Carl Anthony Stephens v. Kelly Harrington, No. 5:2009cv00191 - Document 31 (C.D. Cal. 2011)

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

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CARL ANTHONY STEPHENS, 12 Petitioner, 13 14 ) ) ) ) ) ) ) ) ) ) ) v. KELLY HARRINGTON, Warden, 15 Respondent. 16 NO. EDCV 09-00191 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 On June 1, 2009, Carl Anthony Stephens ( Petitioner ), a California 22 state prisoner proceeding pro se, filed a Second Amended Petition for 23 Writ of Habeas Corpus by a Person in State Custody (the Petition ) 24 pursuant to 28 U.S.C. § 2254. 25 Answer to the Petition (the Answer ), as well as a memorandum of points 26 and 27 Memo ). 28 proceedings, including the Clerk s Transcript ( CT ) and the Reporter s authorities in On July 15, 2009, Respondent filed an support Respondent lodged of the ten documents Answer from (the Answer Petitioner s state 1 Transcript ( RT ). On November 20, 2009, Petitioner filed a Reply to 2 the Answer. 3 undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 4 636(c). 5 this action is DISMISSED WITH PREJUDICE. The parties have consented to the jurisdiction of the For the reasons discussed below, the Petition is DENIED and 6 7 II. 8 PRIOR PROCEEDINGS 9 10 On September 25, 2006, a jury in the Riverside County Superior 11 Court convicted Petitioner of the following crimes: attempted murder 12 of Dexter Gant (count 1); assault with a deadly weapon of Dexter Gant 13 (count 2); attempted murder of Rafael Gutierrez (count 3); assault with 14 a deadly weapon of Rafael Gutierrez (count 4); and attempted escape from 15 a detention facility (count 5). 16 found true allegations that Petitioner personally used a deadly weapon 17 in the commission of his crimes in counts 1 and 3 and that Petitioner 18 personally inflicted great bodily injury in the commission of his crimes 19 in counts 3 and 4. 20 court imposed an aggregate sentence of twelve years and four months in 21 state prison. (CT 196-99, 265-69). (CT 276, 278-80). The jury also On January 26, 2007, the trial (CT 305-06, 328). 22 23 On July 29, 2008, the California Court of Appeal affirmed the trial 24 court s judgment in reasoned decision. (Lodgment 8, Unpublished Opinion 25 of 26 subsequently filed a petition for review in the California Supreme 27 Court, which was denied on November 12, 2008, without comment or the California Court of Appeal 28 2 ( Lodgment 8 )). Petitioner 1 citation to authority. (Lodgment 9, Petition for Review ( Lodgment 9 ); 2 Lodgment 10, California Supreme Court Order ( Lodgment 10 )). 3 4 Petitioner thereafter filed a habeas petition in this Court on 5 January 29, 2009, and a separate habeas petition in the Southern 6 District of California on January 23, 2009, which was subsequently 7 transferred to this Court. 8 the two habeas petitions and dismissed the action with leave to file a 9 second amended petition containing all of Petitioner s habeas claims. 10 On June 1, 2009, Petitioner filed a Second Amended Petition, which the 11 Court addresses, below. On March 16, 2009, the Court consolidated 12 13 III. 14 FACTUAL BACKGROUND 15 16 The following facts, taken from the California Court of Appeal s 17 unpublished decision, have not been rebutted with clear and convincing 18 evidence and must, therefore, be presumed correct. 19 2254(e)(1). 28 U.S.C. § 20 21 A. Prosecution 22 23 24 1. Attempted Murder and Assault With a Deadly Weapon of Dexter Gant 25 26 On August 8, 2005, Dexter Gant[FN2] lived at 541 Barka 27 Creek Drive in Perris. [Petitioner] had lived in Gant s 28 3 1 neighborhood for at least 10 years. 2 his wife and was renting a room to [Petitioner]. 3 [FN2] 4 subpoenaed to testify. 5 Gant was separated from and was taken to jail. Gant did not want to testify and had to be He ignored the subpoena 6 7 That day, when Gant arrived home from his job at a 8 telephone company, [Petitioner] and Gant smoked marijuana 9 together (as they oftentimes did) in the garage. 10 [Petitioner] told Gant that someone was looking for Gant or 11 out to get him, but did not say whom. 12 to be acting different after he smoked the marijuana. [Petitioner] seemed 13 14 [Petitioner] went inside the house. Suddenly, Gant felt 15 something hit him in the head. He felt something hit him all 16 over his body. 17 hitting 18 something that looked like a wire splicer or cable knife, 19 that he used to cut wires at his work in [Petitioner s] hand. 20 [Petitioner], who looked crazy, told Gant to get out of 21 there. him. Gant then realized it was [Petitioner] Gant did not feel any cutting, but saw 22 23 Gant ran to a neighbor s house. For the first time, 24 Gant realized he was bleeding and his neighbors gave him a 25 towel to wipe up the blood. 26 down the street away from his house. Gant observed [Petitioner] run 27 28 4 1 Gant suffered three cuts on his right arm, a cut on his 2 hand, and one on his neck. Although Gant did not think he 3 needed to go to the hospital, his friends and neighbors 4 convinced him to go. 5 three stitches on his arm and hand. 6 that interviewed him at the hospital that he did not want to 7 press charges against [Petitioner], although he admitted that 8 [Petitioner] caused his injuries. At the hospital, Gant received two or Gant told an officer 9 10 Gant was transferred to another hospital to have more 11 extensive testing on the cut on his neck. There was evidence 12 of injury to his carotid gland (which aids in digestion), but 13 surgery was not necessary. 14 carotid artery. 15 for two days. 16 on his neck. There were minor injuries to his Gant stayed in the hospital for observation Gant eventually received stitches on the cut 17 18 19 2. Attempted Murder and Assault With a Deadly Weapon of Rafael Gutierrez 20 21 On August 9, 2005, at about 9:00 p.m., Gutierrez went to 22 Craig Stephens, Jr. s ([Petitioner s] brother) mobile home, 23 which was located on Cajalco Road in Perris, to discuss 24 buying some pit bull puppies.[FN3] 25 mobile home on a large piece of property owned by his and 26 [Petitioner s] 27 multiple 28 recreational vehicles (RV) on the property. father, occupied and Craig Stephens, Jr. lived in a Stephens, unoccupied 5 Sr. mobile There homes were and/or Stephens, Jr. 1 had not seen [Petitioner] on the property that day and he was 2 not living on the property at the time. 3 4 [FN3] 5 conviction and a felony grand theft automobile 6 conviction. Gutierrez had a prior misdemeanor theft 7 8 Gutierrez arrived and knocked on Stephens, Jr. s door. 9 When Stephens, Jr. did not answer, Gutierrez went back to his 10 vehicle to wait for him.[FN4] 11 window halfway down. 12 [Petitioner] approached him, walking from an old RV that was 13 on the property. 14 Jr. was not home and that he should leave. 15 [Petitioner] that he had spoken with Stephens, Jr. and that 16 he was going to wait. Gutierrez had his driver s side As Gutierrez was waiting in his truck, [Petitioner] told Gutierrez that Stephens, Gutierrez told 17 18 [FN4] 19 home and met with Gutierrez that night. Stephens, Jr. testified at trial that he was 20 21 [Petitioner] walked back away from and RV back in came 23 Gutierrez s driver s 24 [Petitioner s] hand hit the window, but he still was able to 25 punch through to hit Gutierrez on the left side of his neck. 26 Gutierrez did not see a knife in [Petitioner s] hand, but 27 immediately started bleeding from his neck. 28 6 punched RV. [Petitioner] window and the 22 side the went with his toward hand. 1 Gutierrez blacked out for about 30 seconds. to, [Petitioner] was still standing by When he 2 came the car. 3 Gutierrez immediately drove off in his car to a nearby Circle 4 K convenience store. 5 out the tip of the knife that had lodged itself in his neck. 6 Gutierrez believed that the blade was five inches long. When he got to the Circle K, he pulled 7 8 9 Riverside County Sheriff s Deputy Sam Morovich was the first to arrive at the Circle K. asking for help, and Gutierrez approached him 10 crying, bleeding from his neck. 11 Gutierrez was holding the knife blade in his hand. 12 small and skinny and probably one or one-half inches long. 13 The blade was placed on his patrol car. 14 lost and not booked into evidence. It was The knife blade was 15 16 Deputy Paul Sandoval also responded to the 911 call. 17 When he arrived, he contacted Gutierrez, who was holding a 18 bloody T-shirt to his neck. 19 ambulance. Gutierrez was taken away in an 20 21 Deputy Sandoval drove to the property where Gutierrez 22 indicated he had been stabbed. 23 location. 24 Stephens, 25 [Petitioner] was not at the [Petitioner] or anyone else. After hearing that Gutierrez had been stabbed, Jr. searched the property, but did not find 26 27 28 Gutierrez was treated at Riverside Regional Medical Center. Gutierrez did not require surgery on the neck wound 7 1 as there was no damage to his windpipe. 2 He received two stitches and was sent home. 3 4 The following evening, August 10, 2005, [Petitioner] was 5 apprehended. A stainless steel steak knife with a black 6 handle was found in his front pocket when he was arrested. 7 8 [Petitioner] was interviewed at the police station. 9 [Petitioner] claimed that the day before he was sleeping in 10 his motor home when someone entered and assaulted him. The 11 person hit him over the head with a bottle. 12 grabbed a knife and stabbed the person in the neck with a 13 knife. 14 him. 15 when he was arrested. [Petitioner] [Petitioner] did not know the person who attacked [Petitioner] had no marks, bruises or cuts on his body 16 17 3. Escape from Custody 18 19 On August 17, 2005, Riverside County Sheriff s Deputies 20 Robert Watkins and Wayne Tillett were working as correctional 21 deputies 22 approximately 1:00 a.m. on that day, they received a call 23 that an inmate named Arturo Tellez was to be sent down to the 24 release area because he was being released. [Petitioner] was 25 Tellez s cell mate.[FN5] at the Robert Presley 26 27 28 8 Detention Center. At 1 [FN5] 2 housed was for mentally disabled or handicapped 3 inmates who needed psychiatric medication. The unit on which [Petitioner] and Tellez were 4 5 Deputies Watkins and Tillett called into the cell 6 through the intercom system. They asked for Tellez and a 7 male voice responded. 8 person to gather his belongings and come down for release. Believing it was Tellez, they told the 9 10 [Petitioner] came and met Deputies Tillett and Watkins; 11 they believed that he was Tellez. 12 wearing 13 contained his photograph, booking number, date of birth, and 14 name. 15 was carrying property that had Tellez s name on it. his prison issued [Petitioner] was not wristband, which [Petitioner] told them that he lost it. would have [Petitioner] 16 17 Deputy Watkins obtained a card from the office that had 18 Tellez s picture. Although [Petitioner] looked different 19 from the picture, Deputy Watkins could not be sure. 20 Watkins gave the card to [Petitioner]. [Petitioner] was sent 21 down to release. Deputy 22 23 Deputy Robert Mills was in the release area. 24 [Petitioner] told Deputy Mills that he was Tellez. Deputy 25 Mills instructed [Petitioner] to grab his property bag from 26 a row of bags that contained property from when the inmates 27 were booked into jail. 28 Tellez s name on it. [Petitioner] grabbed the one with [Petitioner] was instructed to change 9 1 back into his civilian clothing. Deputy Mills then went to 2 his supervisor, Deputy Perry Sexson, and informed him that 3 they may have the wrong inmate because he did not match the 4 picture on the card. 5 6 Deputy Sexson went to the changing area and asked for 7 Tellez. 8 [Petitioner] was in Tellez s clothes, but had not put on the 9 shoes. 10 [Petitioner] responded, That s . . . me. When Deputy Sexson asked [Petitioner] why he did not put on the shoes, he responded that his feet had grown. 11 12 Deputy Sexson asked [Petitioner] background information 13 for Tellez. [Petitioner] said his name was Arturo Tellez and 14 gave Tellez s correct date of birth. 15 any other information. Deputy Sexson then asked [Petitioner] 16 to give his real name. 17 finally 18 shrugged his shoulders when Deputy Sexson asked him why he 19 was pretending to be Tellez. admitted He could not provide At first he stated he was Tellez, but who he really was. [Petitioner] just 20 21 Deputy Sexson talked to another deputy, Deputy 22 Ferguson,[FN6] after the incident. 23 Deputy Ferguson the statement [Petitioner] made about not 24 putting on the shoes. He did not recall telling 25 26 [FN6] 27 in the record. Deputy Ferguson s first name does not appear 28 10 1 B. Defense 2 3 The trial court took judicial notice of the fact that 4 the moon was at 19 percent of full capacity on August 9, 5 2005, the night that Gutierrez was stabbed. 6 7 Deputy Sandoval was recalled and testified that 8 Gutierrez (who identified himself as Rodriguez) told him at 9 the Circle K that he had been at the Perris property to visit 10 Stephens, Sr. As he approached the front door, a male adult 11 asked him what he was doing there. 12 respond. 13 adult then stabbed him in the neck. 14 his truck and drove away. Gutierrez did not Gutierrez then started back to his truck. The male Gutierrez ran back to 15 16 (Lodgment 8 at 3-9). 17 18 IV. 19 PETITIONER S CLAIMS 20 21 In the Petition, Petitioner raises five grounds for federal habeas 22 relief. First, Petitioner contends that the trial court erroneously 23 allowed into evidence a knife found in his possession when he was 24 arrested in violation of California Evidence Code section 1101 and 25 Petitioner s Fourteenth Amendment right to equal protection. (Petition 26 at 5). 27 defense by erroneously excluding testimony from defense witnesses in 28 violation of his rights under the California Constitution and the Second, Petitioner contends that the trial court limited his 11 1 Fourteenth Amendment. (Id.). Third, Petitioner contends that the trial 2 court failed to instruct the jury on simple assault in violation of the 3 California Constitution and his Fourteenth Amendment rights to due 4 process and equal protection. 5 that the trial court refused his request for a self-defense instruction 6 in violation of his Fourteenth Amendment right to equal protection. 7 (Id.). Fifth, Petitioner contends that the trial court erroneously gave 8 a flight instruction to the jury in 9 Amendment. (Id. at 6). Fourth, Petitioner contends violation of the Fourteenth (Id.). 10 11 V. 12 STANDARD OF REVIEW 13 14 The Antiterrorism and Effective Death Penalty Act of 1996 15 ( AEDPA ), which effected amendments to the federal habeas statutes, 16 applies to the instant Petition because Petitioner filed it after 17 AEDPA s effective date of April 24, 1996. 18 320, 336, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997). 19 [AEDPA] bars relitigation of any claim adjudicated on the merits in 20 state court, subject only to the exceptions in §§ 2254(d)(1) and 21 (d)(2). 22 L. Ed. 2d 624 (2011). 23 a federal court may only grant habeas relief if the state court 24 adjudication was contrary to or an unreasonable application of clearly 25 established federal law or was based upon an unreasonable determination 26 of the facts. Lindh v. Murphy, 521 U.S. By its terms Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 784, 178 Pursuant to 28 U.S.C. § 2254(d)(1) and (d)(2), 27 28 12 1 AEDPA limits the scope of clearly established federal law to the 2 holdings of the United States Supreme Court as of the time of the state 3 court decision under review. 4 S. Ct. 1166, 155 L. Ed. 2d 144 (2003). 5 under AEDPA when it illuminates whether a state court unreasonably 6 applied a general legal standard announced by the Supreme Court. 7 Crater v. Galaza, 491 F.3d 1119, 1126 n.8 (9th Cir. 2007). Lockyer v. Andrade, 538 U.S. 63, 71, 123 Circuit precedent is relevant See 8 9 To the extent that Petitioner s federal habeas claims were not 10 addressed in any reasoned state court decision, however, this Court 11 conducts an independent review of the record. See Pirtle v. Morgan, 313 12 F.3d 1160, 1167 (9th Cir. 2002). 13 petitioner s burden still must be met by showing there was no reasonable 14 basis for the state court to deny relief. In such circumstances, the habeas Richter, 131 S. Ct. at 784. 15 16 Here, Petitioner generally raised all of his claims before the 17 California Court of Appeal on direct review and before the California 18 Supreme Court in his petition for review, (Lodgment 5, Appellant s 19 Opening Brief ( Lodgment 5 ) at 21-41, 47-54; Lodgment 9 at 15-33, 35- 20 37), though he explicitly invoked the United States Constitution only 21 with respect to his claim in Ground Two. (Lodgment 5 at 30-31; Lodgment 22 9 at 22-27). After the California Court of Appeal affirmed the judgment 23 in a reasoned decision, the California Supreme Court denied Petitioner s 24 petition for review without comment or citation to authority. (Lodgment 25 10). 26 silent 27 requirement. 28 2011). The Ninth Circuit has held that the California Supreme Court s denial of a petition for review satisfies the exhaustion See Williams v. Cavazos, 646 F.3d 626, 637 n.5 (9th Cir. However, the Ninth Circuit explained that the silent denial of 13 1 a petition for review is not a decision on the merits and that federal 2 habeas courts must look through the silent denial to the last reasoned 3 state court decision. 4 decision here is the opinion of the California Court of Appeal. Id. at 636. The last reasoned state court 5 6 After reviewing the record, the Court concludes that Petitioner 7 failed to assert a federal constitutional violation when he presented 8 Grounds One, Three, Four, and Five on direct appeal. Accordingly, these 9 four claims are unexhausted. (See Answer Memo at 4-6, 15-16). As a 10 result, the California Court of Appeal did not have an opportunity to 11 adjudicate on the merits Petitioner s constitutional claims alleged 12 in these grounds.1 13 the Court exercises its discretion to address the merits of these 14 unexhausted claims. Nevertheless, because the outcome will be the same, 28 U.S.C. § 2254(b)(2). Accordingly, the Court 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 The California Court of Appeal arguably viewed Petitioner s claim of instructional error as alleged in Ground Four as a violation of the United States Constitution based on the court s application of the harmless-beyond-a-reasonable-doubt standard under Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), upon concluding that the trial court erroneously refused to give a self-defense instruction. (Lodgment 8 at 28-29). See Medina v. Hornung, 372 F.3d 1120, 1124-25 (9th Cir. 2004) (noting that state courts may dispose of most claims of constitutional error by applying the Chapman standard of harmless error); see also Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) (per curiam) (holding that a state court need not cite or even be aware of federal precedent, so long as neither the reasoning nor the result of the state-court decision contradicts them ). However, because Petitioner did not explicitly contend on direct appeal that the trial court s error as alleged in Ground Four resulted in a violation of the United States Constitution, (see Lodgment 5 at 50-54), this Court will presume, out of an abundance of caution, that the California Court of Appeal did not adjudicate the federal claim on the merits. 14 1 will apply de novo review to Grounds One, Three, Four, and Five. 2 See Williams, 646 F.3d at 641.2 3 4 The California Court of Appeal did, however, address Petitioner s 5 federal constitutional claim in Ground Two. (Lodgment 8 at 17-18, 27- 6 29). 7 adjudicated 8 Accordingly, the deferential standard of review contained in section 9 2254(d)(1) and (d)(2) applies.3 Thus, the Court concludes that the California Court of Appeal on the merits Petitioner s claim in Ground Two. See Richter, 131 S. Ct. at 784. 10 11 VI. 12 DISCUSSION 13 14 A. Petitioner Is Not Entitled To Habeas Relief On His Claim That The Trial Court Erroneously Allowed A Knife Into Evidence 15 16 17 In Ground One, Petitioner contends that the trial court s admission 18 into evidence of a knife that was found in his possession, but not used 19 in the commission of his crimes, violated the Fourteenth Amendment s 20 2 The Court may only consider new evidence obtained through an evidentiary hearing if Petitioner satisfies 28 U.S.C. § 2254(e)(2). See 22 Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1401, 179 L. Ed. 2d 557 (2011). The Court finds that there is no need for an evidentiary 23 hearing to resolve these claims. 21 24 3 The Supreme Court has held that [i]f a claim has been adjudicated on the merits by a state court, a federal habeas petition 26 must overcome the limitation of § 2254(d)(1) on the record that was before that state court. Pinholster, 131 S. Ct. at 1400. Thus, the 27 Court cannot hold an evidentiary hearing on Petitioner s claim in Ground Two. Id. ( [E]vidence introduced in federal court has no bearing on § 28 2254(d)(1) review. ). 25 15 1 Equal Protection Clause and California Evidence Code section 1101. 2 (Petition at 5). 3 suppose[d] to[] accept relevant evidence into trial instead of non 4 relevant [sic] evidence. According to Petitioner, [t]he trial court is (Id.). There is no merit to this claim. 5 6 As a preliminary matter, Petitioner s claim that the trial court 7 erred under state law by allowing the knife into evidence is not 8 cognizable on federal habeas review. 9 67-68, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991) ( [I]t is not the of a federal habeas Estelle v. McGuire, 502 U.S. 62, 10 province court to reexamine state-court 11 determinations on state-law questions. ). 12 consideration of Petitioner s claim to the constitutional issue raised 13 in the Petition. 14 discriminatory conduct in violation of the Equal Protection Clause, the 15 Court, pursuant to its duty to construe pro se pleadings filed by habeas 16 petitioners liberally, Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 17 2001), interprets Petitioner s claim as a due process issue rather than 18 an equal protection issue. 19 there is no merit to Petitioner s claim that the admission of the knife 20 violated his constitutional rights. Thus, the Court limits its Because Ground One is not based on allegations of As discussed below, under de novo review, 21 22 1. Background 23 24 In its decision rejecting Petitioner s challenge to the admission 25 of the knife, the California Court of Appeal set forth the following 26 additional facts, which this Court presumes is correct. 27 2254(e)(1). 28 16 28 U.S.C. § 1 On September 18, 2006, [Petitioner] filed a motion to 2 exclude a five-inch steak knife that was found on his person 3 when he was arrested on August 10, 2005, as irrelevant and 4 overly prejudicial. [Petitioner] claimed it was improper 5 character under 6 subdivision (a). 7 evidence was admissible under Evidence Code section 1101, 8 subdivision (b), as evidence of his intent to kill, as well 9 as common plan or scheme evidence. evidence Evidence Code section 1101, The People filed a response, arguing the No oral hearing on the 10 motion appears in the record although it appears such a 11 hearing took place. 12 13 During trial, on September 20, 2006, the prosecutor 14 advised the trial court that she was seeking to introduce the 15 testimony 16 Guzman, who was not on the prosecution s witness list. 17 police report had erroneously stated that another officer had 18 recovered the knife from [Petitioner] when he was arrested, 19 but it was actually Corporal Guzman who had found the knife 20 on [Petitioner]. of Riverside County Sheriff s Corporal Nelson The 21 22 Defense counsel responded that the knife had no 23 connection to the knife testified to in the instant case. 24 The trial court responded, Although we talked about this 25 before, and her point was that at the time that he was 26 arrested that he had a knife in his pocket, which is not 27 something that the ordinary citizen walks down the street 28 carrying. And in view of what had happened on the previous 17 1 two nights, the fact that he was again carrying a weapon, is 2 circumstantial evidence of his violent conduct with weapons. 3 And it s peripheral, but I think it s admissible. 4 5 Defense counsel asked to submit briefing on character 6 evidence. The trial court responded, It s not character. 7 Defense counsel disagreed, arguing that the fact he carried 8 around a steak knife was only relevant to show his violent 9 character. The trial court then made a somewhat confusing 10 ruling, stating, I think it s just as permissible to bring 11 out of somebody who is convicted, as to bring out somebody 12 convicted of grand theft that was permissible. 13 allowed 14 turpitude. 15 really has to do with this case, you have to admit it s 16 pretty peripheral, that he s lying about everything in this 17 case 18 nevertheless, the jury is entitled to consider it and be 19 allowed to--he ll also be allowed to consider this knife. [FN7] the misdemeanor in because So, you re quite right. because he stole a car in it I even involves moral But as far as what it Texas. [¶] But, 20 21 [FN7] 22 the fact that Gutierrez was impeached with his 23 prior convictions. The trial court was apparently referring to 24 25 At trial, Corporal Guzman testified that he was on 26 patrol in the City of Perris when he received a radio call 27 that someone had brandished a knife at the Wal-Mart store in 28 the area. The person matched [Petitioner s] description, and 18 1 Corporal Guzman had been briefed earlier that [Petitioner] 2 was wanted for committing two stabbings. 3 4 Corporal Guzman found [Petitioner] walking down the 5 street. Since Corporal Guzman thought [Petitioner] was going 6 to run, and because he believed [Petitioner] was armed, he 7 pointed 8 [Petitioner] was ordered to lie face down on the ground and 9 he did not attempt to run. 10 his gun at [Petitioner] and told him to stop. [Petitioner] was handcuffed and the knife was found on his person. 11 12 (Lodgment 8 at 10-11). 13 14 15 2. The Erroneous Admission Of The Evidence Did Not Result In A Violation Of Due Process 16 17 The admission of evidence is not subject to federal habeas review 18 unless a specific constitutional guarantee is violated or the error is 19 of such magnitude that the result is a denial of the fundamentally fair 20 trial guaranteed by due process. 21 1031 (9th Cir. 1999). 22 process only where two circumstances are met: 23 permissible inferences the jury may draw from the evidence ; and (2) the 24 evidence is of such quality as necessarily prevents a fair trial. 25 Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991) (internal 26 quotation marks omitted). See Henry v. Kernan, 197 F.3d 1021, The erroneous admission of evidence violates due 27 28 19 (1) there are no 1 In the present case, a picture of the steak knife found on 2 Petitioner was used as an exhibit and admitted into evidence over 3 Petitioner s objection. 4 same weapon used to attack the two victims in this case, (CT 202-03; RT 5 157-58), 6 Petitioner s crime from his possession of the knife, insofar as the 7 knife evidence was inadmissible to show Petitioner s propensity to 8 commit violence and to impeach his credibility. 9 1101(a) (prohibiting character evidence of a person if used to prove 10 his or her conduct on a specified occasion ); People v. Fritz, 153 Cal. 11 App. 4th 949, 956, 62 Cal. Rptr. 3d 885 (2007) (prohibiting the 12 prosecution from impeaching the defendant s credibility with evidence 13 of prior misconduct if the defendant did not testify). 14 the knife evidence was not of such quality as necessarily prevents a 15 fair trial, Jammal, 926 F.2d at 920 (internal quotation marks omitted), 16 because the erroneous admission of the steak knife was harmless. the jury (RT 200, 243). could draw no Because this knife was not the permissible inferences about See Cal. Evid. Code § Nevertheless, 17 18 [I]n reviewing state court decisions for harmless error in the 19 context of a habeas petition, federal courts review to determine if the 20 error 21 determining the jury s verdict. 22 (9th Cir. 2009) (as amended) (quoting Brecht v. Abrahamson, 507 U.S. 23 619, 623, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993)).4 had a substantial and injurious effect or influence in Slovik v. Yates, 556 F.3d 747, 755 In making this 24 25 4 Although the California Court of Appeal, upon concluding that the 26 trial court erred in allowing the knife into evidence, applied a harmless error test for assessing state law evidentiary errors, this 27 Court must apply the Brecht test without regard for the state court s harmlessness determination. Pulido v. Chrones, 629 F.3d 1007, 1012 28 (9th Cir. 2010). Regardless, the test for harmless error used by the 20 1 inquiry, the court must review the record to determine what effect the 2 error had or reasonably may be taken to have had upon the jury s 3 decision. Id. 4 5 Here, the admission of the irrelevant steak knife did not have a 6 substantial or injurious influence in determining the jury s verdicts 7 because the evidence of Petitioner s guilt for attempted murder, assault 8 with a deadly weapon, and attempted escape was overwhelming. 9 Jackson v. Brown, 513 F.3d 1057, 1082 (9th Cir. 2008) (concluding that 10 the erroneous admission of evidence did not render the petitioner s 11 trial fundamentally unfair where evidence of the petitioner s guilt was 12 overwhelming ); Allen v. Woodford, 395 F.3d 979, 992 (9th Cir. 2005) 13 (as amended) ( [T]o the extent that any claim of error . . . might be 14 meritorious, we would reject that error as harmless because the evidence 15 of [the petitioner s] guilt is overwhelming. ). See 16 17 With respect to Petitioner s attack on Gant (counts 1 and 2), Gant 18 testified that he was at home in his garage smoking marijuana with 19 Petitioner when Petitioner indicated that somebody was looking for me. 20 (RT 8-10). Gant then observed Petitioner leave the garage. (RT 14, 44- 21 45). Shortly thereafter, Gant felt someone strike him in the head. (RT 22 14-15). 23 Petitioner holding a wire splicer/cable knife, appearing like in 24 another world looking at [him] crazy. 25 told Gant to leave, and after Gant fled to his neighbor s house, he As Gant tried to protect himself, he testified that he saw (RT 14-15, 26-27). Petitioner 26 27 California Court of Appeal was the equivalent of the Brecht standard under federal law. Bains v. Cambra, 204 F.3d 964, 971 n.2 (9th Cir. 28 2000). 21 1 realized that he was bleeding and had wounds on his arm and neck. (RT 2 15-16, 19-20). 3 down the street after his neighbors chased Petitioner away. (RT 17-18). 4 Gant received stitches at Moreno Valley hospital and then was sent to 5 Loma Linda hospital for treatment. 6 a general surgery resident at Loma Linda University, reviewed Gant s 7 medical records and testified that he sustained injuries to his cartoid 8 gland and had stab wounds in his neck in close proximity to his cartoid 9 artery. He later observed Petitioner leave the garage and run (RT 201, 209, 211-13). (RT 22-23, 26). Dr. Jennifer Weik, Based on the severity of Gant s neck 10 wounds, Petitioner must have intended to kill Gant when he struck him 11 with the wire splicer. 12 Cal. Rptr. 2d 802 (2002) ( In plunging the knife so deeply into such a 13 vital area of the body of an apparently unsuspecting and defenseless 14 victim, defendant could have had no other intent than to kill. ). See People v. Bolden, 29 Cal. 4th 515, 561, 127 15 16 With respect to Petitioner s attack on Gutierrez (counts 3 and 4), 17 Gutierrez testified 18 Petitioner s brother when Petitioner emerged from a trailer, approached 19 Gutierrez, and told him to leave. 20 that Petitioner returned to the trailer and, within fifteen seconds, 21 reemerged, whereupon he stabbed [Gutierrez] as he threw the punch with 22 the 23 Petitioner s hand hit the window of the car, Petitioner still managed 24 to stab him. 25 running down [his] neck right after [Petitioner] threw the blow. 26 121). 27 Gutierrez immediately drove his car out of the area and into the parking 28 lot of a convenience store in order to seek help. knife. (RT that was 120-21). (RT 121). waiting in his (RT 114-17). Gutierrez car to speak with Gutierrez testified testified that although Gutierrez testified that he felt the blood (RT After blacking out for half a minute and fearing another attack, 22 (RT 123-25). 1 Gutierrez testified that when he sought help inside the convenience 2 store, he noticed that the blade of Petitioner s knife had broken off 3 and was stuck a few inches inside his neck. (RT 126, 206). 4 later received stitches for his neck wound. (RT 128). 5 Gutierrez s injuries suggests Petitioner harbored an intent to kill when 6 he stabbed him. Gutierrez The severity of See Bolden, 29 Cal. 4th at 561. 7 8 With respect to Petitioner s attempted escape (count 5), Riverside 9 Sheriff s Deputy Richard Watkins testified that on August 17, 2005, he 10 was working at the Robert Presley Detention Center when he received a 11 call to release Arturo Tellez, who was housed in the same cell as 12 Petitioner. 13 Watkins contacted Tellez s cell and asked, Is this Tellez? 14 replied, Yeah. 15 gather his belongings in preparation for his release. (RT 165). Deputy 16 Watkins opened the cell door and met Petitioner outside Tellez s cell. 17 (RT 167). Petitioner had in his possession a property box with Tellez s 18 name on it. 19 Deputy Watkins sent Petitioner to the release area. 20 Because Petitioner lacked a wristband and did not appear to match 21 Tellez s picture in an identification card, Deputy Watkins asked Deputy 22 Perry Sexson, the release officer, to verify Petitioner s identity. (RT 23 167, 171). (RT 161-62, 164). (RT 165). (RT 168). Using the intercom system, Deputy A voice Deputy Watkins told the individual to Although Petitioner did not have a wristband, (RT 167-68). 24 25 Deputy Sexon testified that after Petitioner and other inmates were 26 brought to the release area, he asked for Tellez, and Petitioner 27 responded, That s me. (RT 184). 28 Petitioner civilian changed into 23 Deputy Sexson testified that as clothing obtained from Tellez s 1 property bag, he noticed that Petitioner did not wear Tellez s shoes. 2 (RT 185). When asked why, Petitioner said that his feet had grown. 3 (RT 185). Deputy Sexson then questioned Petitioner about Tellez s 4 personal information, such as Tellez s name, date of birth, last known 5 address, and emergency contacts. According to Deputy Sexson, Petitioner 6 was only able to come up with the name and a date of birth. 7 else. (RT 186). Deputy Sexon then asked Petitioner, Okay, so who are 8 you? 9 further questioning, he gave his true name to the deputy. Tell me your name. Nothing Petitioner insisted he was Tellez, but upon (RT 187). 10 When Deputy Sexson asked Petitioner why he presented himself as Tellez, 11 Petitioner merely shrugged his shoulders. 12 clearly demonstrates that Petitioner impersonated Tellez and was able 13 to proceed to the release area before his ruse was discovered. (RT 187). This evidence 14 15 Given the overwhelming evidence of Petitioner s guilt, even if the 16 jury received an unfavorable perception of Petitioner on account of his 17 possession of a steak knife on the day of his arrest, this perception 18 did not have a substantial or injurious effect in influencing the jury s 19 verdicts. Accordingly, Ground One fails under de novo review. 20 21 B. Petitioner Is Not Entitled To Habeas Relief On His Claim That The 22 Trial Court s Exclusion Of Certain Testimony Deprived Him Of His 23 Right To Present A Defense 24 25 In Ground Two, Petitioner contends the trial court erroneously 26 excluded certain witness testimony in violation of article I, section 27 15 of the California Constitution and Petitioner s rights under the 28 Fourteenth Amendment. (Petition at 5). 24 1 Preliminarily, the Court declines to address Petitioner s claim 2 with respect to the trial court s purported violation of the California 3 Constitution. 4 focuses on the federal nature of Petitioner s claim. See McGuire, 502 U.S. at 67-68. Instead, the Court 5 6 Although Petitioner fails to specify in the Petition the precise 7 testimony that the trial court erroneously excluded, this Court finds 8 that, based on the California Court of Appeal s discussion of the issue, 9 Petitioner s claim in Ground Two is premised on the trial court s 10 purported exclusion of two potential defense witnesses who worked at 11 Petitioner s 12 Recognizance ( O.R. ) clerk. 13 below, the California Court of Appeal s rejection of Petitioner s 14 constitutional claim was neither contrary to, nor an unreasonable 15 application of, clearly established Supreme Court precedent, nor was it 16 an unreasonable application of the facts. detention facility: Deputy Ferguson (Lodgment 8 at 16-19). and an Own As discussed 28 U.S.C. § 2254(d). 17 18 1. Background 19 20 In its decision rejecting Petitioner s claim that the trial court s 21 exclusion of defense witnesses violated his right to present a defense, 22 the California Court of Appeal set forth the following additional facts, 23 which this Court presumes is correct. 28 U.S.C. § 2254(e)(1). 24 25 Prior to the defense case, defense counsel indicated 26 that he had a proposed stipulation. 27 that he did not have Deputy Ferguson available to testify. 28 Deputy Ferguson would have testified that Deputy Sexson never 25 Defense counsel stated 1 told him that [Petitioner] had said he did not put on the 2 shoes because his feet had grown when he described the 3 incident to him. 4 significant 5 [Petitioner] made identifying himself as Tellez. 6 counsel noted that one of the jurors had audibly laughed at 7 this 8 unnecessary because Deputy Ferguson would not call Deputy 9 Sexson a liar, but would accept a stipulation from the 10 The trial court felt this evidence was not based testimony. on The all the trial other court felt statements the that Defense witness was People. 11 12 The People were not willing to stipulate. Deputy Sexson 13 had testified that he could not remember if he relayed that 14 statement to Deputy Ferguson. 15 I think that it s unnecessary, and it s un-[Evidence Code 16 section] 352. I think the probative value is zero and the 17 time consumption is prohibitive, so I would not allow that 18 witness to testify if he were standing in the hall. The trial court ruled, Okay. 19 20 The People then asked for an offer of proof for a 21 witness who was an Own Recognizance (OR) clerk at the jail. 22 [Petitioner] 23 believed that he was being released. 24 this evidence was irrelevant because if he thought he was 25 being released, he would have no reason to pretend to be 26 Tellez. 27 [Petitioner], who was sleepy at 1:00 a.m., may have believed 28 he was being released. apparently spoke with her and could have The trial court felt Defense counsel responded that it was possible that The trial court excluded the witness 26 1 as irrelevant and inadmissible under Evidence Code section 2 352. 3 4 (Lodgment 8 at 16-17). 5 6 2. Petitioner Was Not Deprived Of His Constitutional Right To Present A Defense 7 8 9 Criminal defendants have a constitutional right to present relevant 10 evidence in their own defense. See, e.g., Holmes v. South Carolina, 547 11 U.S. 319, 324, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006) ( Whether 12 rooted directly in the Due Process Clause of the Fourteenth Amendment, 13 or in the Compulsory Process or Confrontation Clauses of the Sixth 14 Amendment, the Constitution guarantees criminal defendants a meaningful 15 opportunity to present a complete defense. (internal quotation marks 16 omitted)). 17 is not unlimited, but rather is subject to reasonable restrictions, such 18 as evidentiary and procedural rules. Moses v. Payne, 555 F.3d 742, 757 19 (9th Cir. 2009) (as amended) (internal quotation marks, brackets and 20 citation omitted). 21 latitude under the Constitution to establish rules excluding evidence 22 from criminal trials. 23 marks omitted); see also Moses, 555 F.3d at 757 ( [T]he Supreme Court 24 has indicated its approval of well-established rules of evidence that 25 permit trial judges to exclude evidence if its probative value is 26 outweighed by certain other factors such as unfair prejudice, confusion 27 of the issues, or potential to mislead the jury. (internal quotation 28 marks and brackets omitted)). However, a defendant s right to present relevant evidence Indeed, [s]tate and federal rulemakers have broad Holmes, 547 U.S. at 324 (internal quotation 27 1 The exclusion of evidence pursuant to a state evidentiary rule is 2 unconstitutional only where it significantly undermined fundamental 3 elements of the accused s defense. United States v. Scheffer, 523 U.S. 4 303, 315, 118 S. Ct. 1261, 140 L. Ed. 2d 413 (1998); see also Moses, 555 5 F.3d 6 constitutional rights unless they infringe upon a weighty interest of 7 the accused and are arbitrary or disproportionate to the purposes they 8 are 9 omitted)). at 757 ( Evidentiary designed to serve. rules do (internal not violate quotation a marks defendant s and brackets In sum, it takes unusually compelling circumstances to 10 outweigh the strong state interest in administration of its trials. 11 Moses, 555 F.3d at 757 (internal quotation marks and ellipsis omitted). 12 13 On direct review, the California Court of Appeal applied the 14 following analysis in rejecting Petitioner s claim that his right to 15 present a defense was violated: 16 17 As for the supposed testimony from Deputy Ferguson, it 18 is apparent that [Petitioner] did not subpoena Deputy 19 Ferguson. 20 accept his stipulation admitting the defense evidence. There 21 was no exclusion of defense evidence as [Petitioner] had no 22 evidence to present. 23 to agree to [Petitioner s] stipulation. 24 not 25 Ferguson s testimony. 26 deprive 27 defense when he had nothing to present. Additionally, Deputy 28 Sexson had already testified that he was not sure if he Rather, [Petitioner] wanted the prosecution to request a Further, the People had no obligation continuance [Petitioner] in order Defense counsel did to secure Deputy As such, the trial court did not of the 28 opportunity to present his 1 relayed the statement to Deputy Ferguson. This evidence was 2 superfluous and did not deprive [Petitioner] of his right to 3 present a defense. 4 5 Furthermore, the exclusion of the OR clerk s testimony 6 was proper. This evidence was clearly irrelevant based on 7 the fact that [Petitioner] had identified himself as Tellez, 8 not himself. 9 release, there would be no reason to identify himself as 10 Tellez. This evidence was simply irrelevant, speculative (in 11 that [Petitioner s] offer of proof was that he may have 12 believed he was actually being released), and it had no 13 evidentiary weight. 14 could not deprive him of his right to present a defense. If he truly believed that he was subject to Since the evidence was irrelevant, it 15 16 (Lodgment 8 at 17-18). The California Court of Appeal expressed valid 17 reasons for rejecting Petitioner s assertion of error. 18 19 First, the trial court s exclusion of Deputy Ferguson as a defense 20 witness (to the extent he was barred from testifying) did not deprive 21 Petitioner of his right to dispute the prosecution s key evidence, i.e., 22 the fact that Petitioner, while impersonating Tellez, claimed that his 23 feet had grown when he could not wear Tellez s shoes. 24 court s order excluding Deputy Ferguson as a witness did not prohibit 25 Petitioner from asserting that no such statement was made. 26 Deputy Ferguson s 27 accordance with defense counsel s offer of proof, was relevant only to 28 establish that testimony, Deputy assuming Sexson did 29 he would not tell have Deputy The trial Moreover, testified in Ferguson of 1 Petitioner s explanation for declining to wear Tellez s shoes. However, 2 Deputy Sexson testified that he did not recall informing Deputy Ferguson 3 of Petitioner s statement. 4 Appeal reasonably concluded that Deputy Ferguson s proffered testimony 5 was superfluous. 6 testimony could not have significantly undermined fundamental elements 7 of 8 constitutional violation. 9 Lamarque, 555 F.3d 830, 850 (9th Cir. 2009) (finding no violation of due 10 process over the exclusion of defense testimony because the state of the 11 evidence would remain the same had the proffered testimony been 12 allowed ). Petitioner s (RT 190-91). Thus, the California Court of As the purported exclusion of Deputy Ferguson s defense, Petitioner has failed to demonstrate a Scheffer, 523 U.S. at 315; see Musladin v. 13 14 Second, the trial court s exclusion of the O.R. clerk did not 15 violate Petitioner s right to present a defense. 16 intended 17 Petitioner at some point prior to his attempted escape in order to 18 establish Petitioner s subjective belief that he was being released. 19 (RT 228-29). 20 proof in support of this proffered testimony nor did counsel attempt to 21 introduce the content of Petitioner s interview with the O.R. clerk. 22 (RT 228). 23 Petitioner he was entitled to be released, and it is purely speculative 24 to assume that Petitioner, by virtue of the fact that he interviewed 25 with the O.R. clerk at some point in time, genuinely believed that he 26 was allowed to leave the detention facility. Under these circumstances, 27 the California Court of Appeal reasonably found that the exclusion of 28 the O.R. clerk did not violate Petitioner s constitutional right to to introduce evidence that the O.R. Defense counsel clerk interviewed However, defense counsel failed to present an offer of There is nothing to indicate that the O.R. clerk conveyed to 30 1 present a defense. See Spivey v. Rocha, 194 F.3d 971, 978 (9th Cir. 2 1999) (finding that the exclusion of purely speculative evidence did 3 not render the petitioner s trial fundamentally unfair); United States 4 v. Rubio-Topete, 999 F.2d 1334, 1340 (9th Cir. 1993) (finding that the 5 exclusion of marginally relevant and highly speculative evidence did 6 not deprive the defendant of his right to present a defense). 7 8 The California Court of Appeal s rejection of Petitioner s claim 9 was neither contrary to, nor an unreasonable application of, clearly 10 established Supreme Court precedent, nor was it an unreasonable 11 application of the facts. 28 U.S.C. § 2254(d). Accordingly, Petitioner 12 is not entitled to habeas relief on the claim asserted in Ground Two. 13 14 15 C. Petitioner Is Not Entitled To Habeas Relief On Claims Of Jury Instructional Error 16 17 In Grounds Three, Four, and Five, Petitioner contends the trial 18 court committed the following instructional errors, which, as previously 19 discussed, the Court reviews de novo: 20 21 1. The trial court failed to instruct the jury on simple 22 assault, which violated Petitioner s Fourteenth Amendment 23 rights to due process and equal protection, as well as 24 article I, section 28 of the California Constitution (Ground 25 Three). 26 27 28 2. The trial court erroneously refused to give a self-defense instruction even after the prosecution presented a statement 31 1 from Petitioner explaining that he stabbed Gutierrez in self- 2 defense, 3 Fourteenth Amendment right to equal protection (Ground Four). which resulted in a violation of Petitioner s 4 5 3. The trial court erroneously gave a flight instruction despite 6 the lack of evidence justifying the instruction, which put 7 inside a juror s head a possible consciousness of guilt, 8 resulting in an unreliable guilty verdict in violation of the 9 Fourteenth Amendment (Ground Five). 10 11 (Petition at 6). 12 13 To the extent that Petitioner s claim of instructional error in 14 Ground Three raises issues of state law, this claim is not cognizable 15 on federal habeas review. 16 2254(a) (permitting a state prisoner to obtain habeas relief only on 17 the ground that he is in custody in violation of the Constitution or 18 laws or treaties of the United States ). 19 address Petitioner s claim in Ground Three as it pertains to a purported 20 violation of the California Constitution. McGuire, 502 U.S. at 67-68; see 28 U.S.C. § Thus, the Court declines to 21 22 As for the federal component of Petitioner s claims, if 23 instructional error is alleged, habeas relief is warranted only if the 24 error by itself so infected the entire trial that the resulting 25 conviction violates due process. 26 179, 191, 129 S. Ct. 823, 172 L. Ed. 2d 532 (2009). 27 error is 28 petitioner is especially heavy. the failure to give See Waddington v. Sarausad, 555 U.S. an instruction, Where the alleged the burden on the Henderson v. Kibbe, 431 U.S. 145, 32 1 155, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977) ( An omission, or an 2 incomplete 3 misstatement of the law. ). 4 an instruction may be evaluated by comparison with the instructions that 5 were given. 6 jury, habeas relief will be granted only if the petitioner can establish 7 that the error had a substantial and injurious effect or influence in 8 determining the jury s verdict. Hedgpeth v. Pulido, 555 U.S. 57, 61-62, 9 129 S. Ct. 530, 172 L. Ed. 2d 388 (2008) (per curiam); Brecht, 507 U.S. 10 instruction, is Id. at 156. less likely to be prejudicial than a The significance of the omission of such Even if an error occurred in instructing the at 637. 11 12 1. Ground Three: The Failure To Instruct On Simple Assault 13 14 Petitioner s claim in Ground Three derives from the trial court s 15 failure to sua sponte instruct the jury on simple assault, which 16 Petitioner argues is a lesser-included offense of assault with a deadly 17 weapon. 18 this claim, even under de novo review. (Petition at 6; see Lodgment 5 at 35). There is no merit to 19 20 In its review of Petitioner s claim, the California Court of Appeal 21 concluded that under California law, the trial court was not required 22 to give a simple assault instruction based on the following: 23 24 Here, the instruction on simple assault was not 25 warranted by the evidence. 26 against 27 instances, he intentionally stabbed the victims in the neck 28 with these items. Gant and a knife [Petitioner] used a wire splicer against Gutierrez. In both There was virtually no evidence that 33 1 [Petitioner] committed a simple assault or that [Petitioner] 2 assaulted his victims without the use of a deadly weapon. 3 Despite [Petitioner s] claim to the contrary, the jury could 4 not have found these weapons to be less than deadly weapons. 5 The record contains evidence that proved defendant guilty of 6 only the greater offense. 7 4th 610, 618, 3 Cal. Rptr. 2d 252 (1991).] 8 substantial evidence for the view [Petitioner] now offers, 9 i.e., evidence from which a jury composed of reasonable 10 persons could conclude that the lesser offense, but not the 11 greater, was committed. 12 175, 217, 41 Cal. Rptr. 3d 593 (2006).] 13 instruction on the lesser offense of simple assault was not 14 required. [People v. Richmond, 2 Cal. App. There was no [People v. Huggins, 38 Cal. 4th Therefore, an 15 16 (Lodgment 8 at 21). 17 18 To the extent that Petitioner s claim of jury instructional error 19 is based solely on issues of state law, this claim would not be 20 cognizable on federal habeas review. 21 Menendez v. Terhune, 422 F.3d 1012, 1029 (9th Cir. 2005) ( Any error in 22 the state court s determination of whether state law allowed for an 23 instruction in this case cannot form the basis for federal habeas 24 relief. ). McGuire, 502 U.S. at 67-68; 25 26 Moreover, to the extent Petitioner s claim in Ground Three is 27 derived from a violation of the United States Constitution, although the 28 Supreme Court has held that in capital cases the failure to sua sponte 34 1 instruct the jury on a lesser included offense is constitutional error 2 if there is evidence to support the instruction, Beck v Alabama, 447 3 U.S. 625, 638, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980), the Supreme 4 Court has not extended this rule to non-capital cases. 5 n.14. 6 trial court to instruct on lesser included offenses in a non-capital 7 case does not present a federal constitutional question, 8 Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998), the Ninth Circuit has also 9 found that a trial court s refusal of a defense request to instruct a 10 jury on lesser included offenses, when those offenses are consistent 11 with defendant s theory of the case, may constitute a cognizable habeas 12 claim. See id. at 638 Notably, although courts have found that the failure of a state Windham v. Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000). 13 14 Because no Supreme Court decision has imposed a sua sponte duty to 15 instruct on lesser-included offenses in non-capital cases, Petitioner s 16 claim of error does not, by itself, establish constitutional error. 17 Instead, to be a cognizable basis for federal habeas relief, the claimed 18 instructional error must have so infected the entire trial that the 19 resulting conviction violates due process. 20 (internal quotation marks omitted) 21 on the mere failure to give an instruction, the burden on the petitioner 22 is especially heavy. Sarausad, 555 U.S. at 191 Where the alleged error is premised Kibbe, 431 U.S. at 155. 23 24 Here, Petitioner cannot meet his heavy burden of proving that the 25 trial court s failure to instruct the jury on simple assault infected 26 the entire trial with such unfairness that his right to due process was 27 violated. 28 instruction, Because (see RT Petitioner did not 252-53), his claim 35 request of a error simple is assault necessarily 1 attributed to the trial court s failure to sua sponte instruct the jury 2 on simple assault, which is defined by the California courts as a 3 lesser-included offense of assault with a deadly weapon. 4 Gomez, 192 Cal. App. 4th 609, 613, 121 Cal. Rptr. 3d 475 (2011). 5 California law, a trial court s duty to sua sponte instruct on a lesser- 6 included offense arises only if there is substantial evidence that [a] 7 defendant committed assault but not assault with a deadly weapon. 8 People v. Page, 123 Cal. App. 4th 1466, 1474, 20 Cal. Rptr. 3d 857 9 (2004). People v. Under 10 11 In the present case, substantial evidence was not presented 12 demonstrating that Petitioner could only be found guilty of simple 13 assault. 14 to pierce each of his victims in the neck suggests these items were 15 dangerous weapons. 16 Cal. Rptr. 3d 120 (2008) (finding that an automobile used to run over 17 a person had to have been a dangerous weapon); Page, 123 Cal. App. 4th 18 at 1471-74 (finding that a pencil used to stab the victim in the neck 19 was a deadly weapon as a matter of law). 20 suggest on this record that Petitioner could be found guilty of simple 21 assault after stabbing his victims with a wire splicer and knife, the 22 trial court did not err in failing to instruct on simple assault as a 23 lesser included offense. 24 short, given the nature of Petitioner s weapons and the manner in which 25 they were used, Petitioner s attacks could not be fairly characterized 26 as simple assault as opposed to an assault with a deadly weapon. 27 the trial court s failure to instruct on simple assault did not violate 28 due process. The fact that Petitioner s wire splicer and knife were able See People v. Golde, 163 Cal. App. 4th 101, 116, 77 Because it is ludicrous to Golde, 163 Cal. App. 4th at 116-17. In Thus, See Menendez, 422 F.3d at 1029-30 (holding that a state 36 1 court s decision to refrain from instructing on a lesser-included 2 offense was not erroneous, let alone a due process violation, if state 3 law would not have allowed the instruction). Accordingly, Ground Three 4 fails under de novo review. 5 6 2. Ground Four: The Refusal Of A Self-Defense Instruction 7 8 In Ground Four, Petitioner contends the trial court erroneously 9 refused his request for a self-defense instruction because Petitioner s 10 statement to a sheriff s deputy that he stabbed Gutierrez in self- 11 defense justified a self[-]defense instruction. 12 argued by Petitioner, the trial court s error violated his Fourteenth 13 Amendment right to equal protection. 14 novo review. (Id.). (Petition at 6). As This claim fails under de 15 16 At trial, defense counsel requested a self-defense instruction for 17 counts 3 and 4 based on the prosecution s introduction of an admission 18 from Petitioner stating that he stabbed a person in self-defense when 19 that person hit him in the head. 20 this request because the court believed Petitioner s out-of-court 21 statement was self-serving, and there was no evidence that any 22 reasonable person could find evidence to support self-defense. 23 251-52). The California Court of Appeal disagreed with the trial court, 24 finding that there was evidence presented to support an instruction on 25 reasonable self-defense, and that the trial court erred by failing to 26 instruct the jury on reasonable self-defense as a defense to the charges 27 involving Gutierrez. 28 of appeal, [Petitioner] told officers that a man broke into his RV and (RT 251). (Lodgment 8 at 28). 37 The trial court refused (RT As explained by the court 1 started attacking him. The man then hit [Petitioner] over his head with 2 a bottle. 3 the man in the neck. . . . [I]f believed, this constituted reasonable 4 self-defense . . . . [Petitioner] was being attacked in his home and 5 responded with appropriate force. 6 Nevertheless, the appellate court concluded that the trial court s error 7 was harmless beyond a reasonable doubt. In order to protect himself, he grabbed a knife and stabbed (Id. at 23 (citation omitted)). (Id. at 29). 8 9 Without deciding whether Petitioner was entitled to a self-defense 10 instruction under California law, the Court concludes that even if the 11 trial court erred, such error did not have a substantial and injurious 12 effect or influence in determining the jury s verdicts with respect to 13 Petitioner s crimes against Gutierrez. 14 1091, 1099 (9th Cir. 2002) (applying the Brecht harmless error test 15 where the trial court refused to instruct the jury on a defense). 16 only evidence in support of Petitioner s self-defense claim consisted 17 of an out-of-court statement from Petitioner given to Riverside County 18 Sheriff s Deputy Paul Sandoval during an interview discussing the attack 19 on Gutierrez. (RT 74-75). Bradley v. Duncan, 315 F.3d According to Deputy Sandoval, 20 21 [Petitioner] said he was asleep in his motorhome, said 22 somebody entered his motorhome and assaulted him while he was 23 asleep. 24 While he was fighting with the individual, the individual he 25 said, he was beating him so bad, the individual, told him to 26 stop. 27 bottle, and at that particular point where he was in a fight He woke up, started fighting with an individual. He said the individual hit him over the head with a 28 38 The 1 with the individual, he stabbed him to the left side of his 2 neck or stabbed him in the neck. 3 4 (RT 75). Petitioner did not identify Gutierrez as his assailant and he 5 told Deputy Sandoval that he didn t recognize him, didn t know who he 6 was. 7 evidence implicating Gutierrez as Petitioner s purported assailant, 8 Petitioner s specifics or 9 corroboration from any witnesses, least of all Petitioner himself. As (RT 76). Not only was there a complete absence of direct statement to Deputy Sandoval lacked 10 a result, the jury would not likely have used Petitioner s interview 11 statement to justify his attack on Gutierrez. 12 13 Furthermore, Deputy Sandoval s observations of Petitioner the day 14 after he claimed he was attacked conflicted with Petitioner s story, 15 because the deputy did not observe any cut marks, scratches, or bruises 16 on 17 Petitioner s claim of self-defense was weak in relation to the strong 18 evidence put forth by the prosecution demonstrating that Petitioner, and 19 not Gutierrez, initiated an unprovoked attack. See Duckett v. Godinez, 20 67 F.3d 734, 746 (9th Cir. 1995) (holding that the failure to give an 21 alibi instruction did not deprive the petitioner of due process because 22 his alibi evidence was relatively weak in relation to the prosecution s 23 case ). Given the overwhelming evidence of Petitioner s culpability in 24 attacking Gutierrez, the failure to give a self-defense instruction was 25 harmless error. 26 2003) ( Mere speculation is insufficient to grant the writ under Brecht, 27 because speculation does not give rise to a grave doubt whether the Petitioner. (RT 75-76). Moreover, the evidence supporting See Morales v. Woodford, 388 F.3d 1159, 1173 (9th Cir. 28 39 1 error had a substantial effect in determining the jury s verdict. ). 2 Accordingly, Ground Four fails under de novo review. 3 4 3. Ground Five: The Giving Of A Flight Instruction 5 6 In Ground Five, Petitioner contends the trial court erred in 7 instructing the jury with CALCRIM No. 372 because [t]here was no 8 evidence 9 instruction. what so ever [sic] that (Petition at 6). would justify giving a flight Citing the Fourteenth Amendment, 10 Petitioner argues the flight instruction put inside a juror s head a 11 possible con[s]ciousness of guilt which would result in an unreliable 12 verdict of guilt. (Id.). This claim fails under de novo review. 13 14 At trial, defense counsel argued to the trial court that a flight 15 instruction was 16 Petitioner fled after committing his crimes. (RT 247). The trial court 17 observed that Petitioner s absence following the commission of his 18 crimes could be interpreted as evidence that he fled the scene. 19 247-48). 20 instruction from CALCRIM No. 372: The unwarranted jury was because subsequently there given was the no evidence following 22 If [Petitioner] fled immediately after the crime was 23 committed, that conduct may show that he was aware of his 24 guilt. 25 you to decide the meaning and importance of that conduct; 26 however, evidence that [Petitioner] fled cannot prove guilt 27 by itself. If you conclude that [Petitioner] fled, it s up to 40 (RT flight 21 28 that 1 (RT 289; CT 249). The California Court of Appeal did not directly 2 address whether sufficient evidence supported the use of the flight 3 instruction. 4 instruction was erroneously given, the error was harmless. 5 8 at 27). 6 the jury to infer Petitioner s consciousness of guilt only if it found 7 sufficient evidence that Petitioner did indeed flee the scene, [i]f 8 there was insufficient evidence of flight, we may safely assume that the 9 jury made no use of the instruction. Instead, the appellate court found that even if the (Lodgment The court noted that because the flight instruction allowed (Id.). 10 11 Under California law, a flight instruction is proper where the 12 evidence shows that the defendant departed the crime scene under 13 circumstances 14 consciousness of guilt. 15 Rptr. 2d 296 (1996); see Cal. Penal Code § 1127c (requiring a flight 16 instruction if the prosecution relies on the defendant s flight to show 17 guilt). 18 warranted a flight instruction,5 the Court concludes that the trial 19 court s use of CALCRIM No. 372 did not have a substantial and injurious 20 effect or influence in determining the jury s verdicts. See Pulido, 555 21 U.S. at 61-62. suggesting that his movement was motivated by a People v. Ray, 13 Cal. 4th 313, 345, 52 Cal. Without deciding whether the evidence presented at trial 22 23 24 25 26 27 28 5 There was some evidence that Petitioner fled after attacking Gant, in that Gant testified he observed Petitioner running down the street after his neighbors chased Petitioner out of his house after Petitioner s attack. (RT 17-18). However, there was arguably no evidence of Petitioner fleeing following his attack on Gutierrez, as the only evidence presented on this point was Deputy Sandoval s observation that he did not encounter Petitioner when he visited the location of Gutierrez s attack. (RT 67, 70, 73). 41 1 First, the wording of CALCRIM No. 372 properly admonished the 2 jurors not to base a finding of guilt on Petitioner s flight alone. 3 Because the jury is presumed to have followed this instruction, Weeks 4 v. Angelone, 528 U.S. 225, 234, 120 S. Ct. 727, 145 L. Ed. 2d 727 (2000) 5 ( A jury is presumed to follow its instructions ), the jury s decision 6 to convict Petitioner was not derived entirely from its assessment of 7 Petitioner s 8 Petitioner initiated unprovoked attacks on Gant and Gutierrez likely 9 formed the basis for the jury s verdicts, and evidence of Petitioner s 10 flight played an insubstantial role in determining the outcome, if at 11 all. 12 that the constitutional error cannot be said to have had an effect upon 13 the verdict in the case at hand. ) flight. Rather, compelling evidence showing that See Morales, 388 F.3d at 1172 ( The evidence was so overwhelming 14 15 Second, CALCRIM No. 16 Petitioner s 17 immediately after the crimes were committed. 18 to [p]ay careful attention to all these instructions and consider them 19 together. . . . Some of these instructions may not apply, depending on 20 your finding as to the facts of the case. 21 claimed by Petitioner, there was no evidence that he fled the scene, the 22 jury would have disregarded the flight instruction. 23 F.3d at 1015 (noting that a jury likely did not use an inapplicable jury 24 instruction where the trial court instructed the jury to [d]isregard 25 any instruction which applies to facts determined by you not to 26 exist ). 27 play a substantial or injurious role in shaping the jury s decision to consciousness 572 of prohibited guilt the absent jury from evidence inferring that he fled The jury was instructed (RT 280; CT 231). If, as See Pulido, 629 In short, the reading of CALCRIM No. 572 to the jury did not 28 42 1 convict Petitioner. 2 555 U.S. at 191. There was no due process violation. See Sarausad, Accordingly, Ground Five fails under de novo review. 3 4 VII. 5 CONCLUSION 6 7 8 IT IS ORDERED that: (1) the Petition is DENIED; and (2) Judgment shall be entered dismissing this action with prejudice. 9 10 11 12 DATED: September 15, 2011 /S/ ______________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 43

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