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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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For the Northern DistrictDistrict of California
For the Northern of California

United States District Court
United States District Court

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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.
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This is a habeas corpus case filed pro se by a state prisoner pursuant to 28 U.S.C. §

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2254. The court ordered respondent to show cause why the writ should not be granted.

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Respondent filed an answer and a memorandum of points and authorities in support of it,

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and lodged exhibits with the court. Petitioner responded with a traverse. For the reasons

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set out below, the petition is denied.

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BACKGROUND

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On April 25, 2008, a jury found petitioner guilty of first-degree murder, see Cal.

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Penal Code § 187, and found true the allegation that he intentionally discharged a firearm,

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see Cal. Penal Code § 12022.53. Respondent’s Exhibit (“Resp. Exh.”) A2 at 443-44, 527.

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On June 20, 2008, the court sentenced petitioner to a total term of 50 years to life in prison,

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consisting of an indeterminate term of 25 years to life for the murder conviction, followed by

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a consecutive term of 25 years to life for the gun enhancement. Resp. Exh. A2 at 564-66.

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On December 8, 2009, the California Court of Appeal affirmed the judgment. Resp. Exh. B.

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A petition for review was summarily denied by the California Supreme Court on March 18,

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2010. Resp. Exh. C. Petitioner did not seek further review in the state courts.

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The facts of the crime, as described by the California Court of Appeal, can be

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summarized as follows: Hilda Pacheco was bartending at Tango’s Cantina on the night of

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November 12, 2005, and served Rafael Cruz, a regular customer, two beers between 7

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p.m. and 8 p.m. Resp. Exh. B at 2. Violeta Valadez, an owner of Tango’s, also served

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Cruz about two beers, and sold him a bucket of small Corona beers. Id. Mary, a

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bartender, was not working that night but came in as a customer, and sat and talked with

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Cruz for about an hour, and later danced with him. Id.

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According to Valadez, Diaz arrived at the Cantina around 9 p.m. and socialized with

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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

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Mary), a bartender who was working that night. Diaz and Cruz sat at a table together,

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drinking beer, talking, and buying each other drinks, and their conversation appeared to be

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normal. Id. at 2-3. Id. At around 10 p.m. both men left the bar, but came back a short

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while later. Id. at 2-3. Around twenty minutes later, several patrons heard gunshots from

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outside the bar, and Cruz was seen falling backwards through the door into the bar. Id. at

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3. There was only one witness to the shooting, Apolinar Olivera. Id. at 4. Olivera was

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parking his car when he saw two people arguing on the sidewalk. Id. As he stepped into

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the bar, he heard the men running behind him, and one of them said “help me” in Spanish

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prior to being shot in front of the entrance to the bar. Id. The other man said, “I’m going to

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kill you, son of a bitch, there’s no one here to help you.” Id. Another witness heard the

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same thing before seeing the victim fall backwards into the bar. Id. at 3. Olivera held the

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door as the victim fell from the first gunshot, then heard another gunshot, followed by more

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gunshots, as the victim was lying face up in the doorway. Id. at 4. The police arrived

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approximately five minutes after the last shots were fired. Id. Investigating officers

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recovered one spent bullet from inside the front door of the Cantina and two bullet

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fragments on the sidewalk. Id. at 5. A black Honda Prelude belonging to Diaz was in the

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parking lot, registered to him at his mother’s address in San Jose. Id. Olivera was

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interviewed at the police station and described what he observed that evening. Id. at 4.
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The next day officers set up surveillance at Diaz’s mother’s house, and followed

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Diaz, three women, and a child when they left the house in a jeep. Id. Police followed the

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car to Fremont where Diaz got out from the passenger side of the car, and then drove to

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Modesto and parked in front of the police station, at which time he was placed under arrest.

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Id. Police later recovered a revolver, four spent bullet casings, and two live .38 caliber

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rounds buried about 3.4 miles from the Cantina. Id. at 5. After Diaz was arrested, his

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clothes were photographed and collected and found to have dirt and brown stains on them

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consistent with blood. Id. at 5.

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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

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contusion. Id. at 6. Cruz suffered two gunshot wounds to the neck and had a bullet in his

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left foot, as well as abrasions on his knuckles and nose. Id. at 6-7. Particles associated

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with gunshot residue were found on Cruz’s hand, indicating that he handled or fired a

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firearm, or was nearby when one was fired. Id. at 7. A criminalist later determined that the

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four cartridge cases were discharged from the revolver that was found by police. Id.

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The defense called a forensic toxicologist to testify as an expert regarding alcohol

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and its effects on the human body. Id. She testified that even at low levels of blood alcohol

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concentration, alcohol consumption can loosen inhibitions and impair reasoning and

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judgment, and that at a level of 0.26, a person’s judgment, inhibition, rational thought, and

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data processing would be seriously affected. Id. at 8.

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Diaz testified in his own behalf, stating that on the night of the shooting, he drove

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from his home in Modesto to his mother’s house in San Jose with a loaded gun under the

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front seat, intending to kill himself. Id. He passed by Tango’s, a place he had been twice

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before, and decided to stop in and have a beer to relieve his stress. Id. He met a woman,

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Mery, and they conversed, danced to a couple of songs, then sat down and continued their

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conversation. Id. at 8-9. Diaz was approached by Cruz, who appeared to be jealous of the

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attention that Mery was paying to him, and wanted to know if he was interested in her. Id.

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at 9. The two men argued about Mery throughout the evening until eventually, Cruz bought
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Diaz a beer, and told him to make it his last. Id. Cruz then head butted Diaz in the

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forehead, causing Diaz to get away from Cruz and move to a table. Id. Nevertheless, Diaz

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stayed at the bar for another hour because he was talking to Mery, claiming that he didn’t

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want to leave because he was scared. Id.

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Cruz came to Diaz’s table again to talk about Mery, and asked Diaz to go outside,

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where he told him to leave and threatened to do something to him if he didn’t. Id. Diaz

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said he would leave, but instead went back in and sat down to finish his beer and say

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goodbye to people. Id. at 9-10. Diaz didn’t have enough cash to pay his tab, so he went

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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

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Cruz on the head with it. Id. They struggled for the gun, and it landed on the sidewalk. Id.

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Cruz tried to take the gun but Diaz kicked it away with his leg and told Cruz to get out of

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there. Id. Cruz instead went back to the bar. Id. Diaz picked up the gun and, although he

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didn’t intend to shoot Cruz, pointed the gun at him out of confusion and fear, pulled the

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trigger and shot him. Id. at 10-11. As Cruz fell, Diaz fell with him, accidentally pulling the

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trigger a second time. Id. at 11. Diaz saw Cruz’s body laying on the floor without

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movement, and began walking away. Id. Diaz wiped the gun to get rid of the fingerprints,

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unloaded it, and buried it under a tree. Id.

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In rebuttal, the prosecution called Mery, who was working as a bartender on the

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night of the shooting. Id. at 12. She testified that she spent about ten minutes talking with

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a man, but that the man did not look like Diaz. Id. She also stated that she did not talk to

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Cruz, and that he did not express any romantic interest in her. Id.

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STANDARD OF REVIEW

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A district court may not grant a petition challenging a state conviction or sentence on

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the basis of a claim that was reviewed on the merits in state court unless the state court's

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adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an

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unreasonable application of, clearly established Federal law, as determined by the

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Supreme Court of the United States; or (2) resulted in a decision that was based on an
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unreasonable determination of the facts in light of the evidence presented in the State court

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proceeding." 28 U.S.C. § 2254(d). The first prong applies both to questions of law and to

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mixed questions of law and fact, see Williams (Terry) v. Taylor, 529 U.S. 362, 407-09

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(2000), while the second prong applies to decisions based on factual determinations, See

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Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

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A state court decision is “contrary to” Supreme Court authority, that is, falls under the

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first clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that

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reached by [the Supreme] Court on a question of law or if the state court decides a case

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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

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of” Supreme Court authority, falling under the second clause of § 2254(d)(1), if it correctly

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identifies the governing legal principle from the Supreme Court’s decisions but

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“unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. The

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federal court on habeas review may not issue the writ “simply because that court concludes

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in its independent judgment that the relevant state-court decision applied clearly

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established federal law erroneously or incorrectly.” Id. at 411. Rather, the application must

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be “objectively unreasonable” to support granting the writ. Id. at 409.

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Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual

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determination will not be overturned on factual grounds unless objectively unreasonable in

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light of the evidence presented in the state-court proceeding.” See Miller-El, 537 U.S. at

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340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000).

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When there is no reasoned opinion from the highest state court to consider the

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petitioner’s claims, the court looks to the last reasoned opinion. See Ylst v. Nunnemaker,

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501 U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079, n. 2 (9th Cir.

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2000). However, when presented with a state court decision that is unaccompanied by a

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rationale for its conclusions, a federal court must conduct an independent review of the

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record to determine whether the state-court decision is objectively unreasonable. See

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Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). This review is not a “de novo review
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of the constitutional issue” rather, it is the only way a federal court can determine whether a

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state-court decision is objectively unreasonable where the state court is silent. See Himes

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v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “[W]here a state court's decision is

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unaccompanied by an explanation, the habeas petitioner's burden still must be met by

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showing there was no reasonable basis for the state court to deny relief.” See Harrington v.

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Richter, 131 S. Ct. 770, 784 (2011).

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DISCUSSION

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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

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United States District Court

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by the trial court’s refusal to instruct the jury on the application of voluntary intoxication to

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heat of passion manslaughter. Petition for Writ of Habeas Corpus (“Hab. Pet.”) at 5-6.

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I.

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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.

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A. Legal Standard

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In Jackson v. Virginia, the Supreme Court established the due process standard by

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which federal courts review a habeas corpus petition challenging the sufficiency of

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evidence for a state conviction. 443 U.S. 307, 316 (1979). Due process requires that “no

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person shall be made to suffer the onus of a criminal conviction except upon sufficient

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proof–defined as evidence necessary to convince a trier of fact beyond a reasonable doubt

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of the existence of every element of the offense.” Id. at 316. A state prisoner who alleges

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that the evidence in support of his state conviction cannot be fairly characterized as

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sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt states a

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federal constitutional claim that, if proven, entitles him to federal habeas relief. Id. at 321,

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324.

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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.
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Borg, 982 F.2d 335, 338 (9th Cir. 1993). The federal court “determines only whether, ‘after

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viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

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could have found the essential elements of the crime beyond a reasonable doubt.’” Id.

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quoting Jackson, 443 U.S. at 319. A court must apply the Jackson standard “with explicit

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reference to the substantive elements of the criminal offense as defined by state law.” See

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Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004).

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Under the Jackson standard, a conviction may be supported by logical inferences

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from circumstantial evidence, but the inferences cannot be merely speculative. See

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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

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(9th Cir. 1995). Where behavior is consistent with both guilt and innocence, the burden is

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on the state to produce evidence that would allow a rational trier of fact to conclude beyond

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a reasonable doubt that the behavior was consistent with guilt; however, the “prosecution

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need not affirmatively rule out every hypothesis except that of guilt.” See Sarausad, 479

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F.3d at 678 (citation omitted).

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After AEDPA, a federal habeas court applies the standards of Jackson with an

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additional layer of deference. See Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005).

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The Ninth Circuit has held that section 2254(d)(1) of AEDPA applies to federal review of a

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state court’s sufficiency of the evidence determination under Jackson. Id. at 1274-75. If

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the state court affirms a conviction under Jackson, the federal court must decide whether

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the state court’s application of Jackson was objectively unreasonable. See Sarausad, 479

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F.3d at 677-78. The Ninth Circuit has adopted guidelines for determining whether a state

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court applied Jackson in an objectively unreasonable manner under section 2254(d)(1),

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which states as follows:

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(1) The focus of the inquiry is on the state court decision;

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(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;

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(3) The failure of the state court to consider at all a key argument of the
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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

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(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

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court does not decide whether the state court unreasonably determined disputed facts.

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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

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challenge to a state conviction on insufficient evidence grounds under section 2254(d)(1)

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rather than (d)(2). Id. at 678.

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B. Discussion

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(i) California law

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In California, “premeditation” means thought over in advance or considered

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beforehand, and “deliberation” refers to careful thought and weighing of considerations in

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forming a course of action. See People v. Koontz, 27 Cal. 4th 1041, 1080 (2002); People

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v. Mayfield, 14 Cal. 4th 668, 767 (1997). “The process of premeditation and deliberation

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does not require any extended period of time....[t]he true test is not the duration of time as

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much as it is the extent of the reflection....[t]houghts may follow each other with great

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rapidity and cold, calculated judgment may be arrived at quickly....” See Koontz, 27 Cal.

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4th at 1080 (quotation and citation omitted). California courts have typically identified three

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types of evidence that are indicative of premeditation and deliberation: (1) facts about how

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and what defendant did prior to the actual killing that show the defendant was engaged in

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activity directed toward, and intended to result in, the killing—may be characterized as

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planning activity; (2) facts about the defendant's prior relationship and/or conduct with the

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victim from which the jury could reasonably infer a motive to kill the victim, which inference

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of motive, together with facts of type (1) or (3), would in turn support an inference that the
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considerations rather than mere unconsidered or rash impulse hastily executed; (3) facts

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about the nature of the killing from which the jury could infer that the manner of killing was

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so particular and exacting that the defendant must have intentionally killed according to a

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preconceived design to take his victim's life in a particular way for a reason which the jury

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can reasonably infer from facts of type (1) or (2). See People v. Anderson, 70 Cal. 2d 15,

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26-27 (1968). However, California courts have made it clear that these factors are not

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required to be present in some special combination or accorded a particular weight, nor is

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the list exhaustive. See People v. Steele, 27 Cal. 4th 1230, 1249 (2002). Rather, “[t]he

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Anderson analysis was intended as a framework to assist reviewing courts in assessing

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killing was the result of a pre-existing reflection and careful thought and weighing of

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United States District Court

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whether the evidence supports an inference that the killing resulted from preexisting

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reflection and weighing of considerations.” See Koontz, 27 Cal. 4th at 1081.

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(ii) California Court of Appeal Opinion
On direct appeal, petitioner argued that the evidence did not satisfy the Anderson

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framework because there was no evidence of motive, scant evidence of planning, and the

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shooting was “not so particular and exacting that the defendant must have intentionally

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killed according to a preconceived design to take the victim’s life in a particular way.” Resp.

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Exh. B at 12. The California Court of Appeal acknowledged that direct evidence of a

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motive for the killing was absent, but nevertheless determined that there was sufficient

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evidence from which a properly instructed jury could infer that “the killing occurred as the

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result of preexisting reflection rather than unconsidered or rash impulse.” Resp. Exh. B at

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14. First, the court found evidence of planning because petitioner drove to San Jose from

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Modesto with a loaded gun in his car, and admitted that his plan was to get rid of the gun or

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to kill himself with it. Id. From this testimony, the jury could believe that Diaz had a plan,

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but reject his explanation of it. Id. Furthermore, because petitioner admitted that he

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retrieved the gun from his car, a rational jury could reject his claim that he didn’t bring the

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gun into the bar, and infer that he either brought it with him initially, or retrieved it from his

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car during one of the times he left the bar with Cruz. Id. Second, despite petitioner’s claim
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that he did not know Cruz, the jury could reject his testimony and reasonably infer that he

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had some prior acquaintance with him based on witness testimony describing their

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interaction. Id. From the foregoing inferences of planning and prior acquaintance, the

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court concluded that it was reasonable for the jury to infer “that [Diaz] considered the

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possibility of homicide from the outset.” Id.

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The court also emphasized the testimony of two witnesses, Flores and Olivera, as

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the strongest evidence that petitioner acted from preexisting reflection rather than from

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unconsidered or rash impulse. Id. at 15. Flores and Olivera testified that petitioner paused

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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

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also noted that Cruz was shot at point blank range, thereby corroborating petitioner’s

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testimony that he was so close to Cruz when he pointed the gun at his neck that he fell with

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him when he pulled the trigger. Id. Witnesses also testified that Cruz pleaded for help as

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petitioner said, “I’m gonna kill you, son of a bitch” and “there’s no one here to help you,”

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before firing the shots. Id. The court found that the evidence showed that petitioner chased

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down Cruz, shot and paused, shot and paused again, before shooting Cruz in the neck at

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point blank range while he was on his knees begging for help. Id. The court reasoned that

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a rational jury could reasonably conclude that this was a “cold-blooded execution.” Id. In

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short, based on evidence from which the jury could infer that petitioner had some type of

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prior acquaintance with Cruz, formed a plan to kill him, and facilitated the killing by

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encouraging him to drink to excess; coupled with the evidence concerning the manner of

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the killing, the court found sufficient evidence to support the jury’s verdict of first-degree

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murder. Id.

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(iii) Analysis
In determining that the evidence was sufficient to support the first-degree murder

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conviction, the state court relied, in varying degrees, on all three of the relevant categories

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of evidence set forth in Anderson: planning, motive, and manner of killing. Resp. Exh. D at

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14-15. Petitioner argues that the state court’s conclusions regarding these factors were not
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based on reasonable inferences, and that the court misapplied the law relevant to

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determining whether there was sufficient evidence to prove premeditation and deliberation.

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Hab. Pet. Supplemental Claim (“Supp.”) at 2.

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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

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petitioner kept a loaded gun in his car. However, California courts have made it clear that

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the Anderson factors are to be used only for guidance, and do not provide concrete

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prerequisites for proving premeditation and deliberation in each and every case, nor are

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they required to be present in some special combination or accorded a particular weight.

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does not establish premeditation and deliberation has some merit, because the only

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United States District Court

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See Mayfield, 14 Cal. 4th at 767; Steele, 27 Cal. 4th at 1249.

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Based on the evidence presented at trial, a rational trier of fact could have

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concluded that petitioner made a cold and calculated decision to take Cruz’s life after

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consideration and weighing of his options. The record reflects that petitioner left his house

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in Modesto with a loaded handgun concealed under the seat and drove to San Jose. Resp.

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Exh. D8 at 2273. After dropping his family off at his mother’s house, he drove around San

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Jose and ended up at Tango’s Cantina, where he had been a couple of times before. Id. at

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2279. From this evidence, a rational juror could logically infer that petitioner planned to

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commit the killing when he kept the loaded gun concealed in his car.

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While at the Cantina, petitioner struck up a conversation with Cruz and, according to

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his testimony, their interaction grew tense over the evening due to Cruz’s intoxication and

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jealousy over a bartender named Mery. Id. at 2198-2223. However, according to other

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accounts, their communication appeared to be perfectly normal. Resp. Exh. D10 at 2730-

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31. The only eyewitness, Olivera, testified that he saw both men immediately before the

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shooting and that neither appeared to be angry or hostile. Resp. Exh. D5 at 1304-05.

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Olivera further testified that he heard Cruz’s cries for help as he was being chased by

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petitioner, and heard petitioner respond that he was going to kill him, and that no one was

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there to help. Id. at 1313-14. Seconds later, Olivera heard a gunshot, followed by another
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gunshot five seconds later, and then another gunshot, and saw the victim lying face up in

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the entrance to the bar. Id. at 1319-20. At least four shots were fired, one of them at point

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blank range into the victim’s neck. Resp. Exh. D10 at 2765. From this evidence, a rational

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trier of fact could infer that, based upon their prior relationship (if any), or upon whatever

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transpired between the two men that evening, petitioner settled upon a course of action that

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would result in the victim’s death.

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Although these events did not take place over a significant period of time, the act of

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chasing down Cruz and pausing between gunshots as he cried out for help, is indicative of

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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

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reject the notion that the killing was more than just a “mere unconsidered or rash impulse

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hastily executed.” See Anderson, 70 Cal. 2d at 27 (citation omitted). These facts, coupled

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with the particularly strong evidence regarding the manner of killing, are sufficient to

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support a verdict of premeditated and deliberate first-degree murder.

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(iv) Conclusion

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Viewing the evidence in the light most favorable to the prosecution, the record

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supports the conclusion that a rational trier of fact could have found beyond a reasonable

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doubt that petitioner committed the murder with premeditation and deliberation. See United

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States v. Herrera-Gonzalez, 263 F.3d 1092, 1095 (2001). The state court’s determination

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that there was sufficient evidence to support the jury’s verdict of first-degree murder was

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not contrary to, or an unreasonable application of, clearly established federal law. See 28

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U.S.C. § 2254(d)(1); Jackson v. Virginia, 443 U.S. 307, 316 (1979).

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II.

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Prosecutorial Misconduct
Petitioner contends that the prosecutor committed misconduct in his closing

argument by misstating the law of manslaughter. Hab. Pet. 5.

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A. Factual Background

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The California Court of Appeal described the facts underlying this claim as follows:
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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.

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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.”

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Resp. Exh. B at 16-17, Exh. D10 at 2810-12.
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On direct appeal, petitioner argued that the prosecutor’s remarks misstated the law
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of provocation and heat of passion by allowing the jury to find that he was only entitled to a
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manslaughter verdict if a reasonable person would have done the same thing under similar
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circumstances. Resp. Exh. B at 18. The appellate court rejected this argument, finding
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that the prosecutor’s statement “did not imply that voluntary manslaughter is reserved for
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cases in which the person of average disposition would react by killing the provocateur.”
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Id. at 19. The court concluded that it was not reasonably likely that the jury interpreted the
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prosecutor’s remarks to mean that petitioner was not entitled to a manslaughter verdict
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unless it found that a reasonable person would have killed under the same circumstances.
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Id. Further, the trial court made it clear that, in the case of a conflict, the court’s instructions
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took precedence over the parties’ arguments. Id. Based on the record presented, the
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appellate court found no prosecutorial misconduct. Id.
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B. Legal Standard

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Prosecutorial misconduct is cognizable in federal habeas corpus. The appropriate

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standard of review is the narrow one of due process and not the broad exercise of

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supervisory power. See Darden v. Wainwright, 477 U.S. 168, 181 (1986). A defendant's

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due process rights are violated when a prosecutor's misconduct renders a trial

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fundamentally unfair. See Smith v. Phillips, 455 U.S. 209, 219 (1982) ("the touchstone of

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due process analysis in cases of alleged prosecutorial misconduct is the fairness of the

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trial, not the culpability of the prosecutor"). Claims of prosecutorial misconduct are

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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

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conviction a denial of due process.'" See Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir.

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1995) (citation omitted).

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C. Discussion

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Petitioner claims that the prosecutor committed misconduct by stating that

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manslaughter only applied in special cases where the provocation is so extreme that the

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average person would react as he did. Hab. Pet. Supp. at 4. Petitioner’s argument lacks

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merit. Under California law, “[a]n unlawful homicide is upon ‘a sudden quarrel or heat of

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passion’ if the killer's reason was obscured by a ‘provocation’ sufficient to cause an

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ordinary person of average disposition to act rashly and without deliberation.” See People

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v. Najera, 138 Cal. App. 4th 212, 223 (2006) (citation omitted). Here, the prosecutor’s

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remarks properly focused on the provocation and whether it was sufficient to cause an

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average person to act from passion; not upon the reasonableness of petitioner’s response

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to the provocation, which is irrelevant. See Najera, 138 Cal. App. 4th at 223. Even

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assuming that there was error, the court’s opening instructions made it unlikely that the jury

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interpreted the prosecutor’s statement to preclude a verdict of manslaughter.1 See Boyde

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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,
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v. California, 494 U.S. 370, 384 (1990) (“Arguments of counsel which misstate the law are

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subject to objection and to correction by the court”). Viewed in context of the entire

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argument and the court’s instructions, the prosecutor’s remarks did not result in a denial of

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due process. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 898 (9th Cir. 1996)

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(“[A]rguments of counsel are generally accorded less weight by the jury than the court's

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instructions and must be judged in the context of the entire argument and the

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instructions.”). The state court’s determination that there was no prosecutorial misconduct

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was not contrary to, or an unreasonable application of, clearly established federal law. See

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28 U.S.C. § 2254(d).

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III.

Instruction on Voluntary Manslaughter Based on Intoxication
Petitioner contends that the trial court erred by refusing his request to instruct the

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jury that it could consider voluntary intoxication in determining whether he actually killed in

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the heat of passion. Hab. Pet. at 6.

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A.

Factual Background

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During the instruction conference, defense counsel requested that he be permitted

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to argue that the defendant’s voluntary intoxication was relevant to the subjective

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component of voluntary manslaughter, in other words, whether he actually killed in the heat

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of passion. Resp. Exh. B at 19, D10 at 2708-09. Counsel also requested that the trial

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court modify its instructions on voluntary intoxication to allow the jury to consider the effect

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of the defendant’s intoxication on the question of whether he subjectively acted in the heat

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of passion. Resp. Exh. B at 19, D10 at 2710. Both requests were denied. Id.

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The trial court instructed the jury as follows:

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CALJIC 4.22

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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.

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you must follow my instructions.” Resp. Exh. D11 at 3004.
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Voluntary intoxication includes the voluntary ingestion, injection, or taking
by any other means of an intoxicating liquor, drug, or other substance.

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CALJIC 4.21.1

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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.

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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

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instruct the jury on voluntary manslaughter and the subjective component of heat of

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passion, there was no prejudice because: (1) the jury was instructed to consider the

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defendant’s voluntary intoxication in determining whether he possessed the required

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specific intent or mental state charged in count one or the lesser crime of murder in the

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second degree or voluntary manslaughter, and (2) the instructions provided numerous

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additional opportunities to resolve whether defendant actually killed in the heat of passion

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or whether there was a premeditated and deliberate murder. Resp. Exh. B at 21-22. Thus,

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the factual question posed by the omitted instruction was answered adversely to

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defendant’s position under the instructions given. Id. at 22. In any event, the appellate

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court found that there was no evidence of provocation on the part of the victim that would

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have caused a “reasonable person of average disposition to act rashly and without

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deliberation.” Id. In view of the overwhelming evidence that the homicide was murder, the
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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
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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
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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).
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CONCLUSION

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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

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