Vega v. Unknown
Filing
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ORDER DENYING 1 Petition for Writ of Habeas Corpus and DENYING Certificate of Appealability. Signed by Judge Yvonne Gonzalez Rogers on 10/24/2017. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 10/24/2017)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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RAUL VEGA,1
Petitioner,
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v.
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WARREN L. MONTGOMERY, Warden,
Case No. 16-cv-05145-YGR (PR)
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS; AND
DENYING CERTIFICATE OF
APPEALABILITY
Respondent.
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Petitioner Raul Vega, a state prisoner currently incarcerated at Calipatria State Prison,
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brings the instant pro se habeas action under 28 U.S.C. § 2254 to challenge his 2013 conviction
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United States District Court
Northern District of California
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and sentence rendered in the Sonoma County Superior Court for first degree murder, voluntary
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manslaughter, and other criminal charges in connection with two gang-related deaths. Having
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read and considered the papers filed in connection with this matter and being fully informed, the
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Court hereby DENIES the petition for the reasons set forth below.
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I.
BACKGROUND
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A.
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The California Court of Appeal summarized the facts of Petitioner’s offenses as follows2:
Factual Background
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A. Prosecution Case
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The crimes at issue here arose out of a rivalry within the Sureños, a
street gang controlled by the Mexican Mafia. An expert for the
prosecution testified that, by 2009, two rival factions of the Sureños
had emerged in Santa Rosa, known as Varrio Sureño Loco (VSL)
and Angelino Heights (AH). There was an ongoing turf battle
between these two groups over which of them controlled Southwest
Community Park in Santa Rosa.
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The expert identified defendant as a member of the Sureños. Gang
members frequently display gang related tattoos, which they must
“earn” by doing something to benefit the gang, such as committing
crimes or supplying weapons. Defendant had “AH” and “Angelino”
tattoos, indicating he was a member of the AH Sureños faction. The
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Petitioner is also known as Raul Vega-Vega. See Dkt. 6 at 1.
This summary is presumed correct. See Hernandez v. Small, 282 F.3d 1132, 1135 n.1
(9th Cir. 2002); 28 U.S.C. § 2254(e)(1).
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police believed defendant’s gang moniker was “Crime Time.”
1. The shooting of Dewey Tucker
On January 12, 2010, the police came into possession of a letter
written by an imprisoned VSL member calling for the assassination
of three senior members of AH—Hector Barragan (Barragan), his
brother Marx Barragan, and Miguel Rubio. The letter suggested that
if VSL could get rid of these three “old homies,” AH would be
destroyed. The letter also said Barragan’s close friend, Christopher
Mancinas, should be killed. Mancinas was an influential Sureño
who had spent time in prison and had direct ties to the Mexican
Mafia.
The detective who obtained the letter shared its contents in a general
way with Barragan on the same date he received it. The letter was
not news to Barragan; prior rumors of death threats coming from
VSL were known to AH. Barragan and Mancinas called a meeting
of AH members at Barragan’s house in Santa Rosa to talk about
these threats. Mancinas did most of the talking.
Mancinas and Barragan asked defendant—who was 18 years old at
the time—to represent AH in connection with the threats.
Defendant agreed. Gang experts testified that gangs often select
young members to carry out violent crimes, both to give them a
chance to “earn their stripes” and to minimize their exposure to
punishment (because any sentences imposed on them will likely be
lower than their more hardened gang associates would receive).
Mancinas asked defendant to name the person he trusted most to
help with the operation, and he chose Javier Carreon-Lopez, a
lifelong friend whom defendant loved like a brother. On January 12,
2010, defendant, Carreon-Lopez, Barragan and Mancinas drove to
Petaluma, where they retrieved at least three guns (“straps”). They
were in a Chevy Tahoe SUV that Mancinas had borrowed from his
sometime girlfriend, who lived in Rohnert Park.
The four of them then headed to Vallejo, where a member of VSL
named Ramon Ochoa lived. They were planning to target either
Ochoa or another VSL member, Vincente Tapia, but Ochoa was the
“main target.” For defendant, killing Ochoa would avenge the death
of Alejandro Ortega, a member of AH and a friend of defendant’s,
who had been killed by VSL in November 2009.
In Vallejo, the four met up with two other AH members called
“Smokes” and “Huero,” who lived in Vallejo and had been staking
out Ochoa and Tapia on Mancinas’s instruction. Smokes and Huero
had reported back that they knew where one of the VSL members
lived. Mancinas gave defendant a loaded gun, a black or grayish
semiautomatic handgun, either a .40 or .45 caliber.
When the two AH groups converged in Vallejo they switched cars.
From that point, defendant and Carreon-Lopez were in a Honda that
Smokes or Huero had stolen in Vallejo earlier that day. They drove
to Tapia’s apartment building in two cars, with Carreon-Lopez
driving the Honda and defendant in the passenger seat. Barragan
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and Mancinas were in the Tahoe along with Smokes and Huero.
Both cars stopped outside Tapia’s apartment complex, where
Mancinas pointed out a white car coming out of the driveway. He
phoned defendant and said Ochoa was in that car and they should
follow it. They followed the white car as it left Vallejo and headed
south on Interstate 80. Defendant admitted to police that once he
caught up to the white car on the freeway, he fired at least two shots
at the driver, believing it was Ochoa.
Defendant told police he knew the gunfire struck its intended target
because the driver slumped over in the car. The white car, which
had just crossed the Carquinez Bridge, collided with the center
divider, then swerved to the shoulder of the highway. Defendant
and Carreon-Lopez then returned to Santa Rosa, dumping the Honda
along the way. Defendant’s brother sent “some girl” to pick them
up. Afterwards, they met up with Barragan in a park in Santa Rosa.
Tragically, it turned out, defendant’s shots found the wrong target.
What had been planned as a preemptive revenge killing against a
gang rival was a case of mistaken identity. The gunshot victim was
Dewey Tucker, who had the misfortune of living in the apartment
just above Tapia’s. Tucker was a professional musician who was on
his way to practice with his band in Oakland. A bullet entered
Tucker’s left ear and exited his right ear, killing him at the scene.
2. The stabbing of Juan Carlos Angel-Esparza
About a year after Tucker’s murder, on January 8, 2011, Juan Carlos
Angel-Esparza was stabbed to death on the grounds of Kawana
Springs Elementary School (Kawana Springs) in Santa Rosa, which
is two or three miles from Southwest Community Park. Late that
afternoon, Angel-Esparza had been hanging out at Kawana Springs,
smoking marijuana and talking about football with his friends
Ezequiel Corona and Edgar Sonato-Vega.[FN 2]
[FN 2:] Sonato-Vega is not related to defendant, but both SonatoVega and Corona knew Vega, since they all lived on the same street
when they were younger.
Corona and Sonato-Vega, who had no gang affiliation, testified that
two men entered the school grounds from the rear of the school.
Angel-Esparza approached them, while Sonato-Vega and Corona
hung back, continuing to smoke marijuana. One or both of the men
asked Angel-Esparza where he was from. In gang culture, asking
that question of a suspected gang rival is commonly understood as a
verbal provocation, a challenge to fight. In response, Angel-Esparza
said, “VSL.”
A fight then broke out between Angel-Esparza and one of the two
newcomers. Sonato-Vega told police that defendant was the person
with whom Angel-Esparza was fighting, but at trial he claimed not
to know who the other combatant was. At trial Corona also claimed
no knowledge of the other combatant. The evidence at trial was
similarly mixed as to who issued the original provocation—AngelEsparza; both defendant and his companion; or just defendant.
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Sonato-Vega testified to seeing Angel-Esparza pull a knife as the
fight was breaking up, but he did not see a knife in defendant’s
hands. Corona testified that he did not see anyone with a knife until
after Angel-Esparza and defendant separated, and it appeared AngelEsparza was hurt. That is when Angel-Esparza pulled out a Dallas
Cowboys pocket knife and moved toward defendant with it, as
defendant backed away. Toward the end of the fight sirens started
blaring. Angel-Esparza and defendant backed away from one
another and ran off in opposite directions.
Angel-Esparza ran to the front of the school and collapsed in a
breezeway, while defendant and his companion left the area through
the rear. Sonato-Vega and Corona went to Angel-Esparza’s side,
and he told them to call an ambulance, so they called 911. SonatoVega took Angel-Esparza’s Cowboys knife and threw it on the roof
of the school, where it was later recovered by the police. AngelEsparza was taken by ambulance to the hospital, where he died
shortly thereafter from three stab wounds, including one directly to
the heart and one to the liver.
Before the police arrived, Corona and Sonato-Vega made a plan to
say they had not witnessed the fight and had just found AngelEsparza lying on the school grounds. During questioning later that
night, however, Corona eventually admitted to the police that he had
heard gang challenges to Angel-Esparza before the fight, had heard
Angel-Esparza claim “VSL,” and had seen the fight.
At one point, while they were at the police station, Corona and
Sonato-Vega were placed in a room alone together, where they were
video recorded. Sonato-Vega asked Corona, “Did you tell them it
was Raul?” This was the break in the case that first alerted police to
defendant’s involvement, as one of the officers was familiar with
defendant and his gang affiliation.
Police investigating the stabbing found two knives in the vicinity—
one was a pocket knife with a locking blade and a Dallas Cowboys
logo on it, which belonged to Angel-Esparza and was found on the
roof of the school. It was covered in blood, which proved to be
Angel-Esparza’s. Angel-Esparza’s thumbprint was also found on
the knife, but defendant’s prints were not. A second knife located at
the scene was a blade without a handle, which had no blood on
it.[FN 3] There was a small amount of blood on the pathway near
where the fight had occurred, and it proved to be defendant’s.
[FN 3:] The prosecutor theorized at trial that neither of the knives
found at the scene was the one that killed Angel-Esparza. He
suggested to the jury that defendant had brought his own knife to the
school grounds and may have been the first to draw a weapon.
3. Defendant’s incriminating statements to police
When defendant was questioned by the police two days after AngelEsparza’s death, he initially denied involvement, but eventually
admitted fighting with Angel-Esparza. He claimed the killing was
in self-defense because Angel-Esparza pulled a knife. Defendant
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said he took the knife from Angel-Esparza, but Angel-Esparza had
another one. Angel-Esparza said he was a member of VSL, and
defendant believed Angel-Esparza attacked him because of
defendant’s AH affiliation.
Defendant claimed that when Angel-Esparza attacked him, he
suffered a cut to the face and thought he was going to be killed, but
he managed to wrestle the knife away from Angel-Esparza and push
it towards him, evidently sticking him with it. Defendant admitted a
friend was with him at Kawana Springs that day, but he did not give
the police the friend’s name. He did not implicate his friend in the
fight and told them his friend “is not a banger.”
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After Vega finished his interview with the Santa Rosa police,
representatives of the Sonoma County Sheriff’s Office and the
California Highway Patrol interviewed him about the Tucker
murder. It was during this interview that defendant made statements
placing himself at the scene of the shooting and admitting to having
been the triggerman. Among other things, he also described himself
as a “killer,” and claimed to have “stabbed a lot of people” before.
He showed police a tattoo of a left-handed gunman.[FN 4] He said
he had earned it by killing Tucker.
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[FN 4:] Vega is left-handed.
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In addition, defendant made a number of damaging admissions
concerning his cell phone. On the date of Tucker’s murder, 12 calls
were made between Vega’s phone and a cell phone used by
Mancinas. The phone the police associated with defendant had been
purchased in the name “Crime Time.” Vega confirmed during his
police interview that the phone was his. He further admitted he and
Mancinas were phoning back and forth to each other during the
events surrounding the killing.
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Cell phone evidence at trial showed that Mancinas’s cell phone was
in Petaluma, where he lived, until 6:23 p.m. on January 12, 2010.
At 6:24 p.m. Mancinas’s phone traveled north on Highway 101 and
was in Rohnert Park, where Mancinas’s girlfriend lived, at 6:36 p.m.
At 7:53 p.m. his phone was on the south end of Santa Rosa, and at
8:43 p.m. it was in Vallejo.
At 9:18 and 9:36 p.m. the phone was traveling further east in
Vallejo, toward Tapia’s apartment complex. Two calls were made
in the vicinity of the apartments. At 9:49 the phone was moving
south along Interstate 80, and at 9:51 it crossed the Carquinez
Bridge. Near the place where Tucker’s car had come to rest,
Mancinas’s phone crossed paths with defendant’s phone. At 9:54
p.m., the phone was headed in the opposite direction, back over the
Carquinez Bridge, through Vallejo and back to Petaluma by 10:45
p.m. At 10:59 p.m. his phone was back in Rohnert Park.
Mancinas’s girlfriend confirmed that Mancinas had borrowed her
Tahoe that night, as he sometimes did for gang “business,” and he
returned it about 10:00 or 11:00 p.m.
In May 2010, police searched an apartment occupied by suspected
members of the Sureños and found a .40-caliber handgun. Two
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shell casings recovered at the scene of Tucker’s killing were
determined to have been fired from that handgun. An expert
testified that gangs often have “gang guns” which they pass from
one member to another and use for self-defense or to commit crimes
for the gang.
B. Defendant’s Trial Testimony
At trial, defendant’s version of the events surrounding the stabbing
of Angel-Esparza closely tracked the version he gave the police.
Things began when he and a friend, Giovanni, went to Kawana
Springs to hang out. As he and Giovanni entered the school from
the rear, they saw three or four other people on the school grounds.
Defendant recognized Corona and Sonato-Vega, each of whom he
had known from growing up in the same neighborhood.
Defendant testified that he and Giovanni had gone to Kawana
Springs to unwind after he got off work. They had not seen each
other in three to six months and were looking forward to catching
up. He did not tell the police Giovanni’s name because he did not
want to get him in trouble or get him deported. After he and
Giovanni arrived at Kawana Springs, Angel-Esparza approached
him and asked where he was from, whether he was a “northerner,”
and whether he was “AH.” Angel-Esparza said he was “VSL.”
Although he knew Kawana Springs was a place frequented by gang
members where fights often occurred, defendant denied having a
knife when he went to Kawana Springs. After Angel-Esparza
approached him and provoked the confrontation, he and AngelEsparza began fighting, at first only with fists. Defendant did not
remember who threw the first punch. At first defendant did not see
any weapons in Angel-Esparza’s hands. Angel-Esparza kicked
defendant in the groin and he fell to his knees. At that point he saw
a knife in Angel-Esparza’s hand and tried to block it, but AngelEsparza cut defendant’s lip with it.
Fearing he would be stabbed in the face or head, defendant wrestled
the knife away from Angel-Esparza, pushed it toward AngelEsparza, and the knife blade broke. Angel-Esparza then pulled out a
second knife, a pocket knife. Defendant testified he backed away,
but Angel-Esparza kept coming at him with the second knife.
Although defendant claimed he did not know that Angel-Esparza
had been stabbed, he saw Angel-Esparza grab his chest, bend over,
and run toward the front of the school. He and Giovanni ran the
other way.
Defendant’s handling of the Tucker murder in his trial testimony, by
contrast, diverged sharply from what he told the police. Defendant
testified he did not kill Tucker and knew nothing about the killing.
He said he had never owned a gun and had not owned a cell phone
until long after the Tucker murder. He denied going by the name
“Crime Time,” claiming his nicknames were “Chonga” and
“Crime.”
Defendant denied being in Vallejo in January 2010. He testified he
did not personally know Barragan or Mancinas, although he had
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heard of them. He claimed that whatever details he provided to the
police during his interview about the Tucker killing reflected simply
what he had learned from them during the interview. Defendant
said his statement to the police had been aimed at telling them “what
they wanted to hear” and whatever “sounded good.”
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On cross-examination defendant admitted he initially lied to the
police in claiming he knew nothing about the death of AngelEsparza. He admitted his tattoos were “gang tattoos,” that he was a
member of AH, that he had been involved with gangs since he was
12 or 13 years old, and that he was proud to be a member of AH.
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People v. Vega, 236 Cal. App. 4th 484, 487-93 (2015).
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B.
Procedural History
1.
Conviction and Sentence
Petitioner was charged by a fourth amended information filed on September 7, 2012 in
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Sonoma County Superior Court case number SCR595589 as follows: two counts of murder (Cal.
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United States District Court
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Penal Code § 187); one count of discharging a firearm at an inhabited vehicle (Cal. Penal Code
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§ 246) in connection with the death of Dewey Tucker (“Tucker”); and two counts of active
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participation in a criminal street gang on the dates of the two murders (Cal. Penal Code
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§ 186.22(a)). 3 Clerk’s Transcript (“CT”) 562-566. With respect to the Tucker murder and the
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section 246 offense, the fourth amended information also alleged enhancements based on firearm
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use, discharge, and discharge causing great bodily injury or death (former Cal. Penal Code
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§§ 12022.53(b), (c), (d), & (e)(1)), along with gang enhancements (Cal. Penal Code
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§§ 186.22(b)(1)(C) & (b)(4)), and with respect to the murder, two special circumstance
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allegations: gang-related murder (Cal. Penal Code § 190.2(a)(22)) and murder by discharge of a
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firearm from a motor vehicle (Cal. Penal Code § 190.2(a)(21)). 3CT 562-564. In connection with
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the death of Juan Carlos Angel-Esparza (“Angel-Esparza”), the charges included a gang
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enhancement (Cal. Penal Code § 186.22(b)(l)(C)) and an enhancement for personal use of a deadly
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weapon (a knife) (former Cal. Penal Code § 12022(b)(1)). 3CT 564-566.
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The case was submitted to the jury on October 15, 2012. 3CT 617. In addition to
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instructions on the charged offenses, the jury was instructed on perfect and imperfect self-defense,
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as well as heat of passion voluntary manslaughter. 3CT 632-669. On October 15, 2012, after
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more than thirty hours over eight days, the jury found Petitioner guilty of first degree murder of
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Tucker (count one) and voluntary manslaughter for the death of Angel-Esparza (count three). 3CT
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626-629, 688, 694. The jury also found him guilty of shooting at an occupied vehicle (count two)
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and two counts of gang participation (counts four and five). 3CT 626-629, 686-687, 692, 695. It
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further found true all of the alleged enhancements and special circumstances, except it deadlocked
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on the gang enhancement on the killing of Angel-Esparza. 3CT 626-629, 689, 693, 696.
On March 11, 2013, in light of the special circumstance findings, the court sentenced
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Petitioner to life in prison without the possibility of parole for the murder of Tucker, with a
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twenty-five-to-life consecutive term for firearm discharge causing great bodily injury or death,
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plus a sentence of life with the possibility of parole for shooting at an occupied vehicle, with all
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punishment on count two stayed under California Penal Code § 654. 3CT 761-764. The court
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stayed the remaining gang and firearm enhancements. 3CT 761-764. It further sentenced
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Petitioner to twelve years for the voluntary manslaughter of Angel-Esparza. 3CT 761-764.
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Lastly, the trial court sentenced Petitioner to three years (concurrent) on each of the substantive
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gang participation offenses and stayed those terms under California Penal Code § 654. 3CT 761-
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764.
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2.
Post-Conviction Appeals
Petitioner timely appealed the judgment to the California Court of Appeal on October 1,
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2013. Resp’t Ex. 3. In a published, reasoned decision issued on May 1, 2015, the state appellate
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court reversed one of the counts of active participation in a criminal street gang (count five),
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ordered that the abstract of judgment be corrected to reflect accurately the trial court’s oral
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pronouncement of judgment, and otherwise affirmed the judgment. See Vega, 236 Cal. App. 4th
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at 507; Resp’t Ex. 6. The California Supreme Court thereafter summarily denied his petition for
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review. Resp’t Ex. 8; see also Dkt. 1 at 7.3
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On September 7, 2016, Petitioner filed the instant federal habeas petition in this Court
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raising one claim of instructional error. Dkts 1, 6.4 In an Order dated November 8, 2016, the
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Page number citations refer to those assigned by the Court’s electronic case management
filing system and not those assigned by the parties.
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Petitioner’s initial filing was missing the first page. Dkt. 1. The Clerk of the Court
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Court ordered Respondent to show cause why the petition should not be granted. Dkt. 7.
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Respondent filed an Answer and Memorandum of Points and Authorities in support thereof. Dkts.
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12; 12-1. Petitioner has not filed a Traverse, and the time frame for doing so has passed. See dkt.
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1. The matter is fully briefed and ripe for adjudication.
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II.
LEGAL STANDARD
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A federal court may entertain a habeas petition from a state prisoner “only on the ground
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that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28
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U.S.C. § 2254(a). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996,
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a district court may not grant a petition challenging a state conviction or sentence on the basis of a
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 of,
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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 of
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the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The first prong
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applies both to questions of law and to mixed questions of law and fact, see Williams (Terry) v.
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Taylor, 529 U.S. 362, 407-09 (2000), while the second prong applies to decisions based on factual
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determinations, see Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
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A state court decision is “contrary to” Supreme Court authority, and thus falls under the
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first clause of section 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 differently
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than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams (Terry), 529
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U.S. at 412-13. A state court decision is an “unreasonable application of” Supreme Court
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authority, falling under the second clause of section 2254(d)(1), if it correctly identifies the
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governing legal principle from the Supreme Court’s decisions but “unreasonably applies that
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principle to the facts of the prisoner’s case.” Id. at 413. The federal court on habeas review may
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not issue the writ “simply because that court concludes in its independent judgment that the
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instructed Petitioner to fill out the first page of a blank habeas petition form. Dkt. 4. Thereafter,
on October 14, 2016, Petitioner filed the first page of his petition. Dkt. 6.
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relevant state-court decision applied clearly established federal law erroneously or incorrectly.”
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Id. at 411. Rather, the application must be “objectively unreasonable” to support granting the writ.
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Id. at 409.
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Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual determination will
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not be overturned on factual grounds unless objectively unreasonable in light of the evidence
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presented in the state-court proceeding.” See Miller-El, 537 U.S. at 340; see also Torres v.
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Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). Moreover, “a determination of a factual issue made
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by a State court shall be presumed to be correct,” and the petitioner “shall have the burden of
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rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C.
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§ 2254(e)(1).
United States District Court
Northern District of California
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Even if constitutional error is established, habeas relief is warranted only if the error had a
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“substantial and injurious effect or influence in determining the jury’s verdict.” Penry v. Johnson,
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532 U.S. 782, 795-96 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)).
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On federal habeas review, AEDPA “imposes a highly deferential standard for evaluating
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state-court rulings” and “demands that state-court decisions be given the benefit of the doubt.”
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Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks omitted). In applying the
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above standards on habeas review, this Court reviews the “last reasoned decision” by the state
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court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
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When there is no reasoned opinion from the highest state court to consider the petitioner’s
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claims, the court looks to the last reasoned opinion. Ylst v. Nunnemaker, 501 U.S. 797, 801-06
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(1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). Thus, a federal court
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will “look through” the unexplained orders of the state courts rejecting a petitioner’s claims and
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analyze whether the last reasoned opinion of the state court unreasonably applied Supreme Court
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precedent. See Ylst, 501 U.S. at 804-06; LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir.
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2000). The last reasoned decision in this case is the state appellate court’s disposition issued on
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August 12, 2015, in which that court considered Petitioner’s claim of instructional error. See
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Resp’t Ex. 6; Vega, 236 Cal. App. 4th at 494-506.
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III.
INSTRUCTIONAL ERROR CLAIM
Petitioner’s sole claim on federal habeas is that the trial court violated of his constitutional
rights by improperly instructing the jury with CALCRIM No. 361, which is entitled “Defendant’s
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Failure to Explain or Deny Adverse Evidence.” Dkt. 1 at 4, 9-12; see also dkt. 12-1 at 11.
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Petitioner alleges that that CALCRIM No. 361 is constitutionally infirm and specifically, that its
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use in his trial violated his “Fifth Amendment Right to testify in his own defense,” and his “Fifth
and Fourteenth Amendment Right[s] to a fair trial.” Dkt. 1 at 4, 11-12.
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A.
Background Facts and State Court Opinion
CALCRIM No. 361, which relates to a defendant’s failure to explain or deny adverse
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testimony, states as follows:
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If the defendant failed in his testimony to explain or deny
evidence against him, and if he could reasonably be expected to
have done so based on what he knew, you may consider his failure
to explain or deny in evaluating that evidence. Any such failure is
not enough by itself to prove guilt. The People must still prove the
defendant guilty beyond a reasonable doubt.
If the defendant failed to explain or deny, it is up to you to
decide the meaning and importance of that failure.
3CT 643; 8RT 2137. CALCRIM No. 361 serves the important function of conveying to the jury
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the “well settled rule that a defendant who takes the stand and testifies in his behalf waives his
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Fifth Amendment privilege [citation] and his state constitutional privilege to the extent of the
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scope of relevant cross-examination.” See People v. Saddler, 24 Cal. 3d 671, 679 (1979) (internal
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citations omitted); People v. Rodriguez, 170 Cal. App. 4th 1062, 1066 (2009). As mentioned
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above, Petitioner in the instant matter took the stand to testify that: (1) he did not intentionally stab
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Angel-Esparza, but rather fought him with his fists in self-defense after Angel-Esparza attacked
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with two knives, one of which Petitioner took control of and pushed toward Angel-Esparza; and
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(2) he did not kill Tucker and knew nothing about the killing. 8RT 2021-2035, 2042-2051, 206324
2064, 2073-2074, 2102-2103, 2115.
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The state appellate court gave the following background relating to Petitioner’s challenge
to CALCRIM No. 361 and first considered whether defense counsel’s failure to object to this
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instruction amounted to forfeiture, stating as follows:
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Defense counsel did not object to [CALCRIM No. 361], and in fact,
agreed it should be given if defendant testified. The Attorney
General therefore contends any claim of instructional error was
forfeited.
Generally, failure to object does not waive an
instructional error on appeal if the instruction was an incorrect
statement of law or the defendant’s substantial rights were affected.
(§ 1259; People v. Fiore (2014) 227 Cal. App. 4th 1362, 1377-1378,
174 Cal. Rptr. 3d 806.) The invited error doctrine likewise poses no
obstacle to raising a claim of instructional error on appeal, unless
there was a conscious, deliberate or tactical reason stated for the
appellant’s acquiescence in the instruction at trial. (People v.
Hernandez (1988) 47 Cal. 3d 315, 353, 253 Cal. Rptr. 199, 763 P.2d
1289; People v. Collins (1992) 10 Cal. App. 4th 690, 694-695, 12
Cal. Rptr. 2d 768.)
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Vega, 236 Cal. App. 4th at 495 (brackets added). The state appellate court then determined that
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even if the trial court had erred in giving CALCRIM No. 361, no prejudice resulted, stating:
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We ultimately conclude the claimed error could not have been
prejudicial on counts one and two due to the strength of the
evidence, and was not prejudicial as to count three due to the
conviction of a lesser offense on that charge. Nevertheless, we
address the merits of defendant’s attack on CALCRIM No. 361
because he claims it incorrectly states the law and in order to
forestall a future claim of ineffective assistance of counsel. (People
v. Fiore, supra, 227 Cal. App. 4th at pp. 1377-1378 & fn. 10, 174
Cal. Rptr. 3d 806.) We employ de novo review for a claim of
instructional error of this nature. (People v. Posey (2004) 32 Cal.
4th 193, 218, 8 Cal. Rptr. 3d 551, 82 P. 3d 755; People v. Rodriguez
(2009) 170 Cal. App. 4th 1062, 1066, 88 Cal. Rptr. 3d 749.)
United States District Court
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The state appellate court then addressed the merits of Petitioner’s instructional error claim
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and found that it was not unconstitutional and that any error in giving CALCRIM No. 361 was
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harmless.5 Id. at 495-503. First, the state appellate court addressed the constitutionality of
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CALCRIM No. 361. The state appellate court noted that CALCRIM No. 361 was similar in
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content to CALJIC No. 2.62. Id. at 495-96. The state appellate court explained that as with
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CALJIC No. 2.62, CALCRIM No. 361 suffered no constitutional or other infirmities and may be
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given in the appropriate case, stating as follows:
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In addressing the constitutionality of CALCRIM No. 361, we do not
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The state appellate court also addressed Petitioner’s argument relating to the lack of
evidence supporting CALCRIM No. 361. See Vega, 236 Cal. App. 4th at 500-01. However, the
record shows that Petitioner did not raise this evidentiary argument in his instant federal habeas
petition. See Dkts. 1, 6. Therefore, the Court need not address such an argument and omits the
portion of the state appellate court opinion relating to it.
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write on a clean slate. In People v. Saddler (1979) 24 Cal. 3d 671,
675, 678-681, 156 Cal. Rptr. 871, 597 P.2d 130 (Saddler), our
Supreme Court upheld the constitutionality of CALJIC No. 2.62, a
pattern instruction similar in substance to CALCRIM No. 361.[FN
5]. More recently, in People v. Rodriguez, supra, 170 Cal. App. 4th
at pp. 1067-1068, 88 Cal. Rptr. 3d 749 (Rodriguez), Division Four
of the Second District Court of Appeal rejected a constitutional
challenge to CALCRIM No. 361. Defendant advances arguments
similar to those made and rejected in Saddler and virtually identical
to those made and rejected in Rodriguez. He asks us to depart from
the path taken in those cases, but we decline to do so.
[FN 5:] CALJIC No. 2.62 reads as follows: “In this case defendant
has testified to certain matters. [¶] If you find that [a] [the]
defendant failed to explain or deny any evidence against [him] [her]
introduced by the prosecution which [he] [she] can reasonably be
expected to deny or explain because of facts within [his] [her]
knowledge, you may take that failure into consideration as tending
to indicate the truth of this evidence and as indicating that among
the inferences that may reasonably be drawn therefrom those
unfavorable to the defendant are the more probable. [¶] The failure
of a defendant to deny or explain evidence against [him] [her] does
not, by itself, warrant an inference of guilt, nor does it relieve the
prosecution of its burden of proving every essential element of the
crime and the guilt of the defendant beyond a reasonable doubt. [¶]
If a defendant does not have the knowledge that [he] [she] would
need to deny or to explain evidence against [him,] [her,] it would be
unreasonable to draw an inference unfavorable to [him] [her]
because of [his] [her] failure to deny or explain this evidence.”
CALCRIM No. 361 rests on the logical inference that if a person
charged with a crime is given the opportunity to explain or deny
evidence against him but fails to do so (or gives an implausible
explanation), then that evidence may be entitled to added weight.
The defendant in Saddler argued that CALJIC No. 2.62
compromised his privilege against self-incrimination. (Saddler,
supra, 24 Cal. 3d at p. 678, 156 Cal. Rptr. 871, 597 P.2d 130.) In
this case, defendant claims it violated his right to testify, citing
People v. Gutierrez (2009) 45 Cal. 4th 789, 821, 89 Cal. Rptr. 3d
225, 200 P.3d 847, and his right to a fair trial, citing Duncan v.
Louisiana (1968) 391 U.S. 145, 148-149, 88 S. Ct. 1444, 20 L.Ed.2d
491 [right to jury trial]. Using these bedrock procedural protections
as a foundation, defendant builds an argument that it was
fundamentally unfair to tell jurors they could draw reasonable
factual inferences against him based on unsatisfactory and
implausible answers to questions during his testimony.
We see no inconsistency between defendant’s right to testify and the
attendant risk of being confronted with evidence calling into
question his testimony. The failure to explain or deny adverse
evidence can be a basis for disbelieving any witness’s testimony and
is always relevant to credibility. (See CALCRIM No. 226 [factors
jury may consider in evaluating witnesses’ testimony include: “Did
the witness make a statement in the past that is consistent or
inconsistent with his or her testimony? [¶] How reasonable is the
testimony when you consider all the other evidence in the case? [¶]
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[Did other evidence prove or disprove any fact about which the
witness testified?]”].) In that sense, CALCRIM No. 361 represents
nothing more than a specific application of a general rule applicable
to all witnesses.
Saddler referred to CALJIC No. 2.62 as “the comment rule,” which,
prior to the Supreme Court’s decision in Griffin v. California (1965)
380 U.S. 609, 85 S. Ct. 1229, 14 L.Ed.2d 106 (Griffin), historically
allowed the trial judge to comment on a defendant’s failure to
explain or deny incriminating evidence. (Saddler, supra, 24 Cal. 3d
at p. 680, 156 Cal. Rptr. 871, 597 P.2d 130.) For many years, the
“comment rule” was codified in former Article I, section 13 of the
California Constitution. (Id. at p. 678 & fn. 5, 156 Cal. Rptr. 871,
597 P.2d 130). Griffin found a Fifth Amendment violation where,
pursuant to Article I, section 13 as it then stood, a jury was
instructed it may consider, and the prosecutor commented upon, the
defendant’s failure to testify.[FN 6] (Griffin, supra, 380 U.S. at pp.
612-615, 85 S. Ct. 1229.)
[FN 6:] The instruction given by the court in Griffin was as follows:
“As to any evidence or facts against him which the defendant can
reasonably be expected to deny or explain because of facts within
his knowledge, if he does not testify or if, though he does testify, he
fails to deny or explain such evidence, the jury may take that failure
into consideration as tending to indicate the truth of such evidence
and as indicating that among the inferences that may be reasonably
drawn therefrom those unfavorable to the defendant are the more
probable.” (Griffin, supra, 380 U.S. at p. 610, 85 S. Ct. 1229.)
Former Article I, section 13 was repealed in 1974 and its text
restated in Article I, section 15, with no reference to the comment
rule. However, the rule survives today in section 1127, which
provides in part that the trial court, in instructing the jury, “may
make such comment on the evidence and the testimony and
credibility of any witness as in its opinion is necessary for the proper
determination of the case and in any criminal case, whether the
defendant testifies or not, his failure to explain or to deny by his
testimony any evidence or facts in the case against him may be
commented upon by the court.” (See Evid. Code, § 413 [trier of fact
may consider any “party’s failure to explain or to deny by his
testimony such evidence or facts in the case against him”].) To the
extent the language of section 1127 can be read to allow judicial
comment when a defendant declines to testify, its validity is not
before us. But when a defendant does testify, all bets are off. He
waives his Fifth Amendment privilege (Saddler, supra, 24 Cal. 3d at
p. 679, 156 Cal. Rptr. 871, 597 P.2d 130) and is subject to crossexamination just as any other witness is. (People v. Wagner (1975)
13 Cal. 3d 612, 618, 119 Cal. Rptr. 457, 532 P.2d 105; People v.
Zerillo (1950) 36 Cal. 2d 222, 227-229, 223 P.2d 223.)
Defendant relies in part on a case critical of CALJIC No. 2.62,
People v. Haynes (1983) 148 Cal. App. 3d 1117, 1119-1120, 196
Cal. Rptr. 450 (Haynes), in which the court suggested it would be
“unwise” to give CALJIC No. 2.62 without inquiring as to the
position of the parties (which the trial court did here), and said it
should only be used if the defendant’s testimony included significant
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omissions or failure to explain or deny. (Id. at pp. 1119-1120, 196
Cal. Rptr. 450). As we will discuss further, the Haynes prerequisites
existed in this case.
The criticism expressed in Haynes—and its proposed limitations on
the instruction’s use—have been taken to heart in subsequent cases.
CALCRIM No. 361 is not to be given every time a defendant
testifies. Rather, the courts long ago imposed limits on the
circumstances under which CALJIC No. 2.62 may be given, and the
Bench Notes to CALCRIM No. 361 indicate the same restrictions
apply in using CALCRIM No. 361. (Judicial Council of Cal. Crim.
Jury Instns. (2015) Bench Notes to CALCRIM No. 361, pp. 168169.) “If a defendant has not been asked an appropriate question
calling for either an explanation or denial, the instruction cannot be
given, as a matter of law.” (People v. Roehler (1985) 167 Cal. App.
3d 353, 392, 213 Cal. Rptr. 353 [CALJIC No. 2.62]; accord, People
v. Mask (1986) 188 Cal. App. 3d 450, 455, 233 Cal. Rptr. 181
[CALJIC No. 2.62].)
When a defendant testifies, however, and “fails to deny or explain
inculpatory evidence or gives a ‘bizarre or implausible’ explanation,
the instruction is proper.” (People v. Sanchez (1994) 24 Cal. App.
4th 1012, 1029-1031, 30 Cal. Rptr. 2d 111 [CALJIC No. 2.62];
accord, People v. Mask, supra, 188 Cal. App. 3d at p. 455, 233 Cal.
Rptr. 181 [CALJIC No. 2.62 is warranted “if the defendant tenders
an explanation which, while superficially accounting for his
activities, nevertheless seems bizarre or implausible”]; People v.
Belmontes (1988) 45 Cal. 3d 744, 784, 248 Cal. Rptr. 126, 755 P.2d
310, disapproved on other grounds in People v. Doolin (2009) 45
Cal. 4th 390, 421, fn. 22, 87 Cal. Rptr. 3d 209, 198 P.3d 11; People
v. Roehler, supra, 167 Cal. App. 3d at p. 393, 213 Cal. Rptr. 353.)
In an effort to persuade us that this case should not be governed by
the legal framework established in Saddler and Rodriguez,
defendant adds the twist that the existence of CALCRIM No. 361
and its possible use at trial could have a “chilling effect” on
defendants generally and dissuade them from testifying. The idea
that a “chilling effect” on others not before the court should be taken
into account in constitutional adjudication is familiar from First
Amendment overbreadth and vagueness doctrines (see, e.g., People
ex rel. Gallo v. Acuna (1997) 14 Cal. 4th 1090, 1114, 60 Cal. Rptr.
2d 277, 929 P.2d 596; Concerned Dog Owners of California v. City
of Los Angeles (2011) 194 Cal. App. 4th 1219, 1230-1232, 123 Cal.
Rptr. 3d 774), a setting where questions often arise about whether
those whose voices are potentially stifled by overbroad or vague
regulation of free expression will be motivated to bring
constitutional challenges. But that mode of analysis seems a poor fit
here.
Even assuming an undue “chilling effect” on the procedural rights of
criminal defendants generally may properly be raised as a basis for
challenging a jury instruction (see People v. Beyah (2009) 170 Cal.
App. 4th 1241, 1248-1250, 88 Cal. Rptr. 3d 829), we think it
unlikely that CALCRIM No. 361 would have that effect beyond the
ever-present prospect of facing cross examination. It certainly did
not have that effect here. The jury instructions in this case were
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settled before defendant took the stand. Thus, defendant testified at
length despite the knowledge in advance that he would face this
instruction, and his counsel acquiesced.
Defendant further contends the giving of CALCRIM No. 361
violated his due process rights by depriving him of a fundamentally
fair trial. (U.S. Const., amends. V, XIV.) In this thread of his
argument, defendant characterizes CALCRIM No. 361 as a pinpoint
instruction that singled him out for treatment different from that of
other witnesses. (See People v. Harris (1989) 47 Cal. 3d 1047,
1099, 255 Cal. Rptr. 352, 767 P.2d 619 [improper for court to
“single out a particular witness in an instruction”].) The unfair
“singling out” complaint advanced by defendant was rejected in
Saddler, supra, 24 Cal. 3d at pages 680-681, 156 Cal. Rptr. 871, 597
P.2d 130, and Rodriguez, supra, 170 Cal. App. 4th at page 1067, 88
Cal. Rptr. 3d 749, and we likewise reject it here.
The response to that argument can be traced to Caminetti v. United
States (1917) 242 U.S. 470, 493, 37 S. Ct. 192, 61 L.Ed. 442
(Caminetti), where the United States Supreme Court said that an
accused who takes the stand “subjects himself to the same rule as
that applying to any other witness.” The court explained that
“where the accused takes the stand in his own behalf and voluntarily
testifies for himself . . . he may not stop short in his testimony by
omitting and failing to explain incriminating circumstances and
events already in evidence, in which he participated and concerning
which he is fully informed, without subjecting his silence to the
inferences to be naturally drawn from it.” (Id. at p. 494, 37 S. Ct.
192.)
As our Supreme Court noted more recently in Saddler—specifically
addressing the identical issue raised here—“Defendant . . . argues
that the challenged instruction should never be given because it
impermissibly singles out a defendant’s testimony and unduly
focuses upon it. The same argument was rejected in People v.
Mayberry [(1975)] 15 Cal. 3d 143, 161 [125 Cal. Rptr. 745, 542
P.2d 1337]. We noted there that the instruction was consistent with
Evidence Code [§] 413, which permits the drawing of inferences
from any party’s failure to explain or deny evidence against him.
Since the only testifying ‘party’ in a criminal case is the defendant,
the code section can have reference only to him.” (Saddler, supra,
24 Cal. 3d at pp. 680-681, 156 Cal. Rptr. 871, 597 P.2d 130.)
To avoid the “singling out” problem, defendant suggests that
CALCRIM No. 226, which specifies certain matters the jury may
consider in determining the credibility of witnesses, should be
amended to reflect the same substance currently conveyed in
CALCRIM No. 361, and CALCRIM No. 361 itself should be
jettisoned. In addition, he criticizes Saddler, supra, 24 Cal. 3d at
pages 680-681, 156 Cal. Rptr. 871, 597 P.2d 130 and Rodriguez,
supra, 170 Cal. App. 4th at pages 1067-1068, 88 Cal. Rptr. 3d 749,
because those cases rest in part on Evidence Code section 413,
which allows the fact finder to draw adverse inferences from the
failure of a party to explain or deny evidence against the party.
Defendant argues that however useful Evidence Code section 413
may be in civil cases, it has no place in criminal trials.
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These arguments are more appropriately pitched to the Legislature
and the Judicial Council. We decline the invitation to engage in
wholesale revision of the CALCRIM instructions and selective
disabling of the Evidence Code in criminal cases just to avoid a
hypothetical “chilling effect” on other defendants. CALCRIM No.
361, we hold, is not unconstitutional.
Id. at 495-501 (brackets added). Finally, the state appellate court determined that even if it was
5
error to give CALCRIM No. 361 to the jury, no prejudice resulted, stating as follows:
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Defendant contends CALCRIM No. 361 was not only improperly
given to the jury, but was prejudicial as to counts one and two. He
does not seem to argue it was prejudicial as to count three. Nor
could he support such an argument, given that he was acquitted of
murder and succeeded in obtaining a voluntary manslaughter
conviction for the killing of Angel-Esparza.
The parties disagree about the appropriate standard of prejudice.
Defendant insists that a Chapman standard is called for (see
Chapman v. California (1967) 386 U.S. 18, 24, 87 S. Ct. 824, 17
L.Ed.2d 705), while the Attorney General points out that Saddler
and other cases have employed the Watson standard (see People v.
Watson (1956) 46 Cal. 2d 818, 836, 299 P.2d 243). (See Saddler,
supra, 24 Cal. 3d at p. 683, 156 Cal. Rptr. 871, 597 P.2d 130;
People v. Roehler, supra, 167 Cal. App. 3d at p. 393, 213 Cal. Rptr.
353 [courts have “rather uniformly” applied Watson].) Under either
standard, even assuming there was error, it was harmless on counts
one and two due to the overwhelming evidence against defendant,
most notably his own confession.
What occurred here bears none of the indicia of a “false confession”
case.[FN 7] There was plenty of detail in the narrative defendant
gave police to corroborate its reliability. Defendant knew more
about the offense than the police had told him, and many of those
details were confirmed by other evidence. For instance, he knew
that Mancinas had borrowed a Chevrolet Tahoe from “some girl” on
the night in question, which Mancinas’s girlfriend confirmed. He
knew the Honda used in the shooting had been stolen in Vallejo,
which the owner confirmed. He knew the approximate caliber of
the weapon used, which ballistics confirmed.
[FN 7:] See Leo and Ofshe, Criminal Law: The Consequences of
False Confessions: Deprivations of Liberty and Miscarriages of
Justice in the Age of Psychological Interrogation (1998) 88 J. Crim.
L. & Criminology 429, 436 [frequently cited study of 60 false
confession cases, all of which “satisf[ied] the following conditions:
no physical or other significant and credible evidence indicated the
suspect’s guilt; the state’s evidence consisted of little or nothing
more than the suspect’s statement ‘I did it;’ and the suspect’s factual
innocence was supported by a variable amount of evidence—often
substantial and compelling—including exculpatory evidence from
the suspect’s post-admission narrative. For every case included . . .
there was no credible evidence corroborating the defendant’s ‘I did
it’ admission or supporting the conclusion that he was guilty.” (Fns.
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omitted.)]
There was also evidence independent of the confession linking
defendant to the crime scene. The route defendant described
traveling with his crime partners matched the route traveled by
Mancinas’s cell phone, as shown by cell phone records. He and
Mancinas were in separate cars, and the cell phone “map” showing
their movements at the time of the shooting had the two of them
converging precisely at the location of the shooting. Then there was
the number of calls he made and who he spoke to by phone in the
time just before and after the murder. Defendant failed to explain
why he and Mancinas—a man defendant claimed he had heard of
but did not personally know—traded 12 phone calls on the night of
Tucker’s murder.
The investigative technique most often recommended as a bestpractices safeguard against false confessions—recording of
custodial interrogations[FN 8]—was followed in this case, and the
recording of defendant’s confession, on video, was provided to the
jury. If there was some kind of coercion or psychological dynamic
explaining why defendant might falsely implicate himself in
Tucker’s murder, it was there in the record for him to argue. But he
never did, and he makes no real effort to do so now. Defendant
essentially suggests that once he realized he was likely going to
prison for the killing of Angel-Esparza, his confession to the Tucker
murder (and several other acts of violence) was driven by
machismo. The problem with this portrayal of why he confessed is
that it does not necessarily mean the confession was false.
Defendant may well have incriminated himself out of machismo, but
the jury clearly believed it was also true he shot Tucker.
[FN 8:] See California Commission on the Fair Administration of
Justice, Report and Recommendations Regarding False Confessions
(July 25, 2006) at < http://www.ccfaj.org/rr-false-official.html> [as
of April 29, 2015].
The jury having watched defendant’s videotaped confession, little
could have been said (or left unsaid) to dilute its impact on them.
To be sure, even with firsthand evidence of defendant’s violent
proclivities put graphically before them, the jury did not simply
label him a violent man and a liar and convict him of all charges.
Instead, it deliberated for more than 30 hours to arrive at a split
verdict, which suggests it believed his testimony about the death of
Angel-Esparza up to a point. His complete denial of knowledge of
the Tucker murder, however, appears to have been a bridge too far.
He admittedly knew too much about the crime to have any
credibility in denying all involvement.
Finally, we evaluate the impact of CALCRIM No. 361 in the context
of the instructions as a whole, starting with the carefully constructed
internal balance to No. 361 itself. CALCRIM No. 361 does not
direct the jury to draw an adverse inference. It instructs the jury that
failure to explain or deny alone is not a sufficient basis upon which
to infer guilt, and it highlights the prosecution’s burden to prove
guilt beyond a reasonable doubt. (People v. Lamer (2003) 110 Cal.
App. 4th 1463, 1472-1473, 2 Cal. Rptr. 3d 875; People v. Ballard
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(1991) 1 Cal. App. 4th 752, 756-757, 2 Cal. Rptr. 2d 316.)
Ultimately, the instruction leaves the “meaning and importance” of
the failure to explain or deny in the jurors’ hands. (CALCRIM No.
361.) It is also notable that the trial court told the jury here that not
all the instructions were necessarily applicable (CALCRIM No.
200), and advised jurors to follow the instructions that applied to the
facts determined by them, thereby “mitigat[ing] any prejudicial
effect” related to the giving of CALCRIM No. 361, if it were
deemed to be improper. (People v. Lamer, supra, at p. 1472, 2 Cal.
Rptr. 3d 875, see Saddler, supra, 24 Cal. 3d at p. 684, 156 Cal. Rptr.
871, 597 P.2d 130.)
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Even assuming error in the giving of CALCRIM No. 361, the error
was harmless on this record. Given the strength of the evidence
against defendant on counts one, two and three, we cannot imagine
this jury would have entertained any reasonable doubt about his
guilt on any of those counts even if CALCRIM No. 361 had not
been given.
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B.
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A challenge to a jury instruction solely as an error under state law does not state a claim
Applicable Federal Law
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(1991). To obtain federal habeas relief for error in the jury charge, the petitioner also must show
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actual prejudice from the error, i.e., that the error had a substantial and injurious effect or influence
16
in determining the jury’s verdict. See Calderon v. Coleman, 525 U.S. 141, 146 (1998) (per
17
curiam) (citing Brecht, 507 U.S. at 637). The error may not be judged in artificial isolation but
18
must be considered in the context of the instructions as a whole and the trial record. See Estelle,
19
502 U.S. at 72. The federal habeas court must defer to a state court’s reasonable application of
20
these principles. Smith v. Spisak, 558 U.S. 139 (2010); Waddington v. Sarausad, 555 U.S. at 191.
21
The exception to the bar on habeas relief for faulty jury instructions is “‘whether the ailing
22
instruction . . . so infected the entire trial that the resulting conviction violates due process.’”
23
Middleton v. McNeil, 541 U.S. 433, 437 (2004) (quoting Estelle, 502 U.S. at 72). “[I]t must be
24
established not merely that the instruction is undesirable, erroneous, or even ‘universally
25
condemned,’ but that it violated some right which was guaranteed to the defendant by the
26
Fourteenth Amendment.” Cupp v. Naughten, 414 U.S. 141, 146 (1973). A federal court
27
examining a federal habeas petition determines whether the petitioner’s fourteenth amendment
28
rights were violated due to instructional error by looking at the total context of events at trial: “not
19
1
only is the challenged instruction but one of many such instructions, but the process of instruction
2
itself is but one of several components of the trial which may result in the judgment of
3
conviction.” U.S. v. Frady, 456 U.S. 152, 169 (1982) (citing Cupp, 414 U.S. at 147).
The test for constitutional error is whether there is a “‘reasonable likelihood’” the jury
4
5
misapplied the instruction in a way that violated the Constitution. Estelle, 502 U.S. at 72. Under
6
this standard, the petitioner must show more than a “possibility” of misunderstanding, Weeks v.
7
Angelone, 528 U.S. 225, 236 (2000), or that the jurors “could have” misinterpreted the
8
instructions. Tyler v. Cain, 533 U.S. 656, 659 n.1 (2001). The court, in making this assessment,
9
must evaluate the challenged instruction in light of the instructions as a whole and the evidence
introduced at trial, as well as the arguments of counsel, all of which may clarify the charge to the
11
United States District Court
Northern District of California
10
jury. Id.; Middleton v. McNeil, 541 U.S. 433, 438 (2004) (per curiam). The federal habeas court
12
must defer to a state court’s reasonable application of these principles. Smith v. Spisak, 558 U.S.
13
139 (2010); Waddington v. Sarausad, 555 U.S. 179, 191 (2009). If error occurred, the federal
14
habeas court must determine separately whether it had a substantial or injurious effect on the
15
verdict. Calderon v. Coleman, 525 U.S. 141, 146 (1998) (per curiam) (citing Brecht, 507 U.S. at
16
637).
17
C.
18
First, to the extent that Petitioner claims the trial court improperly instructed the jury with
Analysis
19
CALCRIM No. 361 because it misstates California state law, this claim is not cognizable on
20
federal habeas review. See Waddington, 555 U.S. at 192 n.5 (“[W]e have repeatedly held that it is
21
not the province of a federal habeas court to reexamine state-court determinations on state-law
22
questions.”); Estelle, 502 U.S, 67-68 (federal habeas relief not available for alleged errors by state
23
court in interpretation or application of state law; federal courts are bound by state court rulings on
24
questions of state law). Because claims for error in jury instructions generally present state law
25
questions, “it is not the province of a federal habeas court to reexamine state-court determinations
26
on state-law questions.” Estelle, 502 U.S. at 72; see also Mullaney v. Wilbur, 421 U.S. 684, 691
27
(1975) (“[S]tate courts are the ultimate expositors of state law[.]”).
28
Petitioner nonetheless contends that the trial court improperly instructed the jury with
20
1
CALCRIM No. 361 in violation of his Fifth and Fourteenth Amendment rights. Concerning his
2
allegation that the instruction violated his Fifth Amendment right, Petitioner’s argument fails.
3
CALCRIM No. 361 is a permissive instruction; it allows, but does not require, that the jury
4
consider the failure to deny. 3CT 643; 8RT 2137. As the state appellate court observed,
5
“CALCRIM No. 361 rests on the logical inference that if a person charged with a crime is given
6
the opportunity to explain or deny evidence against him but fails to do so (or gives an implausible
7
explanation), then that evidence may be entitled to added weight.” Vega, 236 Cal. App. 4th at 496
8
(citing Saddler, 24 Cal. 3d at 675, 679). Moreover, as the state appellate court stated, “when a
9
defendant does testify, all bets are off. He waives his Fifth Amendment privilege and is subject to
10
United States District Court
Northern District of California
11
12
13
14
15
16
cross-examination just as any other witness is.” Id. (citing Saddler, 24 Cal. 3d at 675, 678-81).
Petitioner further asserts that the state appellate court’s
conclusion as to constitutionality in Saddler and Gutierrez cannot be
squared with this Court’s caution in People v. Harris (1989) 47 Cal.
3d 1047, 1099[,] in that this instruction singles out the defendants[’]
testimony to unique and special scrutiny. Moreover, by singling out
the defendant’s testimony for special scrutiny, CALCRIM No. 361
is inconsistent with the dictate of CALCRIM No. 226 that the jury
“must judge the testimony of each witness by the same standards.”
(3CT 635-637).
Dkt. 1 at 12 (brackets added); see also 3CT 635-637; 8RT 2124-2136. However, this Court notes
17
that Petitioner has cited no Supreme Court cases that clearly establish a constitutional prohibition
18
on such an instruction. See Dkt. 1. Thus, it was not unreasonable for the state appellate court to
19
decline to apply a rule that has not been “squarely established” by the Supreme Court. See
20
Harrington, 562 U.S. at 101.
21
Petitioner next contends that:
22
23
24
25
26
27
28
[b]ecause this instruction can have such a unique and detrimental
impact on the defense case, the existence of the instruction can have
a chilling [e]ffect on the constitutional right of the defendant to
testify, knowing that his or her testimony will be subject to the
injected into the case by this instruction. (see People v. Haynes
(1983) [148] Cal. App. 3d 1117, where the Court of Appeal found
substantial problems with CALJIC No. 2.62 and the court suggested
that the instruction should not be given on request of the prosecutor
unless he presented a significant omission by the defendant in
explanations or denials in regard to the evidence in the particular
case.)
21
1
Dkt. 1 at 12 (citations in original) (italics added). However, as Respondent properly notes,
2
Petitioner again cites no United States Supreme Court cases that clearly establish such principle.
3
Dkt. 12-1 at 18; see also Dkt. 1 at 11-12. “[I]t is not an unreasonable application of clearly
4
established Federal law for a state court to decline to apply a specific legal rule that has not been
5
squarely established by this Court.” Harrington, 562 U.S. at 101.
6
In response to Petitioner’s claim that use of the CALCRIM No. 361 instruction violated his
7
Fifth and Fourteenth Amendment rights and further, that it “serves no good purpose when its
8
concept could be imported into the neutral CALCRIM No. 226, but it do[es] harm of
9
constitutional dimensional by impinging on a criminal defendant[’s] right to testify and to have a
10
United States District Court
Northern District of California
11
12
13
14
fair trial[,]” see Dkt. 1 at 13, the state appellate court stated the following:
These arguments are more appropriately pitched to the Legislature
and the Judicial Council. We decline the invitation to engage in
wholesale revision of the CALCRIM instructions and selective
disabling of the Evidence Code in criminal cases just to avoid a
hypothetical “chilling effect” on other defendants. CALCRIM No.
361, we hold, is not unconstitutional.
Vega, 236 Cal. App. 4th at 499-500. Again, the state appellate court’s decision on matters of state
15
law is binding on this Court. See Estelle, 502 U.S. at 67-68 (a federal habeas court cannot
16
17
18
reexamine a state court’s interpretation and application of state law); Lopez v. Schriro, 491 F.3d
1029, 1043 (9th Cir. 2007) (“[S]tate courts are presumed to know and correctly apply state law.”).
Furthermore, as Respondent correctly notes in its Answer, “the clearly established principles
19
governing instructional error claims . . . focus on whether the jury misapplied the instruction in an
20
21
22
unconstitutional way, and not on whether the instruction impacted the defendant’s decision to
testify.” Dkt. 12-1 at 18-19. This Court agrees with Respondent. Here, the instruction clearly
told the jury that Petitioner’s failure—if any—to deny was insufficient to show guilt. 3CT 643;
23
8RT 2137. Not only was such failure only one consideration among many, the prosecution still
24
had to prove the existence of each element of every offense beyond a reasonable doubt, a duty
25
reinforced by other jury instructions. See 3CT 632-669; see also 8RT 2124-2137. Jurors are
26
presumed to follow their instructions. Richardson v. Marsh, 481 U.S. 200, 206 (1987). In sum,
27
Petitioner has failed to show that there lacks a reasonable basis for the state courts to deny relief.
28
22
1
Harrington, 131 S. Ct. at 784. Accordingly, the state appellate court’s rejection of the claim was
2
not contrary to, or an unreasonable application of, clearly established Supreme Court law.
3
The state appellate court’s rejection of the due process/fair trial portion of Petitioner’s
4
claim also was not an unreasonable application “of the more generalized, clearly-established
5
principles governing instructional error claims set forth above.” Dkt. 12-1 at 19. As Respondent
6
provides, “The more general the rule, the more leeway courts have in reaching outcomes in case-
7
by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004); accord Harrington,
8
562 U.S. at 101. As noted above, the plain language of CALCRIM No. 361 clearly conveys that
9
this is a permissive instruction. 3CT 643; 8RT 2137. Based on any reading of CALCRIM No.
361, it is further evident that the jury would have understood that it could consider whether
11
United States District Court
Northern District of California
10
Petitioner failed to explain or deny anything that “he could reasonably be expected to have done so
12
based on what he knew . . . in evaluating that evidence” and weighing his testimony. 3CT 643;
13
8RT 2137.
14
Moreover, Petitioner does not deny that any failures to explain or deny adverse evidence
15
by a testifying witness, including himself, are properly considered by a jury in determining what
16
weight to assign such testimony. Dkt. 1 at 13; see also Vega, 236 Cal. App. 4th at 499 (citing
17
Caminetti v. United States, 242 U.S. 470, 493 (1917) for the proposition “that an accused who
18
takes the stand ‘subjects himself to the same rule as that applying to any other witness,’” which
19
allows the jury to draw inferences from any omission or failure to explain incriminating evidence).
20
Petitioner further admits that an instruction informing the jury it can do just that with respect to
21
any witness at trial is permissible. Id. at 12-13 (suggesting that the concept expressed in
22
CALCRIM No. 361 could be added to another form instruction that applies to all witnesses who
23
testify at trial). Petitioner complains instead that use of a second instruction specifically focusing
24
the jury’s attention on the defendant’s testimony in particular is unfair. Id. However, as explained
25
above, there is no reasonable likelihood the jury would have understood CALCRIM No. 361 to
26
require they apply a different, unconstitutional standard in evaluating Petitioner’s testimony as
27
opposed to the standard required in evaluating other witness testimony under CALCRIM No. 226
28
(“In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or
23
1
disprove the truth or accuracy of that testimony.”). 3CT 636, 643; 8RT 2128, 2137. As the state
2
appellate court pointed out, the instruction reiterates the prosecution’s burden of proof, tells the
3
jury it “may,” not “must,” draw an adverse inference from a defendant’s failure to explain or deny,
4
and gives the jury absolute discretion to determine what weight to assign the testimony. See Vega,
5
236 Cal. App. 4th at 499. Respondent argues that “[t[here is simply no conceivable way the jury
6
could have misapplied the instruction in an unconstitutional manner.” Dkt. 12-1 at 20. This Court
7
agrees with Respondent. Therefore, the state appellate court’s rejection of the claim was
8
objectively reasonable.
9
10
United States District Court
Northern District of California
11
12
13
Lastly, the state appellate court held that:
Even assuming error in the giving of CALCRIM No. 361, the error
was harmless on this record. Given the strength of the evidence
against defendant on counts one, two and three, we cannot imagine
this jury would have entertained any reasonable doubt about his
guilt on any of those counts even if CALCRIM No. 361 had not
been given.
Vega, 236 Cal. App. 4th at 503. In essence, the state appellate court held that, even assuming
14
there was either state or federal constitutional error in instructing the jury with CALCRIM No.
15
361, such error was harmless. See id. at 501-03 (noting both the Chapman v. California, 386 U.S.
16
18, 24 (1967) and People v. Watson, 46 Cal. 2d 818, 836 (1956), standards of harmless error
17
review and concluding that under either the federal Chapman standard or state Watson standard,
18
19
any assumed error was harmless “due to the overwhelming evidence against defendant”).
In Davis v. Ayala, the Supreme Court held that a state court’s determination that a
20
constitutional error was harmless under Chapman, 386 U.S. 18, constitutes an adjudication on the
21
merits that is subject to AEDPA deference. 135 S. Ct. 2187, 2198-99 (2015). Thus, habeas relief
22
is unavailable unless the state court applied Chapman in an objectively unreasonable manner. Id.
23
at 2198. Furthermore, “a prisoner who seeks federal habeas corpus relief must satisfy Brecht,”
24
which requires a showing that the error had a substantial and injurious effect on the verdict. Id. at
25
2199. However, formal application of both tests is not necessary where the error is plainly
26
harmless under the more stringent Brecht test, which subsumes the more liberal unreasonable27
application-of-Chapman test. Id. at 2198-99; Fry v. Pliler, 551 U.S. at 119-20.
28
24
1
Here, any error was plainly harmless under either standard. The record shows that the jury
2
was presented with Petitioner’s own videotaped confession, which included details of both
3
murders not provided to him by the police. 1RT 323, 329-332; 2RT 342-343 (evidence relating to
4
videotaped confession details on Tucker murder); 4RT 1004-1005, 1008, 1010-1011; 5RT 1018
5
(evidence relating to videotaped confession details on Angel-Esparza murder); see also 1
6
Amended Clerk’s Transcript (“ACT”) 771-877, 878-1038; 2ACT 1039-1102, 1103-1277. As to
7
the Tucker murder, the jury was also presented with evidence corroborating Petitioner’s account
8
(from his confession), including the caliber of gun used, details regarding the borrowing and
9
stealing of the cars used in the murder, and the route taken by Petitioner and his fellow gang
members on the day of the murder. 2RT 413-414, 466-468, 471, 511-514, 523-524; 3RT 608,
11
United States District Court
Northern District of California
10
610; 8RT 2063-2064; see 1ACT 839, 843, 846. Additionally, independent evidence was presented
12
to the jury confirming Petitioner’s participation in the Tucker murder, such as numerous phone
13
calls between him and his fellow gang member just before and after the murder, and the
14
converging of their cell phones at the scene of the murder. 2RT 410, 487-488, 489-490, 499, 500.
15
As to the Angel-Esparza murder, Petitioner claimed in his videotaped confession that he acted in
16
self-defense because Angel-Esparza attacked him with two knives. 2ACT 1210-1220, 1230-1231,
17
1238, 1246-1249, 1263-1268; see also 5RT 1032, 1052. Petitioner told police that he wrestled the
18
first knife away from Angel-Esparza and pushed it towards him, evidently striking him with it.
19
2ACT 1215-1216, 1246-1247, 1249, 1267-1268; see also 5RT 1052. The jury was also presented
20
with evidence corroborating Petitioner’s statements to police about the stabbing: two knives found
21
in the vicinity of the stabbing; one knife was covered in Angel-Esparza’s blood and had Angel-
22
Esparza’s thumbprint (but not defendant’s prints); and the other knife had no blood on it. 3RT
23
663-664, 669, 674, 690, 695, 701-707, 715-723, 728-729; 5RT 1036. Given this overwhelming
24
evidence of Petitioner’s guilt, the state appellate court’s determination that any error was harmless
25
beyond a reasonable doubt was not objectively unreasonable. On this record, this Court finds that
26
any error in giving CALCRIM No. 361 to the jury was harmless because it did not have a
27
“substantial and injurious effect or influence in determining the jury’s verdict.” See Brecht, 507
28
U.S. at 638.
25
Accordingly, Petitioner is not entitled to federal habeas relief on his instructional error
1
2
claim, and the Court DENIES this claim.
3
IV.
CERTIFICATE OF APPEALABILITY
No certificate of appealability is warranted in this case. For the reasons set out above,
4
5
jurists of reason would not find this Court’s denial of Petitioner’s instructional error claim
6
debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner may not appeal
7
the denial of a Certificate of Appealability in this Court but may seek a certificate from the Ninth
8
Circuit under Rule 22 of the Federal Rules of Appellate Procedure. See Rule 11(a) of the Rules
9
Governing Section 2254 Cases.
10
V.
CONCLUSION
United States District Court
Northern District of California
11
For the reasons outlined above, the Court orders as follows:
12
1.
The sole claim of instructional error in the petition is DENIED, and a certificate of
13
appealability will not issue. Petitioner may seek a certificate of appealability from the Ninth
14
Circuit Court of Appeals.
15
2.
16
IT IS SO ORDERED.
17
The Clerk shall terminate any pending motions and close the file.
Dated: October 24, 2017
18
19
YVONNE GONZALEZ ROGERS
United States District Judge
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