JAMES K. SINGLETON, Jr., Senior District Judge.
Beau Houston Gray, a state prisoner represented by counsel, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Gray is in the custody of the California Department of Corrections and incarcerated at the Correctional Training Facility in Soledad, California. Respondent has answered, and Gray has replied. This Court recently denied the petition for habeas relief filed by Gray's co-defendant, Curtis Wayne Taylor, in Taylor v. Muniz, No. 2:13-cv-01826-JKS. Gray's Petition raises many of the same issues raised in Taylor's case.
On November 30, 2009, Gray and his co-defendant Taylor were charged with murdering (count 1), torturing (count 2), and assaulting (count 3) Travis Smith. With regard to count 1, the information alleged a torture murder special circumstance. The information additionally alleged that Taylor and Gray had personally inflicted great bodily injury with respect to count 2 and that count 3 constituted a "serious felony" due to the fact that such injury had been inflicted. On direct appeal of his conviction, the Court of Appeal recounted the following facts underlying the charges against Gray:
People v. Taylor, No. C064852, 2012 WL 928244, *2-5 (Cal. Ct. App. Mar. 19, 2012).
Gray and Taylor proceeded to a joint jury trial on December 10, 2009. On January 21, 2010, the jury found both defendants guilty of second-degree murder (count 1) and assault with force likely to cause great bodily injury (count 3) and also found true the allegation that they had inflicted great bodily injury during the commission of the offense. The jury found the defendants not guilty of first-degree murder and torture and found the torture/murder special circumstance allegation not true.
Gray then moved for a new trial, which Taylor joined. The trial court denied the motion. The trial court subsequently sentenced Gray to a determinate term of 4 years' imprisonment, plus an indeterminate term of 15 years to life, calculated as follows: 4 years on count 3 along with 15 years to life on count 1.
Through counsel, Gray appealed his conviction, arguing that 1) the trial court committed reversible error by failing to instruct the jury on independent intervening causation; and 2) the trial court should have stayed his sentence on the assault charge pursuant to California Penal Code § 654.
Counsel for Gray then timely petitioned for review in the California Supreme Court, raising his instructional error claim and additionally joining in all "beneficial issues and arguments" raised in Taylor's petition for review. The Supreme Court denied review without comment on June 13, 2012.
Gray timely filed a counseled Petition for a Writ of Habeas Corpus to this Court on April 19, 2013.
In his counseled Petition before this Court, Gray raises a single claim that he was denied his right to due process and a jury trial by the trial court's failure to sua sponte instruct on superceding intervening causation.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000 ).
The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision." Id.at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court `unreasonabl[y] appli[ed] clearly established Federal law.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the "last reasoned decision" by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Gray argues that the trial court committed reversible error when it failed to sua sponte instruct the jury on superceding intervening causation. In support of this claim, Gray avers:
A challenged instruction violates the federal constitution if there is a "reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde v. California, 494 U.S. 370, 380 (1990). The question is whether the instruction, when read in the context of the jury charges as a whole, is sufficiently erroneous to violate the Fourteenth Amendment. Francis v. Franklin, 471 U.S. 307, 309 (1985). This Court must also assume in the absence of evidence to the contrary that the jury followed those instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000); Richardson v. Marsh, 481 U.S. 200, 206 (1987) (noting the "almost invariable assumption of the law that jurors follow their instructions"); see Francis, 471 U.S. at 323-24 & n.9 (discussing the subject in depth).
It is well-established that not only must the challenged instruction be erroneous but it must violate some constitutional right, and it may not be judged in artificial isolation but must be considered in the context of the instructions as a whole and the trial record. Estelle, 502 U.S. at 72. This Court must also bear in mind that the Supreme Court has admonished that the inquiry is whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that violates the constitution and that the category of infractions that violate "fundamental fairness" is very narrowly drawn. Id. at 72-73. "Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process clause has limited operation." Id. at 73 (citation omitted). Where the defect is the failure to give an instruction, the burden is even heavier because an omitted or incomplete instruction is less likely to be prejudicial than an instruction that misstates the law. See Henderson v. Kibbe, 431 U.S. 145, 155 (1977). In those cases, the inquiry is whether the trial court's refusal to give the requested instruction "so infected the entire trial that the resulting conviction violates due process." Id. at 156-57; Estelle, 502 U.S. at 72.
Under California law, "[t]o constitute murder, there must be, in addition to the death of a human being, an unlawful act which was the proximate cause of that death. [¶] The proximate cause of a death is a cause which in natural and continuous sequence, produces the death and without which the death would not have occurred." People v. Catlin, 26 P.3d 357, 405 (Cal. 2001) (quoting CALJIC Nos. 8.55 and 8.58), overruled on other grounds. "In criminal prosecutions, the contributing negligence of the victim or a third party does not relieve the criminal actor of liability, unless the victim's or third party's conduct was the sole or superseding cause of the death." People v. Autry, 43 Cal.Rptr.2d 135, 139 (Cal. Ct. App. 1995). "An independent intervening act is a superseding cause relieving the actor of liability for his negligence only if the intervening act is highly unusual or extraordinary and hence not reasonably foreseeable." Lombardo v. Huysentruyt, 110 Cal.Rptr.2d 691, 699 (Cal. Ct. App. 2001); see also People v. Schmies, 51 Cal.Rptr.2d 185, 194 (Cal. Ct. App. 1996) (stating that there may be a superseding cause of death only where the third party's conduct was "so unusual, abnormal, or extraordinary that it could have not been foreseen"); People v. Armitage, 239 Cal.Rptr. 515, 525 (Cal. Ct. App. 1987) ("[I]t is only an unforeseeable intervening cause, an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause.").
"[A]s long as the jury finds that without the criminal act the death would not have occurred when it did, it need not determine which of the concurrent causes was the principal or primary cause of death." Catlin, 26 P.3d at 405. "Rather, it is required that the cause was a substantial factor contributing to the result." Id. This holds true even where the victim's preexisting physical condition was a substantial factor causing death. Id. "So long as a victim's predisposing physical condition, regardless of its cause, is not the only substantial factor bringing about his death, that condition . . . in no way destroys the [defendant's] criminal responsibility for the death."
The California Court of Appeal rejected Gray's claim that the trial court failed to sua sponte instruct the jury on superseding cause, stating, "While we agree with defendants that causation instructions were required under the facts of this case; we do not agree that the instructions given by the trial court here were lacking." Taylor, 2012 WL 928244, at *10. It reasoned:
Id.
The Court finds no basis for disagreeing with the California Court of Appeal's conclusion that the trial court did not fail to sua sponte give the jury an instruction on superceding cause. Gray cannot establish that the omission of an instruction on superceding cause rendered his trial fundamentally unfair in light of the causation instructions as a whole because, as the appellate court noted, the jury was instructed on the causation principles relevant to this case.
Moreover, in either his Petition or his brief on direct appeal, Taylor cites no federal law compelling the provision of a superceding cause instruction under these circumstances and indeed cites only state law in support of his claim. However, "the fact that [an] instruction was allegedly incorrect under state law is not a basis for habeas relief." Estelle, 502 U.S. at 71-72 (citing Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983) ("[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned review of the state evidentiary rules.")); Horton v. Mayle, 408 F.3d 570, 576 (9th Cir. 2005) ("If a state law issue must be decided in order to decide a federal habeas claim, the state's construction of its own law is binding on the federal court."). Claims of error in state jury instructions are generally a matter of state law that do not usually invoke a constitutional question. Gilmore v. Taylor, 508 U.S. 333, 342-43 (1993). This Court is bound by the state appellate court's determination that the trial court was not required under California law to sua sponte give a superceding cause instruction in the absence of any due process violation. Gray fails to establish a due process violation here because he may not transform his state instructional error claim into a federal claim by simply asserting a violation of his constitutional rights. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (a petitioner cannot transform a state-law issue into a federal one by simply asserting a due process violation); see also Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988) (an instructional error "does not alone raise a ground cognizable in a federal habeas corpus proceeding") (citation omitted).
Nor is the Court of Appeal's conclusion that the trial court was not required to sua sponte give a different superceding causation instruction contrary to federal law. Federal law, like California law, requires that if a defendant "actually presents and relies upon a theory of defense at trial," the trial court "must instruct the jury on that theory," even in the absence of a request by the defendant, if there is a foundation for the defense in the evidence and the law. United States v. Bear, 439 F.3d 565, 568 (9th Cir. 2006). But federal law, much the same as California law, mandates that a judge is not required to sua sponte give a specific instruction where, as here, the instructions as a whole adequately ensure that the jury is fully instructed on an issue. See United States v. Shubaralyan, 428 F. App'x 685, 686-87 (9th Cir. 2011).
Furthermore, the Court of Appeal alternatively denied Gray's claim on the additional ground that "any error in instructing the jury on causation was harmless beyond a reasonable doubt because no reasonable jury could conclude that [Gray's] acts were not a concurrent cause of Smith's death." Id. at *11. It concluded:
Id.
A claim of jury instruction error is likewise reviewed under a harmless error standard on federal habeas review. Evanchyk v. Stewart, 340 F.3d 933, 940-41 (9th Cir. 2003). Habeas relief is only available where the error had a "substantial and injurious effect or influence in determining the jury's verdict" and resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Hedgpeth v. Pulido, 555 U.S. 57, 61-62 (2008). The relevant question is "whether the instructions as a whole are misleading or inadequate to guide the jury's deliberation." United States v. Elofus, 598 F.3d 1171, 1174 (9th Cir. 2010). A federal court sitting in habeas review must independently "apply the Brecht test without regard for the state court's harmlessness determination." Pulido v. Chromes, 629 F.3d 1007, 1012 (9th Cir. 2010).
Gray faults the Court of Appeal's harmlessness determination as engaging in impermissible fact finding that deprived him of his right to a jury finding on an element of his offense—causation. He argues:
This argument appears to be premised on Justice Scalia's concurring opinion in Carella v. California, 491 U.S. 263, 267-68 (1989) (Scalia, J., concurring). In Carella, Scalia opined that, where jury instructions omit an element of the offense due to mandatory presumption, traditional harmless error analysis is inappropriate because it substitutes the appellate court's findings of facts for the jury's and is akin to an impermissible directed verdict. Id. He thus suggested a modified harmless error review that would focus on what the jury did find to determine whether its findings were "functionally equivalent to finding the element to be presumed." Id. at 271. But as previously discussed, the proffered instructions did not omit the element of causation, and thus this argument has no applicability here. The jury's conviction necessarily dictates findings against the testimony of the defense's expert witnesses and that the subsequent fall was not sufficient, on its own, to cause Smith's death.
Moreover, accepting Gray's argument that an appellate court can never review the trial evidence to determine what a reasonable jury could conclude would render harmless error review meaningless in nearly any case challenging the sufficiency of jury instructions, which is not supported by federal law, much less any authority of the United States Supreme Court. And to the extent that Gray's argument can be construed to argue that, consistent with Justice Scalia's concurrence in California v. Roy, 519 U.S. 2, 7-8 (1996) (per curiam) (Scalia, J., concurring) (Roy II), an appellate court is precluded from independently examining the evidence and is instead limited to a review of the facts necessarily found by the jury, such argument also must fail. The Ninth Circuit explicitly rejected Justice Scalia's approach in Roy v. Gomez, 108 F.3d 242, 242 (9th Cir. 1997) (Roy III), when it concluded that "when evaluating the harmlessness under Brecht of errors of misdescription or omission in jury instructions, we are free to engage in our own review [of] the record," Pollard v. White, 119 F.3d 1430, 1434 (9th Cir. 1997).
Consistent with that independent review, the Court likewise concludes that any instructional error was harmless. Gray has not established any likelihood that he was prejudiced by the instructions or that the jury would have reached a different verdict had it received the charge Gray now believes to be appropriate. Brecht, 507 U.S. at 637. The Court thus finds no basis to conclude that Gray's conviction was the result of an "extreme malfunction" of the state criminal justice system." Richter, 562 U.S. at 102. Gray is therefore not entitled to relief.
And to the extent Gray's instructional error claim may be construed to additionally raise a claim that the evidence was insufficient to demonstrate that Gray's actions proximately caused Smith's death, such insufficiency of the evidence claim also must fail. As articulated by the Supreme Court in Jackson, the federal constitutional standard for sufficiency of the evidence is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in the original); see McDaniel v. Brown, 558 U.S. 120, 132-33 (2010) (reaffirming this standard). This Court must therefore determine whether the California court unreasonably applied Jackson. In making this determination, this Court may not usurp the role of the finder of fact by considering how it would have resolved any conflicts in the evidence, made the inferences, or considered the evidence at trial. Jackson, 443 U.S. at 318-19. Rather, when "faced with a record of historical facts that supports conflicting inferences," this Court "must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and defer to that resolution." Id. at 326.
It is a fundamental precept of dual federalism that the States possess primary authority for defining and enforcing the criminal law. See Engle v. Isaac, 456 U.S. 107, 128 (1982). Consequently, although the sufficiency of the evidence review by this Court is grounded in the Fourteenth Amendment, it must take its inquiry by reference to the elements of the crime as set forth in state law. Jackson, 443 U.S. at 324 n.16. A fundamental principle of our federal system is "that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus." Bradshaw v. Richey, 546 U.S. 74, 76 (2005); see West v. AT&T, 311 U.S. 223, 236 (1940) ("[T]he highest court of the state is the final arbiter of what is state law. When it has spoken, its pronouncement is to be accepted by federal courts as defining state law . . . ."). "Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension." Sanchez-Llamas v. Oregon, 548 U.S. 331, 345 (2006) (quoting Smith v. Philips, 455 U.S. 209, 221 (1982)) (internal quotation marks omitted).
Gray reiterates that the defense expert witnesses opined that it was more likely that Smith's skull fractures were the result of a new fall as opposed to being missed on the earlier CAT scans. But Gray's argument is nothing more than an attack on the testimony of the prosecution's expert witnesses, who offered inapposite opinions. This Court is precluded from either re-weighing the evidence or assessing the credibility of witnesses. Schlup v. Delo, 513 U.S. 298, 330 (1995); Bruce v. Terhune, 376 F.3d 950, 957-58 (9th Cir. 2004). Under Jackson, this Court's role is simply to determine whether there is any evidence, if accepted as credible by the trier of fact, sufficient to sustain conviction. Schlup, 513 U.S. at 330. The United States Supreme Court has recently even further limited a federal court's scope of review under Jackson, holding that "[a] reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury." Cavazos v. Smith, 132 S.Ct. 2, 4 (2011) (per curiam). Jackson "makes clear that it is the responsibility of the jury—not the court—to decide what conclusions should be drawn from evidence admitted at trial." Id. at 3-4. Under Cavazos, "a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was `objectively unreasonable.'" Id. at 4 (quoting Renico v. Lett, 559 U.S. 766, 773 (2010)).
Although it might have been possible to draw a different inference from the evidence, this Court is required to resolve that conflict in favor of the prosecution. See Jackson, 443 U.S. at 326. Importantly, all of the evidence Gray relies upon in arguing that Smith's later fall was the sole cause of his death was presented to the jury, who considered and rejected it. Viewing the totality of the evidence in the light most favorable to the verdict, this Court concludes that there was sufficient evidence introduced at Gray's trial from which a rational trier of fact could have found beyond a reasonable doubt that the injuries he sustained during the beating "caused" the death of Smith, as that term is defined by California law and discussed above. The record does not compel the conclusion that no rational trier of fact could have found proof that the actions of Gray and his co-defendant caused Smith's death, especially considering the deference owed under Jackson, Cavazos, and the AEDPA. Accordingly, Gray is not entitled to habeas relief on any claim that the evidence introduced at trial was insufficient to support the jury's finding that the injuries inflicted upon Smith during the beating were the cause of his death.
Gray is not entitled to relief on any ground raised in his Petition.
The Clerk of the Court is to enter judgment accordingly.
The Restatement (Second) of Torts § 440 recognizes that a "superceding" cause may relieve an actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about; i.e., a concurrent cause of the injury. It is not clear that California would import into the criminal law a rule as broad as this. Nor is it clear that California would even apply this rule as readily to intentional torts as it does to negligence. Section 442, considerations in determining whether an intervening force ( defined in § 441) is a superceding cause, and particularly § 442(B), would apparently limit the superceding cause rule to intentional acts by third parties in cases like this where the alleged superceding cause involves an injury to the same area of the brain as the earlier beating resulting in the same harm as that risked by the actor's conduct. No intentional act by a third party was involved in Smith's fall in the trailer park.
The jury had before it Smith's history of alcohol and drug abuse. Assuming, without deciding, that a drunken fall could be a superceding cause if it was an unforeseeable, extraordinary and abnormal occurrence, the question then becomes is it possible that a jury could find a fall under these circumstances unforeseeable, extraordinary and abnormal.
