Colleen Mary Rohan, et al v. Jill Brown, et al

Filing 808

ORDER DENYING CLAIMS 6A, 6B, AND 7 by Judge William Alsup denying 798 Motion Habeas Relief on Claims 6A, 6B, and 7. Joint Status Report due by 4/17/2017. (dl, COURT STAFF) (Filed on 3/27/2017) Modified on 3/27/2017 (dl, COURT STAFF).

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 OSCAR GATES, No. C 88-2779 WHA Petitioner, 11 DEATH PENALTY CASE United States District Court Northern District of California v. 12 13 RON DAVIS, Warden, San Quentin State Prison 14 ORDER DENYING CLAIMS 6A, 6B, AND 7 Respondent. 15 INTRODUCTION 16 A jury convicted petitioner, Oscar Gates, in 1981 of, inter alia, murder (Cal. Penal Code 17 187(a)), accompanied by the robbery-murder special circumstance (Section 190.2 (a)(17)(A)), two 18 counts of robbery (Section 211), assault with a deadly weapon (Section 245(a)), possession of a 19 firearm by an ex-felon (Section 12021), and escape (Section 4532(b)). He seeks a writ of habeas 20 corpus under Section 2254, and the parties have now briefed three of the many claims in the 21 petition. Petitioner requests that if relief is not granted, a ruling on the claims be deferred until he 22 can file his motion for evidentiary hearing, which would include a request for hearing on these 23 claims. He also argues that these claims are inextricably interwoven with Claims 8D, 12, and 13, 24 which either have not been briefed or have been deferred pending submission of a motion for 25 evidentiary hearing, and that such interconnection warrants a delayed ruling. Because these 26 claims can be decided on the record before the state court, Claims 6A, 6B and 7 are DENIED for 27 the following reasons. 28 // STATEMENT 1 2 On December 10, 1979, Maurice Stevenson and his uncle, Lonnie Stevenson, waxed his 3 car in front of Maurice’s grandfather’s house in Oakland at about 3:30 p.m. Petitioner appeared, 4 holding a gun with the hammer cocked. Petitioner herded Maurice and Lonnie to the side of the 5 house and ordered them to put their hands on the wall, empty their pockets, and remove their 6 jewelry. After Maurice and Lonnie complied, petitioner frisked them, then asked Maurice as to 7 the whereabouts of Maurice’s father, James Stevenson. Maurice replied that he did not know. 8 Petitioner replied that he planned to kill them. Petitioner first shot Lonnie, who yelled for his 9 father and started running toward the back of the house, then shot Maurice, picked up the money with some of the jewelry, and fled. Lonnie died but Maurice survived. Some time after the 11 United States District Court Northern District of California 10 shooting, petitioner called Jimmy Stevenson, Maurice’s grandfather, to say that he had killed 12 Lonnie and shot Maurice, that he intended to go to Los Angeles to kill members of another family, 13 and that when he returned he would finish killing off the Stevenson family. On December 29, 14 1979, police arrested petitioner in Vallejo with the gun used to kill Lonnie. See People v. Gates, 15 43 Cal.3d 1168, 1176-78 (1987). 16 On January 4, 1980, a grand jury indicted petitioner in Alameda County. The indictment 17 charged petitioner with murder (Cal. Penal Code § 187(a)), accompanied by the robbery-murder 18 special circumstance (§ 190.2 (a)(17)(A)), two counts of robbery (§ 211), assault with a deadly 19 weapon (§ 245(a)), possession of a firearm by an ex-felon (§ 12021), and escape (§ 4532(b)), 20 among other things. Petitioner pled not guilty. The trial began on March 16, 1981. At trial, 21 petitioner asserted a claim-of-right defense. He testified about a so-called “Stevenson family 22 forgery ring,” purportedly headed by James Stevenson and Donald “Duck” Taylor, and of which, 23 Lonnie and Maurice Stevenson, Melvin Hines and petitioner were all members. A dispute arose 24 when petitioner did not receive his “big cut” of $25,000 allegedly promised to him. 25 Trial testimony also revealed that, in September 1979, a heated argument between 26 petitioner and other members of the forgery ring led to Maurice and James Stevenson shooting 27 petitioner, resulting in a gunshot wound to petitioner’s leg. Thereafter, petitioner learned through 28 intermediaries that he would have to give up his claim to the money or he would be shot again. 2 1 Petitioner told a different story to the jury. 2 Petitioner testified that he made arrangements by phone with Lonnie to pick up the money 3 owed to him at Jimmy’s house on December 10, 1979, at about 3:00 p.m. According to petitioner, 4 he arrived at Jimmy’s house, where he saw Maurice and Lonnie outside waxing a car. Petitioner 5 testified that he told Maurice and Lonnie that he wanted his money, that he didn’t want any 6 trouble, and that he had a gun and could take care of himself. As the three men made their way 7 around the side of the house, petitioner became suspicious by some of Maurice and Lonnie’s 8 actions, so he patted them down for weapons. After finding none, the three men continued toward 9 the back of the house where petitioner saw Jimmy holding a gun. Gunfire erupted. Lonnie and 10 United States District Court Northern District of California 11 12 Maurice were shot. Petitioner fled. On May 6, 1981, the jury convicted petitioner of all charges and found the special circumstance allegation to be true. 13 At the penalty phase, the prosecution presented, as evidence in aggravation, evidence of 14 petitioner’s convictions for robbery and for two assaults in connection with a 1978 robbery of a 15 McDonald’s restaurant, a 1973 conviction for rape, and a 1973 conviction for kidnapping. The 16 prosecution also presented evidence of petitioner’s involvement in a 1978 assault and robbery of 17 two women at a Los Angeles mortuary, which had resulted in the death of one of the women. A 18 jury later convicted petitioner of the Los Angeles mortuary crimes in a separate trial. 19 The case in mitigation consisted of testimony by several of petitioner’s family members, 20 several apartment neighbors, and a clinical psychologist. Petitioner’s family members described 21 the racially segregated environment in which petitioner grew up in Belzoni, Mississippi. They 22 testified that petitioner never got into in any trouble until an incident at a Western Auto Store 23 when he was approximately 14 to 16 years old; the incident, which apparently involved petitioner, 24 an African-American, striking a white woman who had struck him first, resulted in petitioner 25 spending six months in jail and becoming a target of police harassment and suspicion for any 26 problem that arose thereafter. Petitioner’s mother also testified that she visited petitioner in 27 California in 1973 at a jail hospital after he had been beaten by the police. Petitioner’s neighbors 28 described petitioner as a friendly, sweet, considerate, good-hearted, good-natured person who 3 1 never got angry and got along well with people. Dr. Paul Berg, a clinical psychologist, testified 2 that petitioner was “an unusually well-adjusted prisoner” and most likely would not present a 3 problem in prison. See Gates, 43 Ca1.3d at 1193-97. On May 28, 1981, the jury returned with a 4 verdict of death for petitioner. * * * 5 6 The California Supreme Court affirmed petitioner’s conviction and sentence on direct 7 appeal on October 15, 1987. Gates, 43 Ca1.3d at 1168. On May 23, 1988, the 8 United States Supreme Court denied a petition for certiorari. Gates v. California, 486 U.S. 9 1027 (1988). 10 Subsequent state and federal habeas proceedings ensued, with a primary focus on, inter United States District Court Northern District of California 11 alia, petitioner’s competency. This Court decided to move forward with the case despite 12 Petitioner’s mental problems, but the Court of Appeals directed the Court to stay the matter. 13 A 2004 order, therefore, stayed this matter, as required by Rohan ex. rel. Gates v. Woodford 14 (“Gates II”), 334 F.3d 803 (9th Cir. 2003). At that time, all counsel agreed that petitioner was 15 incompetent to assist counsel. 16 Nine years passed. 17 On January 8, 2013, the Supreme Court decided Ryan v. Gonzales, __ U.S. __, 133 S.Ct. 18 696, 706-709 (2013), abrogating Gates II and holding that an incompetent capital prisoner has no 19 right to an indefinite stay of habeas proceedings. Ryan held that while the district court retains the 20 discretion to grant a temporary stay, it should not enter an indefinite stay if the petitioner 21 reasonably cannot be expected to regain competence in the foreseeable future. Ibid. 22 Pursuant to Ryan, this Court lifted the stay. The parties engaged in settlement proceedings 23 with Magistrate Judge Beeler without success. In addition, the Court ordered proceedings on the 24 merits of petitioner’s federal habeas proceedings to re-commence, and subsequently addressed 25 numerous claims on the merits (Dkt. No. 715). Recognizing that petitioner’s competency still 26 presented an issue, the Court appointed independent expert Dr. Jessica Ferranti to examine 27 petitioner (Dkt. No. 740). Dr. Ferranti concluded that, as the result of mental disorder, petitioner 28 is incompetent, i.e., that he does not have the capacity to make rational choices with respect to his 4 1 Court proceedings or to communicate rationally with his attorneys (Ferranti Report at 16-18). 2 Both sides agreed that petitioner lacks competency to assist counsel. Under Ryan, however, 3 incompetency no longer constitutes grounds to stay the matter indefinitely. Petitioner 4 subsequently filed a motion to stay pending compulsory restoration proceedings; the Court denied 5 petitioner’s motion and ordered consideration of petitioner’s claims on the merits to continue (Dkt. 6 No. 775). Several claims have since been denied or deferred pending the filing of a motion for an 7 evidentiary hearing (Dkt. Nos. 777, 794). ANALYSIS 8 Because petitioner filed his initial federal habeas petition before the effective date of the 9 Antiterrorism and Effective Death Penalty Act of 1996, pre-AEDPA standards apply to all of 11 United States District Court Northern District of California 10 petitioner’s claims, even those added by amendment after AEDPA’s effective date. See Thomas v. 12 Chappell, 678 F.3d 1086, 1100-01 (9th Cir. 2012). Under those standards, we must “presume that 13 the state court’s findings of historical fact are correct and defer to those findings in the absence of 14 convincing evidence to the contrary or a demonstrated lack of fair support in the record.” 15 Mayfield v. Woodford, 270 F.3d 915, 922 (9th Cir. 2001) (internal quotation marks omitted) 16 (citing 28 U.S.C. 2254(d) (1994)). State court determinations with respect to mixed questions of 17 law and fact are reviewed de novo. Ibid. Pure questions of law are reviewed de novo. Ibid. 18 Ultimately, petitioner holds the burden to prove a constitutional error by a preponderance of the 19 evidence. McKenzie v. McCormick, 27 F.3d 1415, 1418-19 (9th Cir. 1994) (abrogation on other 20 grounds recognized by Sivak v. Hardison, 658 F.3d 898, 922 (9th Cir. 2011). 21 1. 22 REQUEST FOR DEFERRED RULING In his briefing, petitioner requests relief on Claims 6A, 6B, and 7, or a postponement on 23 these claims for further factual development. And, counsel says these claims are interwoven with 24 claims for prosecutorial misconduct and ineffective assistance of counsel (Br. on Merits at 1-3). 25 Where issues can be resolved by reference to the state court record, an evidentiary hearing is not 26 required. See Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998). Claims 6A, 6B, and 7 are 27 straightforward evidentiary and jury instruction claims. They can be resolved based on the state 28 court record. 5 Additionally, the claims are not so interwoven with the prosecutorial misconduct and 1 2 ineffective assistance of counsel claims that a decision on them must be delayed pending a 3 decision on claims 8D, 12, and 13. 4 2. CLAIM 6A Claim 6A argues that the trial court’s exclusion of crucial defense testimony in the guilt 5 6 phase violated his rights to testify, to receive a fair trial, to present a defense, to a jury trial, to due 7 process, and to heightened capital case due process in violation of the Fifth, Sixth, Eighth, and 8 Fourteenth Amendments. Specifically, petitioner challenges the trial court’s refusal to allow him 9 or defense witness Joseph Lombard, a neighbor of petitioner, to testify that petitioner believed that the Stevensons owed him money, that the Stevensons acknowledged this fact in front of both 11 United States District Court Northern District of California 10 petitioner and Mr. Lombard, and that the Stevensons put out a contract on petitioner’s life and 12 intended to set up petitioner on false criminal charges. This evidence, Claim 6A concludes, would 13 have supported both of his defenses: self-defense and claim-of-right. “[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules 14 15 excluding evidence from criminal trials.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) 16 (alteration in original) (internal quotation marks omitted). “While the Constitution prohibits the 17 exclusion of defense evidence under rules that serve no legitimate purpose or that are 18 disproportionate to the ends that they are asserted to promote, well-established rules of evidence 19 permit trial judges to exclude evidence if its probative value is outweighed by certain other factors 20 such as unfair prejudice, confusion of the issues, or potential to mislead the jury.” Id. at 325-26; 21 see Montana v. Egelhoff, 518 U.S. 37, 42 (1996) (holding that the exclusion of evidence does not 22 violate due process unless “it offends some principle of justice so rooted in the traditions and 23 conscience of our people as to be ranked as fundamental”). A petitioner, not the state, bears the 24 burden to demonstrate that the principle violated by the evidentiary rule “is so rooted in the 25 traditions and conscience of our people as to be ranked as fundamental.” Egelhoff, 518 U.S. at 47 26 (internal quotation marks omitted). 27 // 28 // 6 1 A. Claim-of-Right Defense 2 Petitioner predicates his subclaim on his belief that California law entitled him to present a 3 claim-of-right defense to the robbery charge under People v. Butler, 65 Cal.2d 569, 573 (1967) 4 (“bona fide belief, even though mistakenly held, that one has a right or claim to the property 5 negates felonious intent”). On appeal, the California Supreme Court held that petitioner did not 6 fall within the ambit of Butler because petitioner’s belief that the victims owed him money 7 stemmed from their mutual participation in a forgery ring and, “[a]s a matter of law, one cannot 8 have a good faith belief that he has a right to property when that ‘right’ is rooted in a notoriously 9 illegal transaction.” Gates, 43 Cal.3d at 1182. That determination binds this Court. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (a state court’s interpretation of state law, including 11 United States District Court Northern District of California 10 one announced on direct appeal of the challenged conviction, binds a federal court on habeas 12 review). Petitioner provides no authority to show that he would be entitled to present a claim-of- 13 right defense or that the exclusion of this evidence violated his constitutional rights. Additionally, 14 petitioner cannot have been prejudiced by the exclusion of any evidence supporting a claim-of- 15 right defense because state law did not entitle petitioner to present such a defense. Brecht v. 16 Abrahamson, 507 U.S. 619, 623 (1993). Thus, this portion of Claim 6A is DENIED. 17 B. Self-Defense 18 Petitioner also asserts that the excluded evidence comprised an essential component of 19 proving self-defense or imperfect self-defense. Specifically, petitioner challenges (1) the 20 exclusion of Mr. Lombard’s testimony regarding an argument he overheard between petitioner and 21 members of the forgery ring that occurred four to five days prior to the September argument 22 wherein the Stevensons shot petitioner; (2) Mr. Lombard’s testimony that, following the overheard 23 argument, petitioner stated he believed the Stevensons owed him money and they intended to 24 cheat him of his portion; and (3) petitioner’s own testimony that before he went to see the 25 Stevensons about the money he believed they owed, friends in Vallejo told petitioner that the 26 Stevensons had taken a contract out on his life. Petitioner argues that this testimony would have 27 shown that he acted in self-defense when shooting Lonnie and Maurice. 28 Before the jury, however, Lombard did testify that he overheard an argument between 7 1 petitioner and members of the forgery ring less than one week prior to the argument that resulted 2 in petitioner’s shooting (RT 515-16). The trial court merely precluded as hearsay Lombard’s 3 testimony as to the substance of what he overheard and what petitioner said to him following the 4 confrontation (RT 515-16). 5 Petitioner’s trial counsel later argued to the court that the evidence regarding what Mr. 6 Lombard overheard and petitioner’s statement to Lombard that he felt the Stevensons were 7 cheating him went to petitioner’s state of mind for self-defense (RT 525-26). The trial court 8 excluded the evidence as hearsay (RT 525-26), and held that the financial transaction did not show 9 the requisite state of mind for self-defense (RT 527). Neither counsel nor the court mentioned imperfect self-defense. The trial court excluded petitioner’s testimony that friends of his had told 11 United States District Court Northern District of California 10 him that the Stevensons had taken out a contract on petitioner’s life. The trial court found the 12 testimony speculative and hearsay twice removed (RT 676). 13 In deciding on habeas if the exclusion of evidence violates the due process right to a fair 14 trial or the right to present a defense, courts balance the following five factors are balanced: (1) the 15 probative value of the excluded evidence on the central issue; (2) its reliability; (3) whether it is 16 capable of evaluation by the trier of fact; (4) whether it is the sole evidence on the issue or merely 17 cumulative; and (5) whether it constitutes a major part of the attempted defense. Chia v. Cambra, 18 360 F.3d 997, 1004 (9th Cir. 2004) (citing Miller v. Stagner, 757 F.2d 988, 994 (9th Cir. 1985)). 19 Due weight also must be given to the state interests underlying the state evidentiary rules on that 20 formed the basis for the exclusion. See Chia, 360 F.3d at 1006. 21 As noted by respondent, petitioner presented other, more credible evidence regarding 22 petitioner’s belief that the Stevensons owed him money and regarding the violent nature of the 23 relationship between them. Rico Maximo, a janitor who worked in petitioner’s apartment 24 building, testified to an argument he observed the September argument between petitioner and 25 some men, including Lonnie and Maurice, whom petitioner believed owed him money, but who 26 refused to pay (RT 473-75). 27 28 Mr. Lombard testified before the jury that a maintenance man alerted him to the altercation (RT 515). Mr. Lombard went a balcony overlooking the street and saw the Stevensons and their 8 1 associate Melvin Hines, whom Mr. Lombard knew and identified, standing in one place while 2 petitioner fled (RT 517). Both Mr. Maximo and Mr. Lombard stated that the altercation ended 3 with the men shooting petitioner (RT 478, 517). Mr. Lombard stated that he saw the wound on 4 petitioner’s leg from where he had been shot and Mr. Maximo testified that petitioner later said to 5 him, “I got hit” (RT 523, 480). The doctor who treated petitioner for the gunshot wound also 6 testified (RT 450-471). Melvin Hines testified that the Stevensons shot petitioner at the end of the 7 altercation (RT 777). Furthermore, petitioner himself testified at length regarding the forgery ring 8 and his claim to proceeds the Stevensons refused to pay (RT 565-591), and to the September 9 altercation wherein the Stevensons shot him (RT 592-599). 10 This testimony constitutes far more credible and reliable evidence showing the danger the United States District Court Northern District of California 11 Stevensons posed to petitioner than the hearsay statements petitioner sought to introduce, which 12 lacked sufficient indicia of reliability. “The court must give due weight to the substantial state 13 interest in preserving orderly trials, in judicial efficiency, and in excluding unreliable or 14 prejudicial evidence.” Stagner, 757 F.2d at 995, citing Perry v. Rushen, 713 F.2d 1447, 1453 (9th 15 Cir. 1983). 16 Moreover, as noted by the trial court, it is not clear how hearsay statements regarding the 17 money petitioner believed the Stevensons owed him supported a defense of self-defense. These 18 statements would support a claim-of-right defense if California law entitled petitioner to such; 19 however, as discussed above, the California Supreme Court held that petitioner could not assert a 20 claim-of-right defense because he and the Stevensons obtained the money he sought to recover 21 through an illegal enterprise. Regardless, neither the claim-of-right defense nor self-defense 22 permits petitioner to show up armed to collect the funds he believed the Stevensons owed him. 23 Rather, the claim-of-right defense would negate the felonious intent in taking property from the 24 Stevensons if the law supported such a defense in these circumstances and self-defense would 25 lessen petitioner’s degree of culpability in shooting Lonnie and Maurice Stevenson. 26 27 28 Under California law, [a] homicide is justifiable ‘2. When committed in defense of * * * person, against one who manifestly intends or endeavors, by 9 violence or surprise, to commit a felony * * * or, 3. When committed in the lawful defense of such person * * * when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed.’ Pen.Code, § 197. ‘A bare fear of the commission of any of the offenses mentioned in subdivisions 2 and 3 of the preceding section, to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone.’ Pen.Code, § 198. 1 2 3 4 5 6 7 8 People v. McAuliffe, 154 Cal.App.2d 332, 339-340 (Cal. App. Div. 2 1957). A homicide, 9 however, is not justifiable when the person who committed it arrives on the scene armed. Id. at 10 340, quoting People v. Holt, 25 Cal.2d 59, 66 (1944) (“If the defendant in any way challenged the 11 United States District Court Northern District of California fight, and went to it armed, he cannot afterward maintain that in taking his assailant's life he acted 12 in self defense.”) 13 Thus, the hearsay statements petitioner sought to introduce not only lacked sufficient 14 indicia of reliability, they also lacked significant probative value on the asserted defense of self15 defense. Additionally, as noted, other evidence supported petitioner’s assertions that the 16 Stevensons posed a significant danger to him and intended him harm. As such, only one of the 17 Chia factors --- whether the evidence is capable of evaluation by the trier of fact --- weighs in 18 petitioner’s favor. Accordingly, this portion of Claim 6A also is DENIED. 19 2. CLAIM 6B 20 Claim 6B challenges the trial court’s refusal to issue two of his proposed instructions to the 21 jury. Petitioner argues that the court’s failure to issue these two instructions violated his rights 22 under the Fifth, Sixth, Eighth and Fourteenth Amendments. However, state law did not entitle 23 him to the issuance of either instruction. 24 A state trial court’s refusal to give an instruction does not alone raise a ground cognizable 25 in a federal habeas corpus proceedings; the error must so infect the trial that it deprived the 26 defendant of the fair trial guaranteed by the Fourteenth Amendment. See Dunckhurst v. Deeds, 27 859 F.2d 110, 114 (9th Cir. 1988). 28 10 1 A. Claim-of-Right Defense 2 As discussed in Claim 6A, above, petitioner asserts that California law entitled him to 3 present a claim-of-right defense. Thus, he argues that had he been able to submit his proposed 4 claim-of-right defense instruction to the jury, it would have countered the prosecution’s charge 5 that petitioner intended to rob the victims as part of the crime. 6 Petitioner acknowledges that the California Supreme Court denied the claim because it 7 found petitioner had no legal right to assert the defense and argues that this determination “ignored 8 and silently contradicted” People v. Alvarado, 133 Cal.App.3d 1003 (1982), along with other, 9 unnamed California law. As stated above, the California Supreme Court’s determination of state law binds this Court, even when the state court announces that determination on direct appeal, as it 11 United States District Court Northern District of California 10 did here. See Bradshaw, 546 U.S. at 76. That the decision did not reference a different outcome 12 in a lower state court does not invalidate it. Accordingly, this portion of Claim 6B is DENIED. 13 B. Self-Defense 14 In this subclaim, petitioner challenges the trial court’s refusal to issue an instruction based 15 on People v. Bush, 84 Cal.App.3d 294 (1978), that would allow the jury could to find that if 16 petitioner had received threats against his life or had been injured by another, that he would be 17 justified in “acting more quickly and taking harsher measures for his own protection in the event 18 of assault, either actual or threatened, than would be a person who had not received such threats or 19 suffered such injury” (CT 399). 20 The trial court denied petitioner’s requested instruction because petitioner testified at trial 21 that Lonnie’s grandfather, Jimmy, and not Lonnie or Maurice, who had been the ones involved in 22 the September altercation, threatened petitioner at the Stevensons’ house on December 10 (RT 23 810, 816). According to petitioner, Jimmy pointed a gun at petitioner and petitioner fired his own 24 weapon in defense, but accidentally hit Lonnie (RT 816-17). Thus, the trial court reasoned that 25 the threat to petitioner came from a third party and not those who had threatened him previously. 26 Due process requires that “‘criminal defendants be afforded a meaningful opportunity to 27 present a complete defense.’” Clark v. Brown, 450 F.3d 898, 904 (9th Cir. 2006) (quoting 28 California v. Trombetta, 467 U.S. 479, 485 (1984)). Therefore, a criminal defendant deserves 11 1 adequate instructions on the defense theory of the case. See Conde v. Henry, 198 F.3d 734, 739 2 (9th Cir. 2000) (error to deny defendant’s request for instruction on simple kidnaping where 3 evidence supported such an instruction). 4 Whether a constitutional violation has occurred will depend upon the evidence in the case 5 and the overall instructions given to the jury. See Duckett, 67 F.3d at 745. An examination of the 6 record shows precisely the instructions given and refused and whether the given instructions 7 adequately embodied the defendant’s theory. See United States v. Tsinnijinnie, 601 F.2d 1035, 8 1040 (9th Cir. 1979), cert. denied, 445 U.S. 966 (1980). 9 The omission of a proposed instruction carries less prejudice than a misstatement of the law. See Walker v. Endell, 850 F.2d at 475-76 (citing Henderson v. Kibbe, 431 U.S. at 155). 11 United States District Court Northern District of California 10 Thus, a habeas petitioner whose claim involves a failure to give a particular instruction bears an 12 “‘especially heavy burden.’” Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (quoting 13 Henderson v. Kibbe, 431 U.S. 145, 155 (1977)). The significance of the omission of such an 14 instruction may be evaluated by comparison with the instructions that were given. Murtishaw v. 15 Woodford, 255 F.3d 926, 971 (9th Cir. 2001) (quoting Henderson, 431 U.S. at 156); see id. at 972 16 (due process violation found in capital case where petitioner demonstrated that application of the 17 wrong statute at his sentencing infected the proceeding with the jury’s potential confusion 18 regarding its discretion to impose a life or death sentence). 19 Petitioner testified that shortly after arriving at the Stevensons, he showed Lonnie and 20 Maurice his gun to let them know he could “take of [him]self” (RT 619). He then patted both 21 Lonnie and Maurice down and confirmed neither possessed any weapons and walked with them 22 into their backyard (RT 620-22). While walking toward the backyard and still on the side of the 23 house, petitioner testified that Jimmy Stevenson came at them with a gun (RT 622-23). Petitioner 24 stated that he dropped down, pushed Maurice toward the house, and began shooting at the “old 25 man,” which was how petitioner referred to the eldest Stevenson (RT 624). He then said he 26 pushed Maurice against the chimney and shot him in the back because petitioner felt trapped 27 (ibid.). On cross-examination, petitioner clarified that when Jimmy came down from the 28 driveway, Maurice reached for petitioner’s gun, petitioner pushed him back against the house, then 12 1 2 3 4 5 shot him (RT 634-35). Bush holds that where: there is evidence tending to show the making of threats of death or great bodily harm by deceased against the defendant, which are relied on as influencing or justifying defendant’s act, instruction on the law of this subject is proper. 84 Cal.App.3d at 304. The defendant in Bush killed her abusive husband while actively beat her, 6 after he said he would “send her to her grave.” She testified that during two prior beatings, her 7 husband “threatened to put her in her grave.” Id. at 301, 304. 8 Bush does not permit petitioner to invite trouble by going to the Stevensons’ house and 9 bringing a gun with him to collect money to which he was not legally entitled. Petitioner’s trial 10 counsel had requested the Bush instruction, in part, to allow the jury to find permissible 11 United States District Court Northern District of California petitioner’s bringing a weapon with him. The trial court said such actions did not fall within the 12 scope of Bush. As noted above, there is no state law that permits this. The trial court did, 13 however, instruct generally as to self-defense and imperfect self-defense (RT 952). 14 The trial court denied the requested instruction on the additional basis that petitioner 15 testified that the threat came from Jimmy Stevenson, the grandfather, not Lonnie or Maurice who 16 had been involved in the violent altercation three months prior. Petitioner’s trial counsel then 17 argued that petitioner became concerned about a possible ambush or surprise attack when he 18 entered the Stevensons’ driveway because Lonnie and Maurice headed to the backyard instead of 19 through the front door. According to the defense theory, Bush entitled petitioner to react quickly 20 to feeling ambushed because of the September shooting (RT 817). Petitioner’s testimony, 21 however, did not support his assertion that he fired on Lonnie and Maurice because he believed 22 they intended to ambush him. Petitioner said that he showed his weapon to Lonnie and Maurice, 23 patted them down to confirm they were unarmed, followed them toward the back yard, and then 24 Jimmy came toward him with a gun drawn. Only then did petitioner fire. The trial court 25 concluded correctly that petitioner did not fall within the ambit of Bush. 26 Petitioner could not have been prejudiced by the trial court’s failure to issue an instruction 27 on an element of a defense to which California law did not entitle him. Brecht, 507 U.S. at 638. 28 13 1 Accordingly, the trial court’s failure to include petitioner’s requested instruction did not violate his 2 due process rights and this subclaim is DENIED. 3 3. 4 CLAIM 7 Claim 7 challenges the prosecution’s introduction of Melvin Hines as a rebuttal witness 5 violated petitioner’s rights to a fair trial, due process, and heightened capital due process in 6 violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. Petitioner argues that the 7 prosecution theorized in the case-in-chief that petitioner, a casual acquaintance of the Stevensons, 8 intended to rob the family, and shot Maurice and Lonnie in the course of the robbery. He states 9 that the prosecution said that they did not know the importance and scope of the forgery ring activities until petitioner testified in detail about it, which led to their decision to call Melvin Hines 11 United States District Court Northern District of California 10 as a rebuttal witness and thereby change the theory of its case. Petitioner also notes in his opening 12 brief that the prosecutor acknowledged in his closing that he did know about the forgery ring 13 before petitioner’s testimony. 14 Mr. Hines testified that petitioner believed the Stevensons owed him a larger cut of the 15 proceeds than what the parties had already agreed upon and that petitioner had threatened the 16 members of the forgery ring for refusing to pay him. Petitioner argues that Mr. Hines’s testimony 17 held no rebuttal value and the prosecution only offered it to paint petitioner as a “bad person” who 18 would kill over money. 19 Petitioner relies on People v. Carter, 48 Cal.2d 737 (1957), to support his argument. In 20 Carter, the California Supreme Court found that the prosecution in that case had entered a red cap 21 into evidence on rebuttal improperly because the item constituted “crucial” evidence showing that 22 the defendant had been present at the location where the robbery and attack for which he stood 23 trial had occurred. Id. at 754. The prosecution in Carter offered no reason for withholding the 24 evidence until rebuttal. The court held that Section 1094(3) of the Penal Code required that 25 evidence relevant to a material part of the case and tending to establish a defendant’s guilt must be 26 presented in the prosecution’s case-in-chief, barring good reason. Id. at 753. 27 28 Here, the prosecution asserted that it had not known about the forgery ring until defense counsel’s cross-examination of Maurice Stevenson. Gates, 43 Cal.3d at 1184. The trial court 14 1 accepted this explanation as to why the prosecution could not have presented Mr. Hines’s 2 testimony in its case-in-chief and allowed it. During his closing, the prosecutor did tell the jury that he could not have introduced Mr. 3 4 Hines in the case-in-chief because the law did not permit him to reveal petitioner’s criminal 5 actions unless petitioner himself opened the door to such testimony. Because petitioner opened 6 the door by discussing the forgery ring in great detail, the prosecution could then impeach 7 petitioner’s testimony about how much money the Stevenson’s owed him and the fact petitioner 8 had made threats against the Stevensons (RT 915-16). The admission of evidence comes under federal habeas review only when it violates a 9 specific constitutional guarantee or the error is of such magnitude that the result denies the 11 United States District Court Northern District of California 10 fundamentally fair trial guaranteed by due process. See Henry v. Kernan, 197 F.3d 1021, 1031 12 (9th Cir. 1999); Colley v. Sumner, 784 F.2d 984, 990 (9th Cir.), cert. denied, 479 U.S. 839 (1986). 13 The due process inquiry in federal habeas review is whether the trial court admitted evidence so 14 arbitrary or prejudicial that it rendered the trial fundamentally unfair. Walters v. Maass, 45 F.3d 15 1355, 1357 (9th Cir. 1995). Only if there are no permissible inferences that the jury may draw 16 from the evidence can its admission violate due process. See Jammal v. Van de Kamp, 926 F.2d 17 918, 920 (9th Cir. 1991). Petitioner has not shown that the trial court’s admission of Mr. Hines’s testimony violated 18 19 his due process rights. The jury could draw a proper inference from the testimony, specifically 20 rebuttal to petitioner’s own statements regarding money he believed he had been owed and the 21 nature of the relationship between petitioner and the Stevensons. Thus, this claim also is 22 DENIED. 23 // 24 // 25 // 26 // 27 // 28 // 15 CONCLUSION 1 2 For the foregoing reasons, claims 6A, 6B, and 7 are DENIED. Within 21 calendar days of 3 the date of this Order, the parties are ORDERED to meet and confer and submit a joint statement 4 addressing whether there are other claims in the petition that may be potentially resolved on the 5 merits without input from petitioner. If there are, the parties should submit a proposed briefing 6 schedule for those claims. If there are not, the parties should submit a proposal for moving 7 forward with the litigation of this matter. 8 IT IS SO ORDERED. 9 10 Dated: March 27, 2017 _________________________ WILLIAM ALSUP United States District Judge United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16

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