EDMUND F. BRENNAN, Magistrate Judge.
Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2003 judgment of conviction entered against him in the Sacramento County Superior Court on a charge of second degree murder of a police officer while in the performance of his duties, with an enhancement for use of a firearm. Petitioner raises fifteen separate grounds for federal habeas relief. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
Dckt. No. 18 at 99-108.
Petitioner filed a timely appeal of his conviction in the California Court of Appeal for the Third Appellate District. Resp.'s Lodg. Docs. 1, 2, 3. Therein, he raised the first eleven claims contained in the instant petition. Id. The Court of Appeal affirmed petitioner's judgment of conviction in its entirety in a reasoned decision on the merits of petitioner's claims. Resp.'s Lodg. Doc. 7. On August 1, 2007, petitioner filed a petition for review in the California Supreme Court. Resp.'s Lodg. Doc. 8. That petition was summarily denied by order dated October 17, 2007. Resp.'s Lodg. Doc. 9.
On January 6, 2009, petitioner filed a petition for writ of habeas corpus in the California Superior Court. Resp.'s Lodg. Doc. 10. Therein, petitioner claimed that his trial and appellate counsel rendered ineffective assistance, that the trial court violated his Sixth Amendment right to counsel when it denied his motion for substitution of counsel, and that the cumulative effect of errors at his trial violated his right to due process. Id. The Superior Court denied that petition in a decision on the merits of petitioner's claims. Resp.'s Lodg. Doc. 11.
On May 4, 2009, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District, in which he raised the same claims contained in his habeas petition filed in the California Superior Court. Resp.'s Lodg. Doc. 12. The Court of Appeal summarily denied that petition by order dated May 14, 2009. Resp.'s Lodg. Doc. 13. Petitioner subsequently raised the same claims in a petition for writ of habeas corpus filed in the California Supreme Court. Resp.'s Lodg. Doc. 14; Pet'r's June 30, 2011 "Exhibits," at 1. The Supreme Court denied that petition on November 10, 2009 with a citation to In re Swain, 34 Cal.2d 300, 304 (1949) ("We are entitled to and we do require of a convicted defendant that he allege with particularity the facts upon which he would have a final judgment overturned and that he fully disclose his reasons for delaying in the presentation of those facts"). Resp.'s Lodg. Doc. 15.
Petitioner filed his federal habeas petition in this court on December 2, 2009. Respondent filed an answer on June 30, 2010.
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. ___, ___, 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010))
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.
If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784.
When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
In his first two grounds for relief, petitioner challenges the trial court's refusal to allow him to introduce expert testimony from Dr. Peter Scharf about proper police procedures. Dckt. No.1 at 10-36. In claim one, petitioner argues that the trial court's decision to exclude testimony from Dr. Scharf concerning "whether the police were legally engaged in performance of their duties," and whether "the police were violating various police operations standards," prevented him from presenting his defense, in violation of his Fourteenth Amendment right to due process and his Sixth Amendment rights to confrontation and compulsory process. Id. at 10. In claim two, petitioner contends that the trial court erroneously applied Cal. Evid. Code § 352 to exclude the testimony of Dr. Scharf on these two subjects, in violation of his Fourteenth Amendment right to due process. Id. at 27-36.
The California Court of Appeal rejected these arguments, reasoning as follows:
Dckt. No. 18 at 110-17.
Criminal defendants have a constitutional right, implicit in the Sixth Amendment, to present a defense; this right is "a fundamental element of due process of law." Washington v. Texas, 388 U.S. 14, 19 (1967). See also Crane v. Kentucky, 476 U.S. 683, 687, 690 (1986); California v. Trombetta, 467 U.S. 479, 485 (1984); Webb v. Texas, 409 U.S. 95, 98 (1972); Moses v. Payne, 555 F.3d 742, 757 (9th Cir. 2009). A defendant's right to present a defense stems both from the Fourteenth Amendment right to due process and the Sixth Amendment right "to have compulsory process for obtaining witnesses in his favor." Moses, 555 F.3d at 757. A state violates the Sixth Amendment when it arbitrarily denies a defendant the right to put on the stand a witness whose testimony "would have been relevant and material to the defense." Washington, 388 U.S. at 23.
It is well-established, however, that "the right to present relevant testimony is not without limitation. The right `may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.'" Rock v. Arkansas, 483 U.S. 44, 55 (1987) (quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973)). A criminal defendant "must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Chambers, 410 U.S. at 302. Thus, a criminal defendant "does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). "Even relevant and reliable evidence can be excluded when the state interest is strong." Perry v. Rushen, 713 F.2d 1447, 1450 (9th Cir. 1983).
A state court's evidentiary ruling, even if erroneous, is grounds for federal habeas relief only if it renders the state proceedings so fundamentally unfair as to violate due process. Drayden v. White, 232 F.3d 704, 710 (9th Cir. 2000); Spivey v. Rocha, 194 F.3d 971, 977-78 (9th Cir. 1999); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). A state law justification for exclusion of evidence does not abridge a criminal defendant's right to present a defense unless it is "arbitrary or disproportionate" and "infringe[s] upon a weighty interest of the accused." United States v. Scheffer, 523 U.S. 303, 308 (1998). See also Crane, 476 U.S. at 689-91 (discussion of the tension between the discretion of state courts to exclude evidence at trial and the federal constitutional right to "present a complete defense"); Greene v. Lambert, 288 F.3d 1081, 1090 (9th Cir. 2002). "The Supreme Court has indicated its approval of `well-established rules of evidence [that] permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.'" Moses, 555 F.3d at 757. "A habeas petitioner bears a heavy burden in showing a due process violation based on an evidentiary decision." Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005).
Petitioner is claiming, in essence, that the trial court's discretionary determination to exclude the testimony of Dr. Scharf violated his federal constitutional rights. The United States Supreme Court has not "squarely addressed" whether a state court's exercise of discretion to exclude expert testimony violates a criminal defendant's right to present relevant evidence. See Moses, 555 F.3d at 758, 760. Accordingly, the decision of the California Court of Appeal that the trial court's evidentiary ruling did not violate the Due Process Clause is not contrary to or an unreasonable application of clearly established United States Supreme Court precedent and may not be set aside. Id.
Assuming arguendo that the state court erred under federal circuit law in excluding the testimony of Dr. Scharf, petitioner must still show that the error "had a substantial and injurious effect or influence in determining the jury's verdict" and that petitioner suffered actual prejudice, defined as a "reasonable probability" that the jury would have reached a different result but for the error. See Clark v. Brown, 450 F.3d 898, 916 (9th Cir. 2006) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). See also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (in § 2254 habeas proceeding, federal court must assess prejudicial impact of constitutional error under Brecht "substantial and injurious effect" standard).
For the reasons described by the California Court of Appeal, petitioner has failed to demonstrate that he was precluded from presenting his defense. Petitioner's defense theory was adequately explained for the jury through numerous relevant jury instructions. The additional testimony proposed by petitioner would have been cumulative in some respects and irrelevant in others, as explained by the state appellate court. As such, the testimony was not necessary or appropriate to explain petitioner's defense theory. Further, because several portions of Dr. Scharf's proposed testimony were not relevant to the issues at petitioner's trial, they could have actually confused the jury as to the standards to apply in evaluating petitioner's defense. Under the circumstances of this case, where the proposed testimony was somewhat cumulative and partially irrelevant, there is no reasonable probability its admission into evidence would have resulted in a different outcome at trial.
Petitioner also argues that the exclusion of Dr. Scharf's testimony violated his right to due process because of "the enormous disparity under California law between the right of prosecutors to use expert testimony to fill in the gaps in their cases and to make juries aware of facts bearing on the credibility of trial witnesses and the paucity of such rights when sought to be invoked by defense counsel." Dckt. No. 1 at 24. Petitioner claims that this disparity "tilts the scales of justice." Id. Although petitioner gives a "few examples of the common use of experts by prosecutors," in cases involving gangs and child molestation, petitioner does not specify the California laws to which he refers or explain how these laws "tilt the scales of justice" to the prosecution. Because this claim is vague and conclusory, it must be denied. See Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) ("`[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief'") (quoting James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)).
The trial court's evidentiary ruling excluding the testimony of Dr. Scharf did not deprive petitioner of his right to present a defense and did not violate due process by rendering his trial fundamentally unfair. Accordingly, petitioner is not entitled to relief on his first two claims.
In petitioner's next ground for relief, he claims that the trial court erred when it excluded the testimony of law school professor David Miller on the subject of "aspects of police activity as it relates to the element `lawfully engaged in the performance of duties.'" Dckt. No. 1 at 37. Petitioner argues that Miller's testimony was relevant to the issue of whether the vehicle stop in this case was lawful. Id. The California Court of Appeal denied this claim, reasoning as follows:
Dckt. No. 18 at 117-18.
This claim should be denied for the same reasons set forth in the court's analysis of petitioner's first two claims, set forth above. The decision of the state courts rejecting this claim is not contrary to or an unreasonable determination of United States Supreme Court authority because the Supreme Court has not "squarely addressed" whether a state court's exercise of discretion to exclude expert testimony violates a criminal defendant's right to present relevant evidence. See Moses, 555 F.3d at 760. Further, in light of the jury instructions given at petitioner's trial and the opportunity for the defense to cross-examine petitioner and Officer Hogge about the vehicle stop, the trial court's ruling excluding the testimony of Dr. Miller did not render petitioner's trial fundamentally unfair. See, e.g., Clerk's Transcript on Appeal (CT) 2236-45 (jury instructions given regarding the definition of "performance of official duties," a list of relevant traffic code violations, and the prosecutor's burden of proving beyond a reasonable doubt that the police were engaged in the performance of their duties). Any claim that the trial court violated California law when it erroneously excluded the testimony of Professor Miller does not warrant federal habeas relief. See Estelle, 502 U.S. at 67-68.
For these reasons, petitioner's third claim for relief must be denied.
Petitioner raises several claims involving jury instruction error. After setting forth the applicable legal principles, the court will evaluate these claims in turn below.
In general, a challenge to jury instructions does not state a federal constitutional claim. Engle v. Isaac, 456 U.S. 107, 119 (1982)); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). To warrant federal habeas relief, a challenged jury instruction "cannot be merely `undesirable, erroneous, or even "universally condemned,"' but must violate some due process right guaranteed by the fourteenth amendment." Cupp v. Naughten, 414 U.S. 141, 146 (1973). To prevail on such a claim petitioner must demonstrate "that an erroneous instruction `so infected the entire trial that the resulting conviction violates due process.'" Prantil v. State of Cal., 843 F.2d 314, 317 (9th Cir. 1988) (quoting Darnell v. Swinney, 823 F.2d 299, 301 (9th Cir. 1987)). In making its determination, this court must evaluate the challenged jury instructions "`in the context of the overall charge to the jury as a component of the entire trial process.'" Id. (quoting Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir. 1984)). Further, in reviewing an allegedly ambiguous instruction, the court "must inquire `whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." Estelle, 502 U.S. at 72 (quoting Boyde v. California, 494 U.S. 370, 380 (1990)). Where the challenge is to a refusal or failure to give an instruction, the petitioner's burden is "especially heavy," because "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155 (1977). See also Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (same). In order to prevail on a federal habeas claim, the petitioner must demonstrate that the jury instruction error had "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637-38.
Petitioner's fourth ground for relief claims that the jury instructions given on the subject of "performance of official duties" were insufficient to "convey the legal requirements of a legal stop." Dckt. No. 1 at 45, 46. He argues that the trial court should have given sua sponte additional jury instructions to the effect that a traffic stop may not be prolonged beyond the time period necessary to address the traffic violation, and that a decision to stop an automobile is not reasonable if it was based on inappropriate criteria, such as the race of the driver. Id. at 46-67.
Petitioner contends that the stop of his vehicle was extended beyond the period of time necessary to address the traffic violation (a cracked windshield), and that Officer Hogge was therefore acting outside the scope of his lawful duties when he pulled petitioner over. Petitioner also argues that Officer Hogge stopped his vehicle because he was "a Black male driving a better than average automobile, which amounted to racial profiling." Id. at 53. Petitioner claims that the instructions given to the jury lowered the prosecution's burden of proof, in violation of his right to due process, because they "eliminated significant portions of the legal parameters of lawful police conduct, and the special finding allegation of a murder committed while an officer was engaged in the lawful performance of his duty." Id. at 56. Petitioner contends that the illegality of the traffic stop would "impact [his] right to leave the scene, as well as his perception of his right to use self-defense once Officer Hogge began firing at him." Id. He explains that the information contained in his proposed, but rejected, jury instructions was "the foundation of [his] defense that police had no basis to stop him, and that their conduct from the outset of their encounter was outside of lawful police conduct." Id. at 58. Finally, petitioner argues that his trial counsel's failure to request these instructions constitutes ineffective assistance of counsel. Id. at 57-58.
The California Court of Appeal rejected these arguments, reasoning as follows:
Dckt. No. 18 at 119-123.
A criminal defendant is entitled to adequate instructions on a defense theory of the case provided that the defense theory is supported by law and has some foundation in the evidence. United States v. Thomas, 612 F.3d 1107, 1120 (9th Cir. 2010). See also United States v. Escobar de Bright, 742 F.2d 1196, 1198 (9th Cir. 1984) ("The general principle is well established that a criminal defendant is entitled to have a jury instruction on any defense which provides a legal defense to the charge against him and which has some foundation in the evidence, even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility") (quoting United States ex rel. Peery v. Sielaff, 615 F.2d 402, 403 (7th Cir. 1979)). A criminal defendant also has the right to have a jury resolve disputed factual issues. United States v. Dorrell, 758 F.2d 427, 430 n.2 (9th Cir. 1985). However, where the evidence, even if believed, does not establish all of the elements of a defense, the trial judge need not submit the defense to the jury. Id. at 430.
The California Court of Appeal concluded that the facts of this case did not support the first jury instruction requested by petitioner, to the effect that an officer is not acting within the performance of his duties if he unduly prolongs a traffic stop. This conclusion is not unreasonable. The record does not support petitioner's theory that the detention in this case was prolonged longer than necessary to address the traffic violation which prompted the stop. As noted by the state appellate court, petitioner "took off" before Officer Hogge could even complete his initial questioning. In short, a jury instruction to the effect that a traffic stop may not be prolonged beyond the time period necessary to address the traffic violation was not supported by the evidence in this case and need not have been given by the trial court.
Nor was the state court unreasonable in concluding that due process did not require a jury instruction on racial profiling. As explained by the California Court of Appeal, the United States Supreme Court has held that an officer's subjective reason for a traffic stop is irrelevant to a Fourth Amendment analysis so long as a reasonable person would have reasonable cause to stop a vehicle for a traffic violation. There is no dispute that petitioner's vehicle had a cracked windshield and that this traffic violation was, at least in part, one of the reasons Officer Hogge pulled petitioner over. Under these circumstances, the trial court was not required to inform the jury that petitioner may have been stopped for other, improper reasons, such as his race. Further, the jury instructions given at petitioner's trial adequately and accurately informed the jury of the state of the law on this issue. See Reporter's Transcript on Appeal (RT) at 5773-76.
The jury was aware of petitioner's argument that the initial traffic stop in this case was unlawful. The jury instructions explained the defense theory of the case, informing the jury that "it is no crime to nonviolently resist the unlawful action of a police officer," and that "if a person flees in direct response to an unlawful police action, a peace officer does not engage in lawful police action in subsequently detain[ing] or arresting the person merely because the person has taken flight from the initial unlawful police action." Id. at 5776. The failure to give additional jury instructions which had no basis in the facts and/or the law did not violate petitioner's right to due process.
Finally, because petitioner did not suffer prejudice from the trial court's failure to give the two requested jury instructions on performance of official police duties, petitioner's trial counsel did not render ineffective assistance in failing to request these instructions. Strickland v. Washington, 466 U.S. 668, 693-94 (1984).
In petitioner's next ground for relief, he claims that the trial court violated his right to due process when it denied his request to give a modified version of CALJIC No. 9.27.
The California Court of Appeal denied this claim, reasoning as follows:
Dckt. No. 18 at 123-26.
As set forth above, a defendant is entitled to jury instructions that present the crux of his defense. See Bradley v. Duncan, 315 F.3d 1091, 1098-99 (9th Cir. 2002). In addition, a trial judge must properly instruct the jury regarding the law and all of the elements of the crime. See Hennessy v. Goldsmith, 929 F.2d 511, 514 (9th Cir. 1991). However, there is no entitlement to tailor-made instructions that pinpoint certain aspects of the defense. "`So long as the instructions fairly and adequately cover the issues presented, the judge's formulation of those instructions or choice of language is a matter of discretion.'" United States v. Hernandez-Escarsega, 886 F.2d 1560, 1570 (9th Cir. 1989) (quoting United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985)); see also United States v. Del Muro, 87 F.3d 1078, 1081 (9th Cir. 1996); Duckett v. Godinez, 67 F.3d 734, 743 (9th Cir. 1995) ("it is not reversible error to reject a defendant's proposed instruction on his theory of the case if other instructions, in their entirety, adequately cover the defense theory") (emphasis in original.) The decision whether to give special jury instructions lies within the discretion of the judge, so long as the instructions given encompass the defense theory. See United States v. Hurd, 642 F.2d 1179, 1181-82 (9th Cir.1981).
Assuming arguendo that petitioner's proposed instructions were an accurate statement of California law, so too were the instructions given by the trial court. As summarized by respondent, petitioner's theory of defense was that "Officer Hogge was out of control and made the initial stop without reasonable suspicion," and that Hogge "unnecessarily fired first and used excessive and unlawful force against Petitioner." Dckt. No. 18 at 51. Petitioner's jurors were accurately and fully instructed on the issues relating to this defense. For instance, they were instructed that the prosecution had the burden of proving beyond a reasonable doubt that Officers Hogge and Bean were engaged in the performance of their duties, and that the "performance of their duties" required lawful conduct. RT at 5773, 5778. They were also instructed on the applicable law regarding lawful detention and on applicable violations of the vehicle code. Id. at 5775-76, 5777-8. They were instructed that the California Vehicle Code made it unlawful to drive a vehicle with a cracked windshield only if the windshield impaired the driver's vision. Finally, the jurors were instructed that: (1) "if a person flees in direct response to an unlawful police action, a peace officer does not engage in lawful police action in subsequently detain[ing] or arresting the person merely because the person has taken flight from the initial unlawful police action" (id. at 5776); (2) "a peace officer is not engaged in the performance of his duties if he makes or attempts to make an unlawful arrest or detention or uses unreasonable or excessive force in making or attempting to make the arrest or detention" (id. at 5778); and (3) "if you have a reasonable doubt that officer Hogge was acting in an unlawful manner or was using unreasonable force in the performance of his duties, then you must find that Officer Bean and Officer Hogge were acting unlawfully in the performance of their duties at that time." Id. These instructions fully encompassed and explained petitioner's defense theory and the law regarding lawful vehicle stops. The trial court's decision not to give additional instructions that were either legally incorrect, argumentative, or cumulative did not render petitioner's trial fundamentally unfair. The trial court's refusal to give petitioner's proposed modification to CALJIC No. 9.27 was not contrary to, or an unreasonable application of, clearly established federal law. Accordingly, petitioner is not entitled to relief on this claim.
Petitioner's next claim is that the trial court violated his right to due process when it refused to instruct the jury on the defenses of duress and necessity. Dckt. No. 1 at 65-69. He argues that these instructions "pertained to the jury's ability to find implied malice as to the second degree murder conviction," and were "important to the consideration of [petitioner's] right to depart from his detention after the first stop, since the prosecution relied heavily on the premise that the commission of other alleged misdemeanors upon his departure, such as fleeing a pursuing police office, failure to obey a signal and exhibition of speed, gave police yet another lawful right to stop [petitioner]." Id. at 65. Petitioner argues that if the jury believed he was leaving the scene because Officer Bean told him to leave, or because he was afraid that Officer Hogge was going to shoot him, the officers would not have had legal grounds to pursue him. Id. He also argues that jury instructions on duress and necessity were particularly necessary in light of the following jury instruction which was given by the trial court:
RT at 5776-77. Petitioner argues that the instruction set forth above improperly allowed the jurors to find that, even if he lawfully left the scene because of threats from Officer Hogge, he was later properly subject to detention "because of traffic violations committed while reacting to factors suggesting duress." Dckt. No. 1 at 68. Petitioner contends that an instruction on duress was "necessary to understand the issue of resistance to unlawful police action, and whether police were acting lawfully when pursuing appellant, which is the very event that gave rise to the purported basis to stop him a second time." Id. He argues that an instruction on necessity was also "applicable to the issue of implied malice, as well as the legality of police conduct." Id.
The California Court of Appeal rejected these arguments, reasoning as follows:
Dckt. No. 18 at 126-29.
The decision of the California Court of Appeal rejecting this jury instruction claim is not contrary to or an unreasonable application of United States Supreme Court authority and should not be set aside. Under the circumstances of this case, the trial court's decision not to give jury instructions on duress and necessity did not render petitioner's trial fundamentally unfair. As explained above in connection with petitioner's other claims, the jury instructions as a whole fully explained petitioner's theory of defense, including his theory that his actions were not unlawful because they were in response to improper police actions. Petitioner testified as to the reasons he fled the police after the first stop. Further, petitioner's proposed instructions on duress and necessity were confusing; not applicable to the crimes with which petitioner was charged, either legally or factually; and, in part, contrary to California law. Under these circumstances, petitioner has not met his "heavy burden" of demonstrating that his due process rights were violated by the trial court's failure to give jury instructions on duress and necessity. Accordingly, petitioner is not entitled to relief on this claim.
In his next ground for relief, petitioner claims that the trial court violated his right to due process when it gave an instruction on flight after unlawful police action. Dckt. No. 1 at 70-72. He appears to be claiming that the instruction incorrectly stated the law and was inconsistent with his contention that he fled the police out of necessity and under duress. Id. He explains:
Id. at 71. Petitioner also argues that the trial court failed to explain the "allocation and weight of the burden of proof." Id. at 70.
The California Court of Appeal rejected these arguments, reasoning as follows:
Dckt. No. 18 at 129-31.
This jury instruction claim appears to be concerned solely with the correct interpretation of state law. However, whether or not the jury instruction on flight correctly stated California law or was applicable under California law to the charges against petitioner is not cognizable in this federal habeas petition. This Court is bound by the state court's interpretation of state law. Aponte v. Gomez, 993 F.2d 705, 707 (9th Cir. 1993). Absent some federal constitutional violation, a violation of state law does not provide a basis for habeas relief. Estelle, 502 U.S. at 67-68. Under the circumstances of this case, petitioner has failed to demonstrate that the giving of the jury instruction on flight rendered his trial so fundamentally unfair that it violated the federal Due Process Clause.
Respondent argues that petitioner's claim regarding allocution of the burden of proof is unexhausted, but that it should nevertheless be denied on the merits. See 28 U.S.C. § 2254(b)(2) (an unexhausted claim may be denied on the merits). This court agrees. Assuming arguendo that petitioner's claim in this regard was not exhausted in state court, it should be denied. The jury instructions, as a whole, correctly instructed petitioner's jury on the applicable burden of proof and on petitioner's defense theory. The trial court's failure to give a jury instruction on the allocation of the burden of proof with respect to the defenses of duress and necessity did not render petitioner's trial fundamentally unfair. Petitioner has failed to demonstrate that the state court's ruling on this claim is contrary to or an unreasonable application of United States Supreme Court authority. Accordingly, he is not entitled to relief on this claim.
Petitioner claims that the trial court violated his right to due process and to a unanimous jury when it gave a jury instruction based on People v. Moore, 96 Cal.App.4th 1105, 1118-20 (2002) after the jury informed the judge that it was having trouble reaching a verdict. Dckt. No. 1 at 97-111. Petitioner refers to this instruction given by the trial court as a "mini-Allen charge." Id. at 103. Petitioner is claiming, in essence, that the trial judge gave an improper Allen charge to the jurors and that the charge effectively coerced the jury to reach a unanimous verdict against him in violation of his rights to an impartial jury and a fair trial.
The California Court of Appeal denied this claim, reasoning as follows:
Dckt. No. 18 at 139-47.
A trial judge's instruction to a jury to continue deliberations is impermissible only if the jury was improperly coerced to relinquish their views in favor of reaching a unanimous decision, thus infringing the defendant's right to due process. Lowenfield v. Phelps, 484 U.S. 231, 237-41 (1988); Jiminez v. Myers, 40 F.3d 976, 979-80 (9th Cir. 1993); Locks v. Sumner, 703 F.2d 403, 406 (9th Cir. 1983). A reviewing court considers whether the court's actions and statements were coercive in the totality of the circumstances. Lowenfield, 484 U.S. at 237; United States v. Seawell, 550 F.2d 1159, 1163 (9th Cir. 1977) ("the general test of whether a supplemental jury instruction is in error is to consider all the circumstances to determine if the instruction was coercive") (citation omitted).
United States v. Berger, 473 F.3d 1080, 1089 (9th Cir. 2007) (quoting United States v. Mason, 658 F.2d 1263, 1265 n.1 (9th Cir. 1981)). The Allen charge, "while productive of continued comment and debate, is nevertheless an instruction that has been accepted for many years." Mason, 658 F.2d at 1265. The Allen instruction is most often used in cases of "apparent juror deadlock" to "admonish jurors to keep trying." Id. "In the archetypal Allen charge context, the judge instructs a deadlocked jury to strive for a unanimous verdict." Weaver v. Thompson, 197 F.3d 359, 365 (9th Cir. 1999). "So long as the defendant has offered facts that fairly support an inference that jurors who did not agree with the majority felt pressure from the court to give up their conscientiously held beliefs in order to secure a verdict," a reviewing court must "proceed to the Allen charge analysis." Id.
This court will assume that the trial court's supplemental jury instruction in this case constituted an "Allen charge." "There is . . . nothing talismanic about any single element either making the [Allen] charge valid or invalid; the fundamental question is whether the jury was improperly coerced, thus infringing the defendant's due process rights." Id. The Ninth Circuit Court of Appeals has identified several factors to assist a reviewing court in determining whether a supplemental jury instruction of this kind violates due process: "(1) the form of the instruction, (2) the time the jury deliberated after receiving the charge in relation to the total time of deliberation, and (3) any other indicia of coerciveness." Berger, 473 F.3d at 1090 (quoting United States v. Steele, 298 F.3d 906, 911 (9th Cir. 2002)). See also Weaver, 197 F.3d at 366.
Considering the first factor, the trial judge's supplemental instruction in this case: (1) informed the jurors that they had "the absolute discretion to conduct your deliberations in any way you deem appropriate;" (2) informed the jurors that their "goal as jurors should be to reach a fair and impartial verdict if you are able to do so based solely on the evidence presented" and "without doing violence to your individual judgment;" (3) phrased the judge's comments as suggestions; and (4) emphasized that the trial judge was not "dictating or instructing you as to how to conduct your deliberations." While the instruction informed the jurors that they should not hesitate to change their views, it advised them to do so only if they were "convinced" their prior vote was "wrong." The instruction did not advise the jurors to acquiesce in the majority decision, but stressed that each juror should carefully weigh the evidence and "decide the case for yourself." The form of the instruction, and these comments in particular, minimized any coercive effect the supplemental instruction may have otherwise had. See Navellier v. Sletten, 262 F.3d 923, 943 (9th Cir. 2001) (the "essential question" in determining whether a judge's comments are coercive "is whether the court made clear to the jury that all matters of fact are for its determination"); Moore, 96 Cal.App.4th at 1119. Cf. Jiminez, 40 F.3d at 981 & n.5 (noting that failure to instruct jurors to hold on to conscientiously held beliefs "weighs heavily in favor of the conclusion that the defendant's right to a fair trial and impartial jury has been violated"); Mason, 658 F.2d at 1271 (finding an Allen charge improper where jury was informed that "[i]f, on the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of the judgment which was not concurred in by the majority").
Turning to the second factor, the length of time the jurors in petitioner's case deliberated after receiving the trial court's supplemental instruction suggests that the instruction did not influence or coerce the verdict. It appears from the record that the jury deliberated for another six days after receiving the supplemental jury instruction before returning its guilty verdict. CT 2315-17, 2344. In cases involving far shorter time periods between the supplemental instruction and the verdict, the Ninth Circuit has found no coercive effect resulting from an Allen charge. See, e.g., United States v. Bonam, 772 F.2d 1449, 1450-51 (9th Cir. 1985) (finding no coercion where there was one day in total of deliberation, one-and-a-half hours of which came after Allen charge); United States v. Lorenzo, 43 F.3d 1303, 1307 & n.3 (9th Cir. 1995) (no coercion with five-and-a-half hours of deliberation coming after Allen charge).
Turning to the third factor, this court concludes that there is no other indicia of coercion in this case. The trial court's supplemental instruction was not directed toward a specific juror or set of jurors, but was addressed to the entire jury. Further, the judge did not know which of the jurors were in favor of any particular verdict, he did not ask for a numerical breakdown of the jurors' votes, and he did not know the identity of the problem juror. Under the circumstances presented here, there is no indication from the record that the trial court's charge had a coercive effect on the jury verdict. Cf. United States v. Williams, 547 F.3d 1187, 1206 (9th Cir. 2008) (reversible error to give Allen charge when the trial court is aware of the identity of the holdout juror); United States v. Ajiboye, 961 F.2d 892, 893-94 (9th Cir. 1992) (reversal required if the trial judge "inquires into the numerical division of the jury and then gives an Allen charge," or "if the holdout jurors could interpret the charge as directed specifically at them — that is, if the judge knew which jurors were the holdouts and each holdout juror knew that the judge knew he was a holdout"). This is not a case in which "it's clear from the record that the charge had an impermissibly coercive effect on the jury." Williams, 547 F.3d at 1205.
The decision of the California Court of Appeal rejecting petitioner's claim of coercion of the verdict through jury instruction error is not contrary to or an unreasonable application of the federal due process standards set forth above and should not be set aside. Under the circumstances, and looking at the record as a whole, this court concludes that the trial judge's supplemental instruction did not unduly coerce the jury to render a unanimous verdict or otherwise render petitioner's trial fundamentally unfair. Accordingly, relief on this claim should be denied.
Petitioner claims that his trial should have been moved out of Sacramento County because of adverse pretrial publicity. He contends that the trial court's denial of his motion for a change of venue denied him due process, in violation of the Fourteenth Amendment. Dckt. No. 1 at 73-90.
The California Court of Appeal denied this claim, reasoning as follows:
Dckt. No. 18 at 131-39.
The Sixth Amendment "guarantees to the criminally accused a fair trial by a panel of impartial, `indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722 (1961). See also Green v. White, 232 F.3d 671, 676 (9th Cir. 2000). If prejudicial pretrial publicity makes it impossible to obtain an impartial jury, then the trial judge must grant the defendant's motion for a change of venue. Hayes v. Ayers, 632 F.3d 500, 507-08 (9th Cir. 2011); Gallego v. McDaniel, 124 F.3d 1065, 1070 (9th Cir. 1997); Harris v. Pulley, 885 F.2d 1354, 1361 (9th Cir. 1988). However, jurors are not required to be totally ignorant of the facts and issues involved in a case. Irvin, 366 U.S. at 722; see also Murphy v. Florida, 421 U.S. 794, 800 (1975); United States v. Sherwood, 98 F.3d 402, 410 (9th Cir. 1996). It is sufficient if the jurors can lay aside their impressions or opinions and render a verdict based on the evidence presented in court. Holt v. United States, 218 U.S. 245 (1910); United States v. Dischner, 974 F.2d 1502, 1525 (9th Cir. 1992) (issue is whether jurors could impartially judge the defendant, not whether they remembered the case), overruled on other grounds by United States v. Morales, 108 F.3d 1031, 1035 n.1 (9th Cir. 1997).
The Ninth Circuit employs a two-pronged test to determine if a petitioner's rights to due process and a fair and impartial jury have been violated by excessive and unfair publicity. Gallego, 124 F.3d at 1070; Harris, 885 F.2d at 1361; Hart v. Stanger, 935 F.2d 1007, 1014 (9th Cir. 1991). Specifically, a petitioner must show that prejudice should be presumed or that actual prejudice existed. Turner v. Calderon, 281 F.3d 851, 865 (9th Cir. 2002); Hart, 935 F.2d at 1014 (citing Murphy, 421 U.S. at 800). The Supreme Court recently applied this two-pronged analytical approach in Skilling v. United States, 561 U.S. ___, 130 S.Ct. 2896 (2010).
Prejudice may be presumed if the record "demonstrates the trial venue was saturated with prejudicial and inflammatory publicity about the crime." Gallego, 124 F.3d at 1070; United States v. Croft, 124 F.3d 1109, 1115 (9th Cir. 1997). Prejudice is presumed only in "the extreme case." Skilling, 130 S.Ct. at 2907; Hayes, 632 F.3d at 508; Harris, 885 F.3d at 1361. For instance, in Rideau v. Louisiana, 373 U.S. 723 (1963), prejudice was presumed where the case involved the televising of an in-jail twenty minute interrogation of the defendant by the police in which the defendant confessed to the murder for which he was subsequently convicted. In Estes v. Texas, 381 U.S. 532 (1965), prejudice was presumed where the press was allowed to sit within the bar of the court and to overrun it with television equipment. And in Sheppard v. Maxwell, 384 U.S. 333, 357, 362 (1966), prejudice was presumed where media accounts contained inflammatory, prejudicial information that was not admissible at trial, and where the press involvement significantly interfered with the trial.
Actual prejudice, on the other hand, exists if the jurors demonstrated actual partiality or hostility that could not be laid aside. Skilling, 130 S.Ct. at 2917-23; Hayes, 632 F.3d at 510-11; Harris, 885 F.2d at 1361. "This inquiry focuses on the nature and extent of the voir dire examination and prospective jurors' responses to it." Hayes, 632 F.3d at 510. See also Irwin, 366 U.S. at 728 (actual prejudice found where eight of the twelve empaneled jurors had already formed the opinion that the defendant was guilty, and 268 of the 430 potential jurors were excused for cause because they indicated some degree of belief in the defendant's guilt). Actual prejudice may also be found where the degree of adverse pretrial publicity has created a community-wide sentiment against the defendant, such that the jurors' claims that they can be impartial should not be believed. Id.; Patton v. Yount, 467 U.S. 1025, 1031 (1984).
The duty of a federal court reviewing such a claim in a habeas corpus proceeding is to "make an independent review of the record to determine whether there was such a degree of prejudice against the petitioner that a fair trial was impossible." Harris, 885 F.2d at 1360 (quoting Bashor, 730 F.2d at 1234). To this end, a "reviewing court must independently examine the news reports for volume, content and timing." Harris, 885 F.2d at 1360. A court must also consider whether the jurors had such fixed opinions they could not impartially judge the guilt of the defendant. Patton, 467 U.S. at 1035.
This court accepts petitioner's assertion that there was extensive media coverage of his case. However, after reviewing the state court record, the court finds that the nature of the news coverage was primarily factual and not unduly inflammatory. Negative publicity is not presumptively prejudicial. See Harris, 885 F.2d at 1362; see also Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 554 (1976) ("pretrial publicity even pervasive, adverse publicity does not inevitably lead to an unfair trial"). As noted by the United States Supreme Court in Murphy, 421 U.S. at 801 n.4, "[w]e must distinguish between mere familiarity with petitioner or his past and an actual predisposition against him, just as we have in the past distinguished largely factual publicity from that which is invidious or inflammatory."
Further, although there was one newspaper article about the case published in 2002, most of the media coverage took place several years before jury selection commenced. The coverage was at its most intense the first few months after the crime occurred, which was more than two years prior to trial. "The Supreme Court has repeatedly recognized that the passage of significant time between adverse press coverage and a defendant's trial can have `a profound effect on the community and, more important, on the jury, in softening or effacing opinion.'" Skilling, 632 F.3d at 509 (quoting Patton, 467 U.S. at 1033.) The trial court found that the passage of time between the period of extensive media coverage of this case and the trial date appeared to have diminished the likelihood that the publicity would have any significant impact on the trial. CT at 468. The United States Supreme Court noted in Skilling that "[w]hen pretrial publicity is at issue, `primary reliance on the judgment of the trial court makes [especially] good sense' because the judge `sits in the locale where the publicity is said to have had its effect' and may base her evaluation on her `own perception of the depth and extent of news stories that might influence a juror.'" 130 S.Ct. at 2918 (quoting Mu'Min v. Virginia, 500 U.S. 415, 427 (1991).
After reading the newspaper articles and other material submitted by the petitioner, this court concludes that the record does not reflect a "general atmosphere in the community or courtroom [which was] sufficiently inflammatory and prejudicial to deny [petitioner his] right to a fair and impartial jury at trial." See Harris, 885 F.2d at 1363 (quoting Murphy, 421 U.S. at 802). This court also notes that petitioner did not allege any significant disruption of his trial proceedings by the news media, and he did not renew his motion for change of venue after the conclusion of jury voir dire. The news articles and media coverage of this case certainly did not rise to the level of disruption that supported a presumption of prejudice in Estes, Rideau, and Sheppard. Under these circumstances, prejudice cannot be presumed.
This court also finds that there was no actual prejudice on the part of the jurors at petitioner's trial. While there was extensive information about the case in the local media, the coverage was not nearly so prejudicial as that found in Irvin, which involved a "barrage of newspaper headlines, articles, cartoons and pictures . . . unleashed against . . . [the defendant] during the six or seven months preceding his trial." 366 U.S. at 725-26. During voir dire, and as explained by the California Court of Appeal, most of the prospective jurors could only recall minor details about the case. Although nine of the seated jurors had heard about the case, five of them could not remember what they had read or heard. Those who did remember something, could only recall non-inflammatory details. Every juror who had been exposed to publicity in the case, and who had more than a vague or non-existent memory of what they read, affirmed that they could be impartial, notwithstanding such exposure. See, e.g., RT at 3183, 3216, 3235, 3238, 3246, 3313, 3329-30, 3404, 3407, 3428-29, 3455, 3458, 3494, 3558, 3573, 3589. In any event, "[e]ven where a prospective juror displays some prior knowledge of the facts and issues involved in a case, it is his ability to `lay aside his impression or opinion and render a verdict based on the evidence presented in court' that is crucial." Hayes, 632 F.3d at 511 (quoting Irvin, 366 U.S. at 723.) No juror stated that he or she would be unable to render a fair decision because of the publicity about the case.
For the reasons set forth above, petitioner has failed to show that media coverage of his arrest and trial denied him the right to a fair trial in the venue in which it was conducted. The decision of the California Court of Appeal to the same effect is not contrary to or an unreasonable application of federal law. Because petitioner suffered no presumed or actual prejudice as a result of pretrial publicity, he is not entitled to relief as to this claim.
Petitioner claims that the evidence introduced at his trial was insufficient to support his second degree murder conviction "because the prosecution did not establish implied malice or that [petitioner] killed the victim while engaging in an unlawful act, inasmuch as there is insufficient evidence of whether Officer Hogge fired at [petitioner] before [petitioner] began firing his weapon." Dckt. No. 1 at 91. Petitioner argues that the evidence supports his theory that Officer Hogge fired first and that petitioner fired only later, in self-defense. Id. at 93-95. He argues that the prosecution's theory of the case was not supported by the facts and was "improbable." Id. at 95.
The California Court of Appeal rejected these arguments, reasoning as follows:
Dckt. No. 18 at 108-110.
There is sufficient evidence to support a conviction if, "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). "[T]he dispositive question under Jackson is `whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.'" Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318). A petitioner in a federal habeas corpus proceeding "faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Juan H. v. Allen, 408 F.3d 1262, 1274, 1275 & n.13 (9th Cir. 2005). In order to grant the writ, the habeas court must find that the decision of the state court reflected an objectively unreasonable application of Jackson and Winship to the facts of the case. Id.
The court must review the entire record when the sufficiency of the evidence is challenged in habeas proceedings. Adamson v. Ricketts, 758 F.2d 441, 448 n.11 (9th Cir. 1985), vacated on other grounds, 789 F.2d 722 (9th Cir. 1986) (en banc), rev'd, 483 U.S. 1 (1987). It is the province of the jury to "resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. If the trier of fact could draw conflicting inferences from the evidence, the court in its review will assign the inference that favors conviction. Turner v. Calderon, 281 F.3d 851, 881-82 (9th Cir. 2002). The relevant inquiry is not whether the evidence excludes every hypothesis except guilt, but whether the jury could reasonably arrive at its verdict. United States v. Mares, 940 F.2d 455, 458 (9th Cir. 1991). The federal habeas court determines the sufficiency of the evidence in reference to the substantive elements of the criminal offense as defined by state law. Jackson, 443 U.S. at 324 n.16; Chein, 373 F.3d at 983.
Viewing the evidence in the light most favorable to the verdict, there was sufficient evidence introduced at petitioner's trial to support the jury's verdict. As explained by the California Court of Appeal, Officer Hogge testified that petitioner fired the first shots, killing Officer Bean in the process. Although Hogge's testimony was not completely consistent with the other evidence introduced at trial, the jury apparently found his version of the events more credible that petitioner's version. It was entirely within the jury's prerogative to do this. See Harper v. City of Los Angeles, 533 F.3d 1010, 1023-24 (9th Cir. 2008). The testimony of Officer Hogge was sufficient to support the verdict in this case. See United States v. Gudino, 432 F.2d 433, 434 (9th Cir. 1970) ("The testimony of the one witness, if believed, was sufficient to support the conviction, and the resolution of any question as to his credibility was properly entrusted to the jury").
The conclusion of the state court that sufficient evidence supported the guilty verdict in this case is not contrary or an unreasonable application of United States Supreme Court authority. Accordingly, petitioner is not entitled to relief on this claim.
In petitioner's next ground for relief, he claims that he was denied his due process right to notice of the penal consequences of the charges against him because the second degree murder sentencing enhancement contained in Cal. Penal Code § 190(c), which formed the basis of the sentence he received, was not alleged in the information. Dckt. No. 1 at 112. Petitioner argues that he "did not receive notice from the charging instrument of the penal consequences sought by the prosecution in this case." Id. Petitioner concedes he was given notice of the facts underlying the § 190(c) enhancement by virtue of the firearm enhancement, the special circumstance allegations, and the first degree murder charge contained in the information. Id. at 114-15; see also CT at 231. However, he argues that the prosecution's failure to charge the enhancement in the information was prejudicial because, in general: (1) "the punishment sought by the charging document and the expectations it generates have profound effects on the plea bargaining process;" and (2) "defendants' expectations of particular punishment also have an effect on his decision to exercise important rights, like the right to a trial by jury." Dckt. No. 1 at 116-17. Petitioner argues that it was "unjust" to impose punishment that was "not sought by the charging instrument." Id. at 114. Finally, petitioner argues that § 190(c) "requires that one of four specific facts be charged and found true." Id. at 117.
The California Court of Appeal denied this claim with the following reasoning:
Dckt. No. 18 at 147-65.
The Sixth Amendment to the United States Constitution guarantees a criminal defendant the fundamental right to be clearly informed of the nature and cause of the charges against him in order to permit adequate preparation of a defense. Cole v. State of Arkansas, 333 U.S. 196, 201 (1948). Indeed, "[n]o principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal." Id. See also Lankford v. Idaho, 500 U.S. 110, 127 (1991) (defendant's death sentence set aside because the lack of adequate notice to defendant that the trial court was considering imposing the death penalty "created an impermissible risk that the adversary process may have malfunctioned"); Strickland v. Washington, 466 U.S. 668, 685 (1984) ("a fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding"). "The charging document need not contain a citation to the specific statute at issue; the substance of the information, however, must in some appreciable way apprise the defendant of the charges against him so that he may prepare a defense accordingly." Gautt v. Lewis, 489 F.3d 993, 1004 (9th Cir. 2007). The notice provision of the Sixth Amendment is incorporated within the Due Process Clause of the Fourteenth Amendment and is applicable to the states. Id. at 1003.
Pursuant to the authorities cited above, petitioner was entitled under the Due Process Clause to "reasonable notice and information of the specific charge against him and a fair hearing in open court." Paterno v. Lyons, 334 U.S. 314, 320 (1948). Petitioner had such notice and information. By virtue of the murder charge, the special circumstance allegations, and the weapon enhancement contained in the information, petitioner had notice of the facts that had to be proved in order to impose the § 190(c) sentence enhancement. As noted by respondent, "as Petitioner prepared to defend against the special circumstance allegations he was necessarily preparing to defend against the second degree murder enhancement." Dckt. No. 18 at 86. Petitioner was also on notice that the special circumstance allegations carried a penalty of life imprisonment without the possibility of parole or death. As explained by the California Court of Appeal, petitioner "had notice of both the facts the prosecution sought to prove and the potential consequences if those facts were proved." Id. at 150. In light of this, petitioner was "given a reasonable opportunity to prepare his defense and not be taken by surprise at trial." Id. at 148.
Petitioner has failed to demonstrate that he was unable to defend against the charges, or the possible sentencing consequences of those charges, because of the failure of the prosecution to specifically charge the § 190(c) enhancement. In any event, as noted by the California Court of Appeal, petitioner was sentenced under a less harsh sentencing enhancement that the one alleged in the information. Petitioner does not allege that his defense would have been structured differently had the information contained the § 190(c) allegation. Petitioner has also failed to demonstrate, or to allege, that he was unable to effectively engage in plea negotiations because the information did not allege a § 190(c) enhancement, or that his decision to proceed to trial with a jury was influenced by the lack of a §190(c) enhancement.
Under the circumstances presented here, petitioner received adequate notice of the charges against him and the penal consequences of those charges. Accordingly, he is not entitled to habeas relief on this claim.
Petitioner claims that he was denied his right to the effective assistance of trial counsel because counsel: (1) failed to request an instruction on the lesser offense of "voluntary manslaughter/manslaughter;" (2) failed to conduct sufficient investigation into his case; and (3) forced petitioner to change his trial testimony. Dckt. No. 1 at 119-24. The allegations contained in the petition with respect to these claims are extremely broad and do not explain the underlying facts. Although petitioner informs the court that his declaration provides the relevant facts, id. at 121, there is no declaration attached to the petition before this court. Petitioner did attach a declaration in support of his ineffective assistance of counsel claims to each of his state habeas petitions. See Resp.'s Lodg. Docs. 10, 12, 14. This court will assume that petitioner intended to attach that declaration to the instant petition, and will accept it as support for his claims of ineffective assistance of counsel.
Petitioner first claims in the instant petition that his trial counsel rendered ineffective assistance in failing to request a jury instruction on the "lesser included or related offense" of "voluntary manslaughter/manslaughter." Dckt. No. 1 at 120. In his declaration, petitioner alleges that his trial counsel "failed to request for an lesser included or related offense." Resp.'s Lodg. Doc. 10, Attach. A at consecutive p. 6.
Petitioner also claims that his trial counsel rendered ineffective assistance in "failing to conduct an investigation surrounding the evidence of my case." Dckt. No. 1 at 120. He alleges that his trial counsel "was so ineffective that he supported the prosecution in wrongfully convicting petitioner." Id. at 123. In his declaration, petitioner states that his trial counsel "failed to interview several witnesses who had made personal observations of the shooting." Resp.'s Lodg. Doc. 10, Attach. A at consecutive p. 6. He explains that counsel told him these witnesses "would not make good witnesses because they were drug dealers and users and jury would find them unbelievable." Id. Petitioner complains that his trial counsel "started a meager investigation about four months prior to my trial after being on the case for almost four years." Id.
Finally, petitioner claims that his trial counsel rendered ineffective assistance when he "pressured" him to change his testimony at trial. Dckt. No. 1 at 120. In his declaration, petitioner states that his trial counsel "informed me to change my testimony regarding certain facts of the case and he told me I would get the death penalty if I didn't." Resp.'s Lodg. Doc. 10, Attach. A at consecutive p. 5. Petitioner explains that his attorney "wanted [him] to change certain facts regarding the manner in which I came out of the car, the route I took from the car and in the field as well." Id. at consecutive p. 6.
The last reasoned decision on these claims was rendered by the California Superior Court. Resp.'s Lodg. Doc. 11. The Superior Court ruled as follows:
Id. at 1-2.
To support a claim of ineffective assistance of counsel, a petitioner must first show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687-88. After a petitioner identifies the acts or omissions that are alleged not to have been the result of reasonable professional judgment, the court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521 (2003). Second, a petitioner must establish that he was prejudiced by counsel's deficient performance. Strickland, 466 U.S. at 693-94. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id.
The California Superior Court concluded that petitioner failed to demonstrate prejudice with respect to his claims of ineffective assistance of counsel. This conclusion is not unreasonable. See Knowles v. Mirzayance, 556 U.S. 111, ___, 129 S.Ct. 1411, 1420 (2009) ("the question (in evaluating claims of ineffective assistance of counsel) `is not whether a federal court believes the state court's determination' under the Strickland standard `was incorrect but whether that determination was unreasonable — a substantially higher threshold.'") (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007). With regard to petitioner's claim that his trial counsel improperly failed to request jury instructions on manslaughter, the Superior Court found that the trial court "gave the instructions on manslaughter that petitioner sought." Resp.'s Lodg. Doc. 11 at 2. This finding is supported by the record before this court; petitioner's jury was instructed on voluntary and involuntary manslaughter. See RT at 5780-85. Petitioner has failed to suggest any additional instructions on lesser offenses that his trial counsel should have requested or how he was prejudiced by counsel's inaction. Accordingly, this claim should be denied.
With regard to petitioner's claim of a failure to investigate, the Superior Court essentially concluded that petitioner's allegations were too vague and conclusory to support habeas relief. This court agrees. Petitioner alleges, in general fashion, that his trial counsel failed to conduct sufficient investigation and failed to interview witnesses who had observed the shooting. He also contends that his counsel told him witnesses who used and sold drugs were not credible. These allegations fail to establish either deficient performance or prejudice. See Jones v. Gomez, 66 F.3d 199 at 204. Petitioner does not explain what additional investigation he believes his trial counsel should have conducted. The implication that further investigation by counsel may have uncovered helpful information is insufficient to establish prejudice. Villafuerte v. Stewart, 111 F.3d 616, 632 (9th Cir. 1997) (petitioner's ineffective assistance claim denied where he presented no evidence concerning what counsel would have found had he investigated further, or what lengthier preparation would have accomplished).
Petitioner has also failed to specify the witnesses who should have been interviewed or the information they would have given at trial. His claim that unnamed persons should have been called as witnesses is unduly vague and conclusory. See Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000) (no ineffective assistance of counsel where there was no evidence in the record that a helpful witness actually existed and petitioner failed to present an affidavit establishing that the alleged witness would have provided helpful testimony for the defense); United States v. Berry, 814 F.2d 1406, 1409 (9th Cir. 1987) (appellant failed to meet prejudice prong of ineffectiveness claim because he offered no indication of what potential witnesses would have testified to or how their testimony might have changed the outcome of the hearing). Further, "[t]he decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial." United States v. Nersesian, 824 F.2d 1294, 1321 (2nd Cir. 1987). Reasonable tactical decisions, including decisions with regard to the presentation of the case, are "virtually unchallengeable." Strickland, 466 U.S. at 690. Here, there is no evidence before this court that trial counsel's decisions with respect to the calling of witnesses was unreasonable. Nor was counsel unreasonable in telling petitioner the obvious truth that incredible witnesses should not be called to the stand.
Petitioner has also failed to establish ineffective assistance of counsel with respect to his claim that his trial counsel pressured him to change his testimony. Petitioner has not described the testimony in question or the exact advice given to him by his trial counsel. Nor does he state that any of his trial testimony was false. As noted by the California Superior Court, under these circumstances a reviewing court can only presume that counsel advised petitioner to "testify properly." This does not constitute ineffective assistance.
The decision of the California courts denying petitioner's claims of ineffective assistance of trial counsel is not contrary to or an unreasonable application of Strickland. Accordingly, petitioner is not entitled to relief on these claims.
Petitioner's next claim is that the trial court violated his Sixth Amendment right to counsel when it denied his motion for substitute counsel pursuant to People v. Marsden, 2 Cal.3d 118 (1970). He states that he had an "overriding distrust of his counsel" which "effectively precluded effective communication and representation" and which was "evidenced by petitioner's perceptions that [counsel] not only thought he was guilty, but collaborated with the prosecutor, forced petitioner to change facts regarding his testimony, and engaged in other wicked means to ensure a guilty verdict against him." Dckt. No. 1 at 127.
The state court record reflects that on March 28, 2003, attorney Clyde Blackmon filed a Marsden motion on petitioner's behalf, seeking to discharge petitioner's lead counsel Donald Masuda. CT at 1243-1251 (filed on July 21, 2011, under seal). The motion alleged that Mr. Masuda "had failed to investigate certain issues pertaining to both the guilt and penalty phases of [petitioner's] trial." Id. at 1243-44. In response, on April 10, 2003, attorney Masuda filed a motion to withdraw as counsel for petitioner, arguing that "a conflict exists between himself and the defendant which [has] resulted in a total breakdown of the relationship between the client and attorney." Id. at 1268 (filed on July 21, 2011, under seal). Mr. Masuda also stated that "at this juncture the relationship that once existed between this counsel and Mr. Wright has been irrevocably broken" and that counsel was not able to render effective assistance to petitioner as a result. Id. at 1270.
The trial court conducted a hearing on petitioner's Marsden motion on April 17, 2003. Id. at 2294-2379 (filed on July 21, 2011, under seal). At that hearing, petitioner requested that both lead counsel Mr. Masuda and Keenan counsel
Id. at 2317. Petitioner also stated that "it has been kind of touchy when we communicate as far as my legal defense," and that "out of the four years, three and a half years I have had him on my case, um, when he has something to present to me he came to see me." Id. Petitioner further stated that he "really didn't see" Mr. Masuda much and that he was "not being able to speak directly to Mr. Masuda." Id. at 2318. Petitioner agreed with the trial judge's assessment of the situation, as follows: "you don't believe Mr. Masuda has been making himself available to you enough on a regular basis to that you have a thorough understanding about what's going on in your case." Id. at 2319. Petitioner also stated that he thought "a lot more investigation should have been done." Id. at 2320. He specifically referred to a failure to interview all of the officers at the scene, and unresolved issues regarding "ballistic experts." Id. at 2321. When asked whether he trusted Mr. Masuda, petitioner stated,
Id. at 2322.
At that point, Mr. Masuda explained his defense strategy to the court and to petitioner. Id. at 2324-2336. He also explained internal conflicts and disagreements between petitioner's defense team and the investigators. Id. Counsel stated that he took "strong issue" with petitioner's allegation that he didn't spend enough time with him. Id. at 2328. He agreed that between the time the Marsden motion was filed and the hearing on that motion, he "reduced substantially the communication" between himself and petitioner. Id. at 2336. There then ensued a lengthy discussion about a conflict between counsel McEwan and investigator Cerrito. Id. at 2342-46. Counsel Masuda expressed his intention to "smooth over all the existing problems and make sure [the case] is fully investigated." Id. at 2347. When asked for his closing arguments, petitioner directed his complaints to attorney McEwan. Id. at 2356-58.
After hearing the input of all concerned, the trial judge issued his ruling on the Marsden motion. Id. at 2358. He stated that "the Marsden standard here is whether or not the attorney has acted properly in investigating and preparing the case," and concluded that "any reasonable reading of what's before me in regards to that issue doesn't support terminating Mr. Masuda." Id. at 2359. The trial judge attributed the lack of progress in petitioner's case to "the turmoil that's existed in the defense team for the last few weeks." Id. at 2360. He opined that the failure to make progress on the investigation "has eroded [petitioner's] confidence in Mr. McEwan and the status of the case as whole, whatever the reason." Id. However, the court concluded that "given the totality of his circumstances and specifically the other work that has been done that has been put forth here with regard to the penalty phase, it does not justify or support the granting of a Marsden motion." Id. at 2361. The judge stated, "what it does do, Mr. Masuda, is place upon you a burden to get Mr. McEwan and Ms. Cerrito in a room, posthaste, to resolve this issue and then, as appropriate, have follow-up communication with [petitioner]." Id. He stated:
Id. at 2362. The court also concluded that "it doesn't rise to the level of the kind of breakdown in communication that the Court's — a Marsden request to fire Mr. Masuda and Mr. McEwan and hire new counsel." Id. at 2364. The trial court also concluded that keeping the defense team was in petitioner's best interests and that any problems with communication could be worked out between petitioner and his defense team. Id. at 2378.
The California Superior Court denied petitioner's Marsden claim, along with his claim that his appellate counsel rendered ineffective assistance in failing to challenge the denial of the Marsden motion, with the following reasoning:
Resp.'s Lodg. Doc. 11 at 2.
Under the Sixth Amendment to the United States Constitution, an indigent state prisoner is entitled to the assistance of counsel at every critical stage of the proceedings. Gideon v. Wainwright, 372 U.S. 335 (1963). Such assistance must be effective and competent. Strickland, 466 U.S. at 668. In addition, the Sixth Amendment guarantees a defendant a right to conflict-free representation. See Garcia v. Bunnell, 33 F.3d 1193, 1195 (9th Cir. 1994). However, indigent defendants do not have a constitutional right to be represented by their counsel of choice. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 625 (1989); United States v. Rewald, 889 F.2d 836, 856 (9th Cir. 1989) (recognizing that the right to choice of counsel is limited to defendants who can retain counsel). Nor does the Sixth Amendment guarantee a "meaningful attorney-client relationship." Morris v. Slappy, 461 U.S. 1, 13-14 (1983) (internal quotation marks omitted). "[T]he essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Wheat v. United States, 486 U.S. 153, 159 (1988). "[T]here is no automatic right to a substitution of counsel simply because the defendant informs the trial court that he is dissatisfied with appointed counsel's performance." Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir. 1990).
In reviewing a federal habeas claim based on the denial of a motion for substitution of counsel, "the ultimate constitutional question the federal courts must answer" is whether the state trial court's disposition of the motion violated a petitioner's constitutional rights because the conflict between the petitioner and appointed counsel "had become so great that it resulted in a total lack of communication or other significant impediment that resulted in turn in an attorney-client relationship that fell short of that required by the Sixth Amendment." Schell v. Witek, 218 F.3d 1017, 1026 (9th Cir. 2000). As explained by the Ninth Circuit:
Daniels v. Woodford, 428 F.3d 1181, 1197-98 (9th Cir. 2005).
Here, the state court's decision denying petitioner's Marsden claim was neither contrary to nor an unreasonable application of clearly established Federal law. 28 U.S.C. § 2254(d). As set forth above, the trial court held a thorough and fair hearing on petitioner's motion for substitute counsel. At that hearing, the court allowed petitioner to explain his complaints about counsel, and tested the validity of those complaints by questioning counsel about the nature of the problems. Although petitioner was unhappy with some members of his defense team, it appears that the communication between himself and his lead counsel was satisfactory. It is true that "a defendant's Sixth Amendment right to counsel is violated if the defendant is unable to communicate with his or her counsel during key trial preparation times." Daniels, 428 F.3d at 1197. However, at the conclusion of the hearing on the Marsden motion, counsel pledged to repair the problems within the defense team and work with petitioner. The record reflects no further problems during trial with respect to the communication between petitioner and his defense team. Indeed, at a hearing on June 23, 2003, shortly after the hearing on the Marsden motion, petitioner's lead counsel informed the trial court that he and petitioner had "cleared the air and we are working on the same cylinders here." RT at 2497 (filed on July 21, 2011, under seal). All of this belies any claim that the communication problems between petitioner and his lead counsel had become "irreconcilable."
Breakdowns in the attorney-client relationship that rise to the level of a conflict of interest warranting substitution of counsel have been marked by (1) "a complete communications breakdown," see United States v. Nguyen, 262 F.3d 998, 1004-05 (9th Cir. 2001); (2) an attorney's "open opposition" to his client, including "bad language and threats" to provide substandard performance if the client persisted in demanding to go to trial, that left the defendant "effectively unrepresented," United States v. Adelzo-Gonzalez, 268 F.3d 772, 779 (9th Cir. 2001); or (3) "an atmosphere of mistrust, misgivings and irreconcilable differences." United States v. Moore, 159 F.3d 1154, 1159 (9th Cir. 1998). Although in this case petitioner may have been dissatisfied with some aspects of his defense, the hearing on the motion reflected that there was no irreconcilable conflict warranting removal of counsel. See Plumlee v. Masto, 512 F.3d 1204, 1211 (9th Cir. 2008) (en banc) ("Petitioner has cited no Supreme Court case — and we are not aware of any — that stands for the proposition that the Sixth Amendment is violated when a defendant is represented by a lawyer free of actual conflicts of interest, but with whom the defendant refuses to cooperate because of dislike or distrust"). "The Supreme Court has held that a defendant is constitutionally entitled to a lawyer who is free of conflicts of interest and who can act as a loyal advocate." Id. at 1211. Petitioner received that here. After independently reviewing the record, the undersigned finds that the state court's denial of this claim was not an unreasonable application of clearly established Supreme Court authority. Accordingly, this claim should be denied.
Petitioner claims that he received ineffective assistance of appellate counsel because counsel failed to raise on appeal the two preceding claims (ineffective assistance of trial counsel and improper denial of his Marsden motions). Dckt. No. 1 at 128-29. The California Superior Court denied this claim, reasoning as follows:
Resp.'s Lodg. Doc. 11 at 2.
The Strickland standards apply to appellate counsel as well as trial counsel. Smith v. Murray, 477 U.S. 527, 535-36 (1986); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). However, an indigent defendant "does not have a constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points." Jones v. Barnes, 463 U.S. 745, 751 (1983). Counsel "must be allowed to decide what issues are to be pressed." Id. Otherwise, the ability of counsel to present the client's case in accord with counsel's professional evaluation would be "seriously undermined." Id. See also Smith v. Stewart, 140 F.3d 1263, 1274 n.4 (9th Cir. 1998) (Counsel is not required to file "kitchen-sink briefs" because it "is not necessary, and is not even particularly good appellate advocacy.") There is, of course, no obligation to raise meritless arguments on a client's behalf. See Strickland, 466 U.S. at 687-88 (requiring a showing of deficient performance as well as prejudice). Thus, counsel is not deficient for failing to raise a weak issue. See Miller, 882 F.2d at 1434. In order to establish prejudice in this context, petitioner must demonstrate that, but for counsel's errors, he probably would have prevailed on appeal. Id. at 1434 n.9.
As discussed above, petitioner's Marsden claim and his claims of ineffective assistance of trial counsel lack merit. Thus, appellate counsel's decision to press other claims but not these two claims was "within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771 (1970). Given the lack of merit of the two claims, petitioner has also necessarily failed to demonstrate that he probably would have prevailed if his appellate counsel had raised these claims on appeal. He has therefore failed to establish prejudice. See Rhoades v. Henry, 638 F.3d 1027, 1036 (9th Cir. 2011) (counsel did not render ineffective assistance in failing to investigate or raise an argument on appeal where "neither would have gone anywhere"); Miller, 882 F.2d at 2434 n.9. Accordingly, petitioner is not entitled to relief on this claim.
Petitioner claims that he was denied due process as a result of the cumulative impact of the errors at his trial, including those of trial and appellate counsel. Dckt. No. 1 at 130. The California Superior Court rejected this claim, stating, "finally, a claim of cumulative error fails when other error has not been shown." Resp.'s Lodg. Doc. 11 at 2.
The Ninth Circuit has concluded that under clearly established United States Supreme Court precedent, the combined effect of multiple trial errors may give rise to a due process violation if it renders a trial fundamentally unfair, even where each error considered individually would not require reversal. Parle v. Runnels, 505 F.3d 922, 927 (9th. Cir. 2007) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) and Chambers v. Mississippi, 410 U.S. 284, 290 (1973)). See also Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011) (if no error of constitutional magnitude occurred at trial, "no cumulative prejudice is possible"). "The fundamental question in determining whether the combined effect of trial errors violated a defendant's due process rights is whether the errors rendered the criminal defense `far less persuasive,' Chambers, 410 U.S. at 294, and thereby had a `substantial and injurious effect or influence' on the jury's verdict." Parle, 505 F.3d at 927 (quoting Brecht, 507 U.S. at 637).
This court has addressed each of petitioner's claims raised in the instant petition and has concluded that no error of constitutional magnitude occurred at his trial in state court. This court also concludes that the alleged errors, even when considered together, did not render petitioner's defense "far less persuasive," nor did they have a "substantial and injurious effect or influence on the jury's verdict." Accordingly, petitioner is not entitled to relief on his claim of cumulative error.
For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).
Petitioner's jury received this instruction. RT at 5775-76. They were also instructed that, pursuant to the California Vehicle Code, "it is unlawful to operate any motor vehicle upon a highway when the windshield or rear window is in such a defective condition as to impair the driver's vision either to the front or the rear." Id. at 5778.
"A person is not guilty of a crime when [he][she] engages in an act, otherwise criminal, through necessity. The defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the elements of this defense, namely: [¶] 1. The act charged as criminal was done to prevent a significant and imminent evil, namely, [a threat of bodily harm to oneself or another person] [or] [_______]; [¶] 2. There was no reasonable legal alternative to the commission of the act; [¶] 3. The reasonably foreseeable harm likely to be caused by the act was not disproportionate to the harm avoided; [¶] 4. The defendant entertained a good-faith belief that [his][her] act was necessary to prevent the greater harm; [¶] 5. That belief was objectively reasonable under all the circumstances; and [¶] 6. The defendant did not substantially contribute to the creation of the emergency." (CALJIC No. 4.43.)
