Diaz v. Martel

Filing 20

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND GRANTING CERTIFICATE OF APPEALABILITY, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 3/27/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 3/26/2013)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 OAKLAND DIVISION 7 8 9 11 For the Northern DistrictDistrict of California For the Northern of California United States District Court United States District Court 10 12 No. C 10-5298 PJH (PR) FELIPE POLANCO DIAZ, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND GRANTING CERTIFICATE OF APPEALABILITY Petitioner, vs. M. MARTEL, Warden, Respondent. / 13 14 This is a habeas corpus case filed pro se by a state prisoner pursuant to 28 U.S.C. § 15 2254. The court ordered respondent to show cause why the writ should not be granted. 16 Respondent filed an answer and a memorandum of points and authorities in support of it, 17 and lodged exhibits with the court. Petitioner responded with a traverse. For the reasons 18 set out below, the petition is denied. 19 BACKGROUND 20 On April 25, 2008, a jury found petitioner guilty of first-degree murder, see Cal. 21 Penal Code § 187, and found true the allegation that he intentionally discharged a firearm, 22 see Cal. Penal Code § 12022.53. Respondent’s Exhibit (“Resp. Exh.”) A2 at 443-44, 527. 23 On June 20, 2008, the court sentenced petitioner to a total term of 50 years to life in prison, 24 consisting of an indeterminate term of 25 years to life for the murder conviction, followed by 25 a consecutive term of 25 years to life for the gun enhancement. Resp. Exh. A2 at 564-66. 26 On December 8, 2009, the California Court of Appeal affirmed the judgment. Resp. Exh. B. 27 A petition for review was summarily denied by the California Supreme Court on March 18, 28 2010. Resp. Exh. C. Petitioner did not seek further review in the state courts. 1 The facts of the crime, as described by the California Court of Appeal, can be 2 summarized as follows: Hilda Pacheco was bartending at Tango’s Cantina on the night of 3 November 12, 2005, and served Rafael Cruz, a regular customer, two beers between 7 4 p.m. and 8 p.m. Resp. Exh. B at 2. Violeta Valadez, an owner of Tango’s, also served 5 Cruz about two beers, and sold him a bucket of small Corona beers. Id. Mary, a 6 bartender, was not working that night but came in as a customer, and sat and talked with 7 Cruz for about an hour, and later danced with him. Id. 8 According to Valadez, Diaz arrived at the Cantina around 9 p.m. and socialized with 9 everyone. Id. He ordered between nine and eleven beers, some for himself and some for others. Id. At some point that evening he danced with Mery (not to be confused with 11 For the Northern District of California United States District Court 10 Mary), a bartender who was working that night. Diaz and Cruz sat at a table together, 12 drinking beer, talking, and buying each other drinks, and their conversation appeared to be 13 normal. Id. at 2-3. Id. At around 10 p.m. both men left the bar, but came back a short 14 while later. Id. at 2-3. Around twenty minutes later, several patrons heard gunshots from 15 outside the bar, and Cruz was seen falling backwards through the door into the bar. Id. at 16 3. There was only one witness to the shooting, Apolinar Olivera. Id. at 4. Olivera was 17 parking his car when he saw two people arguing on the sidewalk. Id. As he stepped into 18 the bar, he heard the men running behind him, and one of them said “help me” in Spanish 19 prior to being shot in front of the entrance to the bar. Id. The other man said, “I’m going to 20 kill you, son of a bitch, there’s no one here to help you.” Id. Another witness heard the 21 same thing before seeing the victim fall backwards into the bar. Id. at 3. Olivera held the 22 door as the victim fell from the first gunshot, then heard another gunshot, followed by more 23 gunshots, as the victim was lying face up in the doorway. Id. at 4. The police arrived 24 approximately five minutes after the last shots were fired. Id. Investigating officers 25 recovered one spent bullet from inside the front door of the Cantina and two bullet 26 fragments on the sidewalk. Id. at 5. A black Honda Prelude belonging to Diaz was in the 27 parking lot, registered to him at his mother’s address in San Jose. Id. Olivera was 28 interviewed at the police station and described what he observed that evening. Id. at 4. 2 1 The next day officers set up surveillance at Diaz’s mother’s house, and followed 2 Diaz, three women, and a child when they left the house in a jeep. Id. Police followed the 3 car to Fremont where Diaz got out from the passenger side of the car, and then drove to 4 Modesto and parked in front of the police station, at which time he was placed under arrest. 5 Id. Police later recovered a revolver, four spent bullet casings, and two live .38 caliber 6 rounds buried about 3.4 miles from the Cantina. Id. at 5. After Diaz was arrested, his 7 clothes were photographed and collected and found to have dirt and brown stains on them 8 consistent with blood. Id. at 5. 9 At the time of his death, Cruz’s blood alcohol level was 0.26. Id. at 1. The autopsy revealed that the cause of death was a gunshot wound of the neck with cervical spine cord 11 For the Northern District of California United States District Court 10 contusion. Id. at 6. Cruz suffered two gunshot wounds to the neck and had a bullet in his 12 left foot, as well as abrasions on his knuckles and nose. Id. at 6-7. Particles associated 13 with gunshot residue were found on Cruz’s hand, indicating that he handled or fired a 14 firearm, or was nearby when one was fired. Id. at 7. A criminalist later determined that the 15 four cartridge cases were discharged from the revolver that was found by police. Id. 16 The defense called a forensic toxicologist to testify as an expert regarding alcohol 17 and its effects on the human body. Id. She testified that even at low levels of blood alcohol 18 concentration, alcohol consumption can loosen inhibitions and impair reasoning and 19 judgment, and that at a level of 0.26, a person’s judgment, inhibition, rational thought, and 20 data processing would be seriously affected. Id. at 8. 21 Diaz testified in his own behalf, stating that on the night of the shooting, he drove 22 from his home in Modesto to his mother’s house in San Jose with a loaded gun under the 23 front seat, intending to kill himself. Id. He passed by Tango’s, a place he had been twice 24 before, and decided to stop in and have a beer to relieve his stress. Id. He met a woman, 25 Mery, and they conversed, danced to a couple of songs, then sat down and continued their 26 conversation. Id. at 8-9. Diaz was approached by Cruz, who appeared to be jealous of the 27 attention that Mery was paying to him, and wanted to know if he was interested in her. Id. 28 at 9. The two men argued about Mery throughout the evening until eventually, Cruz bought 3 1 Diaz a beer, and told him to make it his last. Id. Cruz then head butted Diaz in the 2 forehead, causing Diaz to get away from Cruz and move to a table. Id. Nevertheless, Diaz 3 stayed at the bar for another hour because he was talking to Mery, claiming that he didn’t 4 want to leave because he was scared. Id. 5 Cruz came to Diaz’s table again to talk about Mery, and asked Diaz to go outside, 6 where he told him to leave and threatened to do something to him if he didn’t. Id. Diaz 7 said he would leave, but instead went back in and sat down to finish his beer and say 8 goodbye to people. Id. at 9-10. Diaz didn’t have enough cash to pay his tab, so he went 9 back to his car to see if he could find more money. Id. at 10. Cruz followed him to his car and slammed the door on his leg. Diaz felt around his car, grabbed the gun, and tried to hit 11 For the Northern District of California United States District Court 10 Cruz on the head with it. Id. They struggled for the gun, and it landed on the sidewalk. Id. 12 Cruz tried to take the gun but Diaz kicked it away with his leg and told Cruz to get out of 13 there. Id. Cruz instead went back to the bar. Id. Diaz picked up the gun and, although he 14 didn’t intend to shoot Cruz, pointed the gun at him out of confusion and fear, pulled the 15 trigger and shot him. Id. at 10-11. As Cruz fell, Diaz fell with him, accidentally pulling the 16 trigger a second time. Id. at 11. Diaz saw Cruz’s body laying on the floor without 17 movement, and began walking away. Id. Diaz wiped the gun to get rid of the fingerprints, 18 unloaded it, and buried it under a tree. Id. 19 In rebuttal, the prosecution called Mery, who was working as a bartender on the 20 night of the shooting. Id. at 12. She testified that she spent about ten minutes talking with 21 a man, but that the man did not look like Diaz. Id. She also stated that she did not talk to 22 Cruz, and that he did not express any romantic interest in her. Id. 23 STANDARD OF REVIEW 24 A district court may not grant a petition challenging a state conviction or sentence on 25 the basis of a claim that was reviewed on the merits in state court unless the state court's 26 adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an 27 unreasonable application of, clearly established Federal law, as determined by the 28 Supreme Court of the United States; or (2) resulted in a decision that was based on an 4 1 unreasonable determination of the facts in light of the evidence presented in the State court 2 proceeding." 28 U.S.C. § 2254(d). The first prong applies both to questions of law and to 3 mixed questions of law and fact, see Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 4 (2000), while the second prong applies to decisions based on factual determinations, See 5 Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 6 A state court decision is “contrary to” Supreme Court authority, that is, falls under the 7 first clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that 8 reached by [the Supreme] Court on a question of law or if the state court decides a case 9 differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams (Terry), 529 U.S. at 412-13. A state court decision is an “unreasonable application 11 For the Northern District of California United States District Court 10 of” Supreme Court authority, falling under the second clause of § 2254(d)(1), if it correctly 12 identifies the governing legal principle from the Supreme Court’s decisions but 13 “unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. The 14 federal court on habeas review may not issue the writ “simply because that court concludes 15 in its independent judgment that the relevant state-court decision applied clearly 16 established federal law erroneously or incorrectly.” Id. at 411. Rather, the application must 17 be “objectively unreasonable” to support granting the writ. Id. at 409. 18 Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual 19 determination will not be overturned on factual grounds unless objectively unreasonable in 20 light of the evidence presented in the state-court proceeding.” See Miller-El, 537 U.S. at 21 340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). 22 When there is no reasoned opinion from the highest state court to consider the 23 petitioner’s claims, the court looks to the last reasoned opinion. See Ylst v. Nunnemaker, 24 501 U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079, n. 2 (9th Cir. 25 2000). However, when presented with a state court decision that is unaccompanied by a 26 rationale for its conclusions, a federal court must conduct an independent review of the 27 record to determine whether the state-court decision is objectively unreasonable. See 28 Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). This review is not a “de novo review 5 1 of the constitutional issue” rather, it is the only way a federal court can determine whether a 2 state-court decision is objectively unreasonable where the state court is silent. See Himes 3 v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “[W]here a state court's decision is 4 unaccompanied by an explanation, the habeas petitioner's burden still must be met by 5 showing there was no reasonable basis for the state court to deny relief.” See Harrington v. 6 Richter, 131 S. Ct. 770, 784 (2011). 7 DISCUSSION 8 9 As grounds for federal habeas relief, petitioner asserts that: (1) there was insufficient evidence of premeditation and deliberation; (2) the prosecutor committed misconduct by misstating the law during his closing argument; and (3) his due process rights were violated 11 For the Northern District of California United States District Court 10 by the trial court’s refusal to instruct the jury on the application of voluntary intoxication to 12 heat of passion manslaughter. Petition for Writ of Habeas Corpus (“Hab. Pet.”) at 5-6. 13 I. 14 15 Sufficiency of the Evidence Petitioner claims that there is insufficient evidence of premeditation or deliberation to support a first-degree murder conviction. Hab. Pet. at 6. 16 A. Legal Standard 17 In Jackson v. Virginia, the Supreme Court established the due process standard by 18 which federal courts review a habeas corpus petition challenging the sufficiency of 19 evidence for a state conviction. 443 U.S. 307, 316 (1979). Due process requires that “no 20 person shall be made to suffer the onus of a criminal conviction except upon sufficient 21 proof–defined as evidence necessary to convince a trier of fact beyond a reasonable doubt 22 of the existence of every element of the offense.” Id. at 316. A state prisoner who alleges 23 that the evidence in support of his state conviction cannot be fairly characterized as 24 sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt states a 25 federal constitutional claim that, if proven, entitles him to federal habeas relief. Id. at 321, 26 324. 27 28 A federal court reviewing a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt. See Payne v. 6 1 Borg, 982 F.2d 335, 338 (9th Cir. 1993). The federal court “determines only whether, ‘after 2 viewing the evidence in the light most favorable to the prosecution, any rational trier of fact 3 could have found the essential elements of the crime beyond a reasonable doubt.’” Id. 4 quoting Jackson, 443 U.S. at 319. A court must apply the Jackson standard “with explicit 5 reference to the substantive elements of the criminal offense as defined by state law.” See 6 Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004). 7 Under the Jackson standard, a conviction may be supported by logical inferences 8 from circumstantial evidence, but the inferences cannot be merely speculative. See 9 Sarausad v. Porter, 479 F.3d 671, 677 (9th Cir. 2007), rev’d on other grounds sub nom. Waddington v. Sarausad, 555 U.S. 179, 182 (2009); Walters v. Maass, 45 F.3d 1355, 1358 11 For the Northern District of California United States District Court 10 (9th Cir. 1995). Where behavior is consistent with both guilt and innocence, the burden is 12 on the state to produce evidence that would allow a rational trier of fact to conclude beyond 13 a reasonable doubt that the behavior was consistent with guilt; however, the “prosecution 14 need not affirmatively rule out every hypothesis except that of guilt.” See Sarausad, 479 15 F.3d at 678 (citation omitted). 16 After AEDPA, a federal habeas court applies the standards of Jackson with an 17 additional layer of deference. See Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). 18 The Ninth Circuit has held that section 2254(d)(1) of AEDPA applies to federal review of a 19 state court’s sufficiency of the evidence determination under Jackson. Id. at 1274-75. If 20 the state court affirms a conviction under Jackson, the federal court must decide whether 21 the state court’s application of Jackson was objectively unreasonable. See Sarausad, 479 22 F.3d at 677-78. The Ninth Circuit has adopted guidelines for determining whether a state 23 court applied Jackson in an objectively unreasonable manner under section 2254(d)(1), 24 which states as follows: 25 (1) The focus of the inquiry is on the state court decision; 26 27 (2) Even with the deference due by statute to the state court's determinations, the federal habeas court must look to the “totality of the evidence” in evaluating the state court's decision; 28 (3) The failure of the state court to consider at all a key argument of the 7 1 2 3 defendant may indicate that its conclusion is objectively unreasonable; however, the paucity of reasoning employed by the state court does not itself establish that its result is objectively unreasonable; (4) The failure of a state court to give appropriate weight to all of the evidence may mean that its conclusion is objectively unreasonable; and 4 5 6 7 (5) The absence of cases of conviction precisely parallel on their facts does not, by itself, establish objective unreasonableness. Sarausad, 479 F. 3d at 678 (citation omitted). In contrast, section 2254(d)(2) does not apply to Jackson cases because the federal 8 court does not decide whether the state court unreasonably determined disputed facts. 9 Sarausad, 479 F.3d at 678. Rather, the court must decide whether the state court unreasonably applied the Jackson test. Id. at 683. Accordingly, a federal court evaluates a 11 For the Northern District of California United States District Court 10 challenge to a state conviction on insufficient evidence grounds under section 2254(d)(1) 12 rather than (d)(2). Id. at 678. 13 B. Discussion 14 (i) California law 15 In California, “premeditation” means thought over in advance or considered 16 beforehand, and “deliberation” refers to careful thought and weighing of considerations in 17 forming a course of action. See People v. Koontz, 27 Cal. 4th 1041, 1080 (2002); People 18 v. Mayfield, 14 Cal. 4th 668, 767 (1997). “The process of premeditation and deliberation 19 does not require any extended period of time....[t]he true test is not the duration of time as 20 much as it is the extent of the reflection....[t]houghts may follow each other with great 21 rapidity and cold, calculated judgment may be arrived at quickly....” See Koontz, 27 Cal. 22 4th at 1080 (quotation and citation omitted). California courts have typically identified three 23 types of evidence that are indicative of premeditation and deliberation: (1) facts about how 24 and what defendant did prior to the actual killing that show the defendant was engaged in 25 activity directed toward, and intended to result in, the killing—may be characterized as 26 planning activity; (2) facts about the defendant's prior relationship and/or conduct with the 27 victim from which the jury could reasonably infer a motive to kill the victim, which inference 28 of motive, together with facts of type (1) or (3), would in turn support an inference that the 8 considerations rather than mere unconsidered or rash impulse hastily executed; (3) facts 3 about the nature of the killing from which the jury could infer that the manner of killing was 4 so particular and exacting that the defendant must have intentionally killed according to a 5 preconceived design to take his victim's life in a particular way for a reason which the jury 6 can reasonably infer from facts of type (1) or (2). See People v. Anderson, 70 Cal. 2d 15, 7 26-27 (1968). However, California courts have made it clear that these factors are not 8 required to be present in some special combination or accorded a particular weight, nor is 9 the list exhaustive. See People v. Steele, 27 Cal. 4th 1230, 1249 (2002). Rather, “[t]he 10 Anderson analysis was intended as a framework to assist reviewing courts in assessing 11 For the Northern District of California killing was the result of a pre-existing reflection and careful thought and weighing of 2 United States District Court 1 whether the evidence supports an inference that the killing resulted from preexisting 12 reflection and weighing of considerations.” See Koontz, 27 Cal. 4th at 1081. 13 14 (ii) California Court of Appeal Opinion On direct appeal, petitioner argued that the evidence did not satisfy the Anderson 15 framework because there was no evidence of motive, scant evidence of planning, and the 16 shooting was “not so particular and exacting that the defendant must have intentionally 17 killed according to a preconceived design to take the victim’s life in a particular way.” Resp. 18 Exh. B at 12. The California Court of Appeal acknowledged that direct evidence of a 19 motive for the killing was absent, but nevertheless determined that there was sufficient 20 evidence from which a properly instructed jury could infer that “the killing occurred as the 21 result of preexisting reflection rather than unconsidered or rash impulse.” Resp. Exh. B at 22 14. First, the court found evidence of planning because petitioner drove to San Jose from 23 Modesto with a loaded gun in his car, and admitted that his plan was to get rid of the gun or 24 to kill himself with it. Id. From this testimony, the jury could believe that Diaz had a plan, 25 but reject his explanation of it. Id. Furthermore, because petitioner admitted that he 26 retrieved the gun from his car, a rational jury could reject his claim that he didn’t bring the 27 gun into the bar, and infer that he either brought it with him initially, or retrieved it from his 28 car during one of the times he left the bar with Cruz. Id. Second, despite petitioner’s claim 9 1 that he did not know Cruz, the jury could reject his testimony and reasonably infer that he 2 had some prior acquaintance with him based on witness testimony describing their 3 interaction. Id. From the foregoing inferences of planning and prior acquaintance, the 4 court concluded that it was reasonable for the jury to infer “that [Diaz] considered the 5 possibility of homicide from the outset.” Id. 6 The court also emphasized the testimony of two witnesses, Flores and Olivera, as 7 the strongest evidence that petitioner acted from preexisting reflection rather than from 8 unconsidered or rash impulse. Id. at 15. Flores and Olivera testified that petitioner paused 9 between shots, which allowed the jury to infer that petitioner, when faced with the choice of whether to shoot to kill or to cease shooting, chose to continue shooting. Id. The court 11 For the Northern District of California United States District Court 10 also noted that Cruz was shot at point blank range, thereby corroborating petitioner’s 12 testimony that he was so close to Cruz when he pointed the gun at his neck that he fell with 13 him when he pulled the trigger. Id. Witnesses also testified that Cruz pleaded for help as 14 petitioner said, “I’m gonna kill you, son of a bitch” and “there’s no one here to help you,” 15 before firing the shots. Id. The court found that the evidence showed that petitioner chased 16 down Cruz, shot and paused, shot and paused again, before shooting Cruz in the neck at 17 point blank range while he was on his knees begging for help. Id. The court reasoned that 18 a rational jury could reasonably conclude that this was a “cold-blooded execution.” Id. In 19 short, based on evidence from which the jury could infer that petitioner had some type of 20 prior acquaintance with Cruz, formed a plan to kill him, and facilitated the killing by 21 encouraging him to drink to excess; coupled with the evidence concerning the manner of 22 the killing, the court found sufficient evidence to support the jury’s verdict of first-degree 23 murder. Id. 24 25 (iii) Analysis In determining that the evidence was sufficient to support the first-degree murder 26 conviction, the state court relied, in varying degrees, on all three of the relevant categories 27 of evidence set forth in Anderson: planning, motive, and manner of killing. Resp. Exh. D at 28 14-15. Petitioner argues that the state court’s conclusions regarding these factors were not 10 1 based on reasonable inferences, and that the court misapplied the law relevant to 2 determining whether there was sufficient evidence to prove premeditation and deliberation. 3 Hab. Pet. Supplemental Claim (“Supp.”) at 2. 4 Petitioner’s argument that an application of the Anderson guidelines to these facts witness who can provide a motive is the victim, and the only evidence of planning is that 7 petitioner kept a loaded gun in his car. However, California courts have made it clear that 8 the Anderson factors are to be used only for guidance, and do not provide concrete 9 prerequisites for proving premeditation and deliberation in each and every case, nor are 10 they required to be present in some special combination or accorded a particular weight. 11 For the Northern District of California does not establish premeditation and deliberation has some merit, because the only 6 United States District Court 5 See Mayfield, 14 Cal. 4th at 767; Steele, 27 Cal. 4th at 1249. 12 Based on the evidence presented at trial, a rational trier of fact could have 13 concluded that petitioner made a cold and calculated decision to take Cruz’s life after 14 consideration and weighing of his options. The record reflects that petitioner left his house 15 in Modesto with a loaded handgun concealed under the seat and drove to San Jose. Resp. 16 Exh. D8 at 2273. After dropping his family off at his mother’s house, he drove around San 17 Jose and ended up at Tango’s Cantina, where he had been a couple of times before. Id. at 18 2279. From this evidence, a rational juror could logically infer that petitioner planned to 19 commit the killing when he kept the loaded gun concealed in his car. 20 While at the Cantina, petitioner struck up a conversation with Cruz and, according to 21 his testimony, their interaction grew tense over the evening due to Cruz’s intoxication and 22 jealousy over a bartender named Mery. Id. at 2198-2223. However, according to other 23 accounts, their communication appeared to be perfectly normal. Resp. Exh. D10 at 2730- 24 31. The only eyewitness, Olivera, testified that he saw both men immediately before the 25 shooting and that neither appeared to be angry or hostile. Resp. Exh. D5 at 1304-05. 26 Olivera further testified that he heard Cruz’s cries for help as he was being chased by 27 petitioner, and heard petitioner respond that he was going to kill him, and that no one was 28 there to help. Id. at 1313-14. Seconds later, Olivera heard a gunshot, followed by another 11 1 gunshot five seconds later, and then another gunshot, and saw the victim lying face up in 2 the entrance to the bar. Id. at 1319-20. At least four shots were fired, one of them at point 3 blank range into the victim’s neck. Resp. Exh. D10 at 2765. From this evidence, a rational 4 trier of fact could infer that, based upon their prior relationship (if any), or upon whatever 5 transpired between the two men that evening, petitioner settled upon a course of action that 6 would result in the victim’s death. 7 Although these events did not take place over a significant period of time, the act of 8 chasing down Cruz and pausing between gunshots as he cried out for help, is indicative of 9 a killing that resulted from cool reflection and a calculated judgment after the weighing of considerations. See e.g. Koontz, 27 Cal. 4th at 1080. In other words, a rational juror could 11 For the Northern District of California United States District Court 10 reject the notion that the killing was more than just a “mere unconsidered or rash impulse 12 hastily executed.” See Anderson, 70 Cal. 2d at 27 (citation omitted). These facts, coupled 13 with the particularly strong evidence regarding the manner of killing, are sufficient to 14 support a verdict of premeditated and deliberate first-degree murder. 15 (iv) Conclusion 16 Viewing the evidence in the light most favorable to the prosecution, the record 17 supports the conclusion that a rational trier of fact could have found beyond a reasonable 18 doubt that petitioner committed the murder with premeditation and deliberation. See United 19 States v. Herrera-Gonzalez, 263 F.3d 1092, 1095 (2001). The state court’s determination 20 that there was sufficient evidence to support the jury’s verdict of first-degree murder was 21 not contrary to, or an unreasonable application of, clearly established federal law. See 28 22 U.S.C. § 2254(d)(1); Jackson v. Virginia, 443 U.S. 307, 316 (1979). 23 II. 24 25 Prosecutorial Misconduct Petitioner contends that the prosecutor committed misconduct in his closing argument by misstating the law of manslaughter. Hab. Pet. 5. 26 27 A. Factual Background 28 The California Court of Appeal described the facts underlying this claim as follows: 12 1 2 3 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 Much of the prosecutor's opening argument related to voluntary manslaughter. No objection was interposed to any of it. A portion of the prosecutor's rebuttal argument was also devoted to voluntary manslaughter. At the end of his remarks on this topic, the prosecutor stated: “[V]oluntary manslaughter is going to be reserved only for those special cases where the provocation from that victim was so extreme that a person of average disposition is going to react in the same situation under the same circumstances not from judgment, but from passion, and then a ratuonal ( sic )-“ Defense counsel cut the prosecutor off, objecting “to the statement of law regarding voluntary manslaughter.” The court responded: “Ladies and Gentlemen, I'll instruct you on the law and you will follow my instructions. This is argument.” The prosecutor then continued: “And that is a correct statement of the law as much as [defense counsel] may not like it, but his honor will redo the instructions tomorrow and that will confirm that that is an absolute correct statement of the law. Don't take that bait or fall for that argument that simply flipping someone off when they cut you off on the freeway is the type of provocation that the law of voluntary manslaughter addresses, and if it did, heaven help us.” With those words the prosecutor ended his summation. 12 13 14 After the jury had been dismissed for the day, defense counsel unsuccessfully moved for a mistrial based on the prosecutor's remarks. Alternatively, he asked that the jury be admonished that “they were given an incorrect statement of the law by the prosecutor and for them to know that the instruction or the correct version of the law is in the CALJIC instruction.” The court stated, “I think, that's a reasonable response ... under the circumstances.” 15 Resp. Exh. B at 16-17, Exh. D10 at 2810-12. 16 On direct appeal, petitioner argued that the prosecutor’s remarks misstated the law 17 of provocation and heat of passion by allowing the jury to find that he was only entitled to a 18 manslaughter verdict if a reasonable person would have done the same thing under similar 19 circumstances. Resp. Exh. B at 18. The appellate court rejected this argument, finding 20 that the prosecutor’s statement “did not imply that voluntary manslaughter is reserved for 21 cases in which the person of average disposition would react by killing the provocateur.” 22 Id. at 19. The court concluded that it was not reasonably likely that the jury interpreted the 23 prosecutor’s remarks to mean that petitioner was not entitled to a manslaughter verdict 24 unless it found that a reasonable person would have killed under the same circumstances. 25 Id. Further, the trial court made it clear that, in the case of a conflict, the court’s instructions 26 took precedence over the parties’ arguments. Id. Based on the record presented, the 27 appellate court found no prosecutorial misconduct. Id. 28 13 1 B. Legal Standard 2 Prosecutorial misconduct is cognizable in federal habeas corpus. The appropriate 3 standard of review is the narrow one of due process and not the broad exercise of 4 supervisory power. See Darden v. Wainwright, 477 U.S. 168, 181 (1986). A defendant's 5 due process rights are violated when a prosecutor's misconduct renders a trial 6 fundamentally unfair. See Smith v. Phillips, 455 U.S. 209, 219 (1982) ("the touchstone of 7 due process analysis in cases of alleged prosecutorial misconduct is the fairness of the 8 trial, not the culpability of the prosecutor"). Claims of prosecutorial misconduct are 9 reviewed "'on the merits, examining the entire proceedings to determine whether the prosecutor's remarks so infected the trial with unfairness as to make the resulting 11 For the Northern District of California United States District Court 10 conviction a denial of due process.'" See Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 12 1995) (citation omitted). 13 C. Discussion 14 Petitioner claims that the prosecutor committed misconduct by stating that 15 manslaughter only applied in special cases where the provocation is so extreme that the 16 average person would react as he did. Hab. Pet. Supp. at 4. Petitioner’s argument lacks 17 merit. Under California law, “[a]n unlawful homicide is upon ‘a sudden quarrel or heat of 18 passion’ if the killer's reason was obscured by a ‘provocation’ sufficient to cause an 19 ordinary person of average disposition to act rashly and without deliberation.” See People 20 v. Najera, 138 Cal. App. 4th 212, 223 (2006) (citation omitted). Here, the prosecutor’s 21 remarks properly focused on the provocation and whether it was sufficient to cause an 22 average person to act from passion; not upon the reasonableness of petitioner’s response 23 to the provocation, which is irrelevant. See Najera, 138 Cal. App. 4th at 223. Even 24 assuming that there was error, the court’s opening instructions made it unlikely that the jury 25 interpreted the prosecutor’s statement to preclude a verdict of manslaughter.1 See Boyde 26 1 27 28 The jury was given CALJIC 1.00, describing the respective duties of judge and jury. The instruction states in part: “You must accept and follow the law as I state it to you, regardless of whether you agree with it. If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, 14 1 v. California, 494 U.S. 370, 384 (1990) (“Arguments of counsel which misstate the law are 2 subject to objection and to correction by the court”). Viewed in context of the entire 3 argument and the court’s instructions, the prosecutor’s remarks did not result in a denial of 4 due process. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 898 (9th Cir. 1996) 5 (“[A]rguments of counsel are generally accorded less weight by the jury than the court's 6 instructions and must be judged in the context of the entire argument and the 7 instructions.”). The state court’s determination that there was no prosecutorial misconduct 8 was not contrary to, or an unreasonable application of, clearly established federal law. See 9 28 U.S.C. § 2254(d). 11 For the Northern District of California United States District Court 10 III. Instruction on Voluntary Manslaughter Based on Intoxication Petitioner contends that the trial court erred by refusing his request to instruct the 12 jury that it could consider voluntary intoxication in determining whether he actually killed in 13 the heat of passion. Hab. Pet. at 6. 14 A. Factual Background 15 During the instruction conference, defense counsel requested that he be permitted 16 to argue that the defendant’s voluntary intoxication was relevant to the subjective 17 component of voluntary manslaughter, in other words, whether he actually killed in the heat 18 of passion. Resp. Exh. B at 19, D10 at 2708-09. Counsel also requested that the trial 19 court modify its instructions on voluntary intoxication to allow the jury to consider the effect 20 of the defendant’s intoxication on the question of whether he subjectively acted in the heat 21 of passion. Resp. Exh. B at 19, D10 at 2710. Both requests were denied. Id. 22 The trial court instructed the jury as follows: 23 24 CALJIC 4.22 25 Intoxication of a person is voluntary if it results from the willing use of any intoxicating liquor, drug, or other substance, knowing that it is capable of an intoxicating effect, or when he willingly assumes the risk of that effect. 26 27 28 you must follow my instructions.” Resp. Exh. D11 at 3004. 15 1 Voluntary intoxication includes the voluntary ingestion, injection, or taking by any other means of an intoxicating liquor, drug, or other substance. 2 CALJIC 4.21.1 3 It is the general rule that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of that condition. 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 However, there is an exception to this general rule, namely, where a specific mental state is an essential element of a crime. In that event, you should consider the defendant's voluntary intoxication in deciding whether the defendant possessed the required specific intent or mental state at the time of the commission of the alleged crime. Thus, in the crime charged in count 1 or the lesser crime of murder in the second degree or voluntary manslaughter, a necessary element is the existence in the mind of the defendant of a certain specific intent or mental state which is included in the definition of the crime set forth elsewhere in these instructions. If the evidence shows that a defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether or not that defendant had the required specific intent or mental state. If from all the evidence you have a reasonable doubt whether a defendant had the required specific intent or mental state, you must find that defendant did not have that specific intent or mental state. Resp. Exh. D11 at 3023-24. The California Court of Appeal reasoned that, even if the trial court erred by failing to 17 instruct the jury on voluntary manslaughter and the subjective component of heat of 18 passion, there was no prejudice because: (1) the jury was instructed to consider the 19 defendant’s voluntary intoxication in determining whether he possessed the required 20 specific intent or mental state charged in count one or the lesser crime of murder in the 21 second degree or voluntary manslaughter, and (2) the instructions provided numerous 22 additional opportunities to resolve whether defendant actually killed in the heat of passion 23 or whether there was a premeditated and deliberate murder. Resp. Exh. B at 21-22. Thus, 24 the factual question posed by the omitted instruction was answered adversely to 25 defendant’s position under the instructions given. Id. at 22. In any event, the appellate 26 court found that there was no evidence of provocation on the part of the victim that would 27 have caused a “reasonable person of average disposition to act rashly and without 28 deliberation.” Id. In view of the overwhelming evidence that the homicide was murder, the 16 1 2 3 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 court found any error to be harmless because it was not reasonably probable that the jury would have returned a verdict of manslaughter absent the error. Id. B. Legal Standard The formulation of jury instructions is a question of state law and is not cognizable in habeas proceedings. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). A faulty jury instruction will constitute a violation of due process only where the instruction by itself infects the entire trial to such an extent that the resulting conviction violates due process. See Hendricks v. Vasquez, 974 F.2d 1099, 1106 (9th Cir.1992) citing Cupp v. Naughten, 414 U.S. 141, 147 (1973). Whether a constitutional violation has occurred will depend upon the evidence in the case and the overall instructions given to the jury. See Duckett v. Godinez, 67 F.3d 734, 745 (9th Cir.1995). Where a given jury instruction is ambiguous, a reviewing court must determine whether there is a “reasonable likelihood” that the jury was misled. See Murtishaw v. Woodford, 255 F.3d 926, 967 (9th Cir. 2001). The Supreme Court has held that “a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” See Matthews v. United States, 485 U.S. 58, 63 (1988). The failure to provide adequate instructions on a defense theory of the case constitutes a denial of due process under the Fourteenth Amendment. See Bradley v. Duncan, 315 F.3d 1091, 1099 (9th Cir. 2002); Conde v. Henry, 198 F.3d 734, 739 (9th Cir.1999). However, “[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.” See Henderson v. Kibbe, 431 U.S. 145,155 (1977). Thus where the alleged error is the failure to give an instruction, the habeas petitioner's burden is especially heavy. Id. C. Discussion Petitioner maintains that the trial court erred by not instructing the jury that voluntary intoxication could be considered in determining whether he subjectively acted in the heat of passion. Hab. Pet. at 6, Traverse at 7. Petitioner correctly states that, under California law, the heat of passion requirement for voluntary manslaughter has both an objective and a subjective component. See People 17 1 2 3 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. Steele, 27 Cal. 4th 1230, 1253 (2002). This means first, that the circumstances giving rise to the heat of passion must be such as would arouse the passion of an ordinarily reasonable person under the given facts and circumstances, and second, that the defendant actually killed under the heat of passion. Id. While petitioner’s voluntary intoxication had no bearing on the objective, reasonable person, requirement for heat of passion, it was arguably relevant in determining whether he satisfied the subjective component of heat of passion. Id. Reasonable minds might differ as to whether the trial court erred under state law, however, in view of the standard for judging claims of instructional error, it is clear that the error, if any, did not infect the entire trial. See Hendricks, 974 F.2d at 1106. Here, the jury was instructed as follows: To reduce an unlawful killing from murder to manslaughter upon the ground of sudden quarrel or heat of passion, the provocation must be of the character and degree as naturally would excite and arouse the passion and the assailant must act under the influence of that sudden quarrel or heat of passion. The heat of passion which will reduce a homicide to manslaughter must be such a passion as naturally would be aroused in the mind of an ordinarily reasonable sober person in the same circumstances. Resp. Exh. D11 at 3021-22. The former paragraph allowed the jury to consider whether petitioner satisfied the subjective component for heat of passion, in other words, whether he actually acted under the influence of heat of passion. (emphasis added). The court’s instructions, viewed in their entirety, adequately informed the jury regarding petitioner’s theory that voluntary intoxication negated the mental state required for first-degree murder, or the lesser included offenses of second-degree murder or voluntary manslaughter. By convicting petitioner of first-degree murder rather than voluntary manslaughter, the jury determined that the killing was premeditated and deliberated, thereby rejecting the notion that he acted under the influence of heat of passion. The instructions as given do not present a “reasonable likelihood” that the jury was misled. See Murtishaw, 255 F.3d at 967. Viewed in the context of the jury instructions and the record as a whole, the trial court's refusal to 18 1 2 3 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 specifically instruct the jury that voluntary intoxication could be considered in determining whether he subjectively acted in the heat of passion did not violate due process. See Estelle v. McGuire, 502 U.S. 62, 72 (1991). Accordingly, the state court's decision was not contrary to or an unreasonable application of clearly established federal law, as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d). IV. Appealability The federal rules governing habeas cases brought by state prisoners require a district court that denies a habeas petition to grant or deny a certificate of appealability (“COA”) in the ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (effective December 1, 2009). To obtain a COA, petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Section 2253(c)(3) requires a court granting a COA to indicate which issues satisfy the COA standard. Here, the court finds that two issues presented by petitioner in his petition meet the above standard and accordingly GRANTS the COA as to those issues. See generally Miller-El, 537 U.S. at 322. The issues are: (1) whether there is insufficient evidence of premeditation or deliberation to support a first-degree murder conviction; and (2) whether the trial court erred by refusing to instruct the jury that voluntary intoxication could be considered in determining whether petitioner subjectively acted in the heat of passion. Accordingly, the clerk shall forward the file, including a copy of this order, to the Court of Appeals. See Fed. R. App. P. 22(b); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). 19 CONCLUSION 1 2 3 4 5 6 7 For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. A Certificate of Appealability is GRANTED. See Rule11(a) of the Rules Governing Section 2254 Cases. The clerk shall close the file. IT IS SO ORDERED. Dated: March 26, 2013. PHYLLIS J. HAMILTON United States District Judge 8 9 G:\PRO-SE\PJH\HC.10\DIAZ5298.HC.wpd 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20

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