Bowman v. Katavich

Filing 17

ORDER Regarding Petition for Writ of Habeas Corpus signed by Magistrate Judge Michael J. Seng on 12/23/2016. CASE CLOSED.(Flores, E)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:14-cv-00934 MJS (HC)
LOY ALLEN BOWMAN,

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ORDER REGARDING PETITION FOR WRIT
Petitioner, OF HABEAS CORPUS

v.

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JOHN KATAVICH,
Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Respondent is represented by Amanda D. Cary of
the office of the Attorney General. Both parties have consented to Magistrate Judge
jurisdiction under 28 U.S.C. § 636(c). (ECF Nos. 9, 11.)
I.

Procedural Background
Petitioner is currently in the custody of the California Department of Corrections

pursuant to a judgment of the Superior Court of California, County of Fresno, following
his conviction by jury trial on September 22, 2011, for second degree murder with a
firearm enhancement. (Clerk's Tr. at 691-93.) On November 10, 2011, Petitioner was

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sentenced to an indeterminate term of sixteen (16) years to life in state prison. (Id.)

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Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate

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District, which affirmed the judgment on October 22, 2013. (Lodged Docs. 11-14.)

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Petitioner sought review from the California Supreme Court. (Lodged Docs. 15-16.) The

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California Supreme Court denied review on January 15, 2014. (Id.)

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Petitioner did not attempt to file collateral challenges to his conviction in state
court in the form of petitions for writ of habeas corpus.

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On June 16, 2014 Petitioner filed the instant federal habeas petition. (Pet., ECF

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No. 1.) Petitioner presented three claims for relief in the petition: (1) that the trial court

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violated his due process rights by not providing a self-intoxication defense instruction; (2)

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that the trial court violated his due process rights by not providing an instruction on the

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lesser-included defense of involuntary manslaughter; and (3) that the restitution fines

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imposed were unconstitutional. (Id.)

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Respondent filed an answer to the petition on August 13, 2014. (ECF No. 11.)

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Petitioner did not file a traverse. The matter stands ready for adjudication.

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II.

Statement of the Facts1

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INTRODUCTION

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David Smith's body was found on the side of the road in a rural
area in Fresno County. He had been shot multiple times, and suffered
extensive blunt force trauma to his head. The investigation led to
appellant/defendant Loy Allen Bowman IV and Marcos Eli Flores. They
were Smith's acquaintances and purchased crystal methamphetamine
from him. Flores testified that he entered into a plan with defendant to lure
Smith into a secluded area and beat him, because they were angry about
a particular drug transaction. Flores said defendant shot Smith with a rifle
and then used the weapon to repeatedly beat Smith in the head.

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Both defendant and Flores were initially charged with first degree
murder (Pen. Code,[fn1] § 187, subd. (a)). The court granted the
prosecution's motion for severance of their trials. Flores later pleaded
guilty to second degree murder. He was sentenced to 36 years to life, and
he agreed to testify against defendant.

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FN1: All further statutory citations are to the Penal Code unless otherwise

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The Fifth District Court of Appeal’s summary of the facts in its October 22, 2013 opinion is presumed
correct. 28 U.S.C. § 2254(e)(1).

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indicated.
At defendant's jury trial for first degree murder, Flores testified that
defendant shot and beat Smith. Defendant testified to a different version of
the story – that Flores shot and beat Smith. Defendant was convicted of
second degree murder. The jury found true the special allegation that a
principal was armed with a firearm in the commission of the offense (§
12022, subd. (a)(1)). However, the jury found not true the allegation that
defendant personally and intentionally discharged a firearm which caused
death (§ 12022.53, subd. (d)), thus convicting defendant as an aider and
abettor and not as the gunman.
Defendant was sentenced to 15 years to life, plus one year for the
firearm allegation. The court imposed a restitution fine and ordered
restitution to the victim's family for his funeral expenses.
On appeal, defendant contends the court should have granted his
motion to instruct the jury on voluntary intoxication. Defendant also
contends the court had a sua sponte duty to instruct on involuntary
manslaughter as a lesser included offense. In addition, defendant argues
he was entitled to a jury trial on imposition of both victim restitution and the
restitution fine. We affirm.
FACTS
At 7:00 a.m. on March 18, 2009, Fresno County Sheriff's deputies
responded to a rural area on Yuba Avenue near Highway 180, in response
to a dispatch that a man was lying on the side of the road. The deputies
found David Smith's body lying face-down in the mud and dirt adjacent to
an orchard. There was blood around his body. He suffered gunshot
wounds to his left chest, arms, and legs, and blunt force trauma to his face
and head.
The detectives found tire and shoe tracks near Smith's body. There
were signs in the dirt of significant movement consistent with a
disturbance and fight. The barrel of a .22-caliber rifle was found just off the
roadway. The rest of the rifle – the stalk, receiver, and trigger parts – were
broken in pieces and scattered in the dirt around Smith's body. There was
also .22-caliber live ammunition and spent shell casings lying in the dirt.
Smith's property was found around and under his body, including his
wallet, a partially open folding knife, a checkbook with a bullet hole
through it, and a cell phone which had been broken into pieces.
Shoe and tire tracks
The detectives were able to isolate three different sets of shoe
tracks in the mud around the victim's body. One set belonged to the shoes
on the victim's body. The second set was from a DVS brand shoe. The
third set was from a pair of work boots.
Based on the tire and shoe tracks, the detectives believed that a
vehicle had parked on the side of the road and three people emerged from
it. The driver was wearing the work boots, the front passenger was
wearing the DVS brand, and Smith got out of the rear passenger door.

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The detectives also determined the significant disturbances in the
dirt were consistent with a fight. The broken pieces of the cell phone and
rifle were consistent with the victim being bludgeoned by the objects, and
the objects breaking into pieces and flying off during the beating. The
tracks from the work boots were "dug in" to the dirt, indicating that person
exerted so much force that the work boots wiped out any other shoe
tracks underneath them. The person who wore the "DVS" brand shoe
walked toward the area of the victim's body, but the work boot tracks were
on top of the DVS tracks. The highest frequency of tracks around the
victim's body was from the work boots, which indicated that person was
involved in the physical disturbance with Smith.
The tire tracks and blood trails indicated that after the disturbance,
the vehicle initially drove forward over the victim, then "the vehicle backed
over him, and then [it] went forward over him again" and left the scene.
The autopsy
Smith had been shot in his upper left chest and in both arms and
legs. The bullet fired into his chest went through the upper lobe of the left
lung, and lodged in his upper left back. The left lung collapsed and
extensive internal bleeding occurred. There were also bullets lodged in
both legs near the knees. The bullets into his arms went through and one
bullet fractured his right arm. The bullets were either .22- or .25caliber.[fn2] Smith also suffered blunt force trauma, abrasions, and
lacerations on his face, head, and body. Some of the lacerations on his
body were defensive wounds. Smith had a skull fracture, and multiple rib
fractures on the left side. The head trauma and lacerations were inflicted
by a heavy, linear object that was long and narrow.
FN2: A criminalist determined the broken rifle found at the scene was a
Marlin .22-caliber semiautomatic long rifle. The spent cartridge casings
were consistent with being fired from that weapon. The criminalist also
found blood on pieces of the broken rifle.
Smith also had multiple fractures to the left rib cage, a laceration on
the inside of his right lung, and a laceration on the front wall of his heart.
These injuries were probably caused by being run over by the pickup
truck. Smith suffered internal bleeding from the rib fractures.

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The cause of Smith's death was the combination of the gunshot
wound to the chest and the blunt force injuries to his head, neck, chest,
and abdomen. The gunshot wound in the left chest would have solely
caused Smith's death in about 20 to 30 minutes, if left untreated. The head
injuries were inflicted with so much force that Smith suffered extensive
subgaleal hemorrhages.

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Initial contacts with defendant and Flores

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The detectives determined Smith was connected to an apartment
on East Harrison in Fresno. On the evening of March 18, 2009, Detectives
Eaton and Toscano went to the apartment and met defendant and his
girlfriend. Defendant said Smith had lived in the apartment with him.
Defendant also said Smith hung out with several people, including Marcos
Flores.

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On the night of March 19, 2009, the detectives went to a house
associated with Marcos Flores, but no one was home. The detectives saw
a pickup truck parked in front of the house. The detectives believed the
truck's tires matched the distinctive tire tracks found near Smith's body.

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Defendant asks Macias for help

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On or about March 21, 2009, defendant called a friend, Pamela
Macias. Defendant sounded scared. He asked Macias to pick him up and
said he was in a little bit of trouble. Macias picked up defendant and his
girlfriend, and took them to her own residence. Defendant was very
scared, edgy, and sweating profusely. Macias had never seen him act that
way. Defendant said the police had been to his house, and he did not
want to be questioned, but he did not have any place to go.

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Macias testified defendant did not say what kind of trouble he was
in, but that he would be "gone for a long time." Defendant asked Macias
how many sleeping pills it would take for him not to wake up. Macias told
him not to do that. Defendant told Erick Jones, Macias's boyfriend, that he
was "in the worst possible trouble that you could possibly imagine."[fn3]
Macias and Jones asked defendant whether he should turn himself in.
Defendant said it wouldn't be a good idea because "it wasn't an accident."
Defendant said he was "doomed pretty much. It wasn't an accident. Turn
yourself in, it's all bad."
FN3: Jones testified for the prosecution and admitted he had prior
convictions for forgery and domestic violence, and he was in custody at
the time of trial.
Macias testified defendant said he turned off his cell phone so the
police could not call or track him. Defendant told Jones that he was going
to get rid of his cell phone so no one could track him. Jones thought
defendant was under the influence of methamphetamine. Defendant
talked about going to Canada or Mexico to avoid being questioned by the
police. He made some calls to people out of state. Defendant did not say
why he was afraid. Macias gave him some money, and defendant left the
next morning.
Arrests of Flores and defendant
On March 21, 2009, Detectives Toscano and Eaton interviewed
Flores at his house. Flores said defendant borrowed his pickup truck, and
he was not with defendant that night. Flores was not arrested.
On March 24, 2009, the detectives interviewed Flores at the
sheriff's department. Flores admitted he was with defendant, but said
defendant killed Smith, and Flores accidentally drove over his body. Flores
was arrested that day.

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Defendant was also arrested. Flores and defendant were charged
with first degree murder, but Flores pleaded guilty to second degree
murder and agreed to testify against defendant.

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FLORES'S TRIAL TESTIMONY

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At defendant's trial for first degree murder, Flores testified for the
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prosecution and admitted he had pleaded guilty to the murder of Smith.
He could have been sentenced to 56 years to life. Instead, he was
sentenced to 36 years to life, and he had to testify truthfully against
defendant. Flores had prior convictions for assault with a deadly weapon,
assault with great bodily injury, and use of a weapon in 2005. He also had
juvenile petitions for criminal threats, stealing a car, and statutory rape.
Flores admitted he had been involved with a northern gang, Varrio
Westside Madera, for almost his whole life. Flores had obtained firearms
in the past to use against other people. He had been involved in some
drive-by shootings, but insisted he had never shot anyone.
Flores testified he met defendant while they attended a residential
drug rehabilitation program for two months in 2008. Flores was thrown out
of the program when he was accused of threatening other clients. After
they were out of the program, defendant and Flores hung out together and
used drugs.
Flores met Smith through defendant. Smith sold drugs, and he did
not have a steady home because of his own drug problem. Smith
occasionally stayed at defendant's apartment.[fn4] About a month before
Smith was killed, defendant obtained a .22-caliber rifle and told Flores he
got it for his protection.
FN4: According to the probation report, defendant was 23 years old, and
Smith was 19 years old.
The plan
Flores testified that on March 17, 2009, he spent the day with
defendant. They went to Kerman to help a friend move. They used crystal
methamphetamine at the friend's house.
Flores testified that defendant had a telephone conversation with
Smith while they were in Kerman. After the call, defendant said he was
tired of Smith "not paying his rent. Not paying his dues at the apartment.
And he was tired of it and [Smith] had better pay up." When defendant
made these statements, he was "tweaked out," "spinning," and "amped up
on dope." Flores had seen defendant act like this "[a] lot of times." When
defendant was like that, he would get "all antsy" and say that they needed
to go commit a robbery.
Flores testified that while they were still in Kerman, they came up
with a plan to lure Smith to a certain location, beat him up, and rob him.
Earlier that week, Smith had given "bad dope" to both defendant and
Flores, and had given some of defendant's drugs to Flores. Flores and
defendant were upset with Smith because of the drug transaction.
Defendant was also angry because Smith was not paying his share of the
rent. Flores explained that Smith usually had money with him because he
wrote false checks.
Flores testified that he agreed with defendant to "take [Smith] out,
rob him, and just smash him and set him straight pretty much," and to
"pretty much put [him] back on track ...." They planned to tell Smith that
they were going to help someone move furniture. Defendant "was
supposed to get out and smash him," and Flores agreed to be there "just
pretty much if things got out of hand and [defendant] couldn't take care of
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it ...." They agreed that defendant would beat up Smith because "it was
[defendant's] rent money [Smith] was supposed to be paying," and the
dispute was over defendant's drugs. The plan was for defendant to beat
up Smith with his fists; they were not going to use any firearms. Defendant
was supposed to take Smith's wallet and cash, and Flores would take his
checkbook.

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The drive to Kerman

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On March 17, 2009, at some point between 8:30 p.m. and 9:00
p.m., defendant and Flores borrowed a blue pickup truck from Flores's
stepfather. They went back to defendant's apartment. Smith arrived at the
apartment later in the evening. Smith said he had used methamphetamine
earlier in the day. Defendant and Flores followed their plan and told Smith
they were going to drive to Kerman to move furniture for a friend.
Defendant, Flores, and Smith got into the blue pickup truck.

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Flores was driving, and defendant was in the front passenger seat.
Smith sat in the back passenger seat. Defendant told Flores where to
drive. Flores followed his instructions and headed toward Kerman. During
the drive, defendant asked to borrow Smith's cell phone. Smith gave it to
defendant, and defendant turned it off and kept it from him. Smith was
"flipping out" and cussing at defendant to give back his cell phone.
Defendant told Smith to chill out. They argued about the cell phone for
quite awhile.
Flores testified he followed defendant's instructions and drove
"forever." During the drive, Flores realized defendant had placed his rifle
under the front seat. Flores believed that Smith could not see the weapon
from the back seat. Flores testified it was not part of the plan to bring the
rifle.
The homicide
At some point after midnight on March 18, 2009, defendant told
Flores to pull over and park in a rural area where there were no lights or
homes. Flores testified that he got out of the driver's door, and the only
light was from inside the truck's cab. Flores smoked a cigarette and
walked around the back of the truck. Defendant and Smith got out of their
respective passenger doors. Defendant and Smith were still "bickering"
about Smith's cell phone.
Flores testified he told Smith to "quit crying like a bitch" and
punched him in the face. Smith took the punch and did not fall down.
Flores turned around and intended to punch defendant because "he was
bickering, too." Flores testified that these acts were not part of their plan,
but he was angry and annoyed at them.

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When Flores turned to punch defendant, however, he discovered
defendant was holding up the rifle, and the barrel was pointed in Flores's
direction. Flores became scared and ducked out of the way. Defendant
shot Smith four or five times. Smith fell down after the first gunshot.
Defendant bent over Smith and kept firing into his body.[fn5] Smith was
screaming for help and repeatedly asked, "Why?"

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FN5: As we will explain, post, it was alleged that defendant personally and

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intentionally discharged a firearm causing death or great bodily injury.
However, the jury found this allegation not to be true, indicating that it
either did not believe, or was uncertain of, Flores's account that defendant
fired the rifle at Smith.
After defendant fired the last shot, Smith remained on the ground
and moaned in pain. Flores stood at the back of the truck. Flores testified
he heard the rifle click and jam. Defendant started beating and "hacking"
Smith's body with the back of the gun. Defendant swung the rifle like a
baseball bat multiple times at Smith's head.
Flores stepped in and tried to stop defendant from continuing to hit
Smith on the head. Flores testified he was wearing work boots that night.
Flores believed his boot tracks were around Smith's body because he
stood next to him when he tried to stop defendant from "hacking" Smith
with the rifle. When he tried to stop defendant, however, Flores's hands
were hit by the barrel as Smith continued to swing the rifle. Once
defendant hit Flores's hand with the rifle, Flores backed away.
Flores testified that defendant hit Smith so many times that the rifle
"broke into a bunch of pieces." When defendant finally stopped swinging
the rifle, Smith did not make any more noise. Flores did not go through
Smith's pockets and get the checkbook, as they planned, because
"[t]hings got out of hand." Flores did not see Smith's possessions on the
ground, and he did not see defendant go through his pockets, even
though defendant was supposed to take Smith's money.

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Flores and defendant got back in the truck, and Flores intended to
drive away. Flores backed up the truck and realized he drove over Smith's
body. Flores stopped, and then he drove forward and again ran over
Smith's body. This was not part of the plan, but Flores admitted he was
still angry. Flores drove away, and they left Smith on the side of the road.

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The car wash

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Flores drove to their friend's house in Kerman. They stayed there
briefly, and then Flores drove to a car wash in Fresno to clean the mud
and blood off his stepfather's pickup truck.[fn6] Defendant threw his
clothes in the car wash's dumpster; Flores did not see what defendant did
with his shoes. Flores threw his own clothes and shoes into the same
dumpster.

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FN6: The detectives reviewed security surveillance videotapes and
observed a large vehicle, consistent with a pickup truck, at a car wash on
Shaw and El Capitan in Fresno. It was at the car wash from 1:39 a.m. to
1:49 a.m. on March 18, 2009.

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Flores drove back to defendant's apartment. Defendant gave Flores
a black bag which contained a laptop computer. It had been in the
backseat of the truck. Flores threw away the laptop.

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Flores's initial statements

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Flores testified that when the detectives initially interviewed him, he
lied about the incident because he was scared. He told the detectives that
defendant had borrowed the truck, and he was not with defendant that

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night, so they would think defendant killed Smith by himself. Flores also
told the officers that defendant was late when he returned with the truck,
and there was mud all over the interior.
During the second interview, Flores told the detectives that he was
with defendant that night, defendant killed Smith, and Flores accidentally
"peeled out" and hit Smith with the truck's back tires. He did not tell the
detectives about their plan to beat and rob Smith. Flores eventually told
the detectives about their plan and how Smith was killed.
DEFENSE EVIDENCE
Pastor Douglas Erickson founded Maroa Home, a residential
recovery program for male drug addicts which defendant and Flores
attended. Richard Alvarado was a counselor at the program. Erickson and
Alvarado testified they had regular contact with defendant while he was in
the program. Defendant started in August 2007, graduated one year later,
stayed after graduation, and took classes at a community college.
Defendant successfully left the program in January 2009. Erickson
described defendant as very mild, calm, and a peacemaker among the
other residents. Alvarado thought he was well mannered and set a good
example for other residents. He never acted out and always followed the
program's rules. Defendant never failed any of the random drugs tests.
Erickson was surprised by the murder charge against defendant and
couldn't understand how he got involved in the incident. Alvarado would
not have expected defendant to own a gun. Erickson and Alvarado had
never seen defendant when he was on methamphetamine, and they never
saw defendant outside the strict program environment.
Erickson and Alvarado testified that Flores was in the program for
seven weeks. Erickson described Flores as volatile and angry. Flores was
kicked out for writing very violent and threatening entries in his journal and
threatening to beat up another resident. Alvarado believed Flores was a
violent person. Alvarado never saw Flores and defendant hang out
together and was surprised they knew each other.
Jane Sommer, defendant's aunt, described him as a peaceful
person. She never saw him engage in any violent outbursts or
altercations. She never saw him on methamphetamine and was surprised
to hear he owned a shotgun. She last saw defendant during a family
holiday in November 2008.
DEFENDANT'S TRIAL TESTIMONY
Defendant testified that he used crystal methamphetamine, and he
had prior convictions for possession and transportation of
methamphetamine for sale. Defendant explained that when he was on
methamphetamine, he became paranoid, but he was never violent, and he
had never been convicted of a violent crime.
Defendant testified he obtained the rifle about a month before
Smith's death. Someone owed him money and gave him the rifle to pay
the debt. He never used it against anyone. On cross-examination,
however, defendant admitted he did not accept the rifle as a debt, but
someone offered it to him and he accepted it. Defendant did not know who
loaded the rifle with ammunition.
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Defendant testified Smith lived with him when he did not have a
place to live. Smith was current on his rent payments, they had a very
good relationship, and there were no problems between them. Defendant
met Flores at the treatment program. Flores's mood changed on a regular
basis. Flores used crystal methamphetamine and drank. Defendant was
scared of Flores because of his drug use, gang activities, and Flores's
story about the things he had done for his gang. He never saw Flores act
violently until the night of Smith's death.
Defendant considered Smith and Flores to be his friends. However,
defendant heard "from both parties" that there were problems between
them, but he did not know the reason. Defendant testified they never
planned to rob or steal anything from Smith.
On cross-examination, defendant admitted he hung out with some
of Flores's gang friends, even though he claimed to be afraid of them.
Defendant claimed he was afraid of Flores when he was on drugs, but
testified that he did drugs with Flores on the day of the murder and on
other occasions.
Defendant testified he sold drugs after he left the drug treatment
program. Defendant claimed he stopped selling drugs before Smith was
killed, but people still called him to find out where they could buy drugs.
He referred some of his former drug customers to Smith. Defendant
admitted he told the detectives that he was upset because Smith sold
"bad" drugs to some of defendant's former customers and "burned" them,
and these people complained about it. Defendant admitted that Smith
"burned" Flores in a drug deal that occurred one or two nights before the
homicide. Defendant also admitted that it made him look bad for his
roommate to burn people in drug transactions.
The decision to drive to Kerman
Defendant testified the incident began when Flores borrowed his
family's truck so they could help Flores's friend move in Kerman.
Defendant and Smith went with Flores. Defendant thought the drive to
Kerman would give Smith and Flores the chance to talk about and resolve
the dispute between them.
Defendant testified he took his rifle with him. He placed it in the
toolbox on the driver's side in the back of the truck. He did not put the rifle
in the cab. Defendant testified he had taken his rifle with him on many
other trips with both Smith and Flores: "I was just trying to fit in. I'm not
from around here. And I – the friends I had at the time were doing that sort
of thing." Smith knew defendant brought the rifle and did not have a
problem with it.

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On cross-examination, defendant testified it was Flores's idea to
bring the rifle with them that night. Defendant admitted he previously said
that he took the gun so he could intimidate Smith. However, defendant
said his prior statement was not truthful, and explained he did not take the
gun "to intimidate anybody." Defendant testified he did not know who
loaded the rifle, but admitted he told the detectives that Flores loaded it.

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Defendant testified that Flores said "[h]e wanted us to check"

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Smith. Defendant admitted that meant Flores wanted to "'f**k up'" Smith.
However, defendant thought there wouldn't be any violence since he
would be there. Defendant believed that Smith would not have gotten into
the truck with Flores unless defendant had also been there, since Smith
and Flores had problems between them. Defendant thought Flores would
use the gun to intimidate Smith, and not to fire it.

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The argument in the truck

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Defendant testified that after they got into the truck, Flores stopped
at a gas station to fill up the vehicle. While they were there, Flores
borrowed Smith's cell phone even though Flores had his own cell phone.
After the gas station, Flores headed to Kerman. Defendant was in the front
passenger seat, and Smith was in the back.

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Defendant testified that as Flores drove to Kerman, Flores and
Smith talked about their dispute. Flores had done some mechanical work
on Smith's vehicle, and Smith owed money to Flores "or had given him
bad dope as payment, or something like that." Flores and Smith started to
argue. Smith said he had better things to do and wanted to leave. Smith
told Flores to stop so Smith could look for his cell phone and call someone
to pick him up.
Defendant testified that while they argued, Flores put on latex gloves and
then a pair of gardening gloves on top of them.
The homicide
Flores parked the truck on the side of the road. Defendant and
Smith got out. Flores tossed Smith's cell phone across the front seat, and
defendant handed it to Smith. Flores got out of the truck and grabbed
defendant's rifle from the truck's toolbox. Flores stepped between
defendant and Smith and shot Smith in the chest. Smith fell down, and
Flores stood over him and shot him four more times.[fn7] Defendant was
shocked, but he did not try to stop Flores because he had the rifle.
FN7: Defendant was impeached with his prior statement that Flores fired
the first shot while standing on top of Smith. Defendant testified he was
mistaken when he said that.
Defendant testified that after Flores stopped shooting, Flores held
the rifle's barrel and repeatedly hit Smith's head with the rifle. Flores was
swinging the rifle "straight down" like he was "chopping wood." Flores hit
Smith 20 or 25 times, and did not say anything during the assault.
After Flores finished beating Smith, he told defendant to "get the
f*** in the truck." They did not go through Smith's pockets or take anything
from him. Defendant did not know why Smith's possessions were found
around his body.
Defendant testified Flores put the truck in reverse and backed over
Smith's head and chest. Defendant told Flores, "Dude, ... you just ran over
David." Flores drove the truck forward and again went over Smith.
As Flores drove away from the scene, defendant said: "Holy f**k,
you just killed David." Flores replied, "Dude, you better have my back.
11

1

You'll regret it if you don't have my back."

3

Defendant testified he was scared of Flores since he was a gang
member and had just killed Smith. Defendant testified he did not call the
police because he was under the influence of methamphetamine that night
and he was not thinking straight.

4

The drive back to Fresno

5

Defendant testified that as Flores drove back to Fresno, he stopped
at a fast food restaurant because Flores wanted something to eat. On
further examination, defendant admitted they stopped because he was
hungry, too.

2

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"Q You got hungry after you saw your friend brutally
murdered; is that accurate?

9

"A I knew that I had to go find something to eat, yes...."

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After buying the food, Flores started driving again, and then
stopped the truck and said he could not drive because there were blood
spots on his glasses. Flores told defendant to drive the rest of the way,
and defendant did so. They went to defendant's apartment and changed
clothes. They drove to the car wash, threw away their clothes in the
dumpster, washed the truck, and then returned the vehicle to Flores's
parents. Defendant did not have any blood on his clothes, but he threw
away his clothes because Flores told him to do so.
Defendant testified that Flores was initially angry that night, and
then he became more nervous as they drove back to Fresno. Flores kept
telling defendant that he better have his back.
Defendant testified that when he was initially interviewed by the
detectives, he lied about everything. He was surprised they found him so
quickly. He did not identify Flores, tell them what Flores did, or ask for
protection from Flores. Defendant did not want to be a snitch, and he was
afraid of what Flores might do to him. He also did not want to get in trouble
because he helped Flores wash off the truck.
After he spoke to the officers, defendant called Macias for help and
went to her residence. He was scared and on drugs when he was there.
Defendant admitted he made the statements attributed to him by Macias
and her boyfriend. He left Macias's apartment and went to another friend's
residence, where he was arrested.
After he was arrested, defendant told the detectives that he did not
know what happened. Defendant decided to give a statement after the
detectives said that Flores claimed defendant killed Smith. However,
defendant tried to minimize his role in the murder.
REBUTTAL
Detective Eaton testified the boot tracks at the homicide scene
started on the driver's side of the truck, as the driver got out of the vehicle
and walked to the front of the truck. The driver then walked to the
passenger side of the truck, with the boot tracks going through the area of
12

the disturbance. The driver's boot tracks returned along the same path, as
he walked from the front of the truck and got back into the driver's side.
These tracks were inconsistent with the driver walking to the truck's bed or
the rear of the vehicle.

1
2
3

7

Christina Ceballos testified she dated Smith for a few months, and
she knew defendant and Smith were roommates. She saw defendant and
Smith use methamphetamine at defendant's apartment. She also saw
Smith buy methamphetamine or crank from defendant. Defendant acted
paranoid when he used drugs. Smith told Ceballos that defendant had a
gun. Ceballos asked Smith to move in with her because defendant was
unstable and weird. Smith brushed it off and said he did not think
defendant would ever shoot him. Smith was killed about one week later.
Ceballos was not surprised that defendant was arrested for killing Smith.

8

SURREBUTTAL

9

Rachel Savage testified she dated defendant for a few months, but
they were not together at the time of Smith's death. Savage had never
seen defendant act aggressively or violently when he was under the
influence. Instead, defendant acted the same as when he was sober.
Savage never saw any problems between defendant and Smith; they were
very friendly to each other; they never argued; and she was surprised
when defendant was arrested for the murder. Savage still cared about
defendant and did not want anything bad to happen to him.

4
5
6

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13

VERDICT AND SENTENCE

14

Defendant was tried for first degree murder, and the jury was
instructed on second degree murder as the only lesser included offense.
The jury convicted defendant of second degree murder and found true the
special allegation that a principal was armed with a firearm in the
commission of the offense (§ 12022, subd. (a)(1)). However, the jury
found not true the allegation that defendant personally and intentionally
discharged a firearm which caused death (§ 12022.53, subd. (d)). The jury
thus concluded that defendant was not the gunman, but he was guilty of
second degree murder as an aider and abettor.

15
16
17
18
19

People v. Bowman, 2013 Cal. App. Unpub. LEXIS 7559, 1-28 (2013).
20
III.

Discussion

21
A.

Jurisdiction

22
Relief by way of a petition for writ of habeas corpus extends to a person in
23
custody pursuant to the judgment of a state court if the custody is in violation of the
24
Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. §
25
2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 fn.7 (2000). Petitioner asserts that he
26
suffered violations of his rights as guaranteed by the U.S. Constitution.

(Pet.)

In

27
addition, the conviction challenged arises out of the Fresno County Superior Court,
28
13

1

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

2

Accordingly, this Court has jurisdiction over the instant action.

3

B.

Legal Standard of Review

4

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

5

Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus

6

filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood,

7

114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment

8

of the AEDPA and is therefore governed by AEDPA provisions.

9

Under AEDPA, a person in custody under a judgment of a state court may only be

10

granted a writ of habeas corpus for violations of the Constitution or laws of the United

11

States. 28 U.S.C. § 2254(a); Williams, 529 U.S. at 375 n. 7. Federal habeas corpus

12

relief is available for any claim decided on the merits in state court proceedings if the

13

state court's adjudication of the claim:

14
15
16
17
18
19

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d).
1.

Contrary to or an Unreasonable Application of Federal Law

20

A state court decision is "contrary to" federal law if it "applies a rule that

21

contradicts governing law set forth in [Supreme Court] cases" or "confronts a set of facts

22

that [are] materially indistinguishable from [a Supreme Court case] but reaches a

23

different result." Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at

24

405-06). "AEDPA does not require state and federal courts to wait for some nearly

25

identical factual pattern before a legal rule must be applied . . . The statute recognizes . .

26

. that even a general standard may be applied in an unreasonable manner." Panetti v.

27

Quarterman, 551 U.S. 930, 953 (2007) (citations and quotation marks omitted). The

28

"clearly established Federal law" requirement "does not demand more than a ‘principle'
14

1

or ‘general standard.'" Musladin v. Lamarque, 555 F.3d 830, 839 (2009). For a state

2

decision to be an unreasonable application of clearly established federal law under §

3

2254(d)(1), the Supreme Court's prior decisions must provide a governing legal principle

4

(or principles) to the issue before the state court. Lockyer v. Andrade, 538 U.S. 63, 70-

5

71 (2003). A state court decision will involve an "unreasonable application of" federal

6

law only if it is "objectively unreasonable." Id. at 75-76 (quoting Williams, 529 U.S. at

7

409-10); Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). In Harrington v. Richter, the

8

Court further stresses that "an unreasonable application of federal law is different from

9

an incorrect application of federal law." 131 S. Ct. 770, 785 (2011) (citing Williams, 529

10

U.S. at 410) (emphasis in original). "A state court's determination that a claim lacks

11

merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the

12

correctness of the state court's decision." Id. at 786 (citing Yarborough v. Alvarado, 541

13

U.S. 653, 664 (2004)). Further, "[t]he more general the rule, the more leeway courts

14

have in reading outcomes in case-by-case determinations." Id.; Renico v. Lett, 130 S.

15

Ct. 1855, 1864 (2010). "It is not an unreasonable application of clearly established

16

Federal law for a state court to decline to apply a specific legal rule that has not been

17

squarely established by this Court." Knowles v. Mirzayance, 129 S. Ct. 1411, 1419

18

(2009) (quoted by Richter, 131 S. Ct. at 786).

19

2.

Review of State Decisions

20

"Where there has been one reasoned state judgment rejecting a federal claim,

21

later unexplained orders upholding that judgment or rejecting the claim rest on the same

22

grounds." See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). This is referred to as the

23

"look through" presumption. Id. at 804; Plascencia v. Alameida, 467 F.3d 1190, 1198

24

(9th Cir. 2006).

25

unreasonable legal or factual conclusion, "does not require that there be an opinion from

26

the state court explaining the state court's reasoning." Richter, 131 S. Ct. at 784-85.

27

"Where a state court's decision is unaccompanied by an explanation, the habeas

28

petitioner's burden still must be met by showing there was no reasonable basis for the

Determining whether a state court's decision resulted from an

15

1

state court to deny relief." Id. "This Court now holds and reconfirms that § 2254(d) does

2

not require a state court to give reasons before its decision can be deemed to have been

3

‘adjudicated on the merits.'" Id.

4

Richter instructs that whether the state court decision is reasoned and explained,

5

or merely a summary denial, the approach to evaluating unreasonableness under §

6

2254(d) is the same: "Under § 2254(d), a habeas court must determine what arguments

7

or theories supported or, as here, could have supported, the state court's decision; then

8

it must ask whether it is possible fairminded jurists could disagree that those arguments

9

or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786.

10

Thus, "even a strong case for relief does not mean the state court's contrary conclusion

11

was unreasonable." Id. (citing Lockyer v. Andrade, 538 U.S. at 75). AEDPA "preserves

12

authority to issue the writ in cases where there is no possibility fairminded jurists could

13

disagree that the state court's decision conflicts with this Court's precedents."

14

(emphasis added). To put it yet another way:

15

Id.

17

As a condition for obtaining habeas corpus relief from a federal
court, a state prisoner must show that the state court's ruling on the claim
being presented in federal court was so lacking in justification that there
was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.

18

Id. at 786-87. The Court then explains the rationale for this rule, i.e., "that state courts

19

are the principal forum for asserting constitutional challenges to state convictions." Id. at

20

787.

21

requirement and the doctrine of procedural bar to ensure that state proceedings are the

22

central process, not just a preliminary step for later federal habeas proceedings." Id.

23

(citing Wainwright v. Sykes, 433 U.S. 72, 90 (1977)).

16

24

It follows from this consideration that § 2254(d) "complements the exhaustion

3.

Prejudicial Impact of Constitutional Error

25

The prejudicial impact of any constitutional error is assessed by asking whether

26

the error had "a substantial and injurious effect or influence in determining the jury's

27

verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551

28

U.S. 112, 121-22 (2007) (holding that the Brecht standard applies whether or not the
16

1

state court recognized the error and reviewed it for harmlessness). Some constitutional

2

errors, however, do not require that the petitioner demonstrate prejudice. See Arizona v.

3

Fulminante, 499 U.S. 279, 310 (1991); United States v. Cronic, 466 U.S. 648, 659

4

(1984).

5

IV.

Review of Petition
Claim One – Failure to Instruct on Voluntary Intoxication

6

A.

7

Petitioner contends the trial court violated his constitutional rights by failing to

8
9

instruct the jury regarding voluntary intoxication.
1.

State Court Decision

10

Petitioner presented this claim by way of direct appeal to the California Court of

11

Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the

12

appellate court and summarily denied in subsequent petition for review by the California

13

Supreme Court. (See Lodged Docs. 11-16.) Because the California Supreme Court's

14

opinion is summary in nature, this Court "looks through" that decision and presumes it

15

adopted the reasoning of the California Court of Appeal, the last state court to have

16

issued a reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 804-05, 111 S. Ct.

17

2590, 115 L. Ed. 2d 706 & n.3 (1991) (establishing, on habeas review, "look through"

18

presumption that higher court agrees with lower court's reasoning where former affirms

19

latter without discussion); see also LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir.

20

2000) (holding federal courts look to last reasoned state court opinion in determining

21

whether state court's rejection of petitioner's claims was contrary to or an unreasonable

22

application of federal law under 28 U.S.C. § 2254(d)(1)).

23

In denying Petitioner's claim, the Fifth District Court of Appeal explained:

24

I. Voluntary Intoxication

25

27

Defendant contends the court committed prejudicial error when it
declined his request to instruct the jury with CALCRIM No. 404 on
intoxication. Defendant asserts the entirety of the record contains
substantial evidence that he used methamphetamine on the day of the
murder, and that evidence would have supported the instruction.

28

A. Background

26

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Defendant was tried for first degree murder, and the court
instructed the jury on second degree murder as a lesser included offense.
As to both theories of murder, the jury was instructed on express and
implied malice, and natural and probable consequences (CALCRIM No.
520). The jury was instructed on first degree felony murder based on
robbery or attempted robbery; it was not instructed on second degree
felony murder. (CALCRIM Nos. 540A, 540B.) The jury was further
instructed as to premeditation, willfulness, and deliberation for first degree
murder. (CALCRIM No. 521.) The jury was also instructed that defendant
could be guilty either as a principal or aider and abettor. (CALCRIM Nos.
400, 401.)
The court denied defendant's request to give the following
instruction on intoxication, CALCRIM No. 404:
"If you conclude that the defendant was intoxicated at the
time of the alleged crime, you may consider this evidence in
deciding whether the defendant:
"A. Knew that <insert name of perpetrator> intended to
commit <insert target offense>; [¶] AND
"B. Intended to aid and abet <insert name of perpetrator> in
committing <insert target offense>.
"Someone is intoxicated if he or she (took[,]/ [or] used[,]/[or]
was given) any drug, drink, or other substance that caused
an intoxicating effect.
"[Do not consider evidence of intoxication in deciding
whether <insert charged nontarget offense> is a natural and
probable consequence of <insert target offense>.]"
The court also denied defendant's request to give instructions on
the lesser included offenses of voluntary manslaughter, based on both
heat of passion and imperfect self defense (CALCRIM Nos. 570, 571);
involuntary manslaughter (CALCRIM No. 580); assault with a deadly
weapon or force likely to produce great bodily injury (CALCRIM No. 875);
simple assault (CALCRIM No. 915); battery (CALCRIM Nos. 925, 926);
and shooting a firearm in a grossly negligent manner (CALCRIM No. 970).
The court stated there was insufficient evidence to support giving any of
the requested instructions on lesser offenses and intoxication.
B. Voluntary Intoxication
Evidence of a defendant's voluntary intoxication is not an
affirmative defense to a crime. (§ 29.4, subd. (a); People v. Martin (2000)
78 Cal.App.4th 1107, 1116-1117; 1 Witkin & Epstein, Cal. Criminal Law
(3d ed. 2000) Defenses, § 26, pp. 355-356.)[fn8] In addition, evidence of a
defendant's voluntary intoxication is inadmissible to negate the existence
of a general criminal intent for a charged offense. (People v. Atkins (2001)
25 Cal.4th 76, 81.)
FN8: Effective January 1, 2013, section 22, which previously addressed
voluntary intoxication, was renumbered as section 29.4 without substantial
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changes. (Stats. 2012, ch. 162, § 119; see § 29.4, Historical and Statutory
Notes, 2012 Legislation.)
As to a specific intent crime, however, evidence of a defendant's
voluntary intoxication may be admissible on the issue of whether the
defendant actually formed the required specific intent to commit the
charged offense. (§ 29.4, subd. (b); People v. Atkins, supra, 25 Cal.4th at
p. 81; People v. Carr (2000) 81 Cal.App.4th 837, 843; People v. Pensinger
(1991) 52 Cal.3d 1210, 1242-1243.)
"Evidence of voluntary intoxication is admissible solely on
the issue of whether or not the defendant actually formed a
required specific intent, or, when charged with murder,
whether the defendant premeditated, deliberated, or
harbored express malice aforethought." (§ 29.4, subd. (b),
italics added.)
The defendant may also present evidence of voluntary intoxication
on the question of whether he or she is culpable of an offense as an aider
and abettor. (People v. Mendoza (1998) 18 Cal.4th 1114, 1129-1130,
11133-1134.) "[T]he intent requirement for aiding and abetting liability is a
'required specific intent' for which evidence of voluntary intoxication is
admissible under [former] section 22...." (Id. at p. 1131.)
C. The court's duty to instruct
An instruction on the significance of voluntary intoxication is a
"pinpoint" instruction that the trial court is not required to give unless
requested by the defendant. (People v. Verdugo (2010) 50 Cal.4th 263,
295.) Even when requested, however, the defendant "is entitled to such an
instruction only when there is substantial evidence of the defendant's
voluntary intoxication and the intoxication affected the defendant's 'actual
formation of specific intent.' [Citations.]" (People v. Williams (1997) 16
Cal.4th 635, 677, italics added; People v. Verdugo, supra, 50 Cal.4th at p.
295.) Thus, substantial evidence of intoxication alone is not enough; there
must also be evidence that the intoxication impaired the defendant's ability
to formulate intent. (People v. Williams, supra, 16 Cal.4th 35, 677-678.)
For example, "[t]he mere fact that defendant may have been drinking prior
to the commission of the crime does not establish intoxication ...." (People
v. Miller (1962) 57 Cal.2d 821, 830-831.) There must be substantial
evidence the defendant was unaware of what he or she was doing as a
result of intoxication. (People v. Carpenter (1997) 15 Cal.4th 312, 395,
superceded by statute on another ground as noted in Verdin v. Superior
Court (2008) 43 Cal.4th 1096, 1106.)
In this context, substantial evidence to support a defense
instruction is "evidence sufficient to 'deserve consideration by the jury,' not
'whenever any evidence is presented, no matter how weak.'" (People v.
Williams (1992) 4 Cal.4th 354, 361, italics in original; People v. Lewis
(2001) 26 Cal.4th 334, 369.) "'In determining whether the evidence is
sufficient to warrant a jury instruction, the trial court does not determine
the credibility of the defense evidence, but only whether "there was
evidence which, if believed by the jury, was sufficient to raise a reasonable
doubt ...." [Citations.]' [Citation.] '"'"The fact that the evidence may not be
of a character to inspire belief does not authorize the refusal of an
instruction based thereon."'" [Citation.] As an obvious corollary, if the
19

2

evidence is minimal and insubstantial the court need not instruct on its
effects.' [Citation.]" (People v. Larsen (2012) 205 Cal.App.4th 810, 823824.) The court is not obliged to instruct on theories that have no
evidentiary support. (Id. at p. 824.)

3

D.

4

The court properly declined defendant's request to instruct the jury
on voluntary intoxication because of the lack of substantial evidence to
support the instruction. The entirety of the record demonstrates that while
defendant may have used methamphetamine several hours before the
murder, there is no evidence that he was intoxicated to such a level that it
affected his actual formation of specific intent.

1

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Analysis

Flores testified he used crystal methamphetamine with defendant
earlier on the day of March 17, 2009, when they were in Kerman and
helping their friend move. Flores did not offer any details on how much
methamphetamine they used at that time. He described defendant's anger
after his phone call with Smith, and how defendant was "tweaked out,"
"spinning," and "amped up on dope." Flores further testified that while they
were still in Kerman, they came up with a plan to lure Smith to a certain
location, beat him up, and rob him. Even though Flores described
defendant as being "amped up on dope," he also testified about
defendant's agreement and participation in a very specific plan to get
Smith into the vehicle, take him to a remote location, and beat and rob
him.
As to the actual homicide, however, Flores further testified that they
did not begin to carry out their plan until later that night. Flores and
defendant borrowed the truck from Flores's family, they returned to
defendant's apartment in Fresno, and they waited for Smith to arrive.
There was no testimony that defendant continued to use
methamphetamine while they waited for Smith, that defendant still
displayed amped up behavior, or that he used drugs after Smith arrived at
the apartment or before they left in the truck.
Both Flores and defendant testified it was dark and presumably
after midnight when Flores stopped the car in a rural area and Smith was
killed. Both Flores and defendant testified they went to the car wash after
the murder. The surveillance videotape at the carwash established that
defendant and Flores were there at 1:39 a.m., further indicating that
several hours had passed since their joint use of an unknown amount of
methamphetamine earlier the previous day.
More importantly, neither Flores nor defendant offered any
testimony to provide substantial evidence that defendant used
methamphetamine or any other drug to such an extent that it affected his
actual formation of specific intent. To the contrary, Flores described
defendant's calculated and intentional conduct, that defendant lured Smith
into the truck, smuggled his rifle into the vehicle without Smith or Flores
seeing it, took away Smith's cell phone, and murdered Smith.
Defendant's own trial testimony did not fill the evidentiary gaps for
the intoxication instruction. Defendant blamed Flores for the plan to
"check" Smith, and testified that Flores fired the fatal shots and
bludgeoned Smith with the rifle. However, defendant did not testify about
20

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his alleged use of methamphetamine that day, except to explain that he
never called the police after the murder for two reasons: (1) he was scared
of Flores since he was a gang member and had just killed Smith, and (2)
he was under the influence of methamphetamine that night and was not
thinking straight.
Defendant never testified as to when he used drugs or how much
he ingested. He did not testify that his drug use affected his ability to
understand what he was planning to do with Flores or what he actually did
that night to help Flores. To the contrary, defendant gave very specific
testimony about his conversations with Flores prior to the murder, the
interactions with Flores and Smith in the truck, how he knew Smith would
not have entered the vehicle if he had not been present, and his
admission about bringing his rifle. Defendant tried to claim that he just
thought that Smith and Flores were going to talk about their dispute, but
he was extensively impeached with his prior statements about why he
brought his rifle, and that they were going to "'f**k up'" Smith.
The trial court thus properly denied defendant's request for a
voluntary intoxication instruction. Even though there might have been
some evidence that defendant used methamphetamine several hours
before the murder, "there was no evidence at all that voluntary intoxication
had any effect on defendant's ability to formulate intent." (People v.
Williams, supra, 16 Cal.4th at p. 677-678.)
People v. Bowman, 2013 Cal. App. Unpub. LEXIS 7559 at 28-37.
3.

Analysis

15

This Court's review of Petitioner's claim of state instructional error is "limited to

16

deciding whether [his] conviction violated the Constitution, laws, or treaties of the United

17

States." Estelle v. McGuire, 502 U.S. 62, 68, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991);

18

28 U.S.C. § 2241. In order to grant federal habeas relief on the basis of faulty jury

19

instructions, the Court must first conclude that the alleged error was of constitutional

20

magnitude. See California v. Roy, 519 U.S. 2, 117 S. Ct. 337, 136 L. Ed. 2d 266 (1996).

21

In order to grant federal habeas relief on the basis of faulty jury instructions, the

22

Court must conclude that the alleged error "had substantial and injurious effect or

23

influence in determining the jury's verdict." Roy, 519 U.S. at 5; Brecht, 507 U.S. at 637.

24

Federal habeas relief is warranted only if the Court, after reviewing the record, has

25

"grave doubt" as to the error's effect. Stanton v. Benzler, 146 F.3d 726, 728 (9th Cir.

26

1998). "The burden of demonstrating that an erroneous instruction was so prejudicial

27

that it will support a collateral attack on the constitutional validity of a state court's

28

judgment is even greater than the showing required to establish plain error on direct
21

1

appeal." Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 52 L. Ed. 2d 203

2

(1977). The trial court's error in omitting a jury instruction is less likely to be prejudicial

3

than the trial court's misstatement of the law. Henderson, 431 U.S. at 155; see also

4

Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (habeas petitioner whose claim

5

involves a failure to give a particular instruction bears an especially heavy burden).

6

To evaluate the effect of jury instructions, the Court must look at the context of the

7

entire trial and overall charge to the jury. Estelle, 502 U.S. at 72; Prantil v. California, 843

8

F.2d 314, 317 (9th Cir. 1988). They may not be judged in artificial isolation. Estelle, 502

9

U.S. at 72. In addition, a reviewing court's principal constitutional inquiry is whether there

10

is a reasonable likelihood that the jury applied the challenged instructions in a way that

11

violates the Constitution. See id.

12

While a state is generally free to define the elements of an offense, once the state

13

has defined the elements, due process requires that the jury be instructed on each

14

element and instructed that they must find each element beyond a reasonable doubt.

15

Francis v. Franklin, 471 U.S. 307, 313, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985); In re

16

Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); United States v.

17

Perez, 116 F.3d 840, 847 (9th Cir. 1997); Stanton, 146 F.3d at 728.

18

It necessarily follows, therefore, that constitutional trial error occurs when a jury

19

makes a guilty determination on a charged offense without a finding as to each element

20

of the offense. According to the Supreme Court, a jury instruction that omits an element

21

of the offense constitutes such an error. Neder v. United States, 527 U.S. 1, 8, 119 S. Ct.

22

1827, 144 L. Ed. 2d 35 (1999). However, such an error "does not necessarily render a

23

criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or

24

innocence." Id. at 9. Provided that such an error occurred, Petitioner's conviction can

25

only be set aside if the error was not harmless under Chapman v. California, 386 U.S.

26

18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); Neder, 527 U.S. at 15. Under the Chapman

27

harmless error test, it must be determined "beyond a reasonable doubt" whether "the

28

error complained of did not contribute to the verdict obtained." Chapman, 386 U.S. at 24.
22

1

Here, Petitioner contends the trial court erred in instructing the jury by not

2

providing the jury with an instruction on involuntary intoxication as a basis for showing

3

that Petitioner did form the intent to commit murder or aid and abet in the murder. The

4

jury returned a guilty verdict based on aider and abettor liability as to second degree

5

murder. The instruction was only required if there was a reasonable basis for the jury to

6

find that Petitioner lacked knowledge that Flores intended to kill the victim and that

7

Petitioner did not intend to aid and abet in the murder based on the in toxifying effect of

8

his methamphetamine use.

9

As described in the state court decision, there was testimony that Petitioner had

10

used methamphetamine earlier in the day, but there was no testimony that he was so

11

impaired by his use at the time of the offense that he was unaware of what was

12

occurring and lacked the specific intent to aid and abet in the murder. After Flores

13

borrowed his stepfather’s truck on the evening of the murder, there was evidence that

14

Petitioner assisted in hiding his rifle in vehicle. Petitioner was present during the drive to

15

a rural location where the murder occurred. Even if he did not commit the physical act of

16

the murder, he helped Flores wash the truck, and disposed of his clothes in an attempt

17

to cover-up the crime. He later made incriminating statements to friends.

18

While there was evidence that Petitioner had used methamphetamine earlier in

19

the day, he did not argue that the effect of the drug caused him not to comprehend the

20

actions that he and Flores were taking. During closing argument, defense counsel

21

repeatedly mentioned that Petitioner dealt and used methamphetamine, but not to argue

22

he was unaware that he was aiding and abetting in the murder. Instead, defense counsel

23

was arguing that Flores had a long violent criminal history whereas Petitioner had no

24

criminal history of violent crime, just convictions for methamphetamine related crimes.

25

(Rep. Tr. at 1097-98, 1106, 1109.) Defense counsel argued that Petitioner brought the

26

gun, based on his paranoia induced by methamphetamine that someone was out to get

27

him. (Id. at 1109.) However, even if true, there was significant additional evidence of

28

Petitioner’s involvement, particularly after the murder was committed. Upon review, the
23

1

state court's holing was a reasonable application of federal law. Based on the evidence

2

presented, Petitioner has not shown that the court erred in failing to provide the jury

3

instruction. Even had an instructional error occurred, Petitioner has not shown it had

4

substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507

5

U.S. at 637.

6

Accordingly, the Court finds that the trial court did not commit instructional error

7

such that resulted in the violation of Petitioner's due process. See Estelle, 502 U.S. at

8

72. Petitioner's first claim for relief is denied.

9

B.

Claim Two – Failure to Instruct on Involuntary Manslaughter

10

Petitioner contends the trial court violated his constitutional rights by failing to

11

instruct the jury regarding involuntary manslaughter as a lesser included defense of

12

murder.

13

1.

State Court Decision

14

Petitioner presented this claim by way of direct appeal to the California Court of

15

Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the

16

appellate court and summarily denied in subsequent petition for review by the California

17

Supreme Court. (See Lodged Docs. 11-16.) Because the California Supreme Court's

18

opinion is summary in nature, this Court "looks through" that decision and presumes it

19

adopted the reasoning of the California Court of Appeal, the last state court to have

20

issued a reasoned opinion. See Ylst, 501 U.S. at 804-05.

21

In denying Petitioner's claim, the Fifth District Court of Appeal explained:

22

II. The court properly denied defendant's request to instruct on involuntary
manslaughter

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27
28

As explained in section IA, ante, defendant also requested the court
to instruct the jury on involuntary manslaughter as a lesser included
offense of murder. The court denied the request and found insufficient
evidence to support the instruction. Defendant contends the court
committed error and the instruction should have been given.
A. The court's sua sponte duty to instruct
"[A] trial court errs if it fails to instruct, sua sponte, on all theories of
a lesser included offense which find substantial support in the evidence.
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On the other hand, the court is not obliged to instruct on theories that have
no such evidentiary support...." (People v. Breverman (1998) 19 Cal.4th
142, 162.)
As with the request for a defense instruction, "the 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, supra, 19 Cal.4th at p.
162.) However, if the evidence supporting the lesser included offense is
"minimal and insubstantial the court need not instruct on its effect.
[Citations.]" (People v. Glenn (1991) 229 Cal.App.3d 1461, 1465,
overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82,
91.)
The failure to instruct sua sponte on a lesser included offense in a
noncapital case is not subject to reversal unless an examination of the
entire record establishes a reasonable probability the error affected the
outcome. (People v. Breverman, supra, 19 Cal.4th at p. 165; People v.
Watson (1956) 46 Cal.2d 818, 836.)
B. Involuntary manslaughter

22

Involuntary manslaughter is a lesser included offense of murder.
(People v. Thomas (2012) 53 Cal.4th 771, 813.) "'Manslaughter is the
unlawful killing of a human being without malice.' [Citation.] Involuntary
manslaughter is manslaughter during 'the commission of an unlawful act,
not amounting to a felony,' or during 'the commission of a lawful act which
might produce death, in an unlawful manner, or without due caution and
circumspection.' [Citation.] 'The offense of involuntary manslaughter
requires proof that a human being was killed and that the killing was
unlawful. [Citation.] A killing is "unlawful" if it occurs (1) during the
commission of a misdemeanor inherently dangerous to human life, or (2)
in the commission of an act ordinarily lawful but which involves a high risk
of death or bodily harm, and which is done "without due caution or
circumspection."' [Citation.]" (People v. Murray (2008) 167 Cal.App.4th
1133, 1140.) There also exists a nonstatutory form of the offense, which is
based on the predicate act of a noninherently dangerous felony committed
without due caution and circumspection. (People v. Butler (2010) 187
Cal.App.4th 998, 1007.) "[C]riminal negligence is the governing mens rea
standard for all three forms of committing the offense. [Citations.]" (Ibid.)

23

C. Analysis

24

Defendant asserts the court should have given the involuntary
manslaughter instruction for two reasons: (1) there was evidence he only
intended to assault Smith, or aid and abet Flores's commission of a
misdemeanor assault or battery against Smith; and (2) there was evidence
he only intended to brandish a weapon against Smith, or aid and abet
Flores in brandishing a weapon.

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21

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Despite defendant's arguments on this topic, the court was not
obliged to instruct on involuntary manslaughter as a lesser included
25

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offense to murder. While Flores and defendant blamed each other for
firing the fatal shots and bludgeoning Smith, their accounts were
remarkably similar as to exactly how Smith was killed: there was a dispute
between Smith, Flores, and defendant about drugs; defendant and Flores
intended to settle matters; defendant was instrumental in obtaining Smith's
agreement to get into the truck with Flores; one of them took Smith's cell
phone to prevent him from calling for help; defendant brought his loaded
rifle and hid it under the truck's seat; the perpetrator initially shot Smith in
the chest, and then fired three or four more shots into his body; the
perpetrator repeatedly swung the rifle at Smith's head and body with such
force that the weapon broke into pieces; and Flores drove the truck
backward and forward over Smith's body as he left the scene.
The lesser included offense of manslaughter does not include the
element of malice, which distinguishes it from the greater offense of
murder. (People v. Rios (2000) 23 Cal.4th 450, 460.) Moreover,
involuntary manslaughter is inherently an unintentional killing. (People v.
Hendricks (1988) 44 Cal.3d 635, 643.) In this case, the manner in which
Smith was killed, together with defendant's own statements and
admissions, established malice and the intent to kill. There was no
evidence defendant aided and abetted the commission of a misdemeanor
or a criminally negligent act. At trial, defendant initially claimed he always
took his rifle with him when he went on drives; he thought the drive to
Kerman would give Smith and Flores a chance to discuss their dispute;
and he believed he could mediate their dispute. After extensive crossexamination, defendant admitted he had a plan with Flores to get Smith
into the truck with them. He knew Flores was upset about a drug deal with
Smith, and Smith would not have entered the truck unless defendant was
there. Flores wanted to "check" Smith because of their dispute. Defendant
intentionally put his rifle into the truck to help Flores "check" Smith, and he
knew that Flores wanted to "f*** up" Smith. Defendant did not express any
surprise that they were going to "check" Smith in a rural and remote area
in the middle of the night, instead of confronting Smith in defendant's
apartment. Defendant's conduct after the murder was also inconsistent
with his claim that he was surprised or frightened by Flores's conduct: he
helped Flores wash the truck; he changed and disposed of his clothes;
and he was hungry and wanted to eat something after his supposed friend
had been brutally killed. Defendant's statements to Macias and her
boyfriend also refute his manslaughter arguments, given his statements
that he was in the "worst possible trouble," "it wasn't an accident," and he
was "doomed."
The vicious manner in which Smith was fatally shot and beaten
refutes any claim that he was killed during the commission of a
misdemeanor or as a result of criminal negligence, and the court was not
obliged to instruct on involuntary manslaughter as a lesser included
offense of murder.
People v. Bowman, 2013 Cal. App. Unpub. LEXIS 7559 at 31-42.

25
2.

Analysis

26
To the extent Petitioner alleges the instructional claim violated state law,
27
Petitioner's claim is not cognizable in this proceeding. The Supreme Court has held that
28
26

1

a challenge to a jury instruction solely as an error under state law does not state a claim

2

cognizable in federal habeas corpus proceedings. Estelle v. McGuire, 502 U.S. at 71-72.

3

Section 2254 requires violation of the Constitution, laws, or treaties of the United States.

4

28 U.S.C. §§ 2254(a), 2241(c)(3). To the extent that Petitioner raises state law claims,

5

his claims should be dismissed.

6

Although the Supreme Court has held that the failure to instruct on lesser included

7

offenses can constitute constitutional error in capital cases, Beck v. Alabama, 447 U.S.

8

625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980), it has reserved decision on whether such

9

an omission in non-capital cases constitutes constitutional error, id. at 638 n.7. When the

10

Supreme Court has expressly reserved consideration of an issue, there is no Supreme

11

Court precedent creating clearly established federal law relating to a petitioner's habeas

12

claim. Alberni v. McDaniel, 458 F.3d 860, 864 (9th Cir. 2006). Therefore, a petitioner

13

cannot rely on circuit authority, and there is no basis for relief pursuant to § 2254(d)(1)

14

for an unreasonable application of clearly established federal law. Alberni v. McDaniel,

15

458 F.3d at 864; Brewer v. Hall, 378 F.3d 952, 955-57 (9th Cir. 2004).

16

Accordingly, there is no clearly established federal law within the meaning of §

17

2254(d) concerning a state court's rejection of a claim that Sixth and Fourteenth

18

Amendment rights in a non-capital case were violated by a failure to instruct on a lesser

19

included offense. Thus, such a claim is not cognizable in a proceeding pursuant to 28

20

U.S.C. § 2254 and is subject to dismissal. Windham v. Merkle, 163 F.3d 1092, 1105-06

21

(9th Cir. 1998).

22

The absence of the instruction did not result in any fundamental unfairness. The

23

only other basis for federal collateral relief for instructional error is that an infirm

24

instruction or the lack of instruction by itself so infected the entire trial that the resulting

25

conviction violates due process. Estelle v. McGuire, 502 U.S. at 71-72. This standard

26

was set forth previously in claim one, supra.

27

Petitioner contends that the trial court should have sua sponte instructed the jury

28

with regard to voluntary manslaughter. The state court was reasonable in determining
27

1

that there was insufficient evidence supporting the instruction. Petitioner argues that the

2

instruction was proper as there was evidence that he only intended to assault the victim

3

or brandish a weapon against the victim, or aid Flores in the acts of assault or

4

brandishing a weapon. However, the state court found that the facts surrounding the

5

crime indicated the “vicious manner” in which the victim was shot and beaten and refute

6

Petitioner’s claim that the victim was killed in the commission of a misdemeanor or by

7

way of criminal negligence. People v. Bowman, 2013 Cal. App. Unpub. LEXIS 7559 at

8

31-42. Petitioner and Flores devised a plan to take the victim to a rural location, and took

9

his cell phone to prevent him from calling for help. They then shot him multiple times,

10

beat the victim with the rifle until it broke, and ran over the victim. Afterwards, Petitioner

11

and Flores ate, washed the truck, and threw away their clothes. Based on the facts

12

presented at trial, it was reasonable for the trial court judge to determine that the

13

involuntary manslaughter instruction was not applicable.

14

The finding of the state court on appeal was reasonable and Petitioner has not

15

shown that he suffered any fundamental unfairness or that the omission had any

16

substantial or injurious effect or influence in determining the jury's verdict. Accordingly,

17

Petitioner's claim concerning the failure to instruct on the lesser included offense of

18

voluntary manslaughter is denied.
Claim Three – Imposition of Restitution Fine

19

C.

20

Petitioner contends the trial court violated his constitutional right to a jury trial by

21
22

the court’s imposition of a restitution fine.
1.

State Court Decision

23

Petitioner presented this claim by way of direct appeal to the California Court of

24

Appeal, Fifth Appellate District. The claim was denied in a reasoned decision by the

25

appellate court and summarily denied in subsequent petition for review by the California

26

Supreme Court. (See Lodged Docs. 11-16.) Because the California Supreme Court's

27

opinion is summary in nature, this Court "looks through" that decision and presumes it

28

adopted the reasoning of the California Court of Appeal, the last state court to have
28

1

issued a reasoned opinion. See Ylst, 501 U.S. at 804-05.

2

In denying Petitioner's claim, the Fifth District Court of Appeal explained:

3

III. The court's restitution orders

4

At the sentencing hearing, the court imposed a $10,000 restitution
fine (§ 1202.4, subd. (b)), and imposed and stayed another $10,000
restitution fine pending successful completion of parole (§ 1202.45). The
court also ordered defendant to pay victim restitution of $6,451.69, as
recommended by the probation report, based on a claim by the victim's
family for funeral expenses (§ 1202.4, subd. (f)). Defendant did not object
to the probation report's recommendations or the court's orders.

5
6
7
8

11

Defendant now contends that he had a right to a jury trial on
whether he could be ordered to pay victim restitution, and his ability to pay
the restitution fine. In making both arguments, defendant relies on the
United States Supreme Court's decisions in Apprendi v. New Jersey
(2000) 530 U.S. 466 (Apprendi) and Southern Union Co. v. United States
(2012) 567 U.S. [132 S.Ct. 2344] (Southern Union). As we will explain, his
reliance on these cases is misplaced.

12

A. Apprendi, Blakely, and Southern Union

13

In Apprendi, the court held that "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury and proved
beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at p. 490.) As the
court explained in Blakely v. Washington (2004) 542 U.S. 296 (Blakely),
"[The] 'statutory maximum' for Apprendi purposes is the maximum
sentence a judge may impose solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant." (Id. at p. 303, italics
omitted.) Stated differently, "[T]he relevant 'statutory maximum' is not the
maximum sentence a judge may impose after finding additional facts, but
the maximum he may impose without any additional findings." (Id. at pp.
303-304.) Therefore, in sentencing a defendant, a judgment may not
"inflic[t] punishment that the jury's verdict alone does not allow." (Id. at p.
304.)

9
10

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In Southern Union, the court held the Apprendi rule applied equally
to the imposition of criminal fines. (Southern Union, supra, 132 S.Ct. at p.
2357.) In that case, a jury convicted the defendant corporation of
knowingly storing hazardous waste without a permit in violation of federal
law. The criminal violations were punishable by a fine of up to $50,000 for
each day the defendant violated the law. However, the jury did not make
specific factual findings as to the number of days the corporation violated
the law. The trial court imposed an aggregate fine of $38.1 million, and
determined from the "'content and context of the verdict all together' that
the jury found a 762-day violation" (id. at p. 2346) of the law, at $50,000
per day. Southern Union held the trial court's factual finding as to the
number of days the defendant committed the crime violated Apprendi and
the defendant's Sixth Amendment right to a jury determination, because
the criminal fines were a form of punishment. (Southern Union Co., supra,
132 S.Ct. at pp. 2350-2352.)

29

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B. Federal circuit cases
Defendant asserts that Southern Union's interpretation of Apprendi
now mandates jury trials for the imposition of both restitution fines and
victim restitution orders. However, federal courts have held that Apprendi
does not apply to restitution orders. (U.S. v. Day (4th Cir. 2012) 700 F.3d
713, 732; U.S. v. Wolfe (7th Cir. 2012) 701 F.3d 1206, 1217; U.S. v.
Wooten (10th Cir. 2004) 377 F.3d 1134, 1144, fn. 1.) The Ninth Circuit has
"'categorically held that Apprendi and its progeny ... don't apply to
restitution." (U.S. v. Green (9th Cir. 2013) 722 F.3d 1146, 1149; U.S. v.
Bussell (9th Cir. 2005) 414 F.3d 1048, 1060; U.S. v. DeGeorge (9th Cir.
2004) 380 F.3d 1203, 1221; U.S. v. Gordon (9th Cir. 2004) 393 F.3d 1044,
1051, fn. 2.)
The Ninth Circuit recently held that Southern Union has not
changed this analysis: "Even if [Southern Union] chips away at the theory
behind our restitution cases, it's not 'clearly irreconcilable' with our
holdings that restitution is 'unaffected' by Apprendi," because "Southern
Union deals with criminal fines, not restitution. It's far from 'clear[]' ... that a
rule governing one would govern the other." (U.S. v. Green, supra, 722
F.3d at p. 1150.)
C. Kramis and Pangan
The California Courts of Appeal have also concluded that Southern
Union does not require jury trials for either restitution fines or victim
restitution orders. In People v. Kramis (2012) 209 Cal.App.4th 346
(Kramis), the Second District, Division 5 held that the defendant was not
entitled to a jury trial on the determination and imposition of a $10,000
restitution fine imposed pursuant to section 1202.4, subdivision (b).
(Kramis, supra, 209 Cal.App.4th at pp. 349-351.) "Apprendi and Southern
Union Co. do not apply when, as here, the trial court exercises its
discretion within a statutory range. [Citations.]" (Id. at p. 351.) In reaching
this conclusion, Kramis favorably relied on this court's decision in People
v. Urbano (2005) 128 Cal.App.4th 396, an opinion which predated
Southern Union but addressed Apprendi's potential application to
restitution orders:
"As the Court of Appeal for the Fifth Appellate District noted
in Urbano, 'Apprendi distinguishes a "sentencing factor" – a
"circumstance, which may be either aggravating or mitigating
in character, that supports a specific sentence within the
range authorized by the jury's finding that the defendant is
guilty of a particular offense" – from a "sentence
enhancement" – "the functional equivalent of an element of a
greater offense than the one covered by the jury's guilty
verdict" constituting "an increase beyond the maximum
authorized statutory sentence." [Citation.]' [Citation.] Nothing
in Southern Union Co. alters that holding. Under the
applicable version of section 1202.4, subdivision (b)(1),
absent compelling and extraordinary circumstances, the trial
court was required to impose a restitution fine in an amount
between $200 and $10,000. The $10,000 section 1202.4,
subdivision (b) restitution fine imposed in the present case
was within that statutory range. The trial court did not make
any factual findings that increased the potential fine beyond
30

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what the jury's verdict – the fact of the conviction – allowed.
Therefore, Apprendi and its progeny do not preclude its
imposition. [Citation.]" (Id. at pp. 351-352.)
In People v. Pangan (2013) 213 Cal.App.4th 574 (Pangan), the
Fourth District, Division 3 held that Southern Union did not require a jury
trial on an order for victim restitution."[N]either Southern Union, Apprendi
nor Blakely have any application to direct victim restitution, because direct
victim restitution is not a criminal penalty. As explained in U.S. v. Behrman
(7th Cir. 2000) 235 F.3d 1049, 1054, direct victim restitution is a substitute
for a civil remedy so that victims of crime do not need to file separate civil
suits. It is not increased 'punishment.' The [People v. Millard (2009) 175
Cal.App.4th 7, 35] decision makes the same point in regard to California
law. [Citations.] [There are] numerous federal cases also holding victim
restitution does not constitute increased punishment for crime. [Citation.]
And we would note the restitution statute itself characterizes victim
restitution awards as civil. [Citation.] [¶] Federal courts have also rejected
Apprendi challenges to victim restitution statutes because those statutes,
like the one before us, carry no prescribed statutory maximum.
[Citations.]" (Pangan, supra, 213 Cal.App.4th at pp. 585-586.)
We agree with the reasoning expressed in Kramis and Pangan. As
explained in Kramis, the defendant was not entitled to a jury trial on the
imposition of restitution fines imposed pursuant to section 1202.4,
subdivision (b) or section 1202.45 because those fines were within a
range prescribed by statute. And explained in Pangan, the defendant was
not entitled to a jury trial on the restitution award to Smith's family for his
funeral expenses because direct victim restitution is not increased
punishment.
People v. Bowman, 2013 Cal. App. Unpub. LEXIS 7559 at 38-49.

16
17
2.

Analysis

18
Petitioner challenges the imposition of a $10,000 restitution fine and a victim restitution
19

fine of $6,451.69. Specifically Petitioner challenges the trial court’s increase in the size of

20
the restitution fine as a violation of his rights under Apprendi, 530 U.S. 466.
21
Even though this claim is based on Supreme Court law, it is not cognizable on
22
federal habeas review. A federal court may entertain a habeas petition "in behalf of a
23
person in custody pursuant to the judgment of a State court only on the ground that he is
24
in custody in violation of the Constitution or laws or treaties of the United States." 28
25
U.S.C. § 2254(a). The Ninth Circuit has held that "§ 2254(a) does not confer jurisdiction
26
over a state prisoner's in-custody challenge to a restitution order imposed as part of a
27
criminal sentence." Bailey v. Hill, 599 F.3d 976, 981-82 (9th Cir. 2010); see also United
28
31

1

States v. Thiele, 314 F.3d 399, 400 (9th Cir. 2002) (claim challenging a restitution fine is

2

not cognizable basis for habeas relief because such claims do not challenge the validity

3

or duration of confinement); United States v. Kramer, 195 F.3d 1129, 1130 (9th Cir.

4

1999) (same); Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir. 1998) (imposition of

5

fine is "merely a collateral consequence of conviction" and, as such, is not sufficient to

6

establish federal habeas jurisdiction). Petitioner's sole claim does not provide a

7

cognizable basis for habeas relief. Petitioner is not entitled to relief with regard to his

8

third claim. Petitioner’s third claim challenging his restitution fines is hereby denied.

9

V.

10

Conclusion
Petitioner is not entitled to relief with regard to the claims presented in the instant

11

petition. The Court therefore orders that the petition be DENIED.

12

VI.

Certificate of Appealability

13

A state prisoner seeking a writ of habeas corpus has no absolute entitlement to

14

appeal a district court’s denial of his petition, and an appeal is only allowed in certain

15

circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute

16

in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which

17

provides as follows:

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27
28

(a) In a habeas corpus proceeding or a proceeding under section 2255
before a district judge, the final order shall be subject to review, on appeal,
by the court of appeals for the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to
test the validity of a warrant to remove to another district or place for
commitment or trial a person charged with a criminal offense against the
United States, or to test the validity of such person’s detention pending
removal proceedings.
(c)
(1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals from–
(A) the final order in a habeas corpus
proceeding in which the detention complained
of arises out of process issued by a State
court; or
(B) the final order in a proceeding under
section 2255.

32

(2) A certificate of appealability may issue under paragraph
(1) only if the applicant has made a substantial showing of
the denial of a constitutional right.

1
2

(3) The certificate of appealability under paragraph (1) shall
indicate which specific issue or issues satisfy the showing
required by paragraph (2).

3
4
5

If a court denies a petitioner’s petition, the court may only issue a certificate of
appealability “if jurists of reason could disagree with the district court’s resolution of his

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constitutional claims or that jurists could conclude the issues presented are adequate to
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deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; Slack v.

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McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the
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merits of his case, he must demonstrate “something more than the absence of frivolity or
the existence of mere good faith on his . . . part.” Miller-El, 537 U.S. at 338.

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In the present case, the Court finds that no reasonable jurist would find the
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Court’s determination that Petitioner is not entitled to federal habeas corpus relief wrong

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or debatable, nor would a reasonable jurist find Petitioner deserving of encouragement
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to proceed further. Petitioner has not made the required substantial showing of the
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denial of a constitutional right. Accordingly, the Court hereby DECLINES to issue a
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certificate of appealability.
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VII.

Order

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Accordingly, IT IS HEREBY ORDERED:
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1) The petition for writ of habeas corpus is DENIED;
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2) The Clerk of Court is DIRECTED to enter judgment and close the case; and
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3) The Court DECLINES to issue a certificate of appealability.
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IT IS SO ORDERED.

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Dated:

December 23, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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