Morales v. Sisto
Filing
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ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Thelton E. Henderson on 08/30/2012. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 8/31/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California
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No. C-07-6002 TEH (PR)
ISRAEL MORALES,
Petitioner,
ORDER DENYING PETITION FOR WRIT
OF HABEAS CORPUS
v.
D. K. SISTO, Warden,
Respondent.
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Petitioner Israel Morales has filed a pro se writ of
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habeas corpus under 28 U.S.C. § 2254, challenging a criminal
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judgment from Santa Clara County Superior Court which, for the
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reasons that follow, the Court denies.
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I.
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On September 24, 2003, Petitioner was sentenced to a term
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of 15 years to life for second-degree murder, with concurrent terms
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of five years for shooting at an occupied motor vehicle and two
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years for possessing a firearm.
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Answer to Petition, Ex. A at 660,
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663-66.1
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On January 13, 2005, the California Court of Appeal
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affirmed the judgment of conviction.
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California Supreme Court denied Petitioner’s petition for review.
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Ex. J.
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Ex. H.
On March 23, 2005, the
Petitioner then filed a writ of habeas corpus in the Santa
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Clara Superior Court which was denied on April 11, 2006.
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state appellate court was denied on September 28, 2006.
Ex. K at
Petitioner’s subsequent habeas petition filed in the
Ex. K at 7,
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41.
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corpus in the California Supreme Court, Ex. K, which was denied on
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June 13, 2007, Ex. L.
On January 2, 2007, Petitioner filed for a writ of habeas
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On November 28, 2007, Petitioner filed the present
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Petition.
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Petitioner stated cognizable claims for relief and ordered
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Respondent to show cause why a writ of habeas corpus should not be
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granted.
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Petitioner has filed a traverse, Doc. #30.
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factual and procedural background of the case:
On the night of November 17, 1996, Juan Resendiz
became a casualty in the war between Sureño and Norteño
gangs. One hour before his death, Resendiz and others
surrounded a car occupied by [Petitioner] Israel Morales
and two companions, which had been driven into an alley
claimed by Sureño gang members. The car’s occupants were
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Respondent filed an answer, Doc. #26, and
The California Court of Appeal provided the following
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Doc. #22.
The Court found that
II.
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Doc. #1 (hereafter “Petition”).
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The Answer is lodged at Doc. ##26–27. All referenced exhibits
are those lodged by Respondent in support of the Answer unless
otherwise noted.
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assaulted because they appeared to be Norteños. The
three escaped, but returned to the alley later to settle
the situation. This time, one of [Petitioner’s]
companions had a powerful handgun. When their car was
surrounded again, the companion fired several shots,
killing Resendiz.
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. . .
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Trial evidence
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During the evening of Sunday, November 17, 1996, six
to ten teenage Hispanic males congregated in an alleyway
between Dubert Lane and Tami Lee Drive in San Jose, where
they drank beer and smoked marijuana. The neighborhood
was marked with Sureño gang graffiti. According to gang
expert San Jose Police Officer Jose Iglesias, in San Jose
the Norteños outnumber the Sureños, but this alleyway was
a known Sureño neighborhood.
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Among those in the alley was Jorge Vizcarra
Hernandez, nicknamed “Oldies.”2 Then age 19, Oldies
belonged to the Sureño gang of Vario Tami Lee Gangsters.
Marvin “Porky” Guervara, another member of this gang, was
also in the alley. He was 14 years old at the time.
Jose Del Rosario Lopez, nicknamed “Pepe,” was also in the
alley. At the time he belonged to Vario Sureño Town.
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Oldies testified that he disliked Norteños because
they considered themselves superior to Mexican immigrants
like him. Norteños humiliated him and other Sureños and
called them “scrapas,” which means trash.
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According to Oldies and Porky, Norteños associate
with the color red, while Sureños associate with the
color blue. Wearing red in a Sureño neighborhood, like
wearing blue in a Norteño neighborhood, has the effect of
waving a cape at a bull. Rival gang members perceive it
as showing disrespect.
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During the evening, Juan “Negro” Resendiz, age 19,
also known as Gustavo Barrientos, joined the other
teenagers and drank with them. Juan lived with his
brothers and four other family members in an apartment at
1425 Dubert Lane. Juan had two misdemeanor domestic
violence convictions for fighting with his wife.
According to Juan’s brother, Edilberto, Juan once
belonged to a Sureño gang, but by 1996 he was out of the
gang and was a working family man. Juan occasionally
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For ease of reference we will refer to people by their nicknames
and first names to avoid confusion over common surnames.
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hung out with the gang members in the alley. Edilberto
was previously in Vario Colonia Trece, a Sureño gang.
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That evening, a Ford Granada drove into the alley.
Juan walked up to the other young men and told them that
Norteños were in the car. About five guys approached the
car. The occupants were sniffing glue. The driver and
the front seat passenger were both wearing red T-shirts.
The front seat passenger had a Mongolian haircut.
According to the gang expert, that haircut is a sign of a
Norteño.
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Oldies approached the passenger’s side and asked
what they were doing there. The passenger in the back
seat identified himself as Chilango, someone they knew
from Tami Lee. Oldies responded that even if he was from
the area there was no reason to bring Norteños there.
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The driver tried to get out of the car. Oldies
punched the front seat passenger. Someone else punched
the driver. Someone else hit the back seat passenger.
Oldies broke two of the car’s windows, one with his hand
and the other with a tape recorder. The car’s occupants
fought back. Edilberto told San Jose Police Sergeant
Gilbert Torrez that Juan had kicked the car. At trial
Edilberto denied saying so. Edilberto heard breaking
glass and saw a fight from his apartment. The driver
backed out of the alley and drove off in a hurry, almost
running someone down.3
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Approximately one hour later, a black Camaro drove
into the alley. The driver told the young men to
approach him. It appeared he wanted to buy drugs. At
the time Oldies and some of the others were selling
drugs.
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A number of those present approached the car with
Oldies and Juan in the lead. When Oldies was within
earshot, he recognized the driver as Chilango. Chilango
said in Spanish, “You want problems?” According to the
gang expert, that is a challenge to fight. Oldies
punched the driver. Pepe yelled out, “he’s got a gun,”
after the driver pulled one from his waist.4 They both
began running. Three or four gunshots exploded. Oldies
tripped, fell on his face, and stayed down. The others
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Earlier that evening Oldies had fought with another man who
walked into the alley wearing a red 49er’s jacket and a red hat.
Oldies took the jacket and hat and burned them. There was no apparent
connection between this man and [Petitioner].
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Pepe testified at trial that the driver was the shooter. He
admitted that he had lied before when he told the police that the
passenger was doing the shooting.
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also scattered and ran off.
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Juan was shot as his back was turned. One bullet
penetrated his upper right arm. He was killed by a
bullet that entered the right side of his back and exited
his left chest. Juan fell to the ground. Someone yelled
out that Juan was shot.
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After the first round of gunfire, the Camaro drove
out of the alley, firing three more shots as it entered
Crucero Drive. One shot flattened the tire of a van that
was double-parked near the alley entrance. Another shot
penetrated the wall of the van. Inside the van were
Jesus Julian Davila Avalos and his two brothers. Porky
testified that he was also shot that night-a bullet
grazed his left leg.
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The police recovered three cartridge casings at the
entrance to the alley, a bullet in the van, and another
bullet in a carport post in the alley. According to a
firearms expert, Edward Peterson, the casings and bullets
were from a 10-millimeter automatic Glock model 20
handgun. A 10-millimeter is a very powerful gun, with an
unusually high caliber, a big muzzle blast, and large
recoil. It leaves a bigger wound than a smaller caliber
gun.
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The following day, November 18, 1996, [Petitioner]
broke his date with his girlfriend at the time, Rhonda
Goda (Ortez by the time of trial). At trial she
testified that she knew [Petitioner] as “Chilango” or
“Alex Gonzalez.” They had two telephone conversations on
November 18, 1996. In the first one, he said that he had
some things to take care of. She was upset with him
during their second conversation. He told her the
following. The previous night he had gotten into a
fight. He went to an alley near Tami Lee with “Feo,”
which means “ugly,” and “Torcino,” which means “bacon,”
in Torcino’s car. Rhonda was aware this was a gang area.
Feo was wearing a red sweater or shirt. Several people
surrounded the car and objected to the red sweater. They
smashed the windows of the car and started fighting.
[Petitioner] was struck in the face. They got away and
went to [Petitioner’s] house and talked about how “mad”
they were and how they wanted to settle the situation.
[Petitioner] was upset about being punched.
Torcino retrieved a gun from his house and returned
to [Petitioner’s] house. Torcino wanted to “box” them.
“[T]hey were going to fight them if they had to and take
the gun in case they needed that.” The gun was to be
their last resort.
[Petitioner] drove them back to the alley in his
Camaro, which had a stick shift. When they drove up they
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were surrounded. One guy tried to take the keys from the
ignition. They were getting punched in the car and
defended themselves. As [Petitioner] drove out, Torcino,
who was in the front seat, pulled out his gun and started
shooting.
[Petitioner] talked to Rhonda again a week later
from Tijuana. He was afraid of a long jail sentence.
did not want to “go down for something he didn’t do.”
He
[Petitioner] was arrested in New York State on
December 12, 2001, living under the name of Francisco
Garcia. It was stipulated that, because [Petitioner] had
a prior felony conviction, he was prohibited from
possessing a firearm.
People v. Morales, 2005 WL 67098, *1–*3 (Cal. Ct. App. 2005)
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(footnotes in original, renumbered).
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III.
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The Antiterrorism and Effective Death Penalty Act of 1996
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(“AEDPA”), codified under 28 U.S.C. § 2254, imposes a “new
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constraint on the power of a federal habeas court to grant a state
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prisoner’s application for a writ of habeas corpus.”
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Taylor, 529 U.S. 362, 412 (2000).
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entertain a petition for a writ of habeas corpus “in behalf of a
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person in custody pursuant to the judgment of a State court only on
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the ground that he is in custody in violation of the Constitution or
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laws or treaties of the United States.”
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writ may not be granted with respect to any claim that was
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adjudicated on the merits in state court unless the state court’s
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adjudication of the claim:
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contrary to, or involved an unreasonable application of, clearly
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established Federal law, as determined by the Supreme Court of the
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United States; or (2) resulted in a decision that was based on an
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unreasonable determination of the facts in light of the evidence
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presented in the State court proceeding.”
Williams v.
Under AEDPA, a district court may
28 U.S.C. § 2254(a).
The
“(1) resulted in a decision that was
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Id. § 2254(d).
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“Under the ‘contrary to’ clause, a federal habeas court
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may grant the writ if the state court arrives at a conclusion
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opposite to that reached by [the Supreme] Court on a question of law
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or if the state court decides a case differently than [the Supreme]
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Court has on a set of materially indistinguishable facts.”
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Williams, 529 U.S. at 412-13.
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established federal law under § 2254(d) is in the holdings (as
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opposed to the dicta) of the Supreme Court as of the time of the
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state court decision.
The only definitive source of clearly
Id. at 412; Brewer v. Hall, 378 F.3d 952, 955
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(9th Cir. 2004).
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for the purposes of determining whether a state court decision is an
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unreasonable application of Supreme Court precedent, only the
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Supreme Court’s holdings are binding on the state courts and only
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those holdings need be “reasonably” applied.
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F.3d 1062, 1069 (9th Cir. 2003), overruled on other grounds by
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Lockyer v. Andrade, 538 U.S. 63 (2003).
While circuit law may be “persuasive authority”
Clark v. Murphy, 331
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“Under the ‘unreasonable application’ clause, a federal
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habeas court may grant the writ if the state court identifies the
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correct governing legal principle from [the Supreme Court’s]
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decisions but unreasonably applies that principle to the facts of
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the prisoner’s case.”
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§ 2254(d)(1)’s ‘unreasonable application’ clause, . . . a federal
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habeas court may not issue the writ simply because that court
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concludes in its independent judgment that the relevant state-court
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decision applied clearly established federal law erroneously or
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incorrectly.”
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“unreasonable application” inquiry should ask whether the state
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court’s application of clearly established federal law was
Williams, 529 U.S. at 413.
Id. at 411.
“Under
A federal habeas court making the
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“objectively unreasonable.”
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must presume correct any determination of a factual issue made by a
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state court unless the petitioner rebuts the presumption of
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correctness by clear and convincing evidence.
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§ 2254(e)(1).
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Id. at 409.
The federal habeas court
28 U.S.C.
The state court decision to which § 2254(d) applies is the
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“last reasoned decision” of the state court.
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Nunnemaker, 501 U.S. 797, 803–04 (1991); Barker v. Fleming, 423 F.3d
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1085, 1091-92 (9th Cir. 2005).
See Ylst v.
When there is no reasoned opinion
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from the highest state court considering petitioner’s claims, the
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court “looks through” to the last reasoned opinion.
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in evaluating Petitioner’s claims of insufficiency of the evidence,
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instructional error, and cumulative error, the Court looks to the
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state appellate court’s opinion affirming Petitioner’s conviction
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issued on January 13, 2005.
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v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000).
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claims regarding the inattentive juror and ineffective assistance of
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appellate counsel were raised for the first time in his state
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collateral proceedings, so in evaluating those claims, the Court
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looks to the state trial court’s opinion denying Petitioner’s state
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habeas petition.
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gives no reasoned explanation of its decision on a petitioner’s
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federal claim and there is no reasoned lower court decision on the
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claim, an independent review of the record is the only means of
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deciding whether the state court’s decision was objectively
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reasonable.
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2003).
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In this case,
See Ylst, 501 U.S. at 805; Shackleford
See Ylst, 501 U.S. at 805.
Petitioner’s
Where the state court
See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.
The Supreme Court has vigorously and repeatedly affirmed
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that under AEDPA there is a heightened level of deference a federal
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habeas court must give to state court decisions.
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Cross, 132 S. Ct. 490, 491 (2011) (per curiam); Harrington v.
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Richter, 131 S. Ct. 770, 783-85 (2011); Premo v. Moore, 131 S. Ct.
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733, 739-40 (2011); Felkner v. Jackson, 131 S. Ct. 1305 (2011) (per
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curiam).
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and limited scope of review in which this Court may engage in
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federal habeas proceedings, the Court addresses Petitioner’s claims.
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IV.
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See Hardy v.
With the above principles in mind regarding the standard
Petitioner raises the following six grounds for habeas
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relief:
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murder conviction; 2) trial court error in refusing to instruct the
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jury regarding the effect of antecedent threats on his state of mind
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and regarding his right to travel to a public location; 3) trial
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court error for instructing the jury that he could be convicted of
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murder as a natural and probable consequence of aiding and abetting
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a misdemeanor breach of the peace; 4) cumulative error due to
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instructional error; 5) trial court error for failing to properly
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deal with an inattentive juror; and 6) ineffective assistance of
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appellate counsel for failing to raise the issue of the inattentive
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juror on appeal.
1) insufficient evidence to support his second-degree
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A.
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Sufficiency of the Evidence
Petitioner alleges that there was insufficient evidence to
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support his conviction for second-degree murder.
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there was sufficient evidence of provocation and heat of passion to
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require a finding of voluntary manslaughter rather than second-
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degree murder.
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follows:
He argues that
The state appellate court rejected his claim as
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After trial [Petitioner] asked the trial court to
reduce his conviction to voluntary manslaughter. The
trial court refused, stating that the jury’s verdict of
second degree murder was supported by the evidence.
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On appeal [Petitioner] argues that the trial court
erred because “evidence presented at trial, at most,
showed that Juan Resendiz was killed in the heat of
passion or by way of imperfect self-defense.” “[T]he
evidence was uncontroverted that Resendiz was shot as
the consequence of ‘a sudden quarrel or heat of passion’
based on adequate provocation or imperfect
self-defense.”
People v. Sheran (1957) 49 Cal.2d 101 reiterated,
“‘upon an application to reduce the degree or class of
an offense, a trial judge may review the weight of the
evidence but an appellate court should consider only its
sufficiency as a matter of law.’” (Id. at p. 108;
original italics.)
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The jury here was instructed that a killing is no
more than manslaughter if committed upon a sudden
quarrel or heat of passion or in the actual but
unreasonable belief in the necessity to defend oneself
against imminent peril to life or great bodily injury.
(CALJIC Nos. 8.40, 8.50.) “Heat of passion” was defined
in terms of CALJIC No. 8.42 as including both actual
passion and the passion that would be aroused in the
mind of an ordinarily reasonable person. The jury was
told to consider “if sufficient time elapsed between the
provocation and the fatal blow for passion to subside
and reason to return” (CALJIC No. 8.42) and “whether the
cooling period has elapsed and reason has returned.”
(CALJIC No. 8.43.)
People v. Steele (2002) 27 Cal.4th 1230 stated:
“for voluntary manslaughter, ‘provocation and heat of
passion must be affirmatively demonstrated.’ (People v.
Sedeno (1974) 10 Cal.3d 703, 719; see also People v.
Breverman (1998) 19 Cal.4th 142, 163.)[¶] The heat of
passion requirement for manslaughter has both an
objective and a subjective component. (People v.
Wickersham (1982) 32 Cal.3d 307, 326-327.) The
defendant must actually, subjectively, kill under the
heat of passion. (Id. at p. 327.) But the
circumstances giving rise to the heat of passion are
also viewed objectively. As we explained long ago in
interpreting the same language of section 192, ‘this
heat of passion must be such a passion as would
naturally be aroused in the mind of an ordinarily
reasonable person under the given facts and
circumstances,’ because ‘no defendant may set up his own
standard of conduct and justify or excuse himself
because in fact his passions were aroused, unless
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further the jury believe that the facts and
circumstances were sufficient to arouse the passions of
the ordinarily reasonable man.’ (People v. Logan (1917)
175 Cal. 45, 49.)” (Id. at pp. 1252-1253.)
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[Petitioner] contends that under “the totality of
these circumstances, it is clear that Torcino fired his
gun because he subjectively feared death or great bodily
injury to himself and his friends at the hands of the
VTG gangsters who vastly outnumbered the Camaro’s
occupants.” We have already explained above (ante, p.
18) that there was no real evidence beyond defense
counsel’s speculation that [Petitioner] or Torcino
subjectively entertained any fear of the alley’s
occupiers, let alone fear of imminent great bodily
injury. Certainly this speculation does not mandate a
finding of imperfect self-defense.
[Petitioner] alternatively contends that “[t]he 45
minute interval between this severe provocation and the
resulting shooting was well within the ‘cooling period’
range for voluntary manslaughter based upon heat of
passion.” [Petitioner] points out that People v. Berry
(1976) 18 Cal.3d 509 contemplated the possibility of the
heat of passion persisting for 20 hours. (Id. at p.
516.) People v. Brooks (1986) 185 Cal.App.3d 687
contemplated passion persisting for two hours. (Id. at
p. 695.) The problem identified in both of those cases
was that the jury was not given the option of a
voluntary manslaughter conviction. Neither upheld a
finding that the heat of passion actually persisted that
long.
There is no fixed formula for determining the
cooling period after provocation. It is ordinarily a
factual determination for a properly instructed jury
whether a murder was committed in the heat of passion
and under sufficient provocation. (People v. Bloyd
(1987) 43 Cal.3d 333, 350; People v. Walton (1996) 42
Cal.App.4th 1004, 1019, disapproved on another ground by
People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3; cf.
People v. Wells. (1938) 10 Cal.2d 610, 623.) In a rare
case, like People v. Bridgehouse (1956) 47 Cal.2d 406,
an appellate court may find adequate provocation as a
matter of law. (Id. at p. 414.)
This is not such a rare case. It was
uncontradicted that [Petitioner] and his companions
returned to the alley because they were “mad” about
being attacked. Thus, there was evidence of the
subjective component of heat of passion. However, we
are not convinced as a matter of law that an hour was
not enough time for this passion to have subsided and
reason to have returned. In other words, the jury was
justified in determining that a reasonable person would
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not still be smarting under the provocation. (Cf.
People v. Wickersham, supra, 32 Cal.3d 307, 327.) In
this case, we conclude that the existence of provocation
and heat of passion were factual questions for the jury.
Since there was substantial evidence supporting the
second degree murder conviction, we will not say
otherwise as a matter of law. The trial court did not
err in not reducing the conviction to voluntary
manslaughter.
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People v. Morales, 2005 WL 67098 at *14–*16.
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The Due Process Clause “protects the accused against
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conviction except upon proof beyond a reasonable doubt of every fact
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necessary to constitute the crime with which he is charged.”
In re
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Winship, 397 U.S. 358, 364 (1970).
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that the evidence in support of his state conviction cannot be
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fairly characterized as sufficient to have led a rational trier of
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fact to find guilt beyond a reasonable doubt therefore states a
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constitutional claim, Jackson v. Virginia, 443 U.S. 307, 321 (1979),
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which, if proven, entitles him to federal habeas relief, id. at 324.
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A state prisoner who alleges
However a federal court’s inquiry into the sufficiency of
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the evidence on habeas corpus is limited.
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determines only whether, “after viewing the evidence in the light
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most favorable to the prosecution, any rational trier of fact could
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have found the essential elements of the crime beyond a reasonable
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doubt.”
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found proof of guilt beyond a reasonable doubt, may the writ be
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granted.
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province of the jury to determine the credibility of witnesses,
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resolve evidentiary conflicts, and draw reasonable inferences from
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proven facts by assuming that the jury resolved all conflicts in a
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manner that supports the verdict.”
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1358 (9th Cir. 1995).
Id. at 319.
Id. at 324.
The federal court
Only if no rational trier of fact could have
“The reviewing court must respect the
Walters v. Maass, 45 F.3d 1355,
The California standard for determining the
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sufficiency of evidence to support a conviction is identical to the
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federal standard enunciated by the United States Supreme Court in
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Jackson.
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Sufficiency of the evidence claims are judged by the elements
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defined by state law. Jackson, 443 U.S. at 324 n. 16.
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People v. Johnson, 26 Cal. 3d 557, 576 (1980).
Recently, the Supreme Court has emphasized
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that Jackson claims face a high bar in federal habeas
proceedings because they are subject to two layers of
judicial deference. First, on direct appeal, “it is the
responsibility of the jury — not the court — to decide
what conclusions should be drawn from evidence admitted
at trial. A reviewing court may set aside the jury’s
verdict on the ground of insufficient evidence only if
no rational trier of fact could have agreed with the
jury” . . . And second, on habeas review, “a federal
court may not overturn a state court decision rejecting
a sufficiency of the evidence challenge simply because
the federal court disagrees with the state court. The
federal court instead may do so only if the state court
decision was ‘objectively unreasonable.’”
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Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012) (quoting Cavazos v.
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Smith, 565 U.S. 1, 4 (2011) (per curiam)).
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habeas review, relief may be afforded on a sufficiency of the
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evidence claim only if the state court’s adjudication of such claim
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involved an unreasonable application of Jackson to the facts of the
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case.
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amended).
Accordingly, on federal
Juan H. v. Allen, 408 F.3d 1262, 1274–75 (9th Cir. 2005) (as
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After a careful review of the relevant law and an
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independent review of the record,5 the Court cannot say that the
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state court’s determination that there was sufficient evidence to
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support Petitioner’s second-degree murder conviction was contrary to
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The Court must conduct an independent review of the record when
a habeas petitioner challenges the sufficiency of the evidence. See
Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997).
13
1
or involved an unreasonable application of clearly established
2
federal law or that it resulted in a decision that was based on an
3
unreasonable determination of the facts in light of the evidence
4
presented in the state court proceeding.
5
28 U.S.C. § 2254(d).
As an initial matter, there is no clearly established
6
Supreme Court precedent that requires a finding that a defendant is
7
guilty of voluntary manslaughter (instead of second-degree murder)
8
where there is evidence of provocation and heat of passion.
9
Ninth Circuit has held that “[t]he absence of malice distinguishes
The
10
manslaughter from murder . . . and the defendant’s showing of a
11
‘heat of passion’ is said to negate the presence of malice.”
12
States v. Wagner, 834 F.2d 1474, 1487 (9th Cir. 1987) (internal
13
citations omitted) (finding no instructional error where court
14
instructed the jury on first and second-degree murder but did not
15
instruct on the lesser-included offense of voluntary manslaughter
16
because the evidence did not support a finding of voluntary
17
manslaughter).
18
state court’s conclusion is contrary to the holdings of the Supreme
19
Court, Williams, 529 U.S. at 412–13, which is not the case here.
United
However, habeas relief is warranted only where the
20
Moreover, as discussed below, after an independent review
21
of the record, this Court cannot say that no rational trier of fact
22
could have found proof of guilt of second-degree murder beyond a
23
reasonable doubt.
24
unlawful killing of a human being with malice aforethought, but
25
without willfulness, premeditation and deliberation.
26
Code §§ 187 and 189.
27
express when there is manifested a deliberate intention unlawfully
28
to take away the life of a fellow creature. It is implied, when no
Under California law, second degree murder is the
See Cal. Penal
“Such malice may be express or implied. It is
14
1
considerable provocation appears, or when the circumstances
2
attending the killing show an abandoned and malignant heart.
3
it is shown that the killing resulted from the intentional doing of
4
an act with express or implied malice as defined above, no other
5
mental state need be shown to establish the mental state of malice
6
aforethought.”
7
“may be inferred from the circumstances of the homicide.”
8
Lines, 13 Cal. 3d 500, 505 (1975).
9
Cal. Penal Code § 188.
When
Express and implied malice
People v.
The witness testimony established that between 30 to 90
10
minutes elapsed between when Petitioner and his friends were
11
initially attacked and when they returned to the alley.
12
Transcript6 (“RT”) 411, 477, 676, 861.
13
Petitioner’s state of mind was provided by Rhonda Ortez,
14
Petitioner’s girlfriend at the time of the crime.
15
Ortez, after the initial confrontation, Petitioner and his friends
16
decided that they wanted to “settle the situation. . . [a]nd they
17
were going to fight [their attackers] if they had to and take the
18
gun in case they needed that.”
19
established that Petitioner was driving the car when he returned to
20
the alley with his friends, and that Petitioner initiated the fight
21
by encouraging the victim and his friends to approach the car, RT
22
338-39, 389-90, and then asking the victim and his friends if they
23
wanted trouble or problems, RT 348-39, 862, which, according to the
24
witness testimony, was an invitation to fight.
25
testify at the trial.
26
RT 149.
Reporter’s
The only testimony regarding
According to
The witness testimony also
Petitioner did not
The Court concurs with the California Court of Appeal’s
27
28
6
The Reporter’s Transcript is lodged as
Respondent’s Answer, located at Doc. ##26-27.
15
Exhibit
B
to
the
1
reasoning and conclusion.
2
support the elements of second degree murder since the jury could
3
reasonably have found implied malice in Petitioner's deciding to
4
return to the alleyway with a gun, encouraging the victim and his
5
friends to approach Petitioner’s car, and then inviting them to
6
fight.
7
that Petitioner did not kill the victim in the heat of passion or in
8
imperfect self-defense.
9
attacked by the victim and his friends earlier in the evening, it
First, the evidence was sufficient to
Second, the evidence was sufficient to support a finding
Although Petitioner and his friends were
10
was within the province of the jury to determine whether Petitioner
11
cooled off in the time between his initial visit to the alleyway and
12
his return visit, especially given the limited testimony regarding
13
Petitioner’s state of mind prior to and during his return to the
14
alley.
15
Based on the Court’s own independent review of the record,
16
and after viewing the evidence presented at trial in the light most
17
favorable to the prosecution and presuming that the jury resolved
18
all conflicting inferences from the evidence against Petitioner, the
19
Court finds that a rational juror could have found beyond a
20
reasonable doubt that Petitioner was guilty of second degree murder
21
and that a rational juror could have decided that there was
22
insufficient evidence of heat of passion or provocation.
23
Accordingly, the Court finds and concludes that the California
24
courts’ rejection of Petitioner’s insufficiency of the evidence
25
claim did not involve an objectively unreasonable application of the
26
Jackson standard.
27
//
28
//
16
1
B. Instructional Error
2
1) Refusal to Give Special Defense Instructions
3
Petitioner contends that the trial court erred by refusing
4
to give the following two jury instructions:
5
instruction to have the jury consider Petitioner’s awareness of
6
antecedent violent behavior or threats on his state of mind; and
7
(2) a special defense instruction that an individual has a right to
8
travel to a public location even if he has cause to believe that he
9
may be attacked there.
(1) a special defense
Petitioner contends if the trial court had
10
given the above special jury instructions, the jury would have found
11
that he acted in self-defense.
12
A state trial court’s refusal to give an instruction does
13
not alone raise a ground cognizable in a federal habeas corpus
14
proceedings.
15
1988).
16
deprived of the fair trial guaranteed by the Fourteenth Amendment.
17
See id.
18
be given unless the evidence supports it.
19
U.S. 605, 611 (1982); Menendez v. Terhune, 422 F.3d 1012, 1029 (9th
20
Cir. 2005).
21
raised in his or her precise terms where the given instructions
22
adequately embody the defense theory.
23
F.3d 1078, 1081 (9th Cir. 1996); United States v. Tsinnijinnie, 601
24
F.2d 1035, 1040 (9th Cir. 1979).
25
See Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir.
The error must so infect the trial that the defendant was
Moreover, due process does not require that an instruction
See Hopper v. Evans, 456
The defendant is not entitled to have jury instructions
United States v. Del Muro, 87
Whether a constitutional violation has occurred will
26
depend upon the evidence in the case and the overall instructions
27
given to the jury.
28
the record is required to see precisely what was given and what was
See Duckett, 67 F.3d at 745.
17
An examination of
1
refused and whether the given instructions adequately embodied the
2
defendant's theory.
3
significance of the omission of such an instruction may be evaluated
4
by comparison with the instructions that were given.
5
Woodford, 255 F.3d 926, 971 (9th Cir. 2001) (quoting Henderson v.
6
Kibbe, 431 U.S. 145, 156 (1977)); see id. at 972 (due process
7
violation found in capital case where petitioner demonstrated that
8
application of the wrong statute at his sentencing infected the
9
proceeding with the jury’s potential confusion regarding its
10
11
See Tsinnijinnie, 601 F.2d at 1040.
The
Murtishaw v.
discretion to impose a life or death sentence).
The omission of an instruction is less likely to be
12
prejudicial than a misstatement of the law.
13
850 F.2d 470, 475-76 (citing Henderson, 431 U.S. at 155).
14
habeas petitioner whose claim involves a failure to give a
15
particular instruction bears an “‘especially heavy burden.’”
16
Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (quoting
17
Henderson, 431 U.S. at 155).
See Walker v. Endell,
Thus, a
18
a) Jury Instruction Regarding Antecedent Threats
19
Petitioner claims that the trial court erred in refusing
20
21
22
23
24
25
26
27
28
to give the following requested pinpoint instruction:
One who has suffered prior acts of violence
or threats by another is justified in acting more
quickly and taking harsher measures for his own
protection in the event of either an actual or
threatened assault, than would be a person who
had not suffered such acts of violence or
threats. If in this case you believe that
(insert name of victim or any attackers relevant
to self-defense) previously acted violently or
threatened the defendant; and that the defendant,
because of such violent acts or threats, had
reasonable cause to fear greater peril in the
event of an altercation with (insert name of
victim or any attackers relevant to selfdefense), you are to consider such facts in
18
1
determining whether the defendant acted as a
reasonable person in protecting his own life or
bodily safety.
2
3
The Court of Appeal rejected Petitioner’s argument as follows:
4
The jury was given a number of instructions
pertaining to self-defense and imperfect self-defense
(CALJIC No. 5.17), including the following. “The
killing of another person in self-defense is justifiable
and not unlawful when the person who does the killing
actually and reasonably believes: One, that there is
imminent danger that the other person will either kill
him or cause him great bodily injury. [¶] And two,
that it is necessary under the circumstances for him to
use in self-defense force or means that might cause the
death of the other person, for the purpose of avoiding
death or great bodily injury to himself. A bare fear of
death or great bodily injury is not sufficient to
justify a homicide. To justify the taking of the life
of another in self-defense, the circumstances must be
such as would excite the fears of a reasonable person
placed in a similar position, and the party killing must
act under the influence of those fears alone. The
danger must be apparent, present, immediate and
instantly dealt with, or must so appear at the time to
the slayer as a reasonable person, and the killing must
be done under a well-founded belief that it is necessary
to save one’s self from death or great bodily harm.”
(CALJIC No. 5.12.)
5
6
7
8
9
10
11
12
13
14
15
16
“Homicide is justifiable and not unlawful when
committed by any person in the defense of himself if he
actually and reasonably believed that the individual
killed intended to commit a forcible and atrocious crime
and that there was imminent danger of that crime being
accomplished. A person may act upon appearances whether
the danger is real or merely apparent.” (CALJIC No.
5.13.)
17
18
19
20
21
“It is [lawful]7 for a person who is being
assaulted to defend himself from attack if, as a
reasonable person, he has grounds for believing and does
believe that bodily injury is about to be inflicted upon
him. In doing so, that person may use all force and
means which he believes to be reasonably necessary and
which would appear to a reasonable person, in the same
or similar circumstances, to be necessary to prevent the
injury which appears to be imminent.” (CALJIC No.
5.30.)
22
23
24
25
26
27
7
28
The reporter’s transcript reflects that the court orally stated
“unlawful” at this point, but the jury was given the correct
instruction in writing.
19
1
“A person threatened with an attack that justifies
the exercise of the right of self-defense need not
retreat. In the exercise of his right of self-defense a
person may stand his ground and defend himself by the
use of all force and means which would appear to be
necessary to a reasonable person in a similar situation
and with similar knowledge; and a person may pursue his
assailant until he has secured himself from danger if
that course likewise appears reasonably necessary. This
law applies even though the [assailed]8 person might
more easily have gained safety by flight or by
withdrawing from the scene.” (CALJIC No. 5.50.)
2
3
4
5
6
7
“Actual danger is not necessary to justify
self-defense. If one is confronted by the appearance of
danger which arouses in his mind, as a reasonable
person, an actual belief and fear that he is about to
suffer bodily injury, and if a reasonable person in a
like situation, seeing and knowing the same facts, would
be justified in believing himself in like danger, and if
that individual so confronted acts in self-defense upon
these appearances and from that fear and actual belief,
the person’s right of self-defense is the same whether
the danger is real or merely apparent.” (CALJIC No. 5
.51.)
8
9
10
11
12
13
14
No instruction expressly described the relevance of
prior assaults or threats by the victim and his
associates to a defendant’s perception of imminent
danger or injury. The trial court refused the requested
instruction on the basis that the pattern instructions
above sufficiently covered the circumstances of the case
and [Petitioner’s] theory.
15
16
17
18
A defendant can bolster his claims of self-defense
and imperfect self-defense by showing that third parties
had previously assaulted or threatened him and that the
defendant reasonably associated that assault or threat
with the victim. (People v. Minifie (1996) 13 Cal.4th
1055, 1060, 1069.) People v. Gonzales (1992) 8
Cal.App.4th 1658 stated, “It is well settled a defendant
asserting self-defense is entitled to an instruction on
the effect of antecedent threats or assaults by the
victim on the reasonableness of defendant’s conduct
(People v. Moore (1954) 43 Cal.2d 517, 527-528 [Moore];
People v. Pena (1984) 151 Cal.App.3d 462, 475 [Pena];
People v. Bush (1978) 84 Cal.App.3d 294, 303-304 [Bush];
People v. Torres (1949) 94 Cal.App.2d 146, 151-154
[Torres]; People v. Graham (1923) 62 Cal.App. 758, 765;
People v. Bradfield (1916) 30 Cal.App. 721, 727).” (Id.
19
20
21
22
23
24
25
26
27
8
28
The reporter’s transcript reflects that the court orally stated
“assailant” at this point, but the jury was given the correct
instruction in writing.
20
1
2
at pp. 1663-1664; italics omitted; cf. People v. Spencer
(1996) 51 Cal.App.4th 1208, 1220.) [Petitioner] cited
this authority to the trial court and he relies on it on
appeal.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
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20
21
22
23
24
25
26
27
28
The refusal to give such an instruction has led to
reversal in several cases. In Moore, supra, 43 Cal.2d
517, a woman shot her husband and was convicted of
manslaughter. The court pointed out the existence of
evidence that he had “not only beaten and assaulted her,
but had threatened her with different types of bodily
injury and death and, on the evening in question, did in
fact assault her.” (Id. at p. 529.) The court
concluded that the evidence in the case was closely
balanced and there were errors in other instructions
that required reversal. (Id. at p. 531.) In Torres,
the defendant knew the victim as a troublemaker who had
stabbed someone before in a fight and who had threatened
to get or kill the defendant. (Torres, supra, 94
Cal.App.2d at p. 148.) Torres was “a close case with
strongly conflicting evidence” in which the defendant
was convicted of second degree murder for stabbing the
victim. (Id. at p. 153.) In Bush, a wife stabbed her
husband and was convicted of involuntary manslaughter.
It was uncontradicted at trial that “in the course of
two prior beatings, her husband had threatened to put
her in her grave.” (Bush, supra, 84 Cal.App.3d at p.
304.) The court observed, “the evidence in this case
was very closely balanced.” (Id. at p. 308.) In Pena,
the defendant had observed the victim’s physical
violence against others, was aware that the victim
carried a gun, and the victim had threatened him.
(Pena, supra, 151 Cal .App.3d 462, 476-477.) The
defendant was convicted of voluntary manslaughter after
shooting the victim. Citing Bush and Torres, the court
stated that this error was presumed to be prejudicial.
(Pena, supra, at p. 475.)
The Attorney General contends that these cases are
all distinguishable because each involved “substantial
uncontradicted evidence of threats by the victim against
the accused.” It is true that there was no evidence in
this case that the ultimate victim, Juan Resendiz, had
ever threatened or assaulted [Petitioner] or the
shooter, Torcino, personally. There was only a prior
statement by Juan’s brother Edilberto that Juan had
kicked their car. However, as [Petitioner] points out,
there was evidence that Juan associated with others who
had violently assaulted [Petitioner] and his companions
after Oldies told [Petitioner] he was unwelcome to bring
Norteños into their neighborhood. While the prior
threat language in the requested instruction may have
been irrelevant, the prior assault language was
relevant.
21
1
2
3
4
5
6
7
8
9
10
11
12
13
A more significant distinction is that in each of
these cases the defendant testified. (Moore, supra, 43
Cal.2d at p. 521; Pena, supra, 151 Cal.App.3d at p. 470;
Bush, supra, 84 Cal.App.3d at p. 299; Torres, supra, 94
Cal.App.2d at pp. 148-149.) In those cases, as in
People v. Minifie, supra, 13 Cal.4th at pp. 1061-1062,
the jury had evidence about the subjective component of
self-defense and imperfect self-defense, the defendant’s
actual perception of imminent danger.
People v. Viramontes (2001) 93 Cal.App.4th 1256
stated: “The subjective elements of self-defense and
imperfect self-defense are identical. Under each
theory, the appellant must actually believe in the need
to defend himself against imminent peril to life or
great bodily injury. To require instruction on either
theory, there must be evidence from which the jury could
find that appellant actually had such a belief. This
evidence may be present even though appellant did not
testify or make a statement admitted at trial.
[Citation.] If the trier of fact finds the requisite
belief in the need to defend against imminent peril, the
choice between self-defense and imperfect self-defense
properly turns upon the trier of fact’s evaluation of
the reasonableness of appellant’s belief.” (Id. at p.
1262.)
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Witnesses other than the defendant may provide
evidence of the defendant’s actual perception of
imminent danger. In this case [Petitioner’s] version of
the events was provided by his then-girlfriend. What he
told Rhonda was that he was upset about being punched
and “mad” at the guys who punched him. It may have been
implicit that they were Sureño gang members because they
objected to Norteños and to the color red being in their
area. What does not appear in her testimony is that
either [Petitioner] or Torcino actually feared them
based on their prior confrontation or their reputation.
Indeed, [Petitioner’s] return to the scene would seem to
belie a fear of imminent danger.
Defense counsel had little to work with in arguing
to the jury that [Petitioner] actually feared imminent
injury. He argued, “consider the vulnerability of
someone who is locked in a car and surrounded by 10 to
15 gang members. And ask yourself the question if there
is a reasonable doubt that there is a threat of great
bodily injury in that situation.” “Imagine being
attacked and surrounded by, the numbers range, as little
as probably seven, as many as maybe 15 is really the
number range. Imagine being trapped in a car surrounded
by 7 or 15 people and you tell me that you have any
ability to fairly defend yourself or to fight. You
don’t.” “Actual danger is not necessary. This is a
particular instruction. You do not in a self-defense
22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
situation have to actually face danger. There has to be
the appearance of danger. And you have to put it in the
context. In particular in this situation of the context
of what had happened before. That the fact that they
walk up to the them, [sic] the Buick, the first time,
that they punch through the window, they start beating
these guys. That they start to drag them out of the
car. All of that is going to at least play into their
abilities or the decision they have to make as to how
serious the threat is, how imminent the threat is, and
how they have to react to that threat.” In other words,
defense counsel asked the jurors to imagine that
[Petitioner] and Torcino were afraid, as the jurors
might have been in a similar situation after a prior
assault.
In the absence of substantial evidence that
[Petitioner] or Torcino actually feared imminent injury,
we question whether any self-defense instructions were
required. (People v. Rodriguez (1997) 53 Cal.App.4th
1250, 1270; cf. People v. Romero (1999) 69 Cal.App.4th
846, 856.) While self-defense instructions were given,
we conclude that the court did not err in this case in
refusing to specially instruct the jury about the
relevance of [Petitioner’s] prior confrontation with the
victim’s associates, because there was no evidence that
[Petitioner] or Torcino, in the terms of the requested
instruction, actually feared “greater peril” as a result
of the prior confrontation. In other words, there was
no evidence of this subjective component of
self-defense.
27
In any event, we would conclude that [Petitioner]
was not prejudiced by the absence of this instruction.
None of the given instructions prevented the jury from
considering the prior confrontation as among “the
circumstances” (CALJIC No. 5.12), the “similar position”
(CALJIC No. 5.12), “the same situation seeing and
knowing the same facts” (CALJIC No. 5.17), “the same or
similar circumstances” (CALJIC No. 5.30), the “similar
situation” and “similar knowledge” (CALJIC No. 5.50),
the “like situation, seeing and knowing the same facts”
(CALJIC No. 5.51) relevant to evaluating the
reasonableness of [Petitioner’s] response. Indeed, the
prior confrontation was relevant according to the
prosecutor’s argument. As quoted above (ante, p. 10),
the prosecutor argued that [Petitioner] and his
companions knew what to expect because an hour before
they had gotten “their butts kicked.” It is not
reasonably probable that [Petitioner] would have
obtained a more favorable verdict if the requested
instruction had been given.
(People v. Gonzales,
supra, 8 Cal.App.4th 1658, 1664-1665.)
28
We reject [Petitioner’s] argument that the omission
18
19
20
21
22
23
24
25
26
23
1
of this instruction was federal constitutional error.
It did not deprive [Petitioner] of a defense or prevent
the jury from considering all the relevant
circumstances.
People v. Humphrey (1996) 13 Cal.4th
1073 concluded that it was merely state constitutional
error when the court erroneously instructed the jury not
to consider battered women’s syndrome evidence as
relevant to the objective reasonableness of the
defendant’s belief. (Id. at p. 1089.) The error in our
case, if any, was not as serious at that in Humphrey, as
it did not preclude jury consideration of evidence of
the prior confrontation. (People v. Spencer, supra, 51
Cal.App.4th 1208, 1221.)
2
3
4
5
6
7
8
People v. Morales, 2005 WL 67098 at *8–*12.
9
Based on an examination of the record, the Court finds
10
that the failure to instruct on antecedent threats did not deprive
11
Petitioner of the fair trial guaranteed by the Fourteenth Amendment.
12
The Court finds that the record supports the state court’s
13
conclusion because there was little evidence of Torcino or
14
Petitioner’s subjective belief that they actually feared imminent
15
danger.
16
defense instructions.
17
F.3d at 1029.
18
Accordingly, due process did not require giving selfSee Hopper, 456 U.S. at 611; Menendez, 422
Moreover, when viewed as a whole, the jury instructions
19
given adequately embodied Petitioner’s self-defense theory and
20
permitted the jury to consider the initial altercation.
21
state court noted, the previous encounter could have been considered
22
by the jury as under “the circumstances” (CALJIC No. 5.12), the
23
“similar position” (CALJIC No. 5.12), “the same or similar
24
circumstances” (CALJIC No. 5.30), the “similar situation” and
25
“similar knowledge” (CALJIC No. 5.30) and the “like situation,
26
seeing and knowing the same facts” (CALJIC No. 5.51).
27
the jury was permitted to consider the previous encounter under
28
these instructions, the Court finds that the trial court’s refusal
24
As the
Given that
1
to instruct explicitly on the relevance of antecedent threats was
2
not so prejudicial as to infect the entire trial and so deny due
3
process.
4
5
See Tsinnijinnie, 601 F.2d at 1040.
b) Jury Instruction Regarding Right To Travel
Petitioner claims that the trial court erred in refusing
6
to give a special defense instruction on the right to travel.
7
state appellate court rejected Petitioner’s claim as follows:
8
9
10
11
12
The jury was instructed: “The right of
self-defense is not available to a person who
seeks a quarrel with the intent to create a real
or apparent necessity of exercising
self-defense.” (CALJIC No. 5.55.) On the other
hand, a person threatened with attack need not
retreat. “This law applies even though the
assailed person might more easily have gained
safety by flight or by withdrawing from the
scene.” (CALJIC No. 5.50, quoted, ante, p. 14.)
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
On appeal [Petitioner] complains that the
court erred in refusing his request to give the
following pinpoint instruction. “The defendant
has no obligation to curtail his activities to
avoid an encounter with [a person; people] who
may attack him. Therefore, a defendant does not
forfeit his right to self-defense simply by going
to a location, even if the defendant has reason
to believe that the other [person; people] may
initiate an assault.”
[Petitioner] requested this instruction as
an antidote to the instruction that a person may
not seek out a quarrel. The trial court refused
the requested instruction because “existing
CALJIC instruction 5.55 is sufficient to allow
the defense to argue this theory of the case,
although the Court has some doubt as to whether
or not it is appropriate for [Petitioner] to have
returned to an alleyway, which was so highly
populated and where gang members conducted so
many of their activities. But I believe that
that may be an appropriate theory of the law, but
I do not believe it is an appropriate pinpoint
instruction, given the more neutral CALJIC
instruction ... 5.55.”
[Petitioner] premised this requested
instruction on People v. Gonzales (1887) 71 Cal.
569 (Gonzales). In that case the defendant was
25
The
1
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3
4
5
6
7
8
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25
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27
28
“the paramour” of the mother of his shooting
victim. (Id. at p. 574.) There was evidence
that the victim and his companion had warned the
defendant to leave town. An officer advised the
defendant “he had a right to stay where he was.”
(Id. at p. 573.) The defendant armed himself
with a pistol for self-defense and went to the
mother’s house, although “expecting an attack”
that subsequently ensued. (Id. at p. 574.) The
California Supreme Court identified several
problems with the given instructions including
the “nineteenth instruction,” which was not
detailed in the opinion. (Id. at p. 577.)
The court explained: “A man who expects to
be attacked is not always compelled to employ all
the means in his power to avert the necessity of
self-defense before he can exercise the right of
self-defense. For one may know that if he
travels along a certain highway he will be
attacked by another with a deadly weapon, and be
compelled in self-defense to kill his assailant,
and yet he has the right to travel that highway,
and is not compelled to turn out of his way to
avoid the expected unlawful attack. [¶] In this
case, the defendant had a right to go to Miss
Umphlet’s house, if invited there by her, even if
he expected there to be attacked, and the fact
that he did go there did not of itself take away
from him the right of self-defense, if unlawfully
attacked.” (Gonzales, supra, 71 Cal. at pp.
577-578.)
Gonzales found fault with an unspecified
instruction, but it did not require such an
instruction as defendant requested.
People v. Bolden (2002) 29 Cal.4th 515
stated: “We have suggested that ‘in appropriate
circumstances’ a trial court may be required to
give a requested jury instruction that pinpoints
a defense theory of the case by, among other
things, relating the reasonable doubt standard of
proof to particular elements of the crime
charged. [Citations.] But a trial court need
not give a pinpoint instruction if it is
argumentative [citation], merely duplicates other
instructions [citation], or is not supported by
substantial evidence [citation].” (Id. at p.
558.)
In our view, CALJIC No. 5.50 adequately
informed the jury that [Petitioner] had the right
to remain in a location and stand his ground when
attacked, with the exception stated in CALJIC No.
26
1
5.55 that he could not go to that location with
the intent to create a confrontation giving rise
to an apparent need to employ self-defense.
While the jury might have been able to harmonize
the requested instruction with CALJIC No. 5.55,
the requested instruction appears to us to have
an argumentative tone, telling the jury that he
had “no obligation” to curtail his travels.
2
3
4
5
This argument was properly made at length by
defense counsel to the jury. “[T]he meat of what
I think the District Attorney has been telling
you is, these guys have no right to go back
there. They have no right to go into that
alley.” “They have every right to be in that
alley. I mean, I want you to think about this in
a real common sense way, since when does a person
who is attacked lose their right to go to a
public place?” He gave the example of a bully
chasing a child from a playground.
6
7
8
9
10
11
“I ask you when did we surrender our streets
to marauding, attacking thugs who live in our
alley. I mean it’s ridiculous to suggest that
these people don’t have a right to go back
there.” “You don’t lose the right to go back to
that playground or to walk-walk to school because
you are going to run into a bully who’s told you
he is going to beat you next time.”
12
13
14
15
16
The prosecutor responded that a child could
retaliate against a bully by punching him in the
nose. “What he doesn’t have a right to do is
bring a gun with him” and settle it up with a
handgun.
17
18
19
Not only was the requested instruction
argumentative, we see no evidentiary support for
it. Despite counsel’s arguments, the only
evidence of [Petitioner’s] intent, even according
to what [Petitioner] told his girlfriend, was
that he and his friends went back to the alley
with a gun intending to fight their attackers and
settle the situation. Under these circumstances,
[Petitioner] was not exercising his general right
to travel in public places. Since they were
seeking a fight, they were not “merely ...
returning to the place where they” where they
[sic] had a right to be. We conclude that the
trial court properly refused this requested
instruction.
20
21
22
23
24
25
26
27
People v. Morales, 2005 WL 67098 at *12–*14.
28
//
27
1
Based on an examination of the record, the Court agrees
2
with the state appellate court’s conclusion that the evidence did
3
not support the Petitioner’s requested pinpoint instruction on the
4
right to travel.
5
because they were angry about the initial altercation.
6
not travelling to a public location as a result of their normal
7
activities.
8
court instruct the jurors that Petitioner had a right to travel.
9
See Hopper, 456 U.S. at 611; Menendez, 422 F.3d at 1029.
10
Petitioner and his friends returned to the alley
They were
Accordingly, due process did not require that the trial
2) Erroneous Jury Instruction
11
Petitioner also contends that the trial court erred by
12
instructing the jury that he could be convicted of murder as a
13
natural and probable consequence of aiding and abetting a
14
misdemeanor breach of the peace.
15
to the misdemeanor-manslaughter section of Cal. Penal Code § 192(b),
16
“one who intends to do no more than commit a misdemeanor breach of
17
the peace does not possess [the] malice aforethought [required for
18
murder].”
Petitioner argues that, pursuant
Petition at 111.
19
A challenge to a jury instruction solely as an error under
20
state law does not state a claim cognizable in federal habeas corpus
21
proceedings.
22
See, e.g., Stanton v. Benzler, 146 F.3d 726, 728 (9th Cir. 1998)
23
(state law determination that arsenic trioxide is a poison as a
24
matter of law, not element of crime for jury determination, not open
25
to challenge on federal habeas review); Walker, 850 F.2d at 475-76
26
(failure to define recklessness at most error of state law where
27
recklessness relevant to negate duress defense and government not
28
required to bear burden of proof of duress).
See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991).
28
To obtain federal
1
collateral relief for errors in the jury charge, a petitioner must
2
show that the ailing instruction by itself so infected the entire
3
trial that the resulting conviction violates due process.
4
502 U.S. at 72; Cupp v. Naughten, 414 U.S. 141, 147 (1973); see also
5
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (“‘[I]t must be
6
established not merely that the instruction is undesirable,
7
erroneous, or even “universally condemned,” but that it violated
8
some [constitutional right].’”).
9
infractions that violate the fundamental fairness inherent in due
10
process is very narrow: “Beyond the specific guarantees enumerated
11
in the Bill of Rights, the Due Process Clause has limited
12
operation.”
13
Estelle,
However, the defined category of
Estelle, 502 U.S. at 73.
A habeas petitioner is not entitled to relief unless the
14
instructional error “‘had substantial and injurious effect or
15
influence in determining the jury's verdict.’”
16
Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United
17
States, 328 U.S. 750, 776 (1946)).
18
seeking federal habeas relief may obtain plenary review of
19
constitutional claims of trial error, but are not entitled to habeas
20
relief unless the error resulted in “actual prejudice.”
21
(citation omitted).
22
23
24
25
26
27
28
Brecht v.
In other words, state prisoners
Id.
The trial court instructed the jury as follows:
“One who aids and abets another in the commission
of a crime or crimes is not only guilty of those crimes,
but is also guilty of any other crime committed by a
principal which is a natural and probable consequence of
the crimes originally aided and abetted.
“In order to find the defendant guilty of the
crimes of murder, manslaughter, assault with a deadly
weapon on Marvin Guevara, or shooting at an occupied
motor vehicle, you must be satisfied beyond a reasonable
doubt that:
29
1
2
3
“One, the crime of breach of the peace was
committed. [¶] Two, that the defendant aided and
abetted that crime. [¶] Three, that a coprincipal in
that crime committed the crimes of murder, manslaughter,
assault with a deadly weapon on Marvin Guevara, or
shooting at an occupied motor vehicle.
4
5
6
7
8
“And, four, the crimes of murder, manslaughter,
assault with a deadly weapon on Marvin Guevara, or
shooting at an occupied motor vehicle were a natural and
probable consequence of the commission of the crime of
breach of the peace; or in order to find the defendant
guilty of the crimes of murder, manslaughter, assault
with a deadly weapon on Marvin Guevara, or shooting at
an occupied motor vehicle you must be satisfied beyond a
reasonable doubt that:
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
“One, the crime of assault with a firearm was
committed. [¶] Two, that the defendant aided and
abetted that crime. [¶] Three, that a coprincipal in
that crime committed the crimes of murder, manslaughter,
assault with a deadly weapon on Marvin Guevara, or
shooting at an occupied motor vehicle.
“And, four, the crimes of murder, manslaughter,
assault with a deadly weapon on Marvin Guevara, or
shooting at an occupied motor vehicle were a natural and
probable consequence of the commission of the crime of
assault with a firearm.
“You are not required to unanimously agree as to
which originally contemplated crime the defendant aided
and abetted, so long as you are satisfied beyond a
reasonable doubt and unanimously agree that the
defendant aided and abetted the commission of an
identified and defined target crime and that the crime
of murder or manslaughter was a natural and probable
consequence of the commission of that target crime.
“Whether a consequence is natural and probable is
an objective test based not on what the defendant
actually intended but on what a person of reasonable and
ordinary prudence would have expected would be likely to
occur. The issue is to be decided in light of all the
circumstances surrounding the incident. A natural
consequence is one which is within the normal range of
outcomes that may be reasonably expected to occur if
nothing unusual has intervened. Probable means likely
to happen.” (See CALJIC No. 3.02.)
The court further instructed the jury on the
definition of aiding and abetting (CALJIC No. 3.01) and
on the elements of the misdemeanor of fighting or
challenging another to fight in a public place in
violation of section 415, subdivision (1). (CALJIC No.
30
1
16.260.)
2
People v. Morales, 2005 WL 67098 at *4.
CALJIC No. 3.01, as given
3
at trial, stated: “A person aids and abets the commission or
4
attempted commission of a crime when he or she: One, with knowledge
5
of the unlawful person (sic) of the perpetrator and two, with the
6
intent or purpose of committing or encouraging or facilitating the
7
commission of the crime, and three, by act or advice aids, promotes,
8
encourages, or instigates the commission of the crime.
Mere
9
presence at the scene of a crime which does not itself assist the
10
commission of the crime does not amount to aiding and abetting.
11
Mere knowledge that a crime is being committed and the failure to
12
present it does not amount to aiding and abetting.”
Ex. B at 1125.
13
CALCIC No. 16.260, as given at trial, stated: “Every person who,
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
one, unlawfully fights in a public place is guilty of a violation of
section 415(1) of the Penal Code, a misdemeanor.
In order to prove
this crime, each of the following elements must be proved:
One, a
person willfully and unlawfully fought another person, or challenged
another person to fight; and two, the fight, or the challenge,
occurred in a public place.”
Id. at 1128.
Petitioner argues that the above instructions incorrectly
state the law by allowing for a misdemeanor breach of the peace to
serve as a the predicate for a murder conviction under the aiding
and abetting - natural probable consequences doctrine.
Specifically, he argues that a person who commits a misdemeanor
breach of the peace does not possess the malice aforethought
required for second-degree murder.
He concludes that a misdemeanor
breach of the peace can only lead misdemeanor manslaughter under
31
1
Cal. Penal Code § 192(b).
2
Petitioner’s claim on the following grounds:
3
crime was an objectively foreseeable consequence is primarily a
4
factual question for the jury and that Petitioner’s case was
5
governed by People v. Montes, 74 Cal. App. 4th 1050 (1999), which
6
holds that under certain circumstances such as gang violence the
7
targeted offense of breach of the peace was closely connected to the
8
victim’s murder.
9
state appellate court also rejected Petitioner’s claim that it was
10
cruel and unusual punishment to convict Petitioner or murder based
11
on aiding and abetting a breach of the peace, finding that the jury
12
could have found that Petitioner aided and abetted an armed assault
13
and that Petitioner’s sentence was appropriate given the
14
circumstances of Petitioner’s case.
The state appellate court rejected
that whether another
People v. Morales, 2005 WL 67098, *6-*7.
The
Id. at *8.
15
After a careful review of the record, the Court cannot say
16
that the aiding and abetting instruction given at Petitioner’s trial
17
was incorrect or resulted in actual prejudice to Petitioner.
18
initial matter, the state court’s rejection of this claim was not
19
contrary to established Supreme Court law.
20
Petitioner argues that the state court erred as a matter of law, his
21
claim is not cognizable in federal court.
22
court’s finding was not an unreasonable determination of the facts.
23
As the state court noted, Petitioner and his friend returned to an
24
alley seeking to “settle” things between themselves and rival gang
25
members when the initial encounter had resulted in a fight.
26
Petitioner drove his friends to the alley, knowing that his friend
27
Torino had brought a gun.
28
friends into the alley and closer to his car.
As an
To the extent that
Secondly, the state
Petitioner also coaxed the victim and his
32
Finally, Petitioner
1
challenged the victim and his friends to a fight.
2
conclusion that the murder was a foreseeable consequence of either a
3
breach of the peace or an armed assault was supported by the
4
evidence presented at trial.
5
The jury’s
The Court also finds that the trial court’s determination
6
that Petitioner’s indeterminate life sentence was not cruel and
7
unusual punishment was neither contrary to clearly established
8
Supreme Court law nor an unreasonable determination of the facts.
9
Respondent correctly notes that “narrow” proportionality principle
10
contained in the Eighth Amendment “does not require strict
11
proportionality between crime and sentence,” but rather forbids only
12
“extreme sentences that are ‘grossly disproportionate’ to the
13
crime.”
14
“[O]utside the context of capital punishment, successful challenges
15
to the proportionality of particular sentences will be exceedingly
16
rare.”
17
the state appellate court reasonably found that the punishment of an
18
indeterminate life sentence is not cruel and unusual punishment for
19
second degree murder committed under the circumstances of this case,
20
and not contrary to Supreme Court precedent.
21
3) Cumulative Error
22
Graham v. Florida, 130 S. Ct. 2011, 2021 (2010).
Solem v. Helm, 463 U.S. 277, 289-90 (1983).
Accordingly,
Petitioner contends that the cumulative effect of the
23
above jury instruction errors resulted in the denial of his right to
24
a fair trial.
25
sufficiently prejudicial to warrant reversal, the cumulative effect
26
of several errors may still prejudice a defendant to such a degree
27
that his conviction must be overturned.
28
F.3d 862, 893-95 (reversing conviction where multiple constitutional
In some cases, although no single trial error is
33
Alcala v. Woodford, 334
1
errors hindered defendant’s efforts to challenge every important
2
element of proof offered by prosecution).
3
likely to be found prejudicial when the government's case is weak.
4
See, e.g., Thomas v. Hubbard, 273 F.3d 1164, 1180 (9th Cir. 2002),
5
overruled on other grounds by Payton v. Woodford, 299 F.3d 815, 829
6
n.11 (9th Cir. 2002) (noting that the only substantial evidence
7
implicating the defendant was the uncorroborated testimony of a
8
person who had both a motive and an opportunity to commit the
9
crime); Walker v. Engle, 703 F.2d 959, 961-62, 968 (6th Cir.), cert.
Cumulative error is more
10
denied, 464 U.S. 951 (1983).
11
constitutional error existing, nothing can accumulate to the level
12
of a constitutional violation.
13
939, 957 (9th Cir. 2002); Fuller v. Roe, 182 F.3d 699, 704 (9th Cir.
14
1999); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996).
15
discussed above, Petitioner has failed to establish any
16
constitutional error in the jury instructions.
17
claim of cumulative error does not warrant habeas relief.
18
19
However, where there is no single
See Mancuso v. Olivarez, 292 F.3d
As
Accordingly, his
C. Juror Misconduct
Petitioner contends that the trial court erred by failing
20
to “make whatever inquiry is necessary” to determine whether an
21
inattentive juror should have been discharged.
22
Petitioner claims that Juror No. 5’s inattentiveness deprived him of
23
a fair trial as guaranteed by the Sixth Amendment.
24
points to two instances of inattentiveness.
25
second day of witness testimony, the trial court interrupted
26
proceedings to awaken Juror No. 5.
27
The Court:
28
Juror No. 5:
Specifically,
Petitioner
On June 5th, 2003, the
{Name Redacted.} {Name redacted}, are you
paying attention?
Sorry, I dozed off with the heat.
34
1
4
The Court:
Juror No. 5:
The Court:
Juror No. 5:
The Court:
Juror No. 5:
The Court:
5
Juror No. 5:
2
3
Pardon me?
From the heat.
It’s too hot?
I’m okay.
Are you hearing everything?
Yes, sir.
We want everybody to pay attention. If you
can’t pay attention we want to know.
Okay. Thank you.
6
RT 357.
The following day, on June 6, 2003, Juror Nos. 4, 7 and 12
7
and alternate jurors Nos. 1 and 2 sent the trial judge a note
8
stating: “Some of the jurors have come together to agree that Juror
9
#5 has not payed (sic) close attention to this case because of
10
sleeping during the trial as vital evidence was being said and
11
showed.
We don’t feel that he will be as fair with a decision
12
during deliberation.
Can you please take this into consideration.
13
Thank you.”
Ex. K at 44.
14
Petitioner raised this claim for the first time in his
15
16
17
18
19
20
21
22
23
24
25
26
27
28
state habeas petition filed in the state superior court.
In support
of his state habeas petition, Petitioner provided a sworn
declaration from his trial attorney stating that he had no
independent recollection as to whether the jurors’ note was brought
to his attention.
His trial attorney further stated that had any
issue regarding a sleeping juror been brought to his attention, he
expects that he would made some record of his response.
71-73.
Petition at
Petitioner also filed a personal declaration in support of
his state habeas petition wherein he stated that he did not recall
the trial court admonishing a juror regarding his or her
attentiveness, and that he did not notice whether any member of the
jury panel was sleeping.
Id. at 74-76.
The state superior court rejected his claim as follows:
35
1
2
3
4
5
6
7
8
9
In the present case, [P]etitioner has failed to
show prejudice. Petitioner has failed to show that
his due process or Sixth Amendment rights were
violated by having [juror #5 remain] . . . As pointed
out by Petitioner, the juror was awakened once by the
judge during trial. However, defense counsel did not
ask that the juror be dismissed. Where the juror’s
conduct did not appear to even merit any action by
the defense, it would not merit further hearing by
the judge. (People v. Bradford (1997) 15 Cal.4th
1229, 1349.)
Ex. K at 40-41.
The Sixth Amendment to the United States Constitution
guarantees criminal defendants the right to a trial by a fair and
10
impartial jury.
11
to a jury trial is extended to state criminal trials through the Due
12
Process Clause of the Fourteenth Amendment.
13
391 U.S. 145, 148–149 (1968) (holding that “the Fourteenth Amendment
14
guarantees a right of jury trial in all criminal cases which — were
15
they to be tried in a federal court — would come within the Sixth
16
Amendment’s guarantee.”).
17
willing to deliberate solely based upon the evidence presented, and
18
a trial judge watchful to prevent prejudicial occurrences and to
19
assess their effects if they happen.
20
209, 217 (1982).
21
Irvin v. Dowd, 366 U.S. 717, 722 (1961).
The right
Duncan v. Louisiana,
Due process requires a jury capable and
Smith v. Phillips, 455 U.S.
Inattentiveness can be a form of juror misconduct and may
22
constitute cause to discharge a juror.
23
not, per se, a violation of a criminal defendant’s right to due
24
process, a fair trial, or an impartial jury.
25
States, 483 U.S. 107, 126–27 (1987).
26
Olano, 62 F.3d 1180, 1189 (9th Cir. 1995) (“[T]he presence of all
27
awake jurors throughout an entire trial is not an absolute
28
prerequisite to a criminal trial’s ability to reliably serve its
36
However inattentiveness is
Tanner v. United
See also United States v.
1
function as a vehicle for determination of guilt or innocence.
2
single juror’s slumber is thus not per se plain error.” (internal
3
citations omitted)); United States v. Springfield, 829 F.2d 860, 864
4
(9th Cir. 1987) (finding no violation of due process or the right to
5
a fair trial and impartial jury when a juror napped through part of
6
the trial testimony).
7
granted only if the juror’s alleged inattentiveness had “a
8
substantial and injurious effect or influence in determining the
9
jury’s verdict.”
10
A
In other words, habeas corpus relief may be
Brecht, 507 U.S. at 637.
After a careful review of the record, this Court cannot
11
say that the state court’s rejection of Petitioner’s juror
12
misconduct claim was contrary to or involved an unreasonable
13
application of clearly established federal law or that it resulted
14
in a decision that was based on an unreasonable determination of the
15
facts in light of the evidence presented in the state court
16
proceeding.
17
to the extent of juror #5’s inattentiveness.
18
that juror #5 dozed off once during the trial and that five of the
19
other jurors (two of them being alternate jurors) believed that
20
juror #5 was sleeping during the presentation of “vital evidence.”
21
Ex. K at 44.
22
counsel did not ask for the dismissal of juror #5 or for a hearing
23
regarding juror #5 after the trial court admonished juror #5 for not
24
paying attention.9
28 U.S.C. § 2254(d).
The evidence is not conclusive as
The record indicates
However, the record also indicates that defense
And the record indicates that there was
25
26
27
28
9
Petitioner appears to imply that his counsel was not informed
of the jurors’ note expressing their concern regarding juror #5.
However, the affidavit submitted by Petitioner’s trial counsel is
vague and speculative and does not support a finding that juror #5’s
inattentiveness had a substantial or injurious effect in determining
the jury’s verdict.
37
1
sufficient evidence to support Petitioner’s conviction.
2
is unclear as to how long juror #5 was asleep for on June 5, 2006,
3
and whether or not the other jurors’ note referred to juror #5
4
sleeping on other occasions.
5
further concerns by the other jurors regarding juror #5’s ability to
6
be fair and impartial.
7
petition, the state court reasonably concluded that, under these
8
circumstances, the trial court reasonably declined to make further
9
inquiry regarding juror #5.
The record
The record also does not reflect any
In denying Petitioner’s state habeas
Similarly, the Court finds that the
10
juror’s alleged inattentiveness did not have a substantial and
11
injurious effect or influence in determining the jury’s verdict.
12
Accordingly, Petitioner is not entitled to habeas relief on that
13
claim.
14
D. Ineffective Assistance of Appellate Counsel
15
Petitioner claims that appellate counsel was ineffective
16
because appellate counsel did not raise on appeal the claim that
17
juror #5 was inattentive.
18
Amendment guarantees a criminal defendant the effective assistance
19
of counsel on his first appeal as of right.
20
U.S. 387, 391-405 (1985).10
21
appellate counsel are reviewed according to the standard set out in
22
Strickland v. Washington, 466 U.S. 668 (1984).
23
528 U.S. 259, 285 (2000).
The Due Process Clause of the Fourteenth
Evitts v. Lucey, 469
Claims of ineffective assistance of
Smith v. Robbins,
First, the petitioner must show that
24
25
10
26
27
28
Although the right to the effective assistance of counsel at
trial is guaranteed to state criminal defendants by the Sixth
Amendment as applied to the states through the Fourteenth, the Sixth
Amendment does not address a defendant’s rights on appeal; the right
to effective state appellate counsel is derived purely from the
Fourteenth Amendment’s due process guarantee. See Evitts, 469 U.S.
at 392.
38
1
counsel’s performance was objectively unreasonable, which in the
2
appellate context requires the petitioner to demonstrate that
3
counsel acted unreasonably in failing to discover and brief a merit-
4
worthy issue.
5
1102, 1106 (9th Cir. 2010).
6
prejudice, which in this context means that the petitioner must
7
demonstrate a reasonable probability that, but for appellate
8
counsel’s failure to raise the issue, the petitioner would have
9
prevailed in his appeal.
10
Smith, 528 U.S. at 285; Moormann v. Ryan, 628 F.3d
Second, the petitioner must show
Smith, 528 U.S. at 285-86; Moormann, 628
F.3d at 1106.
11
Here, Petitioner has not shown that counsel’s performance
12
was objectively unreasonable because his inattentive juror claim is
13
not meritorious.
14
rejected that claim, Petitioner cannot demonstrate that his
15
appellate counsel’s failure to raise this claim on appeal was
16
objectively unreasonable.
17
meritless claim is neither unreasonable nor prejudicial.
18
Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989) (noting that one of the
19
“hallmarks of effective appellate advocacy” is weeding out weaker
20
issues); see also Jones v. Barnes, 463 U.S. 745, 751 (1983) (holding
21
appellate counsel has no duty to raise every nonfrivolous claim
22
requested by appellant).
23
prejudiced by the manner in which his appeal was conducted.
24
Accordingly, Petitioner is not entitled to habeas relief on this
25
claim.
Because this Court and the state court have now
An appellate lawyer’s failure to raise a
For the same reason, Petitioner was not
26
27
28
Miller v.
V.
For the foregoing reasons, the petition for a writ of
habeas corpus is hereby DENIED.
Further, a Certificate of
39
1
Appealability is DENIED.
2
Section 2254 Cases.
3
of the denial of a constitutional right.”
4
Nor has Petitioner demonstrated that “reasonable jurists would find
5
the district court’s assessment of the constitutional claims
6
debatable or wrong.”
7
Petitioner may not appeal the denial of a Certificate of
8
Appealability in this Court but may seek a certificate from the
9
Court of Appeals under Rule 22 of the Federal Rules of Appellate
10
Procedure.
11
See Rule 11(a) of the Rules Governing
Petitioner has not made “a substantial showing
28 U.S.C. § 2253(c)(2).
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Cases.
12
13
See Rule 11(a) of the Rules Governing Section 2254
The Clerk shall terminate any pending motions as moot,
enter judgment in favor of Respondent and close the file.
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IT IS SO ORDERED.
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17
DATED
08/30/2012
THELTON E. HENDERSON
United States District Judge
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G:\PRO-SE\TEH\HC.07\Morales-07-6002.deny habeas.wpd
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40
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