JAMES K. SINGLETON, Jr., Senior District Judge.
Rammel Barao, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Barao is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at Pleasant Valley State Prison. Respondent has answered, and Barao has replied.
On June 19, 2009, Barao and his co-defendant, Vandell Johnson, Jr., were jointly charged with the murder of Juan Carlos Lorenzo (count 1) and the robbery of Lorenzo and Lorenzo's companion, Domingo Moyotl (counts 2 and 3). The information also alleged that Barao committed the murder during the commission of a robbery and intentionally and personally discharged a firearm causing great bodily injury. With regards to counts 2 and 3, the information again alleged that Barao intentionally and personally used and discharged a firearm causing great bodily injury. Barao was separately charged in count 4 with possession of a firearm by an ex-felon and in count 5 with unlawful possession of ammunition. It was further alleged that Barao had been previously convicted of two serious felonies and had served a prior separate term in state prison. Barao entered not guilty pleas to the charges and denied the enhancements. On direct appeal of his conviction, the California Court of Appeal described the following events underlying the charges against Barao:
People v. Barao, 160 Cal.Rptr.3d 506, 508-09 (Cal. Ct. App. 2013).
Barao attempted to negotiate a plea deal with the prosecution. The Court of Appeal also described the following facts underlying those negotiations:
Id. at 509-10 (footnote omitted).
On July 19, 2010, Barao and Johnson proceeded to a joint jury trial. On September 3, 2010, the jury found Barao guilty of second-degree murder (count 1) and found true the firearm enhancements attached to that charge. Barao was also convicted on the possession charges (counts 4 and 5), but acquitted of the robbery charges (counts 2 and 3).
Through counsel, Barao appealed his conviction, arguing that the trial court: 1) abused its discretion when it denied the prosecution's motion to amend the information and declined to accept the proposed plea bargain; and 2) erroneously refused to instruct the jury on involuntary manslaughter. On August 5, 2013, the California Court of Appeal issued a partially-published, reasoned opinion rejecting Barao's claims and affirming his judgment in its entirety. Barao, 160 Cal. Rptr. 3d at 511. Barao petitioned the California Supreme Court for review, which was summarily denied on September 16, 2013. Barao's conviction became final on direct review 90 days later, when his time to file a petition for certiorari in the Supreme Court expired on December 16, 2013. See Jiminez v. Quarterman, 555 U.S. 113, 119 (2009); Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999).
Barao timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on December 10, 2014.
In his pro se Petition before this Court, Barao raises the two grounds for relief he unsuccessfully brought before the state courts. First, he argues that the trial court erred when it refused to accept the proposed plea bargain and denied the prosecution's motion to amend the information. He additionally contends that the trial court improperly declined to instruct the jury on involuntary manslaughter.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision." Id. at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court `unreasonabl[y] appli[ed] clearly established Federal law.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the "last reasoned decision" by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Here, the only decision on Simmons' collateral review claims was a summary denial by the California Supreme Court on habeas review, which is an adjudication on the merits and entitled to deference. Harrington v. Richter, 562 U.S. 86, 99 (2011). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Barao first argues that the trial court erred when it refused to allow the prosecution to amend the information and rejected the proposed plea deal. The Court of Appeal considered and denied this claim on direct appeal as follows:
Barao, 160 Cal. Rptr. 3d at 509-11 (citations omitted).
While Barao reasserts this claim before this Court, it is not cognizable on federal habeas review. With respect to his contention that the trial court abused its discretion when it determined that the plea bargain was barred by § 1192.7's prohibition of plea bargaining in serious felony cases and denied the prosecution's proposed amendment based on an improper factor, a state court's abuse of discretion is not a valid basis for federal habeas relief.
Barao's separation of powers argument also must fail on federal habeas review. To the extent that such claim is based on an alleged violation of the separation of powers doctrine embodied in the California Constitution, such claim fails for the same reasons set forth above. And to the extent that the claim is based on the Federal Constitution, such "claim fails for the simple reason that `the concept of separation of powers embodied in the United States Constitution is not mandatory in state governments.'" Ralbovsky v. Kane, 407 F.Supp.2d 1142, 1159 (C.D. Cal. 2005) (quoting Sweezy v. New Hampshire, 354 U.S. 234, 255 (1957)); see also Chromiak v. Field, 406 F.2d 502, 505 (9th Cir. 1969) ("The federal constitutional doctrine of separation of judicial and executive powers applies only to the operation of the federal government and is not binding upon the states."). Accordingly, Barao is not entitled to relief on this claim.
Barao also alleges that trial court committed reversible error due to its failure to instruct the jury on the lesser included offense of involuntary manslaughter. Because jury instructions in state trial are typically matters of state law, federal courts are bound by a state appellate court's determination that a jury instruction was not warranted under state law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (noting that the Supreme Court has repeatedly held that "a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."); see also Williams v. Calderon, 52 F.3d 1465, 1480-81 (9th Cir. 1995). An instructional error, therefore, "does not alone raise a ground cognizable in a federal habeas proceeding." Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1986) (citation omitted).
A challenged instruction violates the federal constitution if there is a "reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde v. California, 494 U.S. 370, 380 (1990). The question is whether the instruction, when read in the context of the jury charges as a whole, is sufficiently erroneous to violate the Fourteenth Amendment. Francis v. Franklin, 471 U.S. 307, 309 (1985). This Court must also assume in the absence of evidence to the contrary that the jury followed those instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000); Richardson v. Marsh, 481 U.S. 200, 206 (1987) (noting the "almost invariable assumption of the law that jurors follow their instructions"); see Francis, 471 U.S. at 323-24 & n.9 (discussing the subject in depth).
It is well-established that not only must the challenged instruction be erroneous but it must violate some constitutional right, and it may not be judged in artificial isolation but must be considered in the context of the instructions as a whole and the trial record. Estelle, 502 U.S. at 72. This Court must also bear in mind that the Supreme Court has admonished that the inquiry is whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that violates the constitution and that the category of infractions that violate "fundamental fairness" is very narrowly drawn. Id. at 72-73. "Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process clause has limited operation." Id. Where the defect is the failure to give an instruction, the burden is even heavier because an omitted or incomplete instruction is less likely to be prejudicial than an instruction that misstates the law. See Henderson v. Kibbe, 431 U.S. 145, 155 (1977). In those cases, the inquiry is whether the trial court's refusal to give the requested instruction "so infected the entire trial that the resulting conviction violates due process." See id. at 156-57; Estelle, 502 U.S. at 72. Moreover, even if the trial court's failure to give the instruction violated due process, habeas relief would still not be available unless the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); California v. Roy, 519 U.S. 2, 5 (1996).
In this case, the jury was instructed on first and second degree murder. Barao also requested CALCRIM No. 580, which relates to involuntary manslaughter. That instruction provides:
The defendant committed involuntary manslaughter if:
CALCRIM No. 580.
When asked what evidence supported the requested instruction, defense counsel stated, "Well, I suppose it could be some sort of negligent discharge or brandishing or something like that may qualify." The trial court replied that "if there were some evidence that the gun went off accidentally, something of that sort, then it seems to me you're right." But the trial court indicated that it did not believe such evidence was in the record. After reviewing the witnesses' statements, the trial court declined to give the instruction because it "f[ound] no evidence to—let alone substantial evidence—to instruct this jury on involuntary manslaughter." Barao challenged that determination on direct appeal. Rather than addressing whether substantial evidence supported the charge, the Court of Appeal concluded that relief was not warranted in any event because Barao could not show that he was prejudiced by the omission, as the jury's second-degree murder finding implicitly rejected Barao's claim that the killing was done without malice, which is a required element of manslaughter.
Barao fares no better on federal habeas review. As an initial matter, Barao did not have a constitutional right to have the jury instructed on any lesser offense. "Under the law of [the Ninth Circuit], the failure of a state trial court to instruct on lesser included offenses in a non-capital case does not present a federal constitutional question." Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998); see also Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000). Furthermore, the United States Supreme Court has never held that a trial court's failure to instruct on a lesser included offense in a non-capital case violates due process of law. Rather, the Supreme Court has held only that a defendant has a constitutional right to have the jury instructed on lesser included offenses in capital cases. Beck v. Alabama, 447 U.S. 625, 638 (1980). In so holding, the Supreme Court expressly declined to state whether that right extended to non-capital cases. Id. at 638 n.14; see also Gilmore v. Taylor, 508 U.S. 333, 361-62 (1993) (Blackmun, J., dissenting) (observing that Beck left open question of whether due process entitles criminal defendants in non-capital cases to have jury instructed on lesser included offenses).
Nevertheless, the Ninth Circuit has stated that "the refusal by a court to instruct a jury on lesser included offenses, when those offenses are consistent with defendant's theory of the case, may constitute a cognizable habeas claim" under clearly established United States Supreme Court precedent. Solis, 219 F.3d at 929. But Barao has not established any basis for the giving of the instruction because, as the trial court reasonably concluded, there was no substantial evidence that the killing amounted to involuntary manslaughter. See Bradley v. Duncan, 315 F.3d 1091, 1098-1100 (9th Cir. 2002) (failure to instruct on a theory of defense may violate due process if substantial evidence was presented to support that defense). Neither of the witnesses (Johnson or Moyotl) testified that Barao was brandishing the pistol in any direction but pointed at Lorenzo, and neither testified that the car was moving in the direction of Barao when the shot was fired. Thus, the omission of the involuntary manslaughter instruction did not violate due process.
Likewise, any purported error in not giving the involuntary manslaughter instruction was harmless because there was no substantial or injurious influence on the jury's verdict. As the Court of Appeal determined, there is no reasonable basis for assuming that, had the jury been instructed on the involuntary manslaughter theory, the verdict would have been any different, given that the jury, in determining that petitioner committed second degree murder, implicitly rejected any theory of involuntary manslaughter. Brecht, 507 U.S. at 623. Based on the foregoing, the Court concludes that no habeas relief is warranted on this ground.
Barao is not entitled to relief on any ground raised in his Petition.
The Clerk of the Court is to enter judgment accordingly.
CAL. PENAL CODE § 1009.
CAL. PENAL CODE § 1192.7(a)(2).
