REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable R. Gary Klausner, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on February 12, 2014. Respondent filed an Answer on March 17, 2014. Petitioner failed to file a Reply within the allotted time. See "Order," filed February 20, 2014; Minute Order, filed April 1, 2014.
BACKGROUND
A jury found Petitioner and her codefendant (Petitioner's boyfriend Jason Runnels) guilty of first degree murder (Reporter's Transcript ("R.T.") 806). Petitioner received a sentence of 25 years to life in state prison (R.T. 828). The California Court of Appeal affirmed in a reasoned decision (Lodgment 6). The California Supreme Court summarily denied a petition for review (Lodgments 7, 8).1 The California Supreme Court also summarily denied a subsequent petition for habeas corpus (Lodgments 9, 10).
SUMMARY OF TRIAL EVIDENCE
The following summary of the trial evidence is taken from the opinion of the California Court of Appeal in People v. Martinez, 2012 WL 2865807 (Cal. App. July 12, 2012). See Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).
The witness to the crime (hereinafter, the witness), who was granted use immunity for her testimony, did not want to testify and said she was afraid, testified that on New Year's Eve, 2008, she had been staying with the defendant and the defendant's boyfriend (hereinafter, the codefendant) at the couple's one bedroom cabin in Poppet Flats. The codefendant called the victim, whom he had met while both had been in prison,2 to come over to celebrate the New Year, which the victim did. After making an alcohol-run to Walmart, all four returned to the cabin and listened to music in the living room. Either all four or all but the witness began to drink and all four danced to the music. The victim put his hand on the witness's leg and she removed it, then brought this to the defendant's attention. While the codefendant was in the kitchen, the defendant continued to dance and the victim tried to dance with her by putting his hands on her hips. She pushed him away and went into the kitchen. The victim sat down and began talking to the witness. Two minutes later, the defendant and codefendant came out of the kitchen. The codefendant asked the victim to accompany him to the bedroom and both went inside. After a couple of minutes, the defendant joined the codefendant and the victim in the bedroom and closed the door. The witness then heard, coming from the bedroom, one or two thumps, like someone was getting hit, or was hitting something or was bouncing off the floor or walls. The witness turned down the music in the living room to better hear what was going on in the bedroom. The defendant came out of the bedroom, turned up the music, asked the witness not to make or receive any calls from her cell phone, and asked where her cell phone was. She also asked the witness what the latter had heard. The witness told defendant where her cell phone was and that she had heard thumping. The defendant returned to the bedroom, once again closing the door. The witness may have heard3 around five sounds of thumping, louder than the initial noise, and lasting for several minutes. The defendant and codefendant then came out of the bedroom. Neither had injuries. They told the witness that she could not go anywhere, she had to stay with them and she could not make any phone calls. They had her cell phone, but she was unsure at what point they had gained possession of it or which of the two had taken it. All three sat down in the living room. With the codefendant right behind her, defendant told the witness that if the latter said anything, they would "take the closest one to her."4 At the time, the witness had a four-year-old son. The codefendant went into the bedroom and emerged, dragging the victim's beaten and lifeless body, which he deposited on the living room floor. The three again sat down and defendant asked the codefendant what they were going to do with the victim's body. The codefendant replied that they'd figure something out. Defendant and the codefendant told the witness to help with the body and, out of fear, she assisted them in dragging it though the kitchen outside, where it was placed in the victim's car after the codefendant had parked the car in the garage. While the victim's body was in his car, the codefendant tied a rope around the wrists, which were placed behind the back, and he tied the rope to a cinder block. All three returned to the cabin and slept in the living room, the witness feeling she had no choice but to remain in their presence.5
The next day, the codefendant was gone, and defendant directed the witness to help her clean up some of the blood that was in different places in the bedroom. The witness felt she had no choice but to help. Defendant then had the witness take her in the witness's car to Banning, where defendant visited with family members. The witness could not get away from defendant and defendant had the witness's cell phone. That night, defendant, the codefendant and the witness made another attempt to clean up the blood in the bedroom. They discussed what to do with the victim's body and decided to put it in a nearby lake. Beneath the cover of darkness, the codefendant drove the victim's car, with the victim's body in the passenger seat, and the witness, driving her car with defendant as her passenger, followed. After parking near the lake, all three carried the victim's body to a bridge and dropped it into the lake. Continuing to drive her car with defendant as her passenger, the witness followed the codefendant, who drove the victim's car, to Joshua Tree. Defendant still had possession of the witness's cell phone. The women lost sight of the codefendant but eventually picked him up after he had abandoned the victim's car in a sparsely populated area. The codefendant had a red gas can and he smelled of gasoline. They stopped at a gas station where the codefendant paid to have the witness's car gassed up. The following day, the codefendant went to work and the witness and defendant again went to Banning, but defendant gave the witness her cell phone back as the latter was applying for a drug treatment program and needed it.
On January 7, 2009, the victim's clothes and wallet were found in a dumpster at a fenced-in job site where the codefendant worked. When asked by coworkers, the codefendant twice denied knowing the victim.
Surveillance video of the four at Walmart and the three at the gas station were shown to the jury. The station was a few miles from where the victim's car had been abandoned. Inside the car was a wet residue in areas that would be touched by someone using the car, and an envelope on which had been written the address of the cabin. There was gasoline residue inside the car. A web map from the victim's home in Brea to the cabin was found on the victim's home computer. There were calls on the victim's cell phone for December 31, 2008 to the codefendant's cell phone. The codefendant told law enforcement a variety of stories about his interaction with the victim around the time of the latter's death. The victim's DNA was found in the bedroom of the cabin. Calls between the codefendant's cell phone and defendant's cell phone for January 1, 2009, traced the movement the witness claimed they had made from the cabin to where the victim's car had been abandoned. Areas of the carpet in the cabin's bedroom had been cleaned and dyed. About two months after the murder, the victim's body, filled with gasses from decomposition, floated to the surface of the lake. Cinderblock and rope similar to that attached to the victim's body were found at the cabin. Calls made on defendant's cell phone between January 10 and 16, 2009 traced a journey from Banning to Pennsylvania. In April 2009, defendant was found by law enforcement in Georgia. Voicemail messages left by the codefendant for the victim after the victim was dead were played for the jury. In the voicemails, the codefendant expresses love for the victim.
Except for the codefendant's periods of incarceration, during which the defendant wrote to him, they had been together since 2002. His children considered her to be their stepmother and her children considered him to be their stepfather. She had his name tattooed on her neck during one of his incarcerations. Although the codefendant and the victim were about the same height, the codefendant out-weighed the victim by 50 or 60 pounds. The codefendant had two convictions for felony evading the police, two for possessing a stolen vehicle, one for possessing ammunition while on parole and possessing methamphetamine. He had been to prison at least three times. Thus, any reasonable person in defendant's position would have known that the codefendant was not afraid of committing felonies and going to prison, or of engaging in acts in defiance of the police. He was, in short, no wallflower. He was also someone who was very devoted to her, and such a person does not normally take kindly to sexual advances made upon their significant other. Finally, she was aware of his strength and especially of the physical differences between him and the victim. Of the twelve ribs on the victim's right side, three were broken in the front and seven in the back, and of the twelve on his left side, six were broken in both the front and the back. Some were broken in more than one place and some had been hit so hard that there [sic] were displaced. The victim's lower left lung and liver had been torn by the broken ribs. His sternum was broken and he had a blunt force laceration on his forehead. The pathologist estimated that this damage had been done by 10 to 16 blows. According to the witness, all these blows were delivered in the presence of the defendant. It was defendant who supplied the incentive for the codefendant to beat the victim. Apparently, whatever damage the codefendant inflicted during the initial part of the beating was sufficient to motivate defendant to go into the living room and attempt to not only intimidate the witness into not reporting what she had already heard, but also to obscure the sounds of the continuation of the beating. . . .6
Defendant presented no evidence and did not testify. The codefendant testified[7] that the witness had begun a relationship with the victim over the phone prior to New Year's Eve, 2008. Before going to Walmart, the witness and the victim had gone into the bedroom of the cabin and when the witness emerged, she told the codefendant that the victim was "a weenie" because he talked "lovey-dovey" to her. The codefendant informed the victim that the witness had said that she wanted to have fun "without strings," so the victim should not try to romance her. The codefendant offered to sleep on the couch in the living room while the victim and the witness used the bed in the bedroom. The codefendant told the victim he would smooth things out between the victim and the witness. That was achieved after the trip to Walmart, as the four danced in the living room. After having drinks, the witness grabbed the victim's hand and they walked into the bedroom. Two minutes later, the sound of a loud smack came from inside the bedroom, and defendant told the codefendant to go in there. Both went in and saw the witness and the victim standing face to face, yelling at each other. The codefendant jokingly asked the victim if he had "struck out." Defendant told the codefendant that the witness had told her that the victim had "tried to take the pussy. . . ."
[T]he codefendant went on to testify that the victim then made a derogatory remark about both women and suggested that he and the codefendant go elsewhere for sexual favors. The victim and the witness cussed each other out. The victim repeated his suggestion, including the colorful language, to the codefendant, adding that the cabin was the codefendant's (not the defendant's) home. The codefendant told the victim to watch his mouth around the defendant and suggested that they all stop. The victim twice repeated his derogatory remark about the women, which resulted in defendant reaching over the codefendant and slapping the victim in the face. The victim took a step back and the codefendant feared that the victim was going to harm the defendant and the codefendant had to use force to stop the victim, so he pushed the victim across the room and ordered him out. The victim approached the codefendant and defendant on what the codefendant believed was his way out the door, but, instead, he began hitting the codefendant. The codefendant struck back and knocked the victim down. The victim got back up and the two women left the room, closing the door behind them. The codefendant asked the victim what was going on. The victim rushed at the codefendant with his fists swinging and the codefendant "dropped" the victim. The victim rushed the codefendant again and grabbed on to the latter's waist, pinning his arms to his side. Both stumbled into the bedroom wall. The victim tried to wrestle the codefendant, which the codefendant described as the victim "wrestling with his self [sic]" due to the differences in their weights. The codefendant testified that this effort by the victim "wasn't really doing nothing" until the victim tried to throw the codefendant along with himself through the window, but a blanket hung over it kept both inside the room.8 At that point, the codefendant believed he was fighting for his life. The codefendant freed his arms, although the victim continued to hold onto his waist, and the codefendant began "wailing on [the victim's] backside" with all his strength with his fists, "fighting for [his] life." The victim loosened his grip on the codefendant's waist and the codefendant tried to push him back, but the victim came forward towards the codefendant. The codefendant grabbed the victim's shoulders, and while holding on to him, kneed him several times in the chest, and possibly in the face, using both knees and all the force he could muster. As the codefendant began kneeing the victim, the latter let go of the codefendant. The codefendant repeated that he was "fighting for his life" and "trying to get [the victim] off [him]" while he was kneeing the victim. The victim rose up and put his arms up. Fearing that the victim was coming at him again, the codefendant "defended [him]self" and "was fighting for his life" by "open[ing] fire on [the victim's] chest" and the latter fell back, hitting the ground. The codefendant stepped over the victim's feet, left the room and slammed the door. The women asked the codefendant what had happened and he replied that he "had to fight with [the victim]." When asked at trial if he noticed that the victim was having trouble breathing during their confrontation, the codefendant testified that he was "trying to defend [him]self" and observed the victim only to the extent that he noticed when the latter was coming at him.
SUMMARY OF PETITIONER'S CONTENTIONS
Petitioner contends:
1. Petitioner's trial counsel assertedly was ineffective for allegedly failing to:
(a) obtain a jury instruction regarding voluntary intoxication in connection with voluntary manslaughter;
(b) obtain a jury instruction regarding voluntary manslaughter as an unintentional killing while committing an inherently dangerous felony;
(c) obtain a jury instruction regarding voluntary manslaughter "based on sudden quarrel/heat of passion";
(d) object to jury instructions regarding the prosecution theory of "natural and probable consequences"; and
2. The trial court assertedly erred in failing to give certain additional jury instructions regarding voluntary manslaughter.9
STANDARD OF REVIEW
Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 132 S.Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts . . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. at 407 (citation omitted).
"In order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been `objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 131 S.Ct. 770, 786 (2011). This is "the only question that matters under § 2254(d)(1)." Id. (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. at 786-87 ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement."). "AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burt v. Titlow, 134 S.Ct. 10, 16 (2013).
In applying these standards, the Court looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011) (citation, quotations and brackets omitted). If the state court did not decide a federal constitutional issue on the merits, this Court must consider that issue under a de novo standard of review. See Scott v. Ryan, 686 F.3d 1130, 1133 (9th Cir. 2012), cert. denied, 134 S.Ct. 120 (2013).
Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
DISCUSSION
I. Petitioner is Not Entitled to Habeas Corpus on His Claim of Ineffective Assistance of Trial Counsel.
To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 697 (1984) ("Strickland"). A reasonable probability of a different result "is a probability sufficient to undermine confidence in the outcome." Id. at 694. The court may reject the claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; see Gentry v. Sinclair, 705 F.3d 884, 889 (9th Cir.), cert. denied, 134 S.Ct. 102 (2013) ("[f]ailure to meet either [Strickland] prong is fatal to a claim"); Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other.") (citation omitted). If a reviewing court can conceive of a reasonable explanation for counsel's action or inaction, the court need not determine the actual explanation. Morris v. California, 966 F.2d 448, 456-67 (9th Cir.), cert. denied, 506 U.S. 831 (1992).
Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford, 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (quoting Strickland, 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. The court may "neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight. . . ." Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.") (citations omitted). Petitioner bears the burden to show that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 131 S. Ct. at 787 (citation and internal quotations omitted); see Strickland, 466 U.S. at 689 (petitioner bears burden to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy") (citation and quotations omitted).
A state court's decision rejecting a Strickland claim is entitled to "a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Harrington v. Richter, 131 S. Ct. at 785. "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. at 788.
"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently." Id. at 791-92 (citations omitted). Rather, the issue is whether, in the absence of counsel's alleged error, it is "`reasonably likely'" that the result would have been different. Id. at 792 (quoting Strickland, 466 U.S. at 696). "The likelihood of a different result must be substantial, not just conceivable." Id.
Under these standards, Petitioner's claims of counsel's ineffectiveness, considered individually or in combination, do not merit federal habeas relief.
A. Voluntary Intoxication
Petitioner vaguely alleges that among the jury instructions counsel failed to obtain were "pinpoint instructions on voluntary intoxication," apparently as related to the offense of voluntary manslaughter (Petition, Attachment A, pp. 1-2, 11). The trial court instructed that the jury could consider "evidence, if any, of a defendant's voluntary intoxication . . . only in deciding whether a defendant acted with intent to kill or a defendant acted with deliberation and premeditation" (R.T. 700). As discussed below, counsel's failure to obtain additional or different instructions regarding voluntary intoxication was neither unreasonable nor prejudicial.
Section 29.4 of the California Penal Code expressly limits the relevance of voluntary intoxication evidence to "the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." Thus, the relevance of voluntary intoxication to issues regarding voluntary manslaughter is extremely limited under California law. See People v. Boyer, 38 Cal.4th 412, 469 n.40, 42 Cal.Rptr.3d 677, 133 P.3d 581, cert. denied, 549 U.S. 1021 (2006) ("it now appears that defendant's voluntary intoxication, even to the point of actual unconsciousness, would not prevent his conviction of second degree murder on an implied malice theory, or voluntary manslaughter based on his or her potentially lethal act committed with `conscious disregard' for life, in response to provocation or as the result of an honest, though unreasonable, belief in the need for self-defense"); Pople v. Timms, 151 Cal.App.4th 1292, 1300, 60 Cal.Rptr.3d 677 (2007) ("voluntary intoxication is irrelevant to proof of the mental state of implied malice or conscious disregard"). Petitioner's counsel plainly was not ineffective for failing to obtain a voluntary intoxication/voluntary manslaughter instruction that would have been contrary to California law. See Gonzalez v. Yates, 2013 WL 1390034, at *14 (C.D. Cal. March 1, 2013) (no ineffective assistance of counsel for failing to request an instruction that the jury could consider the petitioner's voluntary intoxication in determining whether the petitioner had the requisite state of mind to act in conscious disregard for human life).
Furthermore, a defendant is entitled to a voluntary intoxication instruction "only when there is substantial evidence of the defendant's voluntary intoxication and the intoxication affected the defendant's `actual formation of specific intent.'" People v. Williams, 16 Cal.4th 635, 677, 66 Cal.Rptr.2d 573, 941 P.2d 752 (1997), cert. denied, 523 U.S. 1027 (1998) (citation omitted). A voluntary intoxication instruction is not required in the absence of evidence showing that the defendant "became intoxicated to the point he [or she] failed to form the requisite intent." People v. Ivans, 2 Cal.App.4th 1654, 1661, 4 Cal.Rptr.2d 66 (1992).
In the present case, there was insufficient trial evidence to support a voluntary intoxication instruction with respect to Petitioner. Petitioner did not testify at trial. None of the witnesses who did testify at trial offered any estimate regarding the volume of alcohol consumed by Petitioner. Codefendant thought that Petitioner had been the designated driver when the group went to the store to buy more alcohol (R.T. 479). Although there was evidence Petitioner drank some alcohol prior to the killing, there was no substantial evidence to support the conclusion that Petitioner was "intoxicated to the point [she] failed to form the requisite intent." Therefore, counsel's alleged failure to request a voluntary intoxication instruction (or, rather, an additional voluntary intoxication instruction)10 was neither unreasonable or prejudicial. See People v. Williams, 16 Cal. 4th at 677 ("A defendant is entitled to [a voluntary intoxication instruction] only when there is substantial evidence of the defendant's voluntary intoxication and the intoxication affected the defendant's actual formation of specific intent. . . . Assuming this scant evidence of defendant's voluntary intoxication would qualify as substantial, there was no evidence at all that voluntary intoxication had any effect on defendant's ability to formulate intent.") (internal quotations omitted); see also Gore v. Dugger, 763 F.Supp. 1110, 1130 (M.D. Fla. 1989), aff'd 933 F.2d 904 (11th Cir. 1991), cert. denied, 502 U.S. 1066 (1992) (the petitioner was not prejudiced by counsel's failure to present a voluntary intoxication defense where there was no direct evidence of intoxication and the circumstantial evidence was not extremely strong).11
B. Theory of Voluntary Manslaughter as an Unintentional Killing While Committing an Inherently Dangerous Felony
Contrary to Petitioner's contention, under California law "a killing without malice in the commission of an inherently dangerous assault of felony is not voluntary manslaughter." People v. Bryant, 56 Cal.4th 959, 971, 157 Cal.Rptr.3d 522, 301 P.3d 1136 (2013). Accordingly, counsel's alleged failure to seek a jury instruction on this theory of voluntary manslaughter was neither unreasonable nor prejudicial. See Cornish v. Brazleton, 2014 WL 1457768, at *1-2 (C.D. Cal. April 15, 2014) (California law does not approve the theory of voluntary manslaughter as an unintentional killing while committing an inherently dangerous felony; hence, the failure to instruct the jury on this theory cannot merit federal habeas relief); White v. Biter, 2013 WL 5651547, at *5 (C.D. Cal. Oct. 15, 2013) (same).12
C. Voluntary Manslaughter Based on Theory of Sudden Quarrel/Heat of Passion
Contrary to Petitioner's contention, counsel for Petitioner (as well as counsel for the codefendant) did request jury instructions regarding voluntary manslaughter based on a theory of sudden quarrel/heat of passion (R.T. 649, 654, 659). Therefore, this aspect of Petitioner's claim of ineffective assistance of counsel fails at the threshold.
Moreover, the California Court of Appeal (like the trial court) ruled that there was insufficient evidence to give the instruction as a matter of California law (Lodgment 6 at pp. 26-28). This federal Court should defer to the California state courts' rulings on the sufficiency or insufficiency of the trial evidence to support jury instructions under California state law. See, e.g., Jones v. Paramo, 2014 WL 808763, at *5 (C.D. Cal. Feb. 24, 2014) (and authorities cited therein). Therefore, the trial court committed no error in declining to give an instruction regarding voluntary manslaughter based on a theory of sudden quarrel/heat of passion.
Further, Petitioner suffered no prejudice from the trial court's denial of counsel's request for such an instruction. The trial court did instruct the jury that "[a] decision to kill rashly and impulsively or without careful consideration is not deliberate and premeditated" and that provocation may reduce a first degree murder to a second degree murder (R.T. 695). Nevertheless, the jury found Petitioner and the codefendant guilty of first degree murder. See Henderson v. Kibbe, 431 U.S. 145, 155-57 (1977) (habeas relief for an omitted instruction not warranted when the "jurors would have responded to [the omitted instruction] consistently with their determination of the issues that were comprehensively explained" in the remaining instructions). Even if Petitioner's counsel somehow had persuaded the trial court to give voluntary manslaughter instructions based on a theory of sudden quarrel/heat of passion, there is no reasonable probability the jury would have returned a more favorable verdict.
D. "Natural and Probable Consequences"
Petitioner argues counsel should have objected to jury instructions regarding the prosecution theory of "natural and probable consequences." In actuality, it appears counsel for Petitioner did object to these instructions (R.T. 657). Petitioner also argues the evidence was insufficient to support the instructions, the instructions misstated California law and/or the instructions impermissibly lightened the prosecution's burden of proof.
Assuming, arguendo, Petitioner's counsel failed to object to jury instructions regarding "natural and probable consequences," any alleged failure was neither unreasonable nor prejudicial, as discussed below. Under the "natural and probable consequences" theory of aiding and abetting, an aider and abettor is guilty not only of the intended crime, but also of any other offense that was the natural and probable consequence of the target crime aided and abetted. People v. Prettyman, 14 Cal.4th 248, 261, 58 Cal.Rptr.2d 827, 926 P.2d 1013 (1996). Under this theory of aiding and abetting, "the trier of fact must find that the defendant, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of a predicate or target offense; (3) by act or advice aided, promoted, encouraged or instigated the commission of the target crime." Id. at 262. "A defendant guilty as a aider and abettor under the `natural and probable consequences' doctrine need not share the perpetrator's intent to kill." People v. Williams, 16 Cal. 4th at 691. In determining whether charged crimes were the natural and probable consequence of target crimes, the issue is not whether the aider and abettor "actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable." People v. Medina, 46 Cal.4th 913, 920, 95 Cal.Rptr.3d 202, 209 P.3d 105 (2009) (citations and internal quotations omitted; original emphasis); see People v. Olguin, 31 Cal.App.4th 1355, 1379-80, 37 Cal.Rptr.2d 596 (1994) (as long as the evidence shows an intent to aid and abet the target crime, "it matters not that the crime actually committed was not intended by the aider and abettor, so long as it was a reasonably foreseeable consequence of the underlying criminal conduct"). "A reasonably foreseeable consequence is to be evaluated under all the factual circumstances of the individual case . . . and is a factual issue to be decided by the jury." People v. Medina, 46 Cal. 4th at 920 (citations omitted).
In the present case, the jury could have inferred, from evidence of Petitioner's statements and actions before, during and after the codefendant's vicious beating of the victim, that Petitioner aided and abetted the beating and that the victim's death was the natural and probable consequence of the beating. Therefore, as the California Court of Appeal reasonably found, the trial evidence sufficiently supported a theory of natural and probable consequences (Lodgment 6 at pp. 11-21). Hence, counsel was not ineffective for having failed to prevent the giving of the challenged instructions.
To the extent Petitioner challenges the accuracy of the "natural and probable consequences instructions" as a matter of California law, no federal habeas remedy is available. "[I]nstructions that contain errors of state law may not form the basis for federal habeas relief." Gilmore v. Taylor, 508 U.S. 333, 342 (1993); see also Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) ("the fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief"); Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988) (instructional error "does not alone raise a ground cognizable in a federal habeas corpus proceeding").
Petitioner also appears to argue that California's "natural and probable consequences doctrine" violates the federal constitution because the doctrine assertedly lessens the prosecution's burden of proof. Perhaps Petitioner intends to imply that counsel should have made this constitutional argument in objecting to the giving of the instructions. Petitioner's arguments lack merit. Under California law, "a defendant whose liability is predicated on his [or her] status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator." People v. Prettyman, 14 Cal. 4th at 261 (internal quotations omitted). Hence, an accomplice's liability for the natural and probable consequences of the "target crime" presents a "question of legal causation which is independent of any intent that the result in question occurred." People v. Francisco, 22 Cal.App.4th 1180, 1190, 27 Cal.Rptr.2d 695, 701 (1991). Because intent to bring about the result that occurred is not an element, a "natural and probable consequences" jury instruction does not remove from the jury's consideration any "essential element" of intent to commit the perpetrator's actual crime(s). See People v. Prettyman, 14 Cal. 4th at 271-72; People v. Cox, 53 Cal.3d 618, 669, 280 Cal.Rptr. 692, 720, 809 P.2d 351 (1991), cert. denied, 502 U.S. 1062 (1992), disapproved on other grounds, People v. Doolin, 45 Cal.4th 390, 87 Cal.Rptr.3d 209, 198 P.3d 11, cert. denied, 558 U.S. 863 (2009).
II. The Trial Court's Failure to Instruct the Jury Further Regarding Voluntary Manslaughter Does Not Merit Federal Habeas Relief.
Petitioner may argue that the trial court erred by failing to give additional13 jury instructions regarding the lesser included offense of voluntary manslaughter. Petitioner's argument does not merit federal habeas relief.
First, the United States Supreme Court expressly has declined to rule whether federal habeas relief is available for a court's failure to instruct on a lesser included offense in a noncapital case. See Beck v. Alabama, 447 U.S. 625, 638 n.14 (1980); see Powell v. Hatcher, 407 Fed. App'x 226, 227 (9th Cir.), cert. denied, 131 S.Ct. 2467 (2011) (denying habeas relief, noting that in Beck the Supreme Court expressly declined to rule on the issue); Huynh v. Hernandez, 2007 WL 186307, at *1 (9th Cir. Jan. 22, 2007) (failure to instruct on lesser offense of involuntary manslaughter did not merit habeas relief; "there is no `clearly established' Supreme Court law that requires giving a lesser-included offense instruction in a non-capital case") (citations omitted); see also Dansby v. Trombley, 369 Fed. App'x 657, 660 (6th Cir. 2010) ("the Supreme Court has never held that due process requires the giving of jury instructions on lesser-included offenses in noncapital cases"). Therefore, under the standard of review set forth in 28 U.S.C. section 2254(d)(1), habeas relief is unavailable on this claim. See Moses v. Payne, 555 F.3d 742, 758-59 (9th Cir. 2009) (habeas relief unavailable where the Supreme Court had articulated no "controlling legal standard" on the issue); Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir.), cert. denied, 555 U.S. 871 (2008) (where Supreme Court "expressly left [the] issue an `open question,'" habeas relief unavailable).
Second, and in any event, a claim challenging a state court's failure to give a lesser included offense instruction "`fails to present a federal constitutional question and will not be considered in a federal habeas corpus proceeding.'" Powell v. Hatcher, 407 Fed. App'x at 227 (quoting James v. Reese, 546 F.2d 325, 327 (9th Cir. 1986)).
Third, this Court defers to the California Court of Appeal's reasonable determination that insufficient evidence supported the sudden quarrel/heat of passion theory of voluntary manslaughter Petitioner appears to argue. A court does not violate a defendant's constitutional right by declining to instruct on a theory unsupported by the evidence. See, e.g., Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000), cert. denied, 534 U.S. 839 (2001).
Fourth, and finally, the jury's rejection of the provocation/second degree murder alternative afforded in the court's instructions demonstrates that the failure to provide an additional voluntary manslaughter alternative was harmless. See generally Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (trial-type error warrants habeas relief only if the error had a "substantial and injurious effect or influence" in determining the jury's verdict).
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.
