taylor, 529 U.S. 362, 407 (2000), was recently rejected by
5 the Supreme Court in White v. Woodall, __ U.S. __, 134 S.Ct. 1697, 1706 (2014). The Supreme
6 Court stated: “[I]f a habeas court must extend a rationale before it can apply to the facts at hand,”
7 then by definition the rationale was not “clearly established at the time of the state-court
8 decision.” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004).
9
Moreover, there is no merit to Petitioner’s claim that the trial court’s ruling excluded
10 relevant evidence thereby denying him the right to present a complete defense. The appellate
11 court found that the prosecutor’s objections were properly sustained. Defense counsel first asked
12 the witness: “Did you ever see him become frightened?” The objection to the interrogatory as
13 vague and speculative was properly sustained. Defense counsel, acknowledging the defect in his
14 question, then clarified with a follow-up question: “During this time period after the first shot,
15 did you – did it ever appear to you that [Petitioner] was frightened?” The appellate court noted
16 that this was a proper question as to the witness’s perception of Petitioner’s objective behavior,
17 and no valid objection could have been raised. In fact, no objection to the question was raised.
18 As noted by the appellate court, the answer to that question, “I think he might have been a little
19 scared,” is what drew the objection.
The appellate court reasonably determined that the
20 objection was proper under California law, since the witness appeared to be testifying as to what
21 he believed to be Petitioner’s state of mind, which is generally not permitted.
People v.
22 Chatman, 38 Cal.4th 344, 397 (2006). The answer was stricken. Moreover, the trial court’s
23 rulings did not exclude the evidence of Brooks’s behavior, because nothing prevented defense
24 counsel from clarifying the question for the witness. Counsel could have informed the witness
25 not to testify to what he actually believed was the defendant’s state of mind, but based on his
26 observations of defendant, whether he appeared to be frightened. Thus, defense counsel could
27 have elicited testimony concerning Brooks’s behavior.
28
Accordingly, Petitioner fails to demonstrate that the state court ruling was either contrary
23
1 to or an unreasonable application of clearly established Supreme Court precedent. 28 U.S.C. §
2 2254(d). The claim should be rejected.
Trial Court’s Description of Reasonable Doubt Standard
3
2.
4
Petitioner next claims that the trial court incorrectly described the State’s burden of proof
5 by comparing the beyond-a-reasonable-doubt standard with ordinary, everyday decisions,
6 thereby violating Petitioner’s Sixth Amendment right to a jury trial.
7
This claim was raised on direct appeal to the California Court of Appeal where it was
8 denied in a reasoned decision. It was raised thereafter in the California Supreme Court by
9 habeas petition and summarily denied. The Court must review the last reasoned decision. Ylst,
10 501 U.S. at 803. The appellate court rejected Petitioner’s claim as follows:
11
A. Background
12
Near the outset of jury selection, the trial court informed
prospective jurors that in a criminal case, “a defendant is presumed
to be innocent. This presumption requires the People to prove each
element of a crime beyond a reasonable doubt, and that includes
any special allegation. Until and unless this is done, the
presumption of innocence prevails. And proof beyond a reasonable
doubt is defined as follows: It's proof that leaves you with an
abiding conviction that the charge is true. The evidence need not
eliminate all possible doubt, because everything in life is open to
some possible or imaginary doubt.”
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The next day, the trial court was questioning prospective jurors
about prior jury experience, when one related that she had been a
juror in an attempted murder case and had not liked the experience.
She explained: “I'm kind of a black and white person, ... it's either
right or wrong, and it dealt in what people were thinking. And—I
mean, if you're holding a smoking gun, I think it's pretty sure that
you've fired it and—and I wasn't pleased with the verdict .” When
the court asked if she felt the experience would have any lingering
effects, given that this was a completely different case, she
responded that she did not know. She stated: “It's kind of like when
you get in a jury room and you're deliberating, the majority rules,
... and you have to take under consideration what the person
thought, and you have no idea what they're thinking, ... so you
have to guess, and I just ... didn't find it a good experience.” The
court then asked if she would be able to deliberate on this case, or
if she would “turn it off” because of her prior experience. The
prospective juror responded that she would listen to the facts. The
court again asked if she would be able to deliberate. She answered,
“Well, what choice do you have?” She then elaborated that in the
prior case, she and another juror were opposite everyone else, and
the others kind of talked her into reasonable doubt. This ensued:
24
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“THE COURT: Let me—let me just say this: This applies to
everybody. Again, that's why I ask that question with those folks
who know each other. You're going to decide a case for yourself,
but would you listen to reason and logic—
“PROSPECTIVE JUROR ...: Yes.
“THE COURT:—and—and as one of the attorneys explained, ...
and I've given you the instruction what reasonable doubt is.
“PROSPECTIVE JUROR ...: But how do you know what a person
is thinking? There is no way of knowing.
“THE COURT: We've got a little bit into that. If I'm up here eating
a burrito and I'm just wuffing [sic ] it down, your thoughts are, ‘I
think he's hungry,’—I mean, you look at conduct sometimes.
“PROSPECTIVE JUROR ...: Maybe you're stressed. Maybe you're
eating under stress.
“THE COURT: But you have to make your best efforts, whatever
you can do, give it—it's the same thing. When—on major
decisions, and again, I'm not in any way correlating this trial to any
of these things when I talk about them, but they are major
decisions in our life; when we buy a car, when we buy that house,
you know, do we just decide like buying that house like we decide
buying groceries? No. We spend time on it. We look at a lot of
facts. And do you ever buy a house or any major—you know,
having all the facts before you, you know, you're always satisfied,
like I have no concerns at all, here's my $500,000, $400,000 for
that house? There's always something—you wish you had some
more information. You just got to do the best you can do with what
you got. Now, if you are the type of person that is not going to be
able to do that, that's okay, maybe this is not the trial for you. If
you say I can do that, albeit, maybe I had—my first experience
wasn't that good, but I'm going to do it, I know what to expect this
time, I can do it. You tell me. If—if you have some hesitation and
you feel that, ‘I better not sit on this,’ now is the time to tell us.
“PROSPECTIVE JUROR ...: Well, I wished they—because I still
feel the way I felt and, you know, it's been probably ten years, but I
still feel like maybe I should have. I mean, I still feel that I—that
maybe I should have held out for what I thought was—”
Defense counsel then questioned the prospective juror, who
explained that she felt like she was talked into agreeing with the
majority of the other jurors, not because she agreed with what they
were thinking, but because she basically gave in, something she
now regretted. After brief further questioning by defense counsel,
the court invited a stipulation that the prospective juror be excused
for cause. Both counsel agreed.
Appellant now contends the judgment must be reversed because
the trial court's comments led jurors to believe they could decide
the facts on the same quantum of evidence used in making
25
1
2
important decisions in everyday life, and thus amounted to a
misinstruction on proof beyond a reasonable doubt. Appellant says
this misstatement of the applicable standard of proof violated the
federal Constitution and is reversible per se.
3
B. Analysis
4
5
6
7
In a criminal case, the due process clause of the United States
Constitution “protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessarily to
constitute the crime with which he is charged.” (In re Winship
(1970) 397 U.S. 358, 364 (Winship).) The beyond-a-reasonabledoubt requirement applies in state as well as federal proceedings.
(Sullivan v. Louisiana (1993) 508 U.S. 275, 278 (Sullivan).)
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When a trial court instructs the jury with a misdescription of the
burden of proof by, for example, suggesting a higher degree of
doubt than is required for acquittal under the reasonable doubt
standard, reversal is required. (Sullivan v. Louisiana, supra, 508
U.S. at pp. 277, 281; see Cage v. Louisiana (1990) 498 U.S. 39,
40–41 (Cage), disapproved on another ground in Estelle v.
McGuire (1991) 502 U.S. 62, 72, fn. 4.) The same result obtains
when the trial court's instructions lower the prosecution's burden of
proof by equating reasonable doubt with the standard people use to
make decisions in their everyday lives. (People v. Brannon (1873)
47 Cal. 96, 97; People v. Johnson (Glen) (2004) 119 Cal.App.4th
976, 985–986; People v. Johnson (Danny) (2004) 115 Cal.App.4th
1169, 1171–1172.) The constitutional question in such a case “is
whether there is a reasonable likelihood that the jury understood
the instructions to allow conviction based on proof insufficient to
meet the Winship standard.” (Victor v. Nebraska (1994) 511 U.S.
1, 6; People v. Flores (2007) 153 Cal .App.4th 1088, 1093.)
Although it has no impact on our analysis and ultimate conclusion,
we note that appellant appears to labor under the misapprehension
that the appropriate question for determining whether error
occurred is that articulated in Cage, supra, 498 U .S. at page 41,
i.e., whether a reasonable juror could have interpreted the
instruction(s) to allow a finding of guilt based on a degree of proof
below that required by the due process clause. However, in Estelle
v. McGuire, supra, 502 U.S. at page 72 and footnote 4, the
Supreme Court made it clear that the proper inquiry is not whether
the instruction could have been applied in an unconstitutional
manner, but whether there is a reasonable likelihood the jury did so
apply it. (See Victor v. Nebraska, supra, 511 U.S. at p. 6; Boyde v.
California (1990) 494 U.S. 370, 380 (Boyde).) The court in
Sullivan accepted the Cage standard as controlling because the
state failed to challenge it below, and expressly declined to
consider whether the instruction before it would have survived
review under the Boyde standard. (Sullivan, supra, 508 U.S. at p.
278, fn. *.)
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27
28
In the present case, appellant did not object to the trial court's
comments. “[O]bjections to noninstructional statements or
comments by the trial court must be raised at trial or are waived on
appeal. [Citations.].” (People v. Anderson (1990) 52 Cal.3d 453,
26
468.) The trial court here was conducting voir dire, and nothing in
the record suggests its comments were intended to be, or were
understood by prospective jurors to be, a substitute for formal
instructions. (See People v. Avila (2009) 46 Cal.4th 680, 716.)
1
2
3
Assuming the issue was not forfeited for appeal, the trial court
made it clear that it was not equating its examples with the case.
More importantly, the challenged comments were made not in the
context of elaborating on the definition of reasonable doubt or
explaining the standard or burden of proof, but instead were made
in the course of the trial court's attempt to explain the use of
circumstantial evidence to the particular prospective juror and to
ascertain whether she would be able to deliberate. In fact, when the
trial court defined proof beyond a reasonable doubt for prospective
jurors and asked whether anyone had any quarrel with the
standard, it explicitly stated that this was not the standard used in
everyday life. The court stated: “Does anyone have any problems
or quarrel with this being the standard or the rule of law in a
criminal case? That's the standard you apply. You know, when you
leave this room, that standard goes out the window, you know, you
go decide what—you know, I'm going to buy a blue car or a red
car, am I going to buy a Ford or a Chevy. I mean, maybe you do
apply that standard, but you don't do that in everyday life; you
know, low fat or one percent milk. You don't do that. Here, that's
the standard in making a decision, and the burden is only on the
People to prove that case beyond a reasonable doubt.” Moreover,
the court correctly and fully instructed the jury on the presumption
of innocence and proof beyond a reasonable doubt both prior to the
evidentiary portion of trial and prior to deliberations.
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15
In light of the foregoing, People v. Johnson (Glen), supra, 119
Cal.App.4th at pages 980–981 and 985–986, and People v.
Johnson (Danny), supra, 115 Cal.App.4th at pages 1171–1172,
both of which found reversible error where, during jury selection,
the trial court equated proof beyond a reasonable doubt with
everyday decision-making in a juror's life, are legally and factually
distinguishable. Moreover, were we to find some ambiguity or
contradiction between the trial court's comments during voir dire
and its formal instructions, in light of all the circumstances there
would simply be no reasonable likelihood jurors applied the court's
remarks in an unconstitutional manner. Accordingly, there was no
violation of due process and, hence, no cause for reversal. (See
Victor v. Nebraska, supra, 511 U.S. at p. 6; Estelle v. McGuire,
supra, 502 U.S. at p. 72 & fn. 4.)
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(Pet., Ex. A.)
The government must prove beyond a reasonable doubt every element of a charged
offense. In re Winship, 397 U.S. 358 (1970). “The beyond a reasonable doubt standard is a
requirement of due process, but the Constitution neither prohibits trial courts from defining
reasonable doubt nor requires them to do so as a matter of course.” Victor v. Nebraska, 511 U.S.
28
27
1 1, 5 (1994). The United States Supreme Court has held that “the Constitution does not require
2 that any particular form of words be used in advising the jury of the government’s burden of
3 proof. Rather, taken as a whole, the instructions must correctly convey the concept of reasonable
4 doubt to the jury.” Victor, 511 U.S. at 5. A jury instruction that reduces the level of proof
5 necessary for the Government to carry its burden “is plainly inconsistent with the constitutionally
6 rooted presumption of innocence.” Cool v. United States, 409 U.S. 100, 104 (1972). “All
7 challenged instructions[, however,] must be considered in light of all of the jury instructions and
8 the trial record as a whole.” Mendez v. Knowles, 556 F.3d 757, 768 (9th Cir.2009), citing Cupp
9 v. Naughten, 414 U.S. 141, 146–47 (1973).
10
Petitioner cites two state California cases for his argument that it is unconstitutional to
11 compare the reasonable doubt standard to decisions in everyday life. (Pet. 20-21). See People v.
12 Brannon, 47 Cal. 96, 97 (1873); People v. Johnson, 119 Cal. App. 4th 976, 982 (2004). The
13 standard for relief on a federal habeas petition is whether the state court’s decision was contrary
14 to clearly established federal law. See Carey, 549 U.S. at 77; Wright, 552 U.S. at 126; Moses,
15 555 F.3d at 760. Therefore, this Court cannot consider state law in determining whether to grant
16 federal habeas relief. See Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111
17 L.Ed.2d 606 (1990).
18
Petitioner argues that the trial court’s statement during jury selection about the reasonable
19 doubt standard amounts to a structural error akin to Cage v. Louisiana, 498 U.S. 39, 111 S. Ct.
20 328, 112 L. Ed. 2d 339 (1990) disapproved of by Estelle v. McGuire, 502 U.S. 62, 112 S. Ct.
21 475, 116 L. Ed. 2d 385 (1991). In Cage v. Louisiana, the United States Supreme Court held that
22 the use of the words “grave” and “substantial” suggest a higher degree of doubt, and that when
23 the court’s instructions are “considered with the reference to ‘moral certainty,’ rather than
24 evidentiary certainty, it becomes clear that a reasonable juror could have interpreted the
25 instruction to allow a finding of guilt based on a degree of proof below that required by the Due
26 Process Clause.” Id. at 41. In Cage, although at one point the trial court instructed that to
27 convict must be beyond a reasonable doubt, its incorrect statements were so egregious that they
28 could not be corrected. Id.
28
1
Petitioner argues that the trial court should have cured its error from jury selection, and
2 that the error, in itself, amounts to structural error that requires reversal. While the trial court did
3 not explicitly correct its misstatement to the jury, it instructed the jury during jury instructions
4 that reasonable doubt was “not the standard used in everyday life.” Petitioner also disputes that
5 the jury was accurately instructed on the prosecution’s burden of proof and the reasonable doubt
6 standard. The court correctly instructed the jury on proof beyond a reasonable doubt and the
7 presumption of innocence both prior to the evidentiary portion of the trial and prior to
8 deliberations. (RT 897-80, 2033-34). The trial court stated after explaining the reasonable doubt
9 standard, “That's the standard you apply. You know, when you leave this room, that standard
10 goes out the window, you know, you go decide what—you know, I'm going to buy a blue car or
11 a red car, am I going to buy a Ford or a Chevy. I mean, maybe you do apply that standard, but
12 you don't do that in everyday life; you know, low fat or one percent milk. You don't do that.”
13 (Pet., Ex. A). Petitioner argues that the trial court again compared the reasonable doubt standard
14 to decisions in everyday life in this statement. However, the trial court specifically stated that
15 the reasonable doubt standard doesn’t apply for everyday decisions such as which milk to
16 purchase.
17
Moreover, it must be noted that the challenged comments by the trial court were made
18 during voir dire. Once the venire was empaneled, the jurors were pre-instructed on the definition
19 of reasonable doubt pursuant to CALCRIM No. 103. (RT 879-80). Then, at conclusion of
20 presentation of the evidence, the jury was formally instructed on all applicable instructions,
21 including again, the definition of reasonable doubt in CALCRIM No. 220. (RT 2033-34). Any
22 possible erroneous statement made during voir dire could not have had a substantial and
23 injurious effect on the verdict. See Brecht, 507 U.S. at 637-38.
24
It is true that the judge’s reference to everyday decisions during jury selection comes
25 close to improperly trivializing the reasonable doubt standard. However, the complained-of
26 comments were not attempts by the trial court to describe the nature of reasonable doubt, but
27 were its attempt to explain circumstantial evidence.
When viewed in context, the court’s
28 comments did not significantly detract from or nullify the jury instruction on reasonable doubt.
29
1 Therefore, when taken as a whole, the trial court correctly conveyed the concept of reasonable
2 doubt to the jury. The California Court of Appeal stated that there was no “reasonable likelihood
3 jurors applied the court’s remarks in an unconstitutional manner” given the context of the
4 comments and the court’s instructions on the reasonable doubt standard. (Pet., Ex. A).
5
In sum, the state court rejection of Petitioner’s claim was neither contrary to, nor an
6 unreasonable application of, clearly established law as established by the Supreme Court. 28
7 U.S.C. § 2254(d). The claim must be rejected.
8
3. Motion for New Trial
9
Petitioner next alleges the trial court violated his rights to due process when it heard his
10 motion for a new trial following remand, because the judge was biased against him since he had
11 heard the prior motion for new trial, and the judge was biased against defense counsel.
12
This claim was presented on direct appeal to the Fifth District Court of Appeal and it was
13 denied in a reasoned decision. The California Supreme Court denied review. Federal courts
14 review the last reasoned state court opinion. Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991).
15 Therefore, the Court must review the opinion of the Fifth District Court of Appeal. In rejecting
16 Petitioner’s claim, the appellate court stated as follows:
17
A. Background
18
21
As previously described, upon remand, defendant filed a
peremptory challenge to the trial judge pursuant to section 170.6.
The trial judge found the motion to have been timely filed, but
denied it on the ground the proceedings before him did not
constitute a new trial, and so the statute did not permit
disqualification. Defendant sought review by this court. In case
No. F062348, we denied his petition for a writ of mandate.
22
B. Analysis
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27
Section 170.3, subdivision (d) provides, in pertinent part: “The
determination of the question of the disqualification of a judge is
not an appealable order and may be reviewed only by a writ of
mandate from the appropriate court of appeal sought only by the
parties to the proceeding.” A petition for writ of mandate under
this section “provides the exclusive means for seeking review of a
ruling on a challenge to a judge, whether the challenge is for cause
or peremptory. [Citations.]” (People v. Panah (2005) 35 Cal.4th
395, 444; People v. Hull (1991) 1 Cal.4th 266, 268, 271–276.)
28
Here, defendant sought timely review in this court of the denial of
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his section 170.6 motion. We summarily denied his petition.
“Defendant thus received the appellate review of his statutory
claim to which he was entitled.” (People v. Panah, supra, 35
Cal.4th at p. 445.) “Nevertheless, a defendant may assert on appeal
a claim of denial of the due process right to an impartial judge.
[Citation.]” (People v. Mayfield (1997) 14 Cal.4th 668, 811;
People v. Brown(1993) 6 Cal.4th 322, 327, 332–335.) This is so
where, as here, the defendant sought writ relief, as required by
section 170.3, subdivision (d), and such relief was summarily
denied.15 (People v. Brown, supra, at p. 336.)
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20
Relying on Caperton v. A.T. Massey Coal Co. (2009) 556 U.S.
868, the California Supreme Court has set out the legal principles
applicable to review of a defendant's due process claim. “[W]hile a
showing of actual bias is not required for judicial disqualification
under the due process clause, neither is the mere appearance of
bias sufficient. Instead, based on an objective assessment of the
circumstances in the particular case, there must exist ‘ “the
probability of actual bias on the part of the judge ... [that] is too
high to be constitutionally tolerable.” ’ [Citation.]” (People v.
Freeman (2010) 47 Cal.4th 993, 996.) “[A] constitutionally
intolerable probability of actual bias exists only when the
circumstances ‘ “would offer a possible temptation to the average
man as a judge to forget the burden of proof required to convict the
defendant, or which might lead him not to hold the balance nice,
clear and true between the State and the accused.” ’ [Citations.]
This inquiry is an objective one, based on whether ‘ “under a
realistic appraisal of psychological tendencies and human
weakness,” the interest “poses such a risk of actual bias and
prejudgment that the practice must be forbidden.” ’ [Citations.]”
(People v. Cowan (2010) 50 Cal.4th 401, 457.) The United States
Supreme Court has “made it abundantly clear that the due process
clause should not be routinely invoked as a ground for judicial
disqualification. Rather, it is the exceptional case presenting
extreme facts where a due process violation will be found.
[Citation.] Less extreme cases—including those that involve the
mere appearance, but not the probability, of bias—should be
resolved under the more expansive disqualification statutes and
codes of judicial conduct. [Citation.]” (People v. Freeman, supra,
47 Cal.4th at p. 1005.)
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25
26
27
28
Defendant says the standard required to show a due process
violation has been met, because the trial judge was biased against
defendant and defendant's trial attorney. Defendant points to
several factors in support of this conclusion. None, alone or in
combination, is persuasive.
Defendant first says the trial judge was “too piqued” by reversal of
the judgment in the first appeal to carefully read this court's
opinion, review Porter, supra, 47 Cal.4th 125, apprise himself of
the standard to be used when hearing a motion under Penal Code
section 1181, subdivision 6, and to use that standard. As we have
already explained, however, the trial judge did not misunderstand
his role in deciding defendant's motion, disregard the evidence
favorable to the defense, lack familiarity with this court's opinion,
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digress from the standard applicable to his decision on defendant's
motion, or abuse his discretion by denying the motion. Nothing in
the handling of the motion supports the charge of bias. (See People
v. Mayfield, supra, 14 Cal.4th at p. 811.)
Defendant also says the trial judge was “too piqued,” when the
section 170.6 motion was presented, to correctly interpret Peracchi
v. Superior Court (2003) 30 Cal.4th 1245 (Peracchi) and recognize
his duty to recuse himself and allow another judge to consider the
motion for a new trial or modification of the verdicts. We are not
convinced the trial judge erred in his reading of the case.
The second paragraph of subdivision (a)(2) of section 170.6
provides, in pertinent part: “A motion under this paragraph may be
made following reversal on appeal of a trial court's decision, or
following reversal on appeal of a trial court's final judgment, if the
trial judge in the prior proceeding is assigned to conduct a new trial
on the matter.” At issue in Peracchi was whether a sentencing
hearing conducted on remand after a partial reversal on appeal
constituted a “new trial” within the meaning of the statute.
(Peracchi, supra, 30 Cal.4th at p. 1253.) In addressing the
question, the California Supreme Court observed that Penal Code
section 1179 defines a new trial as “ ‘a reexamination of the issue
in the same Court, before another jury, after a verdict has been
given,’ ” while Penal Code section 1180 explains that “ ‘[t]he
granting of a new trial places the parties in the same position as if
no trial had been had.’ ” (Peracchi, supra, 30 Cal.4th at p. 1253.)
The court concluded: “Taking into consideration the applicable
statutes, prior court practice, the function of a sentencing hearing,
and the limited effect on the judgment of a reviewing court's order
remanding for resentencing, we conclude that resentencing is not a
‘new trial’ within the meaning of the Penal Code or Code of Civil
Procedure section 170.6.” (Id. at pp. 1257–1258, fn. omitted.)
Peracchi recognized that a remand for resentencing is not
equivalent to an order for a new trial (Peracchi, supra, 30 Cal.4th
at p. 1254), and that when remanding for resentencing, a reviewing
court typically does not reverse the judgment of conviction or
remand for a new trial (id. at p. 1255). In defendant's case, of
course, we did reverse the judgment. We did not, however,
necessarily remand for a new trial, but rather gave the trial judge
the option of reinstating the judgment and sentence. Under the
circumstances, we cannot agree with defendant's position that,
because a Penal Code section 1181, subdivision 6 motion is a
prerequisite to a retrial, it must be treated the same as a retrial for
section 170.6 purposes. A motion for a new trial is not a new trial;
a remand for a new hearing on a motion for new trial is not,
without more, a remand for a new trial itself. Our disposition in
defendant's prior appeal simply did not place the parties in the
same position as if there had been no trial. Accordingly, we
conclude Peracchi 's reasoning applies, and the trial judge properly
denied defendant's peremptory challenge pursuant to section 170.6.
27
28
Last, defendant says the trial judge's bias against defense counsel
was demonstrated in defendant's petition for writ of mandate
32
challenging Judge Chittick's denial of the challenge for cause
brought pursuant to section 170.1. Apparently this court disagreed
that bias was shown, since it denied defendant's petition. In any
event, we have reviewed Judge Chittick's ruling, and conclude it
correctly found no basis in the facts presented for a finding of bias
or prejudice, and that no reasonable reading of the evidence
presented could lead one to believe the trial judge was not
impartial. (See People v. Carter (2005) 36 Cal.4th 1215, 1243.)
The trial judge's comment to defense counsel, made in the course
of an attempt to accommodate the attorneys' schedules while also
selecting a jury, that she was a “big girl” who could have renewed
her driver's license the previous week rather than waiting until the
week she had a murder trial assigned, was unfortunate, but,
considered in context, not indicative of bias. (Contrast In re
Marriage of Iverson (1992) 11 Cal.App.4th 1495, 1497, 1499–
1501 & fn. 5 [trial court's oral statement of decision “so replete
with gender bias” that appellate court “forced” to conclude wife
did not receive fair trial], disapproved on another ground in People
v. Freeman, supra, 47 Cal.4th at p. 1006, fn. 4.) Likewise, telling
counsel she had to object in good faith and instructing her not to
waste the court's time with a particular type of objection do not
indicate prejudice or bias when considered in context.
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12
To summarize, the circumstances of this case “simply do not rise
to a due process violation under the standard set forth by Caperton
because, objectively considered, they do not pose ‘ “such a risk of
actual bias or prejudgment” ’ [citation] as to require
disqualification.” (People v. Freeman, supra, 47 Cal.4th at p. 1006,
fn. omitted; see also People v. Carter, supra,36 Cal.4th at p. 1244.)
Accordingly, defendant's claim fails.
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14
15
16
(Pet. Ex. B).
17
18
Here, Petitioner argues that the trial judge should have recused himself based on his
19 participation in the prior motion for a new trial, and relies on Caperton v. A.T. Massey Coal Co.,
20 Inc., 556 U.S. 868, 880 (2009), which holds that judges may need to recuse themselves based on
21 participation in a prior proceeding. While a judge may need to recuse himself from a matter, the
22 determination should be based on an objective basis. See id. “The Court asks not whether the
23 judge is actually, subjectively biased, but whether the average judge in his position is ‘likely’ to
24 be neutral, or whether there is an unconstitutional ‘potential for bias.’” Caperton, 556 U.S. at
25 881. In Caperton, a state supreme court justice who had received significant contributions for his
26 campaign for office from the litigant was required to recuse himself from that litigant’s case. Id.
27 at 886-87.
The United States Supreme Court noted that the litigant’s “significant and
28 disproportionate influence – coupled with the temporal relationship between the election and the
33
1 pending case– “ ‘ “offer a possible temptation to the average…judge to…lead him not to hold the
2 balance nice, clear and true.” ’ ” Id. (internal citations omitted).
3
Petitioner also argues that the trial judge should have recused himself based on In re
4 Murchison, 349 U.S. 133, 136 (1955). In Murchison, the Supreme Court held that a judge who
5 cannot be “wholly disinterested” in the proceedings and anytime there is the “probability of
6 fairness” should not preside over a matter. 349 U.S. at 136-37. The trial judge in Murchison had
7 acted as a “one-man grand jury” by examining witnesses to determine whether criminal charges
8 should be brought and then charging the petitioners. Id. at 133-35.
9
There is no evidence in the record that the judge was biased against Petitioner or his
10 attorney. Petitioner argues that the judge’s opinion of him and his attorney was tainted by the
11 prior motion for a new trial, resulting in unfairness in the motion for new trial after remand.
12 However, Petitioner is unable to point to anything in the record to support this claim.
13
The judge’s comments to defense counsel do not indicate prejudice or bias. While the
14 judge told counsel to be a “big girl,” they were in reference to her scheduling the renewal of her
15 driver’s license, and do not rise to the level of bias or prejudice. The judge had told counsel that
16 she had to object in good faith and not to waste the court’s time with a particular type of
17 objection, but when viewed in context, they do not indicate prejudice or bias. The remarks by
18 the judge that Petitioner contends are evidence of bias are merely impatient remarks. Impatient
19 remarks, including ones that are “critical or disapproving of, or even hostile to, counsel, the
20 parties, or their cases,” are insufficient to overcome the presumption of judicial integrity. See
21 Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir 2008) (quoting Liteky v. United States, 510
22 U.S. 540, 555, 114 S.Ct. 1147 (1994)).
23
Petitioner also raises the issue that the trial judge said that he would not be able to preside
24 over a new trial, but then he presided over the motion for new trial on remand. Pursuant to Code
25 of Civil Procedure section 170.6, the trial judge would have had to recuse himself if a new trial
26 was conducted after an appellate court reversed the judgment. Therefore, the trial judge’s
27 statement about not being able to preside over a new trial on remand was a correct statement that
28 did not have any impact on his ability to preside over the motion for a new trial after the
34
1 judgment was reversed by the appellate court.
2
Thus, the state court did not unreasonably apply Supreme Court authority or make an
3 unreasonable determination of fact in making its determination, and this claim fails.
4
4. Self-Defense and Related Instructions
5
Petitioner alleges that the trial court’s failure to instruct on the amount of allowable force,
6 sudden quarrel/heat of passion, and absence of malice constituted prejudicial error that deprived
7 him of his right to present a defense. This claim was presented on direct appeal to the Fifth
8 District Court of Appeal and it was denied in a reasoned decision. Petitioner raised this issue in
9 his state habeas petition to the California Supreme Court where he raised substantive evidentiary
10 claims and an ineffective assistance of appellate counsel claim. Federal courts review the last
11 reasoned state court opinion. Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991). Therefore, the
12 Court must review the opinion of the Fifth District Court of Appeal. In rejecting Petitioner’s
13 claim, the appellate court stated as follows:
14
A. Amount of Allowable Force
15
1. Background
16
Appellant claimed he was not guilty of any crime because, at the
time he fired his gun, he was acting reasonably in self-defense. In
support, and as described in the statement of facts, ante, appellant
testified that, inter alia, because of the injuries he received when he
was 15 years old, he was told that if he was hit too hard in the head
or eye, he could lose his eye and possibly his life. During the
confrontation, although it appeared none of the others were armed,
appellant felt in danger and did not want to be put back in a
situation of being hurt again. Appellant also presented evidence
that he suffered from PTSD caused primarily by the beating, and
that core symptoms of PTSD were avoidance and hypervigilence,
i.e., a sense of potential threat when confronted with things that
recalled the traumatic event. In Dr. Howsepian’s opinion,
appellant’s history of being traumatized, together with the
circumstances of the confrontation in the present case, added up to
an individual who perceived the threat in an amplified way and felt
the need to act quickly to save himself.
The People and appellant both requested that the trial court give
the jury CALCRIM No. 505 (justifiable homicide: self-defense or
defense of another). Appellant also requested CALCRIM No. 3470
(right to self-defense or defense of another (nonhomicide)). The
trial court agreed the instructions would be given as requested.
Pursuant to CALCRIM No. 505, the court subsequently instructed
the jury, in pertinent part:
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“The defendant is not guilty of murder if he was justified in killing
someone in selfdefense. The defendant acted in lawful self-defense
if:
“One, the defendant reasonably believed that he 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 was reasonably
necessary to defend against that danger.
“Belief in future harm is not sufficient no matter how great or how
likely the harm is believed to be. The defendant must have
believed there was imminent danger of great bodily injury to
himself. Defendant’s belief must have been reasonable and he
must have acted only because of that belief. The defendant is only
entitled to use that amount of force that a reasonable person would
believe is necessary in the same situation. If the defendant used
more force than was reasonable, the killing was not justified.
“When deciding whether the defendant’s beliefs were reasonable,
consider all the circumstances as they were known to and appeared
to the defendant and consider what a reasonable person in a similar
situation with similar knowledge would have believed. If the
defendant’s beliefs were reasonable, the danger does not need to
have actually existed.
“The defendant’s belief that he was threatened may be reasonable
even if he relied on information that that was not true. However,
the defendant must actually and reasonably have believed – the
defendant must actually and reasonably have believed that the
information was true. [¶] ... [¶]
“The People have the burden of proving beyond a reasonable doubt
that the killing was not justified. If the People have not met this
burden, you must find the defendant not guilty of murder.”
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Appellant now contends the trial court erred by instructing jurors
that a “defendant is only entitled to use that amount of force that a
reasonable person would believe is necessary in the same
situation,” and that the error was exacerbated by the trial
court’s omission of the following optional portions of CALCRIM
No. 505:
“[Someone who has been threatened or harmed by a person in the
past, is justified in acting more quickly or taking greater selfdefense measures against that person.]
“[If you find that the defendant received a threat from someone
else that (he/she) reasonably associated with ____ < insert name of
decedent/victim >, you may consider that threat in deciding
whether the defendant was justified in acting in (selfdefense/[or]
defense of another).]”
36
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3
4
5
6
Appellant says the group confronting him in 2007 was, in his
mind, much like and, thus, closely associated with the group that
confronted him in 2004; hence, he was justified in acting more
quickly and taking harsher measures for self-protection than
persons who had not been beaten in the past. The jury, he says, was
led to believe the opposite was true. While the trial court correctly
told jurors they should take into consideration appellant’s
individual circumstances when determining whether his beliefs
were reasonable, appellant contends, the court barred the jury from
considering those circumstances when determining whether
appellant’s actions were reasonable.
7
2. Analysis
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“For killing to be in self-defense, the defendant must actually and
reasonably believe in the need to defend. [Citation.] If the belief
subjectively exists but is objectively unreasonable, there is
‘imperfect self-defense,’ i.e., ‘the defendant is deemed to have
acted without malice and cannot be convicted of murder,’ but can
be convicted of manslaughter. [Citation.] To constitute ‘perfect
self-defense,’ i.e., to exonerate the person completely, the belief
must also be objectively reasonable. [Citations.] As the Legislature
has stated, ‘[T]he circumstances must be sufficient to excite the
fears of a reasonable person....’ [Citations.] Moreover, for either
perfect or imperfect selfdefense, the fear must be of imminent
harm. ‘Fear of future harm – no matter how great the fear and no
matter how great the likelihood of the harm – will not suffice. The
defendant’s fear must be of imminent danger to life or great bodily
injury.’ [Citation.]
“Although the belief in the need to defend must be objectively
reasonable, a jury must consider what ‘would appear to be
necessary to a reasonable person in a similar situation and with
similar knowledge....’ [Citation.] It judges reasonableness ‘from
the point of view of a reasonable person in the position of
defendant....’ [Citation.] To do this, it must consider all the ‘“‘facts
and circumstances ... in determining whether the defendant acted in
a manner in which a reasonable man would act in protecting his
own life or bodily safety.’”’ [Citation.] As [the California Supreme
Court] stated long ago, ‘... a defendant is entitled to have a jury
take into consideration all the elements in the case which might be
expected to operate on his mind....’ [Citation.]” (People v.
Humphrey (1996) 13 Cal.4th 1073, 1082–1083, italics & fn.
omitted (Humphrey).)
Appellant’s claim of error turns on the meaning of “reasonable”
and the effect of his PTSD and prior experiences in that regard.
This is because, “[a]lthough the ultimate test of reasonableness is
objective, in determining whether a reasonable person in
defendant’s position would have believed in the need to defend,
the jury must consider all of the relevant circumstances in which
defendant found [him]self.” (Humphrey, supra, 13 Cal.4th at p.
1083.) Moreover, “any right of self-defense is limited to the use of
such force as is reasonable under the circumstances. [Citation.]”
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(People v. Pinholster (1992) 1 Cal.4th 865, 966, disapproved on
another ground in People v. Williams, supra, 49 Cal.4th at p. 459;
see also People v. Hardin (2000) 85 Cal.App.4th 625, 629–630.)
Although not cited by either party, People v. Jefferson (2004) 119
Cal.App.4th 508 (Jefferson ) is very instructive. In that case, the
defendant was convicted of three counts of battery upon
correctional officers, committed while he was incarcerated in a
prison psychiatric services unit.(Id. at pp. 510, 511.)There was
evidence that he had mental disabilities, including possibly
schizophrenia, and that he was hearing voices when the offenses
were committed. (Id. at pp. 513–514.)On appeal, he claimed the
trial court failed to account for his mental illness when, inter alia,
instructing on his defense of self-defense and ruling on the
admissibility of certain evidence. (Id. at p. 510.)
The appellate court disagreed and affirmed the judgment.
(Jefferson, supra, 119 Cal.App.4th at p. 510.)It rejected the
defendant's argument that, for purposes of applying, in the
defendant's case, the “reasonable person” test as stated in
Humphrey, a reasonable person was one who was confined in a
prison's psychiatric services unit, and that evidence of the
conditions of confinement, including his mental illness, should be
considered by the jury to determine whether the defendant had
reasonable grounds for a genuine belief that he was in imminent
danger. (Jefferson, at p. 518.)The court explained:
“Defendant misstates the objective ‘reasonable person’ test.
The issue is not whether defendant, or a person like him, had
reasonable grounds for believing he was in danger. The issue is
whether a ‘reasonable person’ in defendant's situation, seeing and
knowing the same facts, would be justified in believing he was in
imminent danger....
“By definition, a reasonable person is not one who hears
voices due to severe mental illness. In blunt fashion, our Supreme
Court long ago defined a reasonable person as a ‘normal person.’
[Citation.] The reasonable person is an abstract individual of
ordinary mental and physical capacity who is as prudent and
careful as any situation would require him to be. [Citations.]”(Id. at
p. 519.)
The appellate court deemed erroneous the defendant's claim that
Humphrey required the admission of his mental condition as part
of establishing the reasonable person standard. The court stated:
“Nowhere did the Humphrey court state the expert evidence could
be used to redefine the ‘reasonable person’ standard as one who
suffered from battered women's syndrome or, as defendant argues
here, one who suffered from hearing voices.
“To the contrary, the Supreme Court stated: ‘[W]e are not
changing the standard from objective to subjective, or replacing the
reasonable “person” standard with a reasonable “battered woman”
standard.... The jury must consider defendant's situation and
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13
knowledge, which makes the evidence relevant, but the ultimate
question is whether a reasonable person, not a reasonable battered
woman, would believe in the need to kill to prevent imminent
harm. Moreover, it is the jury, not the expert, that determines
whether defendant's belief and, ultimately, her actions, were
objectively reasonable.’[Citation.]” (Jefferson, supra, 119
Cal.App.4th at p. 520.)
The appellate court observed that the jury knew the defendant was
an inmate in a prison psychiatric services unit, heard voices every
day telling him the staff was poisoning his food and, before each
incident, that the correctional officers were going to hurt him, and
that the defendant believed he had no choice but to follow the
voices and do what he did. The jury also knew the facts of the
incidents, including that there was no evidence of any attempt by,
or intent of, the officers to harm the defendant. The court
concluded: “The jury thus had before it all of the relevant facts and
circumstances in which defendant found himself. The trial court
correctly denied defense counsel's efforts to define the reasonable
person as a mentally ill person hearing voices. Under the rule of
Humphrey, the jury was to determine whether a person of ordinary
and normal mental and physical capacity would have believed he
was in imminent danger ... under the known circumstances. The
jury was so instructed, and defendant was not denied the
opportunity to present his defense in the manner allowed by
law.”(Jefferson, supra, 119 Cal.App.4th at p. 520.)
14
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18
In the present case, the jury was instructed that appellant was
entitled to use the amount of force a reasonable person would
believe was necessary in the same situation.The “same situation”
consists not only of the state of affairs confronting appellant, but
also his own specific situation, including any mental and physical
issues. The jury was aware of all the relevant circumstances. Since,
following Jefferson's logic, a “reasonable person” is not a
“reasonable PTSD sufferer,” the trial court did not misstate the
amount of force appellant was entitled to use.
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28
Nor did the trial court err by omitting the optional portions of
CALCRIM No. 505 that referred to prior threats and harm. First, as
this court held in People v. Garvin (2003) 110 Cal.App.4th 484,
488–489 (Garvin ), a trial court has no obligation to instruct on
antecedent threats or assaults on its own motion. CALCRIM No.
505, as given, instructed the jury on the basic principles of selfdefense; if appellant felt it was incomplete, he was required to
request the additional material. (People v. Welch (1999) 20 Cal.4th
701, 757; see People v. Young (2005) 34 Cal.4th 1149, 1200.)That
the omitted paragraphs are now contained in a unified instruction
instead of in multiple instructions as was the case in the CALJIC
scheme discussed in Garvin does not turn paragraphs that
“highlight[ ] a particular aspect of this defense and relate[ ] it to a
particular piece of evidence” (Garvin, supra, 110 Cal .App.4th at
p. 489) into general principles of law upon which a trial court must
instruct sua sponte (see People v. Daya (1994) 29 Cal . App.4th
697, 714). Indeed, the Bench Notes to CALCRIM No. 505 state
that the trial court must instruct on antecedent threats and assaults
39
1
upon defense request and when supported by sufficient evidence.
(Bench Notes to CALCRIM No. 505 (2009–2010) p. 237.)
2
3
4
5
6
7
8
9
Second, even if we assume appellant requested that instructions on
antecedent threats and assaults be given, the instructions were
properly omitted here. “The jury need not be instructed on a theory
for which no evidence has been presented. [Citation.]” (People v.
Roberts (1992) 2 Cal.4th 271, 313; see also People v. Hill (2005)
131 Cal.App.4th 1089, 1101, disapproved on another ground in
People v. French (2008) 43 Cal.4th 36, 48, fn. 5.) Cases holding
that a defendant is entitled to such instructions all involve the
making of prior threats or commission of harm by the victim (e.g.,
People v. Moore (1954) 43 Cal.2d 517, 527–529; People v. Pena
(1984) 151 Cal.App.3d 462, 475, 476–477; People v. Bush (1978)
84 Cal.App.3d 294, 304; People v. Torres (1949) 94 Cal.App.2d
146, 151) or by third parties the defendant reasonably associated
with the victim (e.g., People v. Minifie (1996) 13 Cal.4th 1055,
1060, 1065–1067 (Minifie )).
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Appellant cites Minifie in support of his assertion that the group
confronting him in 2007 was much like, and thus closely
associated with, the group that confronted him in 2004. However,
Minifie involved a situation in which the threats were made by
friends and cohorts of a man the defendant previously killed. The
victim of the charged offenses was a friend of the deceased.
(Minifie, supra, 13 Cal.4th at pp. 1060–1061, 1063–1064.)Nothing
in the opinion suggests the requisite association may exist only in
the defendant's mind. Even the Salman Rushdie example that is
given requires the defendant to reasonably associate the victim
with the threats. While what is reasonable will vary according to
the circumstances, the association addressed in Minifie is not the
type of “association” that existed in appellant's mind due to his
traumatic memory of a prior assault by a completely unrelated
group. Moreover, evidence of appellant's previous experiences was
before jurors, who were sufficiently instructed on the issue when
told to consider all the circumstances as they were known to and
appeared to appellant, and to consider what a reasonable person in
a similar situation with similar knowledge would have believed.
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Appellant says remarks made by the trial court during jury
selection likely increased the harm done by the instructional error.
We find no instructional error. Moreover, in each instance, the
court was discussing the importance of this country's jury system
and jury service. We fail to see how its remarks in this regard
could have had any possible effect on jurors' interpretation of the
evidence or the instructions, or how, as asserted by appellant, they
led jurors to erroneously suppose they should hold appellant to an
objective standard and not consider his experiences or history in
deciding issues related to self-defense.
26
B. Sudden Quarrel/Heat of Passion
27
1. Background
28
Evidence was presented that appellant was angry during his
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argument with Daniels's group. Appellant himself testified that the
accusation he stole the PlayStation did not make him angry, but
instead surprised him. As the argument continued, however, he
started “getting irritated a little bit....” He explained: “I had my
words, I got irritated and may have got a little angry, but not to
where I lost my cool.”When the prosecutor asked whether, at the
time he was shooting, appellant was “still keeping [his] cool,”
appellant responded that he was trying to protect himself. When
the prosecutor asked if he still knew what he was doing, appellant
responded, “Yeah.” Appellant subsequently testified that he got
angry, but was trying to be as cool as possible. While he was mad,
he raised the gun and asked the group to leave. Appellant testified:
8
“Q. [by the prosecutor] Okay. And you pulled the trigger of the
gun and fired into the crowd when you were mad; correct?
9
“A. Yes. And out of fear.
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“Q. But you didn't lose your cool, you knew what you were doing;
right? [¶] ... [¶]
“A. I felt I was protecting myself, yes.”
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During the on-the-record instructional conference, the court ran
through the list of instructions it would be giving. This ensued:
“[THE COURT:] [CALCRIM No.] 571, voluntary manslaughter,
imperfect self-defense, lesser-included offense. That is, again 571.
That will be given as requested.
“MR. FRANCIS: And I'd note for the record, Your Honor, that in
our previous discussions of this, there was no request by the
defense for a voluntary manslaughter, other than the type of
imperfect self-defense that we have here.
“THE COURT: Okay. And are you requesting that, Ms. Boulger?
20
“MS. BOULGER: I'm only requesting the instructions I have
submitted formally, Your Honor.
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“THE COURT: So—let me see.
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“MS. BOULGER: It would be nothing other than the 571....
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“THE COURT: You didn't request 571.
24
“MS. BOULGER: Oh, yeah. I'm only going with—
“THE COURT: So double check.
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“MS. BOULGER: I'm going with an acquittal, Your Honor, that's
what we're going for.
27
“THE COURT: Okay. So you are requesting 571?
28
“MS. BOULGER: We'll take it. But I'm not requesting anything
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else.
2
“THE COURT: Well, don't—don't say that ‘cuz you just said that
and you're wrong.
3
4
“MS. BOULGER: Well, I'm—I'm saying—he suggested that I was
asking for another theory of manslaughter. And I am not. In fact,
I—we are—our—our theory is it's not manslaughter.”
5
8
Jurors subsequently were instructed on voluntary and attempted
voluntary manslaughter based on imperfect self-defense. They
were not instructed, however, on voluntary or attempted voluntary
manslaughter based on sudden quarrel or heat of passion
(CALCRIM Nos. 570 & 603, respectively). Appellant now
contends omission of these instructions constituted reversible error.
9
2. Analysis
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Manslaughter is a lesser included offense of murder. (People v..
Cruz (2008) 44 Cal.4th 636, 664.)It follows that attempted
voluntary manslaughter is a lesser included offense of attempted
murder, although, unlike murder and voluntary manslaughter,
which can be predicated on either intent to kill or conscious
disregard for life (People v. Lasko (2000) 23 Cal.4th 101, 107–
109), attempted murder and attempted voluntary manslaughter
require a specific intent to kill (People v. Montes (2003) 112
Cal.App.4th 1543, 1549–1550).
“A criminal defendant is entitled to an instruction on a lesser
included offense only if [citation] ‘there is evidence which, if
accepted by the trier of fact, would absolve [the] defendant from
guilt of the greater offense’ [citation], but not the lesser.
[Citations.]” (People v. Memro (1995) 11 Cal.4th 786, 871, italics
omitted.) “[T]he existence of ‘any evidence, no matter how weak’
will not justify instructions on a lesser included offense, but such
instructions are required whenever evidence that the defendant is
guilty only of the lesser offense is ‘substantial enough to merit
consideration’ by the jury. [Citations.] ‘Substantial evidence’ in
this context is ‘ “evidence from which a jury composed of
reasonable [persons] could ... conclude[ ]” ‘ that the lesser offense,
but not the greater, was committed. [Citations.]” (People v.
Breverman (1998) 19 Cal.4th 142, 162.)
27
An appellate court reviews independently a trial court's failure to
instruct on a lesser included offense. (People v. Waidla (2000) 22
Cal.4th 690, 733.)Although speculation is an insufficient basis
upon which to require such an instruction (People v. Valdez (2004)
32 Cal.4th 73, 116), in determining whether there is substantial
evidence of a lesser offense, courts do not evaluate the credibility
of witnesses, as that is a task for the jury (People v. Breverman,
supra, 19 Cal.4th at p. 162). The testimony of a single witness,
including the defendant, can constitute substantial evidence
requiring the trial court to instruct on its own initiative. (People v.
Lewis (2001) 25 Cal.4th 610, 646.)
28
The parties argue over whether any error here was invited. “[T]he
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sua sponte duty to instruct on lesser included offenses ... arises
even against the defendant's wishes, and regardless of the trial
theories or tactics the defendant has actually pursued.”(People v.
Breverman, supra, 19 Cal.4th at p. 162.)Nevertheless, “a defendant
may not invoke a trial court's failure to instruct on a lesser included
offense as a basis on which to reverse a conviction when, for
tactical reasons, the defendant persuades a trial court not to instruct
on a lesser included offense supported by the evidence.
[Citations.]” (People v. Barton (1995) 12 Cal.4th 186,
198.)Although the error is still error, it does not furnish cause for
reversal. (Ibid.)
Whether error is invited turns on whether counsel deliberately
caused the court to fail to fully instruct. (People v. Cooper (1991)
53 Cal.3d 771, 831.)Accordingly, “the record must show only that
counsel made a conscious, deliberate tactical choice between
having the instruction and not having it.”(Ibid.) Although here
defense counsel clearly had a tactical purpose for wanting only
those instructions she had requested, which did not include
instructions on sudden quarrel and heat of passion (see People v.
Horning (2004) 34 Cal.4th 871, 905), we cannot say she would
have opposed the giving of such instructions if offered, inasmuch
as she accepted the giving of instructions on imperfect self-defense
even though she had not requested them. Under the circumstances,
we question whether the doctrine of invited error applies. (See
People v. Cooper, supra, 53 Cal.3d at p. 831.)
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28
We need not determine whether any error was invited, however,
because we conclude the instructions were properly omitted. As
the California Supreme Court explained in People v. Manriquez
(2005) 37 Cal.4th 547, 583–584:
“ ‘Although section 192, subdivision (a), refers to “sudden quarrel
or heat of passion,” the factor which distinguishes the “heat of
passion” form of voluntary manslaughter from murder is
provocation. The provocation which incites the defendant to
homicidal conduct in the heat of passion must be caused by the
victim [citation], or be conduct reasonably believed by the
defendant to have been engaged in by the victim. [Citations.] The
provocative conduct by the victim may be physical or verbal, but
the conduct must be sufficiently provocative that it would cause an
ordinary person of average disposition to act rashly or without due
deliberation and reflection. [Citations.] “Heat of passion arises
when ‘at the time of the killing, the reason of the accused was
obscured or disturbed by passion to such an extent as would cause
the ordinarily reasonable person of average disposition to act
rashly and without deliberation and reflection, and from such
passion rather than from judgment.’ “ [Citation.]' [Citation.]
“Thus, ‘[t]he heat of passion requirement for manslaughter has
both an objective and a subjective component. [Citation.] The
defendant must actually, subjectively, kill under the heat of
passion. [Citation.] But the circumstances giving rise to the heat of
passion are also viewed objectively. As we explained long ago ...,
“this heat of passion must be such a passion as would naturally be
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aroused in the mind of an ordinarily reasonable person under the
given facts and circumstances,” because “no defendant may set up
his own standard of conduct and justify or excuse himself because
in fact his passions were aroused, unless further the jury believe
that the facts and circumstances were sufficient to arouse the
passions of the ordinarily reasonable man.” [Citation.]’
[Citations.]”
“ ‘ “To satisfy the objective or ‘reasonable person’ element of this
form of voluntary manslaughter, the accused's heat of passion must
be due to ‘sufficient provocation.’ “ [Citation.]' [Citation.]”
(People v. Manriquez, supra, 37 Cal.4th at p. 584.)Because the
circumstances giving rise to the heat of passion are viewed
objectively, a defendant's “ ‘extraordinary character and
environmental deficiencies,’ “ including “psychological
dysfunction due to traumatic experiences,” are irrelevant to the
inquiry. (People v. Steele (2002) 27 Cal.4th 1230, 1252, 1253.)
“[A] voluntary manslaughter instruction is not warranted where the
act that allegedly provoked the killing [or attempted killing] was
no more than taunting words, a technical battery, or slight
touching. [Citation.]” (People v. Gutierrez (2009) 45 Cal.4th 789,
826.)Neither does simple assault rise to the level of provocation
necessary to support such an instruction. (Id. at p. 827.)“The
provocation must be such that an average, sober person would be
so inflamed that he or she would lose reason and
judgment.”(People v. Lee (1999) 20 Cal.4th 47, 60 (plur. opn. of
Baxter, J.).) An argument with unarmed acquaintances with whom
there had apparently been no trouble in the past, even one
occurring in one's own home and involving accusations of theft,
the use of profanity and name-calling, and individuals who were
slow to leave when told to do so, is not provocation that would
incite an average, sober person to homicidal passion. (Compare
People v. Breverman, supra, 19 Cal.4th at pp. 163–164 [sufficient
provocation where group of young men, armed with deadly
weapons and harboring specific hostile intent, trespassed on
domestic property occupied by defendant, acted in menacing
manner and challenged him to fight, and used weapons to smash
defendant's vehicle that was parked in driveway not far from front
door]; People v. Barton, supra, 12 Cal.4th at p. 202 [sufficient
provocation where victim tried to run defendant's daughter's car off
road and spat on it; when confronted by defendant, victim acted “
‘berserk’ “ and assumed fighting stance; when defendant asked
daughter to call police, argument escalated and victim taunted
defendant, and defendant thought victim was armed with knife];
People v. Elmore (1914) 167 Cal. 205, 211 [sufficient provocation
where fatal wound inflicted in response to “unprovoked attack and
violent blows” of victim].)
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26
27
28
Moreover, adequate provocation and heat of passion must be
affirmatively shown. (People v. Gutierrez, supra, 34 Cal.4th at p.
826; People v. Steele, supra, 27 Cal.4th at p. 1252.)“ ‘It is not
enough that provocation alone be demonstrated. There must also
be evidence from which it can be inferred that the defendant's
reason was in fact obscured by passion at the time of the act.
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[Citations.]’ “ (People v. Sinclair (1998) 64 Cal.App.4th 1012,
1015, italics added.) Although appellant was undisputedly angry
and, according to at least some evidence, fearful, his own
testimony was that he did not lose “his cool” and act rashly, or
without due deliberation and reflection, or from strong passion
rather than judgment. (See People v. Moye (2009) 47 Cal.4th 537,
540.)While jurors were free to disbelieve appellant's testimony, the
circumstances shown by the evidence at trial were not such as to
constitute substantial evidence of heat of passion despite
appellant's testimony. (Compare People v. Villanueva (2008) 169
Cal.App.4th 41, 52–53 [jurors could have found intentional
shooting in self-defense or imperfect self-defense, despite
defendant's testimony he shot victim accidentally, where defendant
begged victim to leave and only fired after victim stepped on
accelerator in apparent attempt to run defendant over]; People v.
Elize (1999) 71 Cal.App.4th 605, 610 [jurors could have
disbelieved defendant's testimony that he fired accidentally, and
concluded instead that he fired intentionally to stop physical
attack].)
Last, assuming the trial court erred by failing to instruct on
voluntary manslaughter based on sudden quarrel or heat of passion,
the error was harmless. Pursuant to CALCRIM No. 522, jurors
were told that if they found provocation, they were to consider it in
determining whether the crime was first or second degree murder,
and whether it was murder or manslaughter. Despite this
instruction and one telling jurors that the People had the burden of
proving beyond a reasonable doubt that the killing was first degree
murder rather than a lesser crime, jurors found Daniels's killing to
be deliberate, premeditated murder. Under the instructions given,
they necessarily found appellant “carefully weighed the
considerations for and against his choice, and knowing the
consequences, decided to kill.” They thus necessarily rejected the
notion appellant's reason was obscured. (See People v. Carasi
(2008) 44 Cal.4th 1263, 1306 [state of mind required for
premeditated murder is “ ‘manifestly inconsistent’ “ with having
acted under heat of passion, even if provocation present]; People v.
Manriquez, supra, 37 Cal.4th at p. 586; People v. Lewis, supra, 25
Cal.4th at p. 646.)
Although there was no charged allegation or finding of
premeditation with respect to the attempted murders, in light of the
evidence presented and instructions given, it is not reasonably
probable jurors would have found premeditation with respect to
appellant's shooting of one victim, but voluntary manslaughter
based on sudden quarrel or heat of passion with respect to his
shooting of or at the other victims. Accordingly, the failure to
instruct, assuming it was error, was harmless. (See People v.
Breverman, supra, 19 Cal.4th at p. 178 [applying Watson standard
to failure to instruct on lesser included offense in noncapital case].)
26
C. Malice
27
28
Appellant says that, even if the trial court's error in failing to
instruct on voluntary manslaughter and attempted voluntary
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3
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7
manslaughter based on sudden quarrel or heat of passion was
invited, the court had a sua sponte duty to tell jurors that there was
no malice and, hence, no murder or attempted murder, if the killing
and attempted killings occurred upon a sudden quarrel or in the
heat of passion. He says that because the existence of malice,
which is required for murder and attempted murder, depends on
the absence of sudden quarrel and heat of passion, such absences
are included within malice as an essential element of murder, and
the jury must find that element true in order to reach a murder or
attempted murder verdict. Under the instructions given here, the
argument runs, the jury was permitted to treat required elements as
irrelevant and allowed to reach verdicts of murder and attempted
murder without considering or finding requisite elements of the
offenses.
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Heat of passion and unreasonable self-defense, as forms of
manslaughter, a lesser offense included in murder, come within the
broadest version of a trial court's duty, under California law, to
produce sua sponte instructions on all material issues presented by
the evidence. (People v. Breverman, supra, 19 Cal.4th at pp. 159–
160.)In light of our conclusion, ante, that either the trial court did
not err by omitting instructions on sudden quarrel/heat of passion
or that any error was harmless under both the Watson and
Chapman standards, however, appellant's argument fails. The trial
court instructed jurors that the prosecutor had the burden of
proving, beyond a reasonable doubt, that, with respect to count 1,
appellant acted with malice and, with respect to the remaining
counts, that he intended to kill. This was sufficient under the
circumstances of this case.
People v. Rios (2000) 23 Cal.4th 450 (Rios ), on which appellant
relies, does not lead to a different result. In that case, the California
Supreme Court held that, while neither heat of passion nor
imperfect self-defense is an element of voluntary manslaughter that
the People must prove beyond a reasonable doubt in order to
obtain a conviction for that offense, “where murder liability is at
issue, evidence of heat of passion or imperfect self-defense bears
on whether an intentional or consciously indifferent criminal
homicide was malicious, and thus murder, or nonmalicious, and
thus the lesser offense of voluntary manslaughter. In such cases,
the People may have to prove the absence of provocation, or of
any belief in the need for self-defense, in order to establish the
malice element of murder.” (Id. at p. 454.)The court referred to
sudden quarrel/heat of passion and imperfect self-defense as
“mitigating circumstances” that reduce an intentional, unlawful
killing for murder to voluntary manslaughter by negating the
element of malice that otherwise inheres in such a homicide. (Id. at
pp. 460–461.)It stated:
“Thus, where the defendant killed intentionally and
unlawfully, evidence of heat of passion, or of an actual, though
unreasonable, belief in the need for self-defense, is relevant only to
determine whether malice has been established, thus allowing a
conviction of murder, or has not been established, thus precluding
a murder conviction and limiting the crime to the lesser included
46
offense of voluntary manslaughter. Indeed, in a murder case,
unless the People's own evidence suggests that the killing may
have been provoked or in honest response to perceived danger, it is
the defendant's obligation to proffer some showing on these issues
sufficient to raise a reasonable doubt of his guilt of murder.
[Citations.]
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2
3
4
“If the issue of provocation or imperfect self-defense is
thus ‘properly presented’ in a murder case [citation], the People
must prove beyond reasonable doubt that these circumstances were
lacking in order to establish the murder element of malice.
[Citations.]”(Id. at pp. 461–462, italics omitted.)
5
6
7
The court reiterated: “[I]n a murder trial, the court, on its own
motion, must fully instruct on every theory of a lesser included
offense, such as voluntary manslaughter, that is supported by the
evidence. [Citation.] Hence, where the evidence warrants, a murder
jury must hear that provocation or imperfect self-defense negates
the malice necessary for murder and reduces the offense to
voluntary manslaughter. By the same token, a murder defendant is
not entitled to instructions on the lesser included offense of
voluntary manslaughter if evidence of provocation or imperfect
self-defense, which would support a finding ‘that the offense was
less than that charged,’ is lacking. [Citations.]” (Rios, supra, 23
Cal.4th at p. 463, fn. 10.)
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13
In the present case, the jury was instructed on the People's burden
of proving the absence of imperfect self-defense. Because evidence
of sudden quarrel or heat of passion sufficient to support a finding
of voluntary manslaughter was lacking, the trial court had no sua
sponte duty to instruct the jury on the People's burden of proving
that provocation and heat of passion were lacking. Moreover, even
if we were to find that error occurred, it would be harmless for the
reasons stated in part IV.B., ante.(See Neder v. United States
(1999) 527 U.S. 1, 19; People v. Flood (1998) 18 Cal.4th 470,
489–490, 502–503; People v. Tillotson (2007) 157 Cal.App.4th
517, 538–539.)
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20 (Pet., Ex. A).
21
Petitioner alleges his Sixth Amendment right to present a defense was violated when the
22 trial court failed to instruct the jury on the amount of allowable force, sudden quarrel/heat of
23 passion, and the absence of malice.
24
In this case, Petitioner fails to demonstrate that the trial court’s failure was contrary to or
25 an unreasonable application of Supreme Court precedent. Respondent argues that the state
26 court’s determination that the jury was correctly instructed on the challenged instructions was an
27 interpretation of state law. The Court notes that any error in the state court's determination of
28 whether state law allowed for an instruction in this case cannot form the basis for federal habeas
47
1 relief. Estelle v. McGuire, 502 U.S. 62, 71 (1991) (citing Marshall v. Lonberger, 459 U.S. 422,
2 438, n. 6 (1983)) (“[T]he Due Process Clause does not permit the federal courts to engage in a
3 finely tuned review of the wisdom of state evidentiary rules”).
“‘Failure to give [a jury]
4 instruction which might be proper as a matter of state law,’ by itself, does not merit federal
5 habeas relief.” Menendez v. Terhune, 422 F.3d 1012, 1029 (quoting Miller v. Stagner, 757 F.2d
6 988, 993 (9th Cir. 1985)).
7
The only basis for federal collateral relief for instructional error is that the infirm
8 instruction or the lack of instruction by itself so infected the entire trial that the resulting
9 conviction violates due process. See Estelle, 502 U.S. at 72 (citations omitted). This court must
10 evaluate the challenged instruction in the context of the instructions as a whole and the entire
11 trial record. Estelle, 502 U.S. at 72. The burden on Petitioner is especially heavy “where ... the
12 alleged error involves the failure to give an instruction.” Clark v. Brown, 450 F.3d 898, 904 (9th
13 Cir. 2006). Even if constitutional instructional error has occurred, the federal court must still
14 determine whether Petitioner suffered actual prejudice, that is, whether the error “had substantial
15 and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507
16 U.S. 619, 637 (1993). A “substantial and injurious effect” means a “reasonable probability” that
17 the jury would have arrived at a different verdict had the instruction been given. Clark, 450 F.3d
18 at 916.
19
The Sixth Amendment right to a fair trial requires that criminal defendants be afforded a
20 meaningful opportunity to present a complete defense. California v. Trombetta, 467 U.S. 479,
21 485 (1984). In Mathews v. United States, 485 U.S. 58, 63 (1988), the Supreme Court held that
22 “a defendant is entitled to an instruction as to any recognized defense for which there exists
23 evidence sufficient for a reasonable jury to find in his favor.” Federal courts have held that a
24 trial court's failure to give a requested instruction embodying the defense theory of the case and
25 around which the defendant had built his or her defense violates the defendant's due process right
26 to present a complete defense. See, e.g., Clark v. Brown, 442 F.3d 708, 713–718 (9th Cir.2006)
27 (instruction on felony-murder special circumstance); Bradley v. Duncan, 315 F.3d 1091, 1098-99
28 (9th Cir.2002) (instruction on defense of entrapment); Conde v. Henry, 198 F.3d 734, 739–740
48
1 (9th Cir.2000) (instruction on simple kidnapping as lesser included offense of kidnapping for
2 robbery); United States v. Monger, 185 F.3d 574, 576–577 (6th Cir.1999) (instruction on lesser
3 included offense).
4
In all of these cases, however, the instruction at issue was requested by the defense.
5 Respondent argues that by Petitioner not requesting these jury instructions during trial, he
6 foreclosed any federal habeas relief, because there is no clearly established Supreme Court
7 precedent that there is a sua sponte instructional duty on trial judges. Petitioner counters that he
8 did, in fact, request CALCRIM No. 505. Petitioner claims that he requested an instruction on the
9 omitted language of CALCRIM No. 505, and he never agreed to cut any portions of it. The Fifth
10 Appellate District noted, “the People and appellant both requested that the trial court give the
11 jury CALCRIM No. 505…” (Pet., Ex A). It is true that both parties requested CALCRIM No.
12 505, but it appears that defense counsel did not request the optional prior threats and harm
13 instruction, as she did not request it during the discussion on jury instructions and she did not
14 object when the instruction was read to the jury. (RT 1998; RT 2044-2046). Defense counsel
15 also did not request the sudden quarrel/heat of passion instruction, and in fact, specifically stated
16 that the defense was not requesting another theory of manslaughter besides CALCRIM No. 571.
17 (RT 1998-2000). Thus, the trial court did not instruct on voluntary or attempted voluntary
18 manslaughter based on sudden quarrel or heat of passion. (CALCRIM Nos. 570 & 603).
19
Therefore, Petitioner’s complaint amounts to an assertion that the trial court failed to sua
20 sponte instruct the jury on allowable force, sudden quarrel/heat of passion, and absence of malice
21 as a defense. But the above-noted cases do not support the proposition that a trial court's sua
22 sponte failure to instruct denies due process.
In fact, the Supreme Court has not clearly
23 established that a trial court is required under the Constitution to issue a defense instruction sua
24 sponte. The Supreme Court has stated that “[i]t is the rare case in which an improper instruction
25 will justify reversal of a criminal conviction when no objection has been made in the trial court.”
26 Henderson v. Kibbe, 431 U.S. 145, 154 (1977). Since there is no clearly established Federal law
27 requiring such a sua sponte instruction, this Court cannot conclude that the state court's ruling
28 was an “unreasonable application.” Musladin, 549 U.S. at 77.
49
1
Further, as reasonably determined by the appellate court, there was very little, if any,
2 evidence in the record to support the instructions on allowable force, sudden quarrel/heat of
3 passion, and absence of malice.
4
Even if defense counsel requested the instruction on prior threats and harms in
5 CALCRIM No. 505, there was no support in the record for this instruction. For an instruction on
6 antecedent threats and assaults, the prior threats or commission of harm have to be by the victim
7 or by third parties the defendant reasonably associated with the victim. See People v. Moore, 43
8 Cal.2d 517, 527-529 (1954); People v. Pena, 151 Cal.App.3d 462, 475, 476-477 (1984); People
9 v. Bush, 84 Cal.App.3d 294, 304 (1978); People v. Torres, 94 Cal.App.2d 146, 151 (1949);
10 People v. Minifie, 13 Cal.4th 1055, 1060, 1065-1067 (1996)). In Minifie, the threats were made
11 by friends and cohorts of a man the defendant previously killed, and the victim of the charged
12 offenses was a friend of the deceased, so the victim of the charged offense was reasonably
13 associated with the prior threats. Minifie, 13 Cal.4th at 1060-61. While Petitioner may argue
14 that the group who confronted him in the present case was closely associated with the group that
15 had confronted him in 2004, there was no proof in the record to support this. Petitioner has not
16 shown what was unreasonable about the state court’s determination that his victims could not
17 reasonably be associated with his past aggressors.
18
Heat of passion manslaughter requires that the defendant must actually, subjectively kill
19 under the heat of passion, and there is an objective basis for the defendant’s actions when
20 viewing the circumstances giving rise to the heat of passion. See People v. Manriquez, 37
21 Cal.4th 547, 583-84 (2005). Petitioner has not shown what was unreasonable about the state
22 court’s determination that there was not substantial evidence of heat of passion despite
23 Petitioner’s testimony. Petitioner testified that “he did not lose ‘his cool’ and act rashly, or
24 without due deliberation and reflections, or from strong passion rather than judgment.” (Pet., Ex.
25 A). Therefore, it was reasonable for the court to determine that there was not sufficient evidence
26 for a heat of passion manslaughter instruction. Petitioner’s argument that the trial court should
27 have instructed on the absence of malice is akin to his argument on heat of passion manslaughter,
28 and therefore, for the reasons previously stated, there was not sufficient evidence to instruct on
50
1 the absence of malice. In light of the evidence, it is clear the instructions on allowable force,
2 sudden quarrel/heat of passion, and absence of malice were not warranted.
3
Moreover, as pointed out by Respondent, any error was clearly harmless. In an effort to
4 avoid a conviction for first or second degree murder, defense counsel strenuously argued that
5 Petitioner attacked the victim out of self-defense. The jury was given CALCRIM No. 522 about
6 provocation and was instructed that the People had to prove beyond a reasonable doubt that
7 Petitioner had committed first degree murder rather than a lesser crime or no crime. The jury
8 heard about the Petitioner’s 2004 attack, and the jurors were instructed to “consider all the
9 circumstances as they were known to and appeared to the defendant and consider what a
10 reasonable person in a similar situation with similar knowledge would have believed.” (RT
11 2045).
12
The jury rejected the Petitioner’s theory by finding Petitioner guilty of deliberate,
13 premeditated murder. Thus, the jury clearly determined that Petitioner acted deliberately, and
14 not in the heat of passion, when he committed the murder. For this reason, Petitioner cannot
15 show the failure to instruct the jury on heat of passion, absence of malice, and prior threats “had
16 a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507
17 U.S. at 637. Accordingly, Petitioner was not denied due process by being deprived of the
18 opportunity to present a complete defense. Mathews, 485 U.S. at 63. Thus, the state court
19 rejection of Petitioner’s claim was not contrary to or an unreasonable application of clearly
20 established Supreme Court precedent. 28 U.S.C. § 2254(d)(1). This claim must be denied.
21
IV.
22
RECOMMENDATION
23
Accordingly, the Court HEREBY RECOMMENDS that:
24
1. The petition for writ of habeas corpus be DENIED WITH PREJUDICE; and
25
2. The Clerk of the court be DIRECTED to enter judgment and terminate the case.
26
This Findings and Recommendation is submitted to the Honorable Lawrence J. O’Neill,
27 United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and
28 Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of
51
1 California. Within thirty (30) days after service of the Findings and Recommendation, any party
2 may file written objections with the court and serve a copy on all parties. Such a document
3 should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies
4 to the objections shall be served and filed within fourteen (14) days after service of the
5 objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. §
6 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may
7 result in the waiver of rights on appeal. Wilkerson v. Wheeler, __ F.3d __, __, No. 11-17911,
8 2014 WL 6435497, at *3 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d 1391,
9 1394 (9th Cir. 1991)).
10
11
IT IS SO ORDERED.
12 Dated:
December 5, 2014
UNITED STATES MAGISTRATE JUDGE
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