Benta v. Paramo

Filing 22

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 4/19/19 RECOMMENDING that petitioner's application for a writ of habeas corpus be denied 1 . F&R referred to District Judge John A. Mendez. Objections to F&R due within fourteen days. (Kaminski, H)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

MANUEL BENTA,

12

Petitioner,

13
14

No. 2:18-cv-0139 JAM KJN P

v.

FINDINGS & RECOMMENDATIONS

DANIEL PARAMO,

15

Respondent.

16
17

I. Introduction
Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of

18
19

habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2014 conviction for

20

attempted murder, for which he was sentenced to 45 years-to-life in state prison. Petitioner

21

claims that the trial court erred in refusing petitioner’s request for a pinpoint jury instruction on

22

provocation. After careful review of the record, this court concludes that the petition should be

23

denied.

24

II. Procedural History

25

On September 16, 2014, a jury found petitioner guilty of attempted murder, arson of an

26

inhabited structure, and arson of property. (Clerk’s Transcript (“CT”) 297-99; 346-48.) The jury

27

also found three special allegations to be true. (CT 300-02.) On October 14, 2014, petitioner was

28

sentenced to thirteen years plus thirty-two years-to-life in state prison. (CT 341; 346-48.)
1

1

Petitioner appealed the conviction to the California Court of Appeal, Third Appellate

2

District. On November 18, 2016, the Court of Appeal affirmed the conviction in a reasoned

3

decision. (Respondent’s Lodged Document (“LD”) 1.)

4
5

Petitioner filed a petition for review in the California Supreme Court, which was denied
on January 25, 2017. (LD 6.)

6
7

Petitioner filed the instant petition on January 2, 2018. (ECF No. 1.)
III. Factual Background1

8
9
10

In its unpublished memorandum and opinion affirming petitioner’s judgment of
conviction on appeal, the California Court of Appeal for the Third Appellate District provided the
following factual summary:

11

16

A jury convicted defendant Manuel Benta, Jr., of attempted murder
and found it was willful, deliberate, and premeditated. (Pen. Code,
§§ 664/187; count 1.) [FN 1] In connection with count 1, the jury
sustained allegations defendant intentionally and personally
discharged a firearm, causing great bodily injury (§ 12022.53, subd.
(d)), and personally inflicted great bodily injury (§ 12022.7). The
jury also convicted defendant of arson of an inhabited structure
(§ 451, subd. (b); count 2) and arson of property (§ 451, subd. (d);
count 3). In connection with count 2, the jury sustained the allegation
defendant used an accelerant to commit the arson. (§ 451.1, subd.
(a).)

17

[FN 1: Undesignated statutory references are to the Penal Code.]

18

Sentenced to state prison, defendant appeals. He contends the trial
court prejudicially erred in refusing his pinpoint instruction on
provocation and insufficient evidence supports the jury’s finding that
he used an accelerant. We affirm the judgment.

12
13
14
15

19
20

FACTS

21

Horace Randazzo met defendant through work in 2006. They became
friends and went fishing together. In 2008, Randazzo had to quit
working after having a heart attack. By 2011, he had lost contact with
defendant who left work to go to school. In September 2013,
Randazzo rented a house in the City of Shasta Lake. Shortly
thereafter, he saw defendant who explained he was getting a divorce
from his spouse who lived near Randazzo. Between 2006 and 2013,
Randazzo met defendant’s spouse five or six times. Defendant
accepted Randazzo’s invitation to live in Randazzo’s house and

22
23
24
25
26
27
28

1

The facts are taken from the opinion of the California Court of Appeal for the Third Appellate
District in People v. Manuel Benta, Jr., No. C077767 (Nov. 18, 2016), a copy of which was
lodged by respondent as LD 1 on April 11, 2018.
2

1

defendant helped put up a wall for a second bedroom.

2

On the morning of October 2, 2013, Randazzo’s vehicle had been
towed to a repair shop, so defendant gave Charlotte Pisano,
Randazzo’s girlfriend, a ride to another part of town. Defendant
returned 30 minutes to an hour later. Randazzo was in the bathroom,
washing his hands at the sink. Defendant approached Randazzo and
shot him in the back without warning. When Randazzo turned
around, he saw defendant with a semiautomatic gun that appeared
jammed and asked defendant, “What in the hell are you doing?”
Defendant responded, “I know you’re running away with my wife
after you pick up [the] car and that’s not gonna happen.” Randazzo
replied, “What the hell are you talking about?” Randazzo also replied
he had no interest in defendant’s spouse. Defendant aimed at
Randazzo’s head and Randazzo raised his right hand. Defendant
fired the gun and the bullet hit Randazzo’s hand. Defendant left,
closing the bathroom door behind him. Randazzo locked the
bathroom door and called 911 on his cell phone. Defendant mumbled
something to Randazzo through the door. Shortly thereafter,
Randazzo saw smoke coming under the bathroom door. Randazzo
was fearful defendant was still in the house so he did not open the
door. Instead, he tried unsuccessfully to open the bathroom window.
He broke the window with the handle of a toilet plunger and yelled
for help. Some people outside helped him get out of the house.
Randazzo was transported to the hospital where he remained for five
to seven days and had surgery on his hand. He faced one to three
more surgeries on his hand. The bullet remained in his back.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

Prior to the day of the shooting, Randazzo heard a tape recording
possessed by defendant. Randazzo disagreed with defendant’s
interpretation of the recording as that of defendant’s spouse having
sexual intercourse. Randazzo claimed all he heard was some rustling
leaves.
An officer who interviewed Randazzo at the hospital testified
Randazzo mentioned defendant’s spouse had come by the house at
8:15 a.m. that day, but did not come inside. Randazzo also stated,
after he had been shot in the back, defendant said, “Why are you
screwing my wife?” and, “I know you’re screwing my wife. You
guys are going to run away with the money.”

21
22
23
24
25
26
27
28

Defendant surrendered to the police not far from the burning house.
When interviewed by the police, defendant admitted shooting
Randazzo twice and would have continued to shoot but ran out of
bullets. Defendant also admitted he set Randazzo’s house on fire with
an accelerant. A recording of the interview was played for the jury.
Defendant obtained the gun he used to shoot Randazzo from his
spouse’s garage, and then set a fire in her garage. Defendant thought
his spouse and Randazzo were having an affair and that Randazzo
had been drugging him. Defendant claimed to have seen paperwork
which suggested to him Randazzo had plane tickets. Defendant
claimed his spouse had stopped by Randazzo’s house at 7:30 or 8:00
a.m. that morning on her way to work. Defendant spoke with her and
then confronted Randazzo, accusing him of being a law enforcement
officer and making him (defendant) believe he was under house
3

1

arrest. Randazzo denied it but defendant shot him anyway. Defendant
looked for an accelerant and “popped . . . open” a “couple of
accelerant cans” to set the house on fire. Defendant did not testify at
trial.

2
3

Defendant’s clothing was retrieved immediately after the crime.
According to a criminalist, the presence of methyl ethyl ketone, a
solvent (used as a cleaner and in lacquer thinners), was detected on
defendant’s clothing. The substance is an ignitable liquid, readily
started on fire, and could be used as an accelerant. At Randazzo’s
house, an aerosol can (a can of oven cleaner) used as an accelerant
was found hidden in a pile of towels, clothing and rags, in front of a
sofa in the living room, an area which had the most fire damage. A
trail of paint in the house did not burn. According to the fire
investigator, the house overall had moderate fire damage.

4
5
6
7
8
9

A pile of burned items and clothing were found in the detached
garage of the home of defendant’s spouse. The structure had smoke
damage throughout. Packed bags were found inside her house.

10
11

(People v. Benta, slip op. at 2-4.)

12

IV. Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a judgment of a

13
14

state court can be granted only for violations of the Constitution or laws of the United States. 28

15

U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or

16

application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502

17

U.S. 62, 67-68 (1991).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas

18
19

corpus relief:

20

An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim -

21
22

(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

23
24

(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.

25
26
27

28 U.S.C. § 2254(d).

28

////
4

For purposes of applying § 2254(d)(1), “clearly established federal law” consists of

1
2

holdings of the United States Supreme Court at the time of the last reasoned state court decision.

3

Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 132 S. Ct.

4

38, 44-45 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v.

5

Taylor, 529 U.S. 362, 412 (2000)). Circuit court precedent “may be persuasive in determining

6

what law is clearly established and whether a state court applied that law unreasonably.” Stanley,

7

633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit

8

precedent may not be “used to refine or sharpen a general principle of Supreme Court

9

jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced.” Marshall

10

v. Rodgers, 133 S. Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 132 S. Ct. 2148, 2155

11

(2012) (per curiam)). Nor may it be used to “determine whether a particular rule of law is so

12

widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court,

13

be accepted as correct. Id. Further, where courts of appeals have diverged in their treatment of

14

an issue, it cannot be said that there is “clearly established Federal law” governing that issue.

15

Carey v. Musladin, 549 U.S. 70, 77 (2006).

16

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

17

contradicting a holding of the Supreme Court or reaches a result different from Supreme Court

18

precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003).

19

Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the

20

writ if the state court identifies the correct governing legal principle from the Supreme Court’s

21

decisions, but unreasonably applies that principle to the facts of the prisoner’s case. 2 Lockyer v.

22

Andrade, 538 U.S. 63, 75 (2003); Williams v. Taylor, 529 U.S. at 413; Chia v. Cambra, 360 F.3d

23

997, 1002 (9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ simply

24

because that court concludes in its independent judgment that the relevant state-court decision

25

applied clearly established federal law erroneously or incorrectly. Rather, that application must

26

2

27
28

Under § 2254(d)(2), a state court decision based on a factual determination is not to be
overturned on factual grounds unless it is “objectively unreasonable in light of the evidence
presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford,
384 F.3d 628, 638 (9th Cir. 2004)).
5

1

also be unreasonable.” Williams v. Taylor, 529 U.S. at 411. See also Schriro v. Landrigan, 550

2

U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its

3

‘independent review of the legal question,’ is left with a ‘firm conviction’ that the state court was

4

‘erroneous.’”). “A state court’s determination that a claim lacks merit precludes federal habeas

5

relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s

6

decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541

7

U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal

8

court, a state prisoner must show that the state court’s ruling on the claim being presented in

9

federal court was so lacking in justification that there was an error well understood and

10

comprehended in existing law beyond any possibility for fair-minded disagreement.” Richter,

11

562 U.S. at 103.

12

If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing

13

court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford,

14

527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)

15

(en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of

16

§ 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by

17

considering de novo the constitutional issues raised.”).

18

The court looks to the last reasoned state court decision as the basis for the state court

19

judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).

20

If the last reasoned state court decision adopts or substantially incorporates the reasoning from a

21

previous state court decision, this court may consider both decisions to ascertain the reasoning of

22

the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When a

23

federal claim has been presented to a state court and the state court has denied relief, it may be

24

presumed that the state court adjudicated the claim on the merits in the absence of any indication

25

or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption

26

may be overcome by a showing “there is reason to think some other explanation for the state

27

court’s decision is more likely.” Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803

28

(1991)). Similarly, when a state court decision on petitioner’s claims rejects some claims but
6

1

does not expressly address a federal claim, a federal habeas court must presume, subject to

2

rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, 568 U.S. 289,

3

(2013) (citing Richter, 562 U.S. at 98). If a state court fails to adjudicate a component of the

4

petitioner’s federal claim, the component is reviewed de novo in federal court. Wiggins v. Smith,

5

539 U.S. 510, 534 (2003).

6

Where the state court reaches a decision on the merits but provides no reasoning to

7

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

8

whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.

9

Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo

10

review of the constitutional issue, but rather, the only method by which we can determine whether

11

a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no

12

reasoned decision is available, the habeas petitioner still has the burden of “showing there was no

13

reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98.

14

A summary denial is presumed to be a denial on the merits of the petitioner’s claims.

15

Stancle v. Clay, 692 F.3d 948, 957 & n.3 (9th Cir. 2012). While the federal court cannot analyze

16

just what the state court did when it issued a summary denial, the federal court must review the

17

state court record to determine whether there was any “reasonable basis for the state court to deny

18

relief.” Richter, 562 U.S. at 98. This court “must determine what arguments or theories . . . could

19

have supported the state court’s decision; and then it must ask whether it is possible fairminded

20

jurists could disagree that those arguments or theories are inconsistent with the holding in a prior

21

decision of [the Supreme] Court.” Id. at 101. The petitioner bears “the burden to demonstrate

22

that ‘there was no reasonable basis for the state court to deny relief.’” Walker v. Martel, 709 F.3d

23

925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98).

24

When it is clear, however, that a state court has not reached the merits of a petitioner’s

25

claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal

26

habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462

27

F.3d 1099, 1109 (9th Cir. 2006).

28

////
7

1

V. Alleged Jury Instruction Error

2

A. The Parties’ Positions

3
4

1. The Petition
Petitioner incorporates arguments made by defense counsel in the motion for new trial

5

filed in the trial court in 2014, as well as appellate counsel’s arguments contained in the petition

6

for review filed in the California Supreme Court. (ECF No. 1 at 8-10; 17-25.) Petitioner argued

7

that the trial court misdirected the jury in a matter of law because in refusing to instruct on

8

provocation, the jury was not provided the legal definition of provocation, resulting in the limited

9

application of the commonly understood definition of provocation as “caused by the victim,”

10

resulting in the attempted murder verdict because there was little evidence of the victim’s alleged

11

provocation adduced at trial. However, because the jury was not informed that provocation can

12

also derive from “conduct reasonably believed by the defendant to have been engaged in by the

13

victim,” the jury could not know that petitioner’s initial suspicions of an affair, seeing the

14

victim’s bags packed with an airline ticket out of town, visiting his wife and seeing her bags

15

packed as well, and his own statements as he shot the victim, could be viewed as evidence of

16

provocation. Because the theory of provocation was petitioner’s entire defense, he argued the

17

refusal to instruct on provocation prejudiced petitioner.

18

On appeal, petitioner contended that at trial he argued that the shooting was attempted

19

voluntary manslaughter, based on heat of passion. (ECF No. 1 at 17.) Although the trial court

20

instructed the jury on attempted voluntary manslaughter, it refused defense counsel’s request for a

21

pinpoint instruction on the question of provocation. The Court of Appeal rejected petitioner’s

22

argument, finding there was no basis for giving the attempted voluntary manslaughter instruction

23

at all because there was “no evidence [the victim] admitted that he was having an affair with

24

petitioner’s spouse or that [the victim] had been seen with [petitioner’s] spouse in compromising

25

circumstances.” (ECF No. 1 at 17.) Petitioner countered that the trial court’s focus should have

26

been the state of the mind of petitioner and whether he had formed the requisite intent, citing state

27

court decisions finding that provocation must be caused by the victim, or be conduct the

28

defendant reasonably believed the victim caused. (ECF No. 1 at 18.) Petitioner contended that
8

1

under the U.S. Constitution, he was “entitled to an instruction as to any recognized defense for

2

which there exists evidence sufficient for a reasonable jury to find in his favor.” (ECF No. 1 at

3

24, quoting Mathews v. United States, 485 U.S. 58, 63 (1998). Thus, he argues, the failure to

4

instruct on provocation was reversible error.

5

2. The Answer

6

Respondent counters that petitioner fails to demonstrate that the state court’s denial of this

7

claim was objectively unreasonable because there was no objective basis for petitioner’s

8

apparently sincere belief that his wife and the victim were having an affair. (ECF No. 16 at 11.)

9

To the extent petitioner argues he had a right to have the jury know they could convict him of

10

attempted voluntary manslaughter if they had a reasonable doubt as to his guilt for attempted

11

murder, such claim fails to present a federal constitutional question. (ECF No. 16 at 15, citing

12

Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Because petitioner’s proposed pinpoint jury

13

instruction was intended to expand on the lesser-included offense instruction given, respondent

14

argues that the refusal to give such pinpoint instructions fails to present a federal constitutional

15

claim. But even assuming petitioner had a constitutional right to the requested pinpoint

16

instruction, the court’s rejection of the claim was not objectively unreasonable because no

17

objective evidence was adduced at trial to support petitioner’s statements at the time of the crime.

18

(ECF No. 16 at 15.) Thus, respondent maintains that the state appellate court’s decision that

19

petitioner was not entitled to either an attempted voluntary manslaughter instruction or the

20

requested pinpoint instruction was reasonable. (ECF No. 16 at 16, citing see Menendez v.

21

Terhune, 422 F.3d 1012, 1029-30 (9th Cir. 2005) (no error under state law and therefore no due

22

process violation in failing to instruct on imperfect self-defense where there was insufficient

23

evidence to support the instruction).) Respondent notes that the state appellate court also found

24

the requested pinpoint instruction “was argumentative and potentially confusing because it related

25

only to the subjective component of provocation and did not address the objective component.”

26

(ECF No. 16 at 16.) Respondent argues that this court is bound by the state court’s rulings, citing

27

see Bradshaw v. Richey, 546 U.S. 74, 76 (2005); see also Medley v. Runnels, 506 F.3d 857, 862

28

(9th Cir. 2007). (ECF No. 16 at 16.) Finally, respondent argues that petitioner’s failure to
9

1

identify any Supreme Court case clearly establishing that petitioner has a constitutional right to an

2

instruction on a state law theory of defense that is not supported by the evidence renders

3

petitioner’s claim fatal. (Id.)
3. Petitioner’s Reply

4
5

Petitioner objects that all of the state courts focused on provocation by the victim rather

6

than on petitioner’s state of mind. He argues that the trial court found evidence that petitioner

7

believed his wife was having an affair with the victim and found there were facts to support

8

giving jury instruction CALCRIM No. 603: petitioner’s wife was at the victim’s residence early

9

that morning; and petitioner had infidelity on his mind when he pulled the trigger based on

10

comments he made while shooting. (ECF No. 20 at 2, citing RT 317.) Petitioner contends that

11

all of the state courts wrongfully ignored the second “or heat of passion” prong of California

12

Penal Code § 192(a) (voluntary manslaughter), instead focusing on the lack of sudden quarrel, the

13

first prong, thus eviscerating his defense.

14

Further, petitioner argues under state law, the trial court was required to instruct the jury

15

that the provocation which incited homicidal conduct in the heat of passion must be caused by the

16

victim or be conduct reasonably believed by the petitioner to have been engaged in by the victim.

17

(ECF No. 20 at 3.) Petitioner contends that such provocation instruction was supported by the

18

following evidence adduced through the victim’s testimony, as follows:

19

•

20
21

victim. (Id., citing RT 78.)
•

22
23

Petitioner stated “you’re running away with my wife,” when confronting the

Petitioner had a tape recording he thought demonstrated his wife was cheating on
him. (Id., citing RT 100-01.)

•

The victim told Detective Gardner that petitioner confronted the victim, petitioner

24

was screwing around with his wife, and that petitioner’s wife had come by the

25

victim’s house that morning. (Id., citing RT 131, 306-07.)

26

•

Petitioner asked the victim “why are you screwing my wife?” and then petitioner

27

said, “you guys are going to run away with the money.” (ECF No. 20 at 4, citing

28

RT 308, 309.)
10

1

•

Petitioner was “pissed” and in a “rage.” (Id., citing RT 138-40.)

2

Although the trial court instructed the jury on attempted voluntary manslaughter, which includes

3

an element that the defendant attempted the killing because he was provoked, petitioner objects

4

that the instruction does not provide for the situation where the defendant attempted the killing

5

because in his mind he felt provoked. (ECF No. 20 at 4.) Petitioner contends that the failure to

6

include such pinpoint instruction violates the Constitution, citing Chapman v. California, 386

7

U.S. 18, 24 (1967), and Strickland v. Washington, 466 U.S. 668, 693-94, 697, 698 (1984).

8

Petitioner argues that although the jury learned petitioner suspected the victim was having an

9

affair with petitioner’s wife, the jury was not properly instructed to enable them to evaluate the

10

affect of such suspicions on petitioner’s state of mind. (ECF No. 20 at 5.) Finally, petitioner

11

contends that respondent’s argument that the state court’s rejection of this claim was reasonable

12

fails because respondent and the state courts ignored the subjective component of the provocation

13

defense. (Id.) Petitioner contends that the requested provocation instruction could have

14

persuaded the jury of the defense theory by explaining how to evaluate petitioner’s state of mind

15

based on what he reasonably perceived to be the situation. (Id.)

16
17

4. State Court Decision
The last reasoned rejection of petitioner’s first claim is the decision of the California

18

Court of Appeal for the Third Appellate District on petitioner’s direct appeal. The state court

19

addressed this claim as follows:

20
21
22
23
24
25
26
27
28

Defendant contends the trial court prejudicially erred in refusing to
give his special instruction which further defined provocation. He
argues the special instruction pinpointed his defense. We conclude
the trial court did not err in refusing the special instruction.
Background
Over the prosecutor’s objection, the trial court instructed the jury in
the language of CALCRIM No. 603, which instructed the jury the
crime of attempted murder was reduced to attempted voluntary
manslaughter if committed in the heat of passion arising from
provocation. [FN 2] Defendant sought, and the prosecutor opposed,
an additional, special instruction which stated: “The provocation
which incites the defendant to homicidal conduct in the heat of
passion must be caused by the victim, or be conduct reasonably
believed by the defendant to have been engaged in by the victim.”
The court refused to give the special instruction, concluding it was
11

1

duplicative of CALCRIM No. 603, potentially confusing, and
“maybe even not supported by substantial evidence.”

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

[FN 2: The court instructed the jury in the language of CALCRIM
No. 603 as follows:
“An attempted killing that would otherwise be attempted murder is
reduced to attempted voluntary manslaughter if the defendant
attempted to kill someone because of a sudden quarrel or in the heat
of passion.
“The defendant attempted to kill someone because of a sudden
quarrel or in the heat of passion if: One, the defendant took at least
one direct but ineffective step toward killing a person; two, the
defendant intended to kill that person; three, the defendant attempted
the killing because he was provoked; four, the provocation would
have caused a person of average disposition to act rashly and without
due deliberation, that is, from a passion rather than from judgment;
and five, the attempted killing was a rash act done under the influence
of intense emotional -- of intense emotion that obscured the
defendant's reasoning or judgment.
“Heat of passion does not require anger, rage, or any specific
emotion. It could be any violent or intense emotion that causes a
person to act without due deliberation and reflection. In order for a
sudden quarrel or heat of passion to reduce an attempted murder to
attempted manslaughter, the defendant must have acted under the
direct and immediate influence of provocation as I have defined it.
“Although no specific type of provocation is required, slight or
remote provocation is not sufficient. Sufficient provocation may
occur over a short or long period of time. It's not enough that the
defendant simply was provoked. The defendant is not allowed to set
up his own standard of conduct. You must decide whether the
defendant was provoked and whether the provocation was sufficient.
“In deciding whether the provocation was sufficient, consider
whether a person of average disposition in the same situation and
knowing the same facts would have reacted from passion rather than
from judgment.
“If enough time passed between the provocation and the attempted
killing for a person of average disposition to, quote, unquote, cool
off and regain his or her clear reasoning and judgment, then the
attempted murder is not reduced to attempted voluntary
manslaughter on this basis.
“The People have the burden of proving beyond a reasonable doubt
that the defendant attempted to kill someone and was not acting as a
result of sudden quarrel or in the heat of passion. If the People have
not met this burden, you must find the defendant not guilty of
attempted murder.”]

27
28
12

1

Analysis

2

In reviewing a claim of instructional error, we determine the
correctness of the instructions from the entire charge, rather than
parts of an instruction or a particular instruction in isolation. (People
v. Rogers (2009) 46 Cal.4th 1136, 1177.)

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Upon request, a defendant is entitled to an instruction that pinpoints
the defense theory. (People v. Gutierrez (2002) 28 Cal.4th 1083,
1142.) A pinpoint instruction “‘relate[s] particular facts to a legal
issue’” and “‘“pinpoint[s]” the crux of a defendant’s case.’” (People
v. Gutierrez (2009) 45 Cal.4th 789, 824.) A trial court is not required
to give a pinpoint instruction that is argumentative, duplicative, or
not supported by the evidence. (People v. Harris (2013) 57 Cal.4th
804, 853; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99.)
“Manslaughter is a lesser included offense of murder. [Citations.]
The mens rea element required for murder is a state of mind
constituting either express or implied malice. A person who kills
without malice does not commit murder. Heat of passion is a mental
state that precludes the formation of malice and reduces an unlawful
killing from murder to manslaughter. Heat of passion arises if, ‘“at
the time of the killing, the reason of the accused was obscured or
disturbed by passion to such an extent as would cause the ordinarily
reasonable person of average disposition to act rashly and without
deliberation and reflection, and from such passion rather than from
judgment.”’[Citation.] Heat of passion, then, is a state of mind
caused by legally sufficient provocation that causes a person to act,
not out of rational thought but out of unconsidered reaction to the
provocation. While some measure of thought is required to form
either an intent to kill or a conscious disregard for human life, [i.e.,
express or implied malice,] a person who acts without reflection in
response to adequate provocation does not act with malice.” (People
v. Beltran (2013) 56 Cal.4th 935, 942, fn. omitted.)
“The heat of passion requirement for manslaughter has both an
objective and a subjective component. [Citation.] The defendant
must actually, subjectively, kill under the heat of passion. [Citation.]
But the circumstances giving rise to the heat of passion are also
viewed objectively. As we explained long ago in interpreting the
same language of section 192, ‘this heat of passion must be such a
passion as would naturally be aroused in the mind of an ordinarily
reasonable person under the given facts and circumstances,’ because
‘no defendant may set up his own standard of conduct and justify or
excuse himself because in fact his passions were aroused, unless
further the jury believe that the facts and circumstances were
sufficient to arouse the passions of the ordinarily reasonable man.’
[Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253
(Steele).) “‘To satisfy the objective or “reasonable person” element
of this form of voluntary manslaughter, the accused’s heat of passion
must be due to “sufficient provocation.”’[Citation.]” (Id. at p. 1253.)
Here, there was no evidence that Randazzo, by words or conduct,
provoked defendant. There was no evidence Randazzo admitted that
he was having an affair with defendant’s spouse or similar words or
13

1
2
3
4
5
6
7

that Randazzo had been seen with defendant’s spouse in
compromising circumstances. Defendant had no reasonable basis to
believe Randazzo was engaged in an affair with defendant’s spouse.
While defendant claimed he believed Randazzo was having an affair
with defendant’s spouse, “the circumstances giving rise to the heat
of passion are also viewed objectively.” (Steele, supra, 27 Cal.4th at
p. 1252.) There was also no evidence Randazzo had set defendant up
for an arrest. Although defendant claimed he believed Randazzo had
set him up for an arrest, the evidence did not establish the objective
component of provocation necessary for conviction of attempted
voluntary manslaughter. There was simply no evidence Randazzo
had provoked defendant. Defendant appears to have acted on
baseless assumptions in his own mind, which will not reduce
attempted murder to attempted voluntary manslaughter.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The evidence did not show provocation but the trial court instructed
the jury anyway on heat of passion attempted voluntary
manslaughter. The trial court instructed the jury with CALCRIM No.
603, which explains that when the defendant attempts to kill another
under a heat of passion arising from a provocation that would have
caused a person of average disposition to act rashly with intense
emotion, the attempted killing may constitute attempted voluntary
manslaughter because the heat of passion negates the malice element
required for murder. Notwithstanding the lack of evidence, defendant
requested an additional pinpoint instruction: “The provocation which
incites the defendant to homicidal conduct in the heat of passion must
be caused by the victim [citation], or be conduct reasonably believed
by the defendant to have been engaged in by the victim. [Citations.]”
This language is from People v. Lee (1999) 20 Cal.4th 47 at page 59
(Lee) (see also People v. Moye (2009) 47 Cal.4th 537, 549-550). But
this is only part of the heat of passion requirement and relates to the
subjective component. Lee continues: “The provocative conduct by
the victim may be physical or verbal, but the conduct must be
sufficiently provocative that it would cause an ordinary person of
average disposition to act rashly or without due deliberation and
reflection. [Citations.]” (Lee, supra, at p. 59.) This part relates to the
objective component which was not included in defendant’s
requested additional pinpoint instruction and, as such, was
argumentative and potentially confusing, as the trial court found,
since the standard instruction included the objective component and
the additional pinpoint did not.
Since no reasonable jury would have concluded defendant
reasonably believed Randazzo provoked him, he was not entitled to
an instruction on attempted voluntary manslaughter, let alone a
special instruction further defining provocation. “Thus, although the
trial court instructed the jury on heat of passion voluntary
manslaughter out of caution, it did not have to do so, as no evidence
supported the instructions. Accordingly, the court did not have to
give yet more instructions on the point. [Citation.]” (Steele, supra,
27 Cal.4th at pp. 1253-1254.)
Even if we were to assume the trial court should have given the
additional special instruction concerning provocation, it would have
been of no consequence because there was no prejudice. To
14

1
2
3
4
5
6
7
8
9
10
11
12
13

determine the probability that the pinpoint instruction would have
achieved a different outcome, we review the instructions given in this
case. The instruction on attempted voluntary manslaughter provided,
in relevant part, that “[t]he provocation would have caused a person
of average disposition to act rashly and without due deliberation, that
is, from passion rather than from judgment” and that “[t]he attempted
killing was a rash act done under the influence of intense emotion
that obscured the defendant’s reasoning or judgment.” Further, the
instruction on attempted murder provided “[a] decision to kill made
rashly, impulsively, or without careful consideration of the choice
and its consequences is not deliberate and premeditated.” Any error
from refusing the special instruction would be harmless since the jury
was not precluded from finding adequate provocation from
Randazzo. In determining the attempted murder was deliberate and
premeditated, the jury decided the issue against defendant, which is
not surprising since there was no evidence, when viewed objectively,
Randazzo, by words or conduct, provoked defendant.
The trial court did not err in refusing the special instruction.
Moreover, defendant’s contention fails because he has not
demonstrated prejudice. Even if his special instruction had been
given, it is not reasonably probable he would have received a more
favorable result.
(People v. Benta, slip op. at 4-9.)

14

A criminal defendant is entitled to jury instructions that present the crux of his defense.

15

See Bradley v. Duncan, 315 F.3d 1091, 1098-99 (9th Cir. 2002). In addition, a trial judge must

16

properly instruct the jury regarding the law and all of the elements of the crime. See Hennessy v.

17

Goldsmith, 929 F.2d 511, 514 (9th Cir. 1991). However, there is no entitlement to tailor-made

18

instructions that pinpoint certain aspects of the defense. “‘So long as the instructions fairly and

19

adequately cover the issues presented, the judge’s formulation of those instructions or choice of

20

language is a matter of discretion.’” United States v. Hernandez-Escarsega, 886 F.2d 1560, 1570

21

(9th Cir. 1989) (quoting United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985))); see

22

also United States v. Del Muro, 87 F.3d 1078, 1081 (9th Cir. 1996); Duckett v. Godinez, 67 F.3d

23

734, 743 (9th Cir. 1995) (“it is not reversible error to reject a defendant’s proposed instruction on

24

his theory of the case if other instructions, in their entirety, adequately cover the defense theory”).

25

The decision whether to give special jury instructions lies within the discretion of the judge, so

26

long as the instructions given encompass the defense theory. See United States v. Hurd, 642 F.2d

27

1179, 1181-82 (9th Cir. 1981).

28
15

1

Here, the state appellate court rejected petitioner’s claim of instructional error, finding that

2

the evidence did not even support an attempted voluntary manslaughter instruction, and that any

3

error in the trial court’s failure to provide the expanded instruction was harmless in any event.

4

This court defers to the appellate court’s finding that there was insufficient evidence to support

5

such lesser-included offense. See, e.g., Wainwright v. Goode, 464 U.S. 78, 84 (1983) (federal

6

court is bound by state court’s interpretations of state law); Bains v. Cambra, 204 F.3d 964, 972

7

(9th Cir. 2000) (“a federal court is bound by the state court's interpretations of state law.”).

8

Therefore, while petitioner may be entitled to an instruction on his theory of defense if there is a

9

sufficient legal and evidentiary basis to support it, the state court found that the trial evidence did

10

not support such theory. See United States v. Dixon, 201 F.3d 1223, 1231 (9th Cir. 2000) (“a

11

defendant is not entitled to any particular form of an instruction, so long as the instructions given

12

fairly and adequately cover his theories of defense.”); United States v. Morton, 999 F.2d 435, 437

13

(9th Cir. 1993) (a “mere scintilla” of evidence supporting the defendant’s theory is not sufficient

14

to warrant a defense instruction) (citing United States v. Jackson, 726 F.2d 1466, 1468 (9th Cir.

15

1984)). If the given jury instructions, in toto, cover the defense theory, it is not reversible error

16

for the trial court to reject the defendant’s proposed instruction on the defense theory. Duckett,

17

67 F.3d at 743; United States v. Mason, 902 F.2d 1434, 1438 (9th Cir. 1990).

18

Nevertheless, aside from the question of the sufficiency of the evidence in support of an

19

attempted voluntary manslaughter instruction, petitioner fails to cite any United States Supreme

20

Court authority finding that a trial court errs by failing to give a pinpoint instruction where, as

21

here, the jury received broader instructions on the criminal offense and defense thereto. To the

22

contrary, the Supreme Court rejected a claim that “the omission of more complete instructions”

23

on one of the elements of the charged offense rendered a trial fundamentally unfair. Henderson v.

24

Kibbe, 431 U.S. 145, 156 (1977).

25

Petitioner’s request to expand on the attempted voluntary manslaughter instruction by

26

defining provocation attempted to relate particular facts to an element of the charged crime and

27

therefore was not an instruction of the offense, but rather an attempt to raise a reasonable doubt as

28

to an element of the charged crime – in this case, the deliberation and premeditation necessary for
16

1

a finding of attempted murder. Here, the jury was instructed on the elements of attempted

2

murder, including the definition of deliberation and malice aforethought necessary for a finding

3

of attempted murder. (RT 370, 380, 384-85.) Such instructions clearly informed the jury that it

4

could not find premeditation and deliberation if the jury believed petitioner’s decision to kill was

5

made “rashly, impulsively, or without careful consideration of the choice and its consequences.”

6

(RT 385.) An attempted murder committed in response to heat of passion in response to

7

provocation is an example of an attempted murder committed rashly, impulsively, or without

8

careful consideration. The instructions given informed the jury that it could consider provocation

9

evidence to determine whether petitioner had not acted with premeditation and deliberation, but

10

instead attempted to kill the victim impulsively or without careful consideration, such that the

11

attempted offense was attempted voluntary manslaughter, not attempted murder.

12

Moreover, petitioner’s jurors were instructed on the issues relating to petitioner’s defense

13

theory that he was provoked to shoot the victim in the heat of passion because petitioner believed

14

that the victim was having an affair with petitioner’s wife. Over the prosecution’s objection, the

15

jury was instructed that they could reduce the attempted murder crime to attempted voluntary

16

manslaughter if the jury found that petitioner committed the crime in the heat of passion arising

17

from provocation. (RT 386.) The jury was instructed that the prosecution had the burden of

18

proving beyond a reasonable doubt that petitioner attempted to kill someone and was not acting as

19

a result of the heat of passion, and that if the prosecution did not meet such burden, the jury must

20

find petitioner not guilty of attempted murder. (RT 387.) The jurors were instructed concerning

21

the relationship between the charged crime of attempted murder and the lesser-included offense

22

of attempted voluntary manslaughter. (RT 390.) The jury was instructed that they could not find

23

petitioner guilty of both crimes and could only find petitioner guilty of attempted voluntary

24

manslaughter if the jury found him not guilty of attempted murder. (RT 390-91.) The jury was

25

again reminded that the prosecution must prove its case beyond a reasonable doubt. (RT 392.)

26

All of the above instructions encompassed and explained petitioner’s defense theory and the law

27

regarding attempted murder and attempted voluntary manslaughter.

28

////
17

1

Finally, under the instructions given, petitioner’s counsel was not precluded from arguing

2

a mental state defense bearing on whether the prosecution had proven the elements of

3

premeditation and deliberation. (See, e.g., RT 419, 422-23; 424; 428; 433.) In closing argument,

4

defense counsel argued all of the facts that petitioner contends demonstrate provocation. (RT

5

418-20.) Defense counsel also argued that if petitioner reasonably believed in his own mind that

6

the victim was engaged in cheating, that was enough to find attempted voluntary manslaughter.

7

(RT 422.)

8
9

Therefore, the trial court’s decision not to give an additional instruction on provocation
that was “duplicative, potentially confusing,” and perhaps “not supported by substantial

10

evidence” (RT 349), or “argumentative” as found by the state appellate court, did not render

11

petitioner’s trial fundamentally unfair. See Henderson v. Kibbe, 431 U.S. at 156; see also United

12

States v. Sarno, 73 F.3d 1470, 1485 (9th Cir. 1995), cert. denied, 518 U.S. 1020 (1996) (failure to

13

give “an otherwise proper ‘theory of the defense’ instruction” will be affirmed “if the instructions

14

actually given, taken as a whole, adequately encompass the defendant’s theory”). For all of the

15

above reasons, this court finds that the trial court’s refusal to give petitioner’s proposed

16

modification to CALCRIM No. 603 was not contrary to, or an unreasonable application of,

17

clearly established federal law. Accordingly, petitioner is not entitled to relief on this claim.

18

VI. Conclusion

19
20

Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of
habeas corpus be denied.

21

These findings and recommendations are submitted to the United States District Judge

22

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

23

after being served with these findings and recommendations, any party may file written

24

objections with the court and serve a copy on all parties. Such a document should be captioned

25

“Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections,

26

he shall also address whether a certificate of appealability should issue and, if so, why and as to

27

which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the

28

applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
18

1

§ 2253(c)(3). Any response to the objections shall be filed and served within fourteen days after

2

service of the objections. The parties are advised that failure to file objections within the

3

specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

4

F.2d 1153 (9th Cir. 1991).

5

Dated: April 19, 2019

6
7
8
/bent0139.157

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
19