Victoria v. Grounds
Filing
19
MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 12/15/2014 DENYING 1 Petition for Writ of Habeas Corpus. It is further ORDERED that the Court DECLINES to issue a Certificate of Appealability. CASE CLOSED.(Donati, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
SHAUN ANTHONY VICTORIA,
No. 2:13-cv-02119-JKS
Petitioner,
MEMORANDUM DECISION
vs.
WILLIAM MUNIZ, Acting Warden,
Salinas Valley State Prison,1
Respondent.
Shaun Anthony Victoria, a state prisoner proceeding pro se, filed a Petition for Writ of
Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Victoria is currently in the custody
of the California Department of Corrections and Rehabilitation and is incarcerated at Salinas
Valley State Prison. Respondent has answered. Victoria has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In resolving his claims on direct appeal, the Court of Appeal recounted the facts of this
case as follows:
The now deceased victim, Rodney Scaife, was [Victoria’s] constant companion,
who even travelled with [Victoria] on his long-haul trucking trips. Scaife received
treatment at the emergency room for stab wounds to his torso and right arm in August
2005. The wounds were life threatening, and if untreated could have been fatal. He
spent four days at the hospital before being released. At the time of his admission, he
told a nurse that his roommate attacked him in the shower and stabbed him. He also told
this to a residential security guard, who had found him lying outside and called 911. He
later died in Arkansas in September 2009, when a car struck him as he was standing
outside a vehicle after a crash.
1
William Muniz, Acting Warden, Salinas Valley State Prison, is substituted for
R.T.C. Grounds, former Warden. FED. R. CIV. P. 25(d).
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There are several accounts of how the 2005 stabbing came about. We will list
them in turn. Additional facts pertinent to the arguments on appeal will be incorporated
in the Discussion.
A. [Victoria’s] Sacramento Girlfriend: Two Versions
Testimony
[Victoria’s] Sacramento girlfriend, Megan R. (Megan or the Sacramento
girlfriend), and [Victoria] began dating in April 2004. In August 2005, they had an
argument that escalated into physical violence; [Victoria] struck Megan with his fist and
a tool before falling asleep on her sofa. Scaife, who had been outside during the fight
between [Victoria] and Megan, attempted to comfort Megan in her bedroom. He told her
she should break off her relationship with [Victoria], then tried to kiss her. She rebuffed
him and he left the room.
The next morning, Megan told [Victoria] he had to take his belongings and leave
her apartment. When she got home that evening after midnight, [Victoria] came up to her
as she got out of her car, knelt down, and begged forgiveness. She invited him to come
inside and talk for a few minutes.
Scaife entered Megan’s apartment about a half-hour into their conversation, and
asked if he could shower. When Scaife left to get a bag out of [Victoria’s] car, Megan
told [Victoria] about Scaife’s attempt to kiss her the previous night. [Victoria] seemed
visibly angry; he grabbed his cell phone and his cigarettes and went outside. He brushed
past Scaife as Scaife was coming back in.
Scaife came out of the bathroom naked and asked for towels. Megan, unsure of
[Victoria’s] location, called him and told him what Scaife had done. Almost
immediately, [Victoria] came back into the apartment “really angry” and walked toward
the kitchen mumbling that he could not believe it. He grabbed a knife from the counter
knife block and walked quickly toward the bathroom.
[Victoria] opened the bathroom door and pulled back the shower curtain. From
the sofa, Megan could see [Victoria] make punching motions at Scaife, and then she saw
blood. She never saw Scaife holding the knife. Scaife grabbed for his clothes and fled
the apartment, [Victoria] following him with knife in hand.
Megan was standing there still in shock when [Victoria] returned after a few
minutes. He dropped a mesh shirt into the sink, and told Megan to get her things because
they were leaving. As they drove off in her car, she could see the apartment complex’s
security guard kneeling over Scaife, who was lying on the walkway. They headed to her
grandfather’s vacant home to spend the night.
While there, [Victoria] called two or three women. Megan heard him tell one of
them that he had stabbed Scaife because he had tried to rape Megan. [Victoria] also told
Megan that they would need to agree on an account of what happened. After formulating
several different versions, he eventually instructed Megan to tell the police that Scaife
had tried to rape her; that when [Victoria] confronted him, Scaife had pulled a knife on
him (that he already had with him in the bathroom); and that Scaife was stabbed as
[Victoria] struggled for control of the knife.
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They went to a hospital where Megan’s mother worked (after telling her that they
were on their way). [Victoria] had wanted to talk to Megan’s mother before going to the
police, because he had a good relationship with her. The mother arrived at the hospital
already in the company of the police, who then arrested [Victoria].
Extrajudicial Statements
In her statement to the police, Megan initially adhered to [Victoria’s] version of
the incident. She claimed Scaife had tried to rape her two nights earlier. He had taken a
knife into the bathroom on the night of the stabbing because he was afraid she would tell
[Victoria] what had happened. When [Victoria] confronted Scaife after Megan had told
him about the attempted rape, the stabbing occurred in the course of attempting to disarm
Scaife, who fell onto the knife in the struggle.
As the detective continued to question Megan aggressively, she became afraid
that he was not believing this story, so she told the truth as reflected in her testimony.
She nonetheless repeated [Victoria’s] version to the attorney she had hired to represent
him initially, because she was afraid that [Victoria] would be released from jail before
trial.FN1
FN1. [Victoria’s] attorney testified that in her interview with Megan, she had
attested to the truth of the initial version in the police interview, and had changed
the story only under pressure from the detective.
B. The Redding Girlfriend: More Fuel for the Fire
[Victoria] had started dating a girlfriend in Redding, Amy W. (Amy or the
Redding girlfriend), in October 2003; he moved into her Redding home in September
2004. By February 2005, [Victoria] started bringing Scaife home fairly often. Amy did
not like this and thought Scaife was “creepy and scary” because he had often grabbed at
her, and once pushed her onto a bed and invited her to have sex as he lay atop her. She
had not told [Victoria] about these incidents. But this was one of the reasons she asked
[Victoria] to move out of her Redding home in the spring of 2005. Scaife had started
telling Amy unsavory things about [Victoria] behind his back, including that [Victoria]
had started dating the Sacramento girlfriend and would be moving in with her (contrary
to what [Victoria] had said to Amy).
On the night of the stabbing in August 2005, [Victoria] called Amy after learning
about Scaife’s attempt to kiss the Sacramento girlfriend. Amy then told [Victoria] about
Scaife’s backstabbing remarks. [Victoria] told her he was going to go inside and take
care of matters, but he did not sound upset.
C. Scaife’s Extrajudicial Versions
Corroborating [Victoria]
An inmate testified he had known Scaife for two years preceding the stabbing.
He encountered Scaife when both were in a holding cell at the jail, in what he thought
(mistakenly) was the spring of 2005. Scaife asked him to deliver a note to [Victoria],
who was awaiting trial on the stabbing. Scaife wanted [Victoria] to know that he would
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not be testifying against him. Scaife explained to the inmate that he had exposed his
genitals to Megan ([Victoria’s] Sacramento girlfriend) in the bedroom while holding a
knife with the intent of having sex. When she rebuffed him and said [Victoria] would be
angry, he took the knife with him to the bathroom. He scuffled with [Victoria] in the
bathroom while trying to stab him, and fell onto the knife after dropping it.
[Victoria’s] initial attorney had also interviewed Scaife in the county jail in
August 2005. Scaife admitted taking a knife into the bathroom to protect himself because
he knew that defendant would be upset, and said that he had been stabbed in the struggle
for the knife.FN2
FN2. Both of these statements (along with the next two recorded phone calls)
were the subject of a limiting instruction, restricting their substantive use to the
corroboration of Scaife’s statements to the nurse and the security guard that we
mentioned above (except to the extent they resulted in adoptive admissions on
[Victoria’s] part). . . .
Noncorroborating
The prosecutor introduced a recording and transcript of a pretrial phone call
between the jailed [Victoria] and a female friend. These involved messages left on
[Victoria’s] voice mail, which the female friend played for him during the phone call via
the speaker on her cell phone. Several of these messages were from Scaife. He denied
threatening any of [Victoria’s] female acquaintances, as they had apparently reported.
He claimed credit for having saved [Victoria’s] life when he woke him up while driving
the truck, which [Victoria] had failed to take into consideration in their confrontation. (In
response to this remark, [Victoria] commented aloud, “Well, save me from going to jail
now.”) Scaife complained that no one else had ever put him in the hospital, and that
[Victoria] had gone too far. Scaife asserted that he was not going to press charges, and
asked that in return [Victoria] help him get back to Tennessee when he got out of the
hospital (for which reason he wanted [Victoria] to retrieve his belongings). Scaife denied
being naked in front of Megan and questioned why someone (presumably the Redding
girlfriend) had delayed telling [Victoria] something (presumably about Scaife’s
badmouthing) until the night of the incident. Scaife promised that he had not talked to
anyone about the incident and would not “do anything,” and urged [Victoria] to get
himself out of trouble.
The prosecutor also introduced a recording and transcript of a phone call the next
day from [Victoria] to Scaife at the hospital, via a three-way call with the female friend.
Scaife stated that he had declined [Victoria’s] offer of help at the scene of the stabbing
because [Victoria] was still holding the knife as he followed Scaife. [Victoria] reminded
him that their conversation could be recorded. Scaife noted that he told the police he had
not decided whether he would testify against [Victoria], and asserted that the police could
not pursue [Victoria] without his cooperation. [Victoria] said he had given a version of
the stabbing to the police in which they had been wrestling over the knife when Scaife
fell on it. Scaife asked, “And they bought that?” [Victoria] replied that they had not;
“You’re going [to] have to corroborate it.” Scaife agreed he could do that. [Victoria]
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promised that he would then get Scaife back to Tennessee as Scaife had requested in the
voice mail messages. Scaife expressed concern about Megan having claimed that he had
sexually assaulted her. [Victoria] assured him that it was not something about which to
be concerned. When Scaife asked why the stabbing happened if [Victoria] considered
him a brother, [Victoria] reminded him not to discuss the matter on the phone and
promised to talk to him about it when he was released. Scaife was shocked to learn that
he had told the police before passing out that [Victoria] had stabbed him. Scaife noted
that he had spoken already to the female friend who set up the call and said, “I did tell her
what maybe if you could maybe say it go down like this.” Scaife also reiterated his
intention to disappear before any trial, saying “They can’t do nothing to you without me
being there.”
D. [Victoria’s] Versions
Testimony
[Victoria] testified Scaife had a habit of making passes at [his] “lady friends,” and
on the night of the stabbing [Victoria] had learned this was true with Megan as well.
This did not greatly upset him because he had only a casual relationship with this
girlfriend (his relationship with the Redding girlfriend was still ongoing) and he was
“immune” by now to Scaife’s behavior in this regard. His conversation with the Redding
girlfriend did not have any effect on him, because he already knew about some of
Scaife’s badmouthing.
After [Victoria] went calmly into the bathroom to ask Scaife about his behavior,
Scaife brandished the knife at him as [Victoria] turned to leave. They struggled for
possession of the weapon ([Victoria] punching Scaife as well), and Scaife fell onto it
once (incurring multiple stab wounds). [Victoria] ordered Scaife to leave. He chased
Scaife, who carried the knife with him, out of the apartment. Scaife dropped the knife on
the pathway along with a mesh shirt. [Victoria] picked these items up and put them in
the kitchen sink when he returned to the apartment.
Extrajudicial Statements
In addition to [Victoria’s] statements in the recorded phone conversation with
Scaife, he had made statements in his conversation from jail with the female friend on the
day before. He had asked her to go to the hospital and talk with Scaife. He claimed
Scaife’s refusal to talk was the reason [he] was still in jail, because Scaife had initially
identified [Victoria] as the stabber, so Scaife now needed to talk to the investigating
detective and exculpate [Victoria] with the version that they had wrestled over a knife
and Scaife fell on it. In return, [Victoria] would make sure Scaife got to Tennessee.
[Victoria] also suggested the female friend mention that his women acquaintances would
file complaints about Scaife threatening them if he did not do this.
The Sacramento girlfriend continued to talk with [Victoria] while he was in jail
awaiting trial. During one of her visits, he held up a note that asked her to claim she had
stabbed Scaife. The jailers seized the note, which was an exhibit at trial along with a
note Megan wrote in response. [Victoria] acknowledged the note he had shown Megan
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during her jailhouse visit with him. He said that it was merely a sarcastic response to her
false statements to the police.
People v. Victoria, No. C065482, 2012 WL 1453547, at *1-4 (Cal. Ct. App. Apr. 27, 2012).
A jury convicted Victoria of attempted murder and assault with a deadly weapon, in the
course of which he personally used a deadly weapon and inflicted great bodily injury. Id. at *1.
The trial court thereafter sustained two recidivist allegations. Id. It imposed a state prison term
of 25 years to life plus 9 years for the enhancements, with conduct credits limited to 15 percent
of actual presentence custody. Id.
Victoria filed a counseled appeal, arguing that: 1) the trial court abused its discretion in
allowing the prosecution to introduce evidence of his prior bad acts; 2) the trial court erred in
failing to instruct the jury on attempted voluntary manslaughter based on imperfect self-defense;
3) the trial court erred in failing to sua sponte instruct the jury on the lesser included offense of
attempted voluntary manslaughter based on sudden quarrel/heat of passion; 4) the trial court
erred in failing to sua sponte instruct the jury on the defense of accident or misfortune; and 5) the
trial court violated his substantial rights in instructing the jury that it could consider Scaife’s
statements to a fellow inmate, Reginald Blount, only to the extent that they affected the
believability of Scaife’s other statements and not as substantive evidence. The Court of Appeal
affirmed Victoria’s judgment of conviction in a reasoned opinion on April 27, 2012. Id. at *8.
Victoria raised the same claims in his petition for review. The California Supreme Court
summarily denied review on July 11, 2012. Victoria did not file any petitions for habeas relief in
the state courts. He filed his pro se Petition with this Court on October 9, 2013, and Respondent
does not contest the timeliness of the Petition.
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II. GROUNDS RAISED
In his Petition before this Court, Victoria raises the same claims he unsuccessfully raised
on direct appeal. First, he argues that the trial court erred in failing to sua sponte instruct the
jury on the lesser included offense of attempted voluntary manslaughter based on sudden
quarrel/heat of passion. Second, he argues that the trial court erred in failing to instruct the jury
on attempted voluntary manslaughter based on imperfect self-defense. Third, Victoria argues
that the trial court erred in failing to sua sponte instruct the jury on the defense of accident or
misfortune. Fourth, he claims that the trial court violated his substantial rights in instructing the
jury that it could consider Scaife’s statements to a fellow inmate, Reginald Blount, only to the
extent that they affected the believability of Scaife’s other statements and not as substantive
evidence. Fifth, and finally, Victoria argues that the trial court abused its discretion in allowing
the prosecutor to introduce evidence of his prior bad acts.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,”
§ 2254(d)(2). A state-court decision is “contrary” to federal law “if the state court applies a rule
that contradicts the governing law set forth” in controlling Supreme Court authority or “if the
state court confronts a set of facts that are materially indistinguishable from a decision” of the
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Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362,
406 (2000).
The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1)
“refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the
relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon
the states; that is, the decision must be based upon constitutional grounds, not on the supervisory
power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where
holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it
cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”
Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
In applying these standards on habeas review, this Court reviews the “last reasoned
decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)
(citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Under the AEDPA, the state court’s
findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340
(2003).
Victoria has not replied to Respondent’s answer. The relevant statute provides that “[t]he
allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a
habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the
judge finds from the evidence that they are not true.” 28 U.S.C. § 2248; see also Carlson v.
Landon, 342 U.S. 524, 530 (1952). Where, as here, there is no traverse filed and no evidence
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offered to contradict the allegations of the return, the court must accept those allegations as true.
See Phillips v. Pitchess, 451 F.2d 913, 919 (9th Cir. 1971).
IV. DISCUSSION
Evidence of prior bad acts
Victoria first argues that the trial court abused its discretion in allowing the prosecutor to
introduce evidence of his prior bad acts. Victoria raised this claim on direct appeal, and the trial
court summarized the background of this claim as follows:
In July 1991, [Victoria] was convicted of rape and forcible oral copulation in
concert. He and two codefendants had sexually assaulted a friend’s girlfriend in her
home, and robbed her afterward.
The prosecutor moved to admit the evidence of these two convictions for
impeachment purposes in the event [Victoria] testified. On learning [Victoria] intended
to testify, the court granted the motion but limited the evidence to the bare fact of two
prior felony convictions. The court cautioned defense counsel, however, that “if any
doors are opened to violence, then [the nature of those offenses] may become relevant.”
During redirect examination, [Victoria] asserted that he had a problem with Scaife
only when the latter had been drinking (which he believed Scaife had been doing on the
night of the stabbing). There would be a personality change, which [Victoria] described
as “evil, screaming . . . , his judgment just out of the window completely. . . . ” He also
described a previous scuffle between them, when [Victoria] was driving the inebriated
Scaife home and he grabbed at the steering wheel. This led to a pushing and yelling
match.
The prosecutor then argued this testimony regarding Scaife’s character and
[Victoria’s] portrayal of him as the aggressor made [Victoria’s] aggressive character
relevant and moved to admit the prior convictions as evidence of [Victoria’s] character
for violence. Although defense counsel argued the priors were too remote, the prosecutor
pointed out that [Victoria] had been in prison for most of the intervening period. The
trial court granted the motion; however, it limited the additional evidence to the fact that
the prior convictions involved force. In response to the prosecutor’s question, [Victoria]
acknowledged the forcible nature of the priors.
Victoria, 2012 WL 1453547, at *4.
The court ultimately denied Victoria relief, concluding that, under state law, the trial
court did not err in admitting the nature of Victoria’s two prior convictions:
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[Victoria] agrees that a defendant who introduces evidence of a victim’s character
for violence (in support of a theory of self-defense from a victim’s act of aggression)
forfeits the statutory protection against introduction of character evidence to establish the
defendant’s propensity for violence. (Evid. Code, §§ 1101, subd. (a), 1103, subd. (b); see
People v. Walton (1996) 42 Cal. App. 4th 1004, 1014.) [Victoria] argues, however, that
his testimony did not establish Scaife had a violent character when drunk. Rather, he had
testified only that Scaife was a “belligerent” drunk. He asserts the trial court
consequently erred at the foundational level in allowing the introduction of the forcible
nature of his prior convictions into evidence, abusing its discretion as a matter of law.
[Victoria] cites People v. Blanco (1992) 10 Cal. App. 4th 1167, 1172 (Blanco).
The case is not instructive, however. It holds only that it is constitutionally permissible
for the statute to allow “certain types of character evidence in rebuttal, only after [a]
defendant first raises the issue by presenting evidence of the victim’s character in order to
prove [a] . . . reasonable response to alleged provocation or attack.” (Blanco, at p. 1175.)
The case does not, however, at any point purport to define the type of character evidence
of a victim that comes within the statute and triggers the prosecution’s entitlement to
introduce rebuttal evidence, and thus its mere employment of the term “violence” in
describing the narrow reach of the statute (id. at p. 1172) cannot be construed as a
holding that limits the statute only to that type of character evidence.
[Victoria] is engaging in hairsplitting. He has not demonstrated that “evidence
[of a] victim[’s] . . . character for violence or a trait of character tending to show
violence” (Evid. Code, § 1103, subd. (b)) connotes any peculiar meaning for “violence”
as a term of art. The concern of the statute is evidence of character to support a
defendant’s claim that the victim was an aggressor to whom the defendant responded
with acts of self-defense. (E.g., People v. Moreno (2011) 192 Cal. App. 4th 692, 702
[defendant entitled to discover evidence indicating victim had “propensity for violence or
aggressive behavior” (italics added)]; Engstrom v. Superior Court (1971) 20 Cal. App.
3d 240, 245 [same; “specific acts of aggression” (italics added)]; Blanco, supra, 10 Cal.
App. 4th at pp. 1173-1175 [discussing derivation of rule behind Evid. Code, § 1103,
subd. (b)]; see People v. Thomas (1969) 269 Cal. App. 2d 327, 329 [in proof of selfdefense, would be entitled to introduce evidence of “specific acts of prior belligerence”
(italics added)]; 2 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) Character, Habit,
and Custom, § 33.5, p. 1195 [proper to submit evidence of fights in which victim was
aggressor to prove victim was aggressor in fight with defendant].) [Victoria’s] evidence
in the present case was of this tenor: The victim was a belligerent drunk; [Victoria]
asserted his belief the victim had been drinking; and, therefore, the victim was the one to
wield the knife, not [Victoria]. That satisfied the necessary foundation for admission of
the forcible nature of [Victoria’s] prior convictions. As a result, the trial court did not err
in admitting the nature of the prior convictions.
Id. at *5.
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The Supreme Court has acknowledged its “traditional reluctance to impose constitutional
restraints on ordinary evidentiary rulings by state trial courts.” Crane v. Kentucky, 476 U.S. 683,
689 (1986). The Supreme Court has further made clear that federal habeas power does not allow
granting relief on the basis of a belief that the state trial court incorrectly interpreted the state
evidence code in ruling on the admissibility of evidence. Estelle v. McGuire, 502 U.S. 62, 72
(1991) (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973); Henderson v. Kibbe, 431 U.S. 145,
154 (1977); Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). On direct appeal, the
appellate court determined that, in line with the California Evidence Code and state case law, the
trial court properly allowed into evidence the nature of Victoria’s two prior convictions. This
Court is bound by the state court’s interpretation of California state law. Bradshaw v. Richey,
546 U.S. 74, 76 (2005).
Moreover, the United State Supreme Court has left open the question of whether state
law would violate the Due Process Clause if it permitted the use of prior crimes evidence to
show propensity to commit a charged crime. Estelle, 502 U.S. at 75 n.5 (“[W]e express no
opinion on whether a state law would violate the Due Process Clause if it permitted the use of
‘prior crimes’ evidence to show propensity to commit a charged crime.”); Mejia v. Garcia, 534
F.3d 1036, 1046 (9th Cir. 2008). As such, the Ninth Circuit has routinely found federal habeas
relief to be foreclosed by § 2254(d)(1) for claims challenging the admission of evidence of prior
bad acts or crimes. See, e.g., Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir. 2008); Alberni
v. McDaniel, 458 F.3d 860, 866 (9th Cir. 2006).
Finally, Victoria’s suggestion that counsel was ineffective in failing to object to the
evidence is without merit. The evidence was clearly admissible under state law, and counsel will
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not be deemed ineffective for failing to raise a meritless objection. See Sexton v. Cozner, 679
F.3d 1150, 1157 (9th Cir. 2012) (“Counsel is not necessarily ineffective for failing to raise even
a nonfrivolous claim, so clearly we cannot hold counsel ineffective for failing to raise a claim
that is meritless.” (internal citation omitted)); see also Lockhart v. Fretwell, 506 U.S. 364, 374
(1993) (O’Connor, J., concurring) (failing to raise a meritless objection cannot constitute
prejudice under a Strickland ineffective assistance of counsel claim). Victoria therefore cannot
prevail on his claims that the evidence was erroneously admitted or that counsel was ineffective
in failing to object to its admission.
Instructional errors
Victoria next raises four instructional error claims. A challenged instruction violates the
federal constitution if there is a “reasonable likelihood that the jury has applied the challenged
instruction in a way that prevents the consideration of constitutionally relevant evidence.”
Boyde v. California, 494 U.S. 370, 380 (1990). The question is whether the instruction, when
read in the context of the jury charges as a whole, is sufficiently erroneous to violate the
Fourteenth Amendment. Francis v. Franklin, 471 U.S. 307, 309 (1985). This Court must also
assume in the absence of evidence to the contrary that the jury followed those instructions.
Weeks v. Angelone, 528 U.S. 225, 234 (2000); Richardson v. Marsh, 481 U.S. 200, 206 (1987)
(noting the “almost invariable assumption of the law that jurors follow their instructions”); see
Francis, 471 U.S. at 323-24 & n.9 (discussing the subject in depth).
It is well established that not only must the challenged instruction be erroneous but it
must violate some constitutional right, and it may not be judged in artificial isolation but must be
considered in the context of the instructions as a whole and the trial record. Estelle, 502 U.S. at
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72. This Court must also bear in mind that the Supreme Court has admonished that the inquiry is
whether there is a reasonable likelihood that the jury applied the challenged instruction in a way
that violates the constitution and that the category of infractions that violate “fundamental
fairness” is very narrowly drawn. Id. at 72-73. “Beyond the specific guarantees enumerated in
the Bill of Rights, the Due Process clause has limited operation.” Id. Where the defect is the
failure to give an instruction, the burden is even heavier because an omitted or incomplete
instruction is less likely to be prejudicial than an instruction that misstates the law. See Kibbe,
431 U.S. at 155. In those cases, the inquiry is whether the trial court’s refusal to give the
requested instruction “so infected the entire trial that the resulting conviction violates due
process.” See id. at 156-57; Estelle, 502 U.S. at 72.
1.
Failure to instruct on manslaughter as a lesser included offense
Victoria argues that the trial court erred in failing to sua sponte instruct the jury on
manslaughter because there was substantial evidence that he actually but unreasonably believed
in the need for an attempt to resort to deadly force in his own defense. He similarly asserts that
the trial court erred in failing to sua sponte instruct the jury on attempted manslaughter because
there was evidence that he acted in the heat of passion. The Court of Appeal rejected these
contentions on direct appeal, concluding that the evidence did not warrant such instructions.
Victoria, 2012 WL 1453547, at *6-7.
The United States Supreme Court has held that the failure to instruct on a lesser included
offense in a capital case is constitutional error if there was evidence to support the instruction.
Beck v. Alabama, 447 U.S. 625, 638 (1980). The Supreme Court, however, has not decided
whether to extend this rationale to non-capital cases. The Ninth Circuit, like several other
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federal circuits, has declined to extend Beck to find constitutional error arising from the failure to
instruct on a lesser included offense in a non-capital case. See Solis v. Garcia, 219 F.3d 922,
929 (9th Cir. 2000); Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998) (“[T]he failure of
a state trial court to instruct on lesser included offenses in a non-capital case does not present a
federal constitutional question.”); James v. Reese, 546 F.2d 325, 327 (9th Cir. 1976) (“Failure of
a state court to instruct on a lesser offense fails to present a federal constitutional question and
will not be considered in a federal habeas corpus proceeding.”). Accordingly, the decision of the
Court of Appeal denying Victoria relief on this claim was not contrary to United States Supreme
Court authority as set forth in Beck.
Nevertheless, the Ninth Circuit has recognized that “the refusal by a court to instruct a
jury on lesser included offenses, when those offenses are consistent with defendant’s theory of
the case, may constitute a cognizable habeas claim” under clearly established United States
Supreme Court precedent. Solis, 219 F.3d at 929. Victoria, however, did not argue at trial that
he acted in self-defense or in the heat of passion. Victoria claimed that Scaife fell on the knife
after Victoria calmly broached the subject of Scaife’s conduct toward his girlfriends. Victoria
thus denied that he acted intentionally, much less in self-defense or as a result of provocation.
Because an instruction on manslaughter based on heat of passion or unreasonable self-defense
was not consistent with Victoria’s defense and was not supported by the evidence, no due
process violation arose from the failure to instruct the jury on the lesser included offense. See
Bradley v. Duncan, 315 F.3d 1091, 1098-1101 (9th Cir. 2002) (finding federal due process
violation where defendant’s request for instruction on the only theory of defense was denied);
Solis, 219 F.3d at 929. He therefore cannot prevail on this claim either.
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2.
Failure to sua sponte instruct on the defense of accident
Again, Victoria’s major claim at trial was that Scaife’s knife wounds were accidental. He
thus argues that the trial court violated its sua sponte duty to instruct on the “defense” of
accident. Victoria acknowledged on direct appeal that he was not entitled to relief on this claim
under state law, but requested to preserve the claim for federal habeas review:
Several days before [Victoria] filed his opening brief, People v. Anderson (2011)
51 Cal. 4th 989 held that “accident” is only a variation on a defense theory that a
defendant lacked intent, and thus constitutes a “pinpoint” instruction on which a court has
a duty to instruct only on request. (Id. at pp. 996-997.) Defendant acknowledges in his
reply brief that we are bound to reject his argument as a matter of state law. He therefore
simply asks to preserve the issue for possible federal review.
Victoria, 2012 WL 1453547, at *7.
Victoria’s claim is tenuous because he failed to request an instruction on the defense of
accident at trial. See Kibbe, 431 U.S. at 154 (“Orderly procedure requires that the respective
adversaries’ views as to how the jury should be instructed be presented to the trial judge in time
to enable him to deliver an accurate charge and to minimize the risk of committing reversible
error. It is the rare case in which an improper instruction will justify reversal of a criminal
conviction when no objection has been made in the trial court.” (footnotes omitted)). Victoria
must therefore establish that the failure to give the pinpoint instruction “so infected the entire
trial that the resulting conviction violates due process.” Id. (quoting Cupp, 414 U.S. at 147).
As already discussed, under Ninth Circuit authority, a criminal defendant is entitled to
have the court instruct the jury on his theory of defense, provided it is supported by law and has
foundation in the evidence. See Solis, 219 F.3d at 929. However, “it is not reversible error to
reject a defendant’s proposed instruction on his theory of the case if other instructions, in their
entirety, adequately cover that defense theory.” Duckett v. Godinez, 67 F.3d 734, 743 (9th Cir.
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1995) (quotation omitted). Moreover, even where a trial court errs in instructing the jury, habeas
relief will be granted only where a petitioner establishes that the error “had substantial and
injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamsom, 507 U.S.
619, 637 (1993).
The jury in Victoria’s case was instructed that in order to find him guilty of attempted
murder, the People must prove that he intended to kill Scaife, and that in order to find him guilty
of assault with a deadly weapon, the People must prove that he acted willfully. The jury was
further instructed that with respect to both charges, there must be a union of the act and wrongful
intent. When viewed as a whole, the instructions conveyed to the jurors that if they found that
Victoria did not have the requisite state of mind, which necessarily included consideration of
Victoria’s defense of accident, they could not find him guilty of those charges. Clearly the jury
did not accept Victoria’s accident defense for the crimes; thus, even if an accident or misfortune
instruction had been given, the verdict would have been the same. Victoria has therefore failed
to demonstrate that the absence of the pinpoint instruction had a substantial or injurious effect or
influence in determining the jury’s verdict. See Dawson v. Harrington, No. C 09-783, 2010 WL
5387699, at *7 (N.D. Cal. Dec. 20, 2010); Auten v. Gomez, 162 F.3d 1167, 1167 (9th Cir. 1998)
(unpublished disposition).
3.
Limiting instruction
Finally, Victoria argues that the trial court erred in giving a modified version of
CALCRIM No. 319, which instructed the jury that the Scaife’s extrajudicial statements to an
inmate, Reginald Blount, could not be considered as substantive evidence, and that trial counsel
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was ineffective for failing to object to the instruction. Victoria raised this claim on direct appeal,
and the Court of Appeal denied him relief:
With the assent of defense counsel (who admitted he could not draft a superior
version), the trial court instructed the jury on use of Scaife’s various extrajudicial
statements as follows: “[The victim] did not testify in this trial, but you heard testimony
as to statements he made to [the security guard] and [the nurse] as well as statements that
were made by [the victim] on a 911 call recording [sic; these appear to be the security
guard repeating his statements, not the victim himself]. You may use those statements as
proof that the information contained in them is true. [¶] You have also heard evidence
that [the victim] made other statements to [the inmate, Reginald Blount], [the initial
defense attorney,] and to [Victoria] on the recorded jail phone calls. If you conclude that
[the victim] made those [latter] statements, then you may consider them only in a limited
way. You may use them only in deciding whether to believe the [former] statements. . . .
You may not use those [latter] statements . . . as [substantive] evidence . . . [or] for any
other reason, unless the following exception applies . . . [:] [¶] . . . [Y]ou [may] consider
the statements made by [the victim] to [Victoria] on the jail phone call recordings as
[substantive] evidence . . . if you believe [the victim’s] statements resulted in an adoptive
admission by [Victoria],” then referencing a separate instruction on adoptive admissions.
[Victoria] concedes the principle underlying the instruction is correct. He
contends, however, that Scaife’s statements to the inmate should not have been limited to
corroborative use because they were statements against penal interest (Evid. Code,
§ 1230) and therefore admissible substantive evidence.
We will not break down the various components of the hearsay remarks to which
the inmate testified and determine which were and were not statements against penal
interest.FN4 The other recordings made clear that by the time Scaife encountered the
inmate, Scaife had already discussed with [Victoria] his intent and motive to fabricate an
exculpatory account of the stabbing. This vitiates any aura of trustworthiness, which is
necessary for their admission. (People v. Duarte (2000) 24 Cal. 4th 603, 614-615, 617618.) We are also convinced beyond a reasonable doubt that the admission as
substantive evidence of yet another version of the circumstances of the stabbing would
not have changed the outcome of the trial.
FN4. The inmate testified Scaife admitted he had exposed himself to Megan, had
taken the knife into the bathroom out of fear of [Victoria’s] reaction if she told
him, and had fallen on the knife after trying to stab [Victoria]. (See pp. 6-7, ante.)
Victoria, 2012 WL 1453547, at *7-8.
Claims of error in state jury instructions are generally a matter of state law that do not
usually invoke a constitutional question. Gilmore v. Taylor, 508 U.S. 333, 342-43 (1993).
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“Claims that merely challenge the correctness of jury instructions under state law cannot
reasonably be construed to allege a deprivation of federal rights.” Van Pilon v. Reed, 799 F.2d
1332, 1342 (9th Cir. 1986); see also Menendez v. Terhune, 422 F.3d 1012, 1029 (9th Cir. 2005)
(“Any error in the state court’s determination of whether state law allowed for an instruction
. . . cannot form the basis for federal habeas relief.”); Dunckhurst v. Deeds, 859 F.2d 110, 114
(9th Cir. 1988) (an instructional error “does not alone raise a ground cognizable in a federal
habeas corpus proceeding”). Thus, to the extent that Victoria contends that the limiting
instruction violated state law, such claim is not cognizable on federal habeas review.
On direct appeal, the appellate court determined that, in line with the California Evidence Code
and state case law, Scaife’s statements to the inmate were inadmissible. This Court is bound by
the state court’s interpretation of California state law that the statements were inadmissible.
Bradshaw, 546 U.S. at 76; Horton v. Mayle, 408 F.3d 570, 576 (9th Cir. 2005) (“If a state law
issue must be decided in order to decide a federal habeas claim, the state’s construction of its
own law is binding on the federal court.”).
Furthermore, even if the limiting instruction was erroneous, it was harmless. Brecht, 507
U.S. at 637-38. The evidence that Victoria stabbed Scaife was overwhelming, and thus, even if
the jury had been permitted to consider the inmate’s statement that Scaife claimed to have
incurred multiple stab wounds after falling on a knife, it is not likely that the jury would have
acquitted Victoria. Among other things, the security guard who tended to Scaife after the
incident testified that Scaife said that Victoria stabbed him. Scaife also told the nurse who
admitted him into the hospital that his roomate had stabbed him. Megan, Victoria’s Sacramento
girlfriend, witnessed most of the incident, and testified that Victoria was “really angry” after she
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told him that Scaife had just exposed himself to her, and she saw Victoria grab a knife from the
kitchen, walk into the bathroom where Scaife was drying off after his shower, and attack Scaife.
She covered her face during part of the attack, but then saw Victoria exit the bathroom, still
holding the knife. Scaife was still in the shower, and blood was “everywhere.” Victoria later
attempted to enlist Megan into covering up the incident, which is further evidence of his
consciousness of guilt. He first told Megan to tell the police that Scaife attempted to rape her,
that Scaife pulled a knife on Victoria in the bathroom, and that Victoria was merely attempting
to take the knife away from Scaife when Scaife was stabbed. Megan testified that, after Victoria
heard that Scaife would be cooperating with law enforcement, Victoria asked her to take the
blame for stabbing Scaife. Finally, the three-way phone calls, in which Scaife confronted
Victoria about the attack and agreed to lie to the police on his behalf in exchange for help in
getting back to Tennessee, were admitted into evidence. Given the evidence against Victoria, it
is not reasonably likely that, even if all of the inmate’s statements had been admitted for the truth
of the matter asserted, that the results of the proceeding would have been different. Victoria
therefore cannot prevail on any of his claims.
V. CONCLUSION AND ORDER
Victoria is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability. See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain
a certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree
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with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,
537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the
Ninth Circuit Court of Appeals. See FED. R. APP. P. 22(b); 9TH CIR. R. 22-1.
The Clerk of the Court is to enter judgment accordingly.
Dated: December 15, 2014.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
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