(HC) Gutierrez v. Swarthout et al, No. 1:2010cv01014 - Document 26 (E.D. Cal. 2012)

Court Description: FINDINGS And RECOMMENDATIONS To Deny Petitioner's Request For An Evidentiary Hearing (Doc. 24 ), Findings And Recommendations To Deny The Petition For Writ Of Habeas Corpus (Doc. 1 ), Direct The Entry Of Judgment For Respondent, And Decline To Issue A Certificate Of Appealability, Objections Deadline: Thirty (30) Days, signed by Magistrate Judge Sheila K. Oberto on 10/21/2012. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 11/26/2012.(Fahrney, E)

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(HC) Gutierrez v. Swarthout et al Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD LORENZO GUTIERREZ, 12 Petitioner, 13 14 15 16 v. GARY SWARTHOUT, Respondent. 17 18 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—01014-LJO-SKO-HC FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER’S REQUEST FOR AN EVIDENTIARY HEARING (DOC. 24) FINDINGS AND RECOMMENDATIONS TO DENY THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1), DIRECT THE ENTRY OF JUDGMENT FOR RESPONDENT, AND DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY OBJECTIONS DEADLINE: THIRTY (30) DAYS 19 20 Petitioner is a state prisoner proceeding pro se and in 21 forma pauperis with a petition for writ of habeas corpus pursuant 22 to 28 U.S.C. § 2254. 23 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 24 Rules 302 and 304. 25 which was filed on May 18, 2010, and transferred to the Fresno 26 Division of the Court on June 7, 2010. 27 Respondent filed an answer with supporting documentation. 28 Petitioner filed a traverse on April 25, 2011. The matter has been referred to the Pending before the Court is the petition, On February 7, 2011, 1 Dockets.Justia.com 1 I. 2 Because the petition was filed after April 24, 1996, the 3 effective date of the Antiterrorism and Effective Death Penalty Act 4 of 1996 (AEDPA), the AEDPA applies in this proceeding. 5 Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 6 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). Jurisdiction Lindh v. 7 A district court may entertain a petition for a writ of habeas 8 corpus by a person in custody pursuant to the judgment of a state 9 court only on the ground that the custody is in violation of the 10 Constitution, laws, or treaties of the United States. 11 §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 12 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 16 13 (2010) (per curiam). 14 proceedings resulting in his conviction, he suffered violations 15 of his Constitutional rights. 16 was rendered by the Stanislaus County Superior Court (SCSC), 17 which is located within the territorial jurisdiction of the 18 Eastern District of California. 19 2241(a), (d). 20 28 U.S.C. Petitioner claims that in the course of the Further, the challenged judgment 28 U.S.C. §§ 84(b), 2254(a), Respondent filed an answer on behalf of Respondent Gary 21 Swarthout, Warden of the California State Prison, Solano (CSP- 22 SOL), where Petitioner has been incarcerated at all pertinent 23 times during this proceeding. 24 respondent a person who has custody of the Petitioner within the 25 meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing 26 Section 2254 Cases in the District Courts (Habeas Rules). 27 Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 28 1994). Petitioner has thus named as a 2 See, 1 2 Accordingly, this Court has jurisdiction over the subject matter of this action and over Respondent Swarthout. 3 II. 4 At a jury trial, Petitioner was convicted of committing the Procedural Summary 5 wilful, deliberate, and premeditated murder of Eduardo Negrete in 6 violation of Cal. Pen. Code § 187 and using a knife in the 7 commission of the offense in violation of Cal. Pen. Code § 8 12022(b). 9 weapon (a knife) on Fernando Figueroa in violation of Cal. Pen. Further, he was convicted of assault with a deadly 10 Code § 245(a)(1) and misdemeanor assault on Elizabeth Figueroa 11 Negrete in violation of Cal. Pen. Code § 240. 12 (2 CT 308-09.) In the same trial, Petitioner’s wife, co-defendant Charlotte 13 Gutierrez (Charlotte), was convicted of the same charges with 14 respect to Negrete’s death. 15 Fernando Figueroa with a deadly weapon (a baseball bat) in 16 violation of Cal. Pen. Code § 245(a)(1) and assaulting Elizabeth 17 Figueroa Negrete with force likely to produce great bodily injury 18 in violation of Cal. Pen. Code § 245(a)(1). 19 Petitioner was sentenced to twenty-seven years to life in prison. 20 (Id. at 421-23.) 21 She was also convicted of assaulting Petitioner appealed the judgment. (Id. at 309.) The Court of Appeal of 22 the State of California, Fifth Appellate District (CCA) affirmed 23 it. 24 (LD 5 at 1, 3.)1 Petitioner and Charlotte each filed a petition for review in 25 the California Supreme Court (CSC). 26 summarily denied review. On June 10, 2009, the CSC (LD 6; LD 7; LD 12.) 27 28 1 “LD” refers to documents lodged by the Respondent with the answer. 3 1 III. 2 In a habeas proceeding brought by a person in custody Factual Summary 3 pursuant to a judgment of a state court, a determination of a 4 factual issue made by a state court shall be presumed to be 5 correct; the petitioner has the burden of producing clear and 6 convincing evidence to rebut the presumption of correctness. 7 U.S.C. § 2254(e)(1); Sanders v. Lamarque, 357 F.3d 943, 947-48 8 (9th Cir. 2004). 9 facts drawn from a state appellate court’s decision. 28 This presumption applies to a statement of Moses v. 10 Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009). 11 statement of facts is taken from the decision of the CCA in 12 People v. Gutierrez, case number F053655, filed on March 25, 13 2009:2 14 15 16 17 18 19 20 21 22 The following FACTS In June 2005, Eduardo Negrete and his wife, Elizabeth Figueroa Negrete, lived with their four- and two-year-old daughters in a Turlock apartment complex. Elizabeth's brother, Fernando Figueroa, her sisters Araseli and Rubi, and Rubi's husband, Esau Viveros Sanchez, lived in another apartment in the same complex. Edward and Charlotte lived in a third apartment in the same complex with their toddler daughter. The families were acquainted with each other. On the morning of June 15, 2005, a police officer came to the Negrete's door. Elizabeth saw Charlotte walking toward the door behind the officer and heard her say that her daughter was saying that Eduardo had molested her. The officer asked Charlotte to leave. After speaking to Eduardo, the police officer left. 23 24 25 Between noon and 12:30 p.m., Elizabeth and Eduardo left their apartment and walked to Eduardo's pickup truck. Eduardo entered the truck through the driver's side. As Elizabeth was about to get in from the passenger's 26 27 28 2 Because the copy of the CCA opinion submitted by Respondent is missing some pages, the Court will refer to the printed version of the decision appearing at People v. Gutierrez, 2009 WL 765680 (No. F053655, March 25, 2009). 4 1 2 3 side, Edward, who was holding a knife and a bat, ran toward the driver's side of the truck, making growling sounds like he was angry, and struck the driver's side window with the bat, shattering the window. Eduardo told Elizabeth to call the police and got out of the truck through the passenger's side. 4 5 6 7 8 9 10 Fernando, Esau, Rubi and Araseli, who were inside various apartments in the complex, all heard a loud noise and ran outside. Eduardo had run from the pickup truck to the street, followed by Edward. Elizabeth was nearby. Eduardo put his hands up and said “[S]top, stop. Let's talk.” According to Elizabeth, Edward said nothing and swung the bat at Eduardo, hitting him two to three times on the back of his neck. Eduardo attempted to defend himself, eventually falling to the ground. During the struggle, the bat fell. Edward then stabbed Eduardo twice behind the right ear. Around the same time, Charlotte appeared and picked up the bat, saying “he deserves it. He molested my daughter.” FN4 11 12 13 14 15 16 17 18 19 20 21 22 23 FN4. According to Rubi and Araseli, Edward was holding only the knife when he ran out into the street after Eduardo, while Charlotte was holding the bat. Eduardo yelled “Help me, Fernando.” Fernando came toward Eduardo, but before he could do anything, Edward stabbed Eduardo in the stomach with the knife. Fernando tried to take the knife from Edward, but Edward turned toward Fernando and thrust the knife at him, stabbing him in the left hand, left leg and ankle. Charlotte struck Fernando in the back of his head and down towards his neck with the bat. Fernando was dizzy as a result of the stabbing. Eduardo got up. Rubi yelled “... run to the house.” Charlotte was in the middle of the parking lot yelling “Kill him because he's guilty.” Eduardo entered Rubi's apartment, jumping over a child safety gate. Esau ran after Eduardo and he tried to remove the gate and close the apartment door. Edward, still carrying the knife, ran to the apartment and stabbed at Esau, scratching his shirt. Esau tripped and fell. As Edward ran into the apartment, he pushed one of Esau's and Rubi's sons into a television. 24 25 26 27 28 Charlotte followed her husband into the apartment, carrying the bat. She removed the safety gate and pushed one or both of Esau's and Rubi's children outside the apartment. Charlotte remained at the front door, blocking it. When Fernando tried to enter the apartment, she swung the bat back and forth and said: “[N]o, no, no. Let him kill him. Let him kill him. He deserves it. He deserves it,” and “he has to kill him.” 5 1 2 3 4 5 After Charlotte left the front door, Fernando, Elizabeth and Rubi ran through the apartment to the back door, where they saw Charlotte with her right hand on the back door; she was swinging the bat back and forth in her left hand, telling them to stay inside. Elizabeth believed Charlotte hit her in the back with the bat, bruising her. They looked out the back door and saw Eduardo lying on his back on the ground on the patio with Edward on top of him, stabbing him in the chest with the knife. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Araseli, who had been pulled into the apartment next to Rubi's by one of the neighbors, went out the back door of that apartment and climbed on top of a garbage can. She threw a broom over the fence at Edward, which missed him. Rubi said “No more, no more.” Edward told her to be quiet or he would kill her. She backed away when Edward made a stabbing motion toward her. Elizabeth grabbed Edward by the neck and tried to pull him off her husband, saying “no more, no more.” He placed the knife point on Elizabeth's chest, said “I'm going to kill you too,” and knocked her away. She fell against the back fence, breaking one of the panels. Later, she discovered she was scratched and her foot had been cut. Charlotte yelled out, “No, not her. Kill him.” She swung the bat at Fernando five to ten times, but did not hit him. She walked over to Eduardo and struck him on the feet and in the face with the bat. Fernando moved towards Eduardo and took the bat from Charlotte. When he did so, Edward turned the knife on Fernando, telling him he was next. Charlotte and Edward turned and walked back into the apartment. On the way out, Charlotte said “he killed him now” or “I'm happy now, because the one I wanted killed has now been killed.” Fernando followed the couple outside. Charlotte walked to her apartment while Edward, still holding the knife, walked to his car and got in. Fernando hurled the bat at Edward's car as he drove away. 21 Police Response and Crime Scene Investigation 22 23 24 25 26 27 28 Turlock Police Department officers and emergency personnel arrived on the scene a short time later, finding Eduardo dead on the patio behind Rubi's apartment. He had suffered a total of 42 stab wounds, 14 of which were potentially lethal. The stab wounds, which were consistent with the configuration of a fixed-blade knife, ranged from two to six inches deep and major organs were perforated. According to the pathologist, the wounds were mostly offensive ones, i.e. inflicted by someone else, and the pattern of the wounds showed they were intentionally inflicted. The pathologist did not find any injuries consistent with a 6 1 baseball bat. 2 10 Eduardo's pickup truck was found parked in the carport outside his apartment, with the driver's side window broken. Blood drops and spatter trailed from the walkway outside Rubi's apartment into and through the apartment, inside the back door, and into and onto the back patio where Eduardo was found. The trail suggested someone was losing blood and moving slowly, and at some points, that the person was stationary for a period of time. One of the fence panels in the rear patio was broken. A 20-ounce, 29-inch metal baseball bat was found near a fence at the apartment complex. The base and head of the bat were damaged, and the bat was covered in what appeared to be blood residue. The price tag sticker from a sporting goods store was still on the bat. The damage to the head of the bat was consistent with it being used to break a vehicle's window. 11 Edward's and Charlotte's Arrests 12 Police pursued Edward, who was driving from the area at a high rate of speed. After a three-minute chase, the police were able to force Edward to stop. He had a “large amount of blood” on his clothing, hands and arms, and a number of lacerations and contusions. The inside of his car was bloody and a seven inch fixed-blade military knife, covered with blood residue, tissue and dried hair, was on the floorboard under the driver's seat. Inside his wallet was a receipt from the same sporting goods store as the price tag sticker on the bat, dated June 15, 2005, at 11:51 a.m. The receipt was for a fixed-blade military knife, a sharpener with case, and a bat. A checkbook was found on the driver's seat, with a check stub in it. Police also found in Edward's clothes a baseball bat wrapper with a bar code on it that retail businesses commonly use to track inventory. An officer involved in Edward's pursuit and arrest testified that Edward did not answer his questions and seemed “unresponsive.” 3 4 5 6 7 8 9 13 14 15 16 17 18 19 20 21 22 23 24 25 A check of receipts from the sporting goods store revealed the record of a purchase matching the receipt from Edward's wallet. The store clerk who made the sale could not identify the purchaser, but remembered it was a Hispanic male who was alone and knew what he wanted. The male purchased a bat, a knife and a sharpener, and paid with a check. The entire transaction took about 20 minutes. 26 27 28 Meanwhile, a Turlock Police Department patrol supervisor responded to the scene at 12:40 p.m. and went to Charlotte's apartment to talk to her. She was wearing a white t-shirt and black pants. There were 7 1 2 3 4 5 6 7 blood smears on the t-shirt, and also on her face, arms and hands. The packing for a fixed-blade military fighting knife and the knife's sheath were sitting on the kitchen table inside the apartment. A knife sharpener and its packaging were sitting on the floor beside the table, along with a bag from the same sporting goods store from which the receipt found in Edward's wallet came. The window blinds were open; visible through the blinds were the Negrete apartment and the carport where Eduardo's truck was parked. The patrol supervisor who arrested Charlotte described her mood as swinging from one extreme to another; at times she was irate, excited and hysterical, while at other times she was calm and collected. 8 Forensic Evidence 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 DNA testing was performed on blood swabs or samples taken from Edward's dark blue t-shirt and denim blue jeans, Charlotte's white t-shirt, the knife and the bat, and were compared to reference samples taken from Eduardo, Elizabeth, Fernando, Charlotte and Edward. Two of the presumptive blood stains on Edward's t-shirt matched Eduardo's known reference sample profile. The stains on Edward's jeans contained Edward's profile. Blood stains on Charlotte's t-shirt matched Fernando's known profile. Testing on the presumptive blood on the bat's handle revealed two donors-90 percent of the sample matched Edward's DNA profile, while the remainder matched Fernando's profile. Testing on the presumptive blood on the middle of the bat revealed a mixture of donors-the majority donor matched Fernando's profile, and Edward and Elizabeth could not be excluded as donors of the minority profile. Testing on the knife revealed a mixture. Eduardo was believed to be the source of the largest genetic profile found on the knife's blade. The DNA on the handle was mixed half and half; Edward and Eduardo could not be excluded as possible contributors to these mixtures. Police purchased a new fixed-blade knife, knife sharpener and bat for comparison to the fixed-blade knife, knife sharpener and bat that were found in Edward's car and apartment. Turlock Police Detective Brandon Bertram visually compared the found knife and sharpener to the purchased items. He testified that the knife found in Edward's vehicle “appeared to be sharpened on both sides of the knife blade” as the knife showed recent wear consistent with the straight edge of the knife and the black concave surface at the knife's tip being sharpened. He also testified that the knife sharpener found in Edward's apartment had discoloration consistent with the black paint present on the purchased knife. 28 8 1 2 3 4 5 6 7 8 9 10 11 12 Department of Justice tool mark expert James Hamiel testified that based on his microscopic examination of the found and purchased knives, as well as his consultation with the company that made them, he concluded the epoxy on the top of the “false edge” of the found knife had been removed by a hand process. Although there were numerous irregularly placed scratch marks along the false edge and the epoxy at the false tip had been removed, he did not see any tool marks on the found knife that could be associated with the knife sharpener and therefore opined the found knife had not been sharpened after the factory processes were applied to it. He also compared the found and purchased knife sharpeners. The found sharpener had some gray-black smears on the sharpening rod area which were not on the purchased sharpener; the smears were similar in color to the epoxy on the knife. According to Hamiel, the false edge of the found knife was not sharp, did not “form a cutting edge,” and had not been sharpened after purchase. He did not perform a comparison of the found sharpener and the black epoxy coating, and was not able to determine what the found sharpener came into contact with, although it could have come into contact with another knife. 13 Edward's Defense Case 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Harold Lee Seymour, Ph.D., a licensed psychologist the defense retained to perform a psychological review of Edward, examined Edward in November 2006 and reviewed various reports provided by Edward's counsel. Dr. Seymour concluded Edward suffered from recurrent type major depression of moderate severity without psychotic features, which was exacerbated by his financial problems, his devotion to his daughter and his inability to protect her. In Dr. Seymour's opinion, Edward's actions on the day in question were impulsive, as shown by his not taking steps to reduce the chance of being caught and his having reached the point where adrenaline and rage took over. Dr. Seymour explained that Edward was pushed to confront Eduardo because he was upset over what “he perceived as his daughter's molestation” and he was afraid of what Eduardo might do; after that point, Edward's actions were based on impulse. Edward, who testified on his own behalf, stated that he loved and spoiled his daughter, who he did not think could tell a lie. A week before the stabbing, she had a nightmare where she cried out “[s]top touching me.” She had a second nightmare on June 15, after which she told Edward her friend's father, Eduardo, had touched her and she had seen “his spider,” which was his daughter's word for hair. Edward concluded she had seen the hair on Eduardo's private parts. Edward felt sick and angry, 9 1 and decided to take the day off from work. 2 His wife, Charlotte, called the police and an officer named Briggs arrived at their apartment. Charlotte told the officer about their daughter's nightmares and that she told them she was touched in her private areas. The officer talked to their daughter for about an hour and went to Eduardo's apartment. When the officer returned, he told Edward and Charlotte that he spoke with Eduardo, and he denied touching their daughter and seemed very upset and mad at Edward. The officer also told them they could take their daughter to a hospital to have her checked, but there was nothing more he could do. Edward was very upset, heartbroken and angry, and also concerned about his family's safety because he did not know Eduardo, did not trust him, and didn't know if he had weapons or would retaliate against him. 3 4 5 6 7 8 9 10 11 12 Edward and Charlotte took their daughter to a hospital emergency room. The doctor examined their daughter and told them it did not appear she had been penetrated. He referred the family to a children's hospital for further examination, and made an appointment for them. Edward was disappointed, frustrated and angry. 13 14 15 16 17 18 19 The family returned home. Charlotte went upstairs and made phone calls, while Edward “took off by myself” to buy protection for his family. Edward went to the local sporting goods store; he wasn't sure what he was going to buy, but knew the store would have something for protection. He grabbed a baseball bat, the smaller of two knives he saw, and “out of habit” grabbed a knife sharpener, which was “[j]ust something that came with” the knife. He wrote a check for the items, which totaled $110.53, and drove home. The knife he bought had a “blood groove” on it, which Edward explained is a cutaway in the knife's side which allows air to get on the blade so it's more effective. 20 21 22 23 24 25 26 27 28 When he got home, he went to the kitchen table and opened the packages for the knife, bat and sharpener. He wasn't familiar with the particular style of the knife sharpener, so he grabbed the knife and sharpener and “was scraping the sharpener on the knife to get a feel for it.” He put the sharpener down because he didn't like the way it felt. He was not trying to sharpen the knife, which was already sharp; he just wanted to test the sharpener to see how it would feel in his hands. Edward said he did not tell Charlotte that he was going to get a knife or show the knife to her when he got home. A shadow going across the front lawn caught his attention; he looked out the window and saw Elizabeth pass by, casting a second shadow. He grabbed the bat 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 and knife and ran out the front door. He saw Eduardo get into his truck and wanted to confront him to try to get him to apologize to his daughter and confess the molestation. He broke the truck's window because he saw Eduardo look up at him and lock the truck's door. Edward was “very angry” and wanted to die; he didn't think he could control himself at that point. After Edward smashed the window, Eduardo ran out into the street, followed by Edward, who was still holding the knife and bat. Eduardo grabbed the bat from him and Fernando started kicking and punching Edward. Edward hit the ground and the knife fell out of his hands. Eduardo was hitting him with the bat, Fernando kept kicking him, and another person was hitting him from behind. Edward and Fernando fought to get the knife; Fernando cut himself during the struggle. Eduardo ran toward the apartments, followed by Edward. Edward followed Eduardo into one of the apartments; Edward saw a toddler in the apartment, but denied touching him. Eduardo went out the back door, followed by Edward, and the two began wrestling on the patio. Edward grabbed the knife and started stabbing Eduardo, even after Eduardo was on the ground. Edward said he “went crazy” and “wasn't thinking” about what he was doing, he just keep stabbing anywhere he could. Edward left the apartment, went to his car, threw the knife on the floorboard, and drove away. The police eventually stopped him and took him to a hospital. Edward spent about eight and a half years serving in the army, which included time in army reserves, active army and National Guard. He was in the basic infantry and also worked as a mechanic, and was honorably discharged. Edward's sister and step-son both testified that Edward was not a violent person. 20 Charlotte's Defense Case 21 22 23 24 25 26 Charlotte, who testified on her own behalf, stated that her then three-and-a-half-year-old daughter began having repeated nightmares about a week before the stabbing. When Charlotte questioned her daughter about a nightmare she had on the morning of the stabbing, her daughter, who used the word “spider” to refer to hair, said that Eduardo had touched her and he had a “big spider right there,” pointing to her crotch. Her daughter said Eduardo put his hand on her crotch and it hurt, and that Eduardo's daughter “kissed her daddy's spider.” 27 28 Charlotte called 911 shortly after 7:00 a.m. and Tulare Police Officer Kim Briggs responded to their apartment. 11 1 2 3 4 5 6 7 8 According to Charlotte, Officer Briggs attempted to talk with her daughter, but she refused to speak with him. Charlotte admitted that her daughter eventually did speak to Officer Briggs, but answered “no” to all of his questions and hid from him. Officer Briggs then went to Eduardo's apartment, which Charlotte pointed out to him, and knocked on the door. Elizabeth answered. Charlotte testified she followed Officer Briggs to the door, but denied he told her to leave and said she left voluntarily. When Officer Briggs returned to their apartment, he explained that Eduardo adamantly denied the charges. He called child protective services, but they could not get involved because the molestation did not occur in the Gutierrez's home. Officer Briggs told Charlotte there was nothing else that could be done and left. 9 10 11 12 13 14 Charlotte and Edward immediately took Charlotte to the emergency room of a Turlock hospital, checking in at 8:40 a.m. A doctor examined their daughter. Charlotte did not remember the doctor telling her the examination was normal, but he made an appointment for their daughter the following day at the children's hospital in Madera. The family returned home and Charlotte went upstairs. At approximately 11:30 a.m., Charlotte called the landlord, who said she could not do anything. Charlotte then called and made an appointment with a therapist. 15 16 17 18 19 20 21 When Charlotte came downstairs, she saw her husband run out the front door to Eduardo's truck. Although she did not see anything in his hands, she saw him break the truck's window and then chase Eduardo into the street. She went outside and saw her husband on top of Eduardo, stabbing him. She moved closer and saw Esau kicking her husband and a young boy hitting her husband with a bat. She screamed at her husband to stop. She pushed the boy with the bat away and grabbed at her husband, but he pushed her back. Eduardo got up and ran away. Charlotte denied having the bat when she ran into the street and denied hitting Fernando with the bat. She did not know how Fernando's blood got on her t-shirt. 22 23 24 25 26 27 Charlotte ran back to the apartment to check on her daughter, screaming for help and that her daughter had been molested and her husband was stabbing the molester. She did not have the bat. Eduardo and “the family members” ran into an apartment. Charlotte ran in behind them and saw her husband on top of Eduardo, stabbing him. She was screaming, trying to stop it, but she was unable to do so. Charlotte ran back to her apartment and called 911 at 12:34 p.m. She told the dispatcher her husband was stabbing the neighbor and her daughter had been molested. 28 12 1 2 3 4 The apartment manager testified that Charlotte called her twice on the day of the stabbing. The first call was a message left on the manager's answering machine at 7:20 or 7:25 a.m., which call she returned soon after 7:30 a.m. Charlotte told her Eduardo had molested her daughter. The second call was at 11:30 a.m. The manager told Charlotte there was nothing she could do about Eduardo. 5 6 7 8 9 10 11 Officer Briggs testified that he responded to the Gutierrez's apartment at 7:09 a.m. and spoke with both Charlotte and her daughter. He recounted his conversation with Eduardo and his contact with child protective services. He told Charlotte that Eduardo denied the molestation and had become upset. When Charlotte asked him if her daughter needed medical attention, he responded that if she was concerned about her daughter, it would be up to her to take her daughter to a medical facility. Officer Briggs had “very little conversation” with Edward and noted Edward was quiet and upset. Officer Briggs told Charlotte and Edward he was not going to do anything that morning. 12 15 A child protective services social worker confirmed that she spoke with Officer Briggs at 9:10 a.m. on the morning of the stabbing and that she told him her department did not handle non-familial molests. Other witnesses were called to impeach the testimony of the People's civilian witnesses. 16 Rebuttal 17 Philip S. Trompetter, Ph.D., a clinical psychologist who came to the jail to evaluate Edward the day after the stabbing on behalf of the district attorney's office, testified that he spoke with Edward for approximately 40 minutes. While he did not evaluate Edward because Edward did not consent to an evaluation, he did not see any evidence of a major mental disorder, although Edward's mood was depressed. 13 14 18 19 20 21 22 23 24 25 26 27 28 A police officer who interviewed Edward the afternoon of the stabbing testified about that interview. After Edward waived his Miranda rights, he admitted stabbing Eduardo with a “marine military knife.” Edward told the officer he used the knife he purchased at the sporting goods store, instead of a knife he already had, because he “didn't trust them kitchen knives” since they didn't have the blood groove that the purchased knife had, explaining “[t]hey don't have a blood sheath in ‘em. If I stick him with that, it might stay in there. I wasn't taking no chances. I was in the military before, so it mattered to me.” Edward also stated: “I know he did it. I know he did it. I don't care about evidence and all that. I know he did this from the way she was acting 13 1 and talking and having nightmares.” 2 People v. Gutierrez, 2009 WL 765680 at *1-*8. 3 IV. 4 Title 28 U.S.C. § 2254 provides in pertinent part: 5 (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim– 6 7 Standard of Decision and Scope of Review 8 9 10 11 12 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 13 Clearly established federal law refers to the holdings, as 14 opposed to the dicta, of the decisions of the Supreme Court as of 15 the time of the relevant state court decision. Cullen v. 16 Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v. 17 Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 18 362, 412 (2000). It is thus the governing legal principle or 19 principles set forth by the Supreme Court at the pertinent time. 20 Lockyer v. Andrade, 538 U.S. 71-72. 21 A state court’s decision contravenes clearly established 22 Supreme Court precedent if it reaches a legal conclusion opposite 23 to, or substantially different from, the Supreme Court's or 24 concludes differently on a materially indistinguishable set of 25 facts. Williams v. Taylor, 529 U.S. at 405-06. The state court 26 need not have cited Supreme Court precedent or have been aware of 27 it, "so long as neither the reasoning nor the result of the 28 14 1 state-court decision contradicts [it]." 2 U.S. 3, 8 (2002). 3 established federal law if it either 1) correctly identifies the 4 governing rule but then applies it to a new set of facts in an 5 objectively unreasonable manner, or 2) extends or fails to extend 6 a clearly established legal principle to a new context in an 7 objectively unreasonable manner. 8 1132, 1142 (9th Cir. 2002); see, Williams, 529 U.S. at 407. 9 application of clearly established federal law is unreasonable Early v. Packer, 537 A state court unreasonably applies clearly Hernandez v. Small, 282 F.3d 10 only if it is objectively unreasonable; an incorrect or 11 inaccurate application is not necessarily unreasonable. 12 An Williams, 529 U.S. at 410. 13 A state court’s determination that a claim lacks merit 14 precludes federal habeas relief as long as fairminded jurists 15 could disagree on the correctness of the state court’s decision. 16 Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786 (2011). 17 Even a strong case for relief does not render the state court’s 18 conclusions unreasonable. 19 a state prisoner must show that the state court’s ruling on a 20 claim was “so lacking in justification that there was an error 21 well understood and comprehended in existing law beyond any 22 possibility for fairminded disagreement.” 23 § 2254(d) standards are “highly deferential standard[s] for 24 evaluating state-court rulings” which require that state court 25 decisions be given the benefit of the doubt, and the Petitioner 26 bear the burden of proof. 27 1398. 28 ground supporting the state court decision is examined and found Id. To obtain federal habeas relief, Id. at 786-87. The Cullen v. Pinholster, 131 S. Ct. at Further, habeas relief is not appropriate unless each 15 1 to be unreasonable under the AEDPA. 2 132 S.Ct. 1195, 1199 (2012). 3 Wetzel v. Lambert, -–U.S.--, In assessing under section 2254(d)(1) whether the state 4 court’s legal conclusion was contrary to or an unreasonable 5 application of federal law, “review... is limited to the record 6 that was before the state court that adjudicated the 7 claim on the merits.” 8 Evidence introduced in federal court has no bearing on review 9 pursuant to § 2254(d)(1). Cullen v. Pinholster, 131 S. Ct. at 1398. Id. at 1400. Further, 28 U.S.C. 10 § 2254(e)(1) provides that in a habeas proceeding brought by a 11 person in custody pursuant to a judgment of a state court, a 12 determination of a factual issue made by a state court shall be 13 presumed to be correct; the petitioner has the burden of 14 producing clear and convincing evidence to rebut the presumption 15 of correctness. 16 and was based on a factual determination will not be overturned 17 on factual grounds unless it was objectively unreasonable in 18 light of the evidence presented in the state proceedings. 19 Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 20 A state court decision that was on the merits The last reasoned decision must be identified in order to 21 analyze the state court decision pursuant to 28 U.S.C. 22 § 2254(d)(1). 23 Cir. 2005); Bailey v. Rae, 339 F.3d 1107, 1112-13 (9th Cir. 24 2003). 25 in which the state court adjudicated Petitioner’s claims on the 26 merits. 27 rejecting a federal claim, later unexplained orders upholding 28 that judgment or rejecting the same claim are presumed to rest Barker v. Fleming, 423 F.3d 1085, 1092 n.3 (9th Here, the CCA’s decision was the last reasoned decision Where there has been one reasoned state judgment 16 1 upon the same ground. 2 (1991). 3 of the CSC denying review to the CCA’s last reasoned decision as 4 the relevant state-court determination. 5 Maddox, 366 F.3d 992, 998 n.5 (9th Cir. 2004). Ylst v. Nunnemaker, 501 U.S. 797, 803 This Court will thus “look through” the summary decision Id. at 803-04; Taylor v. 6 V. 7 During jury selection, Petitioner’s counsel made a motion Peremptory Challenge to Prospective Juror Mr. L 8 pursuant to Batson v. Kentucky, 476 U.S. 79 (1986) concerning the 9 prosecutor’s allegedly discriminatory exercise of peremptory 10 challenges against potential jurors on the basis of their Latino 11 appearance. 12 Petitioner argues that the state court’s decision upholding the 13 denial of Petitioner’s Batson motion violated his right to an 14 impartial jury and equal protection of the laws guaranteed under 15 the Sixth and Fourteenth Amendments. 16 the circumstances warranted a reasonable inference that the 17 prosecutor exercised a peremptory challenge of prospective juror 18 Mr. L because of his race, and thus Petitioner presented a prima 19 facie case of discrimination. 20 race-neutral reason for the challenge. 21 decision upholding the denial of Petitioner’s Batson motion was 22 contrary to, or involved an unreasonable application of, clearly (Reporter’s Supplemental Transcript (RST) 113-14.)3 Petitioner contends that The prosecutor failed to present a Thus, the state court 23 3 24 25 26 27 28 Although trial counsel mentioned several potential jurors (Ms. D, Mr. A, Mr. N, Mr. T, and Mr. L. [RST 113-14]), on appeal Petitioner raised only the exercise of a peremptory challenge as to Mr. L. People v. Gutierrez, 2009 WL 765680 at *9). Likewise, in the petition for review filed by Petitioner in the CSC, Petitioner’s claim of error was limited to the trial court’s ruling with respect to prospective juror Mr. L. (LD 12 at 3.) This Court will thus limit its consideration of the claim presented to the state courts, namely, the ruling on the motion with respect to prospective juror Mr. L. The circumstances of the other potential jurors will remain subject to the Court’s consideration to the extent that they are relevant to the decision concerning Mr. L. 17 1 established federal law or was based on an unreasonable 2 determination of the facts in light of the evidence presented in 3 the state court proceedings within the meaning of 28 U.S.C. 4 § 2254(d). 5 Petitioner seeks reversal of his conviction. A. The State Court Decision 6 The pertinent portion of the decision of the CCA follows: 7 I. Denial of Batson-Wheeler Motion 8 13 Edward, joined by Charlotte, contends the trial court erred by not finding a prima facie case of discrimination in the prosecutor's use of peremptory challenges against Hispanic prospective jurors. When Edward's trial counsel raised the motion below, he claimed the prosecutor had excused four Hispanic prospective jurors. On appeal, Edward limits his argument to the excusal of a single Hispanic prospective juror, Mr. L. We agree with the trial court that Edward failed to raise an inference of discrimination. 14 A. Legal Principles 15 “The purpose of peremptory challenges is to allow a party to exclude prospective jurors who the party believes may be consciously or unconsciously biased against him or her.” (People v. Jackson (1992) 10 Cal.App.4th 13, 17-18.) Peremptory challenges may properly be used to remove jurors believed to entertain specific bias, i.e., bias regarding the particular case on trial or the parties or witnesses thereto. (Wheeler, supra, 22 Cal.3d at p. 274.) However, “‘[a] prosecutor's use of peremptory challenges to strike prospective jurors on the basis of group bias-that is, bias against “members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds”-violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendant's right to equal protection under the Fourteenth Amendment to the United States Constitution.’” (People v. Bell (2007) 40 Cal.4th 582, 596 (Bell); see Batson, supra, 476 U.S. at pp. 88-89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) 9 10 11 12 16 17 18 19 20 21 22 23 24 25 26 27 28 “There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination.” (People v. Bonilla (2007) 41 Cal.4th 18 1 2 3 4 5 6 7 8 9 10 313, 341.) The defendant must first “make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citation.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide ... whether the opponent of the strike has proved purposeful racial discrimination.’ “ (Johnson, supra, 545 U.S. at p. 168, fn. omitted (Johnson).) This three-part structure of proof applies to both federal and state constitutional claims. (Bell, supra, 40 Cal.4th at p. 596; People v. Avila (2006) 38 Cal.4th 491, 541; Wheeler, supra, 22 Cal.3d at pp. 280-282.) With these principles in mind, we turn to the motion in this case. 11 B. Trial Proceedings 12 13 14 15 16 17 18 At the outset of jury selection, 18 randomly-selected prospective jurors, including four with apparent Hispanic surnames, Mr. A, Mr. B, Mr. C and Ms. D, were seated in the jury box. Mr. A, who was 24 years old and had a high school education, requested and was granted an in-chambers conference in which he asserted his lack of education and life experience should excuse him from jury duty. The court, however, refused to excuse him. Later during voir dire, Mr. A said his brother was molested as a child, which caused him not to “like child molesters.” Mr. A lived in Modesto, was currently unemployed but had worked in carpentry and masonry, lived with his mother, and had no children. 19 20 21 22 Mr. B's son worked for the sheriff's department at the county jail, but he denied that would affect him one way or another, although he was concerned the situation might affect the attorneys. Mr. B lived in Ceres, worked in a warehouse, had a wife who did not work outside the home, and in addition to his son, he had two other children in high school. 23 24 25 26 27 Mr. C lived in Patterson, worked as an equipment operator for an irrigation company, had a wife who was retired but had worked as a secretary for an insurance company, and had two children, both of whom worked for stores. Mr. C had served on a jury that was able to reach a verdict “five or six years ago” in a case involving a fight between a husband and an “ex-husband.” He knew a person with the same name as a potential witness in the case. 28 19 1 2 3 4 Ms. D revealed her daughter had been charged with assault, which might cause a problem because she knew her daughter was innocent and she did not think she could be fair to both sides of the case. Ms. D lived in Modesto, was a high school attendance clerk, lived with her husband, a hospital maintenance engineer, and had two grown children, one a cook and the other a housewife. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 In response to voir dire by Edward's counsel, Ms. D stated she had suffered from depression and thoughts of suicide. Ms. D. explained her daughter had been charged with assault as an accomplice and as a minor, and had been found guilty, but she did not believe the system treated her daughter fairly or that the defense did its job in the case, although she would not hold that against the defense in the present case. Mr. A opined that “everybody probably has” been “enraged by any sort of action to the point at which they confronted someone or did something.” Mr. A said his brother had been molested “[w]hen he was very young,” that he still felt anger toward the molester, and he had confronted that person, had thoughts of hurting that person, and had actually “punched” the person “in his face.” Mr. B elaborated that his son worked in the jail “booking department” but had never discussed the inmates with him; Mr. B had no opinion on the guilt of people housed in the jail but had known people who had been incarcerated there. After the parties passed the first group of prospective jurors in the box for cause, the prosecutor used her first peremptory challenge to remove a prospective juror who did not have a Hispanic surname. She used her second peremptory challenge to remove Ms. D. After the two defense attorneys used a joint peremptory challenge to remove Mr. B, the prosecutor used her third peremptory challenge to remove another prospective juror who did not have a Hispanic surname. She used her fourth peremptory challenge to remove Mr. A. 21 22 23 24 25 Two prospective jurors with apparent Hispanic surnames, Mr. N and Mr. R, were among those who replaced those who had been removed. Mr. R was removed for cause by stipulation after revealing two friends and a cousin had been murdered and he did not feel he could be fair and impartial. Mr. N lived in Patterson, worked as a carpet installer, and lived with his parents and three brothers. His mother owned a flower shop and his father was also a carpet installer. 26 27 28 Another prospective juror with a possible Hispanic surname, Mr. L, replaced a removed prospective juror in the box. Mr. L answered “No” when asked if there was anything about the questions and answers he had heard 20 1 2 so far that he needed to bring to the court's or parties' attention. Mr. L lived in Modesto, worked as an accountant, and lived with his wife, who was a homemaker, and their nine-year-old daughter. 3 4 5 6 7 8 9 10 At this point, jury selection was adjourned for the evening. Out of the presence of the prospective jurors, the court stated there had a been a sidebar about the prosecutor's challenges for cause to Mr. A and Ms. D, which the court had denied. The court gave the prosecutor and defense attorneys the opportunity to place on the record anything about the denial of the challenges. During jury selection the next day, in response to voir dire by Edward's counsel, Mr. L stated that his sister claimed she was molested by his grandfather, but she did not raise the claim until after his death, so it was never resolved or investigated. Mr. L did not know about the molestation before his grandfather's death. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 During the next round of peremptory challenges, the prosecutor used her fifth challenge to remove a prospective juror who did not have an apparent Hispanic surname, Mr. T. She used her sixth challenge to remove Mr. N. After the defense used a joint challenge to remove Mr. C, the prosecutor used her seventh challenge to remove Mr. L. Edward's counsel requested a sidebar, and the court called a recess. Outside the jury's presence, Edward's counsel made a Wheeler/Batson motion, asserting the prosecutor was using her peremptory challenges to exclude prospective jurors on the basis of race, namely being either Latino or of Latin descent or appearance. Edward's counsel specifically identified five jurors out of the seven the prosecutor had excused who he believed to be Hispanic or Latino: Mr. L, Ms. D, Mr. A, Mr. T, and Mr. N. The court responded that it did not appear to the court that Mr. T was Latino, but the other four had Latino names. The prosecutor immediately explained with respect to Mr. A that while she did not exercise a challenge to him “right off the bat, ... it was clear that, not only did he not want to sit, but he said that, in fact, that his brother had been molested, that he confronted the brother who had been molested [sic]; and for that reason and that reason alone, of course, including the fact that he didn't want to be a juror, even had in chambers, as I recall, he said he had a lack of education. It was at least clear to me that he didn't want to be here. When I learned that his brother had also been molested, that was the grounds.” 28 21 1 2 3 4 5 6 7 8 9 10 11 12 13 The court then asked about Ms. D. The proscutor responded that she needed to know what seat Ms. D was in, since that was how she kept her chart. When told Ms. D. was in seat number one, the prosecutor explained that because the defense was “going to raise depression, she had made comments about her depression. She also said that her daughter was-had an assault trial, she knew her daughter was innocent. From the People's perspective, she just believed her daughter. [¶] ... [¶] ... she also said knowing and believing that her daughter was innocent, certainly believed that she could hold that against the prosecution. There were concerns and she expressed, concerns over her depression, since I knew that would be a defense in this particular case.” With respect to Mr. N, the prosecutor explained that he was a carpenter and “[h]e had a lot of body language. He didn't look at me. His head was swinging. He was doing-what do I call this? Wrist wringing, seemed extremely nervous, kept doing this, his body language kept doing like-“ The court stated, “Crossing legs.” The prosecutor continued, “Crossing legs, but what I'm trying to get at was a nervous knee. I did not believe that the Court kept his full attention while the Court was addressing him.” 14 Finally, with respect to Mr. L, the following ensued: 15 16 “THE COURT: ... How about Mr. L[ ], the CPA gentleman? He was in seat number 12-seat number 18, and then he got moved up to seat number 6, I believe it was. 17 19 “[PROSECUTOR]: Okay. He's the accountant and he had police officer ties. Quite honestly, Your Honor. I did not think he was Hispanic. I mean, I didn't. I didn't think he [ ] was Hispanic at all. 20 “THE COURT: Okay. 21 23 “[PROSECUTOR]: And if the Court-I see still see, although we haven't gotten there for the record, Mr. V[ ]'s still on the panel and there's other people that have not yet-Mr. P[ ] is not up there yet, but there are several other people. 24 THE COURT: All right. You want to comment? 25 [EDWARD'S COUNSEL]: Your Honor, I feel that [the proecutor's] comments are pretexted [ sic ] and I think that's most evident in N[ ] and L[ ]. There's no real artiulable reason other than a nervous twitch and that carries over with N[ ]. From what my notes were, is there's no real reason why the prosecutor should have gotten rid of him and the only one I can think 18 22 26 27 28 22 1 2 3 4 5 6 7 8 9 10 11 12 of in the group based upon the group that I've seen her peremptorily challenge. This is all a pretext for eliminating them because they are Hispanic or Latino.” After Charlotte's counsel declined the court's invitation to comment, the court denied the motion, explaining: “Well, there's certainly nothing with Mr. A[ ] insofar as what he's done, anything about that. Obviously either one of the three of you were going to kick Mr. A[ ] off. I was pretty confident on that. He came pretty close to trying to get the Court to excuse him. I wouldn't. [¶] Ms. D[ ] about the answers with her daughter ... certainly doesn't show any kind of ethnicity. [¶] Mr. N[ ] and Mr. L[ ] both appear to be Hispanic. Mr. L[ ] appeared to be to me. [¶] I don't see she's doing it any type of pretextual to try to keep Hispanic people off of the jury. There's no basis for that. [¶] I asked if anybody wanted me to voir dire on ... ethnicity. They told me ... they didn't want me to voir dire on ethnicity. So I didn't do it. It hasn't reached the point of Batson-Wheeler type matter. [¶] Ms. [prosecutor], I will admonish you that if you continue to do this, I suspect counsel is going to ask us to revisit the issue.” 13 17 Jury selection then continued, with the prosecutor excusing two jurors with non-Hispanic names and then accepting the jury as constituted five times before the defense finally accepted it. Although the record does not reveal the surname, race or ethnicity of anyone who served on the jury or as alternates, it appears that at least two jurors spoke Spanish and therefore may have been Hispanic. 18 C. Analysis 19 Edward contends the trial court erred by failing to find a prima facie showing of discrimination with respect to the prosecutor's peremptory strike of Mr. L. “In order to make a prima facie showing, ‘a litigant must raise the issue in a timely fashion, make as complete a record as feasible, [and] establish that the persons excluded are members of a cognizable class.’ [ FN5] [Citation.] The high court [has] explained that ‘a defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.’ [Citation.] ‘An “inference” is generally understood to be a “conclusion reached by considering other facts and deducing a logical consequence from them.” ’” (People v. Gray (2005) 37 Cal.4th 168, 186; Johnson, supra, 545 U.S. at pp. 168-170 & fn. 4.) 14 15 16 20 21 22 23 24 25 26 27 28 FN5. Hispanics are a cognizable group for purposes of Batson-Wheeler analysis. (People 23 1 2 3 4 5 6 7 8 9 10 11 12 13 v. Trevino (1985) 39 Cal.3d 667, 686, disapproved on other grounds in People v. Johnson (1989) 47 Cal.3d 1194, 1221.) “The three-step Batson analysis, however, is not so mechanistic that the trial court must proceed through each discrete step in ritual fashion. Thus, the trial court may invite the prosecutor to state race-neutral reasons for the challenged strikes before announcing its finding on whether a defendant met the first step of the Batson test by making out a prima facie case of discrimination.” (People v. Adanandus (2007) 157 Cal.App.4th 496, 500-501 (Adanandus).) Indeed, “it is the better practice for the trial court to have the prosecution put on the record its race-neutral explanation for any contested peremptory challenge, even when the trial court may ultimately conclude no prima facie case has been made out. This may assist the trial court in evaluating the challenge and will certainly assist reviewing courts in fairly assessing whether any constitutional violation has been established.” (Bonilla, supra, 41 Cal.4th at p. 343, fn. 13; see also People v. Mayfield (1997) 14 Cal.4th 668, 723-724 [even where no prima facie case found, court may properly consider reasons actually given by the prosecutor].) 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “[W]here the ‘ “ ‘trial court denies a Wheeler motion without finding a prima facie case of group bias the reviewing court considers the entire record of voir dire. [Citations.] As with other findings of fact, we examine the record for evidence to support the trial court's ruling. Because Wheeler motions call upon trial judges' personal observations, we view their rulings with “considerable deference” on appeal. [Citations.] If the record “suggests grounds upon which the prosecutor might reasonably have challenged” the jurors in question, we affirm.’” ’” (Adanandus, supra, 157 Cal.App.4th at p. 501; Bonilla, supra, 41 Cal.4th at p. 341 [“we review the trial court's denial of a Wheeler/Batson motion deferentially, considering only whether substantial evidence supports its conclusions”].) As a preliminary matter, Edward asserts that because the trial court did not specifically state the standard it used to determine whether he established a prima facie case of discrimination and instead stated that the issue hadn't “reached the point of Batson-Wheeler type matter” and told the prosecutor not to “continue to do this,” the trial court may have applied an incorrect standard, i.e. that he was required “to make a prima facie showing of ‘systematic discrimination’ based on race or ethnicity,” instead of raising only a reasonable inference of discrimination. Accordingly, 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Edward asks us to independently determine whether he established a prima facie case of discrimination by using the reasonable inference test under Batson. We do not read the trial court's comments, however, as suggesting it wrongly believed more than one excusal was required before a prima facie case could be established; instead, it appears the trial court found the prosecution's excusal of the four jurors at issue did not establish a prima facie case on the facts before it. Assuming the trial court erred in this regard, however, “‘we have reviewed the record and, like the United States Supreme Court decision in Johnson... [we] are able to apply the high court's standard and resolve the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race.’” (People v. Guerra (2006) 37 Cal.4th 1067, 1101.) We find no such inference here. Edward correctly concedes the prosecutor's excusal of Mr. A, Ms. D and Mr. N did not raise an inference of discrimination, as there were ample reasons to excuse these jurors based on factors other than their race, i.e. Mr. A's unwillingness to serve, Ms. D's attitude toward the proceedings in light of her daughter's experience, and Mr. N's inability to pay attention. Instead, Edward focuses on the peremptory challenge of Mr. L, arguing his excusal alone was enough to raise an inference of discrimination. We conclude the record as a whole fails to support a reasonable inference that the prosecutor's peremptory challenges reflected the discriminatory purpose of eliminating Hispanics from the jury. 17 18 19 20 21 22 23 24 25 In making this assessment, we must evaluate the totality of the relevant circumstances surrounding the use of the peremptory challenge against Mr. L. (See Johnson, supra, 545 U.S. at p. 168.) Although the establishment of a prima facie case does not depend on the number of prospective jurors challenged (see People v. Moss (1986) 188 Cal.App.3d 268, 277), since “[t]he exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude” (People v. Silva (2001) 25 Cal.4th 345, 386, italics added), the requisite showing is not made merely by establishing the excused prospective juror was a member of a cognizable group (People v. Alvarez (1996) 14 Cal.4th 155, 198 (Alvarez); United States v. Chinchilla (9th Cir.1989) 874 F.2d 695, 698; see People v. Hoyos (2007) 41 Cal.4th 872, 901). 26 27 28 There was an obvious could have motivated peremptory strike on dire that his sister permissible strategic factor that the prosecutor to utilize a Mr. L, as he admitted during voir had claimed his grandfather 25 1 2 3 4 5 molested her. In a trial where an allegation of molestation was at issue, certainly the prosecutor could have decided that jurors who in any way had experience with molestation would be biased. The prosecutor had removed other jurors who had stated either they or a family member had been molested, including Mr. A and another juror with a non-Hispanic surname. Because Mr. L's sister had claimed to be molested, Mr. L was not heterogeneous with the other jurors who remained on the panel, as Edward claims. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Edward asserts an inference of discrimination is shown by the prosecutor's excusing Mr. L after excusing three other Hispanic prospective jurors without questioning him. As we have mentioned, however, the prosecutor had ample reasons for excusing the other Hispanic jurors. Moreover, the prosecutor also excused three other prospective jurors who had non-Hispanic names before excusing Mr. L. Thus, she was not using her peremptory challenges solely on Hispanics. While the prosecutor did not individually question Mr. L, she only individually questioned two jurors who were in the original panel of 18-one was a prospective juror with a non-Hispanic name who she exercised her third peremptory challenge on, and the other was Mr. C., on whom the defense exercised a peremptory challenge. The prosecutor did not individually question any of the prospective jurors who replaced those who had been removed. Accordingly, no inference of discrimination may be drawn from the prosecutor's failure to question Mr. L. Edward contends an inference of discrimination may be drawn from the prosecutor's failure to adequately explain why she struck Mr. L. Edward asserts that because the trial court stated that Mr. L appeared to be Hispanic, the prosecutor's statement that she honestly did not think he was Hispanic is not supported by the record and therefore does not provide a race-neutral explanation for the challenge. It is not apparent from the record, however, that the trial court found the prosecutor's belief in Mr. L's ethnicity to be unreasonable. The prosecutor stated that she did not think Mr. L was Hispanic, while the trial court stated that he appeared to the court to be Hispanic. Significantly, the trial court did not state that Mr. L was so obviously Hispanic looking that the prosecutor reasonably could not have believed that he was not Hispanic or that her statement was otherwise a sham excuse. 26 27 28 Since we are confronted solely with a paper record of the voir dire proceedings, we are ill suited to determine whether the prosecutor's reason for striking Mr. L. was genuine (if mistaken), but must generally 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 “‘rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.’” (People v. Williams (1997) 16 Cal.4th 153, 189 [recognizing that “a genuine ‘mistake’ is a race-neutral reason” and emphasizing that the appellate courts must “‘rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination’”]; Avila, supra, 38 Cal.4th at p. 541 [“It is presumed that the prosecutor uses peremptory challenges in a constitutional manner, and we give deference to the court's ability to distinguish ‘bona fide reasons from sham excuses'”].) Further, the evaluation of the prosecutor's reasons for strikes is not the applicable inquiry where, as here, the trial court found no prima facie case of discrimination. (People v. Farnam (2002) 28 Cal.4th 107, 138 [“In light of our conclusion that the trial court properly found no prima facie case of racial bias, we need not review the prosecutor's justifications for her peremptory challenges or the trial court's weighing of those justifications”].) Rather, we are concerned solely with whether the record supports an inference the prosecutor excused Mr. L because of his race. (Ibid.) With respect to this question, the prosecutor's stated belief that Mr. L did not appear to be Hispanic does not alter the fact that the totality of the circumstances does not support an inference of discrimination. 17 18 19 20 21 22 23 Thus, this case is distinguishable from Snyder v. Louisiana (2008) 552 U.S. 472 [128 S.Ct. 1203] (Snyder), wherein the United States Supreme Court described the reasons given by the prosecutor for excusing a prospective juror as “unconvincing,” “highly speculative,” “suspicious,” “implausib[le]” and “pretextual,” which created an inference of discriminatory intent. (Id. at pp. 1203 [128 S.Ct. at pp. 1208-1212].) Unlike Snyder, there is no basis in the record here for a finding the prosecutor's reasons were pretextual. In any event, the trial court here found the defense failed to establish a prima facie case of discrimination. 24 25 26 27 28 Edward contends that we should not engage in speculation about the prosecutor's unstated reasons for striking Mr. L, citing Johnson, in which the United States Supreme Court stated: “The Batson framework is designed to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process. [Citation.] The inherent uncertainty present in inquiries of discriminatory 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 purpose counsels against engaging in needless and imperfect speculation when a direct answer can be obtained by asking a simple question.” (Johnson, supra, 545 U.S. at p. 172.) However, “[t]he quoted caution against speculation must be read in light of the high court's statement that a prima facie case is established when the ‘defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.’ [Citation.] Once the trial court concludes that the defendant has produced evidence raising an inference of discrimination, the court should not speculate as to the prosecutor's reasons-it should inquire of the prosecutor, as the high court directed. But there is still a first step to be taken by the defendant, namely producing evidence from which the trial court may infer ‘that discrimination has occurred.’ [Citation .] We have concluded that the evidence alluded to by defendant in the trial court did not support such an inference, nor was such an inference supported by the challenged juror's own statements or anything else in ‘“the totality of the relevant facts”’ [citation] that we have seen in our examination of the record....” (People v. Cornwell (2005) 37 Cal.4th 50, 73-74, disapproved on another point by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 (Doolin).) Edward places much reliance on the court's “admonition” to the prosecutor “against continuing ‘to do this’” as further evidence of the prosecutor's discriminatory purpose in removing Mr. L. Reading the court's statement in context, however, it does not appear to us that the court was suggesting the prosecutor had a discriminatory purpose in removing Mr. L, but was only warning the prosecutor that the defense would continue to scrutinize her use of peremptory challenges and ask the court to “revisit the issue,” i.e. make another Batson-Wheeler motion, if it perceived such a motion had merit. In sum, we find nothing in the record to support an inference that the prosecutor discriminated against Mr. L because of his race. People v. Gutierrez, 2009 WL 765680 at *9-*16. B. Legal Standards Although a prosecutor ordinarily is entitled to exercise 26 peremptory challenges for any reason related to her view 27 concerning the outcome of the case to be tried, the Equal 28 Protection Clause forbids the prosecutor from challenging 28 1 potential jurors solely on account of their race or on the 2 assumption that 3 impartially to consider the State's case against a defendant from 4 that racial group. 5 defendant can make out a prima facie case of discriminatory jury 6 selection by the totality of the relevant facts about a 7 prosecutor's conduct during the defendant's own trial. 8 94, 96. 9 burden shifts to the state to come forward with a neutral jurors of a racial group will be unable Batson v. Kentucky, 476 U.S. at 89. A Id. at Once the defendant makes a prima facie showing, the 10 explanation for challenging jurors within an arguably targeted 11 class. 12 specific explanation of the legitimate reasons for exercising the 13 challenge or challenges. 14 the duty to determine if the defendant has established purposeful 15 discrimination. 16 racial motivation rests with, and never shifts from, the opponent 17 of the strike. 18 Id. at 97. Id. A prosecutor must give a clear and reasonably Id. at 98. The trial court then has The ultimate burden of persuasion regarding Purkett v. Elem, 514 U.S. 765, 768 (1995). Under Batson's first step, the defendant must establish a 19 prima facie case of purposeful discrimination. 20 at 93-94. 21 of a cognizable racial group, 2) the prosecutor used a peremptory 22 strike to remove the juror and 3) the totality of the 23 circumstances raises an inference that the strike was on account 24 of race. 25 Cir. 2010). 26 first step by producing evidence sufficient to permit the trial 27 judge to draw an inference that discrimination has occurred. 28 Johnson v. California, 545 U.S. 162, 170 (2005). Batson, 476 U.S. He must show that 1) the prospective juror is a member Id. at 96; Crittenden v. Ayers, 624 F.3d 943, 955 (9th A defendant satisfies the requirements of Batson’s 29 Unless the 1 court finds a prima facie showing of discrimination, Batson does 2 not require the party exercising the peremptory challenge to 3 provide race- or gender-neutral reasons. 4 U.S. 127, 144-45 (1994); Batson, 476 U.S. at 97. 5 J.E.B. v. Alabama, 511 With respect to the prima facie inquiry, the determination 6 made by the trial court involves a mixed question of law and fact 7 because the court must determine whether the facts, which are 8 established because they customarily have all occurred in the 9 presence of the trial court in the courtroom, are sufficient to 10 meet the requirements of the legal rule concerning a prima facie 11 case. 12 banc). 13 Tolbert v. Page, 182 F.3d 677, 681 n.6 (9th Cir. 1999) (en Credibility findings a trial court makes in a Batson inquiry 14 are reviewed in a federal habeas proceeding under 28 U.S.C. 15 § 2254(d)(2). 16 (declining to decide whether § 2254(e)(1) also applied). 17 Further, a state trial court’s ruling on whether a criminal 18 defendant has established a prima facie case of prosecutorial 19 discrimination in the exercise of a peremptory challenge is 20 reviewed with deference and will be afforded the statutory 21 presumption of correctness. 22 89 (9th Cir. 1999) (regarding the pre-AEDPA version of 28 U.S.C. 23 § 2254(d) (1995) (“[A] determination after a hearing on the 24 merits of a factual issue, made by a state court... evidenced by 25 a written finding... shall be presumed to be correct.”)); Tolbert 26 v. Page, 182 F.3d at 682. 27 and it often involves the credibility and demeanor of the 28 attorney who exercised the challenge as well as the demeanor or Rice v. Collins, 546 U.S. 333, 338 (2006) Tolbert v. Gomez, 190 F.3d 985, 988- The determination is fact-dominated, 30 1 behavior of jurors, matters which lie peculiarly within a trial 2 judge's province. 3 Batson, 476 U.S. at 95); see, Hernandez v. New York, 500 U.S. 4 352, 365 (1991) (plurality opinion); Snyder v. Louisiana, 552 5 U.S. 472, 477 (2008). 6 Tolbert, 182 F.3d at 681-85, 682 (citing Further, where review of a state court’s factual finding of 7 the presence or absence of discriminatory animus is based 8 entirely on information contained in the state court record, 9 § 2254(d)(2) is the governing statute; where review involves 10 extrinsic evidence, § 2254(e)(1) governs review. 11 584 F.3d 1174, 1181 & n.4 (9th Cir. 2009) (citing Kesser v. 12 Cambra, 465 F.3d 351, 358 & n.1 (9th Cir. 2006) and Taylor v. 13 Maddox, 366 F.3d 992 (9th Cir. 2004)); but see, Miller-El v. 14 Dretke, 545 U.S. 231, 240 (2005) (failing to distinguish between 15 the two statutes). 16 the state court record, § 2254(d)(2) should govern the analysis. 17 Pursuant to § 2254(d)(2), a habeas petition may be granted Ali v. Hickman, Here, where the Court’s review is limited to 18 only if the state court’s conclusion was an unreasonable 19 determination of the facts in light of the evidence presented in 20 the state court proceeding. 21 habeas court must find that the trial court’s factual 22 determination was unreasonable such that a reasonable fact finder 23 could not have made the finding; that reasonable minds might 24 disagree with the determination or have a basis to question the 25 finding is not sufficient. 26 the determination made under § 2254(d)(1), the state court’s 27 determination must be not merely incorrect or erroneous, but 28 rather objectively unreasonable. For relief to be granted, a federal Rice, 546 U.S. at 340-42. 31 As with Taylor v. Maddox, 366 F.3d 992, 1 999 (9th Cir. 2004). 2 unsupported by substantial evidence, the federal habeas court 3 must be convinced that an appellate panel, applying the normal 4 standards of appellate review, could not reasonably conclude that 5 the finding is supported by the record. 6 C. To conclude that a state court finding is Id. at 1000. Analysis 7 Here, the CCA articulated the correct, clearly established 8 federal legal standards as set forth in Batson and its progeny. 9 The decision referred to clearly established federal law. 10 Further, the CCA applied that law in a manner that was consistent 11 with the law and objectively reasonable in light of the facts and 12 factual findings. 13 With respect to factual findings, the CCA reasonably 14 concluded that the trial court had determined that a prima facie 15 case had not been made when the court stated that it had not 16 “reached the point of Batson-Wheeler type matter.” 17 The trial court had not solicited the prosecutor’s explanations; 18 rather, the transcript shows that the prosecutor spontaneously 19 offered her description of the challenges and jurors immediately 20 after defense counsel made the motion and identified five jurors 21 as allegedly having been challenged on the basis of race. 22 at 114.) 23 names, helping the prosecutor to connect the names listed by 24 defense counsel with the individual prospective jurors, whom the 25 prosecutor had apparently tracked by seating location. 26 114-17.) 27 trial court included her impression that Mr. L was not Hispanic, 28 the history of in camera proceedings involving the prospective (RST 117.) (Id. The trial court then proceeded through the specified (Id. at Further, the data the prosecutor communicated to the 32 1 jurors, and information concerning other prospective jurors who 2 remained and who might have been Hispanic. 3 Considering the number of jurors involved and the information 4 communicated, the colloquy appears to have oriented the trial 5 court and the parties and to have marshaled the facts concerning 6 the affected prospective jurors to enable a prima facie 7 determination to be made. 8 circumstances and noted that there was no basis for concluding 9 that the prosecutor’s actions were to keep Hispanic people off (Id. at 116.) The trial court reviewed the 10 the jury. 11 inference that the trial court considered the pertinent responses 12 of the prospective jurors, the nature of the charges and the 13 defenses anticipated to be raised, the presence of weighty 14 reasons for challenging the panel members that were independent 15 of ethnicity and of a sort that had precipitated challenges to 16 non-Hispanic jurors, the prosecutor’s challenges to four or five 17 jurors who did not appear to be Hispanic, and the fact that all 18 parties declined the court’s request to voir dire on ethnicity in 19 the context of the entire voir dire. 20 prosecutor did not expressly list as a reason for striking Mr. L 21 the unresolved claim of molestation by Mr. L’s sister, the record 22 appropriately considered by the trial court included that 23 information. (Id. at 117.) The transcript also supports an (Id. at 117.) Although the 24 In addition to Mr. L, the prosecutor challenged two other 25 prospective jurors who had been molested or had a close family 26 member who had been molested. 27 that the prosecutor believed that persons whose close relatives 28 had experienced molestation or who had been molested themselves The record supported an inference 33 1 would have been biased in favor of the defendants, who committed 2 the criminal acts in response to information that the victim had 3 molested their daughter. 4 Ms. D’s depression and reaction to what she perceived as an 5 unfair prosecution of her daughter, and Mr. N’s level of 6 distraction warranted a conclusion that these other apparently 7 Hispanic jurors were challenged for substantial reasons unrelated 8 to ethnicity but reasonably bearing upon the jurors’ ability to 9 attend to the evidence and render an impartial verdict. The unwillingness of Mr. A to serve, In light 10 of all the evidence presented, a reasonable fact finder could 11 have made the finding and the trial court’s determination was not 12 objectively unreasonable or unsupported by substantial evidence. 13 In sum, the Court concludes that the state court decision 14 affirming the trial court’s finding of no prima facie case of 15 discrimination was not contrary to, or an unreasonable 16 application of, clearly established federal law, and it was not 17 based on an unreasonable determination of facts in light of the 18 evidence presented in the state court proceedings. 19 recommended that Petitioner’s claim concerning the peremptory 20 challenge of Mr. L be denied. It will be 21 VI. 22 Petitioner argues that the trial court’s failure to permit Right to Present a Defense 23 Dr. Seymour to testify concerning special considerations in 24 interviewing a toddler violated Petitioner’s right to present a 25 defense. 26 27 28 A. The State Court Decision The pertinent portion of the decision of the CCA is as follows: 34 1 II. Dr. Seymour's Testimony 2 Charlotte, joined by Edward, contends the trial court deprived her of her federal constitutional right to present a full or complete defense when it limited the scope of her cross-examination of Dr. Seymour and denied her request to call Dr. Seymour as her own witness. (U.S. Const., Amends. V, XIV.) We disagree. 3 4 5 A. Trial Proceedings 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dr. Seymour opined on direct examination that Edward's actions on the day in question were impulsive. When explaining his interview of Edward, Dr. Seymour mentioned he had reviewed a police report that stated an officer responded to the Gutierrezes' apartment on the morning of the charged crimes and based on the information the officer gathered, including talking to Eduardo, informed Edward “that there was not a way to proceed with this at this point” but he should contact child protective services and get their daughter checked medically. During cross-examination by the prosecutor, Dr. Seymour confirmed that he had read the following paragraph from Officer Briggs's police report: “I spoke to the victim about good touch, bad touch, which she understood. I asked her if she had ever been touched in a bad way. The victim told me she had not.” He also confirmed he had read Officer Briggs's statement in his report that the daughter didn't give him any indication she had been touched inappropriately. Dr. Seymour also confirmed during the prosecutor's cross-examination that he did not interview anyone other than Edward. During cross-examination by Charlotte's counsel, Dr. Seymour was asked: “In terms of [Edward's] belief that his daughter was molested, given what he told you, do you believe that belief was reasonable?” Dr. Seymour responded, “That she could have been?” Charlotte's counsel said, “Yes.” Dr. Seymour answered: “It is a reasonable concern, if your child tells you that, that you would suspect that, that he would be concerned about that under the circumstances.” Dr. Seymour also testified on cross-examination by Charlotte's counsel that he had taught about a dozen courses in developmental and child psychology, and confirmed there were special difficulties when asking questions of a three-and-a-half year old. Dr. Seymour explained the difficulties: “One of the principal concerns is the extent to which a child of that age has the capacity to differentiate reality from fantasy. A second concern is language based. We use different language than children, and as a consequence, that's always a concern. The third concern is how is 35 1 2 3 4 5 information incorporated into memory. One of the things we know, for example, is by the time most of us get to age ten, we don't remember a lot that happened before age five. That's because much of what gets incorporated in our memory is not language based, which is how we're trying to pull it up now. [¶] So a lot of the information is emotional based. It's image based, sounds, pictures, that kind of thing more so than the language we would expect of an older child, adolescent or adult. Those are several of the main factors.” 6 7 8 9 10 When Charlotte's counsel asked if Dr. Seymour ever had interviewed a three-and-a-half year old, he responded: “Yes, if you call it an interview. It's not the interview the way we would typically think about it, but I have evaluated children of that age.” The following ensued: “[CHARLOTTE'S COUNSEL]: All right. You say it's not the way we typically think of it. 11 “[DR. SEYMOUR]: Yes, that's correct. 12 “[CHARLOTTE'S COUNSEL]: What [ ] do you mean by that? 13 “[PROSECUTOR]: Objection. Relevancy. 14 “THE COURT: Sustained. 15 “[CHARLOTTE'S COUNSEL]: Well, Judge, I would like to16 “THE COURT: I've sustained the objection. Go ahead. 17 18 “[CHARLOTTE'S COUNSEL]: Can I call him as my own witness? 19 “THE COURT: No. 20 “[CHARLOTTE'S COUNSEL]: I intend to call him as my own witness. May I do it now? 21 22 “THE COURT: I sustained the objection. And you're not asking him on this issue. That means you move on to the next step. [¶] Proceed. 23 24 25 “[CHARLOTTE'S COUNSEL]: I don't have any further questions.” 26 Dr. Seymour was ultimately excused “subject to recall” by Charlotte's counsel, but he never recalled him as a witness. 27 B. Analysis 28 Charlotte contends the trial court erred when it 36 1 2 3 4 5 6 7 8 9 10 11 sustained the prosecutor's relevancy objection and refused to allow her to call Dr. Seymour as her own witness on the issue of interviewing a three-year-old child. Charlotte asserts the testimony was relevant because the prosecutor, by her cross-examination of Dr. Seymour, was inviting the jury to conclude that his evaluation and opinion regarding Edward's mental state were defective due to the contents of Officer Briggs's report and Dr. Seymour's failure to interview her daughter. Charlotte reasons that without Dr. Seymour's testimony regarding “the intricacies of child victim interviews,” her daughter's denial of molestation to Officer Briggs stood uncontested and true, therefore Dr. Seymour could not have opined that Edward reasonably relied on his daughter's statements as the root of his actions. Charlotte concludes the absence of testimony which would undermine Officer Briggs's interview of her daughter and her daughter's denial of molestation deprived her of a defense, or the opportunity to present a complete defense, i.e. that she and Edward could rely on their daughter's statements as the basis for their actions. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 “‘The state and federal Constitutions guarantee the defendant a meaningful opportunity to present a defense....’” (People v. Woods (2004) 120 Cal.App.4th 929, 936.) However, “[a]pplication of the ordinary rules of evidence... does not impermissibly infringe on a defendant's right to present a defense.” (People v.. Mincey (1992) 2 Cal.4th 408, 440.) Even erroneous limitations placed on a defendant's right to present evidence generally do not constitute a deprivation of a defendant's constitutional right to present a defense: “‘Although completely excluding evidence of an accused's defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense. [Citation.] If the trial court misstepped, “[t]he trial court's ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.” ’” (People v. Boyette (2002) 29 Cal.4th 381, 428 (Boyette).) The California Supreme Court has held: “‘The trial court has broad discretion in determining the relevance of evidence....’ ” (People v. Smithey (1999) 20 Cal.4th 936, 973.) We examine the admissibility of the proffered evidence utilizing the deferential abuse of discretion standard of review. (People v. Cox (2003) 30 Cal.4th 916, 955, disapproved on another point by Doolin, supra, 45 Cal.4th at p. 421, fn. 22 [Evid.Code, § 352]; People v. Rodriguez (1999) 20 Cal.4th 1, 9; Alvarez, supra, 14 Cal.4th at p. 201.) 28 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 In this case, the trial court reasonably could conclude that evidence regarding the problems involved in interviewing a three-year-old child was irrelevant to Dr. Seymour's opinion regarding Edward's mental state, as well as the issues in the case. The primary issues in the case were Edward's and Charlotte's mental states when the homicide occurred. Dr. Seymour testified Edward acted impulsively, i.e. he wanted to confront Eduardo about the alleged molestation and got out of control once he did so. He also testified it was reasonable, “if your child tells you” she was molested, to be concerned about and suspect molestation “under the circumstances.” As the trial court and the parties noted during discussion of the prosecutor's pretrial in limine motion regarding limitations on evidence regarding the alleged molestation, the relevant issue was what information was relayed to the parents, not whether the molestation did or did not happen. Since Charlotte and Edward would not be aware of how an interview of a three-year-old should be conducted or whether Officer Briggs's interview was proper, the evidence of such is irrelevant to their states of mind. The evidence is also not relevant to Dr. Seymour's opinion, which was simply that if your child tells you she has been molested, it is reasonable to be concerned about that. Accordingly, no abuse of discretion occurred. (People v. Rodriguez, supra, 20 Cal.4th at p. 9; People v. Quartermain (1997) 16 Cal.4th 600, 626.) 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In view of our conclusion that the trial court did not abuse its discretion in limiting the expert's testimony, it necessarily follows that the court did not violate Charlotte's or Edward's constitutional right to present a defense. (See People v. Babbitt (1988) 45 Cal.3d 660, 685.) Even assuming, strictly for the sake of argument, that the court erred in excluding any of the evidence, such error did not deprive Charlotte or Edward of their constitutional right to present a defense. Dr. Seymour did testify that young children are difficult interview subjects. Moreover, Charlotte's counsel was able to question Officer Briggs about his lack of special training in interviewing young children or of having taken courses in child psychology, and Edward's counsel questioned him extensively about the scope of his interview of the daughter and his failure to ask her directly about “spiders.” From this, Edward's counsel was able to argue to the jury that their daughter was not sophisticated enough to relay the details of the alleged molestation and Officer Briggs's interview was incomplete. In addition, Charlotte's counsel was able to argue that: while it was not for the jury to decide whether a molestation occurred, it was reasonable for Charlotte and Edward to believe their daughter had been molested because of what she said and the way she was 38 1 2 3 4 acting; and Officer Briggs should not have interviewed their daughter, and instead should have taken a report from Charlotte and Edward and referred their daughter to a detective who specialized in child molestation, since it takes great skill and training to interview a three-and-a-half year old. The trial court did not “completely exclud[e] evidence of [their] defense.” (Boyette, supra, 29 Cal.4th at p. 428.) 5 People v. Gutierrez, 2009 WL 765680, *16-*19. 6 B. Legal Standards 7 Although state and federal authorities have broad latitude 8 to establish rules excluding evidence from criminal trials, the 9 Due Process Clause of the Fourteenth Amendment and the Compulsory 10 Process and Confrontation clauses of the Sixth Amendment 11 guarantee a criminal defendant a meaningful opportunity to 12 present a complete defense. Crane v. Kentucky, 476 U.S. 683, 690 13 (1986). It is a fundamental element of due process of law that a 14 defendant has a right to present a defense by compelling the 15 attendance and presenting the testimony of witnesses. Washington 16 v. Texas, 388 U.S. 14, 18-19, 23 (1967). However, a defendant 17 does not have an absolute right to present evidence without 18 reference to its significance or source; rather, the right to 19 present a complete defense is implicated when the evidence the 20 defendant seeks to admit is relevant, material, and vital to the 21 defense. Id. at 16. Further, the exclusion of the evidence must 22 be arbitrary or disproportionate to the purposes the exclusionary 23 rule is designed to serve. Holmes v. South Carolina, 547 U.S. 24 319, 324-25 (2006). If the mechanical application of a rule that 25 is respected, frequently applied, and otherwise constitutional 26 would defeat the ends of justice, then the rule must yield to 27 those ends. Chambers v. Mississippi, 410 U.S. 284, 302 (1973). 28 39 1 However, well established rules of evidence permit trial 2 judges to exclude evidence if its probative value is outweighed 3 by other factors such as unfair prejudice, confusion of the 4 issues, or potential to mislead the jury. 5 Carolina, 547 U.S. at 326. 6 permissible to exclude evidence that is repetitive, only 7 marginally relevant, or poses an undue risk of harassment, 8 prejudice, or confusion of the issues. 9 547 U.S. at 326-27. 10 Holmes v. South Thus, it is constitutionally Holmes v. South Carolina, Where exclusion of evidence violates a petitioner’s right to 11 present a defense, habeas relief is the appropriate remedy only 12 if the constitutional violation resulted in error that was not 13 harmless, that is, error that resulted in actual prejudice, or 14 had a substantial and injurious effect or influence in 15 determining the jury’s verdict. 16 2012 WL 3156377, *11 (No. 09-17239, 9th Cir. Aug. 6, 2012) 17 (citing Fry v. Pliler, 551 U.S. 112, 121-22 (2007) and Brecht v. 18 Abrahamson, 507 U.S. 619, 637 (1993)). 19 Brecht standard has been met, a court considers various factors, 20 including but not limited to 1) the importance of the witness’s 21 testimony in the prosecution’s case, 2) whether the testimony was 22 cumulative, 3) the presence or absence of evidence corroborating 23 or contradicting the testimony of the witness on material points, 24 4) the extent of cross-examination otherwise permitted; and 5) 25 the overall strength of the prosecution’s case. 26 Yates, 663 F.3d 444, 455 (9th Cir. 2011) (citing Delaware v. Van 27 Arsdall, 475 U.S. 673, 684 (1986)). 28 /// Jackson v. Nevada, - F.3d -, 40 To consider whether the Merolillo v. 1 2 C. Analysis As a preliminary matter, Respondent objects that Petitioner 3 lacks standing to raise this issue because it was Petitioner’s 4 co-defendant, and not Petitioner, who attempted to introduce the 5 evidence. 6 co-defendant was sufficient to confer standing. 7 Petitioner argues that his special relationship as a The jurisdiction of the Court is limited to cases and 8 controversies. 9 subject matter jurisdiction, a petitioner must have standing to U.S. Const. art III, § 1. For this Court to have 10 sue at the time the action is filed. 11 Wildlife, 504 U.S. 555, 569 n.4 (1992). 12 establishing standing, a litigant must show that 1) he personally 13 has suffered an actual or prospective injury as a result of the 14 putatively illegal conduct; 2) the injury can be fairly traced to 15 the challenged conduct; and 3) the injury is likely to be 16 redressed through court action. 17 504 U.S. 560-562; Valley Forge Christian College v. Americans 18 United for Separation of Church and State, Inc., 454 U.S. 464, 19 472 (1982). 20 i.e., an invasion of a legally protected interest which is a) 21 concrete and particularized, and b) actual or imminent, and not 22 conjectural or hypothetical. 23 connection between the injury and the conduct complained of such 24 that the injury is not the result of the independent action of a 25 third party not before the Court. 26 Lujan v. Defenders of To meet the burden of Lujan v. Defenders of Wildlife, Plaintiff must have suffered an “injury in fact,” Id. There must be a causal Id. Here, although the witness was Petitioner’s witness, it was 27 the co-defendant’s counsel who asked the pertinent questions that 28 elicited the relevance objection. 41 However, regardless of how 1 entitlement to claim an injury is conceptualized, it is 2 undisputed that Dr. Seymour was excused without qualification by 3 Petitioner’s counsel at the end of the examination. 4 99.) 5 witness be excused subject to recall, the trial court admonished 6 the witness that he could be recalled by means of a telephone 7 call. 8 questioning the witness about interviewing children. 9 sustaining the relevance objection to the question concerning (4 RT 898- When Petitioner’s co-defendant’s counsel asked that the (Id.) The trial court had not completely prohibited Rather, in 10 interviewing young children, the trial court merely declined to 11 permit the co-defendant to examine the witness in the course of 12 cross-examination. 13 that either Petitioner’s counsel or his co-defendant’s counsel 14 attempted to recall the witness. 15 Petitioner complains was the result of the conduct of his own 16 counsel and counsel for the co-defendant, and not the trial 17 court’s ruling on the objection. Neither party contends that the record shows Therefore, the injury of which 18 Respondent contends that Petitioner’s claim is foreclosed 19 because there is no clearly established federal law concerning 20 the exclusion of evidence in the context of the present case, 21 which relates to the exclusion of expert testimony. 22 It is not an unreasonable application of clearly established 23 federal law for a state court to decline to apply a specific 24 legal rule that has not been squarely established by the Supreme 25 Court. 26 Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 27 legal rule may not be inferred from Supreme Court precedent 28 merely because such a rule might be logical in light of that Harrington v. Richter, 131 S.Ct. at 786 (quoting 42 A specific 1 precedent; rather, the Supreme Court case itself must have 2 “squarely” established that specific legal rule. 3 S.Ct. at 786; Knowles v. Mirzayance, 129 S.Ct. 1411, 1419 (2009). 4 Further, the Supreme Court itself must have applied the specific 5 legal rule to the context in which the petitioner’s claim arises. 6 Premo v. Moore, 131 S.Ct. 733, 743 (2011); Carey v. Musladin, 549 7 U.S. 70, 75-76 (2006) (the Court’s application to government 8 practices of a legal rule concerning wearing prison clothing at 9 trial does not clearly establish that the rule applies to private 10 11 Richter, 131 conduct of spectators). In arguing the absence of clearly established federal law, 12 Respondent relies on Moses v. Payne, 555 F.3d 742 (9th Cir. 13 2009), which upheld as not contrary to clearly established 14 federal law the exclusion of the defendant’s expert witness’s 15 testimony regarding the victim’s depression. 16 The state court rule in operation in Moses v. Payne admitted 17 expert testimony if it would assist the trier of fact to 18 understand the evidence or a fact in issue, such as when the 19 testimony concerned matters beyond the common knowledge of the 20 average layperson and was not misleading. 21 considered whether clearly established federal law governed the 22 state court’s decision excluding the evidence as cumulative and 23 not sufficiently probative to outweigh likely prejudice and 24 confusion. 25 did not squarely address the issue of whether a rule requiring a 26 trial court to balance factors and exercise its discretion 27 infringed upon a weighty interest of the accused or was arbitrary 28 or disproportionate to the purposes it was designed to serve. Id. at 756. The court The court noted that the Supreme Court’s decisions 43 Id 1 at 758. 2 was a well established rule of evidence that permitted a trial 3 court to exercise its discretion in admitting expert testimony 4 when relevant, and thus it was “more analogous to” evidentiary 5 rules approved in Holmes v. South Carolina, 547 U.S. 319, that 6 excluded evidence where probative value was outweighed by unfair 7 prejudice, confusion of issues, or potential to mislead the jury. 8 Moses v. Payne, 555 F.3d at 758. However, the court noted that the state rule in issue 9 The court in Moses noted that evidentiary rules held to be 10 constitutionally offensive by the Supreme Court were rules that 11 by their own terms required the exclusion of crucial evidence, 12 such as testimony of a defendant or key percipient witnesses, or 13 all evidence relating to a crucial defense, that had a critical 14 effect on the trial with little or no corresponding rational 15 justification. 16 issue in Moses was actually an exercise of discretion to exclude 17 expert testimony. 18 Court cases did not 1) squarely address whether a court’s 19 exercise of discretion to exclude expert testimony violates a 20 criminal defendant’s constitutional right to present relevant 21 evidence, or 2) clearly establish a controlling legal standard 22 for evaluating discretionary decisions to exclude the type of 23 evidence at issue. 24 decision upholding the trial court’s discretionary exclusion of 25 the expert testimony could not have been, and thus was not, 26 contrary to, or an unreasonable application of, clearly 27 established Supreme Court precedent. 28 Id. However, the ruling by the trial court at The court in Moses concluded that Supreme Id. at 758-79. Thus, the state court’s Id. at 759. Based on the analysis set forth in Moses v. Payne, the state 44 1 court’s decision upholding the trial court’s discretionary 2 exclusion of expert testimony concerning interviewing young 3 children was not contrary to, or an unreasonable application of, 4 clearly established federal law. 5 However, even if the Supreme Court’s general due process 6 standard were considered to be clearly established federal law 7 governing state court discretionary decisions concerning the 8 exclusion of expert testimony, Petitioner has not shown that the 9 state court’s decision in the present case was contrary to, or an 10 unreasonable application of, clearly established federal law. 11 As the state court noted, the evidence lacked the necessary 12 relevance and materiality for its exclusion to offend due 13 process. 14 what homicidal offense had been committed related to Petitioner’s 15 state of mind, which Petitioner argued was one of extreme 16 emotional pain and impulsive reactivity. 17 difficulty of interviewing young children related to Petitioner’s 18 state of mind only tangentially. 19 interviewing techniques or considerations arose with young 20 children could reflect on the thoroughness and accuracy of 21 Officer Briggs’ evaluation of the child, which in turn would tend 22 to show that the officer’s understanding of the events 23 experienced by the child was unreliable. 24 understanding that the child did not claim to have been touched 25 inappropriately was shown to have been unreliable, the 26 defendant’s claim of having a basis for impulsive conduct may 27 have been strengthened slightly. 28 /// The issues pertinent to the question of determining 45 The subject of the Information that special If the officer’s 1 However, whether or not the daughter had been molested, or, 2 more directly, whether or not the officer was told by the child 3 that she was molested, were not the ultimate issues in the case. 4 Instead, the decisive questions concerned whether the Petitioner 5 acted with malice or had instead acted in the sudden heat of 6 passion with sufficient provocation. 7 given, the jury had to determine the weight and significance of 8 any provocation, which could reduce murder to voluntary 9 manslaughter if because of a sudden quarrel or in the heat of 10 passion 1) the defendant was provoked, 2) as a result of the 11 provocation, the defendant acted rashly and under the influence 12 of intense emotion that obscured his or her reasoning or 13 judgment, and 3) the provocation would have caused an ordinary 14 person of average disposition to act rashly and without due 15 deliberation, that is, from passion rather than from judgment. 16 (2 CT 265, 291-92.) 17 have acted under the direct and immediate influence of the 18 provocation. 19 jury had to consider whether an ordinary person of average 20 disposition would have been provoked, and how such a person would 21 react in the same situation knowing the same facts. 22 292.) 23 Under the instructions The jury was told that the defendant must In deciding the sufficiency of the provocation, the (Id. at The evidence showed that on the morning in question, 24 Petitioner and his wife engaged in multiple acts consistent with 25 the sudden discovery, and subjectively sincere belief, that their 26 daughter had been molested, including reporting the matter to law 27 enforcement and to the landlord’s agent and seeking medical 28 attention. The daughter’s failure to give a full account of what 46 1 she experienced to the officer did not detract from the nature of 2 the provocation presented to Petitioner, namely, that the 3 daughter had experienced nightmares in which she begged not to be 4 touched, she referred to seeing the hair of the victim, and she 5 had reported having been touched and hurt by the victim; further, 6 the victim was angered by the accusation. 7 opined that Petitioner’s concern that his daughter had been 8 molested was reasonable under the circumstances. 9 question was not whether the daughter had actually been molested The psychologist The central 10 or whether the daughter repeated the same matters to the officer; 11 the question was “if the killer’s reason was actually obscured as 12 the result of a strong passion aroused by a ‘provocation’ 13 sufficient to cause an ‘ “ordinary [person] of average 14 disposition... to act rashly or without due deliberation and 15 reflection, and from this passion rather than judgment.” ’” 16 People v. Breverman, 19 Cal.4th 142, 163 (1998). 17 Thus, what the child told the officer or the correct 18 protocol for a law enforcement officer interviewing a child were 19 not relevant to the issues of state of mind or were only 20 tangentially relevant at best; likewise, this evidence was not 21 material to the issues. 22 conclude that no weighty interest of Petitioner was infringed. 23 Further, the exclusion advanced goals related to the A fair-minded jurist could therefore 24 administration of justice. 25 children were difficult interview subjects, and defense counsel 26 had elicited testimony from Officer Briggs that he did not ask 27 the child about “spiders,” and he lacked special training or 28 course work concerning the interviewing or the psychology of Dr. Seymour had testified that young 47 1 children. 2 relevant matters was in the record. 3 conclude that the exclusion of the evidence furthered recognized 4 values related to the administration of justice by avoiding 5 repetition and eliminating only marginally relevant evidence to 6 avoid confusion of the issues and misleading the jury. 7 reasonable for the state court to conclude that the exclusion of 8 the testimony was not arbitrary or disproportionate. 9 Significant evidence concerning these tangentially A fair-minded jurist could It was In any event, the exclusion of the evidence did not have a 10 substantial and injurious effect or influence in determining the 11 jury’s verdict. 12 proof concerning what the testimony of the expert would have 13 been, so the precise matter that was excluded is unclear, and the 14 effect of the exclusion is thus speculative. 15 the proper methodology for interviewing a child would not have 16 bolstered or undercut the reasonableness of Petitioner’s belief 17 that his child was molested, which was based not on an interview, 18 but rather on his daughter’s nightmares, statements, and other 19 behavior. 20 Multiple sources of evidence revealed that it was Petitioner who 21 sought out the victim and inflicted the multiple stab wounds; 22 thus, it was clear that Petitioner voluntarily advanced on the 23 victim and killed him. 24 the type of instruments used in the killing, and his aggressive 25 confrontation of the victim with the weapons amply supported the 26 finding that the murder was premeditated. 27 28 The parties have not pointed to any offer of Evidence concerning Extensive evidence of malice was before the jury. Petitioner’s purchase of a knife and bat, In sum, the state court’s decision that exclusion of the evidence did not violate Petitioner’s right to present a defense 48 1 was not contrary to, or an unreasonable application of, clearly 2 established federal law within the meaning of § 2254(d)(1). 3 VII. 4 Petitioner argues that his rights to present a complete Instruction on Voluntary Manslaughter 5 defense and to a fair trial under the Fifth and Fourteenth 6 Amendments were violated by the trial court’s failure to instruct 7 the jury correctly on voluntary manslaughter. 8 premises his argument on the failure of the trial court’s 9 instruction to inform the jury that voluntary manslaughter Petitioner 10 requires either an intent to kill or a conscious disregard for 11 life. 12 13 14 A. The State Court Decision The pertinent portion of the opinion of the CCA is as follows: 15 IV. Jury Instructions 16 Charlotte, joined by Edward, contends the trial court denied her federal and state constitutional rights to due process, a fair trial, and to present a defense, because the jury instructions on voluntary manslaughter were defective. Specifically, Charlotte asserts the court erred in not specifically instructing the jury that a defendant who, with the intent to kill or with conscious disregard for life, unlawfully kills in unreasonable self-defense or defense of others, or in the heat of passion, is guilty of voluntary manslaughter. We conclude there was no error in the instructions given. 17 18 19 20 21 22 A. Instructions Given to the Jury 23 24 25 26 27 28 The trial court instructed the jury with a series of instructions on homicide, as follows: “[CALCRIM No. 500] Homicide is the killing of one human being by another. Murder is a type of homicide. The defendants are charged with murder. [¶] A homicide can be lawful or unlawful. If a person kills with a legally valid excuse or justification, the killing is lawful, and he or she has not committed a 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 crime. If there is no legally valid excuse or justification, the killing is unlawful and, depending on the circumstances, the person is guilty of either murder or manslaughter. You must decide whether the killing in this case was unlawful and, if so, what specific crime was committed.” “[CALCRIM No. 520] The defendants are charged in Count I with murder. To prove that a defendant is guilty of this crime, the People must prove that: [¶] One, the defendant committed an act that caused the death of another person; [¶] Two, when the defendant acted, he or she had a state of mind called malice aforethought; and, [¶] Three, he or she killed without lawful excuse or justification. [¶] There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. The defendant acted with express malice if he or she unlawfully intended to kill. [¶] The defendant acted with implied malice if: [¶] One, he or she intentionally committed an act; [¶] Two, the natural consequences of the act were dangerous to human life; [¶] Three, at the time he or she acted, he or she knew his act was dangerous to human life; and, [¶] Four, he or she deliberately acted with conscious disregard for human life. [¶] Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.” 20 21 The court further instructed with CALCRIM No. 521, on the degrees of murder, and CALRCRIM No. 522, on the effect of provocation. 22 23 The court also instructed the jury on voluntary manslaughter based on heat of passion (pursuant to CALCRIM No. 570), as follows: 24 25 26 27 28 “A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendants killed someone because of a sudden quarrel or in the heat of passion. A defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶] One, the defendant was provoked; [¶] Two, as a result of the provocation, the defendant 50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 acted rashly and under the influence of intense emotion that obscured his or her reasoning or judgment; and, [¶] Three, the provocation would have caused an ordinary person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. “Heat of passion does not require anger, rage or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. [¶] In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. [¶] It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his or her own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation as sufficient, consider whether an ordinary person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts. [¶] If enough time passed between the provocation and the killing for an ordinary person of average disposition to “cool off” and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis. “The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder.” 23 24 Finally, the court instructed the jury on imperfect self-defense and imperfect defense of others (pursuant to CALCRIM No. 571), as follows: 25 26 27 28 “A killing that would otherwise be murder is reduced to voluntary manslaughter if a defendant killed a person because he or she acted in “imperfect self-defense” or “imperfect defense” of another. [¶] If you conclude that defendant Charlotte Gutierrez 51 1 2 3 4 5 6 7 8 9 10 acted in complete “defense of another,” defendant Edward Gutierrez, her action was lawful and you must find her not guilty of any crime. The difference between complete “defense of another” and “imperfect self-defense” or “imperfect defense of another” depends upon whether a defendant's belief in the use of deadly force was reasonable. “Defendant Edward Gutierrez acted in “imperfect self-defense” if: [¶] One, Defendant Edward Gutierrez actually believed that he was in imminent danger of being killed or suffering great bodily injury; and [¶] Two, Defendant Edward Gutierrez actually believed that the immediate use of deadly force was necessary to defend against the danger; but, [¶] Three, at least one of those beliefs was unreasonable. 11 12 13 14 15 16 “Defendant Charlotte Gutierrez acted in “imperfect defense of another” if: [¶] One, Defendant Charlotte Gutierrez actually believed that Defendant Edward Gutierrez was in imminent danger of being killed or suffering great bodily injury; and [¶] Two, Defendant Charlotte Gutierrez actually believed that the immediate use of deadly force was necessary to defend against that danger; but, [¶] Three, at least one of those beliefs was unreasonable. 17 18 19 20 21 “Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. [¶] In evaluating a defendant's beliefs, consider all the circumstances as they were known and appeared to a defendant. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. 22 23 24 25 26 “The People have the burden of proving beyond a reasonable doubt that defendant Edward Gutierrez was not acting in “imperfect self-defense” or that defendant Charlotte Gutierrez was not acting in “imperfect defense of another.” If the People have not met this burden, you must find such defendant not guilty of murder.” 27 B. Analysis 28 Our standard of review is de novo, since the question 52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is one of law involving the determination of applicable legal principles. (Alvarez, supra, 14 Cal.4th at p. 217.) A killing is voluntary manslaughter if a person intentionally kills either in unreasonable self-defense or in a sudden quarrel or heat of passion. (People v. Blakeley (2000) 23 Cal.4th 82, 88 (Blakeley); People v. Lasko (2000) 23 Cal.4th 101, 107-108). An unintentional killing may also be voluntary manslaughter when the defendant, acting with conscious disregard for life and the knowledge that the conduct is life-endangering, either (1) unintentionally kills while having an unreasonable but good faith belief in the need to act in self-defense (Blakeley, supra, 23 Cal.4th at pp. 88-91 (Blakeley), or (2) unintentionally but unlawfully kills in a sudden quarrel or heat of passion (Lasko, supra, 23 Cal.4th at pp. 108-111 (Lasko). (People v. Genovese (2008) 168 Cal.App.4th 817, 829 (Genovese).) Voluntary manslaughter may also be committed when a person kills in imperfect defense of another, i.e. in the actual but unreasonable belief he must defend another from imminent danger of death or great bodily injury. (People v. Randle (2005) 35 Cal.4th 987, 990.) Thus, either intent to kill or a conscious disregard for life is an essential requirement of voluntary manslaughter. (Blakeley, supra, 23 Cal.4th at pp. 88-91; Lasko, supra, 23 Cal.4th at pp. 108-109.) 15 16 17 18 19 20 21 22 Charlotte argues the instructions did not inform the jurors they could find her guilty of voluntary manslaughter if they found that she, while acting in imperfect defense of another, or in sudden quarrel or heat of passion, killed either intentionally or unintentionally with conscious disregard for human life. She asserts the trial court should have expressly instructed the jury, in accordance with Blakely and Lasko, that intent to kill or conscious disregard for life is an essential element of voluntary manslaughter, and the failure to so instruct left the jurors with no way to apply her proffered defense to the elements of express or implied malice to ascertain whether these elements had been proven beyond a reasonable doubt. We disagree. 23 24 25 26 27 28 This issue was recently addressed and rejected by the Third District Court of Appeal in Genovese, supra, 168 Cal.App.4th at pp. 831-832. There, the court noted that while the jury was not expressly instructed in this manner, “the jury was instructed, ‘A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect defense of another.’ (Italics added) Similarly, the jury was instructed, ‘A killing that would otherwise be murder is reduced to voluntary 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion .’” (Id. at p. 831.) The court explained that “[t]he killing could not ‘otherwise be murder’ unless the jury found defendant intended to kill the victim or acted with conscious disregard for human life, and the jury was so informed in the instruction defining murder (i.e., that to prove murder, the prosecution must prove defendant acted with malice aforethought, and there are two kinds of malice forethought-express, which requires intent to kill, and implied, which requires conscious disregard for human life).” (Id. at pp. 831-832.) Consequently, the court concluded the instructions did let the jury know that killing in imperfect self-defense, or in sudden quarrel or heat of passion, whether intentional or in conscious disregard of life, is voluntary manslaughter. (Id. at p. 832.) The Genovese court also rejected the defendant's argument that the language in the CALCRIM instructions that “‘killing that would otherwise be murder’ was faulty for failing to inform the jury that voluntary manslaughter could be found despite the existence of an intent to kill or conscious disregard for life.” (Genovese, supra, 168 Cal.App.4th at p. 832.) The defendant had pointed out that intent to kill or conscious disregard for life had been expressly stated as an essential element of voluntary manslaughter in CALJIC No. 8.40, which defined voluntary manslaughter and said that every person who unlawfully kills another human being without malice aforethought but either with an intent to kill or with conscious disregard for human life was guilty of voluntary manslaughter. The court noted that language similar to CALJIC No. 8.40 now appears in CALCRIM No. 572, which defines voluntary manslaughter when murder is not charged, but in the case before it, murder was charged with voluntary manslaughter as a lesser offense. (Genovese, supra, 168 Cal.App.4th at p. 832.) The court concluded the defendant's argument that once the jury determined that express or implied malice was present, they were not told that they could still find the defendant guilty of voluntary manslaughter if they believed he acted in heat of passion or reasonable/unreasonable defense of another, was “defeated by the plain language of the instructions as given to the jury, that ‘[a] killing that would otherwise be murder is reduced to voluntary manslaughter’ if defendant acted in imperfect defense of another or sudden quarrel or heat of passion.” (Ibid.) 26 27 28 We agree with the reasoning in Genovese, which applies to the present case. As in Genovese, the jury here was instructed that a killing “that would otherwise be murder” is reduced to voluntary manslaughter if a 54 1 2 3 4 5 6 defendant killed a person in imperfect defense of another or in a sudden quarrel or heat of passion, and that the killing could not “otherwise be murder” unless the jury found a defendant either had intended to kill the victim or acted with conscious disregard for human life. Thus, the instructions did let the jury know that a killing in imperfect defense of another or in a sudden quarrel or heat of passion, whether intentional or in conscious disregard of life, is voluntary manslaughter. Accordingly, we concluded there was no error in the jury instructions on voluntary manslaughter. 7 People v. Gutierrez, 2009 WL 765680 at *22-*26. 8 B. Analysis 9 In the present case, Respondent characterizes Petitioner’s 10 claim as one pertaining to the right to have instruction on a 11 lesser included offense. Respondent then argues that there is no 12 clearly established federal law requiring instruction on lesser 13 included offenses. 14 As a preliminary matter, it is necessary to clarify the 15 legal basis of the claim and the pertinent legal principles. 16 When a conviction is challenged in a proceeding pursuant to 28 17 U.S.C. § 2254 on the basis of error in jury instructions, a 18 district court’s review is informed by two clearly established 19 rules. 20 First, the United States Supreme Court has held that a 21 challenge to a jury instruction solely as an error under state 22 law does not state a claim cognizable in federal habeas corpus 23 proceedings. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). A 24 claim that an instruction was deficient in comparison to a state 25 model or that a trial judge incorrectly interpreted or applied 26 state law governing jury instructions does not entitle one to 27 relief under § 2254, which requires violation of the 28 55 1 Constitution, laws, or treaties of the United States. 2 §§ 2254(a), 2241(c)(3). 3 claim is based on a state law error, Petitioner fails to state a 4 claim that would entitle him to relief in this proceeding. 28 U.S.C. Thus, to the extent that Petitioner’s 5 However, it does not appear that Petitioner is asserting a 6 state law claim or even a federal claim based on the failure to 7 instruct sua sponte on a lesser included offense; rather, 8 Petitioner appears to be challenging the overall fairness or 9 accuracy of the instructions actually given in light of the 10 11 defense theory of the case. This contention brings into operation the second overarching 12 legal principle that governs review of instructional error 13 undertaken pursuant to § 2254. 14 collateral relief for instructional error is that the infirm 15 instruction or the lack of instruction by itself so infected the 16 entire trial that the resulting conviction violates due process. 17 Estelle, 502 U.S. at 72; Cupp v. Naughten, 414 U.S. 141, 147 18 (1973); see, Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) 19 (noting that it must be established not merely that the 20 instruction was undesirable, erroneous or even “universally 21 condemned,” but that it violated some right guaranteed to the 22 defendant by the Fourteenth Amendment). 23 may not be judged in artificial isolation, but must be considered 24 in the context of the instructions as a whole and the trial 25 record. 26 ambiguous instruction, it must be determined whether there is a 27 reasonable likelihood that the jury has applied the challenged 28 instruction in a way that violates the Constitution. The only basis for federal Estelle, 502 U.S. at 72. 56 Further, an instruction In addition, in reviewing an Estelle, 1 502 U.S. at 72-73 (reaffirming the standard as stated in Boyde v. 2 California, 494 U.S. 370, 380 (1990)). 3 emphasized that the Court had defined the category of infractions 4 that violate fundamental fairness very narrowly, and that beyond 5 the specific guarantees enumerated in the Bill of Rights, the Due 6 Process Clause has limited operation. 7 The Court in Estelle Id. at 72-73. Finally, as previously noted, under the Due Process Clause 8 of the Fourteenth Amendment and the Compulsory Process Clause and 9 Confrontation Clause of the Sixth Amendment, criminal defendants 10 must be afforded a meaningful opportunity to present a complete 11 defense. 12 v. Trombetta, 467 U.S. 479, 485 (1984). 13 characterized its cases as not recognizing a generalized 14 constitutional right to have a jury instructed on a defense 15 available under the evidence under state law. 16 Taylor, 108 U.S. 333, 343 (1993). 17 under 28 U.S.C. § 2254, a failure to instruct on the defense 18 theory of the case constitutes error if the theory is legally 19 sound and evidence in the case makes it applicable. 20 Brown, 450 F.3d 898, 904 (9th Cir. 2006); see, Mathews v. United 21 States, 485 U.S. 58, 63 (1988) (reversing a conviction and 22 holding that even if a defendant denies one or more elements of 23 the crime, he is entitled to an entrapment instruction whenever 24 there is sufficient evidence from which a reasonable jury could 25 find entrapment, and the defendant requests such an instruction). 26 A habeas petitioner must show that the alleged instructional Crane v. Kentucky, 476 U.S. 683, 690 (1986); California The Supreme Court has See, Gilmore v. However, when habeas is sought Clark v. 27 error had substantial and injurious effect or influence in 28 determining the jury's verdict. Clark v. Brown, 450 F.3d at 905; 57 1 Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). 2 error has been held harmless under the Brecht standard where 3 other instructions permitted consideration of the pertinent 4 defensive matter. 5 Cir. 2004) (holding that failure to instruct on manslaughter was 6 not error, but if error was harmless because it had no 7 substantial or injurious effect or influence in determining the 8 jury’s verdict where numerous instructions allowed the jury to 9 consider the effect of threats upon the accused’s mental state, However, such an Beardslee v. Woodford, 358 F.3d 560, 576 (9th 10 both as an absolute defense to all charges and as a factor in 11 choosing between first and second degree murder; the jury had 12 been given more than the simple all-or-nothing choice at issue in 13 Beck v. Alabama, 447 U.S. 625, 638-46 (1980); and the jury's 14 decision to reject second degree murder meant that they would not 15 have accepted the lesser charge of manslaughter). 16 As noted above, the state court had previously articulated 17 the law concerning a right to a meaningful opportunity to present 18 a defense based on the Sixth Amendment’s compulsory process and 19 due process requirements. 20 *18. 21 given concerning murder, malice, provocation, heat of passion, 22 and imperfect defensive privileges. 23 pertinent state law, which, consistent with the instructions 24 given, reflected that either intent to kill or acting with a 25 conscious disregard for life would constitute malice, the 26 essential state of mind element for murder. 27 determined that the instruction that a killing “that would 28 otherwise be murder” was voluntary manslaughter informed the jury People v. Gutierrez, 2009 WL 765680 at The state court examined the totality of the instructions 58 It then reviewed the The state court then 1 that a killing in a sudden quarrel, heat of passion, or in 2 imperfect self-defense was voluntary manslaughter whether it was 3 intentional or a result of acting with a conscious disregard for 4 human life. 5 In sum, the state court articulated the correct legal 6 standard and undertook an analysis of the challenged instruction 7 in light of all the instructions given. 8 reasonably concluded that other instructions augmented or 9 explained the challenged instruction. The state court Given the state court’s 10 approval of the analysis that the plain language of the 11 instructions defeated the Petitioner’s contention, the state 12 court implicitly concluded that it was not reasonably likely that 13 the jury had applied the challenged instruction in a way that 14 violated the Constitution. 15 contrary to, or an unreasonable application of, clearly 16 established federal law. 17 The state court’s decision was not Further, Petitioner has not shown the requisite prejudice. 18 The jury was instructed on the lesser included offense of second 19 degree murder to the effect that acting willfully, deliberately, 20 and with premeditation was classified as first degree. 21 Specifically, the jury was instructed that acting deliberately 22 involved carefully weighing the considerations for and against 23 the choice and deciding to kill knowing the consequences, and 24 that acting with premeditation was deciding to kill before 25 committing the act that caused the death. 26 that a decision to kill made rashly, impulsively, or without 27 careful consideration was not deliberate and premeditated. 28 290-91.) The jury was also told However, the jury returned with a verdict of first (1 CT 59 1 degree murder. 2 rejected Petitioner’s defensive theory of impulsive action 3 despite having been given a clear choice. 4 these circumstances, the alleged instructional error did not have 5 a substantial and injurious effect or influence in determining 6 the jury's verdict. 7 Thus, it appears that the jury necessarily (2 CT 311.) Under In sum, the Court concludes that the state court’s decision 8 was not contrary to, or an unreasonable application of, clearly 9 established federal law within the meaning of 10 § 2254(d)(1). Accordingly, the petition should be denied. 11 VIII. 12 Petitioner appears to argue in the petition that in Cumulative Error 13 assessing prejudice, this Court should consider the combined or 14 cumulative prejudice of all the Constitutional violations alleged 15 by Petitioner. 16 this argument as a separate argument heading, but rather simply 17 referred to it in briefing the standard of review. 18 did not respond to this assertion as a separate claim. 19 (Pet. 10:17-24.) Petitioner did not set forth Respondent The Court understands Petitioner’s argument to relate to the 20 evaluation of prejudice stemming from the due process violations 21 raised in the petition. 22 court decision finding that no Constitutional violations occurred 23 was not contrary to, or an unreasonable application of, clearly 24 established federal law. 25 Constitutional violations were considered cumulatively, 26 Petitioner has not shown that they had a substantial and 27 injurious effect or influence in determining the jury's verdict. 28 /// The Court has concluded that the state However, even if all the alleged 60 1 IX. 2 Petitioner requests an evidentiary hearing with respect to 3 Request for Evidentiary Hearing all issues. 4 (Trav., doc. 24, 8-9.) The decision to grant an evidentiary hearing is generally a 5 matter left to the sound discretion of the district courts. 6 U.S.C. § 2254; Habeas Rule 8(a); Schriro v. Landrigan, 550 U.S. 7 465, 473 (2007). 8 court under the AEDPA, a petitioner must allege a colorable claim 9 by alleging disputed facts which, if proved, would entitle him to 10 relief. 11 28 To obtain an evidentiary hearing in federal Schriro v. Landrigan, 550 U.S. at 474. The determination of entitlement to relief is, in turn, is 12 limited by 28 U.S.C. § 2254(d)(1), which requires that to obtain 13 relief with respect to a claim adjudicated on the merits in state 14 court, the adjudication must result in a decision that was either 15 contrary to, or an unreasonable application of, clearly 16 established federal law. 17 Further, in analyzing a claim pursuant to § 2254(d)(1), a federal 18 court is limited to the record that was before the state court 19 that adjudicated the claim on the merits. 20 131 S.Ct. 1388, 1398 (2011). 21 Schriro v. Landrigan, 550 U.S. at 474. Cullen v. Pinholster, Thus, an evidentiary hearing may be granted with respect to 22 a claim adjudicated on the merits in state court where the 23 petitioner satisfies § 2254(d)(1), or where § 2254(d)(1) does not 24 apply, such as where the claim was not adjudicated on the merits 25 in state court. 26 01. 27 under the limitations set forth in § 2254(d), a district court is 28 not required to hold an evidentiary hearing. Cullen v. Pinholster, 131 S.Ct. at 1398, 1400- Where, as here, a state court record precludes habeas relief 61 Cullen v. 1 Pinholster, 131 S.Ct. 1388, 1399 (2011) (citing Schriro v. 2 Landrigan, 550 U.S. 465, 474 (2007)). 3 4 Accordingly, it will be recommended that the request for an evidentiary hearing be denied. 5 X. 6 A district court must issue or deny a certificate of 7 appealability when it enters a final order adverse to the 8 applicant. 9 It will be assumed for the purpose of the following analysis that Certificate of Appealability Rule 11(a) of the Rules Governing Section 2254 Cases. 10 the Court will decide to enter a final order adverse to the 11 Petitioner. 12 Unless a circuit justice or judge issues a certificate of 13 appealability, an appeal may not be taken to the Court of Appeals 14 from the final order in a habeas proceeding in which the 15 detention complained of arises out of process issued by a state 16 court. 17 U.S. 322, 336 (2003). 18 only if the applicant makes a substantial showing of the denial 19 of a constitutional right. 20 petitioner must show that reasonable jurists could debate whether 21 the petition should have been resolved in a different manner or 22 that the issues presented were adequate to deserve encouragement 23 to proceed further. 24 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 25 certificate should issue if the Petitioner shows that jurists of 26 reason would find it debatable whether the petition states a 27 valid claim of the denial of a constitutional right and that 28 jurists of reason would find it debatable whether the district 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 62 A 1 court was correct in any procedural ruling. 2 529 U.S. 473, 483-84 (2000). 3 Slack v. McDaniel, In determining this issue, a court conducts an overview of 4 the claims in the habeas petition, generally assesses their 5 merits, and determines whether the resolution was debatable among 6 jurists of reason or wrong. 7 applicant to show more than an absence of frivolity or the 8 existence of mere good faith; however, it is not necessary for an 9 applicant to show that the appeal will succeed. 10 11 Id. It is necessary for an Miller-El v. Cockrell, 537 U.S. at 338. Here, it does not appear that reasonable jurists could 12 debate whether the petition should have been resolved in a 13 different manner. 14 of the denial of a constitutional right. 15 16 Petitioner has not made a substantial showing Accordingly, it will be recommended that the Court decline to issue a certificate of appealability. 17 XI. 18 Accordingly, it is RECOMMENDED that: 19 1) Petitioner’s request for an evidentiary hearing be 20 Recommendations DENIED; and 21 2) The petition be DENIED; and 22 3) Judgment be ENTERED for Respondent; and 23 4) The Court DECLINE to issue a certificate of 24 appealability. 25 These findings and recommendations are submitted to the 26 United States District Court Judge assigned to the case, pursuant 27 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 28 the Local Rules of Practice for the United States District Court, 63 1 Eastern District of California. 2 being served with a copy, any party may file written objections 3 with the Court and serve a copy on all parties. 4 should be captioned “Objections to Magistrate Judge’s Findings 5 and Recommendations.” 6 and filed within fourteen (14) days (plus three (3) days if 7 served by mail) after service of the objections. 8 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 9 § 636 (b)(1)(C). Within thirty (30) days after Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file 10 objections within the specified time may waive the right to 11 appeal the District Court’s order. 12 1153 (9th Cir. 1991). Martinez v. Ylst, 951 F.2d 13 14 IT IS SO ORDERED. 15 Dated: ie14hj October 21, 2012 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 64

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