Moreno v. Clay, No. 4:2007cv00356 - Document 11 (N.D. Cal. 2008)

Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Claudia Wilken on 12/2/08. (scc, COURT STAFF) (Filed on 12/2/2008)
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Moreno v. Clay Doc. 11 1 2 IN THE UNITED STATES DISTRICT COURT 3 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 No. C 07-00356 CW 6 JESUS A MORENO, 7 8 9 United States District Court For the Northern District of California 10 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS Plaintiff, v. IVAN CLAY, Acting Warden, Defendant. / 11 12 On January 18, 2007, Petitioner Jesus A. Moreno, a state 13 prisoner incarcerated at Pleasant Valley State Prison, filed a pro 14 se petition for a writ of habeas corpus pursuant to 28 U.S.C. 15 § 2254 challenging a conviction and sentence imposed by the Contra 16 Costa County superior court. 17 Warden Ivan Clay filed an answer. 18 traverse despite being granted an extension of time to do so. 19 Having considered all of the papers filed by the parties, the Court 20 DENIES the petition. 21 22 On August 16, 2007, Respondent Acting Petitioner has not filed a PROCEDURAL HISTORY Following a jury trial, Petitioner was convicted on July 9, 23 2004 of attempted second degree murder with an enhancement for the 24 use of a deadly weapon, assault with a deadly weapon upon a peace 25 officer and second degree residential burglary. 26 Sept. 14, 2005 California Court of Appeal Order at 1.) 27 12, 2004, the trial court sentenced Petitioner to an aggregate term 28 of twenty-three years to life. (Pet'r Ex. A, On August (Id.) 1 2 California court of appeal reversed Petitioner’s assault conviction 3 and otherwise affirmed. 4 appeal denied Petitioner's petition for rehearing. 5 Oct. 3, 2005 California Court of Appeal Order at 1.) 6 21, 2005, the California Supreme Court denied review. 7 I, Dec. 21, 2005 California Supreme Court Order at 1.) 8 9 United States District Court For the Northern District of California On September 14, 2005, in an unpublished opinion, the (Id.) On October 3, 2005, the court of (Resp't Ex. H, On December (Resp't Ex. Petitioner’s timely federal habeas corpus petition raises four claims: (1) that the trial court erred in precluding defense 10 testimony; (2) that the trial court erred in instructing the jury 11 on Petitioner's intent; (3) that the trial court failed to give the 12 jury necessary reasonable doubt and burden of proof instructions; 13 and (4) cumulative error. 14 15 16 17 18 19 20 STATEMENT OF FACTS The California court of appeal summarized the factual background as follows: In his opening statement defendant's counsel told the jury that defendant did not contest the burglary or the assault charges against him. Defendant did contest the attempted murder charge on the ground that he lacked the requisite intent. Much of the evidence introduced at trial may therefore be abbreviated into the following summary: 21 22 23 24 25 26 27 28 In the early morning of April 11, 2003, defendant broke into the Downer School in San Pablo. He ransacked a classroom and took some school supplies. Defendant's entry apparently triggered a silent alarm, and Cris Grunseth, an officer with the West Contra Costa Unified School District, was dispatched to investigate. Grunseth discovered defendant hiding behind a filing cabinet in the classroom. Grunseth told him he was under arrest for burglary. He placed a handcuff on only one of defendant's wrists, because, he testified: “I cuffed his right hand, and . . . I tried to cuff his left. He was complaining that his arm was hurting him and it was stiff, and he was a big person. So I-2 1 2 3 4 5 6 7 8 because he wasn't giving me any grief, I said, Okay, fine, . . . I will just hold on to the cuff and we will walk out to my car.” “I still had my gun on him.” At his car, Officer Grunseth moved the gun from his right hand to the left, in order to get his car keys with his right hand; his left hand was now holding the weapon and the single handcuff on defendant. It was at this point that defendant “grabbed [the officer's] gun handle” and “got into a wrestling match” with the officer for control of the gun. Defendant struck Grunseth a number of times with his fist, driving the officer to his knees. Defendant then produced a knife and began stabbing Grunseth. Finally breaking free of the bleeding Grunseth, defendant fled. 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 San Pablo police were summoned, and Grunseth provided a description of the suspect. The officers described Grunseth as “completely soaked in blood.” Grunseth was taken to the hospital, where he was treated for 10 stab wounds on his back, chest, knuckle, and one “by my eye.” Grunseth also suffered a collapsed lung and was in the hospital for four days. Fingerprints recovered from the scene led to discovery of defendant's identity and his subsequent arrest. Defendant did not testify. Lori Clendenin testified that at the time of the incident she was defendant's girlfriend and living with him. For several weeks before April 10, defendant had been smoking methamphetamine. He was doing so on the night of the 10th, and Clendenin thought he was “a little more hyper than normal. . . .” Douglas Tucker, M.D., testified as an expert on the effects of methamphetamine use. He explained for the jury how the euphoria of continuous methamphetamine usage can easily go from euphoria to paranoia. It can also lead to “impulsivity,” which Dr. Tucker described as actions taken “without adequate reflection or consideration.” Methamphetamine “impairs judgment” and the ability to make reasoned decisions, including the consequences of specific actions. 24 (Pet'r Ex. A at 2-3.) 25 STANDARD OF REVIEW 26 Under the Antiterrorism and Effective Death Penalty Act 27 (AEDPA), a federal writ of habeas corpus may not be granted with 28 3 1 respect to any claim that was adjudicated on the merits in state 2 court unless the state court's adjudication of the claims: 3 "(1) resulted in a decision that was contrary to, or involved an 4 unreasonable application of, clearly established Federal law, as 5 determined by the Supreme Court of the United States; or 6 (2) resulted in a decision that was based on an unreasonable 7 determination of the facts in light of the evidence presented in 8 the State court proceeding." United States District Court For the Northern District of California 9 28 U.S.C. § 2254(d). "Under the 'contrary to' clause, a federal habeas court may 10 grant relief if the state court arrives at a conclusion opposite to 11 that reached by the [Supreme] Court on a question of law or decides 12 a case differently than the [Supreme] Court has on a set of 13 materially indistinguishable facts." 14 362, 412-13 (2000). 15 a federal habeas court may grant the writ if the state court 16 identifies the correct governing legal principle from the [Supreme] 17 Court's decision but unreasonably applies that principle to the 18 facts of the prisoner's case." 19 source of clearly established federal law under 28 U.S.C. § 2254(d) 20 is in the holdings of the Supreme Court as of the time of the 21 relevant state court decision. 22 William v. Taylor, 529 U.S. "Under the 'unreasonable application' clause, Id. at 413. The only definitive Id. at 412. If constitutional error is found, habeas relief is warranted 23 only if the error had a "'substantial and injurious effect or 24 influence in determining the jury's verdict.'" 25 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 26 507 U.S. 619, 638 (1993)). 27 28 Penry v. Johnson, In determining whether the state court's decision is contrary 4 United States District Court For the Northern District of California 1 to, or involved the unreasonable application of, clearly 2 established federal law, a federal court looks to the decision of 3 the highest state court to address the merits of a petitioner's 4 claim in a reasoned decision. 5 669 n.7 (9th Cir. 2000). 6 exhausted his state remedies by raising his claims on petition for 7 review in the California Supreme Court. 8 issued a summary opinion which does not explain the rationale of 9 its decision, the last state court opinion to address the merits of Lajoie v. Thompson, 217 F.3d 663, Respondent concedes that Petitioner has Because the Supreme Court 10 Petitioner's claims is the opinion of the California court of 11 appeal. 12 13 14 DISCUSSION I. Preclusion of Expert Witness Testimony Petitioner argues that the trial court denied him due process 15 by precluding defense counsel from asking the defense psychiatric 16 expert Dr. Douglas Tucker any fact-specific hypothetical questions. 17 A state court's evidentiary ruling is not subject to federal 18 habeas review unless it violates federal law, either by infringing 19 upon a specific federal constitutional or statutory provision or by 20 depriving the defendant of the fundamentally fair trial guaranteed 21 by due process. 22 v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991); Middleton v. 23 Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985). 24 Pulley v. Harris, 465 U.S. 37, 41 (1984); Jammal “State and federal rule makers have broad latitude under the 25 Constitution to establish rules excluding evidence from criminal 26 trials.” 27 (quotations and citations omitted); Montana v. Egelhoff, 518 U.S. 28 Holmes v. South Carolina, 547 U.S. 319, 324 (2006) 5 1 37, 42 (1996) (holding that due process does not guarantee a 2 defendant the right to present all relevant evidence). 3 latitude is limited, however, by a defendant’s constitutional 4 rights to due process and to present a defense, rights originating 5 in the Sixth and Fourteenth Amendments. 6 The exclusion of evidence does not violate the Due Process Clause 7 unless the defendant proves that "it offends some principle of 8 justice so rooted in the traditions and conscience of our people as 9 to be ranked as fundamental.” United States District Court For the Northern District of California 10 This Holmes, 547 U.S. at 324. Egelhoff, 518 U.S. at 42, 47. In deciding if the exclusion of evidence violates the due 11 process right to a fair trial or the right to present a defense, 12 the court balances the following five factors: (1) the probative 13 value of the excluded evidence on the central issue; (2) its 14 reliability; (3) whether it is capable of evaluation by the trier 15 of fact; (4) whether it is the sole evidence on the issue or merely 16 cumulative; and (5) whether it constitutes a major part of the 17 attempted defense. 18 2004); Drayden v. White, 232 F.3d 704, 711 (9th Cir. 2000). 19 court must also give due weight to the state interests underlying 20 the state evidentiary rules on which the exclusion was based. 21 Chia, 360 F.3d at 1006; Miller v. Stagner, 757 F.2d 988, 995 (9th 22 Cir. 1985). 23 Chia v. Cambra, 360 F.3d 997, 1004 (9th Cir. The The appellate court upheld the ruling of the trial court 24 precluding Dr. Tucker’s response to defense counsel’s fact-specific 25 hypothetical. 26 California Evidence Code Section 402 to determine what testimony 27 the jury would hear from Dr. Tucker. (Pet'r Ex. A at 3.) 28 The trial court had conducted a hearing pursuant to 6 At the 1 hearing, Dr. Tucker offered testimony as an expert in forensic 2 psychiatry on the effects of methamphetamine usage. 3 counsel gave the following hypothetical fact pattern to Dr. Tucker: (Id.) Defense 4 5 6 7 I would like to ask you to just think about the following fact pattern. Assume that a man in his early 20s with a history of methamphetamine use ingests some portion of one gram of methamphetamine by means of smoking some time late in the evening of -- call it April 10th. 8 9 Assume that sometime around 2:00 a.m. this man enters the classroom, portable classroom in order to find some items to steal. United States District Court For the Northern District of California 10 11 12 13 14 15 Further assume this man is caught by a school police officer. Assume that the man tries to hide, but is seen. And the officer begins the process of taking him into custody. Assume that the man is handcuffed by one hand and escorted out of the classroom by the officer and that the -- throughout the entire encounter, the officer has his gun, service weapon drawn. 16 17 Assume further that the officer makes known to this man that he is a police officer, that he is making an arrest, and that he does have his gun drawn. 18 19 20 Assume that as they arrive outside of the classroom at the officer's patrol vehicle, the officer moves his firearm from his free hand into the same hand in which he is holding onto the other end of the handcuff that is attached to the man. 21 22 23 Assume that there are some moments of confusion, the officer is fumbling for the keys, trying to get the door open, and that this man reaches out toward the officer's hand, the one where he has the gun and the cuff, and the struggle begins. 24 (Resp't Ex. C, July 6, 2004 Superior Court Reporter's Transcript 25 (RT) at 618-619.) 26 Based on this hypothetical fact pattern indistinguishable from 27 28 7 United States District Court For the Northern District of California 1 the case before the court, defense counsel posed the question: “Do 2 you have an opinion as to how the man having ingested 3 methamphetamine would affect his reaction to that set of facts?” 4 (Id. at 619.) 5 sounds like a situation where maybe an impulsive decision to act, 6 to grab the cop or wrestle or escape or make your move, would be 7 something that methamphetamine could certainly influence.” 8 620.) 9 how that set of facts would affect the person who had ingested Dr. Tucker responded: “What you are describing (Id. at Defense counsel then asked: “Do you have an opinion as to 10 methamphetamine, that person’s ability to weigh options and make 11 choices?” 12 intoxication definitely reduces the ability to weigh options and 13 make choices. 14 criteria for making the diagnosis of methamphetamine intoxication.” 15 (Id.) 16 (Id. at 621.) Dr. Tucker replied: “Methamphetamine In fact, poor judgment is one of the diagnostic On cross-examination at the § 402 hearing, the prosecutor 17 questioned Dr. Tucker on the hypothetical, asking: “You said that 18 under the fact pattern given that maybe that person was -- maybe 19 the decision to act was impulsive. 20 this ‘maybe?’” 21 confident at all. 22 not read much in the way of records on this case or learned much 23 about it other than the very brief information that I reviewed, as 24 I mentioned, and what I was given in the hypothetical.” 25 trial court did not allow defense counsel to elicit Dr. Tucker’s 26 answer to the fact-specific hypothetical at trial. 27 allowed to testify as to the general effects of methamphetamine. 28 (Id. at 629.) How confident are you . . . by Dr. Tucker answered: “[N]ot very I have not interviewed the defendant. 8 I have (Id.) The Dr. Tucker was 1 2 court explained that Dr. Tucker was correctly prevented from 3 offering an opinion about whether Petitioner possessed the mental 4 state for the crime and that the hypothetical so mirrored the facts 5 of the crime that it would have conveyed the message that Dr. 6 Tucker was testifying about Petitioner’s mental state. 7 8 9 10 United States District Court For the Northern District of California In upholding the ruling of the trial court, the appellate 11 12 13 14 15 16 17 18 [T]he effect of the hypothetical question defendant intended to pose to Dr. Tucker--whether a person using methamphetamine would react with a “fight or flight” response when apprehended under the specific facts of the current case--so mirrored the current case that it in essence would have conveyed the message that Dr. Tucker was testifying about this defendant’s mental state. . . . Additionally, as the trial court noted, there were gaps in the underlying foundation of Dr. Tucker’s proposed testimony: he did not know how much methamphetamine defendant consumed or the effects on this individual defendant due to his particular sensitivity to the drug and history of abuse. . . . The court’s ruling did not entirely foreclose testimony from Dr. Tucker; the court ruled he could testify about the general effects of methamphetamine and that methamphetamine use could increase impulsivity, and Dr. Tucker did so testify. (Pet'r Ex. A at 7.) The appellant court’s application of state evidentiary rules 19 in affirming the exclusion of some of Dr. Tucker’s testimony did 20 not offend any fundamental principle of justice or deprive 21 Petitioner of a fair trial. 22 testify whether the defendant has the required mental state to 23 commit the crimes charged. 24 trial and appellate courts, defense counsel’s hypothetical was so 25 similar to the facts of the case that its effect would have been to 26 convey to the jury that Dr. Tucker was giving an opinion on 27 Petitioner’s state of mind at the time of the offense. 28 Under California law, an expert cannot Cal. Penal Code § 29. 9 As noted by the California 1 has broad latitude to exclude evidence from criminal trials. 2 California law, the federal rules of evidence prevent expert 3 testimony as to whether a defendant had the mental state 4 constituting an element of the crime. 5 the exclusion of Dr. Tucker’s testimony did not violate federal 6 law, nor deprive Petitioner of a fundamentally fair trial 7 guaranteed by due process. 8 United States District Court For the Northern District of California 9 Fed. R. Evid. 704(b). Like Thus, Even if Dr. Tucker’s answer to the hypothetical had been admissible, its exclusion was not unreasonable. Under the Chia 10 balancing factors, the probative value and reliability of the 11 testimony was not great because there was no evidence of how much 12 methamphetamine Petitioner ingested, individual reactions to the 13 drug vary widely and Dr. Tucker had no personal knowledge of 14 Petitioner’s medical history nor how he would react to 15 methamphetamine. 16 to the hypothetical would not have been a major part of 17 Petitioner’s defense because he expressly indicated that he could 18 not determine Petitioner’s intent, but could only speculate that 19 Petitioner may have been impulsive. 20 Dr. Tucker was allowed to testify as to the general effects of 21 methamphetamine. 22 (Resp't Ex. C at 702-708.) Dr. Tucker’s answer (Id. at 634.) Furthermore, Thus, the exclusion of Dr. Tucker’s testimony on defense 23 counsel’s hypothetical was not a violation of Petitioner’s 24 constitutional rights. 25 contrary to nor an unreasonable application of federal law. 26 II. 27 28 The appellate court's decision was not Erroneous Jury Instructions Petitioner argues that his due process rights were violated 10 1 when the trial court (a) instructed the jury that attempted 2 voluntary manslaughter could be premised on the theory of conscious 3 disregard for life and (b) failed on its own motion to instruct the 4 jury that it must acquit Petitioner of attempted murder if it had a 5 reasonable doubt whether the offense was murder or manslaughter and 6 that it was the government's burden to prove beyond a reasonable 7 doubt that Petitioner did not act in a sudden quarrel or heat of 8 passion. United States District Court For the Northern District of California 9 A challenge to a jury instruction solely as an error under 10 state law does not state a claim cognizable in federal habeas 11 corpus proceedings. 12 To obtain federal collateral relief for errors in the jury charge, 13 a petitioner must show that the ailing instruction by itself so 14 infected the entire trial that the resulting conviction violates 15 due process. 16 (1973); Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) ("[I]t 17 must be established not merely that the instruction is undesirable, 18 erroneous, or even 'universally condemned,' but that it violated 19 some right which was guaranteed to the defendant by the Fourteenth 20 Amendment.") (quoting Cupp, 414 U.S. at 146). 21 not be judged in artificial isolation," but must be considered in 22 the context of the instructions as a whole and the trial record. 23 Estelle, 502 U.S. at 72 (quoting Cupp, 414 U.S. at 147). 24 words, the district court must evaluate jury instructions in the 25 context of the overall charge to the jury as a component of the 26 entire process. 27 28 Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Id. at 72; Cupp v. Naughten, 414 U.S. 141, 147 The instruction "may In other United States v. Frady, 456 U.S. 152, 169 (1982). It is well established that a criminal defendant is entitled 11 United States District Court For the Northern District of California 1 to adequate instructions on the defense theory of the case. 2 v. Henry, 198 F.3d 734, 739 (9th Cir. 2000). 3 on the theory of defense violates due process if “‘the theory is 4 legally sound and evidence in the case makes it applicable.’” 5 Clark v. Brown, 450 F.3d 898, 904-05 (9th Cir.2006) (quoting 6 Beardslee v. Woodford, 358 F.3d 560, 577 (9th Cir. 2004)). 7 However, the defendant is not entitled to have jury instructions 8 raised in his or her precise terms where the given instructions 9 adequately embody the defense theory, United States v. Del Muro, 87 10 F.3d 1078, 1081 (9th Cir. 1996); United States v. Tsinnijinnie, 601 11 F.2d 1035, 1040 (9th Cir. 1979), nor to an instruction embodying 12 the defense theory if the evidence does not support it, Menendez v. 13 Terhune, 422 F.3d 1012, 1029 (9th Cir. 2005). 14 Conde Failure to instruct The omission of an instruction is less likely to be 15 prejudicial than a misstatement of the law. 16 F.2d 470, 475-76 (9th Cir. 1988). 17 claim involves a failure to give a particular instruction bears an 18 "'especially heavy burden.'" 19 624 (9th Cir. 1997) (quoting Henderson v. Kibbe, 431 U.S. 145, 155 20 (1977)). 21 may be evaluated by comparison with the instructions that were 22 given. Walker v. Endell, 850 Thus, a habeas petitioner whose Villafuerte v. Stewart, 111 F.3d 616, The significance of the omission of such an instruction Murtishaw v. Woodford, 255 F.3d 926, 971 (9th Cir. 2001). 23 A determination that there is a reasonable likelihood that the 24 jury has applied the challenged instructions in a way that violates 25 the Constitution establishes only that a constitutional error has 26 occurred. 27 constitutional error is found, the court must also determine that 28 Calderon v. Coleman, 525 U.S. 141, 146 (1998). 12 If 1 the error had a substantial and injurious effect or influence in 2 determining the jury's verdict before granting habeas relief. 3 (citing Brecht, 507 U.S. at 637). 4 A. 5 Petitioner argues that the trial court erred by instructing Attempted Voluntary Manslaughter Jury Instruction 6 the jurors that attempted voluntary manslaughter could be premised 7 on conscious disregard for life and by failing to answer the jury’s 8 related question whether a person can attempt to kill without an 9 intent to kill. 10 United States District Court For the Northern District of California Id. Under California law, a person can commit voluntary 11 manslaughter either with an intent to kill or with a conscious 12 disregard for life. 13 However, attempted voluntary manslaughter cannot rest on a theory 14 of conscious disregard for life and it is an error to so instruct. 15 People v. Gutierrez, 112 Cal. App. 4th 704, 710 (2003); People v. 16 Montes, 112 Cal. App. 4th 1543, 1546-1547 (2003). 17 People v. Lasko, 23 Cal. 4th 101, 110 (2000). Respondent admits that the trial court erroneously instructed 18 the jury on conscious disregard for life in connection with the 19 charge of attempted voluntary manslaughter. 20 gave the jury instructions for voluntary manslaughter rather than 21 attempted voluntary manslaughter. 22 8.40.) 23 error did not have a substantial and injurious effect or influence 24 in determining the jury's verdict. 25 favored Petitioner because it gave the jury the option of 26 convicting him of the lesser offense of attempted voluntary 27 manslaughter if it found that he had acted with only a conscious 28 The court improperly (Resp't Ex. C at 734; CALJIC No. However, the appellate court reasonably found that the 13 The court found that the error United States District Court For the Northern District of California 1 disregard for life. 2 the malice required for conviction of attempted murder. 3 Nonetheless, the jury found that Petitioner had acted with malice 4 and was therefore guilty of murder. This is a less culpable state of mind than 5 Petitioner argues that the erroneous definition of intent 6 required for voluntary manslaughter carried over prejudicially into 7 the jury’s consideration of attempted murder. 8 that confusion was evidenced in the jury’s question, “Could you 9 please explain the definition of attempt to kill versus intent to Petitioner argues 10 kill?” 11 The trial court did not answer the question, but instead asked, “By 12 using the phrase ‘attempt to kill’ are you referring to the crime 13 of attempted murder?” 14 thus, the trial court never explicitly answered the original 15 question. (Resp't Ex. B, July 13, 2004 Clerk's Transcript at 474.) (Id.) The jury did not respond further and 16 The jury was explicitly instructed that it needed to find 17 “express malice aforethought, namely, a specific intent to kill” to 18 convict Petitioner of attempted murder. 19 CALJIC No. 8.66.) 20 only out of conscious disregard for human life, it would have found 21 him guilty of attempted voluntary manslaughter, not attempted 22 murder. 23 it must have found that he had the intent to kill. 24 jury did not respond to the trial court’s request for clarification 25 of its question, it must have resolved it for itself. 26 erroneous jury instruction on attempted voluntary manslaughter had 27 no substantial and injurious effect or influence in determining the 28 14 (Resp't Ex. C at 725; Thus, if the jury thought Petitioner had acted Because the jury convicted Petitioner of attempted murder, Given that the Because the United States District Court For the Northern District of California 1 jury's verdict, the appellate court’s rejection of Petitioner’s 2 challenge was not contrary to or an unreasonable application of 3 federal law. 4 B. 5 Petitioner argues that the appellate court unreasonably found 6 that the trial court had no duty on its own motion to instruct the 7 jury (1) that if the jury had a reasonable doubt whether Petitioner 8 committed attempted murder or attempted voluntary manslaughter, it 9 had to choose the latter verdict and (2) that the government had Reasonable Doubt and Burden of Proof Instructions 10 the burden of proving Petitioner was not motivated by a sudden 11 quarrel or heat of passion. 12 (1) Reasonable Doubt as to Attempted Murder and Attempted Manslaughter 13 Petitioner argues that the trial court should have instructed 14 the jury on its own motion with CALJIC No. 8.72 which requires that 15 if the jury had any reasonable doubt between attempted murder and 16 attempted voluntary manslaughter, it should find attempted 17 voluntary manslaughter. 18 However, as noted by the appellant court, pursuant to CALJIC 19 No. 17.10, the jury was told: “If you are not satisfied beyond a 20 reasonable doubt that the defendant is guilty of the crime charged, 21 you may nevertheless convict him of any lesser crime if you are 22 convinced beyond a reasonable doubt that the defendant is guilty of 23 the lesser crime. [¶] The crime of attempted voluntary 24 manslaughter . . . [is] the lesser to that of attempted 25 murder. . . .” (Resp't Ex. C at 732; CALJIC No. 17.10.) This 26 provides the same information as CALJIC No. 8.72. 27 28 15 The appellate United States District Court For the Northern District of California 1 court’s rejection of Petitioner’s challenge was not contrary to or 2 an unreasonable application of federal law. Petitioner suffered no 3 due process violation from the court’s failure to instruct the jury 4 with CALJIC No. 8.72. 5 (2) 6 Petitioner contends that the trial court should have Heat of Passion Instruction 7 instructed the jury on its own motion with CALJIC No. 8.50 that the 8 prosecution bore the burden of proving that Petitioner did not act 9 upon a sudden quarrel or heat of passion. Under California law, in 10 a murder case, it is the defendant’s obligation to proffer some 11 evidence that the murder was due to a sudden quarrel or heat of 12 passion unless the government’s evidence suggests that the killing 13 may have been provoked. 14 462 (2000). 15 See People v. Rios, 23 Cal. 4th 450, 461- The appellate court held that there was no evidence of a 16 sudden quarrel or heat of passion, it was not argued as a theory at 17 trial and thus there was no need for the trial court to instruct 18 with CALJIC 8.50. 19 the record suggesting Petitioner’s knife attack on Officer Grunseth 20 was provoked. 21 arrested Petitioner, Officer Grunseth was unusually lenient because 22 he responded to Petitioner’s complaint about arm pain and 23 handcuffed only one of Petitioner’s wrists. 24 entitle Petitioner to an unrequested instruction the evidence does 25 not support. 26 III. Cumulative Error (Pet'r Ex. A at 11.) There is no evidence in In fact, the evidence suggests that after he Federal law does not 27 Petitioner argues that the cumulative effect of the errors 28 16 1 2 In some cases, although no single trial error is sufficiently 3 prejudicial to warrant reversal, the cumulative effect of several 4 errors may still prejudice a defendant so much that his conviction 5 must be overturned. 6 Cir. 2003). 7 can accumulate to the level of a constitutional violation. 8 v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002); Rupe v. Wood, 93 9 F.3d 1434, 1445 (9th Cir. 1996). 10 United States District Court For the Northern District of California discussed above deprived him of due process and a fair trial. Alcala v. Woodford, 334 F.3d 862, 893 (9th Where no single constitutional error exists, nothing Mancuso Here, only the jury instruction that attempted voluntary 11 manslaughter could be predicated on conscious disregard for life 12 was in error. 13 this error did not have a substantial and injurious effect or 14 influence in determining the jury's verdict because the jury 15 convicted Petitioner of the more serious offense of attempted 16 murder. 17 court’s decision was neither contrary to nor an unreasonable 18 application of federal law. However, the appellate court reasonably held that Thus, there was no cumulative error and the appellate 19 20 CONCLUSION For the foregoing reasons, the petition for a writ of habeas 21 corpus is DENIED. 22 close the file. 23 The Clerk of the Court shall enter judgment and IT IS SO ORDERED. 24 Dated: 12/2/08 25 CLAUDIA WILKEN United States District Judge 26 27 28 17 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 JESUS A MORENO, Case Number: CV07-00356 CW 4 Plaintiff, CERTIFICATE OF SERVICE 5 v. 6 I D CLAY et al, 7 Defendant. 8 9 United States District Court For the Northern District of California 10 11 12 / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on December 2, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 13 14 15 16 17 18 19 20 21 David M. Baskind State Attorney General’s Office 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Jesus A. Moreno V-47127 Pleasant Valley State Prison 24863 W. Jayne Avenue P.O. Box 8503 Coalinga, CA 93210 Dated: December 2, 2008 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk 22 23 24 25 26 27 28 18