JEFFREY S. WHITE, District Judge.
Petitioner Terrell Love, a prisoner of the State of California, is serving an aggregate sentence of sixty-one years to life in state custody for convictions arising out of a murder in Oakland. Love filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 citing three grounds for relief: (1) burdening Petitioner's Fifth Amendment right not to testify and interfering with Sixth Amendment right to counsel by effectively conditioning expert testimony and instruction on perfect and imperfect self-defense on Petitioner testifying at trial, (2) ineffective assistance of appellate counsel, and (3) unsupported jury instructions that injected a distorting confusion into the case.
Having considered the parties' papers and the accompanying record, the Court hereby DENIES the petition.
Petitioner was originally convicted in 1999 of first-degree murder, attempted murder, and possession of a firearm by a felon. The murder occurred in 1995. This Court granted a petition for writ of habeas corpus in 2008 after finding an error under Batson v. Kentucky, 476 U.S. 79 (1986). In 2009, Petitioner was retried and convicted of second degree murder, attempted murder, and possession of a firearm by a felon. The trial court sentenced Petitioner to sixty-one years to life in prison. On May 24, 2011 the California Court of Appeal affirmed Petitioner's convictions. On June 13, 2011, Petitioner's habeas petition related to the direct appeal was denied summarily by the California Court of Appeal. On September 14, 2011, the California Supreme Court denied review. On January 25, 2012, the California Supreme Court denied Petitioner's habeas petition summarily.
On November 30, 2012, Petitioner filed his petition for writ of habeas corpus in this Court. On November 13, 2013, the Court granted Respondent's motion to dismiss Claim IV as unexhausted and Claim V as procedurally defaulted. Respondent filed his answer on February 3, 2014. On September 26, 2014, Petitioner filed his traverse.
The facts underlying the charged offenses as found by the Court of Appeal are set forth as follows:
(Resp't Ex. 6 at 2-10.)
Federal district court review of habeas corpus petitions is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under the AEDPA, a district court may not grant a habeas corpus petition that challenges a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d).
The AEDPA standard is "highly deferential" to state court decisions, which must be "given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002). "Clearly established federal law" is defined as "the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). "A state court decision is `contrary to' clearly established federal law `if the state court applies a rule that contradicts the governing law set forth in'" Supreme Court decisions or "confronts a set of facts that are materially indistinguishable from a decision of" the Supreme Court and nevertheless reaches a different result. Menendez v. Terhune, 422 F.3d 1012, 1025 (9th Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). A state court decision constitutes an "unreasonable application of clearly established federal law, `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.'" Id. (quoting Williams, 529 U.S. at 413). The state court decision "must be more than incorrect or erroneous" and must be "objectively unreasonable" to constitute an unreasonable application of federal law. Lockyear, 538 U.S. at 75. The AEDPA "sharply limits the circumstances in which a federal court may issue a writ of habeas corpus to a state prisoner whose claim was `adjudicated on the merits in State court proceedings.'" Johnson v. Williams, 133 S.Ct. 1088, 1094 (2013) (quoting 28 U.S.C. § 2254(d)). "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 . . . to the contrary." Harrington v. Richter, 562 U.S. 86, 99 (2011). In cases where the federal court "must decide a constitutional issue not adjudicated on the merits in state court," the federal court "independently reviews the record to determine whether the state court clearly erred in its application of Supreme Court law." Menendez, 422 F.3d at 1025 (citing Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002)).
"Habeas relief is warranted only if the error had a `substantial and injurious effect or influence in determining the jury's verdict.'" DePetris v. Kuykendall, 239 F.3d 1057, 1061 (9th Cir. 2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)).
"It is not within the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). "In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Id. at 68. Factual determinations by California state courts are entitled to a general "presumption of correctness." Sumner v. Mata, 449 U.S. 539, 547 (1981). The Petitioner has the "burden of rebutting the presumption by clear and convincing evidence." Wood v. Allen, 558 U.S. 290, 293 (2010).
The California Supreme Court denied Petitioner's petition for review without comment or citation to authority. (See Resp't Ex. 2.) In these circumstances, a district court "looks through" the unexplained decision to the last reasoned decision as the basis for the state court's judgment. Boyd v. Newland, 467 F.3d 1139, 1143 n.3 (9th Cir. 2006); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)). In the instant case, the last reasoned decision relating to Petitioner's first and third claims was the California Court Appeal's decision filed on May 24, 2011. (Resp't Ex. 2.) Petitioner's second claim for ineffectiveness of appellate counsel was denied, without a reasoned decision, by the California Supreme Court.
Petitioner contends that the trial court effectively forced him to testify because it erroneously determined that the evidence that arose in the People's case was insufficient to provide a basis for the admission of Daniel Vasquez' expert testimony. Petitioner also contends that he was effectively forced to testify because the trial court erroneously determined that he was not entitled to jury instructions on perfect and imperfect self-defense at the close of the People's case. The California Court of Appeal determined that, based on the trial court record, jury instructions, and admission of Vasquez' testimony was not effectively conditioned on Petitioner testifying at trial.
California law regulates the admission of evidence at trial. A trial court can exclude evidence for lack of foundation. Cal. Evid. Code § 402. Under California Evidence Code section 352, it is within the trial court's discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Cal. Evid. Code § 352.
California law also regulates jury instructions. "A defendant is entitled to a jury instruction only if substantial evidence, or `evidence sufficient to deserve consideration by the jury,' supports the giving of that instruction." Menendez, 422 F.3d at 1028 (quoting People v. Barton, 12 Cal.4th 186, 201 (1995)). Imperfect self-defense is recognized in California in homicide cases "where the killing resulted from an `actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury.'" Id. (quoting CALJIC No. 5.17 (1995)). While the imperfect self-defense instruction does not require a showing that a reasonable person believed the peril to be imminent, "the defendant must make some showing that he actually believed the peril to be imminent." Id. "A state trial court's finding that the evidence does not support a claim of imperfect self-defense is entitled to a presumption of correctness on federal habeas review." Id. at 1029 (citing Hartman v. Summers, 120 F.3d 157, 161 (9th Cir. 1997)). "`Failure to give [a jury] instruction which might be proper as a matter of state law,' by itself does not merit federal habeas relief." Menendez, 422 F.3d 1029 (quoting Miller v. Stagner, 757 F.2d 988, 993 (9th Cir. 1985)).
Petitioner's argument that his Fifth and Sixth Amendment rights were violated is premised on the Court finding that the trial court erred in its evaluation of the evidence and effectively conditioned the admission of expert testimony and the disputed jury instruction on Petitioner's decision to testify. Petitioner argues that the trial court erroneously determined that the evidence that arose in the People's case was insufficient to introduce Vasquez' expert gang testimony and establish a basis to instruct the jury on self-defense. Petitioner further asserts that the Court of Appeal erred in its determination that admission of Vasquez' expert testimony and instruction on self-defense was not effectively conditioned on Petitioner testifying.
The Court of Appeal summarized the factual background of Petitioner's claim as follows:
(Resp't Ex. 6 at 10-14.)
The Court of Appeal reasoned that the trial court's language made it expressly clear that the court did not condition the admission of expert testimony on Petitioner's decision to testify. This Court agrees. The trial court expressed that in ruling on whether to allow Vasquez' testimony, the court was "not at all considering whether the defendant testifies or not." (8 RT 1920.) The court noted that it "is solely [the defendant's] right to and solely his right not to" testify. (Id.) The trial court went on to state that in "deciding whether or not Mr. Vasquez would or would not be allowed to testify" Petitioner's testimony was not an absolute predicate. (8 RT 1921.) The trial court only stated that if Petitioner testified that he acted in self-defense out of knowledge that those attacking him were BGF members, and he knew that BGF members act in a certain way, it "would be a factor [the court] would consider in deciding whether or not Mr. Vasquez would testify." (Id.) Instead of conditioning the admission of Vasquez' testimony on Petitioner's decision to testify, the trial court correctly considered the probative value of Vasquez' testimony versus the potential prejudice it would create (under California Evidence Code section 352). This is consistent with the trial court's right to exclude evidence for lack of foundation under state law. See Cal. Evid. Code § 402.
Additionally, the Court of Appeal found that while, in general, entitlement to instruction on self-defense and imperfect self-defense can be shown from only the People's case, "that was not the case here." (Resp't Ex. 6 at 15.) The Court of Appeal's statement of the facts noted that the People's case showed that Johnson approached Petitioner unarmed and with his hands in the air prior to being shot. Then Petitioner "gunned him down and . . . delivered a kill shot to his head while he lay on the ground wounded." (Id.) These facts are not at all consistent with Petitioner's theory of self-defense. In accordance with state and federal law, the trial court did not agree to give instruction on perfect and imperfect self-defense. See Menendez, 422 F.3d at 1028-29 (holding that the state court correctly determined that state law did not allow for an imperfect self-defense jury instruction and thus Petitioners' constitutional rights were not violated). There was not substantial evidence to support a jury instruction on self-defense and there is nothing in the record that suggests that the trial court erred in its refusal to give the self-defense instructions in the absence of new evidence in the defense case. Additionally, the trial court's statements contradict Petitioner's assertion that the trial court "virtual[lly] demand[ed]" Petitioner testify. (Pet. ¶ 11.) The trial court simply noted at the close of the People's case that there was not substantial evidence to support an instruction on self-defense. (9 RT 1992.) The trial court did not state that it was necessary for Petitioner to testify for the court to give the instruction. Instead, the trial court stated that at the close of the People's case, the court did not find that the "evidence would substantiate a giving of the self-defense instruction" at that point, but that the court would "revisit" the decision to give certain instructions "once all the evidence is in in this case." (9 RT 1992-1993.)
The Court of Appeal's factual finding that the trial court did not effectively force Petitioner to testify in order to admit expert testimony and receive a jury instruction on self-defense was not "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." See 28 U.S.C. § 2254(d)(2). The state court's determination is presumed to be correct and given deference because it relates to Petitioner's constitutional claims. See Menendez, 422 F.3d at 1029. The evidence before the trial court did not favor Petitioner's theory of self-defense or provide Vasquez' testimony with the required probative value under state evidence law. In light of the record in the case, the Court finds that the trial court did not err in evaluating the sufficiency of the evidence and accordingly did not condition admission of expert testimony and self-defense jury instruction on Petitioner's decision whether to testify.
Petitioner contends that the state trial court violated his Fifth Amendment right to not testify and Sixth Amendment right to counsel by "effectively conditioning" the admission of Daniel Vasquez' expert gang testimony, and instruction on perfect and imperfect self-defense on Petitioner's decision to testify. Even if Petitioner presented a sufficient factual basis to indicate that he testified because it was the only way to admit Vasquez' testimony and receive a self-defense jury instruction, authority shows that Petitioner was not improperly compelled to testify and there was no Fifth or Sixth Amendment violation. Although the Court has found the premise to be factually unsupported by the record, for purposes of addressing all alternatives, the Court will address this constitutional issue. For purposes of this analysis, the Court will assume that Petitioner was able to show that the admissibility of Vasquez' testimony and self-defense jury instruction were effectively conditioned on his testimony.
The Fifth Amendment guarantees that "[no] person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. To qualify for the Fifth Amendment privilege, the communication must be testimonial, incriminating, and compelled. Hiibel v. Sixth Jud. Dist. Ct. of Nev., Humboldt Cnty., 542 U.S. 177, 189 (2004). "A criminal defendant need not take the stand and assert the privilege at his own trial." Salinas v. Texas, 133 S.Ct. 2174, 2179 (2013). The defendant's right against self-incrimination is the right "to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence." Brooks v. Tennessee, 406 U.S. 605, 609 (1972) (quoting Malloy v. Hogan, 378 U.S. 1, 8 (1964)). "Whether the defendant is to testify is an important tactical decision as well as a matter of constitutional right." Id. at 613.
The Constitution "guarantees a criminal defendant a meaningful opportunity to introduce relevant evidence on his behalf." Crane v. Kentucky, 476 U.S. 683 (1986). In Brooks, the Supreme Court held that a Tennessee statute that required that a criminal defendant testify prior to all other defense testimony, or not at all, was a violation of the defendant's Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to the "guiding hand of counsel." Brooks, 406 U.S. at 612-13. The Supreme Court noted that "a defendant may not know at the close of the State's case whether his own testimony will be necessary or even helpful to his cause." Id. at 610. "By requiring the accused and his lawyer to make" the choice to testify "without an opportunity to evaluate the actual worth of their evidence [a] statute restricts the defense—particularly counsel —in the planning of its case." Id. at 612. "The accused and his counsel may not be restricted in deciding whether, and when in the course of presenting his defense, the accused should take the stand." Id. However, this requirement does not "curtail in any way the ordinary power of a trial judge to set the order of proof." Id. Furthermore, the requirement "does not constitute a general prohibition against a trial judge's regulation of the order of trial in a way that may affect the timing of a defendant's testimony." Harris v. Barkley, 202 F.3d 169, 173 (2d Cir. 2000).
In a case that distinguished Brooks, the Ninth Circuit held that a trial court may require a defendant to lay a foundation prior to introducing testimony even when it can "only be accomplished if the [defendant] testified." See Menendez, 422 F.3d at 1032; see also United States v. Singh, 811 F.2d 758, 762 (2d Cir. 1987) (holding that trial court may refuse to accept proffered testimony of witnesses until a proper foundation is laid). In Menendez, Petitioners brought a habeas petition in federal court based on alleged violations of their Fifth and Sixth Amendment rights when the trial court refused to give Petitioners' requested imperfect self-defense jury instruction and excluded allegedly relevant testimony prior to Petitioners testifying. Id. at 1030-33. The court barred the relevant witnesses testimony for lack of foundation. See id. at 1031. The Ninth Circuit noted that the Sixth Amendment right to present a defense "is subject to reasonable restrictions `to accommodate other legitimate interests in the criminal trial process.'" Id. at 1033 (quoting United States v. Scheffer, 523 U.S. 303, 308 (1998)). A "trial judge may exclude or limit evidence to prevent excessive consumption of time, undue prejudice, confusion of the issues, or misleading the jury." Id. "The trial judge enjoys broad latitude in this regard, so long as the rulings are not arbitrary or disproportionate." Id. A trial court's commentary about "what evidence might constitute a foundation [does] not infringe on Petitioner's right to decide whether to testify." Id. at 1032.
Petitioner relies solely on the Supreme Court's decision in Brooks to argue that the Court of Appeal's denial of his habeas petition was incorrect and that the state court's rulings were contrary to, or an unreasonable application of clearly established federal law.
Petitioner contends that the trial court's ruling violates his Fifth and Sixth Amendment rights under the Supreme Court's holding in Brooks. However, Brooks can be distinguished from the instant case. Under the Tennessee statute at issue in Brooks, the defendant was not able to make the choice of whether to testify in the required "unfettered exercise of his own will." Brooks, 406 U.S. at 610. The defendant was not afforded the opportunity to fully assess the value of taking the stand prior to the point at which he was required to assert his right to remain silent if he wished to do so. See id. In other words, under the facts in Brooks, the defendant was pressured into taking the stand "by foreclosing later testimony if he refuse[d]." See id. at 612.
Here, unlike in Brooks, the trial court did not restrict counsel's ability to plan its case or improperly pressure Petitioner to testify. The court made clear that Petitioner's testimony might not even be sufficient to allow Vasquez to testify. (8 RT 1920-21.) The critical distinction between Brooks and the present matter is that here, like in Menendez, Petitioner had the opportunity at every stage of the trial to decide whether or not to testify. See Menendez, 422 F.3d at 1032. The Court did not threaten to take this right away at any point during the trial. Unlike in Brooks, Petitioner was aware that his testimony would help his case and was likely necessary to admit the desired evidence and to receive the desired jury instructions. See Brooks, 406 U.S. at 613. When the defendant is the only one capable of laying a foundation for expert testimony, it does not violate Brooks for the trial court to effectively condition the admissibility of expert testimony on the defendant's decision to testify and the content of his testimony. See Menendez, 422 F.3d at 1032. The trial court alluded that testimony from Petitioner would likely help provide sufficient evidence for a self-defense instruction and probative foundation for the admission of Vasquez' testimony. (8 RT 1921.) It is well established that the trial court's commentary in the underlying state case only regulated the admission of evidence and did not infringe on Petitioner's constitutional rights. See Menendez, 422 F.3d at 1032.
Furthermore, like in Menendez, here the true issue is not whether Petitioner was required to testify, but "whether the testimony of the relevant witness was admissible despite" a lack of the requisite probative value. See id. at 1031. The trial court merely excluded evidence for lack of probative value under the broad latitude it is afforded under the Sixth Amendment. The Court of Appeal correctly stated that Petitioner was not improperly compelled or forced to testify but that the "realities of the case impelled defendant to testify." (Resp't Ex. 6 at 15.) If Petitioner was "effectively compelled," it was only because there was no other adequate manner to establish Petitioner's knowledge of the BGF, and his fear of imminent harm that was required to provide probative foundation for the expert testimony and to establish entitlement to a self-defense jury instruction.
Additionally, for similar reasons, Petitioner's constitutional rights were not violated by the trial court's refusal to give self-defense jury instructions. First, as previously noted, the Court agrees with the trial court and Court of Appeal that there was insufficient evidence to support self-defense jury instructions at the close of the People's case. Second, Petitioner's constitutional right to present a defense is subject to reasonable restrictions. See Menendez, 422 F.3d at 1033. Petitioner's right to testify was not unconstitutionally restricted under the rule announced in Brooks, and it was only made clear that his testimony could provide the substantial evidence necessary to instruct the jury on self-defense under California law. See Brooks, 406 U.S. at 613. Self-defense jury instructions were excluded at the time due to the same lack of evidence that initially barred Vasquez' testimony. The trial court's determination that Petitioner was not entitled to perfect and imperfect self-defense jury instructions was not an error and thus does not constitute a violation of the Constitution. See Menendez, 422 F.3d at 1029-30.
The Court finds that in light of Brooks and Menendez, the state court proceedings did not violate Petitioner's Fifth Amendment right to not testify and Sixth Amendment right to counsel. Petitioner retained his right to decide whether or not to testify throughout the trial.
Next, Petitioner contends that he was not provided effective assistance of counsel because his appellate counsel failed to present the claim that Petitioner's testimony was coerced by the trial court's incorrect assessment of the sufficiency of the evidence to support a self-defense instruction. The Court of Appeal barred this claim because Petitioner failed to present this argument in his opening brief.
The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 392 (1985). "When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 687-88 (1984). "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment in a criminal proceeding if the error had no effect on the judgment." Id. at 691. Petitioner must be able to show that appellate counsel acted unreasonably in failing to discover and brief a merit-worthy issue on appeal. Moormann v. Ryan, 682 F.3d 1102, 1106 (9th Cir. 2010). "Any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution." Strickland, 466 U.S. at 691. If "a deficiency in attorney performance" is alleged, there is a "general requirement that the defendant affirmatively prove prejudice." Id. In order to show prejudice and succeed on an ineffectiveness of counsel claim, "the defendant must show that 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." Woodford, 537 U.S. at 23 (quoting Strickland, 466 U.S. at 694).
The California Court of Appeal alternatively held that even if Petitioner's claim that the trial court effectively conditioned a self-defense jury instruction on Petitioner testifying was not barred, there was inadequate evidence to support a jury instruction on perfect and imperfect self-defense. (Resp't Ex. 6 at 15 n.7.) This Court has already determined that Petitioner was not entitled to perfect and imperfect self-defense jury instructions and that this barred claim did not have merit under its analysis of Petitioner's first claim. Thus, this Court finds that the Court of Appeal's alternative holding was reasonable under the law. Petitioner was unable to show that there was a reasonable probability that but for counsel's errors, the result of the proceeding would have been different. The Court finds that Petitioner was unable to affirmatively prove prejudice and received effective assistance of appellate counsel.
Petitioner argues that the trial court's jury instructions on self-defense by an aggressor (CALJIC No. 5.54) and contrived self-defense (CALJIC No. 5.55) were unsupported by the evidence and injected a distorting confusion regarding the law of self-defense into the case. Petitioner contends that these instructions violated his Sixth and Fourteenth Amendment rights.
A challenge to jury instruction solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings. See Estelle, 502 U.S. at 71-72. To obtain federal collateral relief for errors in the jury charge, a petitioner must show that the "ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 72. "It must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some [constitutional right]." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). "The instruction 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. In reviewing ambiguous instructions, "we inquire whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution." Id.
A habeas petitioner is not entitled to relief unless the instructional error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637. The proper question in assessing harm in a habeas case is, "do I, the judge, think that the error substantially influenced the jury's decision?" O'Neal v. McAninch, 513 U.S. 432, 436 (1995). If the Court is convinced that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand. Id. at 437. There is a "strong policy against retrials years after the first trial where the claimed error amounts to no more than speculation." Boyde v. California, 494 U.S. 370, 380 (1990). "Differences among [jurors] in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting." Id. at 381.
Petitioner claims that CALJIC No. 5.54 and CALJIC No. 5.55 were not supported by the evidence in this case. However, the Court of Appeal determined that any possible error was harmless:
(Resp't Ex. 6 at 17.)
The trial court did not misstate the law or deviate from the standard jury instruction. Petitioner claims that the instructions left the jury with the erroneous impression that they could consider Petitioner's earlier confrontation with Johnson on Hayes Street as the initial act of aggression. Further, Petitioner claims that this consideration would place an incorrect and heavy burden on his self-defense claim. In other words, Petitioner claims that the jury instructions were reasonably likely to induce jurors to treat Petitioner as an aggressor. (Pet. ¶ 6.) However, the trial court made explicitly clear that the jury should not consider instructions that did not apply to the facts of the case. (Resp't Ex. 6 at 17.) If the jury did not believe that the facts existed to warrant these instructions, that Petitioner was not the person who initiated the assault, Petitioner was not harmed by their inclusion. The jury was directed by the trial court to disregard these instructions if it did not believe that Petitioner initiated the assault. The appellate court stated that "jurors are assumed to have followed all of the instructions." Id. This Court sees no reason not to defer to this assumption.
Additionally, there is not a "reasonable likelihood" that the jury misapplied the instructions and incorrectly assumed that Petitioner initiated the assault at the earlier Hayes Street incident. The Court of Appeal noted that these jury instructions are used in most self-defense cases. Petitioner's assertion of error amounts to no more than speculation. In the absence of evidence, the Court cannot assume that it was reasonably likely that the jury wrongfully reached its verdict on the basis of the Hayes Street incident and accordingly placed an unwarranted burden on Petitioner's claim of self-defense. Furthermore, the jury instruction on self-defense by an aggressor simply defines when the right of self-defense can be available to a person who initiated an assault. See CALJIC No. 5.54. The instruction did not inject the Hayes Street incident as the initiation of the assault but instead was consistent with the prosecution's factual case that Petitioner initiated the assault on Fortune Way when he "gunned down" Johnson. (Resp't Ex. 6 at 18.) Furthermore, CALJIC 5.54 provides that "self-defense is only available to a person who initiated an assault if" certain conditions are satisfied. As separate assaults, common sense suggests that the assault that killed Johnson was initiated on Fortune Way, not at the incident several hours earlier on Hayes Street. See Boyde, 494 U.S. at 381.The trial court never instructed the jury that the Hayes Street incident should have legal bearing on self-defense. Applying the relevant standard, it is unlikely that the jury interpreted the standard instructions to suggest that Petitioner's act of aggression at Hayes Street automatically placed a burden on his claim of self-defense.
Petitioner cites to the prosecutor's closing statement at trial as indicative that the challenged instructions misled the jury regarding Petitioner's claim of self-defense. However, Petitioner's assertion is baseless for two reasons. First, the prosecutor's closing statement addressed CALJIC No. 5.17, the jury instruction on imperfect self-defense. (11 RT 2525.) The allegedly misleading statement did not discuss instruction on self-defense by an aggressor, or contrived self-defense, which Petitioner challenges here. Second, the prosecutor only addressed a possible set of factual circumstances under which Johnson acted in self-defense and accordingly Petitioner's claim of imperfect self-defense was foreclosed. The prosecutor explained how the Hayes Street incident could effect Petitioner's imperfect self-defense claim under CALJIC No. 5.17. (Id.) Specifically, the prosecutor referred to a scenario where Petitioner could not claim self-defense because his actions on Hayes Street earlier that day had caused Johnson to attack Petitioner on Fortune Way with reasonable belief that Petitioner was about to use deadly force on him, in other words to act in self defense. The prosecutor did not assert or imply that Petitioner's actions on Hayes Street constituted the initiation of the Fortune Way assault under CALJIC No. 5.54. The Court of Appeal noted that under CALJIC No. 5.17, Petitioner's claim of self-defense would only be foreclosed under certain circumstances:
(Resp't Ex. 6 at 18.)
The Court of Appeal found that the portion of the instruction that would foreclose Petitioner's claim of self-defense only applied if the jury found that Johnson attacked Petitioner. However, the Court of Appeal determined that the jury found that Johnson did not attack Petitioner. The jury found "that [Petitioner] gunned down an unarmed man." Id. There was also substantial evidence that Petitioner initiated the assault on Fortune Way. Accordingly, any error would not have had a substantial and injurious influence on the resulting verdict. See DePetris, 239 F.3d at 1061.
There is nothing in the record or disputed jury instructions to suggest that the jury was improperly influenced by the inclusion of the self-defense by an aggressor and contrived self-defense instructions. It is not substantially likely that this alleged error influenced the jury's decision. It is only speculation that the jury foreclosed or incorrectly burdened the defense of self-defense because of the Hayes Street incident. The Court finds that there was no error from instruction on self-defense by an aggressor and contrived self-defense, and that the trial court proceedings did not violate Petitioner's Sixth and Fourteenth Amendment rights.
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. Rule 11(a) of the Rules Governing Section 2254 cases now requires a district court to rule on whether a petitioner is entitled to a certificate of appealability in the same order in which the petition is denied. Petitioner has failed to make a substantial showing that his claims amounted to a denial of his constitutional rights or demonstrate that a reasonable jurist would find the denial of his claims debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Consequently, a certificate of appealability is not warranted in this case. A separate judgment shall issue, and the Clerk of the Court shall close the file.
