Samantha E Rothwell v. J Cavazos, No. 8:2011cv01046 - Document 11 (C.D. Cal. 2011)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal; IT IS ORDERED that: (1) the Petition is DENIED; and (2) Judgment shall be entered dismissing this action with prejudice. See order for details. (jy)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SAMANTHA E. ROTHWELL, 12 Petitioner, 13 14 v. LYDIA C. HENSE, Acting Warden, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) NO. SACV 11-01046 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 On July 13, 2011, Samantha E. Rothwell ( Petitioner ), a California 22 state prisoner proceeding pro se, filed a Petition for Writ of Habeas 23 Corpus by a Person in State Custody (the Petition ) pursuant to 28 24 U.S.C. § 2254. On August 12, 2011, Respondent1 filed an Answer to the 25 Petition Answer ), (the as well as a memorandum of points and 26 27 1 Lydia C. Hense, Acting Warden for the Central California Women s 28 Facility, where Petitioner is currently incarcerated, is substituted as the proper Respondent. See Fed. R. Civ. P. 25(d). 1 authorities in support of the Answer (the Answer Memo ). Respondent 2 lodged eight documents from Petitioner s state proceedings, including 3 a two-volume copy of the Clerk s Transcript ( CT ), a one-volume copy 4 of the Clerk s Supplemental Transcript ( CST ), and a seven-volume copy 5 of the Reporter s Transcript ( RT ). 6 jurisdiction of the undersigned United States Magistrate Judge pursuant 7 to 28 U.S.C. § 636(c). 8 is DENIED and this action is DISMISSED WITH PREJUDICE. The parties have consented to the For the reasons discussed below, the Petition 9 10 II. 11 PRIOR PROCEEDINGS 12 13 On April 16, 2008, a jury in the Orange County Superior Court 14 convicted Petitioner of second degree murder in violation of California 15 Penal Code ( Penal Code ) section 187(a). 16 found true the allegation that Petitioner personally used a deadly 17 weapon pursuant to Penal Code section 12022(b)(1). 18 June 13, 2008, the trial court sentenced Petitioner to an aggregate 19 indeterminate term of sixteen years to life in state prison. 20 357). (2 CT 282). The jury also (2 CT 283). On (2 CT 21 22 On April 22, 2010, the California Court of Appeal affirmed the 23 trial court s judgment with a reasoned opinion. (Lodgment 5, 24 Unpublished Opinion of the California Court of Appeal ( Lodgment 5 ) at 25 1, 2, 13). 26 California Supreme Court, which was denied on June 30, 2010, without 27 comment or citation to authority. 28 ( Lodgment 6 ); Lodgment 7, California Supreme Court Order ( Lodgment Petitioner subsequently filed a petition for review in the (Lodgment 6, Petition for Review 2 1 7 )). Petitioner did not seek collateral review in the state courts. 2 On July 13, 2011, Petitioner filed the instant Petition. 3 4 III. 5 FACTUAL BACKGROUND 6 7 The following facts, taken from the California Court of Appeal s 8 unpublished decision, have not been rebutted with clear and convincing 9 evidence and must, therefore, be presumed correct. 10 28 U.S.C. § 2254(e)(1). 11 12 One afternoon, a group of 10 to 15 friends rented a room 13 at the Hotel Huntington Beach to celebrate Nicole Alcala s 14 birthday. [Petitioner], one of the invitees, and her friend, 15 Kristina Torres, arrived around 8:30 p.m. 16 and his girlfriend, Jennifer Mulcahy, were at the party when 17 [Petitioner] and Torres arrived. 18 brother Ryan Soto. 19 at the party. Marc Bellatiere Mulcahy also invited her Eighteen-year-old Walter Rivas was also 20 Sometime in the evening, the group went to the beach to 21 22 meet with friends. 23 When 24 recalled that [Petitioner] didn t seem like herself. While 25 some people started getting ready for bed, Bellatiere went 26 outside to the fifth floor stairwell landing to smoke a 27 cigarette. 28 him. the group [Petitioner] chose to stay at the hotel. returned sometime after midnight, Soto Mulcahy, Torres, [Petitioner], and Rivas joined For the first five to 10 minutes, the mood was fine. 3 1 However, the atmosphere changed when Rivas began talking 2 about seeing God the last time he was in Huntington Beach. 3 [Petitioner] became upset and ordered Rivas to not talk 4 about God. 5 was taken aback by [Petitioner s] response and asked her why. 6 She replied, It s because I m the devil, and demanded Rivas 7 stop talking about it. 8 whatever I want. 9 stop talking, shut up, I ll stab you. No one in the group 10 took [Petitioner s] threat seriously. Rivas said jokingly, 11 If you are going to do it, do it, and continued to talk 12 about God. 13 aggressive moves toward [Petitioner], and made no physical 14 contact with her. I don t like hearing about that stuff. Rivas Rivas responded, I ll talk about [Petitioner] threatened, If you don t Rivas was not threatening, did not make any 15 16 [Petitioner] walked to the hotel room and flung the door 17 open. 18 stayed on the landing talking with Torres. When [Petitioner] 19 and Mulcahy entered the hotel room, it was dark and everyone 20 was sleeping. 21 her belongings were located and began digging through her 22 purse while saying, Fuck this guy . . . he can t be talking 23 to me like this. 24 calm her down, but [Petitioner] pulled away and left the 25 room. Mulcahy followed and tried to calm her down. Rivas [Petitioner] went to the side of the bed where Mulcahy tried to grab [Petitioner] and 26 27 [Petitioner] 28 straight for Rivas. returned to the stairwell and headed [Petitioner] swung her closed fist 4 1 toward Rivas s neck. Rivas was substantially taller than 2 [Petitioner] and struggled against her, but she stabbed him 3 in the jugular vein and in the back. 4 her arm away, Rivas was bleeding profusely and said, That 5 bitch fucking stabbed me. That bitch fucking stabbed me. 6 Bellatiere and Torres walked Rivas back to the hotel room 7 where they had him lay on the bathroom floor. When [Petitioner] took 8 9 [Petitioner] returned to the room and quickly gathered 10 her things to leave. Soto asked, Why did you do it? What 11 happened? and [Petitioner] responded, It wasn t a big 12 fucking deal, get over it, or Get the fuck over it. Fuck 13 you, and left the room passing a bloody Rivas. 14 left bloody fingerprints on the stairwell railing as she 15 left. [Petitioner] Someone called 911. 16 17 Bellatiere, Mulcahy, and Soto left the hotel scared and 18 panicked while Alcala and Torres tended to Rivas. The group 19 drove down the street and parked. 20 was the only one in the group who was over 21 years old and 21 had brought alcohol for the party, which included underage 22 party guests. Bellatiere, Mulcahy, and Soto called Mulchay s 23 mother and asked what they should do. 24 conversation, about one hour later, Bellatiere, Mulcahy, and 25 Soto returned to the hotel. 26 police who were at the hotel. Bellatiere left because he As a result of that Bellatiere and Mulcahy spoke to 27 28 5 1 Rivas died at the hospital. An autopsy determined he 2 bled to death as a result of an L-shaped stab wound in the 3 left jugular vein of the neck. Rivas had a blood alcohol 4 level of .09% before his death. He would have needed four 5 and one-half to five drinks to reach that level. 6 7 Police officers arrested [Petitioner] the next day at her 8 apartment in Valencia. Officer Michael Reilly executed a 9 search warrant and found her purse and backpack. In a small 10 pocket of her backpack, he found a folding knife with dried 11 blood on it. 12 tennis shoes, and pants. Inside [Petitioner s] purse, Reilly 13 found a McDonald s receipt from earlier that morning at 2:39 14 a.m. for a double cheeseburger and chicken nuggets. Dried blood was also found on her backpack, 15 16 Later that day, officers interviewed [Petitioner] at the 17 Huntington Beach Police Department. After waiving her 18 Miranda[FN2] rights, [Petitioner] told police she consumed 19 three beers and two or three shots of alcohol and vomited 20 while the others were at the beach. 21 that while having a cigarette on the fire escape, she had a 22 conversation with Mulcahy about how she used to cut herself, 23 which sparked an argument with Rivas. 24 said he found God in Huntington Beach, but said it did not 25 make her upset and she was joking when she said the devil 26 visited her. 27 yelled at her to stab him. 28 the hotel room and got her knife. [Petitioner] explained She recalled Rivas She explained Rivas had been drinking and In response, she walked back to 6 She denied saying she was 1 going to stab Rivas. When she went back to the stairwell, 2 [Petitioner] alleged Rivas was taunting her to stab me like 3 that. [Petitioner] explained the two were wrestling and she 4 was trying to get away when she swung three times at his 5 stomach and back and inadvertently stabbed him in the neck. 6 [Petitioner] explained Torres was screaming at her to stop, 7 but she was drunk and pissed off because Rivas had yelled 8 at her and was grabbing her by the arms. 9 that after she stabbed Rivas, he said, You got me, and She told police 10 [She] killed him. 11 laying on the floor bleeding profusely but gathered her 12 belongings and left the hotel room because she was terrified 13 and realized he might die. 14 tell everybody to go to hell to Mulcahy s friend Marshall 15 who had followed her down the stairs. [Petitioner] explained 16 that when she left the hotel she drove to McDonald s and 17 purchased 18 [Petitioner] explained she then went home and waited for the 19 police to come and arrest her. a [Petitioner] admitted seeing Rivas double [Petitioner] recalled saying, cheeseburger and chicken nuggets. 20 [FN2] 21 Miranda v. Arizona (1966) 384 U.S. 436. 22 During the interview, [Petitioner] at times explained 23 24 she was really drunk during the incident. 25 denied feeling buzzed, explaining she could see straight 26 and was not falling down drunk. 27 a 28 [Petitioner] little bit and said takes she She also admitted she drinks medical takes 7 However, she also marijuana Lexapro for everyday. anxiety and 1 depression and that she had taken her medication the night of 2 the 3 problems and when her father died two years ago it kinda 4 pushed her over the edge. 5 Alex Montes in the arm approximately a year and one-half 6 before when they were drunk and playing around. [Petitioner] 7 explained she was not mad at Montes, but he had said you 8 won t [stab me], so she did. 9 similarities about the two incidents with Rivas and Montes 10 incident. [Petitioner] told police she has anger She admitted to stabbing a friend [Petitioner] agreed there were because each man had dared her to stab him. 11 12 [Petitioner] cried while she told police she did not 13 mean to kill Rivas. When she heard about Rivas s death she 14 felt sick and felt bad for his family. 15 not know what made her do it and admitted she is not right. [Petitioner] did 16 17 An indictment charged [Petitioner] with murder in 18 violation of Penal Code section 187, subdivision (a).[FN3] The 19 indictment alleged she personally used a knife, a dangerous 20 and deadly weapon, in the commission of the crime, pursuant 21 to section 12022, subdivision (b)(1). 22 23 [FN3] 24 Code. All further statutory references are to the Penal 25 26 At trial, the prosecutor offered Montes s testimony. 27 Montes testified he was a good friend of [Petitioner], had 28 known her for three years, and would see her everyday. 8 1 Montes explained a conversation he had with [Petitioner] in 2 which she told him that she did not believe in God because 3 her father told her to say her prayers and when [Petitioner] 4 woke up in the morning, her father was dead. 5 [Petitioner] would get upset and very emotional if the topic 6 of God was discussed. 7 bring God up in my house again. I don t believe it. 8 her 9 [Petitioner] pick up a weapon or heard her say she would stab anger about He testified He recalled she would say, Don t ever any discussion of God, he Despite never saw 10 someone for talking about God. Montes recalled a night when 11 he and [Petitioner] were playing around and [Petitioner] 12 said, if you make me mad enough I ll stab you. 13 [Petitioner] seriously, Montes explained he said jokingly, 14 you won t stab me and stuck his arm out. 15 pushed the knife into his arm, drawing blood. 16 the next day, and Montes still considers her a close friend. Not taking In response, she She apologized 17 18 Mulcahy also testified for the prosecution. Mulcahy was 19 a friend of [Petitioner] from high school and stayed in touch 20 weekly. 21 when she entered the party. 22 time 23 [Petitioner] was not religious but was also not an atheist. 24 She also knew [Petitioner] carried a knife for protection and 25 could get very angry. 26 throughout the night. Mulcahy testified [Petitioner] appeared to be fine Rivas and She explained it was the first [Petitioner] had met. She believed Mulcahy testified everyone drank 27 28 9 1 The prosecutor also offered the testimony of a forensic 2 scientist, Annette McCall. 3 gathered 4 Rivas s DNA revealed Rivas could not be eliminated as a 5 source. 6 [Petitioner s] backpack and knife compared with known samples 7 of Rivas s DNA revealed Rivas could not be eliminated as a 8 source. from the scene McCall testified blood samples compared with known samples of She also testified blood samples gathered from 9 10 [Petitioner] offered Torres s testimony. Torres 11 explained she and [Petitioner] were best friends. 12 said they probably smoked marijuana before going to the 13 hotel and she saw [Petitioner] smoking marijuana throughout 14 the night. 15 on his face. 16 were talking about religion on the landing and Rivas said he 17 saw God on the beach. 18 Torres explained Rivas was calm and [Petitioner] was yelling 19 and 20 [Petitioner] returned, it appeared as though she was dancing 21 with 22 confrontational and Rivas was trying to push [Petitioner] 23 away. 24 blood pouring from Rivas s neck but did not think he would 25 die. Torres helped Rivas until the paramedics arrived. She 26 remembered Rivas saying, Tell my mother I love her. She 27 stated [Petitioner] gathered her belongings and left the 28 hotel room. then Torres Torres described Rivas as always having a smile According to Torres, Rivas and [Petitioner] left Rivas. [Petitioner] said, I m the devil. briefly. She Torres eventually recalled realized Torres testified she never saw a knife. that it when looked She saw the Torres thought she heard [Petitioner] say upon 10 1 her departure, It s no big deal, fucking deal with it. 2 Torres 3 argumentative with [Petitioner] that night or in the past. 4 However, 5 confrontational whenever the subject of God comes up. Torres 6 also explained that if someone tells [Petitioner] not to do 7 something, she will do it. 8 [Petitioner] to do something, she will. Torres testified she 9 witnessed the stabbing of Montes by [Petitioner], which was said Rivas Torres had not been explained confrontational [Petitioner] or becomes Furthermore, if someone dares 10 the result of a dare. Torres also testified [Petitioner] 11 goes from zero to maniac . . . if you push her button. 12 13 Torres admitted lying to the police to protect 14 [Petitioner]. She tried to protect [Petitioner] because she 15 knew what [Petitioner] did was wrong and it was no accident. 16 Torres 17 [Petitioner s] boyfriend, and told him that [Petitioner] had 18 stabbed someone. 19 longer protect [Petitioner] and typed a statement to police 20 that she both faxed and hand delivered. 21 she explained [Petitioner] had stabbed Rivas. 22 reported [Petitioner] said to Rivas, Oh yeah, oh, you don t 23 think I won t. You think I won t. explained she called Christian Robinson, Two days later, Torres felt she could no In the statement, She also 24 25 The trial court instructed the jury on first degree 26 murder and second degree murder both on the implied malice 27 and no premeditation theories and involuntary manslaughter. 28 [Petitioner s] counsel requested 11 CALCRIM No. 3426, the 1 voluntary intoxication instruction. 2 based on [Petitioner s] statement she was not buzzed. 3 trial court expressed a preference for CALCRIM No. 625, a 4 voluntary intoxication instruction that pertains directly to 5 homicide. 6 modified to add malice aforethought, which includes implied 7 malice. 8 provided: 9 defendant s voluntary intoxication only in a limited way. You 10 may consider that evidence only in deciding whether the 11 defendant acted with an intent to kill, or the defendant 12 acted with deliberation and premeditation, or acted with 13 malice aforethought. [¶] A person is voluntarily intoxicated 14 if he or she becomes intoxicated by willingly using any 15 intoxicating drug, drink, or other substance knowing that it 16 could produce an intoxicating effect, or willingly assuming 17 the risk of that effect. [¶] You may not consider evidence of 18 voluntary intoxication for any other purpose. 19 declined to instruct the jury with the Special Instruction. 20 Instead, the court instructed the jury with CALCRIM No. 625 21 without the or acted with malice aforethought language. Defense counsel The prosecutor objected requested CALCRIM No. The 625 be The requested instruction (the Special Instruction) You may consider evidence, if any, of the The court 22 23 The jury convicted [Petitioner] of second degree murder 24 and found true the allegations she personally used a deadly 25 or dangerous weapon, a knife. 26 to prison for a total term of 16 years to life. The trial court sentenced her 27 28 (Lodgment 5 at 2-8). 12 1 IV. 2 PETITIONER S CLAIM 3 4 Petitioner s sole claim for relief is that the trial court erred 5 by not allow[ing] jury instruction regarding the consideration of 6 voluntary intoxication when determining whether Petitioner had acted 7 with conscious disregard for human life. (Petition at 5). 8 9 V. 10 STANDARD OF REVIEW 11 12 The Antiterrorism and Effective Death Penalty Act of 1996 13 ( AEDPA ), which effected amendments to the federal habeas statutes, 14 applies to the instant Petition because Petitioner filed it after 15 AEDPA s effective date of April 24, 1996. 16 320, 336, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997). 17 [AEDPA] bars relitigation of any claim adjudicated on the merits in 18 state court, subject only to the exceptions in §§ 2254(d)(1) and 19 (d)(2). 20 L. Ed. 2d 624 (2011). 21 a federal court may only grant habeas relief if the state court 22 adjudication was contrary to or an unreasonable application of clearly 23 established federal law or was based upon an unreasonable determination 24 of the facts. Lindh v. Murphy, 521 U.S. By its terms Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 784, 178 Pursuant to 28 U.S.C. § 2254(d)(1) and (d)(2), 25 26 AEDPA limits the scope of clearly established federal law to the 27 holdings of the United States Supreme Court as of the time of the state 28 court decision under review. Lockyer v. Andrade, 538 U.S. 63, 71, 123 13 1 S. Ct. 1166, 155 L. Ed. 2d 144 (2003). Circuit precedent is relevant 2 under AEDPA when it illuminates whether a state court unreasonably 3 applied a general legal standard announced by the Supreme Court. 4 Crater v. Galaza, 491 F.3d 1119, 1126 n.8 (9th Cir. 2007). See 5 6 To the extent that Petitioner s federal habeas claims were not 7 addressed in any reasoned state court decision, however, this Court 8 conducts an independent review of the record. See Pirtle v. Morgan, 313 9 F.3d 1160, 1167 (9th Cir. 2002). In such circumstances, the habeas 10 petitioner s burden still must be met by showing there was no reasonable 11 basis for the state court to deny relief. Richter, 131 S. Ct. at 784. 12 13 Here, Petitioner raised her claim before the California Court of 14 Appeal on direct review. (Lodgment 2, Appellant s Opening Brief 15 ( Lodgment 2 ) at 17-45). 16 claim by specifically citing the Federal Constitution. 17 The California Court of Appeal denied Petitioner s claim on the merits 18 and expressly addressed her claim under the Federal Constitution. 19 (Lodgment 5 at 8-13). 20 California Supreme Court in her petition for review. 21 32). 22 specifically citing the Federal Constitution. 23 California Supreme Court denied review without comment or citation to 24 authority. Petitioner invoked the federal nature of her (Id. at 17). Petitioner next raised her claim before the (Lodgment 6 at 4- Petitioner again invoked the federal nature of her claim by (Id. at 4). The (Lodgment 7). 25 26 The Ninth Circuit has held that the California Supreme Court s 27 silent denial 28 requirement. of a petition for review satisfies the exhaustion See Williams v. Cavazos, 646 F.3d 626, 637 n.5 (9th Cir. 14 1 2011). However, the Ninth Circuit explained that the silent denial of 2 a petition for review is not a decision on the merits and that federal 3 habeas courts must look through the silent denial to the last reasoned 4 state court decision. 5 decision here is the opinion of the California Court of Appeal. Because 6 the California Court of Appeal expressly addressed Petitioner s claim 7 under the Federal Constitution, (Lodgment 5 at 8-13), the claim has been 8 adjudicated on the merits within the meaning of 28 U.S.C. section 9 2254(d).2 Id. at 636. The last reasoned state court The deferential standard of review contained in sections 10 2254(d)(1) and (d)(2) therefore applies to Petitioner s claim. Richter, 11 131 S. Ct. at 784-85. 12 13 VI. 14 DISCUSSION 15 16 A. Petitioner Is Not Entitled To Habeas Relief On Her Instructional Error Claim 17 18 19 Petitioner contends the trial court violated her constitutional 20 rights by failing to instruct the jury regarding the consideration of 21 voluntary intoxication when determining whether Petitioner had acted 22 with 23 Specifically, conscious disregard Petitioner for argues human that life. the trial (Petition court at 5). should have 24 25 2 Because the court of appeal adjudicated on the merits 26 Petitioner s claim, this Court must decide Petitioner s claim based upon the state court evidence. Cullen v. Pinholster, ___ U.S. ___, 131 S. 27 Ct. 1388, 1400, 179 L. Ed. 2d 557 (2011) ( [E]vidence introduced in federal court has no bearing on § 2254(d)(1) review. ). Petitioner has 28 not demonstrated that she is entitled to an evidentiary hearing. 15 1 instructed the jury with a modified version of CALCRIM No. 625, which 2 would have allowed the jury to consider her voluntary intoxication in 3 order to negate the formation of malice aforethought necessary for 4 implied malice murder. (Lodgment 6 at 7-8).3 Petitioner further argues 5 that Penal Code section 22(b), which prohibits evidence of voluntary 6 intoxication to negate implied malice murder, is unconstitutional. (Id. 7 at 9-32). There is no merit to this claim. 8 9 Jury instructions are generally matters of state law for which 10 federal habeas relief is not available, except insofar as an 11 instructional error implicates the fundamental fairness of a trial in 12 violation of due process or infringes upon an enumerated federal 13 constitutional right. See Waddington v. Sarausad, 555 U.S. 179, 190 91, 14 129 S. Ct. 823, 172 L. Ed. 2d 532 (2009); Estelle v. McGuire, 502 U.S. 15 62, 71 72, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991) ( [T]he fact that 16 the instruction was allegedly incorrect under state law is not a basis 17 for habeas relief. ). 18 an instruction, the burden on the petitioner is especially heavy. 19 Henderson v. Kibbe, 431 U.S. 145, 155, 97 S. Ct. 1730, 52 L. Ed. 2d 203 20 (1977) ( An omission, or an incomplete instruction, is less likely to 21 be prejudicial than a misstatement of the law. ). 22 the omission of such an instruction may be evaluated by comparison with 23 the instructions that were given. 24 occurred in instructing the jury, habeas relief will be granted only if Where the alleged error is the failure to give The significance of Id. at 156. Even if an error 25 3 The Petition contains only two sentences of explanation in support of Ground One. (Petition at 5). However, Petitioner attached 27 to the Petition a copy of his petition for review before the California Supreme Court. Thus, the Court refers to the petition for review for 28 further guidance on Petitioner s claim. 26 16 1 the petitioner can establish that the error had a substantial and 2 injurious 3 Hedgpeth v. Pulido, 555 U.S. 57, 61-62, 129 S. Ct. 530, 172 L. Ed. 2d 4 388 (2008) (per curiam) (citing Brecht v. Abrahamson, 507 U.S. 619, 623, 5 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993)). effect or influence in determining the jury s verdict. 6 7 8 On direct review, the California Court of Appeal rejected Petitioner s instructional error as follows: 9 10 Due Process and Fair Trial 11 12 [Petitioner] contends her federal constitutional rights 13 to due process and a fair trial were violated when the trial 14 court, relying on section 22, refused to instruct the jury it 15 may consider her voluntary intoxication to negate implied 16 malice. 17 (b), is unconstitutional because it was designed to keep out 18 relevant, exculpatory evidence and is not a redefinition of 19 the mental state element of the offense. Specifically, she argues section 22, subdivision We disagree. 20 21 Section 22, most recently amended in 1995, provides: 22 (a) No act committed by a person while in a state of 23 voluntary intoxication is less criminal by reason of his or 24 her having been in that condition. 25 intoxication shall not be admitted to negate the capacity to 26 form any mental states for the crimes charged, including, but 27 not limited to, purpose, intent, knowledge, premeditation, 28 deliberation, or malice aforethought, with which the accused 17 Evidence of voluntary 1 committed the act. [¶] (b) Evidence of voluntary intoxication 2 is admissible solely on the issue of whether or not the 3 defendant actually formed a required specific intent, or, 4 when charged with murder, whether the defendant premeditated, 5 deliberated, or harbored express malice aforethought. [¶] (c) 6 Voluntary 7 injection, or taking by any other means of any intoxicating 8 liquor, drug, or other substance. intoxication includes the voluntary ingestion, 9 10 The Legislature s 1995 amendment to section 22 inserted 11 the word express before the word malice in subdivision 12 (b). 13 Whitfield (1994) 7 Cal.4th 437 (Whitfield). 14 the California Supreme Court held evidence of a defendant s 15 voluntary intoxication was admissible to negate implied as 16 well as express malice. The 1995 amendment was in direct response to People v. In Whitfield, (Id. at 451.) 17 18 The history of the 1995 amendment to section 22 was most 19 recently addressed in People v. Turk (2008) 164 Cal.App.4th 20 1361 (Turk). 21 history of the amendment unequivocally indicates that the 22 Legislature intended to legislatively supersede Whitfield, 23 and 24 implied malice in cases in which a defendant is charged with 25 murder. make In Turk, the court concluded, The legislative voluntary intoxication inadmissible to negate (Turk, supra, 164 Cal.App.4th at pp. 1374-1375.) 26 27 [Petitioner] argues section 22 is unconstitutional after 28 the 1995 amendment because it created a rule that keeps out 18 1 relevant exculpatory evidence by in effect precluding the 2 jury 3 conscious disregard for human life element of implied 4 malice second degree murder. [Petitioner] relies on Montana 5 v. Egelhoff 6 Ginsburg s concurring opinion, to support her contention. from considering (1996) evidence 518 that U.S. 37 could disprove (Egelhoff), and the Justice 7 In 8 9 Egelhoff, a plurality of the court upheld the constitutionality of a Montana statute providing voluntary 10 intoxication may not be taken into consideration in 11 determining the existence of a mental state which is an 12 element of [the] offense. 13 57.) 14 the right to have a jury consider intoxication evidence was 15 not a fundamental principle of justice. 16 Justice Ginsberg drew a distinction between rules designed to 17 keep out relevant, exculpatory evidence that might negate an 18 essential element of a crime and violate due process, and 19 rules that redefine the mental state element of the offense. 20 (Ibid.) 21 redefinition of the offense s required mental state and 22 therefore excluding evidence of voluntary intoxication was 23 constitutional. (Egelhoff, supra, 518 U.S. at p. The plurality found no due process violation because In concurrence, Justice Ginsburg viewed the Montana statute as a (Id. at pp. 57-59.) 24 25 When a fragmented Court decides a case and no single 26 rationale explaining the result enjoys the assent of five 27 Justices, the holding of the Court may be viewed as that 28 position taken by those Members 19 who concurred in the 1 judgments on the narrowest grounds. . . . 2 States 3 Ginsburg s concurrence controls, as [Petitioner] urges this 4 court to do, we nonetheless conclude section 22 does not 5 violate due process. (1977) 430 U.S. 188, 193.) (Marks v. United Assuming Justice 6 7 In People v. Timms (2007) 151 Cal.App.4th 1292, 1300- 8 1301 (Timms), the court addressed the identical issue we have 9 here. The court explained section 22 did not violate a 10 defendant s 11 subdivision (b), did not belong to the prohibited category 12 of evidentiary rules designed to exclude relevant exculpatory 13 evidence. 14 court reasoned, The absence of implied malice from the 15 exceptions listed in subdivision (b) is itself a policy 16 statement that murder under an implied malice theory comes 17 within 18 voluntary intoxication can serve no defensive purpose. In 19 other words, section 22, subdivision (b)[,] is not merely an 20 evidentiary prescription ; rather, it embodies a legislative 21 judgment regarding the circumstances under which individuals 22 may 23 [Citation.] In short, voluntary intoxication is irrelevant to 24 proof of the mental state of implied malice or conscious 25 disregard. Therefore, it does not lessen the prosecution s 26 burden of proof or prevent a defendant from presenting all 27 relevant defensive evidence. be due process rights because section (Timms, supra, 151 Cal.App.4th at p. 1300.) the held general rule criminally of subdivision responsible 28 20 for (a) their such 22, The that actions. (Id. at pp. 1300-1301) 1 2 The Timms court found illuminating the fact section 22 3 does not appear in the Evidence Code, it appears in the Penal 4 Code. (Timms, supra, 151 Cal.App.4th at p. 1300.) 5 Additionally, the court acknowledged the California Supreme 6 Court s holding in People v. Atkins (2001) 25 Cal.4th 76, 7 which rejected a due process challenge to section 22 in the 8 context of the general intent crime of arson. (Timms, supra, 9 151 Cal.App.4th at p. 1300.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 With respect to Justice Ginsburg s concurrence, the court stated that assuming the concurrence controls, Justice Ginsberg also stated: Defining mens rea to eliminate the exculpatory value of voluntary intoxication does not offend a fundamental principle of justice, given the lengthy common-law tradition, and the adherence of a significant minority of the States to that position today. [Citations.] [Citation.] Under this rational, permissibly could preclude the consideration 1995 amendment of voluntary intoxication to negate implied malice and the notion of conscious disregard. Like the Montana statute, the California Legislature could also exclude evidence of voluntary intoxication in determination of the requisite mental state. (Timms, supra, 151 Cal.App.4th p. 1300.) Therefore, the court concluded section 22 did not infringe [Petitioner s] constitutional rights. 27 28 21 1 [Petitioner] also argues the trial court s application 2 of 3 process 4 defendant s intoxication is undeniably relevant evidence on 5 the issue of whether he or she consciously disregarded a risk 6 to 7 Cal.App.4th 1107 (Martin), instructive. section 22 human and violated a life. fair We her trial find constitutional because, People [t]he v. right to level Martin due of (2000) a 78 8 9 In Martin, supra, 78 Cal.App.4th at page 1113, the court 10 rejected this constitutional challenge to section 22. 11 court explained, Section 22 states the basic principle of 12 law recognized in California that a criminal act is not 13 rendered less criminal because it is committed by a person in 14 a state of voluntary intoxication. The court stated section 15 22 is closely analogous to [the Legislature s] abrogation of 16 the defense of diminished capacity . . . . The 1995 amendment 17 to section 22 results from a legislative determination that, 18 for 19 intoxication to negate culpability shall be strictly limited. 20 We find nothing in the enactment that deprives a defendant of 21 the ability to present a defense or relieves the People of 22 their burden to prove every element of the crime charged 23 beyond a reasonable doubt. 24 at p. 1117.) reasons of public policy, evidence of The voluntary (Martin, supra, 78 Cal.App.4th 25 26 We find the courts reasoning in Timms, supra, 151 27 Cal.App.4th 1292, and Martin, supra, 78 Cal.App.4th 1107, 28 22 1 persuasive. Thus, we conclude the trial court s refusal to 2 instruct the jury with [Petitioner s] Special Instruction did 3 not violate her constitutional rights. 4 properly instructed the jury with CALCRIM No. 625. The trial court 5 6 (Lodgment 5 at 8-12). 7 8 Here, Petitioner cannot meet her especially heavy burden of 9 proving that the trial court s failure to instruct the jury with her 10 modified version of CALCRIM No. 625 so infected the entire trial with 11 unfairness that it violated due process. 12 As an initial matter, Petitioner s requested instruction was barred by 13 Penal Code section 22(b) and therefore could not have been given. Penal 14 Code section 22(b) states that [e]vidence of voluntary intoxication is 15 admissible solely on the issue of whether or not the defendant actually 16 formed a required specific intent, or, when charged with murder, whether 17 the defendant premeditated, deliberated, or harbored express malice 18 aforethought. 19 requested modified version of CALCRIM No. 625 would have violated Penal 20 Code section 22(b) by allowing the jury to consider Petitioner s 21 voluntary intoxication in order to negate the formation of malice 22 aforethought necessary for implied malice murder. (7 RT 715-16). Thus, 23 the 24 instruction. trial court Henderson, 431 U.S. at 155. Penal Code § 22(b) (emphasis added). properly declined to give Petitioner s Petitioner s requested 25 Moreover, Petitioner cannot show that the trial court s refusal to 26 27 give her requested instruction violated 28 instructions that were given accurately reflected California law, which 23 due process because the 1 is similar to other laws upheld by the United States Supreme Court. See 2 Henderson, 431 U.S. at 156 ( The significance of the omission of such 3 an instruction may be evaluated by comparison with the instructions that 4 were given. ); see also Montana v. Egelhoff, 518 U.S. 37, 51-56, 116 S. 5 Ct. 2013, 135 L. Ed. 2d 361 (1996) (plurality) (upholding Montana law 6 that prohibited the introduction of voluntary intoxication evidence to 7 negate the existence of a mental state). 8 instructed the jury pursuant to CALCRIM No. 625 as follows: Indeed, the trial court 9 You may consider evidence, if any, of the defendant s 10 11 voluntary intoxication only in a limited way. You may 12 consider that evidence only in deciding whether the defendant 13 acted with an intent to kill, or the defendant acted with 14 deliberation and premeditation. 15 16 A person is voluntarily intoxicated if he or she becomes 17 intoxicated by willingly using any intoxicating drug, drink, 18 or 19 intoxicating effect, or willingly assuming the risk of that 20 effect. other substance knowing that it could produce an 21 22 23 You may not consider evidence of voluntary intoxication for any other purpose. 24 25 (1 CT 273; 7 RT 767-68). This instruction accurately reflected 26 California law because it permitted the jury to consider evidence of 27 Petitioner s voluntary intoxication for the limited purpose of deciding 28 whether Petitioner acted with express malice. 24 See Penal Code § 22(b). 1 Petitioner essentially concedes that the trial court s instructions 2 were proper under California law and therefore argues that Penal Code 3 section 22(b) is unconstitutional. 4 requested] instruction could not be given here because under subdivision 5 (b) of Penal Code section 22 evidence of voluntary intoxication is not 6 admissible to negate implied malice murder. ). Specifically, Petitioner 7 argues that Penal Code section 22 is unconstitutional because it denies 8 a defendant due process, the right to present a defense and a jury 9 trial, and thus, the absence of instruction that the jury could consider 10 intoxication in determining [Petitioner s] mental state for second 11 degree murder violated [her] Sixth and Fourteenth Amendment rights. 12 (Id.). (Lodgment 6 at 8) ( [Petitioner s 13 In 14 Egelhoff, four justices of the Supreme Court upheld the 15 constitutionality of a Montana law that prohibited the introduction of 16 voluntary intoxication evidence to negate the existence of a mental 17 state. 18 Montana statute did not violate the Due Process Clause because it did 19 not lower the burden of proof, but instead simply made it easier for 20 the 21 reasonable doubt by excluding a significant line of evidence that 22 might refute mens rea. 23 that nothing in the Due Process Clause bars States from making changes 24 in their criminal law that have the effect of making it easier for the 25 prosecution to obtain convictions. Egelhoff, 518 U.S. at 51-56. State to meet the requirement Id. at 55. The plurality explained that the of proving mens rea beyond a The plurality further explained Id. 26 27 Justice Ginsburg concurred in the judgment of the plurality because 28 she agreed that the Montana law did not lower the burden of proof, but 25 1 instead redefined the substantive element of the offense under state 2 law. 3 ( Comprehended as a measure redefining mens rea, [the Montana law] 4 encounters no constitutional shoal. 5 defining the elements of criminal offenses . . . . ). In support of her 6 conclusion, Justice Ginsburg noted that the law d[id] not appear in the 7 portion of Montana s Code containing evidentiary rules (Title 26), the 8 expected placement of a provision regulating solely the admissibility 9 of evidence at trial[,] and instead appeared in the portion containing See Egelhoff, 518 U.S. Id. at 57. at 58 (Ginsburg, J., concurring) States enjoy wide latitude in 10 criminal offenses. Justice Ginsburg further noted that 11 state courts have upheld statutes similar to [the Montana law], not 12 simply as evidentiary rules, but as legislative redefinitions of the 13 mental-state element. Id. at 59. 14 15 Petitioner relies on Justice Ginsburg s concurrence to argue that 16 Penal Code section 22(b) violates the Due Process Clause by lowering the 17 burden of proof. 18 contends that Penal Code section 22(b) is not a redefinition of the 19 mental state element of the offense[,] but is instead, simply a rule 20 designed to keep out relevant, exculpatory evidence. 21 (internal quotation marks omitted). Contrary to Petitioner s argument, 22 however, the Court concludes that Penal Code section 22(b) is analogous 23 to the Montana law approved of by Justice Ginsburg and the plurality in 24 Egelhoff. As an initial matter, Penal Code section 22(b) appears in the 25 portion of California s code containing criminal offenses and not in the 26 portion containing evidentiary rules, which suggests that the statute 27 is more likely a substantive redefinition of the offense under state law 28 rather than merely an evidentiary rule. (Lodgment 6 at 12-27). 26 Specifically, Petitioner (Id. at 12) Egelhoff, 518 U.S. at 57 1 (Ginsburg, J., concurring) (relying on the location of the Montana 2 statute in the portion of the code containing criminal offenses). 3 4 Moreover, several California courts have upheld Penal Code section 5 22(b) as a legislative redefinition 6 Egelhoff, 518 U.S. at 59 (Ginsburg, J., concurring) (relying on state- 7 court rulings interpreting similar laws as substantive redefinitions of 8 the mental-state element). 9 People v. Timms, 151 Cal. App. 4th 1292, 60 Cal. Rptr. 3d 677 (2007), 10 held that Penal Code section 22(b) redefined the substantive mental- 11 state element and therefore was constitutional under Justice Ginsburg s 12 concurrence. 13 People v. Martin, 78 Cal. App. 4th 1107, 93 Cal. Rptr. 2d 433 (2000), 14 similarly held that Penal Code section 22(b) redefined the substantive 15 mental-state element and therefore was constitutional under the Egelhoff 16 plurality. 17 104 Cal. Rptr. 2d 738 (2001), the California Supreme Court held that 18 Penal Code section 22(b) does not violate due process under the Egelhoff 19 plurality. 20 section 22(b) is a legislative redefinition of the mental-state element 21 and therefore does not violate the Due Process Clause under either the 22 Egelhoff plurality or Justice Ginsburg s concurrence. See United States 23 v. Sayetsitty, 107 F.3d 1405, 1413 (9th Cir. 1997) ( We recognize that 24 [the defendant] has no Due Process right to a defense of voluntary 25 intoxication if the legislature chooses to exclude it. See Montana v. 26 Egelhoff, 135 L. Ed. 2d 361, 116 S. Ct. 2013 (1996). ). Id. at 1300. Id. at 1117. Id. at 93. of the mental-state element. First, the California Court of Appeal in Second, the California Court of Appeal in Finally, in People v. Atkins, 25 Cal. 4th 76, Thus, the Court concludes that Penal Code 27 28 27 1 Finally, even if the trial court s refusal to give Petitioner s 2 requested instruction violated due process, Petitioner is not entitled 3 to habeas relief because the error did not have a substantial and 4 injurious effect or influence in determining the jury s verdict.4 5 Hedgpeth, 555 U.S. at 61-62. 6 consider Petitioner s voluntary intoxication, it is unlikely such 7 consideration would have resulted in a different verdict. Indeed, even if the jury was allowed to 8 There was ample evidence in the record of voluntary intoxication, 9 10 as described above by the court of appeal. 11 However, despite this evidence of voluntary intoxication, Petitioner s 12 description of the murder to police provided compelling evidence that 13 she formed the intent to kill the victim. 14 Petitioner admitted that she stabbed the victim in the neck with her 15 pocketknife. (2 CT 367-68). Petitioner explained that the victim began 16 speaking to her about God, which did not upset her and instead caused 17 her to start laughing. 18 with the victim and responded that the devil had [v]isited [her]. 19 CT 406). 20 her, which upset her, and she started yelling back. 21 Petitioner told em, You need to go to hell[,] and then went to her (2 CT 405). See supra Part III. As an initial matter, Petitioner was messing around (2 Petitioner stated that eventually the victim began yelling at (2 CT 406-07). 22 23 24 25 26 27 28 4 In Hedgpeth, the Supreme Court explained that while there are some errors to which harmless-error analysis does not apply, they are the exception and not the rule. Hedgpeth, 555 U.S. at 61 (internal quotation marks and brackets omitted). The Court stated that harmlesserror analysis applies to instructional errors so long as the error at issue does not categorically vitiate all the jury s findings. Id. (internal quotation marks and brackets omitted). Specifically, the Court held that harmless-error analysis applies to an error arising in the context of multiple theories of guilt and to an omission or misstatement of an element of the offense. Id. 28 1 room to get her pocketknife. (2 CT 407). When Petitioner returned with 2 her pocketknife, she was just swinging, [and] tried to hit him in the 3 arm. 4 first for a total of [l]ike three swings. 5 swung her pocketknife, the victim was yelling at [her] and taunting and 6 provoking her. 7 Are you gonna stab me? (2 CT 408). Petitioner stated that she swung at his stomach at (2 CT 409). (Id.). As Petitioner The victim said, Are you gonna stab me? (Id.). 8 9 While Petitioner was swinging her pocketknife at the victim, her 10 friend Kristina Torres ( Torres ) yelled at Petitioner telling [her] 11 to stop. 12 stop. ). 13 stop, Petitioner responded, I don t know. Cause he was grabbing me and 14 I was mad. 15 she had anger issues, to which Petitioner responded, I guess so. 16 (Id.). 17 Petitioner then explained that after she had fatally stabbed the victim, 18 she picked up her things, told everyone to go to hell, and walked out 19 the door. 20 did not drive away at a high rate of speed and stopped at McDonald s on 21 her way home. (2 CT 409) ( She was just screaming at me, telling me to When asked by the police why she did not listen to Torres and (2 CT 410). The police then asked if Petitioner thought Petitioner further responded, I m pretty violent. (2 CT 411). (Id.). As Petitioner drove away from the hotel, she (2 CT 397-98). 22 23 As set forth above, Petitioner s own statements to police provided 24 compelling evidence that her voluntary intoxication did not negate the 25 formation of her intent to kill the victim. 26 after the victim upset her by yelling, she went to her room for the 27 purpose of getting her pocketknife. 28 returned with her pocketknife, the victim taunted and provoked her by 29 Petitioner explained that (2 CT 406-07). When Petitioner 1 saying, Are you gonna stab me? Are you gonna stab me? 2 Petitioner swung at the victim with her pocketknife for a total of 3 [l]ike three swings. 4 friend yelling at her to stop because she was mad. 5 Petitioner admitted to having anger issues and described herself as 6 pretty violent. (2 CT 410). Indeed, Petitioner s friend, Alex Montes 7 ( Montes ), testified that Petitioner stabbed him with a knife in 2005 8 after he taunted her saying, You won t stab me. 9 further testified that Petitioner did not believe in God and would get (2 CT 408). (2 CT 409). Petitioner did not listen to her (2 CT 410). (4 RT 402). (4 RT 418). Montes 10 upset anytime he brought up the subject. Finally, Torres 11 testified that Petitioner goes from zero to maniac right now if you 12 push her button, (5 RT 536), and explained that Petitioner will do 13 anything if someone dares her to or tell[s] her not to do something. 14 (5 RT 533). 15 would have reached a different verdict even if they had been allowed to 16 consider evidence of Petitioner s voluntary intoxication. Thus, the Court concludes that it is unlikely the jury 17 18 In sum, Petitioner s instructional error claim fails because Penal 19 Code section 22(b) barred Petitioner s requested instruction and Penal 20 Code section 22(b) does not violate the Due Process Clause. 21 concludes that Penal Code section 22(b) passes constitutional muster 22 under 23 Furthermore, even if the trial court s refusal to give Petitioner s 24 requested instruction violated due process, any error was harmless under 25 Hedgpeth and Brecht. 26 denial of this claim was not contrary to nor did it involve an 27 unreasonable 28 determined the Egelhoff by plurality Justice Ginsburg s concurrence. Thus, the Court concludes that the state courts application the and The Court United of clearly States 30 established Supreme Court, federal nor was law as it an 1 unreasonable determination of the facts. See 28 U.S.C. § 2254(d). 2 Accordingly, Petitioner is not entitled to habeas relief. 3 4 VII. 5 CONCLUSION 6 7 8 IT IS ORDERED that: (1) the Petition is DENIED; and (2) Judgment shall be entered dismissing this action with prejudice. 9 10 11 12 DATED: November 3, 2011 /S/ ______________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31

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