Jesus Murieta v. W Knipp, No. 2:2012cv10917 - Document 16 (C.D. Cal. 2013)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered denying the Petition for Writ of Habeas Corpus and dismissing this action with prejudice. (See document for further details). (mr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JESUS MURIETA, NO. CV 12-10917 SS Petitioner, 12 MEMORANDUM DECISION AND ORDER 13 14 v. JOE A. LIZARRAGA, Acting Warden, 15 Respondent. 16 17 18 19 20 21 22 23 24 25 26 27 28 1 I. 2 INTRODUCTION 3 4 On December 2012, 1 18, Jesus Murieta ( Petitioner ), a 5 California state prisoner proceeding pro se, constructively filed 6 a Petition 7 § 2254. 2 8 jurisdiction of the undersigned Magistrate Judge pursuant to 28 9 U.S.C. § 636(c), and on March 8, 2013, Respondent consented as for On Writ of December Habeas 24, Corpus 2012, pursuant Petitioner to 28 consented U.S.C. to the 10 well. 11 and a Memorandum of Points and Authorities in Support Thereof on 12 March 13 Petitioner s trial proceedings in Los Angeles County Superior 14 Court, 15 ( CT ), a five-volume copy of the Reporter s Transcript ( RT ), 16 and a one-volume supplement to the Reporter s Transcript ( RT 17 Supp. ). 18 and this action is DISMISSED with prejudice. 19 \\ 20 1 21 22 23 24 25 26 27 28 Respondent filed an Answer to the Petition (the Answer ) 13, 2013. including Respondent a one-volume lodged copy of eight the documents Clerk s from Transcript For the reasons discussed below, the Petition is DENIED Under the mailbox rule, a pleading filed by a pro se prisoner is deemed to be filed as of the date the prisoner delivered it to prison authorities for mailing, not the date on which the pleading may have been received by the court. Houston v. Lack, 487 U.S. 266, 270, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988); Anthony v. Cambra, 236 F.3d 568, 574-75 (9th Cir. 2000). Here, the Court has calculated the filing date of the Petition pursuant to the mailbox rule as the date the Petition was signed, December 18, 2012. (Petition at 6) (The Court refers to the pages of the Petition as if they were consecutively paginated). 2 Joe A. Lizarraga, Acting Warden of Mule Creek State Prison, where Petitioner is currently incarcerated, is substituted for Warden Knipp, whom Petitioner originally named in the Petition. See Fed. R. Civ. P. 25(d). 2 1 II. 2 PRIOR PROCEEDINGS 3 4 On September 3, 2010, a Los Angeles County Superior Court 5 jury found Petitioner guilty of one count of second degree murder 6 in violation of California Penal Code ( Penal Code ) § 187(a). 7 (CT 8 Petitioner personally used a deadly weapon to commit the murder 9 within the meaning of Penal Code § 12022(b)(1). 179-81). The jury also found true the allegation that (Id.). On 10 November 22, 2010, the trial court sentenced Petitioner to a 11 total term of sixteen years to life in state prison. 12 201-02; RT 3607). (Id. at 13 14 On April 12, 2012, the California Court of Appeal affirmed 15 the trial court s 16 California Court of Appeal, at 1 ( Lodgment 6 )). 17 sought 18 Petition for Review ( Lodgment 7 )), and the state supreme court 19 summarily 20 (Lodgment 8, California Supreme Court Docket ( Lodgment 8 )). 21 Having presented his arguments on direct appeal, Petitioner did 22 not seek collateral review in the state courts. 23 the instant Petition on December 24, 2012. 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ review in denied judgment. the his (Lodgment California Petition Supreme for 3 Review 6, Opinion Court, on of the Petitioner (Lodgment June 20, 7, 2012. Petitioner filed 1 III. 2 FACTUAL BACKGROUND 3 4 The following 5 Appeal s 6 rebutted with clear and convincing evidence and must therefore be 7 presumed correct. 8 F.3d 747, 749 n.1 (9th Cir. 2009). written facts, taken from decision on the direct California review, Court have not 10 On 11 Cervantes 12 homeless people, 13 Chalino) and 14 According to a confidential informant, Cervantes asked 15 [Petitioner], 16 Offended, [Petitioner] said he didn t sell anything. 17 Cervantes apologized and asked someone else for weed. 18 Still 19 problem was and if he wanted beef, to fight. 20 told [Petitioner] to sit down, that Cervantes wasn t 21 bothering him. 22 want 23 saying he was going to kick Cervantes ass. 7, 2008, went angry, to been 28 U.S.C. § 2254(e)(1); Slovik v. Yates, 556 9 April of to at Zapopan was 6:00 where drunk, sometimes if asked he p.m., a [Petitioner] Sanchez, [Petitioner] fight. Park, including Leticia who approximately had Leo group of (known as hung any Cervantes out. weed. what his Sanchez Cervantes told [Petitioner] he didn t [Petitioner], however, persisted, 24 25 Removing a knife from a sheathe on his belt and saying 26 he wanted a clean fight, [Petitioner] handed the knife 27 to Sanchez and walked to Cervantes. 28 at Cervantes. When he 4 [Petitioner] swung missed, Cervantes hit 1 [Petitioner], knocking him to the ground. [Petitioner] 2 tried to get up, but Cervantes knocked him back down 3 and 4 Sanchez kicked Cervantes and yelled at [Petitioner] to 5 get up, that he looked like he didn t know how to 6 fight. 7 apart, and Cervantes left. kicked him, Two repeating men he pulled didn t Cervantes want and to fight. [Petitioner] 8 9 [Petitioner] and 10 followed him. 11 that 12 Cervantes 13 Sanchez, knives in their hands, him. People told the confidential informant [Petitioner] and and that Sanchez Sanchez split up bragged to about look for sticking 14 15 That 16 Martinez was on Delta Avenue, near Zapopan Park. 17 putting her baby into a car, she noticed Cervantes walk 18 past her. 19 Martinez identified as [Petitioner] at trial, walked 20 quickly or ran by. 21 might 22 straight. 23 pushed 24 Cervantes while 25 Cervantes, and 26 something out and made a flipping motion, and Cervantes 27 grabbed [Petitioner] s hand. 28 see a knife, [Petitioner] made a stabbing motion at same be him day, sometime after 7:00 p.m., Kimberly While About a minute later, another man, whom Martinez thought that [Petitioner] intoxicated because [Petitioner] off the sidewalk, doing they caught so. up wasn t to saying walking Cervantes something [Petitioner] fought. 5 he [Petitioner] and to punched pulled Although Martinez did not 1 Cervantes side and chest. 2 his head, and Cervantes kicked him once. 3 looked like he was in pain. [Petitioner] fell and hit Cervantes 4 5 Sanchez, carrying 6 Martinez, 7 When Sanchez couldn t get [Petitioner] up, she pulled 8 on 9 started kind of hitting him. saying, Cervantes as a black Stop if purse, walked fighting, trying to stop hold quickly by fighting. him, and she Martinez did not see 10 Sanchez make a stabbing motion toward Cervantes. 11 Cervantes broke away and walked to a house across the 12 street. 13 Cervantes had only the one stab wound, and he did not 14 have wounds or cuts or bruises on his hands. Hurt, He died from a single stab wound to the chest. 15 16 Los 17 received an emergency call at 7:20 p.m. and he went to 18 the intersection of Delta and Garvey. 19 the 20 sidewalk and a Latina woman with long, pulled back hair 21 helping him up. Angeles County location, he saw Deputy a Sheriff Latino man Ricky Gutierrez On the way to kneeling on the 22 23 Two days later, on April 9, 24 Chivas with the Los Angeles County Sheriff s Department 25 found [Petitioner] and Sanchez near the 10 Freeway and 26 San Gabriel Boulevard in Rosemead. 27 belt with two knife sheathes attached to it. 28 knives, one with a dark handle and dark blade and the 6 2008, Sergeant Robert [Petitioner] wore a Folding 1 other with a dark handle and silver blade, were in each 2 of the sheathes. 3 lip, and a fresh gash to the back of his head. 4 knives were on Sanchez or in a nearby black purse. [Petitioner] had a black eye, split No 5 6 A DNA sample from a blood stain found at the crime 7 scene on Delta matched [Petitioner] s DNA profile. 8 from blood on one of the knives found on [Petitioner] 9 when he was arrested matched Cervantes DNA profile. DNA 10 11 (Lodgment 6 at 2-4) (footnotes omitted). 12 13 IV. 14 PETITIONER S CLAIMS 15 16 Petitioner presents two grounds for relief. First, he 17 claims that the trial court violated his constitutional right to 18 due 19 passion jury instruction that is, to instruct the jury on the 20 lesser included offense of voluntary manslaughter. 21 4). 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ process by declining to issue 7 a sudden quarrel/heat of (Petition at 1 Second, Petitioner alleges that Penal Code § 22(b), 3 which barred 2 the jury from considering evidence of Petitioner s intoxication 3 for 4 deliberation and premeditation, violated his rights under the Due 5 Process 6 presenting a defense. purposes and other Equal than assessing Protection whether Clauses by he acted preventing with him from (See id.). 7 8 V. 9 STANDARD OF REVIEW 10 11 The Antiterrorism and Effective Death Penalty Act of 1996, 12 Pub. L. No. 104-132, 110 Stat. 1214 ( AEDPA ), applies to the 13 instant Petition because it was filed after AEDPA s effective 14 date of April 24, 1996. 15 S. Ct. 2059, 138 L. Ed. 2d 481 (1997). 16 bars relitigation of any claim adjudicated on the merits in 17 state court, subject only to the exceptions in §§ 2254(d)(1) and 18 (d)(2). 19 178 L. Ed. 2d 624 (2011). Lindh v. Murphy, 521 U.S. 320, 336, 117 By its terms [AEDPA] Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 784, 20 Pursuant to 28 U.S.C. § 2254(d)(1) and (d)(2), a federal 21 22 court 23 adjudication was contrary to, or an unreasonable application of, 24 clearly 25 unreasonable determination of the facts. 26 27 28 may grant habeas established relief federal law, 3 only or if was the state based court upon an A decision is contrary Following Petitioner s trial, Penal Code § 22 was recodified as Penal Code § 29.4. See S.B. 1171, § 119, 2012 Cal. Stats, c. 162. However, to maintain consistency with the briefings, the Court will use the statute s original citation. 8 1 to clearly established federal law if a state court applies a 2 rule that contradicts the governing law set forth in Supreme 3 Court cases or confronts a set of facts that are materially 4 indistinguishable from a relevant Supreme Court precedent but 5 arrives at a different result. 6 664 (9th Cir. 2010) (citing Williams v. Taylor, 529 U.S. 362, 7 405-06, 8 Alternatively, 9 clearly 120 S. Ct. [t]here established 1495, is federal Moor v. Palmer, 603 F.3d 658, 146 L. Ed. 2d 389 (2000)). an unreasonable application law when court a state of correctly 10 identifies the governing legal rule but applies it unreasonably 11 to the facts of a prisoner s case. 12 F.3d 1069, 1076 (9th Cir. 2009) (citing Williams, 529 U.S. at 13 412-13). 14 unreasonable application of clearly established precedent if the 15 state court either unreasonably extends a legal principle from 16 the [Supreme Court s] precedent to a new context where it should 17 not apply or unreasonably refuses to extend that principle to a 18 new context where it should apply. 19 U.S. at 407). A state court Briceno v. Scribner, 555 decision can also involve an Id. (citing Williams, 529 20 21 Where a state supreme court denies a habeas petition without 22 comment or citation, a district court must look through the 23 unexplained denial to the last reasoned state court judgment as 24 the basis for the supreme court s decision. 25 Nunnemaker, 501 U.S. 797, 804, 111 S. Ct. 2590, 115 L. Ed. 2d 706 26 (1991); Howard v. Clark, 608 F.3d 563, 569 (9th Cir. 2010). 27 Here, 28 summary denial of Petitioner s claims to the California Court of the Court looks through the 9 See, e.g., Ylst v. California Supreme Court s 1 Appeal s 2 Ground One, the California Court of Appeal determined that the 3 trial court correctly refused to instruct the jury on voluntary 4 manslaughter because there was insufficient evidence of adequate 5 provocation[.] 6 barring the defense of voluntary intoxication did not violate 7 Petitioner s federal or state constitutional rights. 8 9). 9 deferential standard of review applies. reasoned decision. (Lodgment (Id. at 6). 6). With respect to The appellate court also held that (Id. at 8- Accordingly, this decision was on the merits and AEDPA s 10 11 VI. 12 DISCUSSION 13 14 A. Petitioner Is Not Entitled To Habeas Relief On His Claim 15 That The Trial Court Erred By Failing To Instruct The Jury 16 On Voluntary Manslaughter 17 18 1. The California Court Of Appeal s Decision 19 20 In Ground One, Petitioner contends that the trial court 21 violated his constitutional right to due process by declining to 22 issue a sudden quarrel/heat of passion jury instruction that 23 is, 24 voluntary 25 declined 26 instruction because it found there was not substantial evidence 27 that Petitioner committed voluntary manslaughter. 28 \\ to instruct the jury manslaughter. defense on the (Petition counsel s request 10 lesser at for included 4). The a heat offense trial of of court passion (RT 2119-20). 1 The Court: [I] would not I would deny the request 2 for that instruction. 3 that 4 support 5 provocation, if any, was sufficient. there is I substantial it. I don t don t think evidence to think the 6 7 The way the case is portrayed is that 8 [Petitioner] was the aggressor . . . 9 became angry at something the He victim 10 said and that s about it from what I ve 11 heard. 12 set him off and we have evidence of two 13 altercations, one earlier. 14 that 15 don t think that there is an evidentiary 16 basis for a voluntary manslaughter based 17 on provocation heat of passion. The victim said something that Miss Martinez And secondly witnessed. So I 18 19 (RT 2120-21). 20 21 The California Court of Appeal affirmed the trial court s 22 decision to not issue the voluntary manslaughter instruction. 23 First, the court set forth the law governing heat of passion 24 voluntary manslaughter in California: 25 26 Heat of passion arises when at the time of the killing, 27 the reason of the accused was obscured or disturbed by 28 passion to such an extent as would cause the ordinarily 11 1 reasonable person of average disposition to act rashly 2 and without deliberation and reflection, and from such 3 passion rather than from judgment . . . . People v. 4 Barton, 12 Cal. 4th 186, 201 (1995). 5 that incites the defendant to homicidal conduct must be 6 caused by the victim or be conduct reasonably believed 7 by the defendant to have been engaged in by the victim. 8 People v. Manriquez, 37 Cal. 4th 547, 583 (2005). 9 may be physical or verbal, but it must be sufficiently The provocation It 10 provocative 11 disposition to act rashly or without due deliberation 12 and reflection. 13 59 (1999). 14 both 15 defendant must actually, subjectively, kill under the 16 heat of passion. [Citation]. 17 giving rise to the heat of passion are also viewed 18 objectively. 19 Lee, 20 provocation is an objective one). 21 set 22 excuse 23 aroused, 24 sufficient to arouse the passions of the ordinarily 25 reasonable person. 26 specific 27 passion aroused need not be anger or rage, but can be 28 any an cause an ordinary person of average [Id.]; People v. Lee, 20 Cal. 4th 47, Thus, the heat of passion requirement has objective 20 up to 4th own himself type at subjective 60 standard because unless violent, a component: The But the circumstances Manriquez, 37 Cal. 4th at 584; see also Cal. his and of the (the of test fact facts and adequate A defendant may not conduct in of and his justify passions were circumstances were Manriquez, 37 Cal. 4th at 584. provocation intense, is required, high-wrought 12 or or and No the enthusiastic 1 emotion other than revenge. 2 4th 101, 108 (2000). People v. Lasko, 23 Cal. 3 4 (Lodgment 6 at 5-6) (internal quotation marks omitted). 5 6 Having set forth this legal framework, the court of appeal 7 concluded that the trial court correctly declined to instruct the 8 jury on voluntary manslaughter because there was insufficient 9 evidence of adequate provocation to cause defendant to attack 10 Cervantes. 11 conduct may be physical or verbal, and it may comprise a single 12 incident or numerous incidents over a period of time[,] [b]ut the 13 type 14 provocation must be severe. 15 In this case, [Petitioner] became enraged when Cervantes asked 16 if he had any marijuana for sale. 17 drugs 18 provocation that would cause an ordinary person to act rashly or 19 without due deliberation and reflection. 20 it 21 initial encounter. of verbal may was (Id. at 6). be The court explained that provocative argument insulting, Petitioner who that might constitute adequate (Id.) (internal citations omitted). but Asking someone if they sell it attacked is simply not the (Id. at 7). Cervantes first type of Moreover, during their 22 23 With respect to the second (and ultimately deadly) encounter 24 between Petitioner and 25 there [wa]s 26 either provoked 27 uncontrollable rage. 28 to fight. [Petitioner] followed him, knife in hand. similarly Cervantes, the insufficient [Petitioner] or that court evidence of appeal that [Petitioner] found Cervantes was in an Instead, Cervantes left the park, unwilling 13 When he 1 caught up to Cervantes, [Petitioner] pushed him. 2 not have had a brief discussion. 3 that words were exchanged, but she didn t hear them. 4 however, no evidence that any words were exchanged in those brief 5 moments that could have obscured [Petitioner] s reason. 6 Accordingly, the California Court of Appeal held there was no 7 basis on which to issue a voluntary manslaughter instruction at 8 Petitioner s trial. They may or may The witness, Martinez, thought There is, (Id.). 9 10 2. The Court Of Appeal s Decision Was Not Contrary To, Or 11 An 12 Federal Law Unreasonable Application Of, Clearly Established 13 14 No Supreme Court precedent squarely addresses the issue 15 underlying Petitioner s claim. 16 failure to issue a lesser included offense instruction sua sponte 17 is a constitutional error when there is evidence to support the 18 instruction. 19 2382, 65 L. Ed. 2d 392 (1980); see also Solis v. Garcia, 219 F.3d 20 922, 929 (9th Cir. 2000) (noting that the Ninth Circuit has 21 declined to extend Beck to non-capital cases). 22 Supreme Court expressly left open the question of whether the Due 23 Process Clause requires such an instruction in non-capital cases 24 like the one currently before this Court. 25 Indeed, 26 identical to the one advanced in the instant Petition, courts 27 have recognized the lack of any Supreme Court precedent on this 28 issue. in In capital cases, a trial court s Beck v. Alabama, 447 U.S. 625, 638, 100 S. Ct. previously rejecting a claim However, the See id. at 638 n.14. for habeas relief See Castillo v. Clark, 610 F. Supp. 2d 1084, 1112-13 14 1 (C.D. Cal. 2009) ( To the extent that petitioner is claiming that 2 he was unconstitutionally denied adequate instructions on the 3 lesser 4 theory of heat of passion, the Court notes preliminarily that the 5 United States Supreme Court has never held that a defendant has a 6 constitutional right to a jury instruction on a lesser offense in 7 a non-capital case. ). 8 address[ing] the issue in Petitioner s case, there was simply no 9 clearly established federal law for the California courts to included offense of voluntary manslaughter based on a Absent a Supreme Court decision squarely 10 unreasonably apply or be contrary to. 11 F.3d 12 citations omitted). 13 state court s decision. 14 fail. 742, 754 (9th Cir. 2008) See Moses v. Payne, 555 (internal quotation marks and In such a case, the Court must defer to the Id. Thus, Petitioner s claim must 15 16 Although only Supreme Court holdings are binding on state 17 courts, [c]ircuit precedent may provide persuasive authority for 18 purposes of determining whether a state court decision is an 19 unreasonable application of Supreme Court precedent. 20 Hornbeck, 706 F.3d 1134, 1139 (9th Cir. 2013) (internal quotation 21 marks and citations omitted). 22 held that, when faced with a novel situation, it may turn to 23 [its] own precedent, as well as the decisions of other federal 24 courts, in order to determine whether [a] state decision violates 25 the general principles enunciated by the Supreme Court and is 26 thus contrary to clearly established federal law. 27 Ignacio, 360 F.3d 1044, 1057 (9th Cir. 2004). 28 \\ Dyer v. Furthermore, the Ninth Circuit has 15 Robinson v. 1 However, even if the Court were to consider only Ninth Circuit 2 precedent 3 contrary to, or unreasonably applied, clearly established federal 4 law, Petitioner s claim would still be without merit. to determine whether the California courts acted 5 6 The Ninth Circuit has repeatedly held that a court s failure 7 to provide a jury instruction on a lesser included offenses in a 8 non-capital case is not a basis for federal habeas relief. 9 e.g., United States v. Rivera-Alonzo, 584 F.3d 829, 835 n.3 (9th 10 Cir. 2009) ( In the context of a habeas corpus review of a state 11 court 12 established 13 instructions in non-capital cases. ); Windham v. Merkle, 163 F.3d 14 1092, 1106 (9th Cir. 1998) ( Under the law of this circuit, the 15 failure of a state trial court to instruct on lesser included 16 offenses 17 constitutional question. ). 18 Ninth Circuit case suggesting that the refusal by a court to 19 instruct a jury on lesser included offenses, when those offenses 20 are 21 constitute 22 evidence supports the lesser offenses. 23 However, this case has since been cited for the proposition that 24 there is no clearly established federal right to a lesser offense 25 jury instruction in non-capital cases. 26 F.3d at 835 n.3; see also Chaidez v. Knowles, 258 F. Supp. 2d 27 1069, 1096 n.15 (N.D. Cal. 2003) (questioning whether Solis s 28 suggestion conviction, we federal in a consistent a is have the cognizable based that constitutional non-capital with stated on case there right does to not is no lesser present See, clearly included a federal The Court is aware of at least one defendant s habeas clearly 16 theory claim of where the case, may substantial Solis, 219 F.3d at 929. See Rivera-Alonzo, 584 established Supreme Court 1 precedent). 2 stated a claim here for habeas relief. It is therefore unclear whether Petitioner has 3 4 Assuming arguendo that a state court s omission of a lesser 5 included offense instruction may rise to the level of a federal 6 constitutional 7 evidence, the trial court s decision to not issue a heat of 8 passion instruction here did not fall within this exceptional 9 category of cases. violation, at least when supported by the A lesser included offense instruction may be 10 issued only when substantial evidence warrants it. 11 F.3d at 929; Castillo, 610 F. Supp. 2d at 1113; cf. United States 12 v. Hernandez, 476 F.3d 791, 798 (9th Cir. 2007) ( [T]o warrant a 13 lesser included offense instruction, the evidence at trial must 14 be such that a jury could rationally find the defendant guilty of 15 the lesser offense, yet acquit him of the greater. ) (internal 16 quotation marks omitted). Solis, 219 In this case, no such evidence exists. 17 18 In the recording with police, of the the heard the informant s CI state (CI) 19 interview 20 witnessed Cervantes approach the guy that stabbed him, known to 21 the CI as Chalino, and ask for weed. 22 said that Chalino became offended, but Cervantes moved on and 23 asked the CI s friend for weed. 24 told Cervantes We don t have anything here. 25 Meanwhile, Chalino went over to Cervantes and asked if he wanted 26 to fight. 27 fight, apologized for upsetting Chalino, and began backing away. 28 (Id. at 102-03, 123). (Id. at 101). jury confidential (CT 86-87, 100). (Id. at 100). that he The CI The CI s friend (Id. at 100-01). Cervantes said he did not want to Chalino responded by handing his knife to 17 1 his girlfriend and walking up to Cervantes. 2 fight ensued and Cervantes knocked Chalino down. 3 06). 4 turned around and walked away . . . away out of the park. 5 at 108-09). 6 park with a switchblade. 7 the CI s eyewitness account of the first encounter, Petitioner 8 was not provoked into fighting Cervantes. Instead, Petitioner 9 responded by (CT 102-03). A fist (Id. at 104- After the fight was broken up by two onlookers, Cervantes to (Id. The CI watched Chalino follow Cervantes out of the a (Id. at 109-10). non-inflammatory In sum, according to question insisting that 10 Cervantes fight him, and, after Petitioner lost the fight, he 11 pursued Cervantes with a knife. 12 13 The second eyewitness, Kimberly Martinez, testified that she 14 saw Cervantes walk past her car while she was putting her baby 15 into the car seat. 16 herself, she saw Petitioner walking pretty fast in the same 17 direction as Cervantes. 18 (identifying Petitioner as the man who followed Cervantes)). 19 said Cervantes was walking at a normal speed, but Petitioner was 20 walking 21 Cervantes and pushed him. 22 could see Cervantes mouth open, like he was trying to tell 23 Petitioner something, but she could not hear any words because 24 the windows of her car were rolled up. 25 saw Petitioner start punching Cervantes. 26 Cervantes hit back, Petitioner pull[ed] something out. 27 1567, 1576-77). 28 try to hold the object in Petitioner s hand away from him, but fast, (RT 1562-63). running. After she got into the car (Id. at 1563; see also id. at 1592 (RT 1564). Petitioner (Id. at 1565-66, 1575). (Id. at 1575). She reached Martinez Martinez (Id. at 1576). When (Id. at Martinez testified that Cervantes appeared to 18 1 Cervantes let go and Petitioner made a stabbing motion. 2 1567, 1576-77). 3 walk into a nearby house. 4 believed Cervantes was hurt based on how he was walking and the 5 fact that he kept lifting up his sweater and his shirt. (RT Shortly thereafter, Martinez watched Cervantes (Id. at 1586). She stated that she (Id.). 6 7 These eyewitness accounts established that Petitioner, not 8 Cervantes, initiated 9 witnesses accounts of the incidents suggested that Cervantes 10 said something to Petitioner at the park and again on the street, 11 they did not establish, as Petitioner suggests, that Cervantes 12 statements were so provocative that an ordinary person would have 13 responded with deadly violence. 14 4th 547, 583, 36 Cal. Rptr. 3d 340 (2005); People v. Lee, 20 Cal. 15 4th 47, 59, 82 Cal. Rptr. 2d 625 (1999). 16 did not muster any rebuttal evidence to establish that Cervantes 17 statements were sufficiently inflammatory to thrust a person of 18 ordinary passions into a fit of emotion-driven violence. 19 126). 20 constitutionally 21 instruction based on heat of passion. 22 ( [B]ecause there was no substantial evidence to support either 23 [manslaughter] charge, the state trial court did not err by 24 declining to issue manslaughter instructions). Absent such each violent to While the See People v. Manriquez, 37 Cal. evidence, obligated encounter. the issue Moreover, Petitioner trial a court voluntary (See CT was not manslaughter See Solis, 219 F.3d at 929 25 26 Finally, even if Petitioner could show that the trial 27 court s failure to issue a voluntary manslaughter instruction 28 violated due process, he is not entitled to habeas relief because 19 1 this error had no substantial and injurious effect on the jury s 2 verdict. 3 Ct. 1710, 123 L. Ed. 353 (1993); Chaidez, 258 F. Supp. 2d at 1096 4 (applying Brecht to habeas claim based on trial court s failure 5 to 6 discussed 7 Petitioner s 8 objectively sufficient and subjectively real passion. 9 the evidence established that Petitioner initially responded to 10 Cervantes non-inflammatory question and subsequent apology with 11 violence and, later on, methodically tracked down Cervantes and 12 stabbed him to death. (CT 86-87, 100, 101-06, 108-10, 123; RT 13 1563, 1567, 1576-77). In sum, there was no evidence (much less 14 substantial evidence) from which a jury could have found that 15 Petitioner killed Cervantes in the heat of passion, and the Court 16 cannot conclude that a voluntary manslaughter instruction, by 17 itself, would have convinced the jury otherwise. 18 the 19 error, and Petitioner is not entitled to federal habeas relief on 20 Ground One. 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ issue See Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. a trial lesser above, included there attack court s on offense was jury no evidence Cervantes occurred omission of 20 this instruction). suggesting in instruction the heat As that of Instead, Accordingly, was harmless 1 B. Petitioner Is Not Entitled To Habeas Relief On His Claim 2 That Penal Code § 22(b) Violates The Due Process And Equal 3 Protection Clauses 4 5 1. The California Court Of Appeal s Decision 6 7 In Ground Two, Petitioner contends that the trial court, 8 pursuant to Penal Code § 22(b), unconstitutionally limited the 9 purposes for which the jury could consider Petitioner s 11 Petitioner argues that the jury should have been permitted to 12 consider evidence 13 whether Petitioner 14 premeditation and deliberation), but also whether he acted with 15 implied malice (that is, conscious disregard for human life and 16 knowledge that his conduct endangered human life). 17 also People v. Sarun Chun, 45 Cal. 4th 1172, 1181, 91 Cal. Rptr. 18 3d 106 (2009) (defining express and implied malice). He also 19 asserts of his 20 intoxication, federal due 21 process 22 treatment 23 violation of the Equal Protection Clause. right of voluntary by of intoxication acted with limiting Penal to his Code similarly the § present (Petition of 10 that intoxication. evidence 22(b) a determine express jury s and second not malice [his] accorded degree 4). only (i.e., (Id.); see consideration violated defense situated to at disparate murderers in (Petition at 4). 24 25 Penal Code § 22(b) provides that [e]vidence of voluntary 26 intoxication is admissible solely on the issue of whether or not 27 the defendant actually formed a required specific intent, or, 28 when charged with murder, whether the defendant premeditated, 21 1 deliberated, 2 Consistent with Penal Code § 22(b), the trial court instructed 3 the jury as follows: or harbored express malice aforethought. 4 5 You may consider evidence, if any, of the defendant s 6 voluntary intoxication only in a limited way. 7 also consider that evidence in deciding whether the 8 defendant 9 defendant acted with deliberation and premeditation . . acted with an intent to You may kill, or the 10 . 11 intoxication for any other purpose except as set forth 12 in these instructions. . You may not consider evidence of voluntary 13 14 (CT 171). 15 16 17 On direct review, the California Court of Appeal affirmed the trial court s decision to issue this instruction. 18 19 [W]here a person commits the murder while voluntarily 20 intoxicated, 21 admitted solely on the issue of whether or not the 22 defendant actually formed a required specific intent, 23 or, when charged with murder, whether the defendant 24 premeditated, deliberated, or harbored express malice 25 aforethought. 26 [Petitioner] argues that foreclosing consideration of 27 voluntary intoxication to negate implied malice second 28 degree murder violated his due process right to present evidence Cal. of that Penal 22 intoxication Code § 22(b) . may . be . . 1 a defense and the equal protection clauses [sic] of the 2 United 3 argument, 4 People v. Martin, 78 Cal. App. 4th 1107, 1114, 1117 5 (2000) 6 amendment to section 22 was to preclude evidence of 7 voluntary 8 aforethought . . . [w]e find nothing in the enactment 9 that deprives a defendant of the ability to present a 10 defense or relieves the People of their burden to prove 11 every element of the crime charged beyond a reasonable 12 doubt ); People v. Timms, 151 Cal. App. 4th 1292 (2007) 13 (rejecting 14 process and equal protection rights); accord, People v. 15 Carlson, 200 Cal. App. 4th 695, 707-708 (2011). States and California however, ( It is has clear that intoxication argument been rejected. the to that Constitutions. See, effect negate section This of the implied 22 e.g., 1995 malice violates due 16 17 [Petitioner], however, 18 misunderstand applicable authority, including Montana 19 v. Eglehoff, [sic] 518 U.S. 37, 40 (1996). 20 statute 21 considered in determining the existence of a mental 22 state. 23 due process clause precludes a state from disallowing 24 consideration 25 defendant s state of mind is at issue. 26 Justice 27 between 28 exculpatory evidence and one that redefines the mental- prohibited argues voluntary that these authorities A Montana intoxication from being Four justices found that nothing in the federal of Ginsburg a rule voluntary concurred, designed 23 intoxication but to drew keep when a Id. at 56. a out distinction relevant, 1 state element of the offense. 2 rule would violate due process; the latter would not. 3 Id. 4 mens rea of the offense, Justice Ginsburg found no 5 constitutional shoal. Id. at 57. The former Interpreting the statute as one redefining the Id. at 58. 6 7 Our California Supreme Court cited Eglehoff [sic] when 8 rejecting a defendant s argument that the withholding 9 of voluntary intoxication evidence to negate the mental 10 state 11 denying him the opportunity to prove he did not possess 12 the required mental state. 13 4th 76, 93 (2001). 14 Superior Court, 57 Cal. 2d 450 (1962), we are bound by 15 the California Supreme Court s holdings. of arson violates his due process rights by People v. Atkins, 25 Cal. Under Auto Equity Sales, Inc. v. 16 17 (Lodgment 6 at 8-9). 18 19 2. The California Code § Court Of 22(b) Does Appeal s Not Decision Violate The That 20 Penal Due 21 Process Clause Was Not Contrary To, Or An Unreasonable 22 Application Of, Clearly Established Federal Law 23 24 The California Court of Appeal s analysis of Penal Code 25 § 22(b) s constitutionality in Petitioner s case was not contrary 26 to, or an unreasonable application of, federal law as announced 27 in Montana v. Egelhoff, 518 U.S. 37, 116 S. Ct. 2013, 135 L. Ed. 28 2d 361 (1996). In Egelhoff, the Supreme Court addressed the 24 1 constitutionality of a Montana statute providing, in relevant 2 part, 3 consideration 4 which is an element of [a criminal] offense. 5 In a plurality opinion, Justices Scalia, Rehnquist, Thomas and 6 Kennedy upheld the statute on the ground a defendant s right to 7 have 8 determining whether he possesses the requisite mental state for a 9 crime is not a fundamental principle of justice protected under that a voluntary jury in intoxication determining consider the may existence voluntary not of be a taken into mental state 518 U.S. at 39. intoxication evidence in 10 the Due Process Clause. 11 Ginsburg who cast the deciding vote upholding the Montana statute 12 in a concurring opinion setting forth the due process analysis 13 that now governs statutes such as Penal Code § 22(b). 4 Id. at 42-51. However, it was Justice 14 15 According to Justice Ginsburg, the Montana statute at issue, 16 which did not appear in the state s evidence code, encounter[ed] 17 no constitutional shoal because it merely rendered evidence of 18 voluntary intoxication irrelevant to the issue of mens rea. 19 Egelhoff, 518 U.S. at 58 (Ginsburg, J., concurring). See Justice 20 4 21 22 23 24 25 26 27 28 Ordinarily, when a fragmented [Supreme] Court decides a case and no single rationale explaining the results enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds. United States v. Williams, 435 F.3d 1148, 1157 (9th Cir. 2006) (quoting Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d (1977)) (internal quotation marks omitted). A court need not find a legal opinion which the majority joined, but merely a legal standard which, when applied, will necessarily produce results with which a majority of the [Supreme] Court from that case would agree. Id. (internal quotation marks omitted). Thus, in Egelhoff, Justice Ginsburg s concurrence constitutes the holding of the case. 25 1 Ginsburg reasoned that while an [evidentiary] rule designed to 2 keep 3 process, Montana s law, [c]omprehended as a measure redefining 4 mens rea, was constitutionally sound. 5 on 6 provisions [in Montana s code] governing duress and entrapment . 7 . 8 circumstances 9 responsible for their actions. out relevant, voluntary . , exculpatory intoxication embodie[d] under Justice a evidence evidence, Id. . less judgment individuals Ginsburg . may be Id. at 57. noted that offends due Thus, Montana s bar [n]o legislative which . than adjacent regarding held the criminally In reaching this 10 conclusion, states enjoy wide 11 latitude to adopt such measures, and judicial review thereof is 12 limited. 13 conduct is challenged under the Due Process Clause, we inquire 14 only whether the law offends some principle of justice so rooted 15 in the traditions and conscience of our people as to be ranked as 16 fundamental. ). See id. at 58 ( When a State s power to define criminal 17 18 Here, California s Penal Code § 22(b) suffers no 19 constitutional infirmities for the same reasons that Montana s 20 law encounter[ed] no constitutional shoal in Egelhoff. 21 California 22 Timms, 151 Cal. App. 4th 1292, 60 Cal. Rptr. 3d 677 (2007), 23 [Penal Code § 22] is part of California s history of limiting 24 the 25 capacity evidence. 26 Penal Code, not the Evidence Code, along with statutes defining 27 and setting forth the kinds and degrees of crimes and their 28 punishments (§§ 16-19.8), the requirements of act and intent or Court exculpatory of Appeal effect of correctly voluntary Id. at 1300. 26 explained in intoxication As the People and v. other The statute appears in the 1 negligence (§ 20), the elements of attempt (§ 21(a)), etc. 2 Therefore, 3 statutorily enshrine the policy, which dates back to 1872 in 4 California, that an act is not less criminal because the actor 5 committed it while voluntarily intoxicated. 6 as a measure redefining mens rea, California s law offends due 7 process 8 Accordingly, the California Court of Appeal did not act contrary 9 to, or unreasonably apply, clearly established federal law when 10 it concluded that Penal Code § 22(b) does not violate the wide 11 latitude 12 criminal offenses. the no manifest more than California purpose did enjoys of Penal Montana s in defining Code Id. statute the § 22 Id. is to Comprehended in mens Engelhoff. rea of its 13 14 The Court notes that even if the instruction were found to 15 violate due process, Petitioner would not be entitled to habeas 16 relief because the error did not have a substantial and injurious 17 effect or influence in determining the jury s verdict. 18 55 U.S. at 61-62. 19 Petitioner s 20 consideration would have resulted in a different verdict given 21 the facts regarding Petitioner s attack on the victim. 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ Brecht, Even if the jury was allowed to consider voluntary intoxication, 27 it is unlikely such 1 3. The California Code § Court Of 22(b) Appeal s Penal 3 Protection 4 Unreasonable Application Of, Cleary Established Federal 5 Law Was Not Not Violate Contrary The That 2 Clause Does Decision To, Equal Or An 6 7 Petitioner cannot establish that Penal Code § 22(b) violated 8 his rights under the Equal Protection Clause. Petitioner asserts 9 that Penal Code § 22(b) accords disparate treatment of similarly 10 situated second degree murderers in violation of federal equal 11 protection. (Petition at 4). 12 13 The California Court of Appeal rejected this contention with 14 citations to Timms and People v. Carlson, 200 Cal. App. 4th 695, 15 707-08, 133 Cal. Rptr. 3d 218 (2011), which both rejected the 16 argument 17 violates a defendant s constitutional right to equal protection. 18 (Lodgment 6 at 8). that withholding a voluntary intoxication defense 19 20 The Equal Protection Clause directs that all persons 21 similarly circumstanced shall be treated alike. 22 457 U.S. 202, 216, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982). 23 Constitution 24 keeps 25 persons who are in all relevant respects alike. 26 Hahn, 505 U.S. 1, 10, 112 S. Ct. 2326, 120 L. Ed. 2d 1 (1992). 27 In determining whether a statute violates the Equal Protection 28 Clause, does governmental the first not forbid decision step is classifications[,] makers to Plyler v. Doe, from identify 28 but treating the The simply differently Nordlinger v. proper level of 1 scrutiny to apply for review. 2 298 F.3d 1037, 1047 (9th Cir. 2002). 3 scrutiny if the statute targets a suspect class or burdens the 4 exercise of a fundamental right. 5 Improvement Dist., 665 F.3d 1128, 1141 (9th Cir. 2011) (quoting 6 United States v. Hancock, 231 F.3d 557, 565 (9th Cir. 2000)). 7 Laws are subject to intermediate scrutiny when they discriminate 8 based on certain other suspect classifications, such as gender. 9 Kahawaiolaa v. Norton, 386 Honolulu Weekly, Inc. v. Harris, The Court will apply strict Wright v. Incline Village Gen. F.3d 1271, 1277 (9th Cir. 2004) 10 (citing Miss. Univ. for Women v. Hogan, 458 U.S. 718, 723-24, 102 11 S. Ct. 3331, 73 L. Ed. 2d 1090 (1982)). 12 does 13 fundamental right, [the courts] apply rational basis review and 14 simply 15 legitimate 16 (internal quotation marks omitted). not concern ask whether a suspect the government or ordinance However, if a state law semi-suspect is interest. class or rationally-related Harris, 298 F.3d at to a a 1047 17 18 Here, Petitioner has not alleged discrimination based on his 19 membership in a protected class, see Norton, 386 F.3d at 1277 20 (listing 21 classifications), or that Penal Code § 22(b) impinges on the 22 exercise of a fundamental right. 23 privacy, marriage, voting, travel and freedom of association as 24 fundamental ). 25 rational basis review. 26 Protection 27 policy reason for the classification, (2) the legislative facts 28 on which the classification is apparently based rationally may race, Clause ancestry, Penal is Code alienage § and gender as suspect See id. (listing rights such as 22(b) is therefore subject to Under rational basis review, the Equal satisfied 29 if: (1) there is a plausible 1 have 2 decisionmaker, and (3) the relationship of the classification to 3 its 4 arbitrary or irrational. 5 (9th Cir. 2012) (quoting Nordlinger, 505 U.S. at 11) (internal 6 quotation marks omitted). 7 test. been goal considered is not so to be true attenuated as by to the render governmental the distinction Bowers v. Whitman, 671 F.3d 905, 917 Penal Code § 22(b) satisfies this 8 9 By withholding voluntary intoxication as a defense to 10 implied malice murder, California deters voluntary intoxication 11 and the reckless and violent behavior associated therewith. 12 Carlson, 200 Cal. App. 4th at 708; Timms, 151 Cal. App. 4th at 13 1302 14 underscoring the long-standing principle in California law that 15 voluntary intoxication is no excuse for crime ). 16 the Supreme Court characterized this type of deterrent effect as 17 considerable 18 consideration of voluntary intoxication in determining mens rea. 19 Egelhoff, 20 plurality, explained that [a] large number of crimes, especially 21 violent crimes, are committed by intoxicated offenders . . . . 22 Disallowing 23 effect 24 committed 25 irresponsible behavior while drunk. 26 specific deterrent, ensuring that those who prove incapable of 27 controlling violent impulses while voluntarily intoxicated go to 28 prison. (stating the law justification 518 of that U.S. at increasing in that the state, Id. at 49-50. for 49. consideration has a deterrent state Justice of rules Scalia, voluntary punishment and thereby effect prohibiting writing all deters . . . In Egelhoff, intoxication for See jury for the has unlawful the acts drunkenness or The rule also serves as a He also noted that such a rule comports 30 1 with and implements society s moral perception that one who has 2 voluntarily impaired his own faculties should be responsible for 3 the 4 California s interest in withholding the voluntary intoxication 5 defense and Penal Code § 22(b) s direct relationship to this 6 interest, the California Court of Appeal s determination that 7 Penal Code § 22(b) does not run afoul of the Equal Protection 8 Clause was neither contrary to, nor an unreasonable application 9 of, clearly established federal law. consequences. Id. at 50. Given the legitimacy of 10 11 However, even if Petitioner could show that Penal Code 12 § 22(b) violated the Equal Protection (or Due Process) Clause, 13 again, the Court finds that he cannot satisfy the Brecht standard 14 for prejudice. 15 minimal 16 testified that she thought Petitioner was drunk because of how he 17 walked, (RT 1593-94), and the CI told the police that he believed 18 Petitioner was belligerent because he was intoxicated. 19 Petitioner did not present any direct evidence that he had in 20 fact consumed alcohol prior to attacking Cervantes or that his 21 judgment was impaired by alcohol at the time of the homicide. 22 However, 23 Petitioner purposefully followed and attacked Cervantes with a 24 deadly weapon with the intent to endanger Cervantes life. 25 \\ 26 \\ 27 \\ 28 \\ See 507 U.S. at 637. evidence as of discussed Petitioner s above, there 31 At trial, there was only intoxication. was ample Martinez (CT 122). evidence that 1 Consequently, barring the jury from entertaining the minimal 2 evidence of Petitioner s intoxication for purposes other than 3 assessing whether he acted with deliberation and premeditation 4 did not have a substantial and injurious effect on the jury s 5 verdict. 6 claim. Petitioner is not entitled to habeas relief on this 7 8 VII. 9 CONCLUSION 10 11 For the foregoing reasons, IT IS ORDERED that Judgment be 12 entered 13 dismissing this action with prejudice. denying the Petition for Writ of Habeas Corpus and 14 15 16 DATED: December 27, 2013 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 32

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