Love v. Hill

Filing 25

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Jeffrey S. White on 8/6/15. (jjoS, COURT STAFF) (Filed on 8/6/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TERRELL LOVE,
Petitioner,

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For the Northern District of California

United States District Court

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No. C 12-06068 JSW
ORDER DENYING PETITION
FOR WRIT OF HABEAS CORPUS

v.
RICK HILL, Warden,

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Respondent.

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Petitioner Terrell Love, a prisoner of the State of California, is serving an aggregate

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sentence of sixty-one years to life in state custody for convictions arising out of a murder in

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Oakland. Love filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 citing

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three grounds for relief: (1) burdening Petitioner’s Fifth Amendment right not to testify and

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interfering with Sixth Amendment right to counsel by effectively conditioning expert testimony

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and instruction on perfect and imperfect self-defense on Petitioner testifying at trial, (2)

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ineffective assistance of appellate counsel, and (3) unsupported jury instructions that injected a

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distorting confusion into the case.
Having considered the parties’ papers and the accompanying record, the Court hereby

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DENIES the petition.1
BACKGROUND

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I.

Procedural Background
Petitioner was originally convicted in 1999 of first-degree murder, attempted murder,

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and possession of a firearm by a felon. The murder occurred in 1995. This Court granted a
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The Court DENIES Petitioner’s request for oral argument. (Docket No. 24.)

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petition for writ of habeas corpus in 2008 after finding an error under Batson v. Kentucky, 476

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U.S. 79 (1986). In 2009, Petitioner was retried and convicted of second degree murder,

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attempted murder, and possession of a firearm by a felon. The trial court sentenced Petitioner to

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sixty-one years to life in prison. On May 24, 2011 the California Court of Appeal affirmed

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Petitioner’s convictions. On June 13, 2011, Petitioner’s habeas petition related to the direct

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appeal was denied summarily by the California Court of Appeal. On September 14, 2011, the

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California Supreme Court denied review. On January 25, 2012, the California Supreme Court

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denied Petitioner’s habeas petition summarily.

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On November 30, 2012, Petitioner filed his petition for writ of habeas corpus in this
Court. On November 13, 2013, the Court granted Respondent’s motion to dismiss Claim IV as

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For the Northern District of California

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unexhausted and Claim V as procedurally defaulted. Respondent filed his answer on February

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3, 2014. On September 26, 2014, Petitioner filed his traverse.

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II.

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Factual Background
The facts underlying the charged offenses as found by the Court of Appeal are set forth

as follows:

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The People’s Case

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The victim, Sean Johnson, sold drugs on Hayes Street in Oakland. His girlfriend,
Collette McDaniels, testified that in the early evening of March 3, 1995, Johnson picked
her up and drove her to an apartment on Hayes Street. McDaniels and one or two
women who were at the apartment went down the street to a liquor store for beer. On
their way back, they saw defendant pinning Johnson to the trunk of a parked car, holding
a gun to his head. McDaniels described the weapon as a black semiautomatic handgun
with a 10-inch barrel. McDaniels, who had no difficulty seeing defendant’s face, heard
him tell Johnson, “[Y]ou are going [to] die tonight.”

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Johnson told McDaniels to go inside the apartment. She saw three to five people
across the street who were encouraging defendant threatening Johnson. She went inside
the apartment. Johnson came in a few minutes later, and was upset. Apparently, he told
her defendant was angry because Johnson was selling drugs in front of defendant’s
grandparents’ house. Johnson called some friends on the telephone. Two men described
as Johnson’s “home boys,” “T.” (aka “Red Card”) and “Mario,” arrived at the
apartment. Johnson pulled out a gun, that was apparently a double-barreled shotgun with
an eight-inch barrel and a small handle, and gave it to one of the “home boys.”
Later that evening, Johnson drove McDaniels, Red Card, and Mario to the
Vintage Inn on Seminary Avenue. Either Red Card or Mario had the shotgun. They
spoke to a man named “Chaka” in front of the Vintage Inn, but Chaka told Johnson he
was too drunk to do anything for him.

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Johnson dropped off Mario and Red Card and drove off with McDaniels. After
circling the block, Johnson stopped and got out of the car at the intersection of Fortune
Way and Seminary. Johnson told McDaniels to park the car. She parked three car
lengths down Fortune Way, facing the intersection with Seminary, as well as the
Vintage Inn, which was on the far side of Seminary.
As she sat in the parked car, McDaniels saw defendant drive a car up Fortune
Way, park, and get out. She saw defendant and Johnson approach each other in the
street. Johnson raised his hands up to show they were empty, and said “Man, I ain’t got
no gat [i.e., gun]. Let’s talk about this. . . .” Defendant replied, “Too bad. You should
have thought about that before you came up here.” Defendant then shot Johnson.
McDaniels testified she was looking directly at defendant when he shot Johnson
with what appeared to be a semiautomatic handgun. Johnson was about 15 feet from
defendant when he fired two shots. The victim fell to the ground. Defendant walked up
to Johnson, kicked him to turn him over so that he was face up, and then fired a third
shot into his head at close range.
McDaniels screamed and sounded the car horn. Defendant approached the car,
came up to McDaniels’ closed window, and pointed the gun at her. McDaniels ducked
down on the seat. Defendant shot at her through the window, showering her with glass.
The bullet struck her in the buttocks, causing her long-term injury.

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McDaniels testified that when she first saw the man driving up Fortune Way and
approaching Johnson, she did not know the person was defendant—but she recognized
defendant when he came up to the parked car and pointed the gun at her. She also picked
defendant’s picture from a display of six photographs shown to her at the hospital after
she was shot. Before the preliminary hearing in this matter, she picked defendant from a
six-person live lineup.
On cross-examination, McDaniels testified that Johnson, Red Card and Mario
were members of the gang known as the Black Guerilla Family (BGF). Johnson’s BGF
nickname was “Scar Face.” She did not know if Chaka was a BGF member.
Lisa Travillian, Johnson’s cousin, testified that she, McDaniels, and a third
woman walked from the apartment building to the liquor store the afternoon of the day
of the killing. As they walked back to the apartment, the women saw Johnson arguing
with some men in the street. One of the men said, “Don’t disrespect, don’t disrespect.”
Johnson replied, “I am not going nowhere.” One of the men said he was going to get his
brother. Travillian and her companions went into one of the apartments in the building.

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At some point, Travillian went back out into the street, where Johnson was still
arguing with several men. A man she identified as defendant appeared with a black
semiautmoatic handgun which was about 11 inches long. Travillian knew Johnson did
not have a gun because he just got back from court; she had never seen him with a gun.
Johnson told Travillian to go inside the apartment. Defendant and the victim began
“tussling.” A man across the street said, “Shoot him man, just shoot him.” Johnson later
came into the apartment, and seemed “shocked” and “scared.”

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Johnson’s body was found on Fortune Way about 44 feet from the intersection
with Seminary. There was a spent slug in Johnson’s clothing. Police officers found three
.45 shell casings near McDaniels’ car, and two more .45 casings between the car and
Johnson’s body. They also found a live round nearby. In another area, apparently across
the intersection or further down one of the streets, police officers found four additional
shell casings.
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A criminalist testified the five .45 shell casings found in the area of McDaniels’
car were fired from the same .45 gun, and the live round was ejected from that same
weapon. The four shell casings found in the other area across the intersection were fired
from the same .45 gun, but not the same gun which fired the five shells near McDaniels’
car.
The autopsy physician testified that Johnson had three entry wounds: through
and through wounds to the torso and head and a grazing wound on the inner forearm.
The head wound was consistent with a .45 bullet and the weapon could not have been
farther away than 18 to 24 inches when the head shot was fired. The head wound was
fatal and the torso wound was likely to have been. Johnson’s hands bore no smoke,
powder, or stippling, suggesting that he had not fired a gun.

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Chaka, whose real name was Milton Pringle, also testified for the People. Pringle
and Johnson were both members of BGF at the time of the shooting.
Some time between 11:00 p.m. and midnight on the night of the murder, Pringle
was near the entrance of the Vintage Inn. He saw defendant there, and 10 to 15 minutes
later he saw Johnson with Mario, Red Card, and Pringle’s nephew Horel. Red Card
brought Johnson and Horel to Pringle and asked Pringle to mediate a dispute which
Pringle thought was between Johnson and Horel. Apparently, neither man said anything
to Pringle, and they both walked away down Seminary. Defendant walked across
Seminary toward Fortune Way. Red Card or Mario told Pringle something was going to
happen as a result of the “misunderstanding” between Johnson and defendant. Pringle
assumed this meant a fight, a stabbing or a shooting.
About 20 to 25 seconds later, Pringle heard shots from down Fortune Way. He
heard five or six shots, and then after a pause, two or three more.

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Pringle was arrested for another crime six months after the shooting. He saw
defendant at the courthouse. Defendant asked him to tell defendant’s attorney that he
was not present at the murder scene. Pringle also got two letters in jail from defendant,
in which defendant told him he would put money on Pringle’s books in the jail in
exchange for Pringle telling an investigator that he witnessed the shooting and defendant
was not the shooter.
Pringle testified at some length about the BGF. He confirmed that he had been a
BGF member the night of the shooting. The BGF had a constitution, by laws, and a code
of ethics. BGF members were required to take an oath which Pringle, with obvious
reluctance, recited from the witness stand: “If I should break my stride or falter at my
comrade’s side, this oath shall kill me. . . . If I should submit to greed and lust or misuse
the people’s trust, this oath shall kill me. If I be slow to take a stand and show fear to
any man, this oath shall kill me. If I become lax in discipline and in time refuse my
hand, this oath shall kill me. Long live the spirit of Comrade Jesse George Jackson, long
live the BGF.”
Pringle testified that BGF members are required to help other members retaliate
for assaults and threats against members, or for interference with a member’s drug
dealing activity. Such retaliation could be verbal and did not necessarily include
violence.

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Mario, whose full name was Mario Gaines, testified he was currently a minister
and had left behind his involvement with drugs and alcohol. In addition to his trial
testimony, the People admitted his testimony from the preliminary hearing and a tape
recording of an interview with police officers on March, 22, 1995, which was played for
the jury.
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Gaines testified that on the day of the murder he was called to the Hayes Street
apartment and Johnson’s brother drove him there. The brother dropped him off on the
street behind the apartment and told him to climb the fence. Inside the apartment, Gaines
found Johnson “uptight” and upset. Johnson told Gaines he had been told not to sell
drugs in front of someone’s grandmother’s apartment, and that he wanted to go and talk
to the man who had threatened him. Johnson told Gaines the man who threatened him
had been armed. Johnson said he wanted to resolve the matter peaceably because he had
just got out of jail and did not want to go back.
At the preliminary hearing, Gaines testified Johnson had given him a 9mm
handgun, and Gaines said he saw a sawed-off shotgun—presumably the same weapon
seen by McDaniels—in the apartment. At trial, he testified Johnson gave him the
handgun, but later testified that it was Johnson’s brother who gave him the handgun. He
also testified that he had only a general recollection that there was another gun in the
apartment.

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Johnson drove Gaines, Red Card, and McDaniels toward Seminary and Bancroft.
Gaines testified at trial and the preliminary hearing that neither Johnson nor Red Card
were armed while in the car. About three blocks from the Vintage Inn Johnson dropped
off Gaines and Red Card, so they could follow Johnson “and kind of cold trail to see
what was going on.” Presumably, this is the point where McDaniels drove the car to the
parking space.
The three men walked to the Vintage Inn where Johnson explained the situation
to Pringle (aka Chaka). Red Card talked to Pringle about mediating the dispute between
Johnson and the defendant. Pringle said he couldn’t talk to defendant because defendant
was stupid and hard headed.

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Johnson walked away, across Seminary and down Fortune Way. Gaines saw
Johnson walk down the center of Fortune Way, with his hands up at shoulder level with
his palms forward. Johnson had nothing in his hands. He did not have a gun. Gaines
heard Johnson say to a man, “I want to talk.” Gaines saw the person that Johnson spoke
to walk over to a car parked on Fortune Way, reach through the driver’s window, then
come back. In his interview with police, Gaines said he saw the person point a gun at
Johnson and start shooting. Someone then started firing at Gaines from another area
across the street. Gaines started running, but he did have a chance to see the armed man
walk up to McDaniels’ car and point the gun at it.

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At the preliminary hearing, Gaines testified defendant was not the shooter. At
trial, he testified he did not get a good look at the shooter with regard to his height,
weight, build, clothing, or age.

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Two investigators for the district attorney’s office testified they had interviewed
a man named Lloyd Morris, who told them he saw defendant shoot Johnson. Morris told
one investigator he witnessed the “kill shot” to the head, and that he never saw Johnson
with a gun.

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The Defense Case

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Defendant testified as follows. He was 27 at the time of the shooting in 1995. He
had been convicted of possession for sale of drugs in 1989, and assault with a deadly
weapon (a baseball bat) in 1990. In 1995, he sold drugs on the street in the Seminary and
Hayes area, or by page. He admitted it was possible he told police officers he made
about $500 a day selling crack cocaine.

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On the day of the shooting, his brother Mershell called him and told him Johnson
and others were selling drugs in front of defendant’s grandmother’s house. Mershell had
confronted the sellers, and they had become “belligerent” and “disrespectful.” Mershell
was upset. Defendant said he would come by and talk to Johnson because he and
Johnson were friends.
He parked his car at the scene of the shooting and talked to Johnson, telling him
he heard there was a misunderstanding between Johnson and Mershell. Defendant had
prior conversations with Johnson about selling drugs in front of his grandmother’s
house, which he thought was disrespectful.

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Johnson became “belligerent, hostile, and angry” and told defendant he did not
“give a fuck” about Mershell. He told defendant, “Your brother don’t own these streets.
I am BGF, and I can sell my drugs anywhere I want to and I don’t give a fuck.”
Defendant became frustrated and punched Johnson twice. They “tussled.” Johnson
grabbed defendant and defendant pushed Johnson away. Johnson ran away along the
side of the apartment complex. This incident only lasted about 10 seconds. Defendant
did not have a gun.

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About 11:00 that night, defendant went to the Vintage Inn. He took a gun with
him, but left it in his car because he thought he would be frisked going into the Vintage
Inn. He left about 11:30. A woman told him some men outside were looking for him. He
remembered the incident with Johnson and was scared because he knew Johnson
belonged to the BGF. As he walked to his car he noticed Pringle.

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Defendant walked across Seminary and down Fortune Way, where apparently
his car was parked. He heard someone call out that they wanted to talk to him. He
looked over his shoulder and saw Johnson and two others. He kept walking toward his
car. Johnson again said he wanted to talk to him, and said he did not have a gun.
Johnson held his left hand up in the air, but his right arm was hidden behind his back. As
defendant reached his car, a man standing next to Johnson began shooting, firing four to
six shots. Defendant ducked and went into his car to retrieve his gun. He crouched
against the car and waited until the shooting stopped. He saw Johnson coming toward
him holding a sawed-off shotgun in his outstretched arm. Defendant pointed his gun at
Johnson, advanced toward him, and fired two or three times. Defendant tried to wound
Johnson, not kill him. Defendant initially said he was no closer than 28 feet to Johnson,
then narrowed the distance to 16 feet, then 3 or 4 feet.
After Johnson fell, defendant turned toward his car to leave. But he was still
concerned about the man next to Johnson who had shot at defendant. Then a man
standing on a corner started shooting at him. Defendant noticed McDaniels’ car and saw
there was someone in it. He couldn’t tell if it was a man or a woman, but he ran toward
the car thinking the person was another BGF member. As he reached the car, it looked
like the person was leaning over as if to get a weapon, so defendant fired one shot into
the car. He then ran back to his car, got in, and drove away. He threw his .45 handgun
into a garbage bin.

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Defendant admitted he had asked Pringle to say he was not the shooter. He also
admitted two prior assaults. He hit his ex-girlfriend’s sister with a baseball bat because
she interfered with a fight between defendant and his ex-girlfriend and she owed him
money. And while in jail in 1998 he and two other inmates fought with a fourth inmate,
and defendant kicked him in the ribs. Furthermore, defendant admitted he had told
police officers he was known as the type of person who “don’t take no shit.”
Daniel Vasquez is a former warden of San Quentin State Prison and a criminal
justice consultant with over 30 years experience in the California Department of
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Corrections (CDC). He testified for defendant as an expert in gangs and gang operations,
both in and out of prison. He testified that BGF members are sworn in with a “blood in
and blood out” oath. This means “you are usually willing to spill blood to be part of . . .
BGF, and your blood will be spilled if you drop out.” This entry oath is a separate oath
from the one quoted above, which requires that a BGF member may forfeit his life if he
falters or doesn’t kill an enemy. Members must be sophisticated criminals, and they
refer to each other as “brother” or “comrade.” If a BGF member is attacked or insulted
his fellow gang members will retaliate. If someone interfered with a BGF member doing
his trade—i.e., drug dealing—on his “turf” in the streets, they “might be warned or . . .
might just be directly attacked.” The BGF plans attacks on enemies, and operates in
groups for superiority of force.

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Rebuttal

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Oakland Police Officer Andrew Barton also testified as a gang expert. He
testified BGF was “more decentralized and disorganized” on Oakland streets in the
1990’s than it had been in the 1980’s, and that a request for help from a disrespected
gang member could be refused depending on the rank of the member within the gang
hierarchy and other factors.
(Resp’t Ex. 6 at 2-10.)
STANDARD OF REVIEW
Federal district court review of habeas corpus petitions is governed by the Antiterrorism

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and Effective Death Penalty Act of 1996 (“AEDPA”). Under the AEDPA, a district court may

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not grant a habeas corpus petition that challenges a state conviction or sentence on the basis of a

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claim that was reviewed on the merits in state court unless the state court’s adjudication of the

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claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application

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of, clearly established Federal law, as determined by the Supreme Court of the United States; or

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(2) resulted in a decision that was based on an unreasonable determination of the facts in light

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of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d).

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The AEDPA standard is “highly deferential” to state court decisions, which must be

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“given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002). “Clearly

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established federal law” is defined as “the governing legal principle or principles set forth by

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the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538

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U.S. 63, 71-72 (2003). “A state court decision is ‘contrary to’ clearly established federal law ‘if

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the state court applies a rule that contradicts the governing law set forth in’” Supreme Court

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decisions or “confronts a set of facts that are materially indistinguishable from a decision of”

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the Supreme Court and nevertheless reaches a different result. Menendez v. Terhune, 422 F.3d
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1012, 1025 (9th Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). A state

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court decision constitutes an “unreasonable application of clearly established federal law, ‘if the

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state court identifies the correct governing legal principle from [the Supreme Court’s] decisions

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but unreasonably applies that principle to the facts of the prisoner’s case.’” Id. (quoting

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Williams, 529 U.S. at 413). The state court decision “must be more than incorrect or erroneous”

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and must be “objectively unreasonable” to constitute an unreasonable application of federal

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law. Lockyear, 538 U.S. at 75. The AEDPA “sharply limits the circumstances in which a federal

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court may issue a writ of habeas corpus to a state prisoner whose claim was ‘adjudicated on the

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merits in State court proceedings.’” Johnson v. Williams, 133 S.Ct. 1088, 1094 (2013) (quoting
28 U.S.C. § 2254(d)). “When a federal claim has been presented to a state court and the state

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court has denied relief, it may be presumed that the state court adjudicated the claim on the

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merits in the absence of any indication . . . to the contrary.” Harrington v. Richter, 562 U.S. 86,

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99 (2011). In cases where the federal court “must decide a constitutional issue not adjudicated

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on the merits in state court,” the federal court “independently reviews the record to determine

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whether the state court clearly erred in its application of Supreme Court law.” Menendez, 422

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F.3d at 1025 (citing Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002)).

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“Habeas relief is warranted only if the error had a ‘substantial and injurious effect or

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influence in determining the jury’s verdict.’” DePetris v. Kuykendall, 239 F.3d 1057, 1061 (9th

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Cir. 2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)).

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“It is not within the province of a federal habeas court to reexamine state-court

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determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). “In

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conducting habeas review, a federal court is limited to deciding whether a conviction violated

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the Constitution, laws, or treaties of the United States.” Id. at 68. Factual determinations by

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California state courts are entitled to a general “presumption of correctness.” Sumner v. Mata,

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449 U.S. 539, 547 (1981). The Petitioner has the “burden of rebutting the presumption by clear

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and convincing evidence.” Wood v. Allen, 558 U.S. 290, 293 (2010).

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The California Supreme Court denied Petitioner’s petition for review without comment
or citation to authority. (See Resp’t Ex. 2.) In these circumstances, a district court “looks
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through” the unexplained decision to the last reasoned decision as the basis for the state court’s

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judgment. Boyd v. Newland, 467 F.3d 1139, 1143 n.3 (9th Cir. 2006); Shackleford v. Hubbard,

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234 F.3d 1072, 1079 n.2 (9th Cir. 2000) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04

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(1991)). In the instant case, the last reasoned decision relating to Petitioner’s first and third

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claims was the California Court Appeal’s decision filed on May 24, 2011. (Resp’t Ex. 2.)

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Petitioner’s second claim for ineffectiveness of appellate counsel was denied, without a

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reasoned decision, by the California Supreme Court.

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Petitioner’s Fifth and Sixth Amendment Rights Were Not Violated by the Trial
Court’s Decision to Exclude Expert Testimony and Jury Instruction on SelfDefense at the Close of the People’s Case.
a.

Trial Court Did Not Erroneously Evaluate the Sufficiency of the Evidence to
Support Admission of Expert Testimony and Self-Defense Jury Instruction
and Did Not Effectively Force Petitioner to Testify.

Petitioner contends that the trial court effectively forced him to testify because it

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erroneously determined that the evidence that arose in the People’s case was insufficient to

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provide a basis for the admission of Daniel Vasquez’ expert testimony. Petitioner also contends

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that he was effectively forced to testify because the trial court erroneously determined that he

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was not entitled to jury instructions on perfect and imperfect self-defense at the close of the

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People’s case. The California Court of Appeal determined that, based on the trial court record,

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jury instructions, and admission of Vasquez’ testimony was not effectively conditioned on

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Petitioner testifying at trial.

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California law regulates the admission of evidence at trial. A trial court can exclude

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evidence for lack of foundation. Cal. Evid. Code § 402. Under California Evidence Code

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section 352, it is within the trial court’s discretion to “exclude evidence if its probative value is

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substantially outweighed by the probability that its admission will . . . create substantial danger

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of undue prejudice, of confusing the issues, or of misleading the jury.” Cal. Evid. Code § 352.

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California law also regulates jury instructions. “A defendant is entitled to a jury

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instruction only if substantial evidence, or ‘evidence sufficient to deserve consideration by the

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jury,’ supports the giving of that instruction.” Menendez, 422 F.3d at 1028 (quoting People v.

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Barton, 12 Cal.4th 186, 201 (1995)). Imperfect self-defense is recognized in California in
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homicide cases “where the killing resulted from an ‘actual but unreasonable belief in the

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necessity to defend against imminent peril to life or great bodily injury.’” Id. (quoting CALJIC

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No. 5.17 (1995)). While the imperfect self-defense instruction does not require a showing that a

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reasonable person believed the peril to be imminent, “the defendant must make some showing

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that he actually believed the peril to be imminent.” Id. “A state trial court’s finding that the

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evidence does not support a claim of imperfect self-defense is entitled to a presumption of

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correctness on federal habeas review.” Id. at 1029 (citing Hartman v. Summers, 120 F.3d 157,

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161 (9th Cir. 1997)). “‘Failure to give [a jury] instruction which might be proper as a matter of

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state law,’ by itself does not merit federal habeas relief.” Menendez, 422 F.3d 1029 (quoting

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Miller v. Stagner, 757 F.2d 988, 993 (9th Cir. 1985)).
Petitioner’s argument that his Fifth and Sixth Amendment rights were violated is

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premised on the Court finding that the trial court erred in its evaluation of the evidence and

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effectively conditioned the admission of expert testimony and the disputed jury instruction on

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Petitioner’s decision to testify. Petitioner argues that the trial court erroneously determined that

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the evidence that arose in the People’s case was insufficient to introduce Vasquez’ expert gang

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testimony and establish a basis to instruct the jury on self-defense. Petitioner further asserts that

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the Court of Appeal erred in its determination that admission of Vasquez’ expert testimony and

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instruction on self-defense was not effectively conditioned on Petitioner testifying.

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The Court of Appeal summarized the factual background of Petitioner’s claim as
follows:
After defendant identified Vasquez as a prospective defense witness, the People filed a
motion in limine to exclude defendant from referring to any expert witness testimony,
for instance during voir dire or his opening statement, prior to a hearing under Evidence
Code section 402: “The People can only guess that Mr. Vasquez’s testimony would be
about the Black Guerilla Family, a prison gang to which the victim purportedly
belonged. Without any showing of relevance it is impossible to weight the relevance
against the potential for prejudice to the People pursuant to Evidence Code section 352.”
At the hearing on the motion, defense counsel stated Vasquez would testify that
Johnson, Pringle, Gaines, and Red Card—a group counsel described as “this little group
that went out to kill Mr. Love”—were members of BGF, “and that’s documented in the
discovery.” Vasquez would also testify about the BGF and related matters based on his
experience as warden of San Quentin State Prison.
Counsel argued the group’s BGF membership was probative because of his theory of the
case: “after the . . . altercation on Hayes Street . . . Johnson went around and, shall we
10

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say, gathered up a number of his comrades from the [BGF] and proceeded over to
Fortune and Seminary where they went to locate and kill” defendant.

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The prosecutor argued that without evidence of defendant’s knowledge of the BGF
memberships of the group, there would be little relevance to the defense of self-defense:
“I think we are a bit premature and I certainly can’t make [defendant] testify.” The
prosecutor was also concerned that defense counsel would talk about Vasquez in his
opening statement “and how he is going to tell [the jury] what horrible, horrible people
the various witnesses are . . . .”
The trial court agreed the key point was defendant’s knowledge: “So there would be no
probative value for any expert testifying about BGF anything unless it is relevant on the
issue, first, of self-defense and the defendant saying, yeah I know they were all members
of the BGF . . . .” The court also expressed concern that references to expert testimony
about BGF prior to the testimony of the People’s witnesses who were or had been gang
members would amount to “character assassination” and a suggestion that “they’re bad
actors because they’re members of the BGF.”
The trial court granted the motion to exclude reference to expert gang testimony in the
defense opening statement, saying that to admit Vasquez’ testimony the court needed
more information about the defendant’s knowledge of the BGF memberships and offers
of proof of the nature of the BGF witnesses’ testimony. The court would then have to
make a determination under section 352.
Defense counsel promised at the motion hearing that he would not refer to a gang expert
in voir dire or his opening statement, and seemed to promise, at the urging of the trial
court, that he would not refer to BGF. But at the outset of his opening statement, defense
counsel referred to Johnson as an ex-felon and a member of BGF, which he identified as
a “violent prison gang” whose members “engage in community criminal activity in
furtherance of their goals” when released from prison. Counsel outlined his theory of the
case that, after the initial Hayes Street altercation, Johnson rounded up several BGF
“comrades” and went after defendant in retaliation, with the intent to kill him. Counsel
stressed that Johnson’s “comrades” acted out of “loyalty” to assist Johnson “in an
endeavor to go kill” defendant because Johnson was told that he could not establish a
territory on Hayes Street to sell dope to support himself, having just got out of prison.
After the testimony of McDaniels, Travillian, and a few other witnesses, but just before
the testimony of Pringle, the court and the parties again discussed the issue of Vasquez’
testimony. Apparently, the prosecutor had requested a section 402 hearing in light of
McDaniels’ testimony that Johnson, Gaines and Red Card were BGF members. The
court asked defense counsel to explain the relevance and probative value of the
testimony. Counsel again stated his premise that Vasquez’ testimony was probative on
the issue of BGF retaliation for someone trying to exclude a member from selling drugs
in his territory, and “the fact that this was a collection of BGF guys pulled together by
. . . Johnson to go over and kill” defendant.
After a lengthy discussion with defense counsel, the court ruled that Vasquez’
testimony, at that point in the case, would be more prejudicial than probative under
section 352. The court noted, correctly, there had yet to be any evidence of self-defense
and the probative nature of the BGF testimony would depend on defendant’s
knowledge: “[Y]our client hasn’t gotten up and said because what does become
probative on a self-defense is what was in the mind of the individual at the time he acted
purportedly under self-defense and what was his intent and state of mind, . . . And if
[defendant] says BGF, well, then . . . the issue for me at that point becomes not one of is
it relevant that they’re in the BGF, but it is whether or not . . . under [section] 352, we
want to bring an expert witness in to essentially say, [h]ere is how they operate, that’s
11

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what they do. And as far as I am concerned, if [defendant] knows what they do and how
they operate, that’s kind of probative. But I am not ruling on that yet because that’s not
before me.” The court again expressed concern that Vasquez’ testimony would be
“improper character evidence” and an “improper impeachment tool” of prosecution
witnesses—the jury would think they were “bad people” because they belonged to BGF.
The court told defense counsel he could raise the issue at a later point in the case. The
court also told counsel that even if defendant testified, his testimony might not be
sufficient to allow Vasquez’ testimony.
After the testimony of Pringle and Gaines and several other witnesses, the People rested.
Defense counsel again raised the issue of Vasquez’ testimony, stating he wanted the
court’s decision on whether to allow the testimony before he decided whether defendant
should testify. The court responded: “[L]et me just make it very clear, whatever my
ruling is about Vasquez, I am not in any way, shape, or form at all in my mind
intimating, stating, thinking even about whether [defendant] testifies.” The court stated
it was viewing Vasquez’ testimony as a separate issue, involving, in part, as-yetundisclosed CDC records—which, presumably, Vasquez would explain to the jury—
which might impeach Gaines by showing that he was in fact a BGF member, despite his
denial on the stand. The court said, “I am not at all considering whether the defendant
testifies or not. That is solely his right to and solely his right not to. So whatever I rule
regarding Mr. Vasquez has nothing to do with whether I view the defendant having the
right to testify or not testify and he has absolutely that right.”
The trial court elaborated: “[I]f [defendant] were to testify and [defendant] were to say
that one of the reasons—if he put forth the self-defense, which you have indicated that
he is likely to do, and certainly it is probative, the things [defendant] would have had in
his mind at the time he acted ostensibly in self-defense, then if one of those factors were
the fact that he thought these people were BGF and this is how BGF does and acts, then
that certainly would bring that issue before the court.

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I never ever said that that was absolutely a predicate, however, to my deciding whether
or not Mr. Vasquez would or would not be allowed to testify. It would simply be that if
your client did testify to that effect, then that would be a factor I would definitely
consider in deciding whether or not Mr. Vasquez would testify. I can’t tell you, nor
would I even know how you are going to present your defense case. And clearly since
the defendant has an absolute right not to testify, I could never predicate my decisions
about your other witness on whether he did or didn’t testify. I was simply outlining that
if, in fact, that were the testimony, assuming he waived his . . . Fifth Amendment right
not to testify, and did testify, that I would consider that in determining whether Mr.
Vasquez could testify . . .”
Defense counsel declined the court’s offer for an immediate ruling, and asked that the
matter be continued so he could obtain the CDC record. Counsel made it clear that the
CDC records would affect his decision whether to have defendant testify.
Subsequently, after in camera review, the trial court granted limited discovery of some
of the CDC records. After that, defendant testified. Because defendant testified that
Johnson told him he was a member of BGF, and that made him scared when the woman
in the Vintage Inn told him a group of men were looking for him and made him think a
BGF member was in McDaniels’ car, the trial court ruled there was sufficient evidence
of defendant’s state of mind to allow Vasquez’ testimony about BGF and the way they
operate. Such testimony, especially about BGF operations—presumably including
retaliation—would corroborate defendant’s fear that Johnson and his friends were
coming after him and would be pertinent to the defense of self-defense. Vasquez then
testified.
12

1

(Resp’t Ex. 6 at 10-14.)

2

The Court of Appeal reasoned that the trial court’s language made it expressly clear that

3

the court did not condition the admission of expert testimony on Petitioner’s decision to testify.

4

This Court agrees. The trial court expressed that in ruling on whether to allow Vasquez’

5

testimony, the court was “not at all considering whether the defendant testifies or not.” (8 RT

6

1920.) The court noted that it “is solely [the defendant’s] right to and solely his right not to”

7

testify. (Id.) The trial court went on to state that in “deciding whether or not Mr. Vasquez would

8

or would not be allowed to testify” Petitioner’s testimony was not an absolute predicate. (8 RT

9

1921.) The trial court only stated that if Petitioner testified that he acted in self-defense out of
knowledge that those attacking him were BGF members, and he knew that BGF members act in

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10

a certain way, it “would be a factor [the court] would consider in deciding whether or not Mr.

12

Vasquez would testify.” (Id.) Instead of conditioning the admission of Vasquez’ testimony on

13

Petitioner’s decision to testify, the trial court correctly considered the probative value of

14

Vasquez’ testimony versus the potential prejudice it would create (under California Evidence

15

Code section 352). This is consistent with the trial court’s right to exclude evidence for lack of

16

foundation under state law. See Cal. Evid. Code § 402.

17

Additionally, the Court of Appeal found that while, in general, entitlement to instruction

18

on self-defense and imperfect self-defense can be shown from only the People’s case, “that was

19

not the case here.” (Resp’t Ex. 6 at 15.) The Court of Appeal’s statement of the facts noted that

20

the People’s case showed that Johnson approached Petitioner unarmed and with his hands in the

21

air prior to being shot. Then Petitioner “gunned him down and . . . delivered a kill shot to his

22

head while he lay on the ground wounded.” (Id.) These facts are not at all consistent with

23

Petitioner’s theory of self-defense. In accordance with state and federal law, the trial court did

24

not agree to give instruction on perfect and imperfect self-defense. See Menendez, 422 F.3d at

25

1028-29 (holding that the state court correctly determined that state law did not allow for an

26

imperfect self-defense jury instruction and thus Petitioners’ constitutional rights were not

27

violated). There was not substantial evidence to support a jury instruction on self-defense and

28

there is nothing in the record that suggests that the trial court erred in its refusal to give the self13

1

defense instructions in the absence of new evidence in the defense case. Additionally, the trial

2

court’s statements contradict Petitioner’s assertion that the trial court “virtual[lly] demand[ed]”

3

Petitioner testify. (Pet. ¶ 11.) The trial court simply noted at the close of the People’s case that

4

there was not substantial evidence to support an instruction on self-defense. (9 RT 1992.) The

5

trial court did not state that it was necessary for Petitioner to testify for the court to give the

6

instruction. Instead, the trial court stated that at the close of the People’s case, the court did not

7

find that the “evidence would substantiate a giving of the self-defense instruction” at that point,

8

but that the court would “revisit” the decision to give certain instructions “once all the evidence

9

is in in this case.” (9 RT 1992-1993.)
The Court of Appeal’s factual finding that the trial court did not effectively force

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10

Petitioner to testify in order to admit expert testimony and receive a jury instruction on self-

12

defense was not “based on an unreasonable determination of the facts in light of the evidence

13

presented in the State court proceeding.” See 28 U.S.C. § 2254(d)(2). The state court’s

14

determination is presumed to be correct and given deference because it relates to Petitioner’s

15

constitutional claims. See Menendez, 422 F.3d at 1029. The evidence before the trial court did

16

not favor Petitioner’s theory of self-defense or provide Vasquez’ testimony with the required

17

probative value under state evidence law. In light of the record in the case, the Court finds that

18

the trial court did not err in evaluating the sufficiency of the evidence and accordingly did not

19

condition admission of expert testimony and self-defense jury instruction on Petitioner’s

20

decision whether to testify.

21
22

b.

No Violation of Clearly Established Federal Law Even if Admission of
Expert Testimony and Self-Defense Jury Instruction was Effectively
Conditioned on Petitioner Testifying.

23

Petitioner contends that the state trial court violated his Fifth Amendment right to not

24

testify and Sixth Amendment right to counsel by “effectively conditioning” the admission of

25

Daniel Vasquez’ expert gang testimony, and instruction on perfect and imperfect self-defense

26

on Petitioner’s decision to testify. Even if Petitioner presented a sufficient factual basis to

27

indicate that he testified because it was the only way to admit Vasquez’ testimony and receive a

28

self-defense jury instruction, authority shows that Petitioner was not improperly compelled to
14

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testify and there was no Fifth or Sixth Amendment violation. Although the Court has found the

2

premise to be factually unsupported by the record, for purposes of addressing all alternatives,

3

the Court will address this constitutional issue. For purposes of this analysis, the Court will

4

assume that Petitioner was able to show that the admissibility of Vasquez’ testimony and self-

5

defense jury instruction were effectively conditioned on his testimony.

6

The Fifth Amendment guarantees that “[no] person . . . shall be compelled in any

7

criminal case to be a witness against himself.” U.S. Const. amend. V. To qualify for the Fifth

8

Amendment privilege, the communication must be testimonial, incriminating, and compelled.

9

Hiibel v. Sixth Jud. Dist. Ct. of Nev., Humboldt Cnty., 542 U.S. 177, 189 (2004). “A criminal
defendant need not take the stand and assert the privilege at his own trial.” Salinas v. Texas, 133

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10

S. Ct. 2174, 2179 (2013). The defendant’s right against self-incrimination is the right “to remain

12

silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no

13

penalty . . . for such silence.” Brooks v. Tennessee, 406 U.S. 605, 609 (1972) (quoting Malloy v.

14

Hogan, 378 U.S. 1, 8 (1964)). “Whether the defendant is to testify is an important tactical

15

decision as well as a matter of constitutional right.” Id. at 613.

16

The Constitution “guarantees a criminal defendant a meaningful opportunity to

17

introduce relevant evidence on his behalf.” Crane v. Kentucky, 476 U.S. 683 (1986). In Brooks,

18

the Supreme Court held that a Tennessee statute that required that a criminal defendant testify

19

prior to all other defense testimony, or not at all, was a violation of the defendant’s Fifth

20

Amendment privilege against self-incrimination and his Sixth Amendment right to the “guiding

21

hand of counsel.” Brooks, 406 U.S. at 612-13. The Supreme Court noted that “a defendant may

22

not know at the close of the State’s case whether his own testimony will be necessary or even

23

helpful to his cause.” Id. at 610. “By requiring the accused and his lawyer to make” the choice

24

to testify “without an opportunity to evaluate the actual worth of their evidence [a] statute

25

restricts the defense—particularly counsel —in the planning of its case.” Id. at 612. “The

26

accused and his counsel may not be restricted in deciding whether, and when in the course of

27

presenting his defense, the accused should take the stand.” Id. However, this requirement does

28

not “curtail in any way the ordinary power of a trial judge to set the order of proof.” Id.
15

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Furthermore, the requirement “does not constitute a general prohibition against a trial judge’s

2

regulation of the order of trial in a way that may affect the timing of a defendant’s testimony.”

3

Harris v. Barkley, 202 F.3d 169, 173 (2d Cir. 2000).

4

In a case that distinguished Brooks, the Ninth Circuit held that a trial court may require a

accomplished if the [defendant] testified.” See Menendez, 422 F.3d at 1032; see also United

7

States v. Singh, 811 F.2d 758, 762 (2d Cir. 1987) (holding that trial court may refuse to accept

8

proffered testimony of witnesses until a proper foundation is laid). In Menendez, Petitioners

9

brought a habeas petition in federal court based on alleged violations of their Fifth and Sixth

10

Amendment rights when the trial court refused to give Petitioners’ requested imperfect self-

11
For the Northern District of California

defendant to lay a foundation prior to introducing testimony even when it can “only be

6

United States District Court

5

defense jury instruction and excluded allegedly relevant testimony prior to Petitioners

12

testifying. Id. at 1030-33. The court barred the relevant witnesses testimony for lack of

13

foundation. See id. at 1031. The Ninth Circuit noted that the Sixth Amendment right to present a

14

defense “is subject to reasonable restrictions ‘to accommodate other legitimate interests in the

15

criminal trial process.’” Id. at 1033 (quoting United States v. Scheffer, 523 U.S. 303, 308

16

(1998)). A “trial judge may exclude or limit evidence to prevent excessive consumption of time,

17

undue prejudice, confusion of the issues, or misleading the jury.” Id. “The trial judge enjoys

18

broad latitude in this regard, so long as the rulings are not arbitrary or disproportionate.” Id. A

19

trial court’s commentary about “what evidence might constitute a foundation [does] not infringe

20

on Petitioner’s right to decide whether to testify.” Id. at 1032.

21

Petitioner relies solely on the Supreme Court’s decision in Brooks to argue that the

22

Court of Appeal’s denial of his habeas petition was incorrect and that the state court’s rulings

23

were contrary to, or an unreasonable application of clearly established federal law.

24

Petitioner contends that the trial court’s ruling violates his Fifth and Sixth Amendment

25

rights under the Supreme Court’s holding in Brooks. However, Brooks can be distinguished

26

from the instant case. Under the Tennessee statute at issue in Brooks, the defendant was not able

27

to make the choice of whether to testify in the required “unfettered exercise of his own will.”

28

Brooks, 406 U.S. at 610. The defendant was not afforded the opportunity to fully assess the
16

1

value of taking the stand prior to the point at which he was required to assert his right to remain

2

silent if he wished to do so. See id. In other words, under the facts in Brooks, the defendant was

3

pressured into taking the stand “by foreclosing later testimony if he refuse[d].” See id. at 612.

improperly pressure Petitioner to testify. The court made clear that Petitioner’s testimony might

6

not even be sufficient to allow Vasquez to testify. (8 RT 1920-21.) The critical distinction

7

between Brooks and the present matter is that here, like in Menendez, Petitioner had the

8

opportunity at every stage of the trial to decide whether or not to testify. See Menendez, 422

9

F.3d at 1032. The Court did not threaten to take this right away at any point during the trial.

10

Unlike in Brooks, Petitioner was aware that his testimony would help his case and was likely

11
For the Northern District of California

Here, unlike in Brooks, the trial court did not restrict counsel’s ability to plan its case or

5

United States District Court

4

necessary to admit the desired evidence and to receive the desired jury instructions. See Brooks,

12

406 U.S. at 613. When the defendant is the only one capable of laying a foundation for expert

13

testimony, it does not violate Brooks for the trial court to effectively condition the admissibility

14

of expert testimony on the defendant’s decision to testify and the content of his testimony. See

15

Menendez, 422 F.3d at 1032. The trial court alluded that testimony from Petitioner would likely

16

help provide sufficient evidence for a self-defense instruction and probative foundation for the

17

admission of Vasquez’ testimony. (8 RT 1921.) It is well established that the trial court’s

18

commentary in the underlying state case only regulated the admission of evidence and did not

19

infringe on Petitioner’s constitutional rights. See Menendez, 422 F.3d at 1032.

20

Furthermore, like in Menendez, here the true issue is not whether Petitioner was required

21

to testify, but “whether the testimony of the relevant witness was admissible despite” a lack of

22

the requisite probative value. See id. at 1031. The trial court merely excluded evidence for lack

23

of probative value under the broad latitude it is afforded under the Sixth Amendment. The Court

24

of Appeal correctly stated that Petitioner was not improperly compelled or forced to testify but

25

that the “realities of the case impelled defendant to testify.” (Resp’t Ex. 6 at 15.) If Petitioner

26

was “effectively compelled,” it was only because there was no other adequate manner to

27

establish Petitioner’s knowledge of the BGF, and his fear of imminent harm that was required to

28
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1

provide probative foundation for the expert testimony and to establish entitlement to a self-

2

defense jury instruction.

3

Additionally, for similar reasons, Petitioner’s constitutional rights were not violated by

4

the trial court’s refusal to give self-defense jury instructions. First, as previously noted, the

5

Court agrees with the trial court and Court of Appeal that there was insufficient evidence to

6

support self-defense jury instructions at the close of the People’s case. Second, Petitioner’s

7

constitutional right to present a defense is subject to reasonable restrictions. See Menendez, 422

8

F.3d at 1033. Petitioner’s right to testify was not unconstitutionally restricted under the rule

9

announced in Brooks, and it was only made clear that his testimony could provide the
substantial evidence necessary to instruct the jury on self-defense under California law. See

11
For the Northern District of California

United States District Court

10

Brooks, 406 U.S. at 613. Self-defense jury instructions were excluded at the time due to the

12

same lack of evidence that initially barred Vasquez’ testimony. The trial court’s determination

13

that Petitioner was not entitled to perfect and imperfect self-defense jury instructions was not an

14

error and thus does not constitute a violation of the Constitution. See Menendez, 422 F.3d at

15

1029-30.

16

The Court finds that in light of Brooks and Menendez, the state court proceedings did

17

not violate Petitioner’s Fifth Amendment right to not testify and Sixth Amendment right to

18

counsel. Petitioner retained his right to decide whether or not to testify throughout the trial.

19

2.

Petitioner Received Effective Assistance of Counsel.

20

Next, Petitioner contends that he was not provided effective assistance of counsel

21

because his appellate counsel failed to present the claim that Petitioner’s testimony was coerced

22

by the trial court’s incorrect assessment of the sufficiency of the evidence to support a self-

23

defense instruction. The Court of Appeal barred this claim because Petitioner failed to present

24

this argument in his opening brief.

25

The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant

26

the effective assistance of counsel on his first appeal as of right. Evitts v. Lucey, 469 U.S. 387,

27

392 (1985). “When a convicted defendant complains of the ineffectiveness of counsel’s

28

assistance, the defendant must show that counsel’s representation fell below an objective
18

scrutiny of counsel’s performance must be highly deferential.” Id. at 689. “An error by counsel,

3

even if professionally unreasonable, does not warrant setting aside the judgment in a criminal

4

proceeding if the error had no effect on the judgment.” Id. at 691. Petitioner must be able to

5

show that appellate counsel acted unreasonably in failing to discover and brief a merit-worthy

6

issue on appeal. Moormann v. Ryan, 682 F.3d 1102, 1106 (9th Cir. 2010). “Any deficiencies in

7

counsel’s performance must be prejudicial to the defense in order to constitute ineffective

8

assistance under the Constitution.” Strickland, 466 U.S. at 691. If “a deficiency in attorney

9

performance” is alleged, there is a “general requirement that the defendant affirmatively prove

10

prejudice.” Id. In order to show prejudice and succeed on an ineffectiveness of counsel claim,

11
For the Northern District of California

standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984). “Judicial

2

United States District Court

1

“the defendant must show that there is a reasonable probability that, but for counsel’s

12

unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A

13

reasonable probability is “a probability sufficient to undermine confidence in the outcome.”

14

Woodford, 537 U.S. at 23 (quoting Strickland, 466 U.S. at 694).

15

The California Court of Appeal alternatively held that even if Petitioner’s claim that the

16

trial court effectively conditioned a self-defense jury instruction on Petitioner testifying was not

17

barred, there was inadequate evidence to support a jury instruction on perfect and imperfect

18

self-defense. (Resp’t Ex. 6 at 15 n.7.) This Court has already determined that Petitioner was not

19

entitled to perfect and imperfect self-defense jury instructions and that this barred claim did not

20

have merit under its analysis of Petitioner’s first claim. Thus, this Court finds that the Court of

21

Appeal’s alternative holding was reasonable under the law. Petitioner was unable to show that

22

there was a reasonable probability that but for counsel’s errors, the result of the proceeding

23

would have been different. The Court finds that Petitioner was unable to affirmatively prove

24

prejudice and received effective assistance of appellate counsel.

25

3.

26

Jury Instruction Did Not Inject a Distorting Sense of Confusion Regarding the Law
of Self-Defense Into the Case, and Did Not Infringe On Petitioner’s Sixth and
Fourteenth Amendment Rights.

27

Petitioner argues that the trial court’s jury instructions on self-defense by an aggressor

28

(CALJIC No. 5.54) and contrived self-defense (CALJIC No. 5.55) were unsupported by the
19

1

evidence and injected a distorting confusion regarding the law of self-defense into the case.

2

Petitioner contends that these instructions violated his Sixth and Fourteenth Amendment rights.

3

A challenge to jury instruction solely as an error under state law does not state a claim

federal collateral relief for errors in the jury charge, a petitioner must show that the “ailing

6

instruction by itself so infected the entire trial that the resulting conviction violates due

7

process.” Id. at 72. “It must be established not merely that the instruction is undesirable,

8

erroneous, or even ‘universally condemned,’ but that it violated some [constitutional right].”

9

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). “The instruction may not be judged in

10

artificial isolation, but must be considered in the context of the instructions as a whole and the

11
For the Northern District of California

cognizable in federal habeas corpus proceedings. See Estelle, 502 U.S. at 71-72. To obtain

5

United States District Court

4

trial record.” Estelle, 502 U.S. at 72. In reviewing ambiguous instructions, “we inquire whether

12

there is a reasonable likelihood that the jury has applied the challenged instruction in a way that

13

violates the Constitution.” Id.

14

A habeas petitioner is not entitled to relief unless the instructional error “had substantial

15

and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637. The

16

proper question in assessing harm in a habeas case is, “do I, the judge, think that the error

17

substantially influenced the jury’s decision?” O’Neal v. McAninch, 513 U.S. 432, 436 (1995). If

18

the Court is convinced that the error did not influence the jury, or had but very slight effect, the

19

verdict and the judgment should stand. Id. at 437. There is a “strong policy against retrials years

20

after the first trial where the claimed error amounts to no more than speculation.” Boyde v.

21

California, 494 U.S. 370, 380 (1990). “Differences among [jurors] in interpretation of

22

instructions may be thrashed out in the deliberative process, with commonsense understanding

23

of the instructions in the light of all that has taken place at the trial likely to prevail over

24

technical hairsplitting.” Id. at 381.

25

Petitioner claims that CALJIC No. 5.54 and CALJIC No. 5.55 were not supported by the

26

evidence in this case. However, the Court of Appeal determined that any possible error was

27

harmless:

28

These instructions are standard in self-defense cases and the trial court instructed the
jury that whether some instructions would apply “will depend upon what you find to be
20

1
2
3
4

the facts. Disregard any instruction which applies to facts determined by you not to
exist. Do not conclude that because an instruction has been given, I am expressing an
opinion as to the facts.” Jurors are assumed to have followed all of these instructions.
(Resp’t Ex. 6 at 17.)
The trial court did not misstate the law or deviate from the standard jury instruction.

5

Petitioner claims that the instructions left the jury with the erroneous impression that they could

6

consider Petitioner’s earlier confrontation with Johnson on Hayes Street as the initial act of

7

aggression. Further, Petitioner claims that this consideration would place an incorrect and heavy

8

burden on his self-defense claim. In other words, Petitioner claims that the jury instructions

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were reasonably likely to induce jurors to treat Petitioner as an aggressor. (Pet. ¶ 6.) However,
the trial court made explicitly clear that the jury should not consider instructions that did not

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For the Northern District of California

United States District Court

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apply to the facts of the case. (Resp’t Ex. 6 at 17.) If the jury did not believe that the facts

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existed to warrant these instructions, that Petitioner was not the person who initiated the assault,

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Petitioner was not harmed by their inclusion. The jury was directed by the trial court to

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disregard these instructions if it did not believe that Petitioner initiated the assault. The

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appellate court stated that “jurors are assumed to have followed all of the instructions.” Id. This

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Court sees no reason not to defer to this assumption.

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Additionally, there is not a “reasonable likelihood” that the jury misapplied the

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instructions and incorrectly assumed that Petitioner initiated the assault at the earlier Hayes

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Street incident. The Court of Appeal noted that these jury instructions are used in most self-

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defense cases. Petitioner’s assertion of error amounts to no more than speculation. In the

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absence of evidence, the Court cannot assume that it was reasonably likely that the jury

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wrongfully reached its verdict on the basis of the Hayes Street incident and accordingly placed

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an unwarranted burden on Petitioner’s claim of self-defense. Furthermore, the jury instruction

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on self-defense by an aggressor simply defines when the right of self-defense can be available

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to a person who initiated an assault. See CALJIC No. 5.54. The instruction did not inject the

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Hayes Street incident as the initiation of the assault but instead was consistent with the

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prosecution’s factual case that Petitioner initiated the assault on Fortune Way when he “gunned

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down” Johnson. (Resp’t Ex. 6 at 18.) Furthermore, CALJIC 5.54 provides that “self-defense is
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only available to a person who initiated an assault if” certain conditions are satisfied. As

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separate assaults, common sense suggests that the assault that killed Johnson was initiated on

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Fortune Way, not at the incident several hours earlier on Hayes Street. See Boyde, 494 U.S. at

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381.The trial court never instructed the jury that the Hayes Street incident should have legal

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bearing on self-defense. Applying the relevant standard, it is unlikely that the jury interpreted

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the standard instructions to suggest that Petitioner’s act of aggression at Hayes Street

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automatically placed a burden on his claim of self-defense.

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9

Petitioner cites to the prosecutor’s closing statement at trial as indicative that the
challenged instructions misled the jury regarding Petitioner’s claim of self-defense. However,
Petitioner’s assertion is baseless for two reasons. First, the prosecutor’s closing statement

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For the Northern District of California

United States District Court

10

addressed CALJIC No. 5.17, the jury instruction on imperfect self-defense. (11 RT 2525.) The

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allegedly misleading statement did not discuss instruction on self-defense by an aggressor, or

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contrived self-defense, which Petitioner challenges here. Second, the prosecutor only addressed

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a possible set of factual circumstances under which Johnson acted in self-defense and

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accordingly Petitioner’s claim of imperfect self-defense was foreclosed. The prosecutor

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explained how the Hayes Street incident could effect Petitioner’s imperfect self-defense claim

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under CALJIC No. 5.17. (Id.) Specifically, the prosecutor referred to a scenario where

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Petitioner could not claim self-defense because his actions on Hayes Street earlier that day had

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caused Johnson to attack Petitioner on Fortune Way with reasonable belief that Petitioner was

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about to use deadly force on him, in other words to act in self defense. The prosecutor did not

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assert or imply that Petitioner’s actions on Hayes Street constituted the initiation of the Fortune

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Way assault under CALJIC No. 5.54. The Court of Appeal noted that under CALJIC No. 5.17,

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Petitioner’s claim of self-defense would only be foreclosed under certain circumstances:

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25
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But the language would only apply if the facts showed that Johnson had a reasonable
belief that defendant was about to use deadly force upon him and, because of that belief,
attacked defendant. The Hayes Street altercation was too far removed from the time of
the shooting to have a realistic impact on Johnson’s belief as to what was transpiring at
that time. The jury found that Johnson did not attack defendant. The jury was clearly
instructed on the basic principles of self-defense and heard, and believed, evidence that
defendant gunned down an unarmed man. We see no error.
(Resp’t Ex. 6 at 18.)
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1

The Court of Appeal found that the portion of the instruction that would foreclose

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Petitioner’s claim of self-defense only applied if the jury found that Johnson attacked Petitioner.

3

However, the Court of Appeal determined that the jury found that Johnson did not attack

4

Petitioner. The jury found “that [Petitioner] gunned down an unarmed man.” Id. There was also

5

substantial evidence that Petitioner initiated the assault on Fortune Way. Accordingly, any error

6

would not have had a substantial and injurious influence on the resulting verdict. See DePetris,

7

239 F.3d at 1061.

8

There is nothing in the record or disputed jury instructions to suggest that the jury was

9

improperly influenced by the inclusion of the self-defense by an aggressor and contrived selfdefense instructions. It is not substantially likely that this alleged error influenced the jury’s

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For the Northern District of California

United States District Court

10

decision. It is only speculation that the jury foreclosed or incorrectly burdened the defense of

12

self-defense because of the Hayes Street incident. The Court finds that there was no error from

13

instruction on self-defense by an aggressor and contrived self-defense, and that the trial court

14

proceedings did not violate Petitioner’s Sixth and Fourteenth Amendment rights.

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CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. Rule

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11(a) of the Rules Governing Section 2254 cases now requires a district court to rule on

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whether a petitioner is entitled to a certificate of appealability in the same order in which the

19

petition is denied. Petitioner has failed to make a substantial showing that his claims amounted

20

to a denial of his constitutional rights or demonstrate that a reasonable jurist would find the

21

denial of his claims debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

22

Consequently, a certificate of appealability is not warranted in this case. A separate judgment

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shall issue, and the Clerk of the Court shall close the file.

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IT IS SO ORDERED.
Dated: August 6, 2015
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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