Soo Duk Kim v. Shawn Hatton, No. 2:2016cv05071 - Document 40 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER DENYING PETITION, DISMISSING ACTION WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY by Magistrate Judge Patrick J. Walsh. The Petition is denied and the action is dismissed with prejudice. (See document for further details.) (sbou)
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Soo Duk Kim v. Shawn Hatton Doc. 40 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOO DUK KIM, Petitioner, 11 v. 12 13 ) ) ) ) ) ) ) ) ) ) SHAWN HATTON, WARDEN, Respondent. 14 CASE NO. CV 16-5071-PJW MEMORANDUM OPINION AND ORDER DENYING PETITION, DISMISSING ACTION WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY 15 16 I. 17 INTRODUCTION 18 Before the Court is a Petition for Writ of Habeas Corpus under 28 19 U.S.C. § 2254. 20 denied and the action is dismissed with prejudice. For the reasons set forth below, the Petition is 21 II. 22 SUMMARY OF PROCEEDINGS 23 A. State Court Proceedings 24 In 2012, after Petitioner was convicted of second degree murder 25 by a jury in Los Angeles County Superior Court, the California Court 26 of Appeal reversed his conviction because of instructional error and 27 remanded for a new trial. 28 Petitioner was retried in 2013, and a second jury convicted him of (See Lodged Document No. 7 at 2.) Dockets.Justia.com 1 second degree murder. (Clerk’s Transcript (“CT”) 161.) 2 court sentenced him to 16 years to life in prison. The trial (CT 182-83.) Petitioner appealed to the California Court of Appeal, which 3 4 affirmed the judgment in a written decision. (Lodged Document Nos. 5- 5 7.) 6 Court, which was summarily denied. 7 Thereafter, he filed habeas corpus petitions in the Los Angeles County 8 Superior Court, the California Court of Appeal, and the California 9 Supreme Court, all of which were denied. He then filed a petition for review in the California Supreme (Lodged Document Nos. 8-9.) (Docket No. 10, Exhs. A-B; 10 Docket No. 17, Exh. A; Docket No. 31, Exh. G; Lodged Document Nos. 11- 11 16.) 12 B. Federal Court Proceedings 13 In July 2016, Petitioner, proceeding with the assistance of 14 counsel, filed a habeas corpus petition in this court, pursuant to 28 15 U.S.C. § 2254, raising a single claim. 16 stayed the Petition to allow Petitioner to go back to state court to 17 exhaust additional claims. 18 amended petition raising the following three claims: 19 1. On April 5, 2017, Petitioner filed an There was insufficient evidence to prove that he committed second degree murder. 20 21 In November 2016, the Court 2. Trial counsel was ineffective for failing to present the 22 expert witness’s finding that Petitioner was in a psychotic 23 state at the time of the killing. 24 3. Trial counsel was ineffective for failing to request a jury 25 instruction on the lesser included offense of involuntary 26 manslaughter. 27 (See Docket No. 31, First Amended Petition (“Petition”) at ii.) 28 2 1 III. 2 FACTUAL SUMMARY 3 The following statement of facts was taken verbatim from the 4 California Court of Appeal’s opinion affirming Petitioner’s 5 conviction: 6 A. Prosecution’s Case 7 In December 2007, Susan Kim lived in a two-story house 8 on Raymond Avenue in Glendale. [Petitioner] was Kim’s 9 boyfriend and had moved in with her a year earlier. [Petitioner] was unemployed and did not speak English 10 11 very well. Kim’s daughter, Jane Moon, attended college in 12 San Diego but would periodically stay at Kim’s house during 13 weekends and winter and summer breaks. 14 little effort to get to know Moon except when Kim was also 15 present. [Petitioner] made Moon was staying at Kim’s home for winter break to 16 17 attend two weddings on December 15, 2007. On that day, Kim 18 confided in Moon that she wanted to “kick out” [Petitioner] 19 from the house. 20 Moon. Kim appeared scared when she confided in 21 On December 16, 2007, around 8:00 a.m., Moon was 22 sleeping in an upstairs bedroom of Kim’s house when she was 23 awakened by the sound of Kim and [Petitioner] arguing in the 24 downstairs hallway. 25 [Petitioner] out,” [Petitioner] saying “‘Give me money and I 26 will leave,’” and Kim responding “‘Are you crazy?’” and 27 “‘Why would I give you money? 28 Moon heard [Petitioner] threaten Kim, “‘What if I kill you Moon heard Kim “trying to kick It is my house. 3 Get out.’” 1 and then myself?’” 2 numerous heated arguments over the course of their 3 relationship, with both [Petitioner] and Kim yelling at each 4 other, Moon had never seen [Petitioner] strike or hit Kim 5 and had never heard [Petitioner] talk about killing Kim 6 before December 16, 2007. 7 Although [Petitioner] and Kim had After the argument ended, Kim went upstairs to Moon’s 8 bedroom and apologized to Moon for waking her and telling 9 Moon to go back to sleep. Moon went back to sleep and woke 10 up a few hours later. Moon went downstairs to use the 11 shower connected to Kim’s downstairs bedroom. 12 reached the bottom of the stairs and was in front of Kim’s 13 closed bedroom door, Moon heard whispered arguing between 14 Kim and [Petitioner]. 15 argument. 16 Moon heard Kim say, “Oh, so you are going to kill me?” 17 While Moon showered, she could not hear [Petitioner] or Kim. 18 After Moon showered, about 1:00 or 1:30 p.m., Moon When she She could only hear parts of their In response to something that [Petitioner] said, 19 heard Kim and [Petitioner] arguing again. 20 the kitchen and then in the driveway. 21 on the driveway throwing shoes and other items; Kim was 22 taking pictures and yelling at [Petitioner] that she was 23 going to call the police and get a restraining order. 24 [Petitioner] then left. She heard them in Moon saw [Petitioner] Kim left the house to run 25 errands. At around 2:30 p.m., Moon’s boyfriend, Christopher 26 Rivera, came to the house and the two prepared to leave to 27 run errands. Just as Moon and Rivera were about to leave, 28 4 1 Kim returned to the house. 2 house. 3 They left Kim alone at the Between 3:00 and 4:00 p.m., one of Kim’s neighbors saw 4 [Petitioner] backing his white Lexus out of Kim’s driveway 5 and speed away, almost clipping the house, as he left. 6 neighbor described [Petitioner’s] driving as “erratic and in 7 haste” that afternoon, although [Petitioner] was usually a 8 careful and calm driver. 9 had heard loud yelling from inside the home, sounding like The A couple days before, the neighbor 10 an argument between a man and a woman, although he could 11 only hear the man. 12 Another neighbor was outside on her driveway between 13 2:00 and 4:00 p.m., when she heard screeching tires and 14 looked and saw [Petitioner] driving “crazily,” backing out 15 of the driveway in his white Lexus and leaving at a fast 16 speed. 17 At around 6:00 or 6:30 p.m., Moon and Rivera returned 18 to the house. 19 the front door of the house to get the remote control for 20 the gate from the kitchen. 21 saw Kim lying on the kitchen floor with a pool of blood 22 around her and a kitchen towel over her face. 23 yelling and Rivera came into the house and took Moon 24 outside. 25 Rivera stayed in the car while Moon went into A few feet into the house, Moon Moon started Moon and Rivera called 911. Glendale Police Officer Joshua Luna arrived at 26 [Petitioner’s] house at 6:45 p.m. and saw Kim’s body lying 27 on the kitchen floor. 28 examined the crime scene, documenting blood and blood Homicide Detective Petros Kmbikyan 5 1 splatter and an indentation in the kitchen wall. Kmbikyan 2 was present when the towel was removed from Kim’s face, 3 revealing blood on her face, open eyes and a puncture wound 4 to the left side of her neck. In the sink was a knife with 5 blood on it and a broken tip. The knife appeared to belong 6 with those in a butcher block in the kitchen. Lead Detective Arthur Frank, the investigating officer, 7 8 was also present and observed the crime scene. Based on 9 [Petitioner’s] vehicle and Department of Motor Vehicle 10 records, Frank sent Officer Michael Severo to conduct 11 surveillance at an address on Occidental. Early in the morning the next day, December 17, 2007, 12 13 Police Officer Severo and his partner conducted surveillance 14 from an unmarked vehicle at an apartment complex on South 15 Occidental. 16 officers saw a white Lexus enter the subterranean garage and 17 Severo’s partner left their vehicle and followed, hearing a 18 male and female talking but could not tell what was being 19 said. 20 the garage and the officers followed it to a motel on 21 Vermont. 22 motel and the officers followed it again. 23 stopped the vehicle which had one occupant, [Petitioner]. 24 When [Petitioner] got out of the car, Officer Severo noticed 25 that he had a horizontal cut on his left wrist that was 26 coagulating and blood on the left side of his pants. 27 [Petitioner] was arrested and taken to the police station. Around 4:00 a.m., on December 17, 2007, the Approximately five minutes later, a white Lexus left Five to 10 minutes later, the white Lexus left the 28 6 The officers 1 At the police station, Detective Frank was waiting for 2 Detective Matthew Prokosch, the Korean translator, to arrive 3 before interviewing [Petitioner] when [Petitioner] asked 4 Frank in English, “‘Is the girl dead? 5 Detective Frank told [Petitioner] that they could talk about 6 it later and continued to wait for a translator. 7 Frank noticed that [Petitioner] had minor lacerations or 8 cuts on both of his wrists, which Detective Frank bandaged. Is Susan dead?’” Detective At about 7:00 a.m., [Petitioner] waived his Miranda 9 10 rights and was interviewed by Detective Frank with Detective 11 Prokosch translating.1 12 appeared remorseful. 13 drug-recognition, observed that [Petitioner] did not exhibit 14 signs of being under the influence of narcotics. [Petitioner] was cooperative and Detective Prokosch, trained in 15 In his statement to the police, [Petitioner] indicated 16 that at around 3:00 p.m., the day before, he and Kim had an 17 argument in the kitchen. 18 was using marijuana and the day before Kim’s death, Kim had 19 taken away [Petitioner’s] key. 20 [Petitioner] “unconsciously or unknowingly, unintentionally 21 grabbed her head and hit her head against the wall a couple 22 of times.”2 23 screamed and fell down. Kim found out that [Petitioner] During the argument, When [Petitioner] hit Kim against the wall, she Then [Petitioner] grabbed a knife 24 25 26 27 28 1 The interview was tape recorded. The tape recording of the interview was played for the jury. A transcript of the interview is contained in the record. Detective Prokosch made notations on the transcript with corrections to the translation. 2 At trial, Prokosch testified that the Korean word used by [Petitioner] could also mean “actions are automatic.” 7 1 from a knife block in the kitchen and “unintentionally, or 2 without him knowing” stabbed her in the stomach two or three 3 times. 4 During the interview, Detective Frank began drawing a 5 diagram of the kitchen so that they could talk specifically 6 about the indentation in the wall, the knife block and the 7 location of Kim’s body. 8 doing and offered to draw the diagram and began drawing. 9 [Petitioner] drew the chairs that he and Kim were sitting in [Petitioner] saw what Frank was 10 to eat when they argued. 11 wall that he pushed Kim’s head into and confirmed that the 12 hole in the wall was from when Kim hit her hea[]d. 13 indicated that the knife he grabbed was by the sink, and 14 where it was in relation to the gas range. 15 location Kim fell down, confirmed that she was screaming 16 while she was on the floor, and drew on the diagram where 17 she was lying down when he got the knife and stabbed Kim 18 while she was on the ground.3 19 he left the knife in the sink and then drove away intending 20 to kill himself. 21 He identified the location of the He He indicated the [Petitioner] told the police Instead [Petitioner] met Choi Sookja, a woman he used 22 to date, and she paid for a room at a Best Western motel on 23 New Hampshire. 24 shirt before cleaning up the room and throwing it away into 25 a trash can in the hallway. In room 412, [Petitioner] changed out of his [Petitioner] told Sookja that 26 27 28 3 Detective Frank who had been at the crime scene and observed the blood spatters opined that [Petitioner’s] description of stabbing Kim while she was on her back with her stomach up was consistent with the blood splatter he observed in the kitchen. 8 1 he had killed Kim but Sookja did not believe him and said 2 that [Petitioner] was lying. 3 When asked why he got so angry during the argument, 4 [Petitioner] stated that Kim took his key and was “verbally 5 rude and abusive” and Kim had also told [Petitioner] in a 6 belittling manner to go to Korea and live with his mother 7 for six months. 8 taking out marijuana from his car several days earlier and 9 that they had talked several days earlier about not seeing 10 11 [Petitioner] stated that Kim had seen him each other. Homicide Detective Keith Soboleski went to the motel on 12 New Hampshire to see room 412. 13 the door from the fourth floor stairwell to the hallway, 14 Detective Soboleski found a bloody towel, shirt, and 15 sweatshirt. 16 trash can. 17 appeared to be blood smears on the bed, blood droplets on 18 the bathroom floor, and some blood on the furniture. 19 room was checked out to a female named Ja Sook. 20 surveillance tape of the motel showed the arrival of a white 21 Lexus with two occupants, one male and one female, and the 22 female checking in at the front desk. 23 In a trash can holding open He also found a room key for room 412 in the In room 412, Detective Soboleski found what The The According to the medical examiner, Kim died from four 24 fatal stab wounds. Specifically, two fatal stab wounds went 25 through her heart, one went through her lung and one of them 26 was five and a half inches deep and pierced both her heart 27 and left lung. 28 two-inch wound to the neck and a superficial wound behind Kim also had two non-fatal stab wounds--a 9 1 her left ear. In addition to the six stab wounds, Kim had a 2 bruise on the back of her head. 3 B. Defense’s Case 4 [Petitioner] did not testify in his defense. 5 Forensic psychiatrist Manuel St. Martin evaluated 6 [Petitioner] for a mental disorder in 2008 and found that he 7 suffered from schizophrenia. 8 include inability to plan and to speak in a way that would 9 be understood by others. Symptoms of the disorder According to Dr. St. Martin, these 10 patients “strike out at others for no apparent purpose.” 11 schizophrenic that is not medicated loses touch with reality 12 and hallucinations are often a sign. 13 has such a disorder does not necessarily prevent one from 14 forming malice aforethought. 15 disorder may prevent someone from forming malice 16 aforethought. 17 suffered from schizophrenia at the time of the commission of 18 the offense. 19 A The mere fact that one However, an acute form of this Dr. St. Martin opined that [Petitioner] As to a hypothetical involving a person who, as a 20 result of verbal abuse over a period of “a day or two,” 21 yelled, threw things randomly, and broke glassware, Dr. St. 22 Martin opined that the hypothetical subject showed signs of 23 a person being in a psychotic state. 24 indicated that someone in a psychotic state could also come 25 out of it hours later. 26 a person who after killing someone, asked another woman to 27 help him obtain a hotel room, and thereafter, in that room, 28 changed out of the clothing worn during the time of the Dr. St. Martin When given a hypothetical involving 10 1 crime, attempted to cut his own wrist, managed to leave the 2 room with the woman to check into another hotel, and after 3 encountering the police, gave a statement describing how and 4 why they killed the victim, Dr. St. Martin opined that the 5 person in the hypothetical did not “sound like a person” who 6 was “involved in a psychotic state.” 7 hypothetical person, Dr. St. Martin was further asked to 8 assume that in response to police questioning as to his 9 motive for the killing, the person responded, “Because she As to the same 10 was rude and telling me to leave the house,” Dr. St. Martin 11 acknowledged that the stated motive would be consistent with 12 one based on reality as opposed to one caused by a psychotic 13 state. 14 [Petitioner]. 15 Dr. St. Martin acknowledged that he did not treat Psychologist Veronica Thomas evaluated [Petitioner] and 16 found that he suffered from paranoid schizophrenia. This 17 type of illness affects someone’s ability to process 18 information and engage in routine decisionmaking and causes 19 hallucinations and delusions. 20 several factors, can prevent someone from forming malice 21 aforethought. 22 whether minutes or hours or longer, wherein someone is 23 unable to distinguish what is real from what is unreal and 24 what is accurate from what is inaccurate. 25 that [Petitioner] suffered from this kind of disorder at or 26 around the time of the killing. 27 that it would be rare for a psychotic state to last simply 28 minutes. Such an illness, depending on A psychotic state is a period of time, Dr. Thomas opined Dr. Thomas acknowledged Dr. Thomas also acknowledged that what was going 11 1 on in [Petitioner’s] mind at the time of the crime remained 2 a question as no one could “jump into a person’s mind.” 3 Thomas had “no reason to believe one way or the other that 4 [Petitioner] was in a psychotic state at the time” of the 5 crime. 6 presence or absence of a psychotic state. 7 acknowledged that concealing clothing after a killing was 8 consistent with hiding evidence of a crime as opposed to 9 acting under a psychotic state. Dr. The facts of the case were consistent with either Dr. Thomas 10 C. Rebuttal 11 Forensic psychiatrist Sanjay Sahgal testified that 12 everything that a schizophrenia patient does is intentional 13 but the act would be responsive to an altered reality. 14 Dr. Sahgal, a hypothetical reflecting the facts of the case, 15 including the killing, the concealing of clothing, and the 16 police interview, did not contain information suggesting 17 that the person was suffering from a psychotic state. 18 Sahgal also opined that there was nothing in the 19 hypothetical that would suggest that the person did not 20 intend to kill or did not understand that what he was doing 21 was violent. 22 conclusion was that the subject smashed the victim’s head 23 repeatedly and thereafter found a knife which he then used 24 to stab the victim in fatal areas. 25 suggesting psychosis and the available data as a whole 26 suggested that there was “no psychosis.” 27 subject drew a diagram to the police indicating where he 28 struck the victim in the head and where she fell was an To Dr. One significant indication to support this 12 The absence of data The fact that the 1 additional indication that he likely was not psychotically 2 impaired at the time of the crime. 3 that schizophrenia is serious enough that symptoms of it are 4 usually visible. 5 motivated by delusion, the subject usually would give a 6 reason for the crime that is grounded in the delusion. 7 schizophrenia patients, the notion that they would have an 8 hour of psychosis is absurd to Dr. Sahgal. 9 state would last on the order of days to weeks. 10 Dr. Sahgal testified Dr. Sahgal testified that if violence was For The psychotic Dr. Sahgal testified that the prosecution’s 11 hypothetical could be converted to one that showed someone 12 acting out of psychosis by adding a few facts. 13 acknowledged that there was no way to be certain whether one 14 was acting out of psychosis or not for any given time. 15 Dr. Sahgal (Lodged Document No. 7 at 2-9 (footnotes renumbered).) 16 IV. 17 STANDARD OF REVIEW 18 The standard of review in this case is set forth in 28 U.S.C. 19 § 2254: 20 An application for a writ of habeas corpus on behalf of a 21 person in custody pursuant to the judgment of a State court 22 shall not be granted with respect to any claim that was 23 adjudicated on the merits in State court proceedings unless 24 the adjudication of the claim-- 25 (1) resulted in a decision that was contrary to, or 26 involved an unreasonable application of, clearly established 27 Federal law, as determined by the Supreme Court of the 28 United States; or 13 1 (2) resulted in a decision that was based on an 2 unreasonable determination of the facts in light of the 3 evidence presented in the State court proceeding. 4 5 28 U.S.C. § 2254(d). A state court decision is “contrary to” clearly established 6 federal law if it applies a rule that contradicts Supreme Court case 7 law or if it reaches a conclusion different from the Supreme Court’s 8 in a case that involves facts that are materially indistinguishable. 9 Bell v. Cone, 535 U.S. 685, 694 (2002). To establish that the state 10 court unreasonably applied federal law, a petitioner must show that 11 the state court’s application of Supreme Court precedent to the facts 12 of his case was not only incorrect but objectively unreasonable. 13 Renico v. Lett, 559 U.S. 766, 773 (2010). 14 Supreme Court has squarely decided an issue, a state court’s 15 adjudication of that issue cannot result in a decision that is 16 contrary to, or involves an unreasonable application of, clearly 17 established Supreme Court precedent. 18 U.S. 86, 101 (2011). 19 Where no decision of the See Harrington v. Richter, 562 The claims raised in the instant Petition were raised in the 20 California Supreme Court, but that court did not issue a written 21 decision explaining why it was denying them. 22 9, 12-16.) 23 in its written decision affirming Petitioner’s conviction on direct 24 appeal. 25 rejected by the Los Angeles County Superior Court in a reasoned 26 decision on collateral review. 27 Court presumes that the state supreme court rejected all three claims 28 for the same reasons the lower state courts did. (Lodged Document Nos. 8- Ground One was discussed by the California Court of Appeal (See Lodged Document No. 7.) Grounds Two and Three were (See Docket No. 31, Exh. G.) 14 The Court, This 1 therefore, looks to the lower courts’ reasoning and will not disturb 2 it unless it concludes that “fairminded jurists” would all agree that 3 the decision was wrong. 4 Williams, 568 U.S. 289, 297 n.1 (2013) (approving reviewing court’s 5 “look through” of state supreme court’s silent denial to last reasoned 6 state-court decision); Bonner v. Carey, 425 F.3d 1145, 1148 n.13 (9th 7 Cir. 2005) (applying Ylst look-through doctrine to superior court’s 8 reasoned denial of habeas petition when California Court of Appeal and 9 California Supreme Court summarily denied subsequent petitions). Richter, 562 U.S. at 102; see also Johnson v. 10 V. 11 DISCUSSION 12 13 A. Insufficient Evidence In Ground One, Petitioner claims that the evidence at trial was 14 insufficient to convict him of second degree murder because his 15 unrebutted statements to police demonstrate that he simply “lost 16 control” after the victim attempted to kick him out of her house and 17 that his “unthinking” action of killing her only amounted to heat-of- 18 passion voluntary manslaughter. 19 contends that the jury had no choice but to accept his “honest account 20 of the incident to the police,” i.e., that he acted “unknowing[ly]” 21 and “unintentional[ly]” when he killed Kim following a “sudden and 22 violent argument” in the kitchen after Kim belittled him. 23 at 4.) 24 (Petition at 10-11.) Petitioner is simply mistaken. Petitioner (See Reply The jury was free to accept or 25 reject Petitioner’s story in whole or in part. 26 Clevenger, 733 F.2d 1356, 1359 (9th Cir. 1984); see also Digsby v. 27 McNeil, 627 F.3d 823, 832 (11th Cir. 2010) (“It is well-established 28 that a jury may believe a witness’s testimony in whole or in part.”). 15 United States v. 1 Clearly, the jury rejected that portion of Petitioner’s story in which 2 he claimed that he killed Kim in the heat of passion. 3 supports the verdict and, as such, will not be overturned. The evidence 4 To the extent that Petitioner is arguing that there was not 5 enough evidence to establish that he acted with malice, this argument, 6 too, is undermined by the record. 7 explained: As the state appellate court 8 [Petitioner] stated that he killed Kim because she took away his 9 key, was rude and verbally abusive and had told him in a 10 belittling tone to live with his mother in Korea. He also stated 11 that Kim had seen him getting out marijuana several days earlier, 12 that they had talked about not seeing each other several days 13 earlier, and that his key was taken away the day before. 14 The jury could reasonably conclude that in the 15 circumstances of the case the verbal abuse and belittling 16 tone would not naturally arouse heat of passion in an 17 ordinarily reasonable person. 18 substantial evidence to support the conclusion that 19 [Petitioner] did not subjectively kill Kim in a heat of 20 passion. 21 morning and again in the early afternoon, and left for 22 almost two hours before returning to the house and arguing 23 with and killing Kim. 24 he acted “unknowingly” or “unconsciously” when he killed 25 Kim, he was able to describe and draw for the police in some 26 detail hitting Kim against the wall and stabbing her in the 27 kitchen. Moreover, there was [Petitioner] had threatened to kill Kim in the Although [Petitioner] contends that 28 16 1 While the testimony of a single witness, such as the 2 defendant, can constitute substantial evidence requiring the 3 court to instruct on heat of passion provocation . . . 4 determining the weight and credibility of the witness is a 5 task solely for the jury. 6 (Lodged Document No. 7 at 11-12 (internal citations omitted).) The state court’s rejection of this claim was sound and is 7 8 supported by the record. For this reason, it will not be overturned. 9 See Jackson v. Virginia, 443 U.S. 307, 324 (1979) (explaining, to 10 prevail on insufficiency claim, defendant must show that, considering 11 the trial record in a light most favorable to the prosecution, “no 12 rational trier of fact could have found proof of guilt beyond a 13 reasonable doubt”); see also Juan H. v. Allen, 408 F.3d 1262, 1274-75 14 (9th Cir. 2005) (noting, in habeas, federal court reviews state 15 court’s rejection of insufficiency claim “with an additional layer of 16 deference,” granting relief only when the state court’s judgment was 17 contrary to or an unreasonable application of Jackson). 18 B. 19 Ineffective Assistance of Counsel In Grounds Two and Three, Petitioner claims that trial counsel 20 was ineffective for failing to elicit direct testimony from his expert 21 witness, Dr. St. Martin, that Petitioner was in a “psychotic state” 22 when he killed Kim. 23 counsel was deficient for failing to request a lesser included jury 24 instruction (involuntary manslaughter). 25 claims are without merit. 26 (Petition at 12.) He also contends that trial (Petition at 15.) These In order to prevail on a claim of ineffective assistance of 27 counsel, Petitioner has to establish: (1) counsel’s performance fell 28 below an “objective standard of reasonableness” under prevailing 17 1 professional norms; and (2) the deficient performance prejudiced the 2 defense, i.e., “there is a reasonable probability that, but for 3 counsel’s unprofessional errors, the result of the proceeding would 4 have been different.” 5 687–88, 694 (1984). See Strickland v. Washington, 466 U.S. 668, 6 1. Expert Witness Testimony 7 In his defense, Petitioner offered the testimony of Dr. St. 8 Martin, a licensed psychiatrist. 9 09.) (Reporter’s Transcript (“RT”) 2106- Dr. St. Martin examined Petitioner after his arrest and 10 diagnosed him with schizophrenia. 11 opined that schizophrenics can still form “malice aforethought” unless 12 they are suffering an acute relapse and in a “psychotic state.” 13 2112-14.) 14 state, Dr. St. Martin testified that he believed that Petitioner was 15 suffering from schizophrenia at the time of the killing. 16 16.) 17 about Petitioner’s conduct that day, that Petitioner’s actions showed 18 signs of someone who was in a psychotic state. 19 Nevertheless, he conceded that it was impossible to know “what was 20 exactly in [Petitioner’s] mind” at the time he killed Kim. 21 Further, Dr. St. Martin admitted that some of Petitioner’s actions-- 22 such as telling the police that he killed Kim because she was rude and 23 because she kicked him out of the house--suggested that he was not in 24 a psychotic state. 25 (RT 2109-11.) Dr. St. Martin (RT After identifying the symptoms of a person in a psychotic (RT 2114- He further explained, in response to a hypothetical question (RT 2132-35.) (RT 2133.) (RT 2130-31.) Petitioner contends that counsel’s examination of Dr. St. Martin 26 was deficient because he did not make clear to the jury that Dr. St. 27 Martin believed that Petitioner was in a psychotic state when he 28 killed Kim. (Petition at 12.) In support of this claim, Petitioner 18 1 has included a declaration from Dr. St. Martin stating that he “did 2 not have the opportunity to inform the jury that [Petitioner] suffered 3 a psychotic episode” and, thus, the jury was deprived of understanding 4 that Petitioner’s behavior that appeared to be rational may not have 5 been. 6 (Petition, Exh. A.) The Los Angeles County Superior Court rejected this claim on the 7 grounds that Petitioner had not established that counsel was deficient 8 or that Petitioner suffered prejudice: 9 Petitioner . . . offers no explanation as to how the 10 questioning fell short or how counsel could have brought out 11 this opinion. 12 that Dr. Saint Martin did in fact opine in response to a 13 hypothetical involving a person who, as a result of verbal 14 abuse over a period of “a day or two,” yelled, threw things 15 randomly, and broke glassware, that the hypothetical subject 16 showed signs of a person being in a psychotic state. [Petitioner] also fails to discuss the fact Additionally, [Petitioner] has failed to show prejudice 17 18 . . . . 19 part that any further testimony on the question of a 20 psychotic state would have been admissible. 21 subject of [Petitioner’s] sanity at the time of the crime 22 was fully explored in the sanity phase of the trial where 23 the jury found that [Petitioner] was legally sane at the 24 time of the offense.[4] 25 First, it is mere speculation on [Petitioner’s] Second, the (Docket No. 31, Exh. G (internal citation omitted).) 26 27 4 28 At Petitioner’s first trial, he was found to be sane when he committed the murder. (See Lodged Document No. 5 at 3-4.) That finding was not overturned on appeal. 19 1 The Court agrees that counsel was not ineffective. At best, 2 Petitioner’s claim that counsel was deficient in his questioning of 3 Dr. St. Martin is one of degree, not kind. 4 suggest that counsel failed to proffer a diminished capacity defense 5 based on Dr. St. Martin’s testimony that Petitioner was a 6 schizophrenic who could have suffered a psychotic episode at the time 7 of the killing. 8 to make clear that Dr. St. Martin believed that Petitioner was in a 9 psychotic state when he killed Kim. Petitioner does not Rather, he suggests that counsel’s examination failed The Court disagrees. In response 10 to counsel’s questioning, Dr. St. Martin explained how Petitioner’s 11 actions could be consistent with a schizophrenic in the throes of a 12 psychotic episode and hence not acting with malice. 13 Considering the whole of the examination, counsel acted within the 14 range of competence expected of attorneys in presenting expert witness 15 testimony. 16 (finding “counsel’s representation must be only objectively 17 reasonable, not flawless or to the highest degree of skill”). 18 Moreover, the state court’s conclusion that there was no (RT 2132-35.) See Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000) 19 prejudice from counsel’s examination of Dr. St. Martin was reasonable. 20 Dr. St. Martin’s declaration offers no additional evidence supporting 21 his belief that Petitioner was in a psychotic state at the time of the 22 killing. 23 impossible to know Petitioner’s state of mind when he committed the 24 crime. 25 (Drs. Sahgal and Thomas) who also testified that it was impossible to 26 be certain whether a person’s actions were the result of a psychotic 27 state. 28 that some of Petitioner’s statements to the victim and the police Nor does it undermine his trial testimony that it was (RT 2133.) This fact was reinforced by the other two doctors (RT 2156, 2167, 2194-95.) In fact, all three doctors agreed 20 1 suggested that he was not delusional when he killed Kim. (RT 2130-31, 2 2162-63, 2182-83.) 3 testimony by Dr. St. Martin would have changed the outcome of the 4 trial. 5 claim is denied. Thus, it is not reasonably likely that additional Strickland, 466 U.S. at 687–88, 694. For these reasons, this 6 2. Jury Instructions 7 At the close of the evidence, the trial court instructed the jury 8 on second degree murder--which required a showing of malice 9 aforethought--and voluntary manslaughter--which did not and would 10 apply if the jury found that Petitioner killed Kim in the heat of 11 passion. 12 on involuntary manslaughter. 13 never requested such an instruction. 14 was ineffective for failing to do so. 15 claim. 16 (CT 154-55.) The court did not, however, instruct the jury It appears that Petitioner’s counsel Petitioner claims that counsel There is no merit to this In California, involuntary manslaughter is generally defined as 17 the unlawful killing of a human being without malice. See Cal. Penal 18 Code § 192. 19 which could naturally lead to danger to life or acts with a conscious 20 disregard for life. 21 defendant is entitled to an involuntary manslaughter instruction on a 22 diminished capacity theory when evidence demonstrates that he suffered 23 from a mental illness at the time of the crime and, because of that 24 mental illness, did not act with malice and did not intend to kill. 25 See People v. Nelson, 1 Cal.5th 513, 555–56 (2016). Malice is implied when the defendant engages in conduct People v. Chun, 45 Cal.4th 1172, 1181 (2009). 26 Petitioner argues that, based on Dr. St. Martin’s testimony, he 27 may have been in a “psychotic state at the time of the killing” and, 28 thus, lacked the mental capacity to “conscious[ly] diregard” Kim’s 21 A 1 life when he stabbed her. 2 Superior Court, however, rejected this claim because Petitioner had 3 not demonstrated that he was prejudiced from counsel’s failure to 4 request the involuntary manslaughter instruction: 5 (Petition at 16.) The Los Angeles County [Petitioner] has failed to show that there was any 6 evidence that would support the trial court giving the 7 involuntary manslaughter instruction. 8 argument, the petition quotes from “[P]eople v. [C]leaves” 9 (1991) 229 [C]al. App. 3d 367[,] which states, “if the In [Petitioner’s] 10 defendant commits an act which endangers human life without 11 realizing the risk involved, he is guilty of involuntary 12 manslaughter . . . [.]” 13 arguing that his mental illness prevented him from realizing 14 that stabbing the victim several times in the chest would 15 endanger human life. 16 reasons. 17 any of the expert witnesses that testified that this is the 18 case. 19 it would be pure speculation that the evidence would rise to 20 the level that would require the court to give the 21 involuntary manslaughter instruction. 22 23 [I]t appears that [Petitioner] is The argument fails for several First, there is no evidence from the testimony of Second, even if there had been some discussion on it, (Docket No. 31, Exh. G.) Here, again, the Court agrees. There was no persuasive evidence 24 that Petitioner was suffering from some type of mental delusion that 25 would have negated a finding that he acted with malice when he banged 26 Kim’s head through the wall and stabbed her with a knife six times. 27 Although Dr. St. Martin testified that Petitioner suffered from 28 schizophrenia, he admitted that schizophrenia does not “necessarily 22 1 prevent a person from forming a mental state of malice aforethought.” 2 (RT 2111-12, 2121.) 3 the facts of the case, he also admitted that some of Petitioner’s 4 actions--such as his admission to police that he killed Kim because 5 she was rude and kicked him out of the house--made it less likely that 6 Petitioner was in a psychotic state and acted without malice when he 7 killed her. 8 testimony by explaining that he was unable to definitively assess 9 Petitioner’s state of mind because he was not there at the time. 10 Moreover, in response to hypotheticals based on (RT 2130-31.) Finally, Dr. St. Martin concluded his (RT 2138.) 11 Other evidence at trial also undercut any argument that 12 Petitioner did not realize that he was endangering Kim’s life when he 13 slammed her head against the wall and stabbed her. 14 Petitioner fled the murder scene, intending to kill himself for what 15 he had done. 16 authorities by hiding out in several hotels with his former 17 girlfriend. 18 Kim. 19 asked one of them if Kim was dead. 20 to police that the reason he had killed Kim was because she had ended 21 their relationship, forced him out of her house, and ridiculed him in 22 the process, not because he had had a psychotic break. (RT 1841; CT 85.) For example, He made efforts to hide from He also told his former girlfriend that he had killed And, before being told by police why he was under arrest, he (RT 1812-13.) He then explained 23 In light of the dearth of evidence that Petitioner was unable to 24 form the requisite mental state for second degree murder, there is no 25 reasonable possibility that the trial court would have given an 26 involuntary manslaughter instruction, even if counsel had requested 27 one. 28 deficient performance.” Trial counsel’s “failure to take a futile action can never be Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 23 1 1996); see also Cain v. Chappell, 870 F.3d 1003, 1019 (9th Cir. 2017) 2 (“[I]t is not ineffective for counsel to refrain from pursuing jury 3 instructions that have no basis in the evidence.”). 4 the court had given an involuntary manslaughter instruction, there is 5 absolutely no reason to believe that it would have altered the jury’s 6 verdict. 7 Petitioner. 8 (finding no prejudice under Strickland because, even if “counsel erred 9 by failing to seek a diminished capacity instruction,” there was “no Further, even if As such, counsel’s inaction could not have prejudiced See Pirtle v. Morgan, 313 F.3d 1160, 1179 (9th Cir. 2002) 10 reasonable probability” that it affected the verdict). 11 this claim must be denied. 12 VI. 13 Accordingly, CONCLUSION 14 For these reasons, the Petition is denied and the action is 15 dismissed with prejudice. Further, because Petitioner has not made a 16 substantial showing of the denial of a constitutional right, he is not 17 entitled to a certificate of appealability. 18 § 2253(c)(2); Miller–El v. Cockrell, 537 U.S. 322, 336 (2003); Slack 19 v. McDaniel, 529 U.S. 473, 484 (2000); see also Fed. R. App. P. 22(b). 20 IT IS SO ORDERED. 21 See 28 U.S.C. DATED: January 4, 2018. 22 23 24 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 25 26 27 28 S:\PJW\Cases-State Habeas\KIM, S 5071\Memo opinion.wpd 24
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