REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable S. James Otero, 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 August 11, 2016. Respondent filed an Answer on December 6, 2016. Petitioner filed a Traverse on February 13, 2017.
BACKGROUND
A jury found Petitioner guilty of second degree murder (Cal. Penal Code § 187(a)), cultivating marijuana (Cal. Health & Safety Code § 11358), possession of marijuana for sale (Cal. Health & Safety Code § 11359), and possession for sale of a controlled substance (psilocybin) (Cal. Health & Safety Code § 11378) (Reporter's Transcript ["R.T."] 2402-04; Clerk's Transcript ["C.T."] 477-80). The jury found true the allegations that Petitioner committed the drug offenses while armed with a firearm (R.T. 2402-04; C.T. 478-80).1 The sentencing court imposed a term of 15 years to life on the murder count and a concurrent term of seven years on the remaining counts (R.T. 2717-18; C.T. 506-10, 513-16).
The California Court of Appeal affirmed (Respondent's Lodgment 7; see People v. Jackson, 2016 WL 1583600 (Cal. App. Apr. 18, 2016)). The California Supreme Court summarily denied Petitioner's petition for review (Respondent's Lodgment 9).
SUMMARY OF TRIAL EVIDENCE
The following summary is taken from the opinion of the California Court of Appeal in People v. Jackson, 2016 WL 1583600. See Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012), cert. denied, 133 S.Ct. 2766 (2013) (presuming correct statement of facts drawn from state court decision); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state court decision).
On May 9, 2013, the victim Pamela Devitt was taking her morning walk in Littlerock, when she was attacked by four pit bulls. A witness saw the victim on the ground, surrounded by the pit bulls, and called 911. When sheriff's deputies responded to the scene, one of the dogs was still biting the victim, but as the deputies came closer, that dog ran off into the desert. Deputies observed that the victim had puncture wounds on both arms and legs and her scalp had been torn back. When the paramedics arrived shortly afterwards, the victim was surrounded by a large amount of blood but was no longer actively bleeding. The paramedics determined she needed to be transported to the hospital immediately for a blood transfusion. She died on the way to the hospital.
[Petitioner] lived with his mother, on a two acre lot, on 115th street in Littlerock. The incident occurred a few blocks from his house. One of the responding deputies remembered a prior incident when [Petitioner's] pit bulls had attacked horse riders and decided to go to [Petitioner's] house to look for the pit bulls. When the deputies made contact with [Petitioner], he told them he did not have any pit bulls and refused to allow them to check his house. After the deputies obtained a search warrant, four dogs were found inside his house (these four were later determined to not have been involved in the incident), and the four pit bulls involved in the attack were found in [Petitioner's] garage. The four garage pit bulls had blood on their fur and DNA evidence established that the victim's blood was found on each of them.
[Petitioner] had a history of taking in stray dogs dumped in the desert. Prior to the victim's death, dogs from [Petitioner's] house were involved in at least five or six incidents involving humans and horses. Elbert Walden worked as a United States Postal Service (USPS) rural carrier and [Petitioner's] house was on his route. One day in March 2012, as he drove up to [Petitioner's] mailbox, a pit bull on the outside of the fence began barking and jumping on his vehicle. Walden decided not to deliver the mail, and as he tried to drive away, the dog bit the front and back bumper of his mail truck. A "dog letter" was sent to [Petitioner's] house, notifying the occupants that if they did not keep their dogs inside between the hours of nine in the morning and six in the evening, USPS would discontinue mail delivery. [Petitioner] signed and returned the letter and the USPS continued to deliver mail without any subsequent problems.
In January 2013, Epifanio Maldonado and Eladio Lopez were riding their horses past [Petitioner's] house. [Petitioner] was standing outside his property, accompanied by five to 10 pit bulls.2 The dogs started barking and chasing the horses. [Petitioner] called the dogs but they did not return to him. The dogs bit the horses and Maldonado's horse kicked one of the dogs. [Petitioner] then threw rocks toward Maldonado. Maldonado's boots were bitten by the dogs and both horses sustained bite injuries on their legs. Maldonado called 911 after the incident and an officer responded to [Petitioner's] house, informing him that if the riders wanted him to pay for any medical treatment the horses might need, [Petitioner] would be responsible. [Petitioner] was upset that Maldonado and Lopez were riding their horses down his street because he thought it was a private road (the street is a dirt road that [Petitioner] and his neighbors maintain).
Approximately a week after this incident, an Animal Care and Control officer responded to [Petitioner's] home regarding the complaint from Maldonado. The officer saw two pit bulls in [Petitioner's] yard. [Petitioner] was inside and came out to speak with the officer. He told the officer that his yard was secure and that his dogs had not gotten out. He went on to say, "I know there [are] reports of pit bulls that are in the area, and they are not mine." The officer noted that the two pit bulls in the yard were "very friendly" but cited [Petitioner] for not having them licensed. The officer did not see any other dogs at that time and after inspecting the fence, he noted that the fence looked secure.
On April 3, 2013, Cheree Crisp was riding her horse by [Petitioner's] house. She testified that five pit bulls came through an opening in the fence and started biting her horse. One of the dogs jumped on the back of her horse, causing the horse to buck her off. The dogs continued to bite her horse so she let the reins go and the horse ran off. The dogs chased the horse and Crisp ran to a neighbor's house. The neighbor drove her back to her own house. Crisp and her friend Ronda Mortimer then went to find her horse and later called the sheriff's department. A deputy responded and took the report, but the record does not indicate whether the deputy followed up with [Petitioner]. Mortimer went to [Petitioner's] house the next day and told him her neighbor had been attacked by his pit bulls. [Petitioner] claimed he did not have any pit bulls. Crisp sustained a bite mark to her right calf and her horse had gashes on its back legs and skin missing from its nose and mouth.
Towards the end of April 2013, Adalberto Farias was riding his horse by [Petitioner's] house when [Petitioner's] dogs started barking. He saw one dog jump the fence and then three others followed. He rode away and the dogs chased him but did not catch up to his horse. A week later Farias rode by [Petitioner's] house again and the dogs again chased him but stopped following him after 400 or 500 feet. After the second incident, Farias stopped by the home of [Petitioner's] neighbor, Richard Torrez. Torrez was outside his house and Farias told him that [Petitioner's] dogs had gotten loose and chased him. Farias told Torrez that if [Petitioner] needed more fencing, he had some extra chain-link fencing and gave Torrez his address. Later, when [Petitioner] was driving past Torrez's house, Torrez told him that a person on his horse was angry about [Petitioner's] dogs getting out and said he had extra chain-link fence if [Petitioner] needed it.
On approximately May 2, 2013, Karla Rosales and Rodrigo Rodriguez were riding tandem on their horse past [Petitioner's] house. [Petitioner's] dogs started barking and then two came out onto the street, followed by four others. Rosales testified that all six dogs looked like pit bulls, that they were biting at the horse's legs, and they bit the shoelace on Rosales' boot. She also testified that she saw [Petitioner] standing outside of his house but that he did nothing to stop the dogs. Rodriguez, who was sitting behind her on the horse, did not see [Petitioner] during the incident. Rosales and Rodriguez were able to ride away without sustaining any injuries, but their horse had bite marks on its leg.
Gloria Smith and Xavier Villegas moved into a house across the street from [Petitioner] in April 2013. Their mailbox was located in front of [Petitioner's] house, next to his mailbox. Smith testified that she wanted to move her mailbox to her side of the street because she often arrived home late at night and [Petitioner's] dogs made her nervous. Once she saw one of the dogs jumping [Petitioner's] fence and took a picture so that the USPS would allow her to move her mailbox. She testified that [Petitioner's] dogs had not been aggressive with her but that generally she was afraid of big dogs. Villegas testified that they had had no problem with [Petitioner's] dogs but then the prosecutor played a portion of a taped interview with Villegas in which he told the investigator that when they first moved in, the dogs had "rushed, they were attacking me and my wife and our dog." In the taped interview, he also told the investigator he would use a pellet gun to keep the dogs away and that he carried a machete with him when he walked across the street to retrieve his mail.
[Petitioner] testified that in 2012 and again in early 2013, he added fencing to his picket fence to make it more structurally sound and to prevent his dogs from getting out. Most, if not all, of the attacks occurred after the time that [Petitioner] claims the fence repairs were made.
On May 9, 2013, after Animal Care and Control officers removed the dogs from [Petitioner's] home, sheriff's deputies discovered a marijuana growing operation in [Petitioner's] bedroom, a firearm, and psilocybin (a hallucinogenic mushroom).
(Respondent's Lodgment 7, pp. 2-6; see People v. Jackson, 2016 WL 1583600 at *1-3).
PETITIONER'S CONTENTIONS
Petitioner contends:
1. The trial court allegedly violated Petitioner's due process rights by instructing the jury with a murder instruction (CALCRIM 520) without defining the specific legal duty that Petitioner allegedly failed to perform (Ground One); and
2. The evidence allegedly was insufficient to support Petitioner's conviction for second degree murder (Ground Two).
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).
"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, 562 U.S. 86, 101 (2011). This is "the only question that matters under § 2254(d)(1)." Id. at 102 (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. "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." Id. at 103.
In applying these standards to Petitioner's exhausted claims, the Court looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Here, the last reasoned decision is the Court of Appeal's decision on direct review (Respondent's Lodgment 7).
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's Claim of Instructional Error Does Not Merit Federal Habeas Relief.
In Ground One, Petitioner argues that the trial court erred by instructing the jury with CALCRIM 520 without defining the specific legal duty that Petitioner allegedly failed to perform. The bench notes to CALCRIM 520 provide that, when the prosecution's theory of the case is that the defendant committed the murder by failing to perform a legal duty,3 the court may give the following bracketed language:
[(A/An) __________ <insert description of person owing duty> has a legal duty to (help/care for/rescue/warn/maintain the property of/ __________ <insert other required action(s)>) __________ <insert description of decedent/person to whom duty is owed>.
If you conclude that the defendant owed a duty to __________ <insert name of decedent>, and the defendant failed to perform that duty, (his/her) failure to act is the same as doing a negligent or injurious act.]
See CALCRIM 520. In Petitioner's case, the trial court did not instruct the jury with the bracketed language. Instead, the court inserted the phrase "or failed to do a required act" in the standard CALCRIM 520 instruction as follows:
The defendant is charged in Count 1 with murder. ¶ To prove the defendant is guilty of this crime, the People must prove that:
1. The defendant committed an act or failed to do a required act that caused the death of another person; ¶ AND
2. When the defendant acted or failed to do a required act, he had a state of mind called malice aforethought.
There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. ¶ The defendant acted with express malice if he unlawfully intended to kill. ¶ The defendant acted with implied malice if:
1. He intentionally committed an act or failed to do a required act;
2. The natural and probable consequences of the act or failure to do a required act were dangerous to human life;
3. At the time he acted or failed to do a required act, he knew his act or failure to do a required act was dangerous to human life; ¶ AND
4. He deliberately acted with conscious disregard for human life.
Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes the death is committed. It does not require deliberation or the passage of any particular period of time.
An act or failure to do a required act causes death if the death is the direct, natural and probable consequence of the act or failure to do a required act and the death would not have happened without the act or failure to do a required act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence.
There may be more than one cause of death. An act or failure to do a required act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that caused the death. ¶ If you find the defendant guilty of murder, it is murder of the second degree.
See C.T. 459-60 (emphasis added); R.T. 2164-66.
Petitioner argues that trial court's failure to define the specific legal duty Petitioner owed to Devitt, combined with the trial court's use of CALCRIM 580 (defining involuntary manslaughter), assertedly lowered the burden of proof for second degree murder. Petitioner argues that the instructions permitted the jury to find malice where only ordinary negligence existed and where Petitioner had created only a risk of serious bodily injury (rather than a danger to human life). See Petition, Ex. A, pp. 21-31 (citing, inter alia, People v. Knoller, 41 Cal.4th 139, 156, 59 Cal.Rptr.3d 157, 158 P.3d 731 (2007) ("We conclude that a conviction for second degree murder, based on a theory of implied malice, requires proof that a defendant acted with conscious disregard of the danger to human life.")).
The California Court of Appeal rejected Petitioner's claim, finding that "the jury was properly instructed on the elements of second degree murder" (Respondent's Lodgment 7, p. 6). While the Court of Appeal conceded that the instructions "would have been more complete" if the trial court had explicitly instructed the jury on the legal duty Petitioner owed to Devitt to exercise reasonable control over the dogs, any error in failing to make the instructions "more complete" was harmless (id. at p. 7). The Court of Appeal reasoned that the existence of a legal duty is a matter of law to be decided by the court, and the trial court's addition of the "failure to do a required act" language necessarily reflected the court's determination that Petitioner owed Devitt a legal duty. See id. at pp. 7-9. The Court of Appeal also reasoned that, in light of the evidence adduced at trial, it was not reasonably probable that a different result would have occurred if the trial court had defined the specific duty owed:
The evidence established that [Petitioner] had notice his dogs were jumping over his fence, attacking passersby, and that he failed to exercise ordinary care by failing to remedy the situation. In closing, the prosecutor argued to the jury that "[i]t is the owner's job to keep us safe[,]" when the owner knows his dogs are dangerous, and have attacked people. . . .4 The evidence left no doubt that [Petitioner] owed a duty to take reasonable precautions to control his dangerous dogs, that he failed to do so, and that his failure caused the victim's death.
See id. at p. 9.
A. Governing Legal Standards
"[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"). When a federal habeas petitioner challenges the validity of a state jury instruction, the issue is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. at 72; Clark v. Brown, 450 F.3d 898, 904 (9th Cir.), cert. denied, 549 U.S. 1027 (2006). The court must evaluate the alleged instructional error in light of the overall charge to the jury. Middleton v. McNeil, 541 U.S. 433, 437 (2004); Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997), cert. denied, 522 U.S. 1079 (1998). "The relevant inquiry is `whether there is a reasonable likelihood that the jury has applied the challenged instruction' in an unconstitutional manner." Houston v. Roe, 177 F.3d 901, 909 (9th Cir. 1999), cert. denied, 528 U.S. 1159 (2000) (quoting Boyde v. California, 494 U.S. 370, 380 (1990)). In challenging the failure to give an instruction, a habeas petitioner faces an "especially heavy" burden. Henderson v. Kibbe, 431 U.S. at 155.
B. Analysis
The trial court's alleged error in failing to define for the jury Petitioner's specific legal duty does not entitle Petitioner to federal habeas relief. The trial court instructed the jury on all of the required elements of second degree murder, including the requirement that Petitioner have acted with express or implied malice. See C.T. 459; R.T. 2164-66. The trial court correctly defined express and implied malice, including the "conscious disregard for human life" state of mind required for implied malice. See id. The Court of Appeal determined, as a matter of California law, that the jury was properly instructed on second degree murder (Respondent's Lodgment 7, p. 6). This Court cannot revisit that ruling. See Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009) ("We have repeatedly held that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions") (citation and internal quotations omitted); Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) ("state courts are the ultimate expositors of state law").
Contrary to Petitioner's argument, nothing in the jury instructions conceivably could have permitted the jury to convict Petitioner of second degree murder without finding the requisite malice. Indeed, in addition to defining express and implied malice accurately, the jury instructions also clearly and correctly explained that a person who "commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life" is guilty of involuntary manslaughter rather than murder. See C.T. 460; R.T. 2166-67.5 Thus, the Court of Appeal's rejection of Petitioner's instructional claim was not unreasonable. Contrary to Petitioner's argument, there is no reasonable likelihood that the jury applied the instructions to lessen or relieve the prosecution of its burden of proving malice. Under the instructions as given, a finding that Petitioner acted with only "ordinary negligence," or that he created only a risk of serious bodily injury, could not have resulted in a verdict of guilty on the murder charge. The jury is presumed to have followed the court's instructions. See Weeks v. Angelone, 528 U.S. 225, 226 (2000).
For the foregoing reasons, the California Court of Appeal's rejection of Petitioner's claim of instructional error was not contrary to, or an unreasonable application of, any "clearly established Federal law as determined by the Supreme Court of the United States." See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 101 (2011). Petitioner is not entitled to federal habeas relief on this claim.
II. Petitioner's Challenge to the Sufficiency of the Evidence to Support the Second Degree Murder Conviction Does Not Merit Federal Habeas Relief.
In Ground Two, Petitioner argues that the evidence was constitutionally insufficient to support a conviction for second degree murder. Specifically, Petitioner argues that the evidence was insufficient to support the conclusion that Petitioner acted with implied malice.
A. Governing Legal Principles
On habeas corpus, the Court's inquiry into the sufficiency of evidence is limited. Evidence is sufficient unless the charge was "so totally devoid of evidentiary support as to render [Petitioner's] conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment." Fish v. Cardwell, 523 F.2d 976, 978 (9th Cir. 1975), cert. denied, 423 U.S. 1062 (1976) (citations and quotations omitted). A conviction cannot be disturbed unless the Court determines that no "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 317 (1979). A verdict must stand unless it was "so unsupportable as to fall below the threshold of bare rationality." Coleman v. Johnson, 566 U.S. 650, 132 S.Ct. 2060, 2065 (2012).
Jackson v. Virginia establishes a two-step analysis for a challenge to the sufficiency of the evidence. United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). "First, a reviewing court must consider the evidence in the light most favorable to the prosecution." Id. (citation omitted); see also McDaniel v. Brown, 558 U.S. 120, 133 (2010).6 At this step, a court "may not usurp the role of the trier of fact by considering how it would have resolved the conflicts, made the inferences, or considered the evidence at trial." United States v. Nevils, 598 F.3d at 1164 (citation omitted). "Rather, when faced with a record of historical facts that supports conflicting inferences a reviewing 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 must defer to that resolution." Id. (citations and internal quotations omitted); see also Coleman v. Johnson, 132 S. Ct. at 2064 ("Jackson leaves [the trier of fact] broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that [the trier of fact] draw reasonable inferences from basic facts to ultimate facts") (citation and internal quotations omitted); Cavazos v. Smith, 565 U.S. 1, 2 (2011) ("it is the responsibility of the jury — not the court — to decide what conclusions should be drawn from evidence admitted at trial"). The State need not rebut all reasonable interpretations of the evidence or "rule out every hypothesis except that of guilt beyond a reasonable doubt at the first step of Jackson [v. Virginia]." United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted). Circumstantial evidence and the inferences drawn therefrom can be sufficient to sustain a conviction. Ngo v. Giurbino, 651 F.3d 1112, 1114-15 (9th Cir. 2011).
At the second step, the court "must determine whether this evidence, so viewed, is adequate to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt." United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted; original emphasis). A reviewing court "may not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Id. (citations and internal quotations omitted; original emphasis).
In applying these principles, a court looks to state law for the substantive elements of the criminal offense, but the minimum amount of evidence that the Constitution requires to prove the offense "is purely a matter of federal law." Coleman v. Johnson, 132 S. Ct. at 2064.
B. The Elements of Second Degree Murder
Under California law, second degree murder is defined as "the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder." People v. Knoller, 41 Cal.4th 139, 151, 59 Cal.Rptr.3d 157, 158 P.3d 731 (2007) (citations omitted). "Malice is implied when the killing is proximately caused by an act the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life." Id. at 152 (citations and quotations omitted); see also People v. Watson, 30 Cal.3d 290, 296-97, 179 Cal.Rptr. 43, 637 P.2d 279 (1981) (citations omitted); see also Cal. Penal Code § 188 (malice may be express or implied). For example, "[a] person who, knowing the hazards of drunk driving, drives a vehicle while intoxicated and proximately causes the death of another may be convicted of second degree murder under an implied malice theory." People v. Batchelor, 229 Cal.App.4th 1102, 1112, 178 Cal.Rptr.3d 28 (2014).
Implied malice murder need not be premised on an affirmative act. "The omission of a duty is in the law the equivalent of an act [], and thus, a defendant's failure to perform an act that he or she has a legal duty to perform is identical to the defendant's affirmative performance of an act." People v. Latham, 203 Cal.App.4th 319, 327, 137 Cal.Rptr.3d 443, (2012) (citation and internal quotation marks omitted); People v. Burden, 72 Cal.App.3d 603, 618, 140 Cal.Rptr. 282 (1977) ("common law does not distinguish between homicide by act and homicide by omission").
"When a criminal statute does not set forth a legal duty to act by its express terms, liability for a failure to act must be premised on the existence of a duty found elsewhere," such as a "criminal or civil statute" or "a common law duty based on the legal relationship between the defendant and the victim." People v. Heitzman, 9 Cal.4th 189, 198, 37 Cal.Rptr.2d 236, 886 P.2d 1229 (1994) (citations omitted). Here, the trial court implicitly found, and the Court of Appeal explicitly found, that Petitioner owed Devitt a duty to take reasonable precautions to control Petitioner's dangerous dogs. See Respondent's Lodgment 7, pp. 7-9.7
C. Discussion
Petitioner does not appear to challenge the sufficiency of the evidence to prove that four of his dogs killed Devitt. See Petition, Ex. A, p. 36. Petitioner testified that he had eight dogs on his property, including the four dogs found in his garage (R.T. 1803, 1851-52). DNA testing matched the blood on the dogs found in the garage to the blood of Devitt (R.T. 1631-32). Martha Lackey, who witnessed the attack on Devitt, identified the four dogs found in Petitioner's garage as the dogs she saw attacking Devitt (R.T. 1335-38, 1365).
Petitioner knew that his dogs were jumping over or through his fence and roaming freely. In an interview with Sheriff's deputies on the day of the killing, Petitioner denied that the dogs found in the garage were his, but admitted that those dogs could jump over the fence to get in and out of his yard (C.T. 388-89, 391-92, 394, 396-97, 399-400, 1909-10). Petitioner said the dogs "kept on doing it, doing it and doing it" (jumping the fence) and claimed that he "kept on barricading more, as much as [he] could" (C.T. 391).8
Petitioner also knew that on multiple occasions when the dogs jumped over the fence they had attacked those who passed by his property. Henry Walden testified that in March of 2012 Walden was delivering mail when one of Petitioner's aggressive dogs was outside Petitioner's yard (R.T. 400-05, 413, 416). Walden previously had seen this dog jumping up along the fence line while Walden was delivering mail (R.T. 419). While Walden was in his mail truck near Petitioner's mailbox, the dog attacked and bit the front and back bumpers of the mail truck (R.T. 403-05, 413-16). The dog then followed Walden for approximately half a mile (R.T. 405-06). Walden reported the incident, and Petitioner's mail was withheld until Petitioner signed and returned a "dog letter" to resume delivery (R.T. 407-10, 416-17).
Deputy Efrain Godoy talked to Petitioner on January 13, 2013, concerning an attack on two horse riders (Epi Maldonado and Eladio Lopez) earlier that day (R.T. 927-31, 941-42). Godoy told Petitioner that horse riders had reported that Petitioner's pit bulls "attacked their horses and the riders themselves" (R.T. 931). Petitioner told Godoy that every time Petitioner supposedly tried to secure the dogs inside his property the dogs still got out (R.T. 931-32).9
Epi Maldonado testified that he and his friend Eladio Lopez were riding horses on a street near Petitioner's house on January 13, 2013, when five or more pit bulls attacked them (R.T. 631-34, 652-60). Petitioner was there (R.T. 634). The dogs eventually surrounded Maldonado and Lopez (R.T. 635-37). The dogs were trying to bite Maldonado and Lopez, but the horses were jumping and would not let the dogs bite (R.T. 636-37, 639, 643-44). One or two dogs attacked Maldonado's horse on the back of the leg and the horse kicked a dog (R.T. 637-38, 661-62, 668-69). Another dog bit Maldonado's boot (R.T. 637-38, 643). Meanwhile, other dogs were attacking Lopez and his horse (R.T. 639). According to Maldonado, Petitioner threw two rocks at Maldonado's head and yelled, "Get out of here. You guys don't live here" (R.T. 639-43, 646, 663-68). Lopez reportedly had to move his head to avoid being hit on the head by the rocks (R.T. 642). Lopez fled on his horse, and all of the dogs ran after him (R.T. 644-45). Maldonado rode away and called 911 (R.T. 645-47, 649-50; see also C.T. 358-61 (transcript of 911 call played for the jury)). Maldonado feared that Lopez would get thrown from his horse and be bitten by the dogs (R.T. 648).
Eladio Lopez testified that on January 13, 2013, he was riding with Maldonado when he saw Petitioner with eight to ten dogs outside a fence (R.T. 671-72, 680-84, 906-08). As Lopez and Maldonado got closer to Petitioner, the dogs ran toward them barking (R.T. 671-72, 684, 909). Lopez and his horse began running from one place to another on the street trying to avoid the dogs (R.T. 672-73, 685, 909, 912-13). The dogs bit Lopez's horse in the back when Lopez and his horse ran, while another dog was trying to bite Lopez or his horse in the front (R.T. 674-78, 681, 911-12). Lopez saw Petitioner throw some rocks but never heard Petitioner say anything (R.T. 676-77, 910). Lopez and his horse ran until they reached a house where a woman scared the dogs away with a piece of wood (R.T. 678). The legs of Lopez's horse were "completely full of blood" and the horse had bite marks in the back (R.T. 678, 912). The dogs did not bite Lopez; Lopez protected himself by hitting the dogs with a rope (R.T. 911-12).
Petitioner's neighbor Jon Sauka testified that, in early 2013, he saw three pit bulls surrounding and attacking a horse and rider on the street in front of Sauka's house (R.T. 914-23). All three dogs were jumping up and biting the horse in the rear (R.T. 916-17, 924). The horse looked panicked and the rider looked scared (R.T. 917-18). Sauka and two others threw rocks and swung boards at the dogs to try to get them to stop (R.T. 918-19). Sauka did not see the rider get bitten — Sauka thought the dogs could not get up high enough (R.T. 924).
Cheree Crisp testified she was attacked by pit bulls while riding her horse in April of 2013 (R.T. 998-99, 1003, 1028-29). Five brown pit bulls came out from a house and jumped through an opening at the top of a fence (R.T. 1004-05, 1020-23, 1030-31). The dogs then started biting at Crisp and at her horse, and one dog jumped onto the saddle atop the back of the horse, causing the horse to throw Crisp (R.T. 1005-06, 1031-33). Crisp fell to the ground, and her horse fell on top of her (R.T. 1006-07). The dogs continued biting at the horse (R.T. 1007). Crisp saw all five of the dogs bite her horse on the face and the legs (R.T. 1007). Crisp let go of her horse to permit the horse to run away so the dogs would not kill the horse (R.T. 1008, 1034). The dogs were aggressive and did not stop biting the horse until the horse escaped (R.T. 1008-09). Two dogs were actually hanging off the back end of the horse as the horse ran away (R.T. 1010, 1034-35). Crisp herself was bit in her right calf (R.T. 1008-09, 1035-36). When Crisp later found her horse, the horse had gashes in her back legs, and pieces of skin missing from her nose and mouth (R.T. 1012-17). Crisp identified three of the four dogs recovered from Petitioner's garage as the same dogs that had attacked her and her horse (R.T. 1025-28, 1333, 1337-38, 1367-68).
Ronda Mortimer, Crisp's neighbor and friend, testified that Crisp ran to her door on the day of the attack on Crisp and told her where the attack happened (R.T. 1045). Mortimer knew the house was Petitioner's house; Petitioner is the uncle of Mortimer's granddaughter (R.T. 1045-46). Mortimer called the Sheriff's Department and made a report (R.T. 1046). The next day, Mortimer went with her son to Petitioner's house and told Petitioner that Crisp had been attacked by pit bulls (R.T. 1046). In response, Petitioner denied that he had any pit bulls (R.T. 1046-47). Yet, while Mortimer was at Petitioner's house, a pit bull jumped at the fence trying to "get at" Mortimer and her son (R.T. 1046-47). Petitioner then claimed that his dogs were in the yard and had not gotten out, and also claimed his dogs were mixed breed dogs rather than pit bulls (R.T. 1047). While visiting Petitioner that day, however, Mortimer did see a pit bull there (R.T. 1047).
Neighbor Adalberto Farias testified that he twice had "incidents" riding his horse by Petitioner's house in April of 2013 (R.T. 1054-58). During the first incident, Farias was riding his horse when dogs started barking, one dog jumped through a hole in Petitioner's fence and three other dogs followed (R.T. 1056-61, 1070-72). These dogs were aggressive, so Farias let go of his reins and let the horse run away with him (R.T. 1058, 1062, 1070). The dogs chased, but Farias and his horse got away (R.T. 1062-63). Farias did not report that incident (R.T. 1063-64). The following week, Farias again passed by on his horse and the same dogs again came out after him (R.T. 1063-65, 1071-72). One of these dogs came from the desert; the rest came from Petitioner's property (R.T. 1072). Again, the dogs were aggressive and again Farias fled on his horse (R.T. 1065-66). Farias stopped at the house of Petitioner's neighbor and talked to the neighbor concerning the incidents (R.T. 1066-69, 1073-75). Farias offered to give Petitioner some chain link fencing, because Farias feared what otherwise would occur (R.T. 1066-69, 1073-75). Farias did not want Animal Control to get the dogs, but he also did not want anyone to get hurt (R.T. 1066).
Richard Torrez was the neighbor with whom Farias spoke (R.T. 1204-11). Torrez said that Farias told him he had some problems with dogs getting out at Petitioner's house (R.T. 1211-13). Torres said Farias was "real nice" and offered assistance and material to repair Petitioner's fence (R.T. 1213-14). Torrez initially denied that he had relayed Farias' message to Petitioner, but Torrez later admitted that he had a conversation with Petitioner concerning the matter (R.T. 1214, 1223; see also C.T. 363-68 (transcript of two interviews of Torrez where Torrez said that he told Petitioner about Farias' conversation and told Petitioner they needed to "see about . . . securing them dogs," but Petitioner "didn't say too much").
Another neighbor, Karla Rosales, testified of having ridden tandem on a horse with her husband, Rodrigo Rodriguez, in front of Petitioner's house a week before the killing (R.T. 1224-28). Rosales saw Petitioner outside in front of the house (R.T. 1226, 1232). Six "viciously behaving" pit bulls got out of the fence, one by one, and started attacking Rosales and the horse (R.T. 1227, 1230-31, 1233-40, 1242). In addition to biting the horse, the dogs bit at Rosales' leg, which was the only human body part the dogs could reach (R.T. 1236). Petitioner was watching, but said nothing and did nothing to try to stop the dogs or otherwise help Rosales (R.T. 1232, 1236-38, 1243-44). The horse went wild and tried to get away, and the dogs followed and tried to continue the attack (R.T. 1240-41). The dogs stopped following only after the horse got to another house where people were around (R.T. 1241-42). Rosales and Rodriguez were not injured, but the horse suffered bites and was bleeding (R.T. 1244-46). Rosales reported the attack when she got home (R.T. 1245).10
From the evidence of these many prior attacks, a jury could infer that Petitioner knew his dogs were vicious. A jury could also infer that, by continuing to harbor these dogs after Petitioner knew of these attacks (and by failing to keep the dogs safely secured), Petitioner acted (or failed to do a required act) that caused the death of Devitt.
Petitioner argues that the evidence did not support the conclusion that, by harboring and failing to control or secure the dogs, Petitioner acted with implied malice (i.e., that he deliberately engaged in behavior that was dangerous to human life, knew his conduct was dangerous to human life, and acted with conscious disregard for human life). Petitioner argues that there were no prior instances in which the dogs had caused "significant injuries" to any human or the death of any animal (Id., pp. 33-36). Further, Petitioner argues he had "demonstrated an appreciation for the problem of the dogs leaving the fenced area and continually tried to correct it" (Id., p. 34).11
Viewing the evidence in the light most favorable to the verdict,12 the evidence was sufficient for a rational jury to conclude beyond a reasonable doubt that, by keeping and harboring dogs with vicious propensities, and by failing to secure those dogs, Petitioner deliberately engaged in conduct he knew was dangerous to human life and he acted with conscious disregard for human life. Petitioner admittedly knew that pit bulls generally are stronger than average dogs and have a more "potent" bite (R.T. 1809-10, 1862). Based on repeated, recent experiences, Petitioner plainly knew that his pit bulls were dangerous to others. From these experiences, Petitioner was on actual notice that his dogs were territorial, aggressive and ferocious. There was even evidence that Petitioner, too, was territorial and utterly heedless of the danger to others. Petitioner watched passively as his dogs attacked Rosales (R.T. 1232, 1236-38, 1243-44). Reportedly, Petitioner even joined his dogs in attacking Maldonado, throwing rocks at Maldonado's head and yelling, "Get out of here. You guys don't live here" (R.T. 639-43, 646, 663-68).13 Petitioner testified that he did not think his dogs behaved inappropriately when they attacked Maldonado and Lopez, even though Petitioner admitted that the dogs' behavior toward Maldonado and Lopez had been "violent" (R.T. 1823, 1864).
Furthermore, Petitioner manifested a culpable state of mind through his repeated displays of dishonesty. When confronted by Officer Chisom concerning the attack on Maldonado and Lopez, Petitioner falsely denied the dogs were his and falsely claimed his fence was secure (R.T. 952-55). When confronted by Ronda Mortimer concerning the attack on Crisp, Petitioner falsely claimed that he had no pit bulls and falsely claimed that his dogs had not gotten out of the fence (R.T. 1046-47). When confronted by Animal Control officers on the day of Devitt's killing, Petitioner falsely claimed he had no dogs on the property (R.T. 1310-11, 1378, 1391). Petitioner barred officers from entering his property during the initial investigation (R.T. 1311). Petitioner warned these officers that "whoever entered the property was going into the lion's den" (R.T. 1391). In fact, on the day of the killing, Petitioner had seen his dogs return home bearing bloodstains on their fur (R.T. 1842). Petitioner realized his dogs may have been involved in an attack, so he put the dogs in the garage in an attempt to conceal the dogs from view and to prevent their apprehension (R.T. 1844).14 However, during an interview with sheriff's deputies on the day of the killing, Petitioner denied that the dogs in his garage were even his dogs (R.T. 1910; C.T. 408-29). Petitioner then claimed that the dogs "live in the desert . . . wild like lions" (R.T. 1910, C.T. 419).
Essentially, Petitioner's argument is that the jury could have or should have weighed the evidence differently on the issue of implied malice. However, the conceivability of a different weighing of the evidence is irrelevant to the constitutional sufficiency of the evidence. See, e.g., Flores-Ramirez v. Pollard, 2007 WL 205571, at *4 (E.D. Wisc. Jan. 24, 2007) ("The standard is not whether any rational jury could have acquitted the petitioner; the standard is whether any rational jury could have found him guilty"). Viewed in the light most favorable to the prosecution, a rational jury could have found beyond a reasonable doubt that Petitioner was guilty of second degree murder.15
Like an intoxicated person who decides to drive a car, Petitioner probably did not expect or intend a fatal consequence from his decision to keep vicious dogs and to fail to confine them. And, like the intoxicated person's decision to drive, Petitioner's decision was not certain to produce a fatal consequence in the near term. Like the intoxicated person's decision, however, Petitioner's decision was taken with knowledge of the consequent danger to human life and in conscious disregard of human life (or so, at least, a rational jury could conclude on the evidence presented). Cf. People v. Knoller, 41 Cal.4th 139, 160, 59 Cal.Rptr.3d 157, 158 P.3d 731 (2007); People v. Batchelor, 229 Cal. App. 4th at 1113-15.
The Court of Appeal's rejection of Petitioner's challenge to the sufficiency of the evidence was not contrary to, or an unreasonable application of, any "clearly established Federal law as determined by the Supreme Court of the United States." See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 101 (2011). Petitioner is not entitled to federal habeas relief on this claim.
RECOMMENDATION
For the reasons discussed above, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.
