Russell v. Unknown
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 8/1/11 RECOMMENDING that Petitioners 6 application for a writ of habeas corpus be denied; and the district court decline to issue a certificate of appealability. Referred to Judge William B. Shubb; Objections due within 14 days. (Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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TITENESHA RUSSELL,
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Petitioner,
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No. 2:08-cv-1538-WBS-JFM (HC)
vs.
MARY LATTIMORE, Warden,
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Respondent.
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FINDINGS AND RECOMMENDATIONS
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Petitioner is a state prisoner proceeding pro se with an application for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is serving a sentence of twenty-five years
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to life in prison following her 2006 conviction on charges of attempted murder, attempted
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kidnapping for the purpose of robbery, conspiracy to commit murder, assault with a deadly
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weapon, and attempted robbery. Petitioner raises four claims in her amended petition, filed
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August 18, 2008. First, petitioner claims that the jury was given an improper instruction on
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aggravated kidnapping. Second, petitioner claims that there was insufficient evidence to support
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the conviction for aggravated kidnapping. Third, petitioner seeks reconsideration of a California
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Supreme Court decision interpreting CALCRIM 404.1 Finally, petitioner claims that the jury was
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Petitioner’s third claim for relief is not clear on the face of the amended petition. In the
answer, respondent asserts that the claim “mirrors a claim in her petition for review that
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improperly instructed on aider and abettor liability under the doctrine of natural and probable
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consequences in that the instruction permitted a finding of guilt on the charge of attempted
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murder without a finding that petitioner premeditated the attempted murder.
FACTS2
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A. The Prosecution’s Case
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L.R. dated Buford before she became pregnant with his child in
February 2004. As the pregnancy progressed, Buford told L.R. she
should have an abortion. L.R. wanted to have the baby and told
Buford that he could “just pay child support” if he “didn’t want to
be there.” Buford acted indifferently and began to deny that the
child was his. When L.R. was about five months pregnant, L.R.
and Buford broke off their relationship.
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At some time in the weeks leading up to the assault, L.R. called
Buford’s cell phone. A woman answered and identified herself as
Buford’s sister. The same woman, whose voice L.R. identified as
Russell’s, called L.R. to ask about the baby and the identity of the
father. She continued to make harassing phone calls to L.R.,
calling her a “bitch” and threatening to kill L.R. and her baby.
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Before the assault, L.R. told Buford that he had $700 and was
willing to lend him money to repair his car. She lived with her
grandmother and kept the money there.
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Boone testified pursuant to her agreement to cooperate with the
district attorney’s office. She and Buford were “best friends.” On
September 20, 2004, five days before the assault and kidnapping,
Buford asked Boone to “beat somebody up.” She agreed to help
him. In subsequent conversations, Boone learned that Buford and
L.R. had argued over whether he was the baby’s father.
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Between September 20 and September 25, Buford and Boone
devised a plan. Buford would invite L.R. to the movies but take
her to a park where Boone would beat her up. The goal was to
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challenges CALCRIM No. 404, which states that evidence of intoxication should not be
considered in deciding whether attempted murder is a natural and probable consequence of
assault with a deadly weapon.” Answer, filed October 23, 2008, at 18.
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The facts are taken from the opinion of the California Court of Appeal for the Third
Appellate District in People v. Dwayne Michael Curry, et al., No. C052801, a copy of which was
lodged by respondent on December 30, 2008 as lodged document number 6, as modified by order
filed January 23, 2008, a copy of which was lodged by respondent on December 30, 2008 as
lodged document number 8.
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force L.R. to have a miscarriage. Boone asked [petitioner] to help
beat up L.R. and she agreed.
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At about 8:00 p.m. on September 25, 2004, Buford picked up
L.R. at her home for the ostensible purpose of taking her to the
movies. He was driving a white Chevrolet Malibu. Curry, whom
L.R. knew through Buford as “Pacman,” was sitting in the back
seat. Buford picked up [petitioner], who joined Curry in the back
seat, then drove to a liquor store. After Buford, Curry and
[petitioner] bought liquor, everyone changed seats. [Petitioner]
drove with Curry beside her. Buford and L.R. were in the back
seat. Instead of going to the movies, defendants drove L.R. to a
park in Elk Grove.
Buford and [petitioner] informed Boone of their whereabouts by
cell phone, while she waited for their arrival at the park. Buford,
Curry and [petitioner] drank behind some bushes and L.R. sat by
herself. Eventually, L.R. told Buford she wanted to go home and
he agreed to drive her back. Buford had his arm around L.R.’s
waist, but turned sideways as they walked.
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When Buford gave the signal, Boone and [petitioner] ran in
front of him and L.R., turned, and Boone sprayed L.R. in the face
with mace. Boone also hit L.R. in the face. L.R. tried to fight back
but was blinded by the mace. [Petitioner] joined in the fray and
punched L.R. in the face. L.R. fell to the ground. L.R. told her
attackers that she was pregnant. When L.R. asked Buford for help,
he responded, “[J]ust fight back.”
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The attack continued while L.R. was on the ground. Curry
kicked her in the side. He also threw a garbage can at L.R., hitting
her in the head. Boone removed L.R.’s tennis shoes and someone
took her cell phone. At that point, Boone and Russell left in the
Malibu by themselves. They drove north on Interstate 5 toward
Meadowview where Russell’s grandmother lived.
Back at the park, L.R. asked Buford to call an ambulance and he
said, “Okay.” However, instead of calling the ambulance, Buford
called Boone and told her to “come back and finish the job.”
Boone asked Buford if he was trying to kill L.R., and Buford said,
“[N]o, just the baby.” He wanted Boone to continue, “as long as
that baby gets up out of her.” While [petitioner] and Boone were
driving back to the park, Buford called again to tell them to bring a
baseball bat and flashlight from the car.
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Boone and [petitioner] approached L.R. at the park carrying a
flashlight and baseball bat. Boone struck L.R.’s leg with the bat
and [petitioner] hit her in the head with the flashlight. The women
told L.R. that Buford was not the father of her baby and he was not
going to pay child support. L.R. named someone else as the baby’s
father because she wanted the beating to stop.
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Boone testified that while [petitioner] and L.R. continued to
fight, Curry hit L.R. in the head, knocking her to the ground.
Boone also stated that Curry kicked L.R. with both feet as she lay
on the ground saying, “Help me, my baby.” L.R. lost
consciousness while she was on the ground.
Boone and Curry began searching L.R.’s clothing for money.
Boone took $20 that they found inside L.R.’s bra. Changing her
earlier testimony that she first learned of L.R.’s $700 in the car
after they all left the park, Boone stated on redirect examination
that Buford and Curry were looking for the $700 when Curry
pulled L.R.’s clothes off. Curry removed L.R.’s pants and
someone removed her socks. The defendants carried L.R. to the
Malibu.
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Once inside the car, Buford showed Boone and Russell a picture
of the $700 on his cell phone, an image he had received from L.R.
Athough L.R. was not fully conscious, Buford suggested that they
get the money from L.R.’s house by having her call her brother and
asking him to bring it to the car.
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Curry drove to [petitioner]’s apartment to get clean pants and
underwear for L.R. [Petitioner]’s roommate brought the clothes to
the car and Boone and Russell put them on L.R. in the back seat of
the car. [Petitioner] put a BB gun on her lap to scare L.R.
Curry continued to drive. [Petitioner], Boone and Curry bought
and smoked marijuana with the $20 they had taken from L.R.
When someone looked in the car, [petitioner] stated, “See what we
do? See how we beat up bitches?’ They let L.R. out of the car to
urinate near a tree, but Boone and [petitioner] stood next to her.
Once L.R. was awake, the defendants turned their attention to
the money. Boone and [petitioner] told L.R. that she “better find
some way” to retrieve the $700. Someone handed L.R. a cell
phone and ordered her to call home. L.R. telephoned her
grandmother and told her to send L.R.’s brother outside with her
purse.
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L.R.’s grandmother stepped outside of the house at 1:00 a.m.
and saw the Malibu approaching. Curry sped away and L.R. called
her grandmother again, telling her to send L.R.’s brother to the car
with the money. Sensing trouble, L.R.’s grandmother asked if she
was being held against her will. L.R. said that she was.
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Curry pulled up again and L.R.’s brother approached the car.
When he saw that L.R.’s face was bruised and bleeding, he told the
occupants of the car to let her out. Instead, Curry drove off with
L.R.’s brother holding onto the car door. L.R.’s grandmother
called 911 when L.R.’s brother came inside.
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L.R. asked to be taken to a hospital, but Curry refused. After
discussing alternatives, the defendants left L.R. by the side of the
road. Curry drove to [petitioner]’s apartment where he, [petitioner]
and Boone spent the night.
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L.R. walked to a nearby apartment where a resident found her
and called 911. L.R. had bruises on her face and stomach and was
fading in and out of consciousness. An ambulance transported her
to the hospital.
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Doctors treated L.R. for a fractured eye socket and extensive
bleeding inside the eye. She was still experiencing double vision at
the time of trial. The doctors drained blood from both of L.R.’s
swollen ears. They noticed abrasions on L.R.’s face, abdomen and
buttocks, and bruises all over her body.
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Fetal heart monitors indicated that L.R.’s unborn baby was in
distress and not receiving enough oxygen. L.R. was nearly 32
weeks pregnant at the time of the assault and had not experienced
any problems with her pregnancy. Doctors delivered the baby by
emergency Cesarean section. The baby had an initial APGAR
score of 1 on a scale of 1 to 10. A normal baby has an initial
APGAR score of 7 or 8. Doctors placed the baby on a mechanical
ventilator for 48 hours and supplied oxygen through its nasal
passages for another five days. The baby remained in the hospital
for three weeks.
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D. [Petitioner]’s Defense:
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[Petitioner] testified that she spoke to L.R. one time before the
assault. She was on the speaker phone during a conversation
between Boone and L.R. Boone and L.R. were arguing over
Buford and L.R. challenged Boone to a fight.
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On the night of the assault, [petitioner] drove the Malibu with
Buford, Curry and L.R. in the car. She stopped at a liquor store
and bought three bottles of Mad Dog 20/20. Buford bought a
Sprite. [Petitioner] and Boone shared one bottle; Curry drank the
second bottle; and all three of them shared the third bottle.
[Petitioner] testified that she took Ecstacy that night. She also felt
“out of character” because she does not drink.
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[Petitioner] testified that she did not know that Boone was
going to fight L.R. until they arrived at the park and Boone said,
“I’m going to fuck this bitch up.” [Petitioner] offered to assist if
she needed help. She admitted socking L.R. in the face after L.R.
bumped into her in what she described as a “cat fight.” Like Curry,
[petitioner] claimed that she did not realize L.R. was pregnant until
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L.R. fell to the ground. She testified that L.R. wore a pea coat that
concealed her stomach.
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[Petitioner] recounted that Buford had called Boone after they
left the park the first time and told them to return to “finish the
job.” According to [petitioner], it was the first time she realized
that Buford wanted to force L.R. to have a miscarriage.
[Petitioner] testified that at that point, she still felt the effects of the
alcohol and Ecstacy, but “[n]ot . . . to the point where [she] didn’t
know what [she] was doing.”
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[Petitioner] testified that she retrieved the baseball bat and
flashlight from the back seat of the Malibu, but denied hitting L.R.
with the flashlight. Russell and Boone put L.R. in the back seat of
the Malibu while she was unconscious.
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After everyone was in the car, Buford said L.R. had money and
showed them the photo on his cell phone. [Petitioner] told L.R.
that she wanted the money and L.R. agreed to get it. [Petitioner]
assumed she agreed because she did not want to suffer another
beating. [Petitioner] acknowledged that there was a BB gun in the
car, but claimed she never threatened L.R. with it. [Petitioner]
stated that the sole purpose of placing L.R. in the car was to take
her home and that she never intended to force L.R. to stay in the
car to rob her. According to [petitioner], no one told Curry where
to take L.R. after they drove away from L.R.’s house the second
time. Later that night, Curry bragged that he rendered L.R.
unconscious and complained that he got her blood on his shoes.
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People v. Curry et al., slip op. at 3-8, 10-12, as modified on denial of rehearing, Jan. 23, 2008, at 2,
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¶¶ 1, 2.
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ANALYSIS
I. Standards for a Writ of Habeas Corpus
Federal habeas corpus relief is not available for any claim decided on the merits in
state court proceedings unless the state court's adjudication of the claim:
(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).
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Under section 2254(d)(1), a state court decision is “contrary to” clearly
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established United States Supreme Court precedents if it applies a rule that contradicts the
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governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially
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indistinguishable from a decision of the Supreme Court and nevertheless arrives at different
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result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406
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(2000)).
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Under the “unreasonable application” clause of section 2254(d)(1), a federal
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habeas court may grant the writ if the state court identifies the correct governing legal principle
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from the Supreme Court’s decisions, but unreasonably applies that principle to the facts of the
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prisoner’s case. Williams, 529 U.S. at 413. A federal habeas court “may not issue the writ
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simply because that court concludes in its independent judgment that the relevant state-court
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decision applied clearly established federal law erroneously or incorrectly. Rather, that
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application must also be unreasonable.” Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75
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(2003) (it is “not enough that a federal habeas court, in its independent review of the legal
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question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”)
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The court looks to the last reasoned state court decision as the basis for the state
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court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court
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reaches a decision on the merits but provides no reasoning to support its conclusion, a federal
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habeas court independently reviews the record to determine whether habeas corpus relief is
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available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
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II. Petitioner’s Claims
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A. Jury Instruction on Kidnap for the Purpose of Robbery (Aggravated Kidnapping)
Petitioner’s first claim is that her constitutional rights were violated by use of the
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pattern jury instruction on kidnap for the purpose of robbery, also known as aggravated
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kidnapping, CALCRIM No. 1203, because the instruction allowed the jury to find her guilty of
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the offense without finding that she had formed the intent to rob when the kidnapping began.
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The last reasoned state court rejection of this claim is the decision of the California Court of
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Appeal for the Third Appellate District on petitioner’s direct appeal, which rejected the claim as
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[Petitioner] contends that the Judicial Council of California
Criminal Jury Instructions (Jan. 2006), CALCRIM no. 1203
(Kidnap for Robbery) improperly allowed the jury to convict her of
aggravated kidnapping without finding that she had the intent to
rob L.R. at the time the kidnapping commenced. We conclude that
CALCRIM No. 1203 is a correct statement of the law.
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The court instructed the jury on the elements of aggravated
kidnapping as follows:
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“[T]he defendants are charged in Count Four with kidnapping
for the purpose of robbery. To prove that a defendant is guilty of
this crime, the people must prove that, one, the defendant intended
to commit robbery; two, acting with that intent, the defendant took,
held or detained another person by force or instilling a reasonable
fear; and, three, using that force or fear, the defendant moved the
other person or made the other person move a substantial
distance; and, four, the other person was moved or made to move a
distance beyond that merely incidental to the commission of the
robbery; and, five, the other person did not consent to the
movement; and, six, the defendant did not actually and reasonably
believe, that the other person consented to the movement.
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“In order to consent, a person must act freely and voluntarily
and know the nature of the act. As used here, a substantial distance
means more than a slight or trivial distance.
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“The movement must have substantially increased the risk of
harm to the person beyond that necessarily present in the robbery.
In decided whether the movement was sufficient, consider all of
the circumstances relating to the movement.” (Italics added.)
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Although CALCRIM No. 1203 does not express state that the
intent to rob must exist at the time the movement commences, we
conclude that the first three points of the instruction, set forth in
italics, adequately express that requirement. The instruction
describes the sequence of events starting with intent and followed
by action – first to take, hold or detain the victim by force or fear,
and then to move the victim a substantial distance. There was no
error.
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People v. Curry et al., slip op. at 17-19.
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A challenge to jury instructions does not generally state a federal constitutional
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claim. See Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021
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(1986) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)); Gutierrez v. Griggs, 695 F.2d 1195,
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1197 (9th Cir. 1983). Habeas corpus is unavailable for alleged error in the interpretation or
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application of state law. Middleton, 768 F.2d at 1085; see also Lincoln v. Sunn, 807 F.2d 805,
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814 (9th Cir. 1987); Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir. 1986). However, a
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“claim of error based upon a right not specifically guaranteed by the Constitution may
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nonetheless form a ground for federal habeas corpus relief where its impact so infects the entire
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trial that the resulting conviction violates the defendant’s right to due process.” Hines v.
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Enomoto, 658 F.2d 667, 673 (9th Cir. 1981) (citing Quigg v. Crist, 616 F.2d 1107 (9th Cir.
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1980), cert. denied, 449 U.S. 922 (1980)); see also Lisenba v. California, 314 U.S. 219, 236
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(1941).
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In order to warrant federal habeas relief, a challenged jury instruction “cannot be
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merely ‘undesirable, erroneous, or even “universally condemned,”’ but must violate some due
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process right guaranteed by the fourteenth amendment.” Prantil v. California, 843 F.2d 314, 317
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(9th Cir. 1988), cert. denied, 488 U.S. 861 (1988) (quoting Cupp v. Naughten, 414 U.S. 141, 146
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(1973)). On federal habeas review, the court is
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“bound to presume that state courts know and follow the law, and
we have been instructed that state-court decisions be given the
benefit of the doubt.” [Musladin v. Lamarque, 555 F.3d 830,] 838
n. 6 [(9th Cir. 2009)] (citation, alteration and internal quotation
marks omitted). This direction applies with even greater force
when a state court is analyzing a jury instruction developed under
state law. See Waddington v. Sarausad, --- U.S. ---, 129 S.Ct. 823,
833-35, 172 L.Ed.2d 532 (2009) (emphasizing that this Court must
review a state court’s resolution of an error in a state-law jury
instruction “through the deferential lens of AEDPA”).
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Byrd v. Lewis, 566 F. 3d 855, 861-62 (9th Cir. 2009). To prevail, petitioner must demonstrate
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that an erroneous instruction “‘so infected the entire trial that the resulting conviction violates
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due process.’” Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp, 414 U.S. at 147). In
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making its determination, this court must evaluate the challenged jury instructions “‘in the
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context of the overall charge to the jury as a component of the entire trial process.’” Prantil, 843
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F.2d at 817 (quoting Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir. 1984), cert. denied, 469
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U.S. 838 (1984)). Further, in reviewing an allegedly ambiguous instruction, the court “must
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inquire ‘whether there is a reasonable likelihood that the jury has applied the challenged
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instruction in a way’ that violates the Constitution.” Estelle, 502 U.S. at 72 (quoting Boyde v.
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California, 494 U.S. 370, 380 (1990)).
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Under California law, kidnap for robbery “requires the . . . element of an intent to
rob, and intent which must be formed before the kidnaping commences. If the intent to rob (even
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though carried out during the course of the kidnaping) is formed after the victim is seized, the
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offense, insofar as it relates to kidnaping, is simple kidnaping and not kidnaping for the purpose
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of robbery.” People v. Bailey, 38 Cal.App.3d 693, 699 (Cal.App. 1974) (citing People v.
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Tribble, 4 Cal.3d 826, 831-32 (1971).
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The state court concluded that there was no error of state law in CALCRIM No.
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1203, the instruction on kidnap for robbery given at petitioner’s trial and, in particular, that the
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instruction was adequate to express the state law requirement that the intent to rob must be
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formed before the kidnap begins. Although habeas corpus jurisdiction is unavailable for review
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of alleged errors in the interpretation or application of state law, the state court’s conclusions
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appear to be fully supported by the record. Since the instruction was not erroneous, there was no
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violation of petitioner’s right to due process. The state court’s rejection of this claim was
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neither contrary to nor an unreasonable application of applicable principles of clearly established
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federal law. Petitioner’s first claim for relief should be denied.
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B. Sufficiency of Evidence to Support Conviction for Aggravated Kidnapping
Petitioner’s second claim is that was insufficient evidence to support her
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conviction for aggravated kidnapping. Specifically, petitioner claims that there was no evidence
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she intended to commit robbery before the kidnapping began. The last reasoned state court
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rejection of this claim is the decision of the California Court of Appeal for the Third Appellate
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District on petitioner’s direct appeal, which rejected the claim as follows:
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Defendants argue that there is insufficient evidence to prove
them guilty of aggravated kidnapping in count four. They maintain
there is no evidence to show that they acted with the specific intent
to rob L.R. at the time they moved her from the park to the car.
The record does not support defendants’ argument.
When a defendant challenges the sufficiency of the evidence,
the reviewing court “must determine ‘whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’ (Jackson v. Virginia (1979) 443 U.S.
307, 319 [61 L.Ed.2d 560, 573, . . . ], italics in original.) ‘[T]he
court must review the whole record in the light most favorable to
the judgment below to determine whether it discloses substantial
evidence – that is, evidence which is reasonable, credible, and of
solid value – such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ (People v. Johnson
(1980) 26 Cal.3d 557, 578 . . . .)” (People v. Davis (1995) 10
Cal.4th 463, 509 (Davis.) “Substantial evidence includes
circumstantial evidence and any reasonable inferences drawn from
that evidence. [Citation.]” (In re Michael D. (2002) 100
Cal.App.4th 115, 126.) Indeed, we “‘“presume in support of the
judgment the existence of every fact the trier could reasonably
deduce from the evidence.”’ [Citation.]” (Davis, supra, at p. 509.)
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A person is guilty of kidnapping under California law if he or
she “forcibly, or by any other means of instilling fear, steals or
takes, or holds, detains, or arrests any person in this state, and
carries the person into another country, state, or county, or into
another part of the same county . . . .” )§ 207, subd. (a).) The
Legislature dictates greater punishment for aggravated kidnapping
under section 209, subdivision (b)(1) where the accused “kidnaps
or carries away any individual to commit robbery . . . .” Section
209 also requires asportation or “movement of the victim that is
not merely incidental to the commission of the robbery, and which
substantially increases the risk of harm over and above that
necessarily present in the crime of robbery itself. [Citations.]”
(People v. Rayford (1994) 9 Cal. 4th 1, 12 (Rayford); see § 209,
subd. (b)(2).)
The parties agree that for them to be found guilty of aggravated
kidnapping, the evidence must show that they intended to commit
the robbery at the time they held or detained L.R. “A person
[cannot] kidnap and carry away his victim to commit robbery if the
intent to rob [is] not formed until after the kidnap[p]ing ha[s]
occurred.” (People v. Tribble (1971) 4 Cal.3d 825, 831.) Thus,
the crime of aggravated kidnapping “‘is similar to burglary where it
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is necessary to show that the entry was with the intent to commit
larceny or any felony. An illegal entry but without such an intent is
not a burglary [citation]; similarly . . . ., kidnapping without intent
to rob constitutes kidnapping but not kidnapping for purpose of
robbery; and a robbery during a kidnapping where the intent was
formed after the asportation is a robbery and not a kidnapping for
purposes of robbery.’ [Citations.]” (Ibid.) Moreover, the robbery
need not be completed. “All that is required is that the defendant
have the specific intent to commit a robbery at the time the
kidnap[p]ing begins.” (People v. Davis (2005) 36 Cal.4th 510,
565-566.)
2
3
4
5
6
7
[Petitioner and her co-d]efendants claim they did not have the
specific intent to rob L.R. at the time they put her in the Malibu.
They cite evidence to show that they decided to rob L.R. only after
they drove away with L.R. and Buford showed them the photo of
the $700 on his cell phone. All three maintain that there is no
evidence they knew about the money before they placed L.R. in the
car. [Petitioner and her co-d]efendants ignore the inferences to be
drawn from the other evidence presented at trial.
8
9
10
11
19
Boone testified on redirect examination that Buford and Curry
were looking for the $700 when Curry pulled L.R.’s clothes off at
the park. Both [petitioner] and Curry told the district attorney’s
investigator that they heard Buford tell the others to “check for
money” while L.R. lay on the ground after the second assault.
Buford told them that L.R. “had money someplace, she had just
gotten paid or something.” Russell also told the district attorney’s
investigator that she heard Buford ask L.R. where the money was
several times. According to Russell’s statement to the district
attorney’s investigator, thereafter, Curry ripped off L.R.’s clothes
and found the $20. And in the car Buford said to L.R., “I thought
you had $700.” We conclude that the jurors could reasonably infer
from this circumstantial evidence that [petitioner and her cod]efendants knew about L.R.’s $700 before they put her in the car
and formed the required specific intent to rob her at that time. (In
re Michael D., supra, 100 Cal.App.4th at p. 126.)
20
People v. Curry et al., slip op. at 12-15, as modified on denial of rehearing, Jan. 23, 2008, at 2, ¶¶
21
3, 4, 5.
12
13
14
15
16
17
18
22
When a challenge is brought alleging insufficient evidence, federal habeas corpus
23
relief is available if it is found that upon the record evidence adduced at trial, viewed in the light
24
more favorable to the prosecution, no rational trier of fact could have found proof of guilt beyond
25
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Under Jackson, the court
26
must review the entire record when the sufficiency of the evidence is challenged on habeas.
12
1
Adamson v. Ricketts, 758 F.2d 441, 448 n.11 (9th Cir. 1985), vacated on other grounds, 789 F.2d
2
722 (9th Cir. 1986) (en banc), rev’d, 483 U.S. 1 (1987). It is the province of the jury to ‘resolve
3
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic
4
facts to ultimate facts.” Jackson, 443 U.S. 307, 319. “The question is not whether we are
5
personally convinced beyond a reasonable doubt. It is whether rational jurors could reach the
6
conclusion that these jurors reached.” Roehler v. Borg, 945 F.2d 303, 306 (9th Cir. 1991).
7
Under Jackson, the federal habeas court determines sufficiency of the evidence in reference to the
8
substantive elements of the criminal offense as defined by state law. Jackson, 443 U.S. 307, 324
9
n.16.
10
As noted above, title 28 U.S.C. § 2254 (d) provides that an application for a writ
11
of habeas corpus shall not be granted with respect to a claim that was adjudicated on the merits in
12
state court proceedings unless the adjudication of the claim “(1) resulted in a decision that was
13
contrary to, or involved an unreasonable application of clearly established federal law, as
14
determined by the Supreme Court of the United States; or (2) resulted in a decision that was
15
based on an unreasonable determination of the facts in light of the evidence presented in the state
16
court proceedings.” Further, 28 U.S.C. § 2254(e)(1) provides that “a determination of a factual
17
issue made by a State court shall be presumed to be correct. The applicant shall have the burden
18
of rebutting the presumption of correctness by clear and convincing evidence.”
19
The state court’s conclusion that there was sufficient evidence to establish beyond
20
a reasonable doubt that petitioner formed the specific intent to rob L.R. before the kidnapping
21
began is not erroneous under the standards set forth above. The court’s decision was not contrary
22
to or an unreasonable application of federal law, nor was it based on an unreasonable
23
determination of the facts. After reviewing the record independently, this court concludes that a
24
rational trier of fact could have found proof beyond a reasonable doubt that petitioner was guilty
25
of aggravated kidnapping. Accordingly, this claim should be denied.
26
/////
13
1
C. Petitioner’s Third Claim
2
Petitioner’s third claim reads as follows:
3
This court should grant review to reconsider it’s holding.
4
While petitioner’s primary defense at trial was that she did not
know Roman was pregnant and never agreed to try to kill the fetus,
she also presented evidence to show she was impaired by Mad Dog
20/20 and Ecstasy and therefore did not form the intent to kill or
know that Boone, the primary actor, intended to try to kill the fetus.
5
6
7
Amended Petition at 6.
8
9
As noted above, respondent observes that this claim “mirrors” a claim raised in
petitioner’s petition for review to the California Supreme Court. In ground III of her petition for
10
review to the California Supreme Court, petitioner contended that the state supreme court
11
“should grant review to reconsider its holding in People v. Mendoza (1998) 18 Cal.4th 1114.”
12
Lodge Document No. 9, Petition for Review at 24. The claim raised in the petition for review
13
challenged the use of CALCRIM No. 404 at petitioner’s trial and, in particular, that part of the
14
instruction which provides: “Do not consider evidence of intoxication in deciding whether
15
attempted murder is a natural and probable consequence of assault with a deadly weapon.” Id.
16
In part, petitioner argued that the instruction ran afoul of the equal protection clause of the
17
federal constitution and that the state supreme court should revisit the Mendoza decision to
18
“bring that case into line with other cases that address the applicability of the ‘objective test’ of
19
‘whether a reasonable person under like circumstances’ would have harbored a particular
20
knowledge or intent.’” Id. at 24-25. Petitioner also contended that the instruction interfered with
21
her “federal constitutional rights to present a defense, to argue her case in closing, to a fair trial
22
and to force the prosecution to prove every element of the charged offense beyond a reasonable
23
doubt.” Id. at 28. That petition was denied in an order that contained no statement of reasons for
24
the decision. Lodged Document No. 10.
25
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26
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14
1
In the state court of appeal, petitioner claimed that use of the challenged
2
instructional language violated her constitutional rights to due process and equal protection. In a
3
lengthy discussion, the state court of appeal rejected those claims, as follows:
4
As to the attempted murder of L.R.’s unborn child, the
prosecutor offered three theories of [petitioner and her cod]efendant’s criminal liability: (1) liability as perpetrators; (2)
liability as aiders and abettors of attempted murder; and (2)
liability [sic] as aiders and abettors of felony assault on L.R., the
natural and probable consequence of which was attempted murder.
The court instructed the jury on these theories pursuant to
CALCRIM Nos. 400 (aiding and Abetting: General Principles),
401 (Aiding and Abetting: Intended Crimes) and 402 (Natural and
Probable Consequences Doctrine). Because trial testimony showed
that some if not all of the defendants were intoxicated when they
assaulted L.R. at the park, the court also read the jury several
instructions that addressed voluntary intoxication, including
CALCRIM No. 404 (Intoxication), which stated:
5
6
7
8
9
10
11
“If you conclude that a defendant was intoxicated at the time of
the alleged crime, you may consider this evidence in deciding
whether the defendant, A, knew a perpetrator intended to commit
the felony assault, and, B, intended to aid and abet the felony
assault.
12
13
14
“Someone is intoxicated if he or she used any drug, drink or
other substance that caused an intoxicating effect.
15
16
“Do not consider evidence of intoxication in deciding whether
attempted murder is a natural and probable consequence of felony
assault.”3
17
18
3
19
20
21
22
23
24
25
26
The court gave other instructions on voluntary intoxication. On the special allegation
of premeditation and deliberation attached to the attempted murder charge, the court instructed
the jury pursuant to CALCRIM No. 625 that it could consider evidence of voluntary intoxication
“in deciding whether a defendant acted with an intent to kill or the defendant acted with
deliberation and premeditation.”
It also instructed the jury more generally regarding voluntary intoxication pursuant to
CALCRIM No. 3426: “You may consider evidence, if any, of the defendant’s voluntary
intoxication only in the limited way specified in the instructions. You may consider that
evidence in deciding whether the defendant acted with the specific intent required for the crime.
“The people have the burden of proving beyond a reasonable doubt that the defendant acted
with the specific intent required for Counts One, Three, Four, Five and Six and the special
finding of premeditation and deliberation relating to Count One and termination of the pregnancy
in Count Two.
“If the people have not met this burden, you must find the defendant not guilty of those crimes
and the allegations not true.
“You must not consider evidence of voluntary intoxication for any other purpose. Voluntary
15
1
5
. . . . [Petitioner] argue[s] that the court erred when it told the jury
to disregard [her] voluntary intoxication when considering [her]
liability for attempted murder as the natural and probable
consequence of assault. [Petitioner] maintains that the error
violated her constitutional rights to due process and equal
protection. . . . We conclude that the instructions on voluntary
intoxication were correct statements of the law. And even if the
instructions were flawed, the error was harmless in light of the
record and the verdicts returned by the jury.
6
....
7
[Petitioner] maintain[s] that the last sentence of CALCRIM No.
404 is misleading regarding the effect of intoxication on [her]
understanding of whether attempted murder was a reasonably
foreseeable consequence of the group’s joint assault on L.R.
Specifically, with respect to the equal protection claim, [petitioner]
contends that “an aider and abettor who is alleged to know the
perpetrator’s intent to kill at the beginning of an offense can use
the intoxication defense, but an aider and abettor [like [petitioner]]
who does not know that the perpetrator intends to kill cannot use
the same [defense].” [Petitioner] argued at oral argument that it
was unfair that the intoxication defense was unavailable to her, the
defendant alleged to be most “far removed” from the assault in
terms of knowledge and participation. . . . .
2
3
4
8
9
10
11
12
13
14
1. [Petitioner]’s Knowledge of and Participation in the Felony
Assault
15
16
17
18
19
20
21
Notwithstanding [petitioner]’s testimony that when Buford
called Boone and her in the car did she first realize that Buford
wanted to force L.R. to have a miscarriage, [petitioner] attempts to
minimize her knowledge of and participation in the assault.
Nevertheless, [petitioner]’s argument that as the defendant alleged
to be the most “far removed” from the assault in terms of
knowledge and participation it is unfair that the intoxication
defense was unavailable to her is both misplaced and inaccurate.
[Petitioner] does not cite, and we do not know of, a case that
measures the degree of the knowledge and intent of the aider and
abettor. It is only necessary that the prosecution prove and aider
and abettor had knowledge of her confederates’ criminal purpose
22
23
24
25
intoxication is not a defense to Count Two, assault by means of force likely to produce great
bodily injury or deadly weapon or the lesser crimes of assault, battery, false imprisonment or
kidnapping.
“I read to you [that] you may not consider evidence of involuntary [sic] intoxication for any
other purpose. I’m going to say that you may not consider evidence of voluntary intoxication for
any purpose not specifically stated in these instructions.”
26
16
1
2
3
4
5
6
7
8
9
and the intent to encourage or facilitate that purpose. Once the jury
makes these findings, it can convict a defendant of the intended
crime and any other crime committed that was a natural and
probable consequence of the intended crime. (People v. Mendoza
(1998) 18 Cal.4th 1114, 1123 (Mendoza).) “Once the necessary
mental state is established, the aider and abettor is guilty not only
of the intended, or target offense, but also of any other crime the
perpetrator actually commits that is a natural and probable
consequence of the target offense.” (People v. Prettyman (1996)
14 Cal.4th 248, 260-262 (Prettyman).) It follows then that the jury
need not measure the degree of a defendant’s knowledge of intent.
As to [petitioner]’s argument that the intoxication defense was
unavailable to her, she is only partly accurate. It was unavailable
only as to whether attempted murder was a natural and probable
consequence of felony assault. Otherwise, the jury received, was
instructed on, and rejected the evidence of intoxication on the aider
and abettor theory of liability.
10
2. CALCRIM No. 404 and the Mendoza Case:
11
12
13
14
15
16
17
18
19
20
21
22
23
24
As to CALCRIM No. 404, its last sentence, “Do not consider
evidence of intoxication in deciding whether attempted murder is a
natural and probable consequence of felony assault” is based on
language contained in Mendoza, supra, 18 Cal.4th at page 1133. In
that case, the Supreme Court described the mental state required to
establish aider and abettor liability and clarified the impact of
voluntary intoxication on that determination. The Mendoza case
began by explaining: “‘All persons concerned in the commission
of a crime, . . . whether they directly commit the act constituting
the offense, or aid and abet in its commission, . . . are principals in
any crime so committed.’ (§ 31.) Accordingly, an aider and
abettor ‘shares the guilt of the actual perpetrator.’ [Citation.] The
mental state necessary for conviction as an aider and abettor,
however, is different from the mental state necessary for conviction
as the actual perpetrator. [¶] The actual perpetrator must have
whatever mental state is required for each crime charged . . . . An
aider and abettor, on the other hand, must ‘act with knowledge of
the criminal purpose of the perpetrator and with an intent or
purpose either of committing, or of encouraging or facilitation
commission of, the offense.’ [Citation.] The jury must find ‘the
intent to encourage and bring about conduct that is criminal, not
the specific intent that is an element of the target offense . . . .’
[Citations.] Once the necessary mental state is established, the
aider and abettor is guilty not only of the intended, or target,
offense, but also of any other crime the direct perpetrator actually
commits that is a natural and probable consequence of the target
offense. [Citation.]” (id. at pp. 1122-1123.)
25
26
The Supreme Court then turned to the question “whether
evidence of voluntary intoxication is admissible on the question
17
1
whether a defendant tried as an aider and abettor had the required
knowledge and intent.” (Mendoza, supra, 18 Cal.4th at p. 1123.)
It reviewed the historical development of section 224 and held that
a jury may consider evidence of defendant’s voluntary intoxication
in deciding whether he or she had the knowledge and intent
necessary for aiding and abetting commission of the target offense.
(Mendoza, supra, at pp. 1118, 1131.) The Mendoza court also
concluded that such evidence was admissible regardless of whether
the target crime required general or specific intent. (Id. at p. 1132.)
The Supreme Court emphasized that its holding was “very narrow”
and explained, in language challenged by . . . [petitioner], that:
“Defendants may present evidence of intoxication solely on the
question whether they are liable for criminal acts as aiders and
abettors. Once a jury finds a defendant did knowingly and
intentionally aid and abet a criminal act, intoxication evidence is
irrelevant to the extent of the criminal liability. A person who
knowingly aids and abets criminal conduct is guilty of not only the
intended crime but also of any other crime the perpetrator actually
commits that is a natural and probable consequence of the intended
crime. The latter question is not whether the aider and abettor
actually foresaw the additional crime, but whether, judged
objectively, it was reasonably foreseeable. [Citation.}
Intoxication is irrelevant in deciding what is reasonably
foreseeable.” (Id. at p. 1133, some italics added.)
2
3
4
5
6
7
8
9
10
11
12
13
CALCRIM No. 404 is faithful to Mendoza. Regardless of . . .
[petitioner]’s view that Mendoza misstates the law, we are bound
by that decision. (See Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.) Moreover, in our view, Mendoza does
not misstate the law.
14
15
16
3. The Equal Protection Claim Fails:
17
[Petitioner] misreads Mendoza and its impact on the equal
protection claim. “The constitutional guaranty of equal protection
of the laws has been judicially defined to mean that no person or
class of persons shall be denied the same protection of the laws has
been judicially defined to mean that no person or class of persons
shall be denied the same protection of the laws which is enjoyed by
18
19
20
21
4
22
23
24
25
26
Section 22 currently reads: “(a) No act committed by a person while in a state of
voluntary intoxication is less criminal by reason of his or her having been in that condition.
Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any
mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge,
premeditation, deliberation, or malice aforethought, with which the accused committed the act.
“(b) Evidence of voluntary intoxication is admissible solely on the issue of whether o not the
defendant actually formed a required specific intent, or, when charged with murder, whether the
defendant premeditated, deliberated, or harbored express malice aforethought.
“(c) Voluntary intoxication includes the voluntary ingestion, injection, or taking by any other
means of any intoxicating liquor, drug, or other substance.” (Italics added.)
18
1
2
3
other persons or other classes in like circumstances in their lives,
liberty and property and in their pursuit of happiness. [Citations.]
The concept recognizes that persons similarly situated with respect
to the legitimate purpose of the law receive like treatment, but it
does not, however, require absolute equality. [Citations.]” (People
v. Romo (1975) 14 Cal.3d 189, 196.)
4
5
6
7
8
9
10
11
An aider and abettor charged with attempted murder who is
aware of the perpetrator’s intent to kill before the offense, is not
similarly situated to an aider and abettor charged with attempted
murder as a reasonably foreseeable consequence of felony assault
under a natural and probable consequence theory. While these two
theories share a knowledge and intent requirement, the natural and
probable consequence theory requires more. In the latter case, after
the jury finds the required knowledge and intent, it must also
determine, based on an objective test, whether the attempted
murder is the natural and probable consequence of the felony
assault. This determination is based on whether the charged
offense is a reasonably foreseeable consequence of his
confederates’ action. (Prettyman, supra, 14 Cal.4th at pp. 260261.) Thus, the determination does not implicate the aider and
abettor’s mental state.
12
13
14
15
Mendoza holds that evidence of voluntary intoxication is
admissible on the question of knowledge and intent (Mendoza,
supra, 18 Cal.4th at pp. 1118, 1131), which requires the jury to
engaged in a subjective analysis of whether intoxication affected
the defendant’s formation of the required mental state. The
Mendoza court properly concluded that “[i]ntoxication is irrelevant
in deciding what is reasonably foreseeable.” (Id. at p. 1133.)
16
17
18
However, even if we were to conclude the jury should have
been instructed to consider [petitioner’]s intoxication in deciding
whether attempted murder was a natural and probable consequence
of the assault, it is clear . . . [petitioner] was [not] prejudiced by
any alleged instructional error.
19
20
21
22
23
24
25
26
In finding [petitioner] guilty of attempted murder, the jury
found true the allegation that she acted with premeditation and
personally used a deadly and dangerous weapon. . . . The jury also
found . . . [petitioner] guilty of assault and found true the allegation
that [she] personally inflicted great bodily injury upon L.R., when
[she] knew or should have known L.R. was pregnant. These
findings demonstrate that the jury: (1) rejected [petitioner’]s
voluntary intoxication claims and (2) found . . . [petitioner] guilty
as [a] perpetrator[]. Indeed [petitioner] acknowledge she felt the
effects of alcohol and Ecstasy the night of the assault, but “[n]ot so
much to the point where I didn’t know what I was doing.” Thus,
any error in instructing the jury not to consider evidence of
intoxication in deciding whether attempted murder is a natural and
probable consequence of felony assault was harmless. The jury’s
19
1
findings also preclude any claim of prejudice from [petitioner]’s
claim that CALCRIM No. 404 violated her constitutional rights.
2
3
People v. Curry et al., slip op. at 23-32.
4
At bottom, the claim at bar rests on an alleged error of state law: the claim is
5
grounded in petitioner’s contention that the California Supreme Court erred in holding that
6
voluntary intoxication is irrelevant to the objective question of whether a charged crime is a
7
reasonably foreseeable consequence of actions that are aided and abetted. That question is not
8
reviewable in this federal habeas corpus proceeding. See Windham v. Merkle, 163 F.3d 1092,
9
1107 (9th Cir. 1998) (quoting Middleton v. Cupp, 768 F.2d at 1085) (“Habeas corpus relief is
10
‘unavailable for alleged error in the interpretation or application of state law.’”). Application of
11
the holding in Mendoza in petitioner’s case did not render her trial fundamentally unfair in
12
violation of the requirements of federal due process. See Estelle, supra. Moreover, the state
13
court’s analysis of petitioner’s equal protection clause claim is entirely congruent with applicable
14
principles of federal equal protection jurisprudence. Finally, petitioner’s remaining federal
15
contentions are unavailing; the scope of the voluntary intoxication defense in this case was
16
circumscribed for purposes of the instant claim by the holding in Mendoza.
17
The state court’s rejection of this claim was congruent with applicable principles
18
of federal law. This claim should be denied.
19
D. Petitioner’s Fourth Claim
20
Petitioner’s fourth claim reads as follows:
21
This court should grant review to determine that aiders and abettors
convicted under the natural and probable consequences....
22
Petitioner also challenged the legality of attaching a premeditation
finding to her when the instructions did not require proof that she
personally premeditated. The instruction explaining aiding and
abetting liability under the natural and probable consequences
theory required jurors to determine whether attempted murder was
23
24
25
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26
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20
1
a natural and probable consequence of felony assault, but did not
require them to determine premeditated....
2
3
Amended Petition at 6.
4
Respondent directs the court’s attention to petitioner’s claim in her petition for
5
review to the California Supreme Court, where petitioner claimed that her right to due process
6
was violated by use of certain jury instructions which allowed jurors to find premeditation even if
7
petitioner did not premeditate or know that anyone else did.
8
The last reasoned state court rejection of this claim is the decision of the
9
California Court of Appeal for the Third Appellate District, which rejected the claim as follows:
10
As we explained, the prosecutor tried defendants for attempted
premeditated murder of L.R.’s unborn child in count one on three
theories: (1) as perpetrators; (2) as aiders and abettors of
attempted murder; and (3) as aiders and abettors of felony assault
on L.R., the natural and probable consequence of which was
attempted murder. The court instructed the jury on the special
finding in count one: “The special finding of premeditation and
deliberation may be found true where a principle [sic] attempted a
willful, deliberate and premeditated murder even though the aider
and abettor did not personally deliberate or premeditate. The aider
and abettor must share the intent to kill.” However, when
instructing on [sic] the jury on attempted murder as a natural and
probable consequence of felony assault, the court did not describe
the offense as premeditated attempted murder.5
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
5
The instructions read in their entirety:
“The defendant is charged in Count Two with assault with a deadly
weapon or with force likely to produce great bodily injury, felony
assault. In Count One, with attempted murder.
“You must first decide whether the defendant is guilty of felony
assault. If you find the defendant is guilty of this crime, you must
then decide whether he or she is guilty of attempted murder.
“Under certain circumstances, a person who is guilty of one
crime may also be guilty of the other crimes that were committed at
the same time.
“To prove that the defendant is guilty of attempted murder, the
people must prove that, one, the defendant . . . is guilty of felony
assault. Two, during the commission of the felony assault, the
crime of attempted murder was committed, and, three, under all of
the circumstances, a reasonable person in the defendant’s position
would have known that the commission of attempted murder was a
natural and probable consequence of the commission of the felony
21
1
2
3
4
Russell argues that these instructions improperly “allowed [the]
jurors to attach a premeditation finding to [her] attempted murder
charge, even if they explicitly found she did not personally
premeditate, exposing her to a sentence of life without parole . . . .”
She also maintains that the instructional error violated her
constitutional right to due process. We conclude the instructions
were a correct statement of the law, and even if the instructions
were improper, Russell suffered no prejudice.
5
6
7
8
9
10
11
12
13
14
15
Russell misreads the instruction on premeditation and
deliberation. To find and aider and abettor criminally liable for
premeditated attempted murder, the jury must find that the
defendant “share[d] the intent to kill.” A jury could not make a
true finding on the special allegation on premeditation if it
determined that Russell only intended to aid and abet a perpetrator
in felony assault without harboring the intent to kill L.R.’s unborn
child.
Moreover, People v. Lee (2003) 31 Cal. 4th 613 (Lee) holds that
a person may be convicted of premeditated attempted murder as an
aider and abettor even if he or she did not personally act with
willfulness, deliberation and premeditation. (Id. at pp. 624 & 627.)
Russell acknowledges this proposition as far as it goes, but notes
that the Supreme Court left open the question whether the same
rules [sic] applies where the defendant is found guilty of attempted
murder on a theory of natural and probable consequences. We
agree with the reasoning of People v. Cummins (2005) 127
Cal.App.4th 667, 680 and People v. Laster (1997) 52 Cal.App.4th
1450, 1473 that Lee should apply in a case involving the natural
and probable consequences doctrine.
16
17
18
19
20
21
22
Russell also urges us not to apply Lee in the circumstances of
this case because: (1) a person who “only aids and abets a lesser
offense than attempted murder is insufficiently blameworthy for
the harsh life sentence that premeditated attempted murder
carries;” (2) imposing a life sentence on a defendant who has not
directly aided and abetted an attempted premeditated murder would
violate the federal and state constitutions; and (3) Lee undermines
the subsequent Supreme Court ruling in People v. Seel (2004) 34
Cal.4th 535 which holds that premeditation is an element of the
offense of attempted murder. We need not address these
arguments. Even if the court erred in instructing the jury on
premeditation in the circumstances of this case, the error was
harmless beyond a reasonable doubt.
23
24
25
26
assault.
“A natural and probable consequence is one that a reasonable
person would know was likely to happen if nothing unusual
intervenes.”
22
1
2
3
4
The jury convicted Russell of conspiracy to commit murder in
addition to premeditated attempted murder. In finding Russell
guilty of conspiracy to commit murder, the jury necessarily found
that she premeditated and deliberated the murder of L.R.’s unborn
child. (See People v. Cortez (1998) 18 Cal.4th 1223, 1232 [“The
mental state required for conviction of conspiracy to commit
murder necessarily establishes premeditation and deliberation of
the target offense of murder”], italics omitted.)
5
6
7
8
9
10
11
12
13
The record provides overwhelming support for the jury’s
findings. Russell drove L.R. to the park fully aware of the plans to
beat her up in an attempt to cause a miscarriage. She punched L.R.
in the face during the first assault. Although Russell and Boone
left in the Malibu after L.R. had been and robbed of her shoes and
cell phone they returned to the park when Buford phoned and told
them to return and “finish the job.” Boone testified that she asked
Buford if he was trying to kill L.R., and Buford said, “[N]o, just
the baby.” He wanted Boone to continue, “as long as that baby
gets up out of her.” This time the two women came armed with a
baseball bat and flashlight which Russell used to strike L.R. on the
head. The second assault left L.R. unconscious.
People v. Curry, slip op. at 34-37.
As the state court found, under California law petitioner’s conviction for
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conspiracy to commit murder includes a finding that petitioner premeditated and deliberated
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murdering L.R.’s unborn child. The state court’s determination that these findings were
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supported by the record was entirely reasonable. As noted above, to prevail on her claim that the
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jury instructions violated her right to due process, petitioner must demonstrate that an erroneous
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instruction “‘so infected the entire trial that the resulting conviction violates due process.’”
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Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp, 414 U.S. at 147). The state court’s
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rejection of this claim was entirely congruent with applicable principles of United States
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Supreme Court precedent. This claim should be denied.
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Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United
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States District Courts, “[t]he district court must issue or a deny a certificate of appealability when
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it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. A certificate of
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appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a substantial
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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either
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issue a certificate of appealability indicating which issues satisfy the required showing or must
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state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b). For the reasons
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set forth in these findings and recommendations, petitioner has not made a substantial showing of
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the denial of a constitutional right. Accordingly, no certificate of appealability should issue.
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For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that:
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1. Petitioner’s application for a writ of habeas corpus be denied; and
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2. The district court decline to issue a certificate of appealability.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen
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days after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
13
objections shall be filed and served within fourteen days after service of the objections. The
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parties are advised that failure to file objections within the specified time may waive the right to
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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: August 1, 2011.
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