Covian v. Muniz

Filing 22

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY; DIRECTIONS TO CLERK. The Clerk shall terminate any pending motions, enter judgment in favor of Respondent and close the file. Signed by Judge Edward J. Davila on 4/5/2017. (Attachments: # 1 Certificate/Proof of Service)(amkS, COURT STAFF) (Filed on 4/5/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOSE ARNULFO COVIAN,

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United States District Court
Northern District of California

Petitioner,
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v.
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WILLIAM MUNIZ, Warden,

Case No. 15-03349 EJD (PR)
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF
APPEALABILITY; DIRECTIONS TO
CLERK

Respondent.

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Petitioner has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. §

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2254 challenging his state conviction. Respondent filed an answer on the merits, (Docket

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No. 16), and Petitioner filed a traverse, (Docket No. 20). For the reasons set forth below,

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the Petition for a Writ of Habeas Corpus is DENIED.

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I. BACKGROUND

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On October 28, 2011, Petitioner was found guilty by a jury in San Benito County

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Superior Court of one count of first degree murder. (Clerk’s Transcript (“CT”) at 474-75,

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Ans. Ex. A.1) On February 17, 2012, the trial court sentenced Petitioner to 25 years to life

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All references herein to exhibits are to the exhibits submitted by Respondent in support
of the answer, unless otherwise indicated. (See Docket Nos. 16-2, 21.)

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in state prison. (Id. at 669.)
Petitioner appealed the conviction with five claims, which included multiple sub-

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claims of ineffective assistance of counsel. (Ex. C.) While his direct appeal was pending,

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Petitioner also filed a petition for writ of habeas corpus in the state appellate court which

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presented the same claims as in his direct appeal, but adding an additional ineffective

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assistance of counsel claim.2 (Ex. F.) He also added extra-record material in support of

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the ineffectiveness claims. (Id.) The California Court of Appeal affirmed the judgment on

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direct appeal in a written opinion on September 8, 2014. (Ex. I.) The state appellate court

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summarily denied the state habeas petition in a separate order. (Ex. J.) On December 10,

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2014, the California Supreme Court summarily denied review of both a petition for review

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United States District Court
Northern District of California

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of the state appellate court’s rejection of Petitioner’s direct appeal and the state habeas

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petition. (Exs. M & N.)
Petitioner filed the instant habeas petition on July 21, 2015, raising the claims from

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his direct review and the state habeas petition.3

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II. STATEMENT OF FACTS

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The following facts are taken from the opinion of the California Court of Appeal on

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direct appeal4:
A. The Prosecution Case

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Petitioner added the claim that trial counsel failed to request that the trial court provide
reasonable accommodation for Petitioner’s speech impediment so that Petitioner could
testify on his own behalf, (Ex. F), which is the last ineffective assistance of counsel claim
addressed in this order. See infra at 63.
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See infra at 12. Although Respondent believes that the instant petition does not include
the cumulative prejudice claim raised on direct appeal, (Ans. at 2), the claim is included in
Attachment A of the instant petition. (Pet. Attach. A at 79.) This claim is exhausted since
the appellate court denied it on the merits on direct appeal, (Ex. I at 48), and then
summarily denied by the state high court, (Ex. M). Accordingly, the Court will address the
merits of that claim although Respondent did not address it in the answer.
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This summary is presumed correct. Hernandez v. Small, 282 F.3d 1132, 1135 n.1 (9th
Cir. 2002); 28 U.S.C. § 2254(e)(1).
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At about 10:00 p.m. on December 3, 2007, Carlos Argueta and his
friend Alejandro Hurtado were walking to Hurtado’s house on Homestead
Avenue in Hollister. Defendant, who was standing nearby, called out to
Hurtado and offered him a beer, but Hurtado responded, “No, you’re
already drunk.” Argueta also declined defendant’s offer. After defendant
said that he would be by later, Hurtado told him that everyone was sleeping
at his house and he was going to go to bed.

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When Argueta and Hurtado arrived at Hurtado’s house, they went
into the garage. The garage door was closed. The garage also had a side
door which could be accessed from the street through a gate. The latch to
the gate was on the inside of the gate and away from the street. One could
reach the latch from the street side of the gate by reaching over the top of
the gate.
Hurtado called his friend Joann Martinez from the garage. Argueta
testified that Hurtado asked her to give Argueta a ride home. Martinez
testified that Hurtado asked her to come over[] because he wanted her to
find some methamphetamine for Argueta. When Martinez arrived at the
house, she called Hurtado on her cell phone and asked if Argueta was
ready. She also told him that she saw something suspicious. Argueta went
outside, opened the gate, and waited for her to get out of her car.
According to Martinez, she had seen three men, including defendant,
“hanging out” on the corner near the Hurtado house.
Argueta testified that he opened the side garage door for Martinez.
According to Argueta, it was approximately 10:15 p.m. or 10:30 p.m.
However, Martinez testified that she arrived at the Hurtado house at 9:00
p.m. and she had been unable to find any methamphetamine for Argueta.
Martinez testified that sometime between 10:30 p.m. and 11:00 p.m.,
she heard banging on the closed garage door. Hurtado asked them what
they wanted and told them that if they had a beef, he would meet them
around the corner. They left. Argueta testified, however, that sometime
after Martinez arrived, defendant opened the side garage door. Argueta
prevented defendant from entering the garage. Hurtado told defendant,
“Don’t do that because you’re lacking respect, I’ve never gone to your
house.” It had been about 10 minutes since defendant had offered them a
beer. Defendant appeared angry and left. As defendant left, he said,
“Later, we’ll see each other.”
Approximately 10 minutes later, defendant returned to the garage
and knocked or hit loudly on the side door. Defendant was angry and
yelled, “Come outside, I want to fight with you, and I have my soldiers.”
Argueta told Hurtado to wait and that he would go outside. When Argueta
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went outside, defendant said, “Where is Alex, I want to fight with him.”
Argueta asked him why he wanted to fight. Defendant responded that
Hurtado was very conceited and thought a lot of himself. Hurtado told
defendant to leave. Hurtado also told Argueta to come inside because
defendant was drunk. After defendant tried “to go on top of” Hurtado,
Argueta grabbed him and told him to calm down. Defendant left with his
three companions. Hurtado and Argueta then put some bent nails in the
gate latch so that the gate could not be opened.
About 10 to 15 minutes later, Hurtado and Argueta heard the voices
and someone pulling on the side gate. It was about 11:35 p.m. or 11:40
p.m. Defendant had returned with the same three companions, and
defendant again challenged Hurtado to fight. Hurtado said, “Now this guy
is making me very tired, I’m getting very tired.” Hurtado was also angry
because defendant kept coming back and his parents were sleeping.

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Hurtado told Argueta and Martinez to stay in the garage, grabbed a
small steel bar from a weight-lifting set, and went outside. Hurtado was
right-handed and was holding the bar in his right hand. Argueta testified
that he followed Hurtado, but Martinez testified that Argueta remained in
the garage with her. Argueta saw defendant trying to reach over the top of
the gate to remove the nails. Hurtado hit defendant’s forearm with the bar,
though he “didn’t hit him very well. It just brushed passed his hand.” At
that point, the gate opened, defendant “threw himself to the ground” and
asked Hurtado, “What’s wrong?” and “Why are you hitting me?” Hurtado
replied that defendant had worn him out and he asked defendant what he
wanted. Defendant was kneeling on one leg in a crouched position with his
forearm raised around the level of his eyes or forehead. Defendant’s right
hand was inside his sweater sleeve. When defendant asked Hurtado why he
was hitting him, Hurtado responded, “I’m not hitting you, I just said, What
is the problem you have with me?” Defendant did not answer.

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Argueta then heard voices say, “Leave us in p[ea]ce.” Before
Argueta turned toward defendant’s companions, defendant and Hurtado
were approximately three feet apart. Argueta looked towards defendant’s
companions. When Argueta said that no one was hitting defendant and
they should take him home because he was drunk, they responded that they
wanted to fight. Argueta took about four steps towards them as he pushed
the sleeves of his sweater up. Before Argueta began fighting with
defendant’s companions, he saw Hurtado, who was holding the bar “down,
like in the middle” and not raised up, turn towards him. At that point,
Argueta turned and saw defendant jump from a crouching position and grab
Hurtado with both hands. [FN2] Defendant then said, “I got him, I got
him” and began running away. Hurtado took five or six steps, and started

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swaying. Argueta told Martinez to call an ambulance, but Hurtado died
before it arrived.

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FN2. Martinez heard wrestling sounds and went outside with
Argueta. She never saw Hurtado try to hit anyone with the bar after
the gate was opened. She saw defendant and Hurtado entwined as
they were fighting, but she did not see a knife or see Hurtado get
stabbed. Martinez called 911.
As the police were arriving, Argueta left. Argueta was on probation
following a conviction for being under the influence of methamphetamine.
He had a warrant for his arrest[] because he had violated the terms of his
probation. Argueta hid in a shed behind the Hurtado garage until about
4:30 a.m. or 5:00 a.m.
Alejandro Covian, defendant’s nephew, testified that he lived with
his grandparents and defendant on Homestead Avenue in Hollister in
December 2007. Sometime after 10:00 p.m. on December 3, 2007,
Alejandro lent defendant $20 to buy “crystal” from Hurtado. According to
Alejandro, defendant frequently bought methamphetamine from Hurtado,
and Hurtado was the only person from whom defendant bought drugs.
Alejandro accompanied defendant on his first visit to the Hurtado
house, but he remained in the truck while defendant approached the house.
Alejandro did not see what transpired between defendant and Hurtado.
However, Alejandro heard Hurtado say something like, “Come in a couple
of minutes” to defendant. About five minutes later, defendant returned to
the truck and said that Hurtado did not have any drugs for sale.

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Defendant and Alejandro returned home where they were joined by
their neighbors Alfredo and Urbano. They sat in the truck and drank beer
for about 15 minutes. Defendant then walked to Hurtado’s house. Five
minutes later, Alejandro walked towards Hurtado’s house and met
defendant as he was walking home. When they returned to the truck,
defendant showed him the drugs that he had just bought from Hurtado.
Defendant became upset because Hurtado had not given him the amount
that he had paid for.
Defendant returned to Hurtado’s house, and Alejandro, Urbano, and
Alfredo followed him. When they arrived, Alejandro saw Hurtado
swinging at defendant with a bar and hit his shoulder “a couple of times…
more than two.” Defendant asked Argueta, “Why is he hitting me?”
Defendant was also “trying to block him” and “trying to cover himself.”
Alejandro heard defendant say “I got him” once or twice, and then run past
him back to the truck parked in front of his own house. Alejandro, Urbano,
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and Alfredo followed defendant to the truck where they continued to drink
beer. Defendant told them that he had stabbed Hurtado and he was scared.
Alejandro stated that he did not think that defendant had stabbed Hurtado[]
because Hurtado acted “like nothing happened.” Defendant responded that
“he felt it” and he was scared. Defendant then produced a knife and
stabbed the seat of the truck. Shortly thereafter, they heard the police and
ambulance sirens. Alfredo and Urbano left, and defendant and Alejandro
entered their house. They were all scared.
The police contacted Alejandro in the early morning hours of
December 4, 2007. Alejandro was “scared” and “traumatized” and did not
tell the police that Hurtado hit defendant. In February 2009, Alejandro told
the officer that Hurtado hit defendant on the arm.
Dr. John Hain testified as an expert in forensic as well as anatomic
and clinical pathology. After he conducted an autopsy of Hurtado on
December 5, 2007, he concluded that Hurtado bled to death as a result of a
single stab to the area between his fifth and sixth ribs. In Dr. Hain’s
opinion, the knife which inflicted the injury had a blade of around six
inches. The wound was consistent with having been caused by a knife
which was found at defendant’s house.
Dr. Hain also examined Hurtado’s clothing and concluded that
Hurtado’s arms were not raised above the level of the wound. He explained
that if Hurtado’s arms had been raised above the level of the wound when
he was stabbed, there would have been a greater discrepancy between the
position of the wound and the position of the corresponding tear on his
sweatshirt.

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Officer Rose Pacheco was dispatched to the scene and took a brief
statement from Martinez. After Officer Pacheco heard Martinez’s
description of the perpetrator, she thought of defendant as a possible
suspect. When she took Martinez for the showup, defendant had his hair
pulled up in a ponytail. Martinez asked for him to remove his pony tail,
which he did. Martinez then positively identified him as the perpetrator.
Sergeant Don Pershall testified regarding the procedure that he had
followed to obtain an eyewitness identification of defendant from Martinez.
He went to the county jail to obtain a photographic lineup. However, he
had some difficulty because he did not have photographs with defendant’s
current hair style. When Sergeant Pershall used a photograph with
defendant’s hair slicked back, Martinez was unable to make an
identification.

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Captain Carlos Reynoso spoke to defendant at his house in the early
morning hours of December 4, 2007, and asked him if there was anything
that he wanted to tell him prior to going outside for a field lineup. Captain
Reynoso told him that the police were there “to investigate an incident that
had happened down the street earlier than night” and indicated that there
was “some kind of fight or disturbance.” Defendant stated that he did not
know anything about what was going on, and he denied any knowledge of
any incident that had occurred. He also stated that he had been drinking
and indicated that he was intoxicated. When Captain Reynoso asked if he
had any injuries, defendant replied that he had no injuries. Captain
Reynoso also asked him if he had been hit by a pipe, and defendant said no.
While waiting for the witness to arrive for the field lineup, defendant
asked “[W]hat happened with the man from down the street[?]” Defendant
also asked how Hurtado “was doing, and he asked if they had killed him.”
Captain Reynoso did not know whether any of the other officers had
mentioned a killing to the defendant. Captain Reynoso talked to defendant
about finding a metal bar at the crime scene and “not knowing whether this
was possibly a self-defense type of incident….” However, defendant never
admitted that he was present at the Hurtado house. After Martinez
identified defendant as having been involved in the Hurtado homicide,
defendant was arrested. As defendant was placed in the patrol car, he said
to Captain Reynoso, “You’re wrong.”

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At approximately 4:00 a.m., Captain Reynoso advised defendant of
his Miranda [FN3] rights, which he waived. Defendant stated that he had
been drinking beer outside his house when he saw some individuals
running towards his house and then jumping nearby fences. Defendant
continued drinking until police cars began to arrive. He then ran into his
house because he was concerned that he “might get in trouble for drinking
outside….”

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FN3. Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Defendant admitted to Captain Reynoso that he knew Hurtado and
stated that they had not gotten into an argument. He referred to their
relationships as “cool.” Defendant then asked Captain Reynoso “if
[Hurtado] was the one that was stabbed.” He replied that he “had never
mentioned anyone being stabbed.” When Captain Reynoso told defendant
that he was under arrest for murder, defendant asked him “not to advise his
mother what he was being arrested for.”
At about 2:30 p.m. that same day, defendant was again advised of
his Miranda rights, which he waived. Captain Reynoso asked defendant to
tell his side of the story. Defendant said that he had been drinking outside
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his home and also smoked some marijuana. When defendant was told that
this was inconsistent with his nephew’s statement, defendant said “that that
was his side of the story….” Defendant said his nephew was “a young guy
and he’s not very smart, he doesn’t know what he’s talking about.” He
claimed that he had last seen Hurtado two months earlier. Defendant
denied that he offered Hurtado a beer or whistled to him that night.
Defendant told Captain Reynoso that he had the wrong guy.

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In February 2008, Sergeant Pershall collected various items,
including a bed sheet, a writing tablet, and a beanie, from defendant’s jail
cell. The bed sheet had “187 Case Prison” written on it in several places as
well as “1985.” “187” is the Penal Code section for murder and 1985 is the
year that defendant was born. The writing table[t] had “187 Case” and
“Pepe” written on it. Pepe is defendant’s nickname. The beanie had “187”
written on it. Defendant did not have any cellmates. In Sergeant Pershall’s
opinion, the items indicated that defendant was “bragging” but was “not
necessarily” confessing to the crime.
Lorena Hurtado Scalmanini, Hurtado’s sister, testified about
Hurtado’s good character and relationship with his family.

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B. The Defense Case
Dr. David Posey, an expert in forensic pathology, testified that
Hurtado bled to death from a stab wound. He opined that the absence of a
hilt mark on Hurtado’s body indicated that it could have been an accidental
stabbing or a defensive stabbing. Based on the absence of other injuries to
Hurtado, Dr. Posey testified: “I don’t get the feeling that the aggressor’s
intentions were meant to stab him.” He also testified that based on the
position and path of the knife wound, Hurtado was leaning forward and
“had to have his hand up extended” when he was stabbed.

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Dr. Posey discussed Hurtado’s post-mortem toxicology report,
which showed that Hurtado’s methamphetamine level was 0.71 milligrams
per liter. The “potentially toxic” range for methamphetamine begins at 0.2
milligrams per liter and extends to 5.0 milligrams per liter. According to
Dr. Posey, only a chronic user could tolerate the high dosage that Hurtado
had in his body and Hurtado was under the influence of methamphetamine
when he died. Dr. Posey testified that chronic users of methamphetamine
will have delusions as well as visual and audio hallucinations. They will
also be paranoid and aggressive. Dr. Posey noted that the weight-lifting bar
which Hurtado was swinging at defendant was 14 inches long and
potentially a lethal weapon, because it could fracture a skull with the
application of only minimal force. In his opinion, Hurtado was the
aggressor because he was under the influence of methamphetamine and
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armed with a club. However, Dr. Posey formed this opinion without
knowing that there was evidence that defendant had challenged Hurtado to
fight. Dr. Posey was also not aware that defendant had stated that he had
“soldiers” with him.
Dr. Taylor Fithian testified as an expert witness in the area of the
effects of methamphetamine on human behavior. According to Dr. Fithian,
chronic users of methamphetamine have “a great deal of emotional ups and
downs,” are violent, and experience “alterations in [their] perceptions of the
world….” Methamphetamine can also cause a user to experience
“delusions where you think that people are trying to kill you or people are
out to hurt you” as well as auditory and visual hallucinations. Chronic
methamphetamine users “become very delusional and very psychotic.
They can look like someone who’s very, very crazy; like someone who we
call schizophrenic.” In his opinion, Hurtado was “clearly under the
influence of methamphetamine and would have had signs and symptoms of
methamphetamine intoxication and possibly psychosis.”
James Huggins, a defense investigator, testified that he interviewed
Argueta at an immigration detention facility. They discussed the status of
his “deportation status appeal,” and Argueta told him that he “lost his
appeal and a person name[d] Candy was helping with him the appeal
letter.” Higgins determined that “Candy” referred to the prosecutor,
District Attorney Candice Hooper. Argueta also stated that Candy wrote a
letter on his behalf to help him obtain a U-VISA, which was “like getting
asylum.” Huggins understood Argueta’s definition of asylum to mean that
Argueta would remain in the United States until he testified at defendant’s
trial. Argueta also believed that he would be “getting out to go see his
dying mother.” Huggins confirmed that “paperwork” was required from
the district attorney’s office in San Benito County to ensure that an
individual, who had been scheduled for deportation and was a material
witness in a murder case, remained in the United States in order to be
available to testify at the trial.
Argueta testified that he told Huggins that his appeal was currently
in the Ninth Circuit Court of Appeals. He did not tell Huggins that anyone
was helping him with his deportation issues. Argueta told Huggins that his
attorney “sent a letter to Candace because [he] was already deported. But
they can’t deport anyone if they have a court appearance coming up so the
person has to go to court first, then get deported.”
Gregory LaForge was defendant’s attorney in September 2008 and
was present at defendant’s preliminary hearing. At that time, LaForge
witnessed a demonstration by Deputy District Attorney Patrick Palacios
and Argueta of the relative positions of Hurtado and defendant prior to the
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stabbing. Argueta, who portrayed defendant, was down on his right knee
and his left knee was up while Palacios, who portrayed Hurtado, had raised
his hand holding the simulated steel bar “straight up.”

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People v. Covian, No. H037986, slip op. at 1-10 (Cal. Ct. App. Sept. 8, 2014) (Ans. Ex. I

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(hereinafter “Op.”).

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III. DISCUSSION

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A.

Standard of Review
This Court may entertain a petition for a writ of habeas corpus “in behalf of a

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person in custody pursuant to the judgment of a State court only on the ground that he is in

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custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

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Northern District of California

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§ 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). The writ may not be granted with

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respect to any claim that was adjudicated on the merits in state court unless the state

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court’s adjudication of the claim: “(1) resulted in a decision that was contrary to, or

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involved an unreasonable application of, clearly established Federal law, as determined by

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the Supreme Court of the United States; or (2) resulted in a decision that was based on an

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unreasonable determination of the facts in light of the evidence presented in the State court

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proceeding.” 28 U.S.C. § 2254(d).

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“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state

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court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question

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of law or if the state court decides a case differently than [the] Court has on a set of

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materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). The

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only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the

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holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court

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decision. Williams, 529 U.S. at 412; Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004).

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While circuit law may be “persuasive authority” for purposes of determining whether a

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state court decision is an unreasonable application of Supreme Court precedent, only the

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Supreme Court’s holdings are binding on the state courts and only those holdings need be

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“reasonably” applied. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.), overruled on other

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grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).

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“Under the ‘unreasonable application’ clause, a federal habeas court may grant the

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writ if the state court identifies the correct governing legal principle from [the Supreme

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Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s

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case.” Williams, 529 U.S. at 413. “Under § 2254(d)(1)’s ‘unreasonable application’

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clause, . . . a federal habeas court may not issue the writ simply because that court

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

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established federal law erroneously or incorrectly.” Id. at 411. A federal habeas court
making the “unreasonable application” inquiry should ask whether the state court’s

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application of clearly established federal law was “objectively unreasonable.” Id. at 409.

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The federal habeas court must presume correct any determination of a factual issue made

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by a state court unless the petitioner rebuts the presumption of correctness by clear and

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convincing evidence. 28 U.S.C. § 2254(e)(1).

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Here, as noted above, the California Supreme Court summarily denied Petitioner’s

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petitions for review. See supra at 2; (Exs. M, N). The California Court of Appeal, in its

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opinion on direct review, addressed all the claims in the instant petition except for one.

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(Ex. I.) The Court of Appeal thus was the highest court to have reviewed those claims in a

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reasoned decision, and, as to those claims, it is the Court of Appeal’s decision that this

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Court reviews herein. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v.

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Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005).

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With respect to the one claim which was summarily dismissed, see supra at 2, the

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standard of review under AEDPA is somewhat different where the state court gives no

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reasoned explanation of its decision on a petitioner’s federal claim and there is no reasoned

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lower court decision on the claim. In such a case, a review of the record is the only means

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of deciding whether the state court's decision was objectively reasonable. See Plascencia

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v. Alameida, 467 F.3d 1190, 1197-98 (9th Cir. 2006). When confronted with such a

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decision, a federal court should conduct “an independent review of the record” to
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determine whether the state court’s decision was an objectively unreasonable application

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of clearly established federal law. Plascencia, 467 F.3d at 1198. This independent review

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is not de novo review; the ultimate question is still whether the state court applied federal

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law in an objectively reasonable manner. Kyzar v. Ryan, 780 F.3d 940, 949 (9th Cir.

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2015). Section 2254(d)(1) does apply to decisions that are unexplained as well as to

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reasoned decisions. See Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011).
The Supreme Court has vigorously and repeatedly affirmed that under AEDPA,

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there is a heightened level of deference a federal habeas court must give to state court

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decisions. See Hardy v. Cross, 132 S. Ct. 490, 491 (2011) (per curiam); Harrington, 131 S.
Ct. at 783-85; Felkner v. Jackson, 131 S. Ct. 1305 (2011) (per curiam). As the Court

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explained: “[o]n federal habeas review, AEDPA ‘imposes a highly deferential standard for

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evaluating state-court rulings’ and ‘demands that state-court decisions be given the benefit

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of the doubt.’” Id. at 1307 (citation omitted). With these principles in mind regarding the

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standard and limited scope of review in which this Court may engage in federal habeas

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proceedings, the Court addresses Petitioner’s claims.

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B.

Claims and Analysis

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Petitioner asserts the following grounds for relief: (1) there was insufficient

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evidence to support the murder conviction; (2) the trial court erred by omitting a specific

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part of the instruction regarding the credibility of a witness; (3) the trial court erred with

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respect to two jury instructions; (4) multiple claims of ineffective assistance of trial

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counsel, (Pet. Attach. A & B); and (5) cumulative prejudice.

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1.

Insufficient Evidence

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Petitioner first claims that there was insufficient evidence that the stabbing was

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“deliberate and premeditated” to support the murder conviction and that the prosecution

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failed to prove that he did not act in justifiable self-defense, imperfect self-defense, or in

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the heat of passion. (Pet. at 6; id., Attach. at 4, 8-9.)

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///

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///
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The state appellate court rejected all aspects of this claim on direct appeal:
A. Sufficiency of the Evidence
Defendant contends that the evidence was insufficient to prove the
elements of first degree murder.

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1. Standard of Review

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“The law we apply in assessing a claim of sufficiency of the
evidence is well established: ‘“‘“[T]he court must review the whole record
in the light most favorable to the judgment below to determine whether it
discloses substantial evidence – that is, evidence which is reasonable,
credible, and of solid value – such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.”’”’ [Citation.] The
standard is the same under the state and federal due process clauses.
[Citation.] ‘We presume “‘in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence.’ [Citation.]
This standard applies whether direct or circumstantial evidence is
involved.” [Citations.]’ [Citation.]” (People v. Gonzales and Soliz (2011)
52 Cal.4th 254, 294 (Gonzales).)

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2. Deliberation and Premeditation

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“All murder which is… willful, deliberate, and premeditated
killing… is murder of the first degree.” (Pen. Code, § 189.) “A verdict of
deliberate and premediated first degree murder requires more than a
showing of intent to kill. [Citation.] ‘Deliberation’ refers to careful
weighing of considerations in forming a course of action; ‘premeditation’
means thought over in advance. [Citations.] ‘The process of premeditation
and deliberation does not require any extended period of time. “The true
test is not the duration of time as much as it is the extent of the reflection.
Thoughts may follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly….” [Citations.]’” (People v. Koontz
(2002) 27 Cal.4th 1041, 1080.)
Here, defendant was “not happy” when Hurtado declined his offer of
a beer. Defendant then said that he would be by later, but Hurtado told him
not to come to his house because everyone was sleeping. Nevertheless,
defendant arrived at the Hurtado home, entered the property through a gate,
and opened the side garage door. After Argueta stood in front of defendant
and Hurtado told him not to enter the garage, defendant became angry and
left, saying “Later, we’ll see each other.”

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About 10 minutes later, defendant returned to Hurtado’s garage and
knocked or hit loudly on the side door. Defendant was angry, challenged
Hurtado to a fight, and announced that his “soldiers” were with him. When
Argueta went outside, defendant asked where Hurtado was and stated that
he wanted to fight him. Argueta asked defendant why he wanted to fight
him, and defendant responded that Hurtado was conceited and thought a lot
of himself. Hurtado told defendant to leave. After defendant tried to reach
Hurtado, Argueta grabbed him and told him to calm down. Defendant and
his three companions then left, and Hurtado and Argueta tried to lock the
gate with some nails.

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About 10 to 15 minutes later, defendant returned to the Hurtado
property for a third time. Hurtado grabbed a steel bar from a weight-lifting
set and went outside. Defendant, who was accompanied by the same three
people, was trying to remove the nails in order to enter through the gate.
Hurtado swung the bar at defendant’s arm and delivered a glancing blow to
his forearm. At that point, the gate opened and defendant threw himself to
the ground where he knelt down in a crouching position with his forearm
raised around his eyes and forehead and asking Hurtado, “What’s wrong?”
and “Why are you hitting me?” Defendant’s right hand was hidden inside
his sweater sleeve. Defendant and Hurtado were about three feet apart.
When Argueta told defendant’s companion to take defendant home,
they challenged him to a fight. Before Argueta began fighting with them,
he saw Hurtado, who was holding the bar “down,” turn towards him. At
that point, Argueta turned around and saw defendant jump from the
crouching position and grab Hurtado with both hands. Defendant then said,
“I got him, I got him.” As defendant ran away, he told his companions,
“Let’s go, Let’s go. I got him.”
The jury could reasonably infer from this evidence that defendant
was eager to fight Hurtado, wanted to confront him outside, and had
concealed his knife in his sweater sleeve. Defendant’s repeated visits to the
Hurtado property, his stated intention to fight Hurtado, his concealed knife,
his jump toward Hurtado as Hurtado’s attention was diverted, and his
statements of “I got him, I got him” after he stabbed Hurtado reasonably
supported the jury’s conclusion that defendant had thought the killing over
in advance and had carefully weighed the considerations in forming this
course of action. Thus, there was substantial evidence that the killing of
Hurtado was deliberate and premediated.
Relying on People v. Anderson (1968) 70 Cal.2d 15 (Anderson),
defendant argues that the evidence was insufficient to support a finding of
deliberation and premeditation. Anderson stated: “The type of evidence
which this court has found sufficient to sustain a finding of premeditation
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and deliberation falls into three basic categories: (1) facts about how and
what defendant did prior to the actual killing which show that the defendant
was engaged in activity directed toward, and explicable as intended to
result in, the killing – what may be characterized as ‘planning’ activity; (2)
facts about the defendant’s prior relationship and/or conduct with the
victim from which the jury could reasonably infer a ‘motive’ to kill the
victim, which inference of motive, together with facts of type (1) or (3),
would in turn support an inference that the killing was the result of ‘a preexisting reflection’ and ‘careful thought and weighing of considerations’
rather than ‘mere unconsidered or rash impulse hastily executed’ [citation];
(3) facts about the nature of the killing from which the jury could infer that
the manner of killing was particular and exacting that the defendant must
have intentionally killed according to a ‘preconceived design’ to take his
victim’s life in a particular way for a ‘reason’ which the jury can reasonably
infer from facts of type (1) or (2). [¶] Analysis of the cases will show that
this court sustains verdicts of first degree murder typically when there is
evidence of all three types and otherwise requires at least extremely strong
evidence of (1) or evidence of (2) in conjunction with either (1) or (3).”
(Id. at pp. 26-27.)
The California Supreme Court has subsequently clarified the
application of the Anderson factors. It noted that “[t]he Anderson
guidelines are descriptive, not normative…. [¶] … The Anderson factors,
while helpful for purposes of review, are not a sine qua non to finding first
degree premeditated murder, nor are they exclusive.” (People v. Perez
(1992) 2 Cal.4th 1117, 1125.) The court has also stated that “[u]nreflective
reliance on Anderson for a definition of premeditation is inappropriate. The
Anderson analysis was intended as a framework to assist reviewing courts
in assessing whether the evidence supports an inference that the killing
resulted from pre-existing reflection and weighing of considerations. It did
not refashion the elements of first degree murder or alter the substantive
law of murder in any way.” (People v. Thomas (1992) 2 Cal.4th 489, 517.)
Defendant first focuses on the lack of planning activity. He argues
that “[w]hile it is undoubtedly true that [he] took a knife to Hurtado’s house
and that a knife is a deadly weapon,… [i]f [he] had the knife with him the
entire evening – and nothing in the record suggests that he did not – then
the fact that he happened to have it at the moment when he concluded that
he needed to defend himself against Hurtado’s attack does not show that
prior to the killing ‘the defendant was engaged in activity directed toward,
and explicable as intended to result in, the killing.’” First, as discussed
infra, the jury could have reasonably concluded that defendant did not need
to defense himself against Hurtado. Second, even assuming that defendant
routinely carried a knife, the jury could have also reasonably concluded that
defendant’ removal of the nails from the gate latch, his concealment of the
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knife in his sweater sleeve as he entered through the gate as well as his
repeated visits to the Hurtado property to confront Hurtado established
planning activity.
Defendant argues, however, that his repeated visits “do[] not suggest
a preconceived design to kill Hurtado.” Relying on Alejandro’s testimony
that Hurtado sold defendant a baggie of methamphetamine on his second
visit to the house, he claims that there was no evidence that he made
multiple visits to gain an opportunity to attack Hurtado. However, it was
the jury’s role to determine the credibility of the witnesses. (People v. Lee
(2011) 51 Cal.4th 620, 632 (Lee).) Drawing all inferences in favor of the
judgment, we presume the jury concluded that defendant went repeatedly to
the Hurtado property to confront Hurtado. (Gonzales, supra, 52 Cal.4th at
p. 294.)
Defendant next contends that his “shouting ‘I got him’ was just as
likely to have been his expression of surprise, shock, or horror at what he
had just done,” as it was a declaration that he had carried out a plan to kill.
Here, defendant concealed his knife and then declared “I got him” after
stabbing Hurtado as he fled. Based on this evidence, the jury could have
reasonably concluded that defendant’s declaration meant “I got him, as I
intended to do.” The jury was not required to interpret the statement as
defendant has. (Gonzales, supra, 52 Cal.4th at p. 294.)

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3. Justifiable Self-defense
Defendant argues that the evidence was insufficient to prove that he
did not act in justifiable self-defense.

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“For killing to be in self-defense, the defendant must actually and
reasonably believe in the need to defend. [Citation.] … To constitute
‘perfect self-defense, i.e., to exonerate the person completely, the belief
must also be objectively reasonable. [Citations.]” (People v. Humphrey
(1996) 13 Cal.4th 1073, 1082, fn. omitted (Humphrey).) “[T]he right of
self-defense is based upon the appearance of imminent peril to the person
attacked.” (People v. Perez (1970) 12 Cal.App.3d 232, 236.) The
prosecution has the burden of proving beyond a reasonable doubt that the
killing was not justified by defendant’s need to defend himself.
(Humphrey, at p. 1103; People v. Lee (2005) 131 Cal.App.4th 1413, 1429.)

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Here, Argueta testified that he saw Hurtado swing the bar at
defendant’s arm and deliver a glancing blow as defendant as reaching over
the top of the gate in order to enter the property. After the gate opened,
defendant threw himself to the ground and knelt on one knee. Argueta then
saw defendant jump from a crouching position toward Hurtado, embrace
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him, and say “I got him, I got him.” Prior to the stabbing, Argueta
observed that Hurtado did not hold the bar in a threatening position. This
observation was corroborated by Dr. Hain’s testimony that Hurtado’s arms
could not have been raised above the level of the wound when he was
stabbed. Thus, there was substantial evidence to support the jury’s
conclusion, beyond a reasonable doubt, that defendant did not kill Hurtado
in self-defense because he could not have reasonably believed that he was
in imminent danger of being killed or suffering great bodily injury.
Defendant relies on Alejandro’s testimony that Hurtado repeatedly
hit defendant with the steel bar and Dr. Posey’s testimony that a blow from
the bar could have easily been fatal. However, defendant fails to
acknowledge that “‘it is the exclusive province of the… jury to determine
the credibility of a witness….’” (Lee, supra, 51 Cal.4th at p. 632.) Here,
the jury was entitled to determine that Argueta was more credible than
Alejandro.
Defendant next asserts that Argueta’s testimony was “particularly
contradictory on the point of whether he saw the stabbing itself,” and could
not testify regarding what occurred between him and Hurtado immediately
before the stabbing. Thus, he contends that “Argueta’s testimony did not
satisfy the prosecution’s burden of proving that [he] did not stab Hurtado in
response to an actual, credible, imminent threat of being seriously injured
or killed by the steel bar that Hurtado was holding.”
In response to the prosecutor’s question of whether he could “still
see what was going on around” him when he looked towards defendant’s
companions, Argueta testified that he could. He further testified: “I was on
the side in front of the garage. So when I went in front, I started raising my
sleeves. That’s when I said, What do you want, What’s wrong? That’s
when I turned around and saw that [defendant] jumped and grabbed him.
And he said, I got him, I got him.” The following colloquy then occurred:
“Q. I’m asking you to focus on just the moments before that. You had
stated that you saw [Hurtado] turn towards you, and as [Hurtado] was
turning towards you is when [defendant] was coming out of that crouching
position; does that accurately say what had been said earlier? [¶] A. That’s
correct. [¶] Q. Okay. That’s the time frame I’d like to focus on. [¶] All
right. So [Hurtado] turns toward you; is that correct? [¶] A. Yes. [¶] Q.
Where is the bar? [¶] A. In his hand, of [Hurtado]. [¶] Q. In what
position? [¶] A. Down, like in the middle. [¶] Q. So not raised up, but not
down on the ground? [¶] Was he holding – or take that back. Strike that.
[¶] Did you see it as threatening, the way he was holding it, at that
particular time? Did it look threatening to you? [¶] A. He wasn’t
threatening. If he had been threatening, he would have been hitting. [¶] Q.

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So as [Hurtado] turns toward you, is this the time that the Defendant comes
out of his crouching position? [¶] A. It’s true, yes.”

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Defendant relies on a different portion of Argueta’s testimony: “Q.
So describe this to us, this jump. [¶] A. When he jumped, when
[defendant] jumped, at that moment he knew where to hit [Hurtado]. [¶]
Q. Had anyone advanced towards the other? [¶] A. Everything is the same
as I told you just a minute ago. He was crouching, and at the moment when
he saw that I was arguing with the others, [Hurtado] just turned to see
where the others were; and that’s when he had the opportunity to jump up,
and I think that’s when he got him.” (Italics added.) Defendant argues that
this testimony and particularly the reference to “I think” make it clear that
what [Argueta] was demonstrating was merely their positions prior to the
moment when he turned away to confront [defendant’s] three friends,” and
thus Argueta “did not see what happened between [defendant] and Hurtado
between the moment when he turned away and the moment that he turned
back.”
However “‘[t]o warrant rejection of the statements given by a
witness who has been believed by the [trier of fact], there must exist either
a physical impossibility that they are true, or their falsity must be apparent
without resorting to inference or deductions.’” (People v. Barnes (1986) 42
Cal.3d 284, 306.) Here, no such circumstances exist, and thus this court
cannot reject Argueta’s testimony that he saw that Hurtado did not threaten
defendant with the steel bar immediately before he was stabbed.
Defendant also argues that nothing in the record “suggests that it was
unreasonable for [defendant] to believe that Hurtado would continue
swinging the bar until he succeeded in breaking [defendant’s] arm, or
worse, if [defendant] did not stop him.” The jury was entitled to consider
other aspects of the confrontation, which defendant has chosen to ignore.
“A person does not have the right to self-defense if he provokes a fight or
quarrel with the intent to create an excuse to use force.” (CALCRIM No.
3472; see Fraguglia v. Sala (1936) 17 Cal.App.2d 738, 743-744.) Here,
defendant had been told repeatedly not to come to the Hurtado property,
and he was on the other side of the gate and attempting to remove the nails
in the gate latch when Hurtado “brushed his forearm” with the bar. Under
these circumstances, the jury could have reasonably concluded that
defendant provoked a fight with Hurtado so that he could use his knife.

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Defendant next contends that “it is just as likely that [defendant’s]
crouching posture indicated a submission and a desire to stop fighting, and
it is just as likely that his embrace of Hurtado was an attempt to immobilize
Hurtado’s arms and stop the attack with the steel bar, as it is that either of
those facts indicated [defendant’s] intention to commit an unprovoked
18

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attack.” However, the jury could have reasonably concluded that it was the
latter. (Gonzales, supra, 52 Cal.4th at p. 294.)

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Defendant also focuses on Dr. Hain’s testimony that Hurtado’s
“hands [were] not over his head” when he was stabbed. He argues that
“[b]ecause Hain never addressed the question of whether Hurtado could
have had one hand raised consistently with the damage to his sweatshirt, his
testimony does not constitute proof that Hurtado was not preparing to bring
the bar down on [defendant’s] skull when [defendant] stabbed him.”
Defendant, however, is speculating as to whether Dr. Hain’s testimony
would have been different if he had addressed this question.

8

4. Imperfect Self-defense

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Defendant contends that the evidence was insufficient to prove that
he did not act in imperfect self-defense.
“Imperfect self-defense is the actual, but unreasonable, belief in the
need to resort to self-defense to protect oneself from imminent peril.
[Citations.] When imperfect self-defense applies, it reduces a homicide
from murder to voluntary manslaughter because the killing lacks malice
aforethought. [Citations.]” (People v. Vasquez (2006) 136 Cal.App.4th
1176, 1178.) “Imperfect self-defense obviates malice because that most
culpable of mental states ‘cannot coexist’ with an actual belief that the
lethal act was necessary to avoid one’s own death or serious injury at the
victim’s hand. [Citations.]” (People v. Rios (2000) 23 Cal.4th 450, 461.)
It is the prosecution’s burden to prove beyond a reasonable doubt that a
defendant did not act in imperfect self-defense. (Id. at p. 462.)

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Here, there was substantial evidence from which the jury could have
reasonably concluded that defendant did not have an actual belief that the
stabbing was necessary to avoid his own death or serious injury. Defendant
fled the scene and thus demonstrated a consciousness of guilt when
considered with other evidence. (People v. Bradford (1997) 14 Cal.4th
1005, 1055.) Shortly thereafter, defendant told police that he knew Hurtado
and their relationship was “cool.” Though the officer told him that a metal
bar had been found and he did not know whether this was “a self-defense
type of incident,” defendant never indicated that he had acted in selfdefense. Defendant also denied being hit by a pipe. Thus, there was
substantial evidence to support the jury’s finding.
Defendant argues, however, that he was unsophisticated about the
law and he feared that if he did not leave the scene, Argueta would attack
him. He also lied to the police based on his fear that “if he told the truth, he
would be arrested, tried, and convicted of first-degree murder, self-defense
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or no self-defense….” However, the jury could have reasonably rejected
these arguments to explain his conduct and concluded that his flight and
statements to the police established that he did not have an actual belief in
the necessity of stabbing Hurtado. (Gonzales, supra, 52 Cal.4th at p. 294.)

4

5. Heat of Passion

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Defendant argues that the evidence was insufficient to prove that he
did not act in the heat of passion.

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“The mens rea element required for murder is a state of mind
constituting either express or implied malice. A person who kills without
malice does not commit murder. Heat of passion is a mental state that
precludes the formation of malice and reduces an unlawful killing from
murder to manslaughter. Heat of passion arises if, ‘“at the time of the
killing, the reason of the accused was obscured or disturbed by passion to
such an extent as would cause the ordinarily reasonable person of average
disposition to act rashly and without deliberation and reflection, and from
such passion rather than from judgment.”’ [Citation.] Heat of passion,
then, is a state of mind caused by legally sufficient provocation that causes
a person to act, not out of rational thought but out of unconsidered reaction
to the provocation. While some measure of thought is required to form
either an intent to kill or a conscious disregard for human life, a person who
acts without reflection in response to adequate provocation does not act
with malice.” (People v. Beltran (2013) 56 Cal.4th 935, 942 fn. omitted.)
“Provocation is adequate only when it would render an ordinary person of
average disposition ‘liable to act rashly or without due deliberation and
reflection, and from this passion rather than from judgment.’ [Citation.]”
(Id. at p. 957.)
Here, defendant went to the Hurtado property to fight him, but left
after Argueta prevented him from entering. When defendant did not have
the opportunity to fight Hurtado on his second visit, he returned 10 to 15
minutes later. At this third visit, as defendant was trying to remove the
nails in the gate to enter the property, Hurtado swung the steel bar and
grazed his forearm. After the gate opened, defendant entered the property
and knelt on one knee with his knife concealed by his sweater sleeve. At
this point, Hurtado was not holding the steel bar in a threatening manner.
Based on this record, the jury could have reasonably found that defendant’s
reason was not disturbed by a passion that would have rendered a person of
average disposition to act rashly and without deliberation and reflection.
Defendant’s reliance on Alejandro’s testimony to support his
argument is misplaced. As previously stated, it was the jury’s role to
determine the credibility of the witnesses, and it could have reasonably
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found that Alejandro’s testimony was not credible. (Lee, supra, 51 Cal.4th
at p. 632.) [FN4]

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FN4. Defendant also fails once again to acknowledge that this court
must draw all inferences in favor of the judgment in reviewing the
sufficiency of the evidence. (Gonzales, supra, 52 Cal.4th at p. 294.)
The jury could have reasonably concluded that defendant was not
“unexpectedly attacked” by Hurtado, but that Hurtado delivered
merely a glancing blow to defendant as defendant removed the nails
from the gate latch. The jury could also have reasonably concluded
that defendant’s concealment of the knife in his sweater sleeve
indicated that he did not want Hurtado to know he had a knife with
which he intended to stab him.

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(Op. at 11-21.)
The Due Process Clause “protects the accused against conviction except upon proof

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beyond a reasonable doubt of every fact necessary to constitute the crime with which he is

12

charged.” In re Winship, 397 U.S. 358, 364 (1970). The Supreme Court has emphasized

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that sufficiency of the evidence types of “claims face a high bar in federal habeas

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proceedings . . .” Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012) (per curiam) (finding

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that the Third Circuit “unduly impinged on the jury’s role as factfinder” and failed to apply

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the deferential standard of Jackson [v. Virginia, 443 U.S. 307, 321 (1979)] when it

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engaged in “fine-grained factual parsing” to find that the evidence was insufficient to

18

support petitioner’s conviction). A federal court reviewing collaterally a state court

19

conviction does not determine whether it is satisfied that the evidence established guilt

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beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 1992); see, e.g.,

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Coleman, 132 S. Ct. at 2065 (“the only question under Jackson is whether [the jury’s

22

finding of guilt] was so insupportable as to fall below the threshold of bare rationality”).

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The federal court “determines only whether, ‘after viewing the evidence in the light most

24

favorable to the prosecution, any rational trier of fact could have found the essential

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elements of the crime beyond a reasonable doubt.’” Payne, 982 F.2d at 338 (quoting

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Jackson, 443 U.S. at 319). Only if no rational trier of fact could have found proof of guilt

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beyond a reasonable doubt, has there been a due process violation. Jackson, 443 U.S. at

28

324.
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a.

Deliberation and Premeditation

After viewing the evidence in the light most favorable to the prosecution, the Court
finds the state court’s rejection of this claim was not unreasonable because any rational

4

trier of fact could have found the essential elements for first degree murder beyond a

5

reasonable doubt. Payne, 982 F.2d at 338. The state appellate court reviewed what the

6

record showed: (1) Petitioner was “not happy” when Hurtado declined his offer of a beer;

7

(2) although he was warned that everyone would be sleeping, Petitioner later came to the

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Hurtado home and opened the side garage door; (3) Petitioner left angry after Argueta

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prevented him from entering; (4) Petitioner returned 10 minutes later with his companions

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and challenged Hurtado to a fight, and even attempted to reach for him but was prevented

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by Argueta; (5) Petitioner returned a third time 10-15 minutes later, and attempted to

12

remove the nails that were preventing the gate from opening; (6) Petitioner managed to

13

open the gate, threw himself on the ground in a crouching position with his right hand

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concealed in his sweater sleeve; (7) when Hurtado was holding the bar “down” and turning

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towards Argueta, Petitioner jumped and grabbed Hurtado with both hands; and (8)

16

Petitioner then said, “I got him, I got him,” and fled with his companions. See supra at 13-

17

14. Based on this evidence, the state appellate court reasonably found that a jury could

18

infer that Petitioner “was eager to fight Hurtado, wanted to confront him outside, and had

19

concealed his knife in his sweater sleeve”; and furthermore, that Petitioner’s “repeated

20

visits to the Hurtado property, his stated intention to fight Hurtado, his concealed knife, his

21

jump toward Hurtado as Hurtado’s attention was diverted, and his statements of ‘I got him,

22

I got him’ after he stabbed Hurtado” reasonably supported the jury’s conclusion that

23

Petitioner “had thought the killing over in advance” (premeditation) and “had carefully

24

weighed the considerations in forming this course of action” (deliberation). Id. at 14.

25

Petitioner’s assertion that the record contains other evidence by which the jury

26

could have reached a different conclusion, e.g., Alejandro’s testimony that he went to

27

Hurtado’s house to buy drugs and not to confront him, is not persuasive because the

28

evidence must be viewed in the light most favorable to prosecution, not to the defense, and
22

only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt

2

has there been a due process violation. Jackson, 443 U.S. at 324 (emphasis added). For

3

the same reason, the Court must assume that the jury found Argueta’s testimony that

4

Petitioner stabbed Hurtado at an opportune moment and when Hurtado was not holding the

5

bar in a threatening manner more persuasive than Alejandro’s testimony which indicated

6

that Hurtado had repeatedly swung the steel bar at Petitioner who therefore was acting in

7

self-defense. With respect to Petitioner’s argument that the knife did not constitute

8

evidence of planning because he routinely carried a knife around and he “happened to have

9

it with him at the moment,” (Pet. Attach. A at 10), the state appellate court reasonably

10

determined that there was other evidence to indicate planning activity: Petitioner made

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repeated visits to the Hurtado property to confront him, he removed the nails from the gate

12

latch, and he intentionally concealed his knife in his sweater sleeve as he entered the gate.

13

See supra at 15-16. Based on the evidence discussed above, the state courts’ rejection of

14

this claim was not objectively unreasonable. 28 U.S.C. § 2254(d)(1).

15
16

b.

Justifiable Self-defense

Viewing the evidence in the light most favorable to the prosecution, it cannot be

17

said that the state court’s rejection of Petitioner’s claim regarding justifiable self-defense

18

was unreasonable because any rational trier of fact could have found that the killing of

19

Hurtado was not justified by Petitioner’s need to defend himself. Payne, 982 F.2d at 338.

20

The state appellate court considered the following evidence: (1) Argueta saw Hurtado

21

swing the bar at Petitioner’s arm and deliver a glancing blow as Petitioner was reaching

22

over the top of the gate in order to enter the property; (2) after the gate opened, Petitioner

23

threw himself to the ground and knelt on one knee; (3) Argueta saw Petitioner jump from a

24

crouching position toward Hurtado, embrace him, and say “I got him, I got him”; (4) prior

25

to the stabbing, Argueta saw that Hurtado was not holding the bar in a threatening position;

26

and (5) Dr. Hain testified that Hurtado’s arm could not have been raised above the level of

27

the wound when he was stabbed. See supra at 16-17. Based on this evidence, a jury could

28

reasonably conclude that Petitioner did not kill Hurtado in self-defense because
23

1

“[Petitioner] could not have reasonably believed that he was in imminent danger of being

2

killed or suffering great bodily injury.” Id. at 17.

3

Petitioner’s assertion that there was evidence to support self-defense is unpersuasive

4

because, again, the evidence must be viewed in the light most favorable to the prosecution.

5

Payne, 982 F.2d at 338. Furthermore, as the state appellate court pointed out, the jury was

6

entitled to determine the credibility of the witnesses, such that they could decide that

7

Argueta was more credible than Alejandro and Martinez. See supra at 17. The jury was

8

also entitled to weigh Argueta’s credibility in light of any apparent inconsistencies in

9

Argueta’s own testimony, which Petitioner points out; but the verdict indicates that the
jury resolved any such inconsistences in favor of the prosecution, which they are entitled

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to do.

12

Lastly, Petitioner argues that Dr. Hain’s testimony did not negate the possibility that

13

Hurtado could have had at least one hand raised and thereby does not constitute

14

corroborating evidence that Hurtado was not wielding the steel bar in a threatening

15

manner. (Pet. Attach. A at 5-6.) However, the lack of such testimony, i.e., whether it was

16

possible that Hurtado was raising at least one hand if not both, does not indicate that the

17

prosecution failed to meet its burden of proof. The evidence that was presented was that

18

Hurtado’s arms could not have been raised above the level of the wound when he was

19

stabbed, by which the jury could reasonably infer that Hurtado was not holding the steel

20

bar up in a threatening manner at the time he was being stabbed. See supra at 6. Based on

21

that evidence, it cannot be said that no rational trier of fact could have found proof of guilt

22

beyond a reasonable doubt that Petitioner was not acting in justifiable self-defense when

23

he stabbed Hurtado. Jackson, 443 U.S. at 324 (emphasis added). Accordingly, the state

24

courts’ rejection of this claim was not objectively unreasonable. 28 U.S.C. § 2254(d)(1).

25
26

c.

Imperfect Self-defense

Viewing the evidence in the light most favorable to the prosecution, it cannot be

27

said that the state court’s rejection of Petitioner’s claim regarding imperfect self-defense

28

was unreasonable because any rational trier of fact could have found that Petitioner did not
24

1

kill Hurtado under the actual belief that it was necessary to protect himself from imminent

2

peril. Payne, 982 F.2d at 338. The state appellate court considered the following

3

evidence: (1) Petitioner immediately fled the scene, demonstrating a consciousness of guilt

4

when considered with the other evidence; (2) Petitioner told police that his relationship

5

with Hurtado was “cool”; (3) Petitioner never indicated to police that he acted in self-

6

defense when an officer indicated to him the possibility of a “self-defense type of incident”

7

due to the presence of a metal bar; and (4) Petitioner denied being hit by a pipe. See supra

8

at 19. Based on this evidence, a jury could reasonably conclude that Petitioner did not act

9

in imperfect self-defense. Id.
Petitioner asserts that the evidence relied on by the state appellate court are all

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based on events that took place after the fact, and is not evidence of his mental state before

12

the stabbing. (Pet. Attach. A at 6.) However, the evidence is relevant to Petitioner’s state

13

of mind because, as Respondent points out, a jury could have reasonably concluded that

14

“someone who had actually acted in self-defense in stabbing someone would actually

15

profess that claim to police in interviews, and not deny involvement in the incident like

16

Petitioner did,” and that “someone who had actually acted in self-defense in stabbing

17

someone would not only have not fled, but not yelled out “I got him” after the stabbing.”

18

(Ans. at 19-20.) Furthermore, there is other evidence in the record not discussed by the

19

state appellate court with respect to this claim that supports the absence of imperfect self-

20

defense: (1) Petitioner repeatedly came to the Hurtado property to confront Hurtado; (2)

21

Petitioner was determined to confront Hurtado as evidenced by his removal of the nails

22

that was preventing the gate from opening; (3) Petitioner persisted even after Hurtado

23

grazed his hand with the metal bar; and (4) although they were separated by a distance of

24

three feet, Petitioner jumped on Hurtado at the first opportunity and stabbed him. See

25

supra at 3-4. Based on this evidence, along with the evidence discussed by the state

26

appellate court, a jury could reasonably conclude that Petitioner was not acting based on

27

the actual belief that he was in imminent peril. Accordingly, it cannot be said that no

28

rational trier of fact could have found proof of guilt beyond a reasonable doubt that
25

1

Petitioner was not acting in imperfect self-defense when he stabbed Hurtado. Jackson, 443

2

U.S. at 324. Accordingly, the state courts’ rejection of this claim was not objectively

3

unreasonable. 28 U.S.C. § 2254(d)(1).

4
5

d.

Heat of passion

Viewing the evidence in the light most favorable to the prosecution, it cannot be
said that the state court’s rejection of Petitioner’s claim regarding heat of passion was

7

unreasonable because any rational trier of fact could have found that Petitioner was not

8

provoked such that he was acting in the heat of passion when he stabbed Hurtado. Payne,

9

982 F.2d at 338. The state appellate court considered the following evidence: (1) the first

10

time Petitioner went to the Hurtado property, he was prevented from entering by Argueta

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and left; (2) he returned a second time 10 minutes later and again was prevented from

12

confronting Hurtado; (3) on his third visit 10 to 15 minutes later, Hurtado grazed

13

Petitioner’s forearm with the steel bar as Petitioner was attempting to remove the nails in

14

the gate to enter the property; (4) after the gate opened, Petitioner entered the property and

15

knelt on one knee with his knife concealed by his sweater sleeve; and (5) at this point,

16

Hurtado was no longer holding the steel bar in a threatening manner. See supra at 20.

17

Based on this evidence, a jury could reasonably conclude that Petitioner’s “reason was not

18

disturbed by a passion that would have rendered a person of average disposition to act

19

rashly and without deliberation and reflection.” Id.

20

Petitioner asserts that the evidence shows that Hurtado struck the first blow, and

21

that the bar was of the quality that “could fracture a skull with the application of only

22

minimal force.” (Pet. Attach. A at 7.) Petitioner asserts that the state appellate court’s

23

rejection of this claim lacks sufficient analysis. (Id.) However, it is Petitioner’s burden to

24

prove that the state court’s rejection of his claim was unreasonable, as Respondent points

25

out. (Ans. at 21.) The evidence shows that Petitioner returned thrice to Hurtado’s

26

property, and that he came specifically to fight Hurtado. At least 10 minutes passed

27

between each visit, indicating that Petitioner had time to cool down but clearly did not.

28

The evidence indicates that Hurtado delivered only a single glancing blow to Petitioner’s
26

1

forearm, and that was before Petitioner had even entered the property. When Petitioner

2

was on the property, kneeling on the ground, the evidence viewed in the light most

3

favorable to the prosecution indicates that Hurtado was no longer swinging the steel bar or

4

holding it in a threatening manner. Based on this evidence, a jury could reasonably

5

conclude that Petitioner was not acting in the heat of passion. Accordingly, it cannot be

6

said that no rational trier of fact could have found proof of guilt beyond a reasonable doubt

7

that Petitioner was not acting in the heat of passion when he stabbed Hurtado. Jackson,

8

443 U.S. at 324. Accordingly, the state courts’ rejection of this claim was not objectively

9

unreasonable. 28 U.S.C. § 2254(d)(1).

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Based on the foregoing, Petitioner is not entitled to habeas relief on this claim of
insufficient evidence.

12

2.

13

Under claims 2 and 3, Petitioner raises two claims of jury instructional error by the

14
15

Jury Instructions (Claims 2 and 3)

trial court.
To obtain federal collateral relief for errors in the jury charge, a petitioner must

16

show that the ailing instruction by itself so infected the entire trial that the resulting

17

conviction violates due process. See Estelle v. McGuire, 502 U.S. 62, 78 (1991); Cupp v.

18

Naughten, 414 U.S. 141, 147 (1973); see also Donnelly v. DeChristoforo, 416 U.S. 637,

19

643 (1974) (“‘[I]t must be established not merely that the instruction is undesirable,

20

erroneous or even ‘universally condemned,’ but that it violated some [constitutional

21

right].’”). The instruction may not be judged in artificial isolation, but must be considered

22

in the context of the instructions as a whole and the trial record. See Estelle, 502 U.S. at

23

72. In other words, the court must evaluate jury instructions in the context of the overall

24

charge to the jury and as a component of the entire trial process. United States v. Frady,

25

456 U.S. 152, 169 (1982) (citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977)); Prantil v.

26

California, 843 F.2d 314, 317 (9th Cir. 1988); see, e.g., Middleton v. McNeil, 541 U.S.

27

433, 434-35 (2004) (per curiam) (no reasonable likelihood that jury misled by single

28

contrary instruction on imperfect self-defense defining “imminent peril” where three other
27

1
2

instructions correctly stated the law).
The relevant inquiry is “whether there is a reasonable likelihood that the jury has

3

applied the challenged instruction in a manner that prevents the consideration of

4

constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380 (1990). A

5

determination that there is a reasonable likelihood that the jury has applied the challenged

6

instruction in a way that violates the Constitution establishes only that an error has

7

occurred. See Calderon v. Coleman, 525 U.S. 141, 146 (1998). If an error is found, the

8

Court also must then determine that the error had a substantial and injurious effect or

9

influence in determining the jury’s verdict, see Brecht v. Abrahamson, 507 U.S. 619, 637

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12

(1993), before granting relief in habeas proceedings. See Calderon, 525 U.S. at 146-47.
a.

CALCRIM No. 226

Under claim 2, Petitioner claims that the trial court improperly excluded a portion

13

of CALCRIM No. 226 which provides factors to the jury in considering a witness’s

14

credibility. (Pet. Attach. A at 12.)

15
16
17
18
19
20
21

The state appellate court rejected the first instructional error claim on direct appeal:
Defendant argues that his federal constitutional rights to due process
and trial by jury were violated by the trial court’s failure to instruct the jury
regarding the bias of a witness who was promised a benefit in exchange for
his testimony.
Here, the trial court instructed the jury pursuant to CALCRIM No.
226, which set forth the factors the jury could consider in determining the
credibility of the witnesses. However, the trial court did not instruct the
jury with the following factor: “Was the witness promised immunity or
leniency in exchange for his or her testimony?”

22
23
24
25
26
27

“A trial court has a sua sponte duty to ‘instruct on general principles
of law that are closely and openly connected to the facts and that are
necessary for the jury’s understanding of the case,’ including instructions
relevant to evaluating the credibility of witnesses. [Citation.]” (People v.
Blacksher (2011) 52 Cal.4th 769, 845-846.) Penal Code section 1259
provides that an appellate court may “review any instructions given,
refused or modified, even though no objection was made thereto in the
lower court, if the substantial rights of the defendant were affected
thereby.”

28
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In evaluating a witness’s credibility, the jury may consider “[t]he
existence or nonexistence of a bias, interest, or other motive.” (Evid. Code,
§ 780, subd. (f).) The trial court must instruct the jury with all of the
factors in CALCRIM No. 226 that are relevant based on the evidence.
(People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883-884.)
Here, Argueta testified: “I would like for everything to be fixed well,
that justice be done correctly because I’m, like not going to be here in
California. That’s why I want justice to be done before I leave.” Near the
end of his direct examination, the prosecutor and Argueta had this
exchange: “Q. Mr. Argueta, when we first began your testimony this
morning, you had said that you wanted to tell your statement in Spanish
because you might not be in California. [¶] Do you remember that? [¶]
A. Yes. [¶] Q. And do you have a hold on you with I.N.S.? [¶] A. Yes.
[¶] Q. And are you scheduled for deportation? [¶] A. They’re waiting for
me when I finish this. I didn’t even know I was going to come here. I only
came here because… on the 22nd of August my mother died here. [¶] Q.
And were you allowed to come to Hollister to have a last visit with your
mom? [¶] A. Yes, they gave me permission to come and… be with her for
about a half hour. [¶] Q. And since then have you remained in Hollister?
[¶] A. No, they took me to Yuba, Yuba City, Sacramento, here by
Sacramento. [¶] Q. Was that after you came to visit your mom or before?
[¶] A. Both things, it was before and after because they were taking me
there. [¶] Q. And you had stated that you had seen some paperwork…
when you were in custody up in Washington? [¶] A. Yes, they took me
there because my worker, yeah, Memo, the one in San Francisco, he told
me that he didn’t even know that they were going to bring me here. And
after he told me, They want you in Hollister, he said, You’re going to go to
Hollister; finishing in Hollister, you’re coming back, and then I’ll send you
to Tacoma, Washington, again…. [¶] Q. Are you aware of the paperwork
that was filed by my office, by the district attorney’s office, in order to keep
you here to testify? [¶] A. It wasn’t very important, the paper she sent.
Because, here, this is state; and, there, that’s federal. [¶] Q. Now, are you
testifying to gain any advantage to be able to stay in California? [¶] A. No.
Why? I’m already deported. In any case, I have family there and
everything. My worker said in five years I can ask for a VISA and come
back. I’m fine with immigration now. [¶] Right now I am filing or
petitioning to the 9th Circuit, they’re waiting for a law to start in
immigration, starting the law in immigration. I have like 60 percent, like
possibility of getting permission there—”
Huggins testified that he interviewed Argueta at an immigration
detention facility. Argueta told him that “he lost his appeal” and the
prosecuting attorney “was helping him with the appeal letter.” Argueta
explained to Huggins that “she wrote a letter on his behalf… [¶] … [t]o
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help him obtain a U-VISA.” “As [Argueta] tried to explain it to [Huggins],
he wasn’t quite clear; but he just told me it was like getting asylum for
himself.” Huggins understood Argueta’s definition of asylum meant that
he would stay here until he testified at defendant’s trial. Huggins further
testified: “He believed that’s what it meant to him, that he was going to be
staying here in the United States coming back to San Benito County to
testify and then getting out to go see his dying mother.” After speaking
with Argueta, Huggins obtained general information “about the procedure
he was talking about and what the U-VISA was all about.” He learned that
“paperwork” was required from the district attorney’s office in San Benito
County to ensure Argueta’s presence at defendant’s trial.
During the defense case, trial counsel and Argueta had this
exchange: “Q. Did you tell Investigator Huggins if anyone was helping you
with your deportation problems? [¶] A. Yes. [¶] Who was helping you?
[¶] A. Well, not that they’re helping me, but my attorney sent a letter here
to Candace because I was already deported. But they can’t deport anyone if
they have a court appearance coming up; so the person has to go to court
first, then get deported.”
Thus, the record established that the prosecutor sent a letter to
federal immigration authorities to ensure that Argueta not be deported until
after he had testified at defendant’s trial. Based on this evidence, no one
could reasonably conclude that Argueta was promised immunity or
leniency for his testimony. Accordingly, the trial court did not err in its
jury instructions pursuant to CALCRIM No. 226.

17
18

(Op. at 21-24.)

19

This claim is without merit. Due process does not require that an instruction be

20

given unless the evidence supports it. See Hopper v. Evans, 456 U.S. 605, 611 (1982);

21

Menendez v. Terhune, 422 F.3d 1012, 1029 (9th Cir. 2005). Here, there is no evidence

22

that Argueta was promised immunity or leniency in exchange for his testimony. Petitioner

23

relies on the testimony of Investigator Huggins who testified that Argueta believed the

24

district attorney was helping him get “asylum” by writing an “appeal letter” on his behalf

25

so that he would be able to remain in the United States after trial. (Pet. Attach. A at 13.)

26

However, Argueta clarified at trial during cross-examination that the district attorney was

27

not in fact “helping” him since the matter of his deportation had already been decided:

28

“But they can’t deport anyone if they have a court appearance coming up; so the person
30

1

has to go to court first, then get deported.” See supra at 30. As the state appellate court

2

reasonably determined, “the record established that the prosecutor sent a letter to the

3

federal immigration authorities to ensure that Argueta not be deported until after he had

4

testified at defendant’s trial.” Id.

5

Furthermore, even if the omission was error, it cannot be said that the error had a

6

substantial and injurious effect or influence in determining the jury’s verdict. Brecht, 507

7

U.S. at 637. As discussed above, there was no evidence of immunity or leniency given to

8

Argueta in exchange for his testimony. Accordingly, it cannot be said that such an

9

instruction, had it been given, would have had any influence on the jury’s consideration of

10

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Northern District of California

11

Argueta’s credibility and thereby affected the verdict.
Based on the foregoing, the state court’s rejection of this claim was not contrary to,

12

or involved an unreasonable application of, Supreme Court precedent or based on an

13

unreasonable determination of the facts in light of the evidence presented in the State court

14

proceeding. 28 U.S.C. § 2254(d). Petitioner is not entitled to habeas relief on this claim.
b.

15
16

CALCRIM Nos. 521 and 522

Petitioner’s second instructional error claim is that the trial court erred when it

17

failed to instruct the jury that “subjectively unreasonable heat of passion” may reduce first

18

degree murder to second degree murder because CALCRIM No. 521, as given, was

19

deficient in this respect, and CALCRIM No. 522, which the trial court refused to give,

20

would have permitted the jury to consider the lesser charge. (Pet. Attach. A at 18.)

21
22
23
24
25
26

The state appellate court rejected Petitioner’s second instructional error claim on
direct appeal:
Defendant argues that the trial court erred in failing to instruct the
jury pursuant to CALCRIM No. 522 that subjective provocation or
unreasonable heat of passion can reduce first degree murder to second
degree murder. Thus, he argues that he was denied his federal
constitutional rights to due process, a fair trial, and to present a defense
because the instructions that were given lessened the prosecution’s burden
of proof.

27
28
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“‘[T]he existence of provocation which is not “adequate” to reduce
the class of the offense [from murder to manslaughter] may nevertheless
raise a reasonable doubt that the defendant formed the intent to kill upon,
and carried it out after, deliberation and premeditation.’ [Citations.]”
(People v. Wickersham (1982) 32 Cal.3d 307, 329, overruled on another
ground in People v. Barton (1995) 12 Cal.4th 186, 200-201.) CALCRIM
No. 522 provides that provocation that is insufficient to reduce a murder to
manslaughter may reduce a murder from first to second degree. [FN5]
This instruction pinpoints a defense theory and must be given only on
request and when it is supported by substantial evidence. (People v. Rogers
(2006) 39 Cal.4th 826, 877-878.) Though requested by trial counsel, the
trial court did not give CALCRIM No. 522 in the present case. When the
trial court errs by failing to give a requested defense pinpoint instruction,
we must determine whether it is reasonably probable that the jury would
have returned a different verdict absent the error. (People v. Earp (1999)
20 Cal.4th 826, 886-887 (Earp).)
FN5. CALCRIM No. 522 states: “Provocation may reduce a murder
from first degree to second degree [and may reduce a murder to
manslaughter]. The weight and significance of the provocation, if
any, are for you to decide. [¶] If you conclude that the defendant
committed murder but was provoked, consider the provocation in
deciding whether the crime was first or second degree murder.
[Also consider the provocation in deciding whether the defendant
committed murder or manslaughter.]”
Here, the evidence of provocation was very weak. Defendant had
been told repeatedly not to come to Hurtado’s house. When defendant was
attempting to trespass onto the Hurtado property on his third visit, Hurtado
brushed his forearm with a steel bar. When defendant entered the property
and threw himself to one knee, Hurtado did not threaten him with the bar.
After the stabbing, defendant said, “I got him, I got him” and shortly
thereafter denied any problems with Hurtado. Thus, defendant’s behavior
was inconsistent with someone who had stabbed another because he had
acted rashly and under the influence of an intense emotion that obscured his
reasoning or judgment.

23
24
25
26
27
28

More importantly, the jury necessarily resolved the issue of
defendant’s mental state under other properly given instructions. The trial
court instructed the jury pursuant to CALCRIM No. 521, which required it
to determine the degrees of murder, if it decided that defendant had
committed murder. The trial court instructed the jury that in order to find
that defendant committed first degree murder it was required to find
whether the prosecutor proved beyond a reasonable doubt that defendant
acted willfully and with premeditation and deliberation. The trial court
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then defined these terms: “The defendant acted willfully if he intended to
kill. The defendant acted deliberately if he carefully weighed the
considerations for and against his choice and knowing the consequences
decided to kill. [¶] The defendant acted with premeditation if he decided
to kill before committing the act that caused death. The length of time a
person spends considering whether to kill does not alone determine whether
the killing is deliberate or premeditated. [¶] The amount of time required
for deliberation and premeditation may v[a]ry from person to person and
according to the circumstances. A decision to kill made rashly, impulsively
or without careful consideration is not deliberate and premeditated. [¶] On
the other hand, a cold, calculated decision to kill can be reached quickly.
The test is the extent of the reflection; not the length of time.” The jury
was also instructed that, in the event that it did not unanimously agree that
the prosecution had met its burden, the killing was second degree murder
and it was required to find that defendant was not guilty of first degree
murder. Thus, the jury was aware that if defendant acted rashly or
impulsively in stabbing Hurtado, he was guilty of second degree murder.
However, by convicting defendant of first degree murder, the jury rejected
the conclusion that defendant was subjectively provoked to the extent that
he could not premediate and deliberate. Accordingly, it is not reasonably
probable that the jury would have returned a verdict of second degree
murder if it had been instructed with CALCRIM No. 522. (Earp, supra, 20
Cal.4th at p. 887.)

15
16
17

(Op. at 24-26.)
Petitioner first alleges that CALCRIM No. 521, which explains the difference

18

between first and second degree murder, is deficient because it does not explain the

19

principle that “sincere but subjectively unreasonable heat of passion may reduce first-

20

degree murder to second-degree.” (Pet. Attach. A at 18.) Because of this deficiency, the

21

instruction “lessened the prosecution’s burden of proof and denied [Petitioner] his

22

constitutional rights to due process, a fair trial, and to present a defense.” (Id.) However,

23

this instruction must not be viewed in artificial isolation, but rather, must be considered in

24

the context of the instructions as a whole and the trial record, see Estelle, 502 U.S. at 72, or

25

in other words, in the context of the overall charge to the jury and as a component of the

26

entire trial process, Frady, 456 U.S. at 169. As Respondent points out, the jury was given

27

CALCRIM No. 570, which was the instruction on voluntary manslaughter “heat of

28

passion.” (Ans. at 28, citing Reporter’s Transcript (“RT”) at 1777 (Ex. B), and CT at 586.)
33

Respondent asserts that by rejecting this verdict, the jury implicitly rejected one or more of

2

the following findings: “(1) that Petitioner was provoked by Hurtado; (2) that as a result of

3

the provocation Petitioner acted rashly and under the influence of intense emotion that

4

obscured his reasoning or judgment; or (3) the provocation would have caused a person of

5

average disposition to act rashly and under the influence of intense emotion that obscured

6

his reasoning or judgment.” (Id.) Respondent also points out that CALCRIM No. 571 was

7

given, which was the instruction on voluntary manslaughter “imperfect self-defense.” (Id.)

8

Respondent contends that in rejecting this verdict, the jury implicitly rejected one or both

9

of the following findings: “(1) that Petitioner actually, but unreasonably, believed that he

10

was in imminent danger of being killed or suffering great bodily injury; or (2) Petitioner

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actually, but unreasonably, believed that the immediate use of deadly force was necessary

12

to defense against the danger.” (Id., citing RT 1779 and CT 587.) Lastly, Respondent

13

asserts that the jury knew that heat of passion could be “any violent or intense emotion that

14

causes a person to act without due deliberation and reflection” per CALCRIM No. 570,

15

and that a “decision to kill made rashly, impulsively, or without careful consideration is

16

not deliberate and premeditated” under CALCRIM No. 521. (Id.) The Court agrees that

17

considering CALCRIM No. 521 in the context of the instructions as a whole and the trial

18

record, the jury was made well aware that if Petitioner acted rashly or impulsively in

19

stabbing Hurtado, then he was guilty of second degree murder rather than first degree.

20

However, the jury’s verdict finding Petitioner guilty of first degree murder clearly

21

indicates that they did not believe that Petitioner was subjectively provoked and under

22

such intense emotion that he acted without careful consideration when he stabbed Hurtado.

23

With respect to Petitioner’s claim that the trial court erred when it refused to give

24

CALCRIM No. 522, this refusal does not alone raise a ground cognizable in a federal

25

habeas corpus proceeding. See Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988).

26

Petitioner must show that the error so infected the trial that he was deprived of the fair trial

27

guaranteed by the Fourteenth Amendment. See id. Also, the omission of an instruction is

28

less likely to be prejudicial than a misstatement of the law. See Walker v. Endell, 850 F.2d
34

1

at 475-76 (citing Henderson v. Kibbe, 431 U.S. at 155). Thus, a habeas petitioner whose

2

claim involves a failure to give a particular instruction bears an “‘especially heavy

3

burden.’” Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (quoting Henderson v.

4

Kibbe, 431 U.S. 145, 155 (1977)). The significance of the omission of such an instruction

5

may be evaluated by comparison with the instructions that were given. Murtishaw v.

6

Woodford, 255 F.3d 926, 971 (9th Cir. 2001) (quoting Henderson, 431 U.S. at 156); see id.

7

at 972 (due process violation found in capital case where petitioner demonstrated that

8

application of the wrong statute at his sentencing infected the proceeding with the jury’s

9

potential confusion regarding its discretion to impose a life or death sentence).

10

According to the state appellate court, CALCRIM No. 522 provides that

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“provocation that is insufficient to reduce a murder to manslaughter may reduce a murder

12

from first to second degree,” and that this instruction “pinpoints a defense theory and must

13

be given only on request and when it is supported by substantial evidence.” See supra at

14

32. The state appellate court found no error because the evidence of provocation was

15

“weak” based on the following: (1) Petitioner had been told repeatedly not to come to

16

Hurtado’s house; (2) Hurtado brushed Petitioner’s forearm with a steel bar when Petitioner

17

was attempting to trespass onto the property; (3) when Petitioner was on his knee after

18

entering the property, Hurtado did not threaten him with the bar; (4) after stabbing

19

Hurtado, Petitioner said, “I got him, I got him”; and (5) shortly thereafter, Petitioner denied

20

having any problems with Hurtado. Id. The state appellate court reasonably determined

21

that Petitioner’s behavior “was inconsistent with someone who had stabbed another

22

because he had acted rashly and under the influence of an intense emotion that obscured

23

his reasoning or judgment.” Id.

24

Furthermore, the state appellate court reasonably determined that other instructions,

25

i.e., CALCRIM No. 521, provided the jury with sufficient guidelines to “resolve[] the issue

26

of [Petitioner’s] mental state,” i.e., whether he acted “rashly, impulsively or without

27

careful consideration” or he made a “cold, calculated decision to kill.” Id.; see Murtishaw,

28

255 F.3d at 971. The state appellate court also pointed out that the jury was instructed that
35

1

“in the event that it did not unanimously agree that the prosecution had met its burden, the

2

killing was second degree murder and it was required to find that defendant was not guilty

3

of first degree murder.” See supra at 33. The jury clearly did not have trouble reaching a

4

unanimous agreement since they convicted Petitioner of first degree murder, thereby

5

indicating that they did not believe Petitioner was acting rashly, impulsively or without

6

careful consideration. The rejection of this belief leaves little support for Petitioner’s

7

argument that the jury would have found that he had been sufficiently provoked to warrant

8

a second degree murder verdict rather than first degree had CALCRIM No. 522 been

9

given. As discussed in the preceding claim, the instructions as a whole provided the jury
sufficient instructions with respect to a heat of passion verdict which included an

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10

evaluation of provocation. See supra at 33. Having rejected such a verdict, the jury

12

necessarily rejected a finding that Petitioner was provoked and thereby was acting under

13

intense emotion and in the absence of reason. Id. Accordingly, Petitioner has failed to

14

meet the “especially heavy burden,” Villafuerte, 111 F.3d at 624, to establish a Fourteenth

15

Amendment violation because it cannot be said that the failure to give CALCRIM No. 522

16

so infected the trial as to deprive Petitioner of due process. See Dunckhurst, 859 F.2d at

17

114.

18

Based on the foregoing, the state courts’ rejection of claims 2 and 3 was not

19

contrary to, or involved an unreasonable application of, Supreme Court precedent or based

20

on an unreasonable determination of the facts in light of the evidence presented in the State

21

court proceeding. 28 U.S.C. § 2254(d). Petitioner is not entitled to habeas relief on these

22

instructional error claims.

23

3.

Ineffective Assistance of Counsel Claims

24

Petitioner claims that counsel rendered ineffective assistance based on the

25

following: (a) failure to effectively cross-examine Argueta in several respects; (b) deficient

26

cross-examination of the prosecution’s medical expert Dr. Hain; (c) failure to object to

27

prejudicial and irrelevant evidence; (d) failure to object to prosecutorial misconduct during

28

closing argument; (e) failure to mention crucial items of evidence during closing argument;
36

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(f) failure to address CALCRIM No. 3471 during closing argument; (g) failure to address

2

lesser offenses during closing argument; (h) counsel’s ineffective performance was not the

3

result of a deliberate strategic choice or tactic; (i) Petitioner was prejudiced by counsel’s

4

ineffective performance; and (j) failing to request accommodation for Petitioner’s speech

5

impediment in order to enable him to testify. (Pet. Attach. A at 32-78; Pet. at 6A.)

6

A claim of ineffective assistance of counsel is cognizable as a claim of denial of the
Sixth Amendment right to counsel, which guarantees not only assistance, but effective

8

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The

9

benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so

10

undermined the proper functioning of the adversarial process that the trial cannot be relied

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upon as having produced a just result. Id.

12

In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, a

13

petitioner must establish two things. First, he must establish that counsel’s performance

14

was deficient, i.e., that it fell below an “objective standard of reasonableness” under

15

prevailing professional norms. Strickland, 466 U.S. at 687–88. Second, he must establish

16

that he was prejudiced by counsel’s deficient performance, i.e., that “there is a reasonable

17

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

18

have been different.” Id. at 694. A reasonable probability is a probability sufficient to

19

undermine confidence in the outcome. Id.

20

A “doubly” deferential judicial review is appropriate in analyzing ineffective

21

assistance of counsel claims under § 2254. See Cullen v. Pinholster, 131 S. Ct. 1388,

22

1410-11 (2011); Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (same); Premo v.

23

Moore, 131 S. Ct. 733, 740 (2011) (same). The general rule of Strickland, i.e., to review a

24

defense counsel’s effectiveness with great deference, gives the state courts greater leeway

25

in reasonably applying that rule, which in turn “translates to a narrower range of decisions

26

that are objectively unreasonable under AEDPA.” Cheney v. Washington, 614 F.3d 987,

27

995 (9th Cir. 2010) (citing Yarborough, 541 U.S. at 664). When § 2254(d) applies, “the

28

question is not whether counsel’s actions were reasonable. The question is whether there
37

1

is any reasonable argument that counsel satisfied Strickland’s deferential standard.”

2

Harrington, 131 S. Ct. at 788.
In reviewing Petitioner’s ineffective assistance of counsel claims on direct appeal,

3
4
5
6
7
8
9

the state appellate court applied the following legal principles:
“Under both the Sixth Amendment to the United States Constitution
and article I, section 15, of the California Constitution, a criminal defendant
has the right to the assistance of counsel.” (People v. Ledesma (1987) 43
Cal.3d 171, 215.) That right “entitles the defendant not to some bare
assistance but rather to effective assistance.” (Ibid.) But the “Sixth
Amendment guarantees reasonable competence, not perfect advocacy
judged with the benefit of hindsight.” (Yarborough v. Gentry (2003) 540
U.S. 1, 8.)

10

“To prevail on a claim of ineffective assistance of counsel, a
defendant must show both that counsel’s performance was deficient and
that the deficient performance prejudiced the defense. [Citations.]
Counsel’s performance was deficient if the representation fell below an
objective standard of reasonableness under prevailing professional norms.
[Citation.] Prejudice exists where there is reasonable probability that, but
for counsel’s errors, the result of the proceeding would have been different.
[Citation.]” (People v. Benavides (2005) 35 Cal.4th 69, 92-93
(Benavides).) However, “‘[if] the record on appeal sheds no light on why
counsel acted or failed to act in the manner challenged[,]… unless counsel
was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation,’ the claim on appeal must be
rejected.” (People v. Wilson (1992) 3 Cal.4th 926, 936.)

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(Op. at 26-27.)
a.

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Petitioner claims that counsel failed to impeach Argueta, who was the star

21
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24
25
26
27
28

Cross-examination of Argueta

prosecution witness, with “numerous discrepancies between his testimony at trial and his
testimony at the preliminary examination which would have cast strong doubts on his
credibility”: (1) Argueta’s demonstration at trial differed from that given at the preliminary
hearing; (2) Argueta’s testimony at the preliminary hearing suggested he did not see the
stabbing; and (3) counsel did not ask Argueta whether he saw Hurtado swinging the steel
bar at Petitioner. (Pet. Attach. A at 33-42.)
///
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The state appellate court rejected this claim on direct appeal:
Defendant contends that trial counsel failed to effectively crossexamine Argueta, because she did not impeach him with discrepancies
between his testimony at trial and his testimony at the preliminary hearing.
At the preliminary hearing, Argueta demonstrated the relative
positions of Hurtado and defendant immediately before the stabbing.
Argueta portrayed defendant and Patrick Palacios, the prosecutor, portrayed
Hurtado. The trial court described the positions as follows: “Mr. Palacios
and Mr. Argueta are facing each other. Mr. Argueta is on, looks like, his
right knee with his left knee up, and he’s in a kneeling position. Mr.
Palacios is standing upright, portraying the bar in his right hand, his right
hand extended basically skyward.”
At trial, Argueta repeated the demonstration in which he portrayed
defendant and Palacios portrayed Hurtado. Argueta “was taking the same
crouching position with the forearm up, similar to around his eyes or
forehead.” The record does not reflect the position taken by Palacios, only
that Argueta instructed him to “[j]ust raise the right hand only, like this. He
had the bar like that and he was facing the front.”
During her cross-examination of Argueta at trial, trial counsel asked
him whether “the demonstration that [he] did in court at the preliminary
hearing on September 25, 2008, was that the same demonstration that [he]
did in court yesterday?” Argueta answered affirmatively.
During the defense case, trial counsel presented testimony from
LaForge, who represented defendant at his preliminary hearing. LaForge
testified regarding the demonstration of the relative positions of defendant
and Hurtado, which was presented at the preliminary hearing by Argueta
and Palacios. According to LaForge, Palacios, who portrayed Hurtado,
held the simulated steel bar “straight up.” The trial court also admitted into
evidence the pages from the preliminary hearing transcript in which the
relative positions of Argueta and Palacios were described.
During closing argument, trial counsel focused on the discrepancy
between Argueta’s preliminary hearing description of where Hurtado held
the steel bar and his trial description. “And remember Carlos Hurtado? It’s
really hard for me to sit at this counsel table with Carlos Hurtado – I’m
sorry – Carlos Argueta. He stood up there with Deputy District Attorney
Patrick Palacios – I’m so mad. I’m sorry. I’ll slow down. [¶] When he
gave you that demonstration and Patrick Palacios came into this courtroom
and stood in front of you and he said the demonstration at the preliminary
hearing was that [Hurtado] had the bar like this. He showed you a limp
39

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5
6

wrist. That was totally false. That was totally a lie. [¶] That’s why I
brought Greg LaForge in here yesterday to tell you what happened at that
preliminary hearing. Greg told you Patrick Palacios is the same that stood
in front of you with the limp wrist, with the chrome bar. That’s what he did
in 2008 in front of Judge Sanders. [¶] He stood with it like this. I don’t
know why he did that. I don’t know why he came in here and told you that,
but that’s a lie. And you’re going to see the transcript, and it’s in evidence.
[¶] And you can look at this. Judge Sanders read into the record what the
demonstration was at the preliminary hearing. And that little charade that
they put out here in front of you, that was a lie.”

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Defendant argues that trial counsel’s failure to confront Argueta
directly constituted incompetence, because she “did not provide the jury
with any basis for deciding which demonstration was the accurate one.” He
asserts that trial counsel “could, and did, repeatedly claim that the
demonstration at the preliminary examination was accurate and the one at
trial was ‘totally a lie,’ but as the court instructed the jury, ‘[n]othing the
attorneys say is evidence.’ [Citations.] That instruction explicitly, and
correctly, precluded the jury from taking [trial counsel’s] word for it that
the hand-over-head demonstration at the preliminary examination
represented what actually happened and the ‘limp wrist’ demonstration at
trial was ‘totally a lie.’ The jury could not conclude that Argueta had lied
at trial and told the truth at the preliminary examination simply on
counsel’s say-so.”
Here, trial counsel may have made a tactical decision not to crossexamine Argueta about the preliminary hearing demonstration, because she
did not know what his response would be. He could have testified that the
demonstration at trial was the correct one and explained that he had not
been focusing on the position of Palacio’s hand during the demonstration at
the preliminary hearing. In any event, we disagree with defendant that the
jury had no basis for determining that Argueta had either lied at the
preliminary hearing or was lying at trial, and thus was not a credible
witness. LaForge’s testimony and the admission of the preliminary hearing
transcript established that the demonstration at the preliminary hearing was
different from the one presented at trial. This evidence served as the basis
for trial counsel’s argument that Argueta lied at trial. Moreover, the trial
court instructed the jury regarding the prior statements of witnesses:
“You’ve heard evidence of statements that a witness made before the trial.
If you decide that the witness made that or those statements, you may use
that or those statements in two ways; one, to evaluate whether the witness’s
testimony in court is believable; and, two, as evidence that the information
in that or those earlier statements is true.” Thus, the jury had a basis for
concluding that Argueta lied at either the preliminary hearing or at trial, and
concluded that his demonstration at trial was the truth.
40

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Defendant next contends that trial counsel rendered ineffective
assistance by failing: (1) to cross-examine Argueta at trial regarding his
preliminary hearing testimony that he had not seen the stabbing; and (2) to
impeach his trial testimony with a police report which included statements
by Argueta that he had not seen the stabbing.
Defendant focuses on the following colloquy at the preliminary
hearing: “Q. Did you see Mr. Hurtado get stabbed? [¶] A. Huh? [¶] Q.
Did you see him get stabbed? [¶] A. Yeah. I could see, like, you know, he
had him here. [¶] Q. Okay. Now, you talked to the officers that night;
correct? [¶] A. (Nods head.) [¶] Q. You were being truthful with the
officers; correct? [¶] A. Yeah. [¶] Q. You wouldn’t have lied to the
officers that night; right? [¶] A. No. [¶] Q. So everything you told the
officers that night was true and to the best of your recollection; correct? [¶]
A. Yeah. [¶] Q. So if an officer stated in her report that Carlos stated that
he did not witness a stabbing, but heard Alex say, ‘They stabbed me,’ that
would be correct? Right? [¶] A. What? [¶] Q. I’m sorry. That Carlos
stated he did not witness the stabbing, but heard Alex say ‘They stabbed
me,’ do you remember telling Officer Pacheco that? [¶] A. ‘They’? [¶] Q.
Yes. [¶] A. ‘They’? No. [¶] That would be wrong if she had that in her
report? [¶] Yeah. ‘They’? Because, you know, it wasn’t like people stab
him, it’s just like one people. [¶] Q. That would be a wrong statement if
Officer Pacheco put that in her report? [¶] A. ‘They’? [¶] Q. Do you
remember telling Officer Pacheco that you observed Alex and my client
pushing each other? [¶] A. They weren’t pushing each other. [¶] Q.
That’s wrong too? [¶] A. No, that’s wrong too, because I never say
pushing each other. [¶] Q. So if that’s in an officer’s report, that is wrong;
is that correct? [¶] A. Yeah.”
Here, one could reasonably interpret Argueta’s preliminary hearing
testimony as establishing that he did see the stabbing and that the police
officer was mistaken in stating that he did not see the stabbing. Thus, trial
counsel could have reasonably concluded that this evidence would not have
benefited the defense. Moreover, even assuming it was incompetence for
failing to introduce this evidence, defendant has failed to establish
prejudice. During her cross-examination of Argueta at trial, trial counsel
asked: “And you told us yesterday that right before the stabbing, you turned
your back on [defendant] and [Hurtado] and you were looking at the men
near the mailbox; is that true?” Argueta answered affirmatively. Since
Argueta’s own testimony impeached his prior testimony that he had seen
the stabbing, it is not reasonably probable that the result would have been
more favorable to defendant if trial counsel had impeached Argueta with
his preliminary hearing transcript or the police report.

28
41

Defendant also argues that trial counsel rendered ineffective
assistance, because she did not confront Argueta with his preliminary
hearing testimony that he saw Hurtado swing the steel bar twice at him. He
argues that “[b]ecause the sole defense theory was perfect self-defense, it
was crucially important that the jury understand the factual basis for [his]
belief that if he did not use deadly force to stop Hurtado’s attack, Hurtado
would continue swinging the bar until he managed to seriously injure or kill
[him].”

1
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5
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At the preliminary hearing, Argueta testified that when defendant
“tried to open the gate,” Hurtado “got mad, and he went, you know, to him,
like, ‘What the fuck?’ And [he] tried to open the gate, you know, and
[Hurtado], you know, hit him in the hand,” with “a smooth iron bar.” After
defendant reached over the gate, Hurtado told him to leave. At that point,
defendant responded that he wanted to fight. Hurtado then “tried to hit him
again, but he don’t. He just like, you know, he tried and hit the fence. He
just hit the fence, you know, and then, you know, he started to leave, but he
was, like, all mad and—”

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Northern District of California

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12

Even assuming that trial counsel’s performance was deficient for
failing to elicit testimony from Argueta at trial that Hurtado tried to hit
defendant twice, and impeaching him with his preliminary hearing
testimony if he denied it, it is not reasonably probable that the jury would
have returned a more favorable verdict for defendant if it had learned
Hurtado hit defendant once and missed hitting him once.

13
14
15
16
17

(Op. at 27-32.)
Under a “doubly” deferential judicial review, the state appellate court’s rejection of

18

this claim was not based on an unreasonable application of Strickland. See Pinholster,
19

131 S. Ct. at 1410-11; Harrington, 131 S. Ct. at 788. The state appellate court
20

appropriately viewed counsel’s effectiveness with great deference, and found reasonable
21

arguments that counsel satisfied Strickland’s deferential standard. Harrington, 131 S. Ct.
22

at 788.
23

Firstly with respect to impeaching Argueta’s demonstration at trial with the
24

demonstration given at the preliminary hearing, the state appellate court reasonably
25

determined that trial court may have made a tactical decision not to specifically cross26

examine Argueta in this regard “because she did not know what his response would be.”
27

See supra at 40. Instead, she relied on the testimony of LaForge and the admission of the
28
42

1

preliminary hearing transcript to show that the demonstration at the preliminary hearing

2

was different from the one presented at trial. Accordingly, the state appellate court

3

reasonably determined that the jury “had a basis for concluding that Argueta lied at either

4

the preliminary hearing or at trial.” Id. In other words, even if counsel’s failure to

5

“confront Argueta directly” was deficient performance, Petitioner was not prejudiced by it.

6

Secondly, Petitioner asserts that the preliminary hearing testimony clearly shows
that Argueta was answering “evasively” and was not responsive to the question of “did you

8

or did you not actually see the stabbing happen?” (Pet. Attach. A at 39.) On the contrary,

9

the portion quoted by the state appellate court does not indicate evasiveness on the part of

10

Argueta but merely confusion with the question being asked. Furthermore, Argueta was

11
United States District Court
Northern District of California

7

not directly asked if he saw the stabbing as Petitioner claims in the portion quoted by the

12

state appellate court. Rather, it appears that counsel was attempting to impeach Petitioner

13

at the preliminary hearing with the information in the police report. However, the state

14

appellate court’s conclusion that the testimony at the preliminary hearing could reasonably

15

be interpreted as establishing that Argueta “did see the stabbing and that the police officer

16

was mistaken in stating that he did not see the stabbing” was not unreasonable since

17

Argueta was clearly not evasive on that point; therefore it was not deficient of counsel to

18

decide not to use evidence that was not useful to the defense. See supra at 41.

19

Furthermore, the state appellate court’s finding of no prejudice was reasonable based on

20

the fact that trial counsel did in fact impeach Argueta with his own prior statement. Id.

21

Lastly, the state appellate court reasonably rejected Petitioner’s third claim that

22

counsel was deficient for failing to ask Argueta whether he saw Hurtado swinging the steel

23

bar at Petitioner “two times” as he had testified at the preliminary hearing because

24

Petitioner failed to establish prejudice. The state appellate court determined that “it is not

25

reasonably probable that the jury would have returned a more favorable verdict for

26

defendant if it had learned Hurtado hit defendant once and missed hitting him once.” See

27

supra at 42. Argueta’s preliminary hearing testimony indicates that Hurtado hit Petitioner

28

on the hand once when Petitioner was trying to open the gate, which is consistent with his
43

1

trial testimony. Id. Argueta then states that Hurtado tried to hit Petitioner a second time

2

but missed and hit the fence. Id. But this second swing appears to have occurred before

3

Petitioner gained entry onto the property and while he was still on the other side of the gate

4

because Argueta does not indicate that the gate had yet been opened. Accordingly,

5

information that Hurtado had swung at Petitioner a second time and missed while

6

Petitioner was still on the other side of the gate would have had little impact on Petitioner’s

7

self-defense theory; rather, it could have been more hurtful since Petitioner persisted in

8

trespassing onto the property in order to confront Hurtado despite the repeated threat of the

9

steel bar. Accordingly, the state appellate court’s rejection of this claim was reasonable.

10

Accordingly, after conducting a “doubly” deferential judicial review, see Pinholster,

United States District Court
Northern District of California

11

131 S. Ct. at 1410-11, the Court finds that the state courts’ rejection of this claim was not

12

an unreasonable application of Supreme Court precedent or based on an unreasonable

13

determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d).

14

Petitioner is not entitled to habeas relief on this claim.

15

b.

Cross-examination of Dr. Hain

16

Petitioner claims that counsel’s cross-examination of the prosecution’s medical

17

expert, Dr. Hain, was deficient because it was comprised of only two questions. (Pet.

18

Attach. A at 42-47.)

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The state appellate court rejected this claim:
Dr. Hain testified that Hurtado could not have had his hands over his
head immediately before he was stabbed, because “when the arms are
raised up, the item of clothing, the outer clothing rises up with the
shoulders; and so you would expect the stab wound to be much lower. So
the higher the arms get, the… lower the stab wound would be on the outer
clothing.” Trial counsel’s cross-examination of Dr. Hain consisted of the
following: Q. Good afternoon, Mr. Hain. [¶] A. Good afternoon. [¶] Q.
Other than the stab wounds and medical interventions, there were no other
injuries on Mr. Hurtado’s body; is that correct? [¶] A. As I recall, I don’t
think there were. There were none that I observed. That’s correct. [¶] Q.
Thank you. And after this wound, are you saying Mr. Hurtado would have
had approximately ten seconds of consciousness after suffering this wound?
[¶] A. Yes, I believe so. [¶] Q. Thank you. Nothing further.”

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Defendant argues that “the destructive force of Hain’s testimony is
illusory, because he did not address the question of whether Hurtado could
have had one hand over his head at the time he was stabbed.” (Italics
omitted.) He also points out that trial counsel did not “probe into how Hain
developed his theory of determining arm position of a stabbing victim by
analyzing the tears on the outer clothing, whether this analysis was
accepted by other practitioners in his field, whether it was confirmed
experimentally or published in any peer-reviewed journal, whether it was
equally applicable to all types of outer garments, whether the effect might
be less pronounced or totally absent in the case of a loose or baggy outer
garment, or whether he had performed the experiment with Hurtado’s
actual body and sweatshirt or merely extrapolated from personal experience
with his own clothing, as he did in court…. [‘[A]s you can see on me,…
when I raise my arms, my items of clothing, which of cour[se] is different
from [Hurtado’s], goes up maybe almost a foot, ten inches’].”

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Northern District of California

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Defendant has failed to establish that a reasonably competent
attorney would have cross-examined Dr. Hain regarding these issues,
because he speculates that Dr. Hain’s responses would have been favorable
to the defense. Defendant argues, however, that even if Dr. Hain had
claimed that the same analysis is applied to raising one arm and that his
testimony was based on a well-established forensic technique, trial
counsel’s cross-examination on these issues [] “would have emphasized to
the jury that they were not required to accept Hain’s conclusion at face
value merely because he had been designated an expert.” But the trial court
instructed the jury that it was “not required to accept [expert opinions]… as
true and correct” and that it could “disregard any opinion” that it found
“unbelievable, unreasonable or unsupported by the evidence.” In addition,
the defense presented its own expert, Dr. Posey, who testified that based on
the position and path of the knife wound, Hurtado was leaning forward and
“had to have his hand up extended” when he was stabbed. Accordingly, we
reject defendant’s argument.
(Op. at 32-33.)
Petitioner relies on Alford v. United States, 282 U.S. 687 (1930), to support his

23

argument that counsel’s failure to more thoroughly cross-examine and ultimately discredit

24

Dr. Hain constitutes deficient performance. (Pet. Attach. A at 45-46.) But as Respondent

25

points out, Alford is inapplicable to this ineffective assistance of counsel claim because the

26

Supreme Court in Alford was addressing trial court errors for prejudicially sustaining

27

objections to cross-examination questions by the defense. (Ans. at 41.) Therefore, it

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cannot be said that Alford establishes that trial counsel must cross-examine witnesses in a
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certain manner to provide effective assistance.
Here, trial counsel had a tactical reason for not extensively cross-examining Dr.
Hain as shown by her statement submitted with Petitioner’s state habeas petition:
As to your questions about replicating the sweatshirt experiment,
Dr. David Posey, the defense forensic pathologist maintained the best way
to determine the body positions of the men before the stabbing was through
a thorough examination of the body and “wound analysis”. Everything we
presented through Dr. Posey confirmed the body positions of the men
immediately prior to the stabbing and the toxicology results. We relied on
Dr. Posey’s expertise.
(Ex. F, Attach. 8 at C at 1.)
The state appellate court’s rejection of this claim was not unreasonable. Petitioner’s
objection to counsel’s manner of cross-examining Dr. Hain is nothing more than a
difference of opinion as to trial tactics, which does not constitute denial of effective
assistance. See United States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981). Furthermore,
tactical decisions are not ineffective assistance simply because in retrospect better tactics
are known to have been available. See Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir.),
cert. denied, 469 U.S. 838 (1984). Tactical decisions of trial counsel deserve deference
when: (1) counsel in fact bases trial conduct on strategic considerations; (2) counsel makes
an informed decision based upon investigation; and (3) the decision appears reasonable
under the circumstances. See Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994).
Here, counsel’s statement shows that her conduct was indeed strategic, that she made an
informed decision to rely on the defense expert’s testimony, and her decision to do so was
reasonable under the circumstances. Id. Accordingly, it cannot be said that counsel’s
performance in this regard was deficient.
It is unnecessary for a federal court considering a habeas ineffective assistance
claim to address the prejudice prong of the Strickland test if the petitioner cannot even
establish incompetence under the first prong. See Siripongs v. Calderon, 133 F.3d 732,
737 (9th Cir. 1998). Nevertheless, the Court notes that the state appellate court seemed to
find no prejudice since it pointed out that the defense expert, Dr. Posey, testified that

28
46

1

“based on the position and path of the knife wound, Hurtado was leaning forward and ‘had

2

to have his hand up extended’ when he was stabbed.” See supra at 45. Because Dr. Posey

3

presented the argument that one of Hurtado’s hands had to have been raised, it cannot be

4

said that but for counsel’s failure to cross-examine Dr. Hain on this possibility, the result

5

of the proceeding would have been different.

6

Accordingly, the state courts’ rejection of this claim was not an unreasonable

7

application of Supreme Court precedent or based on an unreasonable determination of the

8

facts in light of the evidence presented. 28 U.S.C. § 2254(d). Petitioner is not entitled to

9

habeas relief on this claim.

10

c.

Failure to Object to Prejudicial and Irrelevant Evidence

United States District Court
Northern District of California

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Petitioner claims that counsel rendered ineffective assistance by failing to object to

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the admission of evidence obtained from his cell with the legend “187,” and the testimony

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of Hurtado’s sister.

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The state appellate court rejected this claim:
The prosecution introduced photographs of several items from
defendant’s jail cell, including a bed sheet, a writing tablet, and a beanie.
The bed sheet had “187 Case Prison” written on it in several places as well
as “1985.” “187” is the Penal Code section for murder and 1985 is the year
that defendant was born. The writing table[t] had “187 Case” and
defendant’s nickname “Pepe” written on it. “187” was also written on the
beanie.

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Defendant contends that trial counsel’s failure to bring a motion to
exclude this “highly prejudicial” evidence was ineffective assistance of
counsel.
“‘Relevant evidence’ means evidence… having any tendency in
reason to prove or disprove any disputed fact that is of consequence to the
determination of the action.” (Evid. Code, § 210.) The trial court has
discretion to exclude evidence “if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
We disagree with defendant that this evidence was irrelevant.
Evidence of defendant’s possession of items that were marked with his date
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of birth, nickname, and the Penal Code section for murder shortly after the
killing was probative on whether he committed a murder. Sergeant Pershall
testified that defendant was “not necessarily” confessing to the crime, but
was “bragging.” Whether defendant was bragging about being charged
with murder or about having committed a crime was a factual question for
the jury to decide.
Moreover, trial counsel could have reasonably concluded that the
trial court would not have excluded the evidence under Evidence Code
section 352. “The prejudice which exclusion of evidence under Evidence
Code section 352 is designed to avoid is not the prejudice or damage to a
defense that naturally flows from relevant, highly probative evidence.
‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the
defendant’s case. The stronger the evidence, the more it is “prejudicial.”
The “prejudice” referred to in Evidence Code section 352 applies to
evidence which uniquely tends to evoke an emotional bias against the
defendant as an individual and which has very little effect on the issues. In
applying section 352, “prejudicial” is not synonymous with “damaging.”’
[Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638.) Here, the
evidence was relevant and did not tend to evoke an emotional bias against
defendant. Thus, trial counsel was not incompetent for failing to make a
motion to exclude the evidence when it would have been futile. (People v.
Lewis (1990) 50 Cal.3d 262, 289.)

15

…

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Defendant next focuses on the testimony of Scalmanini, Hurtado’s

17

sister.
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Scalmanini testified extensively about Hurtado and their family.
Scalmanini was a speech language pathologist and Hurtado’s other siblings
had similarly respectable jobs. Two of his siblings had master’s degrees
and Hurtado was a high school graduate with “some” college. Hurtado’s
parents were long-time residents of Hollister and Hurtado lived with them.
Hurtado was a “really good brother,” “really nice,” “respectful” toward the
women in the family, and “had a good sense of humor.” Hurtado loved to
read, and particularly enjoyed a book called The Secret, which contained
inspirational spiritual and philosophical messages that Hurtado frequently
discussed with Scalmanini. Scalmanini and Hurtado had a “special bond”
because she had taken care of him when he was a baby. Hurtado was
“fantastic” with his nieces and nephews. Scalmanini did not know
Hurtado’s friends and described his work history as “sporadic.” She and
one of her sisters learned of Hurtado’s death while attending a Pop Warner
football event in Florida and they were unable to return home immediately.
A month before his death, the family chartered a bus to attend a relative’s
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wedding where a family member took a photograph of Hurtado. This
photograph, along with one of Hurtado’s mother, was shown to the jury.
Hurtado also liked to watch television, listen to music, be with his friends,
and write in his journal.
When the prosecutor started to ask Scalmanini if she had gone
through Hurtado’s journal and picked out some passages, trial counsel said,
“Um—“ at which point the trial court interrupted her and said, “[C]an we
get to what we’re talking about here. There are instructions that…
[¶]…[¶]… we’re getting close to violating.”

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The prosecutor then asked Scalmanini whether she was aware of
Hurtado’s drug issues. She answered affirmatively, but she also testified
that she had never seen him take drugs or observed him while he was under
the influence. Scalmanini and Hurtado had also talked about him
straightening out his life. The following exchange then occurred: “Q. Is
there anything of that that you can share? [¶] A. I have a journal, but we
did talk. We did talk on a few occasions about, you know, about getting
better and getting on the right track. [¶] Q. Just prior to his death, a month
or so before his death, had he talked to you about a career path? [¶] A.
Yes. [¶] Q. And what was that? [¶] A. He wanted to go into the National
Guard. [¶] Q. And you had talked about his sense of humor. Do you have
an example? [¶] A. I do. [¶] Q. What is that? [¶] A. I have it in – well, in
the journal. [¶] THE COURT: I get the impression, Counsel, that you’re
not listening to me. [¶] [THE PROSECUTOR]: I’m sorry, Judge. [¶]
THE COURT: You know what I’m talking about. Move on to the facts of
this case. This is an appeal to sympathy, which we all feel and which the
jury is not allowed to consider in making their decision, if you would read
the instructions. Now, move on. [¶] [THE PROSECUTOR]: Q. Okay. Do
you know if [Hurtado] has ever attended any drug rehabilitation? [¶] A.
Not to my knowledge. [¶] [THE PROSECUTOR]: Thank you. I have
nothing further.”
Defendant argues that competent counsel would have inquired prior
to trial as to who Scalmanini was and why she was being called, insisted
upon an offer of proof as to what her testimony would be, and moved to
exclude it. Alternatively, competent counsel would have objected on
relevance and Evidence Code section 352 grounds when Scalmanini
testified regarding her siblings’ occupations. Instead, trial counsel failed to
make any objections and did not move to strike the offending testimony.
Defendant argues that this testimony “inflamed the jury’s passions and
prejudices” against him.
Here, a competent counsel would have either moved to exclude the
evidence prior to trial or objected to it at trial on grounds of relevancy and
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undue prejudice. However, in our view, defendant was not prejudiced by
trial counsel’s performance. The jury was informed at the time of
Scalmanini’s testimony that it was not allowed to consider sympathy in
making its decision. Moreover, during her closing argument, trial counsel
reminded the jury that its decision could not be based on sympathy. “You
know, the Hurtados, I can tell by looking at those photos that they take
pride in their home. And [Scalmanini] told us they moved to this
neighborhood because they believed it was a good area. [¶] And I believed
everything that [Scalmanini] told us about [Hurtado]. You know, he was a
good guy. He was loved. He loved his family. And, you know, and I
understand. And [Scalmanini] needed to come to court, and she needed for
you to hear that; and she needed to tell us that. And I understand. [¶] And
a courtroom’s a horrible, horrible place to have to come and share your
pain. You know, we see it every day. But the fact remains, [Hurtado] was
high on meth that night when he came out swinging that chrome bar at
[defendant]. He was high on meth. He was sky high on meth. [¶] And as
Judge Schwartz told you, this is a court of law, and no matter how tragic an
incident is and no matter how much sorrow it causes us, you know, we
don’t make decisions based on sympathy. We apply the law.” The trial
court also instructed the jury at the conclusion of the case: “Do not let bias,
sympathy, prejudice or public opinion influence your decision.” This court
must presume that the jury followed the trial court’s instructions. (Thomas,
supra, 51 Cal.4th at p. 487.) Based on this record, it is not reasonably
probable that the outcome would have been more favorable to defendant
but for trial counsel’s failure to object to Scalmanini’s testimony.
(Benavides, supra, 35 Cal.4th at p. 93.)
(Op. at 35-39.)
Petitioner first argues that counsel should have objected to the admission into

19

evidence the jail cell items because they were more prejudicial than probative as well as

20

irrelevant. (Pet. Attach. A at 48-49.) However, the state appellate court rejected these

21

arguments and found that the evidence was not irrelevant and that its probative value was

22

not outweighed by its prejudicial effect. See supra at 48.

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The Supreme Court has repeatedly held that federal habeas writ is unavailable for

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violations of state law or for alleged error in the interpretation or application of state law.

25

See Swarthout v. Cooke, 131 S. Ct. 859, 861-62 (2011); Estelle v. McGuire, 502 U.S. 62,

26

67-68 (1991). Accordingly, to the extent that Petitioner disagrees with the state appellate

27

court’s characterization of the evidence, there is no basis for federal habeas relief on that

28

ground alone. Furthermore, because it found no merit to Petitioner’s arguments, it cannot
50

be said that the state appellate court’s finding that counsel did not render ineffective

2

assistance for failing to raise a futile motion was unreasonable. A lawyer need not file a

3

motion that he knows to be meritless on the facts and the law. Put simply, trial counsel

4

cannot have been ineffective for failing to raise a meritless motion. Juan H. v. Allen, 408

5

F.3d 1262, 1273 (9th Cir. 2005); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996); see,

6

e.g., Hebner v. McGrath, 543 F.3d 1133, 1137 (9th Cir. 2008) (finding counsel's failure to

7

object to admission of defendant's prior sexual misconduct as propensity evidence not

8

ineffective where evidence would have been admitted in any event to show common plan

9

or intent); Lowry v. Lewis, 21 F.3d at 346 (failure to file suppression motion not

10

ineffective assistance where counsel investigated filing motion and no reasonable

11
United States District Court
Northern District of California

1

possibility evidence would have been suppressed). The Court need not discuss prejudice

12

where Petitioner has not established incompetence under the first Strickland prong. See

13

Siripongs, 133 F.3d at 737.

14

With respect to the testimony of Hurtado’s sister, the state appellate court was not

15

unreasonable in finding Petitioner was not prejudiced by counsel’s failure to object to her

16

testimony after finding deficient performance. The record shows that the jury was

17

informed at the time of Scalmanini’s testimony that it was not allowed to consider

18

sympathy in making its decision, and that during her closing argument, trial counsel again

19

reminded the jury that it was not allowed to base its decision on sympathy. See supra at

20

50. The state appellate court reasonably presumed that the jury followed the trial court’s

21

instructions. See Zafiro v. United States, 506 U.S. 534, 540 (1993) (“‘juries are presumed

22

to follow their instructions’”) (citing Richardson v. March, 481 U.S. 200, 211 (1987));

23

Hovey v. Ayers, 458 F.3d 892, 913 (9th Cir. 2006) (“We presume that juries follow their

24

instructions.”).

25

Accordingly, the state courts’ rejection of this claim was not an unreasonable

26

application of Supreme Court precedent or based on an unreasonable determination of the

27

facts in light of the evidence presented. 28 U.S.C. § 2254(d). Petitioner is not entitled to

28

habeas relief on this claim.
51

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d.

Failure to Object to Prosecutorial Misconduct

Petitioner claims that the prosecutor twice misstated the law during her summation

3

“in a manner which impermissibly reduced or shifted the burden of proving elements of

4

the charged offenses,” and that counsel’s failure to object to this misconduct was

5

ineffective assistance. (Pet. Attach. A at 53.)

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United States District Court
Northern District of California

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The state appellate court rejected this claim:
Captain Reynoso testified that when he contacted defendant on the
morning of December 4, 2007, defendant denied having any injuries and
having been hit anywhere. Based on this testimony, the prosecutor
repeatedly stated during argument that defendant had not been injured in
the fight with Hurtado. The prosecutor also argued: “The Defendant acted
in imperfect self-defense if, one, the Defendant actually believed that he
was in [imminent] danger of being killed or suffering great bodily injury;
and, two, the Defendant actually believed that the immediate use of deadly
force was necessary to defend against the danger; but, three, at least one of
those beliefs was unreasonable. [¶] Belief in future harm is not sufficient
no matter how great or how likely the harm is believed to be. In evaluating
the Defendant’s beliefs, consider all the circumstance[s] as they were
known and appeared to the Defendant. [¶] Great bodily injury means
significant or substantial physical injury. It is an injury that is greater than
minor or moderate harm. The People have a burden of proving beyond a
reasonably doubt that the Defendant was not acting in [im]perfect selfdefense. If the People have not met this burden, you must find the
Defendant not guilty of murder. [¶] So given the facts, could the
Defendant actually believe he was in [imminent] danger of being killed or
suffering G.B.I.? Again, going back to the use of that bar. The use of the
bar was not used in such a manner that it meets this element. It was not
used so that the Defendant feared being killed or great bodily injury. His
lack of injuries supports that.”

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Defendant contends that the prosecutor misstated the law by
“suggest[ing] to the jury that as a matter of law, petitioner could only have
had a reasonable belief that Hurtado was about to seriously injure or kill
him, in the sense required as an element of self-defense, if Hurtado actually
did injure him.”
It is misconduct for the prosecutor to misstate the law. (People v.
Huggins (2006) 38 Cal.4th 175, 253, fn. 21.) “‘[I]t is improper for the
prosecutor to misstate the law generally [citation], and particularly to
attempt to absolve the prosecution from its prima facie obligation to
overcome reasonable doubt on all elements. [Citations.]’ [Citation.]”
52

1

(People. V. Hill (1998) 17 Cal.4th 800, 829-830, overruled on another
ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)

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Read in context, we do not interpret the prosecutor’s statements as
claiming that the imperfect self-defense doctrine applied, as a matter of law,
only if defendant suffered an injury. First, the prosecutor correctly stated
the law on imperfect self-defense. Second, the prosecutor then inferred
from the evidence that defendant had no injuries that Hurtado had not used
the steel bar in a way which would have led defendant to actually believe
that he was in danger of being killed or suffering great bodily injury, and
thus she argued that the imperfect self-defense doctrine did not apply. Trial
counsel could have reasonably concluded that the prosecutor did not
commit misconduct.
Defendant next argues that trial counsel was incompetent for failing
to object to the prosecutor’s shifting of the burden of proof of the elements
of voluntary manslaughter.
The prosecutor recited the elements of heat-of-passion voluntary
manslaughter as set forth in CALCRIM No. 570, and ended her recitation
with: “The People have the burden of proving beyond a reasonable doubt
that the Defendant did not kill as a result of a sudden quarrel or in the heat
of passion. If the People have not met this burden, you must find the
defendant not guilty. [¶] So it sets up three elements that must be found,
that must be met, in order for the Defendant to be found not guilty.” The
prosecutor then referred to the facts of the case to argue: (1) the defendant
was not provoked; (2) defendant did not act rashly and under the influence
of intense emotion that obscured his reasoning or judgment; and (3) the
provocation would not have caused a person of average disposition to act
rashly and without deliberation.
Defendant argues that the prosecutor’s comments, “So it sets up
three elements that must be found, that must be met, in order for the
Defendant to be found not guilty” “interprets CALCRIM No. 570 as
instructing that the defendant is guilty of murder by default, and that the
jury can only find him guilty of voluntary manslaughter instead if certain
elements are found, met, or proved.” He thus claims that “[t]he
unavoidable implication was that the defendant was required to prove the
elements of voluntary manslaughter, which is the diametric opposite of
what the law says.”
We do not interpret the prosecutor’s summary as “turn[ing] the
presumption of innocence on its head.” The prosecutor forgot to state “of
murder” after “not guilty” when reciting the elements of heat-of-passion
voluntary manslaughter. She did not argue that the defendant had the
53

burden of proving that he was not guilty or that he was not presumed
innocent. Moreover, she then argued that the facts did not establish the
elements of heat-of-passion voluntary manslaughter, which was the
prosecution’s burden to prove. Trial counsel did not render ineffective
assistance for failing to object to the prosecutor’s argument.

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(Op. at 39-42.)

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The state appellate court’s rejection of this claim was not unreasonable based solely

6

on the lack of incompetent performance by counsel.5 With respect to Petitioner’s first

7

contention that the prosecutor misstated the law regarding imperfect self-defense by

8

implying that injury was required, the state appellate court reviewed the prosecutor’s

9

statements in closing argument and reasonably found no such misstatement: the
prosecution first correctly stated the law on imperfect self-defense, and then she proceeded

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United States District Court
Northern District of California

10

to argue that since Petitioner had no injuries, it could be inferred “that Hurtado had not

12

used the steel bar in a way which could have led defendant to actually believe that he was

13

in danger of being killed or suffering great bodily injury” and therefore imperfect self-

14

defense did not apply. See supra at 53. The prosecution repeatedly referred to Petitioner’s

15

state of mind, i.e., his “beliefs” and whether he “actually believe[ed]” he was in danger of

16

being killed, and whether he “feared being killed.” Id. Accordingly, the state appellate

17

court reasonably found no evidence of prosecutorial misconduct in this regard, and

18

therefore it cannot be said that counsel rendered deficient performance by failing to make a

19

meritless objection. See Juan H. v. Allen, 408 F.3d at 1273.

20

With respect to Petitioner’s second claim that the prosecution improperly shifted the

21

burden of proof on the elements of voluntary manslaughter, the state appellate court also

22

reasonably found no merit to this claim after reviewing the prosecutor’s statements. The

23

prosecutor correctly stated the elements of heat-of-passion voluntary manslaughter, stated

24

that it was the burden of the prosecution to prove the absence of those elements, and then

25

proceeded to argue that the facts did not establish the elements. See supra at 53.

26

Petitioner’s interpretation of the prosecution’s statements as misstating the law is not

27
28

5

See Siripongs, 133 F.3d at 737.
54

1

supported by this record. Accordingly, the state appellate court was not unreasonable in

2

finding that counsel did not render ineffective assistance for failing to make a meritless

3

objection. See Juan H. v. Allen, 408 F.3d at 1273. Furthermore, as Respondent points out,

4

the trial court fully instructed the jury on the applicable law, including the presumption of

5

innocence, and a jury is presumed to have followed the instructions given. See Zafiro, 506

6

U.S. at 540. Accordingly, it cannot be said that Petitioner was prejudiced by counsel’s

7

failure to object on this point.

8

Based on the foregoing, the state courts’ rejection of this claim was not an
unreasonable application of Supreme Court precedent or based on an unreasonable

10

determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d).

11
United States District Court
Northern District of California

9

Petitioner is not entitled to habeas relief on this claim.

12
13

e.

Omissions of Crucial Evidence in Closing Argument

Petitioner claims that counsel failed to mention several crucial items of evidence,

14

i.e., portions of Alejandro’s and Martinez’s testimony, which strongly supported the

15

defense theory of perfect self-defense during closing argument, and that this failure

16

constituted deficient performance. (Pet. Attach. A at 61.)

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The state appellate court rejected this claim:
Defendant first points out that trial counsel failed to mention some of
Alejandro’s testimony: defendant told the others “[t]hat he was all scared,
that he stabbed him”; that Alejandro had seen Hurtado hit defendant with
the steel bar more than once; and defendant was “trying to block him” and
“trying to cover himself.”
Here, trial counsel argued that defendant stabbed Hurtado in selfdefense and focused on the forensic evidence and expert testimony, that is,
the position of Hurtado’s arm when he was stabbed and the lack of hilt
marks on his body, the level of methamphetamine in Hurtado’s body at the
time of death, and the behaviors of chronic users of methamphetamine. She
also challenged the credibility of Argueta, Martinez, and Dr. Hain and the
failure of the police to adequately investigate the case. As to Alejandro, she
noted that he “told us that [he] saw [Hurtado] hitting [defendant] with the
chrome steel bar.” She also referred to Alejandro’s testimony that “they
were scared in the bedroom [of defendant’ house]” and defendant “said he
stabbed him.” Trial counsel further emphasized that “the best witness to
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this stabbing [was] Alejandro Covian. Every single thing Alejandro said
made sense.” She then summarized Alejandro’s testimony regarding the
purpose of each of defendant’s visits to the Hurtado house that night.
Though Alejandro’s testimony that defendant was trying to prevent
Hurtado from hitting him was favorable to the defense, it was not essential
for a jury’s understanding of the defense theory. Accordingly, trial counsel
was not incompetent for failing to emphasize the above-referenced portions
of Alejandro’s testimony.
Defendant next focuses on trial counsel’s failure to reference
Martinez’s favorable testimony, that is, that “the confrontation between
[defendant] and Hurtado went on for a considerable time.”
Martinez testified that she heard wrestling sounds by the gate. She
looked around the side door, and she saw that the gate was open, and
Hurtado and defendant were fighting. The fight then moved out to the
driveway and front yard. However, Martinez also testified that she saw
Hurtado trying to hit defendant over the fence when he was trying to open
the gate, but she never saw Hurtado try to hit him after the gate was open.
When the two men were “both hugging on to each other,” Hurtado’s hand
was not raised. Martinez also denied ever hearing that night that defendant
tried to purchase a bag of methamphetamine from Hurtado or that
defendant argued about the quality or quantity of methamphetamine that
night. In addition, Martinez testified that Hurtado called her that night and
asked her for drugs, and that she had been using methamphetamine for over
20 years. Moreover, Martinez’s testimony about when she arrived at the
Hurtado house was incorrect.
Here, trial counsel emphasized the expert testimony that Hurtado
was a chronic methamphetamine user who was under the influence at the
time of his death. Focusing on the characteristic of chronic
methamphetamine users, she argued that he was the aggressor in the
confrontation. Given that Martinez was also a chronic methamphetamine
user and most of her testimony was not favorable to the defense, trial
counsel could have reasonably decided to reference only that portion of her
testimony which was corroborated by Argueta. Thus, trial counsel noted
that both Argueta and Martinez testified that Hurtado “brought that weapon
into that fight,” and they heard wrestling and defendant saying “Why are
you hitting me? Why are you hitting me?” Trial counsel then focused on
Martinez’s addiction to methamphetamine and Dr. Fithian’s testimony that
chronic methamphetamine users have an altered sense of reality, and
pointed out the discrepancies in her testimony. Trial counsel might have
reasonably concluded that mentioning Martinez’s testimony as to the length
of the fight would have been easily rebutted by the prosecutor’s reliance on
defense expert testimony. Accordingly, defendant has failed to establish
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that trial counsel was incompetent in failing to reference a portion of
Martinez’s testimony.
(Op. at 42-44.)
The state appellate court’s finding that trial counsel had adequately argued for

4

perfect self-defense in closing argument was not unreasonable based on its review of the

5

record. Although she did not make reference to the specific portions of Alejandro’s

6

testimony cited by Petitioner, counsel emphasized that the “best witness to the stabbing”

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was Alejandro, and that “[e]very single thing Alejandro said made sense.” See supra at 56.

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The state appellate court also found that counsel focused on the forensic evidence and

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expert testimony, i.e., “the position of Hurtado’s arm when he was stabbed and the lack of
hilt marks on his body, the level of methamphetamine in Hurtado’s body at the time of

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death, and the behaviors of chronic users of methamphetamine,” as well as challenging the

12

credibility of Argueta, Martinez, and Dr. Hain, and pointing out the failure of the police to

13

adequately investigate the case. Id. at 55. As Respondent points out, deference to

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counsel’s tactical decisions in closing presentation is particularly important because of the

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broad range of legitimate defense strategy at the time. See Yarborough v. Gentry, 540

16

U.S. 1, 5-6 (2003) (per curiam) (counsel’s exclusion of some issues in closing did not

17

amount to professional error of constitutional magnitude where issues omitted were not so

18

clearly more persuasive than those raised). Accordingly, it cannot be said that the state

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appellate court’s rejection of this claim based on a deferential view of counsel’s tactical

20

decision was unreasonable.

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Secondly, the state appellate court’s deference to counsel’s possible trial tactic with

22

respect to the use of Martinez’s testimony was not unreasonable. The standard on federal

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habeas with respect to ineffective assistance of counsel claims is “whether there is any

24

reasonable argument that counsel satisfied Strickland’s deferential standard. Harrington,

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131 S. Ct. at 788. The state appellate court considered the fact that counsel relied on the

26

expert testimony regarding the behavior of chronic methamphetamine users to argue that

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Hurtado was the aggressor in the confrontation. Because Martinez was also a chronic

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methamphetamine user, it was not unreasonable for counsel to decide to focus on those

2

portions of her testimony that was corroborated by Argueta and discredit her rather than try

3

to rely on the few favorable aspects of her testimony because such testimony “would have

4

been easily rebutted by the prosecutor’s reliance on defense expert testimony.” See supra

5

at 56.

6

Respondent also asserts that Petitioner has failed to show prejudice. The Court

7

agrees. Although counsel did not make reference to Martinez’s description of the fight in

8

closing argument, the jury heard Martinez’s entire testimony. The fact that her account of

9

the fight was not corroborated by either Argueta or Alejandro, i.e., that the fight went on
“for a considerable time,” and that they moved from the driveway to the front yard, made it

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less likely that the jury found Martinez credible, and even less so by the fact that she was a

12

long time methamphetamine user. Accordingly, it cannot be said that had counsel

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highlighted that portion of Martinez’s testimony in closing argument, the result of the

14

proceeding would have been different. See Strickland, 466 U.S. at 694.

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Based on the foregoing, the state courts’ rejection of this claim was not an

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unreasonable application of Supreme Court precedent or based on an unreasonable

17

determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d).

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Petitioner is not entitled to habeas relief on this claim.

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f.

Failure to Address CALCRIM No. 3471 in Closing Argument

Petitioner claims that counsel rendered ineffective assistance by failing to discuss

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CALCRIM No. 3471, the instruction on mutual combat, in closing argument when the

22

prosecutor argued that the instruction precluded the defense theory of self-defense. (Pet.

23

Attach. A at 65-66.)

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The state appellate court rejected this claim:
Defendant contends that trial counsel’s failure to address CALCRIM
No. 3471 during her closing argument “effectively withdrew the
justification of self-defense from the jury’s consideration,” and thus she
rendered ineffective assistance. He further argues that “[b]y failing to
inform the jury why the prosecutor’s argument was wrong, [trial counsel]
eliminated any possibility that the jury would acquit [him] on the basis that
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he had acted in self-defense,” which amounted to withdrawal of his only
defense.

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The trial court instructed the jury with CALCRIM No. 3471: “Right
to Self-defense, Mutual Combat or Initial Aggressor. A person who
engages in mutual combat or who is the first one to use physical force has
the right to self-defense only if, one, he actually and in good faith tried to
stop fighting; and, two, he indicates by word or conduct to his opponent in
a way that a reasonable person would understand that he wants to stop
fighting and that he has stopped fighting; and, three, he gives his opponent
a chance to stop fighting. [¶] If a person meets these requirements he then
has a right to self-defense if the opponent continues to fight. If you decide
that the defendant started the fight using non-deadly force and the opponent
responded with sufficient and sudden deadly force that the defendant could
not withdraw from the fight, then the defendant had the right to defend
himself with deadly force and was not required to stop fighting.”
Here, the prosecutor stated “I think [CALCRIM No. 3471] probably
best describes the difference between the way the defense sees the case and
the way the People see the case.” After quoting CALCRIM No. 3471, she
argued: “[Hurtado] stops. He’s standing right there. He even looks over at
[Argueta]. He’s not fighting. What about the defendant? [¶] While
[Hurtado] is standing there, the Defendant’s in a crouching position. When
[Hurtado] looks away, the Defendant comes up and stabs him. [Hurtado]
did not use sudden and deadly force. The use of that bar – he did use the
bar. I mean, there’s no getting around it. He used that bar, but it was not
sudden with deadly force. [¶] Who used sudden and deadly force? The
Defendant. The Defendant comes out of the blue, in essence, has that knife
hidden in his sleeve, comes out and stabs [Hurtado]. The Defendant is the
one who is the aggressor.”
Defendant argues that “[t]here was evidence that at some point prior
to stabbing Hurtado, [he] went down onto the ground in a kneeling
position… Kneeling is a submissive posture which could easily be
understood by a reasonable person to indicate that the person doing it
wanted to stop fighting. [Trial counsel] never mentioned in her closing
argument that [he] might well have intended to withdraw from the fight by
kneeling on the ground, and might therefore have been justified in
defending himself when Hurtado continued the fight by swinging the steel
bar at him.” However, any argument that defendant was trying to
communicate that he wanted to withdraw from the fight by kneeling on the
ground was not supported by the evidence of his concealment of a knife
inside his sweater sleeve. Thus, trial counsel may have made a reasonable
tactical decision not to respond to the prosecutor’s argument.

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Defendant also argues that trial counsel never mentioned
Alejandro’s testimony which established that Hurtado had hit him multiple
times with the steel bar, and Dr. Posey’s testimony that the bar could crush
a sk[u]ll with the application of only moderate force. As previously
discussed, trial counsel argued that the evidence established: Hurtado was a
chronic methamphetamine user; Hurtado “came out of that garage swinging
that chrome bar” at defendant; prosecution witnesses heard defendant ask
“Why are you hitting me? Why are you hitting me?”; Hurtado’s arm was
raised when he was stabbed; and “[w]hen [defendant’s] down on the
ground, he makes one swift motion to stop the attack.” Thus, trial counsel
portrayed the confrontation as entirely one-sided and the only force used by
defendant was a single stab while he was on the ground and Hurtado was
crouched above him swinging the steel bar. Though referring to evidence
that Hurtado hit defendant multiple times with the steel bar and that the
steel bar could have crushed defendant’s skull would have strengthened
trial counsel’s argument, it was not incompetence to fail to reference this
evidence.
(Op. at 44-46.)
The state appellate court’s rejection of this claim was not unreasonable because it
relied on a “reasonable argument that counsel satisfied Strickland’s deferential standard.”
Harrington, 131 S. Ct. at 788. As the state appellate court pointed out above, the inference
that Petitioner was attempting to “submit” to Hurtado by kneeling on the ground was
unsupported by the evidence that he concealed a knife inside his sweater sleeve.
Therefore, trial counsel may have decided tactically not to respond to the prosecutor’s
argument. For the same reason, Petitioner cannot establish prejudice, i.e., but for counsel’s
failure to address CALCRIM No. 3471 in closing argument, the result of the proceeding
would have been different, since the evidence did not support the mutual combat theory as
a basis for self-defense. Accordingly, the state courts’ rejection of this claim was not an
unreasonable application of Supreme Court precedent or based on an unreasonable
determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d).
Petitioner is not entitled to habeas relief on this claim.
g.

Failure to Address Lesser Offenses in Closing

Petitioner claims that counsel rendered ineffective assistance by failing to address
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any lesser charge than first degree murder in her closing argument. (Pet. Attach. A at 69.)
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The state appellate court rejected this claim:
The only defense theory which trial counsel argued in her closing
argument was perfect self-defense. Though the jury was instructed on
second degree murder, imperfect self-defense voluntary manslaughter, and
heat-of-passion voluntary manslaughter, she did not allude to these lesser
offenses.
Trial counsel’s decision of how to argue to the jury after the
evidence has been presented is an inherently tactical decision. (People v.
Freeman (1994) 8 Cal.4th 450, 498.) “[D]eference to counsel’s tactical
decisions in his [or her] closing presentation is particularly important
because of the broad range of legitimate defense strategy at that stage.
Closing arguments should ‘sharpen and clarify the issues for resolution by
the trier of fact,’ [citation], but which issues to sharpen and how best to
clarify them are questions with many reasonable answers. Indeed, it might
sometimes make sense to forego closing argument altogether. [Citation.]
(Yarborough v. Gentry, supra, 540 U.S. at p. 6.) Reversals for ineffective
assistance of counsel during closing argument rarely occur; when they do, it
is due to an argument against the client which concedes guilt, withdraws a
crucial defense, or relies on an illegal defense.” (People v. Moore (1988)
201 Cal.App.3d 51, 57.)

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Here, trial counsel did not concede guilt, withdraw a crucial defense,
or rely on an illegal defense. Trial counsel could have argued both perfect
self-defense and, alternatively, that defendant was guilty of only lesser
offenses than first degree murder. However, given the deference to tactical
decisions in closing argument, defendant has failed to establish that trial
counsel’s decision fell below the standard of professionally reasonable
conduct.
(Op. at 46-47.)
The state appellate court’s rejection of this claim was not unreasonable based on the
deference given to counsel with respect to tactical decisions in closing argument. See
Yarborough, 540 U.S. at 5-6. Counsel’s decision to focus exclusively on perfect selfdefense was certainly on the “broad range of legitimate defense strategy,” including
arguing alternatively the lesser offenses as the state appellate court pointed out, and is
entitled to deference. Id. The state appellate court’s decision to afford such deference was
not an unreasonable application of Supreme Court precedent. 28 U.S.C. § 2254(d).
Furthermore, Petitioner has failed to establish prejudice in light of the strong evidence of

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deliberation and premeditation for first degree murder, as discussed in Petitioner’s first

2

claim in this action. See supra at 22-23. Petitioner is not entitled to habeas relief on this

3

claim.

4
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h.

Lack of Deliberate Strategy or Tactic

Petitioner argues generally that “there is a [] lack of any imaginable sound tactical

6

reason why [counsel] would have deliberately engaged in any of the multiple omissions

7

described above.” (Pet. Attach. A at 72.) But as previously stated, the standard of review

8

for ineffective assistance of counsel claims on habeas is “doubly” deferential, see

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Pinholster, 131 S. Ct. at 1410-11, and Strickland requires that defense counsel’s
effectiveness be reviewed with great deference, which gives the state courts greater leeway

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in reasonably applying that rule, see Cheney, 614 F.3d at 995. See supra at 37. The state

12

appellate court properly viewed counsel’s performance with great deference, and rejected

13

some of Petitioner’s claims based on reasonable arguments that counsel satisfied

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Strickland’s deferential standard. See Harrington, 131 S. Ct. at 788. Accordingly, there is

15

no merit to this argument.

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i.

Cumulative Prejudice

Petitioner claims separately that he was prejudiced by counsel’s errors because if

18

counsel had “done her job correctly,” the result of the proceeding would have been

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different. (Pet. Attach. A at 73, 75.)

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The state appellate court rejected this claim:
We have concluded that trial counsel’s representation was deficient
under prevailing professional norms when she failed: (1) to ask Argueta
whether, as he testified at the preliminary hearing, he saw Hurtado
swinging the steel bar twice; and (2) to preclude the admission of
Scalmanini’s testimony. The evidence against defendant was extremely
strong. Defendant twice indicated that he wanted to fight Hurtado,
repeatedly went to Hurtado’s house, stabbed him when his attention was
diverted, and said, “I got him, I got him,” as he fled the scene. During
police interviews on the night of the killing, defendant denied that he had
been hit with a metal object and did not indicate that he had acted in selfdefense. Thus, even considering the prejudice cumulatively from trial
counsel’s deficient performance, there was no reasonable probability that
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defendant would have received a more favorable verdict. (Benavides,
supra, 35 Cal.4th at pp. 92-93.)
(Op. at 47.)

3

“‘[P]rejudice may result from the cumulative impact of multiple deficiencies.’”

4

Harris v. Wood, 64 F.3d 1432, 1438 (9th Cir. 1995) (quoting Cooper v. Fitzharris, 586

5

F.2d 1325, 1333 (9th Cir. 1978) (en banc), cert. denied, 440 U.S. 974 (1979)). In other

6

words, in a case with various deficiencies, there may be a reasonable probability that,

7

absent the various deficiencies, the outcome of the trial might well have been different.

8
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The state appellate court’s rejection of this cumulative prejudice claim was not
unreasonable. As discussed above, Argueta’s preliminary hearing testimony that he saw
Hurtado swing the steel bar twice was not likely to have resulted in a more favorable

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verdict because the second “swing” appeared to have occurred while Petitioner was still on

12

the other side of the gate, and therefore did not necessarily weigh favorably for self-

13

defense theory in light of the fact that Petitioner still persisted in confronting Hurtado. See

14

supra at 43-44. Secondly, the effect of Scalmanini’s testimony was neutralized by the trial

15

court’s admonition that the jury may not allow sympathy to impact their decision and

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counsel’s repeated reminder of that instruction in closing argument. Id. at 51. In light of

17

the fact that the state appellate court reasonably found no prejudice with respect to these

18

separate deficiencies, it cannot be said that there was any cumulative prejudice thereby.

19

Accordingly, the state courts’ rejection of this claim was not an unreasonable application

20

of Supreme Court precedent or based on an unreasonable determination of the facts in light

21

of the evidence presented. 28 U.S.C. § 2254(d). Petitioner is not entitled to habeas relief

22

on this claim.

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j.

Failure to Request Accommodation

Petitioner claims that counsel rendered ineffective assistance by failing to request

25

the court to accommodate Petitioner’s speech impediment in order to enable him to testify.

26

(Pet. at 6A.) Petitioner claims that he is afflicted with stuttering, which is recognized as a

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“disability” under the Americans with Disabilities Act. (Id.) The state appellate court

2

summarily denied this claim on state habeas. See supra at 2.

3

On state habeas, Petitioner provided a statement by trial counsel explaining that

4

Petitioner did not testify on his own behalf because he made it clear to her that he did not

5

want to testify: “[Petitioner] specifically told me and my investigator Jim Huggins, he did

6

not want to testify. He reiterated this during the trial. [Petitioner] never told me or my

7

investigator, Jim Huggins, that he wanted to testify or more importantly that he did not

8

wish to do so because of his stutter.” (Ex. F, Attach. 8 to C at 1.) Respondent also points

9

to the following colloquy in the trial record that took place after defense had called its last

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witness:
THE COURT: The last question is: Do you wish to testify in your
own defense? It will be right now.

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[PETITIONER]: I wish, Your Honor; but I got a—a—a really b—
a—a—a—a can you read my letter first?
THE COURT: No, I said. Yes or no, do you wish to testify in your
own behalf?
[PETITIONER]: I wish, sir; but I can’t because I have a speech
problem. I stutter too much. So just me standing up there, it’ll be a bad
thing because I stutter too much.
THE COURT: So you don’t want to testify because of your speech
problem?

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[PETITIONER]: Yes, sir. Well, I—I—I—I wish, but just me going
up there or just making sounds like all bad because I’ll be, you know, with
the stuttering.
THE COURT: That’s—if that’s your reason, that’s a valid reason.
Some people feel they can’t keep up with cross-examination, and don’t
want to do it because of that. So the jury will be instructed that they can’t
use that against you in any way.
(RT at 1507.)
After conducting an independent review of the record, including the trial record and
the papers submitted in support of Petitioner’s state habeas petition, the Court finds that
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the state court’s rejection of this claim was not an objectively unreasonable application of

2

Strickland. See Plascencia, 467 F.3d at 1198. The record shows that Petitioner told the

3

trial court that he “wished” he could testify but did not want to because of his stutter. See

4

supra at 64. Furthermore, as Respondent points out, Petitioner did not say or suggest that

5

he would testify if the court provided an accommodation for his speech impediment. Id.;

6

(Ans. at 32). In light of the fact that Petitioner had explicitly informed her that he did not

7

want to testify and he had never informed her that he did not wish to testify due to his

8

stutter, it was not unreasonable for counsel to not infer that Petitioner would actually

9

testify if an accommodation was made based on his exchange with the court. Accordingly,
it cannot be said that based on Petitioner’s statement to her and his exchange with the

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court, counsel had reason to believe that Petitioner actually desired to testify and would

12

have chosen to testify if accommodations had been made such that her failure to seek such

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accommodations fell below prevailing professional norms. Strickland, 466 U.S. at 687–

14

88.

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Secondly, Petitioner fails to establish prejudice. As Respondent points out,

16

Petitioner has set forth no explanation as to what he would have testified or explain how it

17

is reasonably probable that his testimony would have led to a more favorable verdict.

18

(Ans. at 33.) For example, Petitioner could attempt to show that the jury would have

19

found his version of events more credible than that of Argueta. However, his nephew

20

Alejandro testified to what amounted to Petitioner’s version of events, and the jury clearly

21

did not find his testimony more credible than that of Argueta. Without explaining how his

22

personal testimony would have differed in material aspects from that of Alejandro and how

23

it would have impacted the jury’s verdict, Petitioner cannot show that counsel’s failure to

24

seek accommodations for his speech impediment so that could testify prejudiced him.

25

Under a “doubly” deferential review, it cannot be said the state appellate court’s

26

rejection of this Strickland claim was contrary to, or an unreasonable application of,

27

clearly established Supreme Court precedent. 28 U.S.C. § 2254(d); Pinholster, 131 S. Ct.

28

at 1410-11. Petitioner is not entitled to habeas relief on this claim.
65

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4.

Cumulative Error

2

Lastly, Petitioner claims that he is entitled to relief based on the cumulative

3

prejudice from the instructional errors and counsel’s ineffective assistance. (Pet. Attach. A

4

7

at 79.) The state appellate court rejected this claim of cumulative error:
“Defendant argues that he was deprived of a fair trial by the
cumulative impact of the instructional errors and the ineffective assistance
of his trial counsel. We have either rejected his claims or found an error to
be harmless. Viewed cumulatively, we find that any errors do not warrant
reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560).”

8

(Op. at 48.)

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It has been held that in some cases, although no single trial error is sufficiently

9

prejudicial to warrant reversal, the cumulative effect of several errors may still prejudice a

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defendant so much that his conviction must be overturned. See Alcala v. Woodford, 334

12

F.3d 862, 893-95 (9th Cir. 2003) (reversing conviction where multiple constitutional errors

13

hindered defendant’s efforts to challenge every important element of proof offered by

14

prosecution). Where there is no single constitutional error existing, nothing can

15

accumulate to the level of a constitutional violation. See Hayes v. Ayers, 632 F.3d 500,

16

524 (9th Cir. 2011); Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002); Fuller v.

17

Roe, 182 F.3d 699, 704 (9th Cir. 1999); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir.

18

1996).

19

The Court has found that none of the above claims discussed above have merit.

20

Accordingly, Petitioner has failed to show cumulative prejudice to warrant federal habeas

21

relief. See Hayes, 632 F.3d at 524. The state court’s rejection of this claim was not an

22

unreasonable application of Supreme Court precedent or based on an unreasonable

23

determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d).

24

Accordingly, Petitioner is not entitled to habeas relief on this claim.

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IV. CONCLUSION
After a careful review of the record and pertinent law, the Court concludes that the
Petition for a Writ of Habeas Corpus must be DENIED.
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Further, a Certificate of Appealability is DENIED. See Rule 11(a) of the Rules

1
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Governing Section 2254 Cases. Petitioner has not made “a substantial showing of the

3

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Nor has Petitioner demonstrated

4

that “reasonable jurists would find the district court’s assessment of the constitutional

5

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner may

6

not appeal the denial of a Certificate of Appealability in this Court but may seek a

7

certificate from the Court of Appeals under Rule 22 of the Federal Rules of Appellate

8

Procedure. See Rule 11(a) of the Rules Governing Section 2254 Cases.
The Clerk shall terminate any pending motions, enter judgment in favor of

9

Respondent, and close the file.

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IT IS SO ORDERED.

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Dated:

4/5/2017

________________________
EDWARD J. DAVILA
United States District Judge

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