Opinion
No. C 00-3485 MMC (PR)
May 3, 2002
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Gary Valentino Hollis ("petitioner"), a California prisoner proceeding pro se, filed this habeas corpus petition pursuant to 28 U.S.C. § 2254. After an initial review, the complaint was dismissed with leave to amend, and petitioner filed an amended petition. The Court dismissed one of the claims in the amended petition for failure to state a cognizable claim, and ordered respondent to show cause why the petition should not be granted on the basis of the remaining five claims. Respondent has filed an answer with a supporting memorandum and exhibits, and petitioner has filed a traverse.
FACTUAL AND PROCEDURAL BACKGROUND
The factual portion of this background is derived from the opinion of the California Court of Appeal (hereinafter "Slip Op."). See Respt. Exh. 6.
On the night of September 3, 1996, Margarita Collazo ("Collazo") was shot four times by petitioner in her split-level San Jose house. Petitioner was the boyfriend of Alfreda Maria Glenn ("Glenn"), who lived downstairs with her children and mother, Ella Mae Lindsay ("Lindsay"). Collazo also shared her house with her stepson Antonio Sharkey ("Sharkey") and his girlfriend Brenda Paz ("Paz").
At around 8:00 p.m. on September 3, petitioner arrived at Collazo's house to visit Glenn. Outside the house, he was speaking to Sharkey and Paz when Larry Smith ("Smith"), Collazo's other stepson, approached, pointed an "Uzi" at petitioner and made some gang-related remarks. Sharkey testified that petitioner lifted his shirt to reveal a black gun in his waistband. Glenn testified that she went outside to see what happened and that petitioner did not have a gun. After some time, petitioner and Smith resolved their differences.
Collazo testified she was angry that day because there was going to be a Housing Authority inspection and Sharkey and Paz had not helped her clean up. She saw the confrontation between Smith and petitioner from her window and saw petitioner display a silver gun. She yelled at everyone to get away from the house. Later, she twice walked to a nearby store, and both times petitioner approached her, but she responded harshly and rejected his efforts to speak with her. Later that night, she, Smith and a friend named Larry Raffaele ("Raffaele") were sitting in her living room when petitioner knocked and announced his presence at her door. Smith opened the door. Petitioner approached Collazo on the couch and, without saying anything, pointed a gun at her head. Collazo knocked the gun aside, but petitioner shot her in the shoulder. She yelled at Smith to call "911" and ran to the closet in the adjacent bedroom. Petitioner followed her into the bedroom and stuck his arm into the closet before she could completely close the door. He shot her three more times, in the hip, thigh and buttocks, and kept firing until the trigger clicked twice. Petitioner left the house, at which time Collazo came out of the closet and called to Lindsay for help. Lindsay found Collazo on the couch. Collazo told Lindsay that she did not know why petitioner had shot her.
Collazo further testified that when petitioner came into the house, nobody threatened him and that he didn't say anything during the attack. She did not have a gun, and she did not go to the closet to get a gun. She had moved Smith's "Uzi" downstairs earlier, after hearing that Smith had displayed it to petitioner.
Raffaele's preliminary hearing testimony was admitted after the trial court found that he was unavailable. He testified that around 11:00 p.m. on September 3, he was sitting on Collazo's couch with Smith and Collazo, smoking marijuana. Petitioner knocked on the door and when Smith opened it, petitioner pointed a silver gun at Collazo's head. Petitioner fired and Collazo screamed. Raffaele dropped to the ground and heard two more shots. Petitioner then pointed his gun at Raffaele and back at Collazo. As Collazo went towards the bedroom, Raffaele heard three more shots. Raffaele testified under subpoena and stated that he preferred not to be there. Petitioner testified that he knew Collazo and knew that she had two guns, a Tech-9 which she kept in her bedroom closet, and a black .38 which she kept on her person and which she would pull out when she was angry. Petitioner testified that on September 3, he went to Collazo's house to see Glenn and that he did not have a gun. Collazo was yelling at the people outside her house, and when petitioner told her to relax, she got angry at him. Smith approached petitioner with a machine gun and made some gang-related comments. Smith also demanded money. Smith backed off after Sharkey and Glenn intervened. Petitioner remained outside drinking. At around midnight, Collazo let petitioner use her bathroom, and when he emerged, Collazo, Raffaele and Smith were in the living room. Collazo asked to borrow some money. Petitioner refused and started to leave, at which time he heard two clicks and Collazo say, "Break yourself fool." When he turned, she was standing behind him with her .38 pointed at him. Petitioner asked Collazo what she was doing and grabbed her wrist, at which time she fired the gun, shooting herself in the arm. Smith struck petitioner on the head with the "Uzi", and Raffaele beat petitioner on the back with a hammer. The gun fell to the floor; petitioner and Collazo tried to get it. Smith and Raffaele kicked petitioner in the ribs and face, and Collazo got the gun. Smith and Raffaele ran out of the house, and petitioner managed to get possession of the gun. As Collazo ran into the bedroom saying "I'm gonna get you, mother fucker," petitioner fired two shots at her legs, not intending to kill her. The bedroom closet door was wide open, enabling petitioner to see from the living room that Collazo was in the closet loading another gun. Petitioner ran from the house with the gun, got into his car and drove away.
Petitioner understood that Collazo was telling him to give her his money.
Erika Walther ("Walther"), an advocate with the Victim Witness Assistance Program, testified that she had spoken to Collazo after the incident and that Collazo told her that Smith was present at the shooting and had the Uzi in his waistband.
Shortly afterwards, San Jose Police Officers Scott Johnson ("Johnson") and Franco Vado ("Vado"), unaware of the shooting, stopped petitioner's car because of a broken taillight and expired registration. A subsequent test revealed that petitioner had a blood alcohol content of .12, but no drugs. Vado saw a .38 caliber handgun near the dashboard. Petitioner said the gun was not his and that he did not do anything. There were no bullets in the magazine, but there was one bullet in the chamber. Forensic tests later showed that petitioner had gunshot residue on his hands and that the shells in Collazo's house were fired from the gun found in petitioner's car. Petitioner testified that he did not report the attack to the police because he was scared.
At the preliminary hearing, Collazo testified that the gun found in petitioner's car was not the gun she had seen earlier that day. Sharkey, however, testified it was similar to the one he had seen on petitioner.
Collazo suffered several gunshot wounds, including one which entered her shoulder in a downward direction and penetrated her abdomen. San Jose Police Sergeant David Jenkins ("Jenkins") testified that he found four .38 caliber shell casings, two in the living room and two in the bedroom, as well as a bullet lodged in the wall of the bedroom closet. In his opinion, spent casings from shots fired in the living room would not have landed in the bedroom. There was blood on and next to the couch, and also on the floor and door inside the closet. Jenkins did not see a gun in plain view in the closet, but did not search for one.
The jury found petitioner guilty of attempted second degree murder and further found that petitioner used a firearm and inflicted great bodily injury in committing the offense. The trial court sentenced petitioner to twenty-one years in state prison. The California Court of Appeal and the Supreme Court of California rejected petitioner's direct appeals, in which he raised the claims raised in this petition.
DISCUSSION
A. Standard of Review
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a); Rose v. Hodges, 423 U.S. 19, 21 (1975).
A district court may not grant a petition challenging 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); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). In evaluating whether there has been a violation of § 2254(d)(1), the court should first review the state court decision for error de novo and then determine whether the decision was contrary to or an unreasonable application of controlling law. See Van Tran v. Lindsey, 212 F.3d 1143, 1155, 1159 (9th Cir. 2000). In addition, habeas relief is warranted only if the constitutional error at issue had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Penry v. Johnson, 121 S.Ct. 1910, 1920 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)).
Where, as here, the highest state court to reach the merits issued a summary opinion that does not explain the rationale of its decision, federal court review under § 2254(d) is of the last reasoned state court opinion to reach the merits. See, e.g., Bains v. Cambra, 204 F.3d 964, 970-71, 973-78 (9th Cir. 2000) (reviewing opinion of California Court of Appeal in deciding whether to grant habeas relief under § 2254(d)). In this case, the last reasoned state court opinion to address the merits of petitioner's claims is that of the California Court of Appeal.
B. Legal Claims
1. Right to Confrontation
Raffaele did not testify in person at the trial. Petitioner claims that the admission of Raffaele's preliminary hearing testimony violated his right to confront adverse witnesses under the Confrontation Clause of the Sixth Amendment.
Under California law, there is a hearsay exception allowing the admission of prior testimony if, among other things, the declarant is unavailable to testify at trial. See Cal. Evid. Code § 1291. To establish unavailability, the proponent of the witness must be unable to procure the witness's attendance by the court's process despite "reasonable diligence." Id. at § 240(a)(5). Here, at a pretrial hearing, the trial court found that the prosecutor had exercised "reasonable diligence" in attempting to procure Raffaele's attendance, concluded that Raffaele was unavailable, and admitted his preliminary hearing testimony under § 1291 of the California Evidence Code. The California Court of Appeal affirmed the admission of this testimony under California law, but did not address whether there was a Confrontation Clause violation.
The Confrontation Clause and hearsay rules are not coextensive and involve different standards of admissibility. See Swan v. Peterson, 6 F.3d 1373, 1379 (9th Cir. 1993). The Confrontation Clause does not necessarily bar the admission of hearsay statements. It may, however, prohibit the introduction of evidence that otherwise would be admissible under a hearsay exception. See Idaho v. Wright, 497 U.S. 805, 813, 814 (1990). In Ohio v. Roberts, 448 U.S. 56, 65 (1980), the Supreme Court established a general framework for determining whether incriminating hearsay statements meet the requirements of the Confrontation Clause. See also Wright, 497 U.S. at 814 (noting Roberts provides general framework for determining whether incriminating statements admissible under exception to hearsay rule also meet requirements of Confrontation Clause). First, the government must show that the witness is "unavailable." Second, the testimony must bear adequate "indicia of reliability." Roberts, 448 U.S. at 65-66.
A prosecutor establishes a witness's unavailability only if the witness cannot be produced after the prosecutor has made a good faith effort to obtain the witness's presence. See Barber v. Page, 390 U.S. 719, 724-25 (1968). "The lengths to which the prosecution must go to produce a witness . . . is a question of reasonableness." California v. Green, 399 U.S. at 189 n. 2; see also Roberts, 448 U.S. at 74. The California Court of Appeal summarized the efforts by the prosecutor as follows:
At a hearing on the issue of diligence, Frank Carruba, the prosecutor, testified that he got the case on January 3, 1997, and issued subpoenas January 9. At that time, he assumed Raffaele would appear because Raffaele had voluntarily gone to the police and given a statement after the incident, he had testified at the preliminary hearing, and he was not facing any criminal charges. Carruba acknowledged that Raffaele previously testified under subpoena and had said he p referred not to be there.
By February 10, the original trial date, Carruba learned that Raffaele had not been served and suspected there might be a problem. Carruba obtained additional information about Raffaele from Ben Gonzales, the investigating officer, and forwarded it to County Legal Services. In addition he sought help from the District Attorney's Investigative Unit, which serves subpoenas and looks for missing witnesses. He also searched the Justice Department's database for more information without success. On February 18 or 19, he left a message at an emergency number Raffaele had given the police, but he received no response. On February 19, the case was called for a jury trial.
Tony Najarro, who works in the Investigative Unit, testified that he was assigned the case on February 20. He knew Raffaele, having previously served him with a subpoena at his mother's home. On February 21, Najarro visited Raffaele's mother, but he was not there, and his mother had no address for him. She gave him several leads, which he pursued over the next few days, checking Baptist churches and a laundromat where he thought Raffaele used to "hang out."
Najarro did succeed in obtaining a pager number for Raffaele and called it. He spoke to a person named "Larry" and recognized the voice as Raffaele's. Najarro identified himself and explained the purpose of the call. They spoke for five minutes, but Najarro was unable to obtain an address or arrange a meeting, and the person said he did not want to testify.
On February 25, the court continued the case to give the prosecutor more time to locate Raffaele. On February 26, Najarro spent three hours, driving the streets where he thought Raffaele might be found, looking for his friends, going to old addresses and Baptist churches, and visiting the neighbors near Raffaele's mother's house. He also checked the Justice Department computer again. His efforts yielded no success.
On February 27, the court heard all of the testimony summarized above and made a tentative finding that Raffaele was unavailable. However, it deferred a final ruling until March 3, and directed the prosecutor to continue the search.
On February 28, Najarro spoke to Raffaele again. He told Raffaele that it was "crucial" for him to testify. Raffaele refused, saying the prosecutor already had his preliminary hearing testimony. He said someone had spoken to the judge and then told him not to attend. Najarro said it was better for the jury to hear him testify in person. However, Raffaele refused because, he was trying to turn his life around and did not want any "repercussions." Najarro told him he had a civic duty to testify, but Raffaele declined and hung up.
Later that day, Najarro looked for Raffaele at a Baptist church, staked out his mother's house for an hour, and checked a new address he had obtained from the Justice Department's database. He still could not find Raffaele. He made similar efforts on March 2 and spoke to Raffaele's sister and mother. Again, he did not find Raffaele.
Given his conversations with Raffaele and his mother, Najarro opined that Raffaele was afraid to testify.
These facts are undisputed and are an accurate summary of the trial record. See RT 249-305, 501-11, 537-61.
Slip op. at 8-10.
Petitioner argues that the prosecutor did not make a good faith effort to obtain Raffaele's presence at trial. Because Raffaele testified at the preliminary hearing pursuant to a subpoena and stated that he preferred not to be there, petitioner contends that the prosecutor should have known that a subpoena would be necessary to procure Raffaele's attendance at trial and should have verified service of the subpoena before February 10, 1997, the original trial date. The prosecutor, however, issued the subpoena and sent it to the San Jose Police Department for service a month prior to the trial date. The prosecutor could have reasonably believed that those efforts would result in the service of the subpoena and Raffaele's attendance at trial. Moreover, once Raffaele did not appear on February 10, the prosecutor made significant efforts to serve Raffaele and procure his attendance. First, after learning that service had failed because of an incorrect address, the prosecutor tried to get Raffaele's correct address from the investigating officer and a Justice Department database; he left a message for Raffaele at an emergency phone number given to the police; and he assigned an investigator who had successfully served Raffaele in connection with the preliminary hearing. Over the next eleven days, the investigator visited and staked out Raffaele's mother's house where he had served Raffaele previously, spoke to Raffaele's mother and sister, went several times to several locations that Raffaele would frequent, paged Raffaele, checked the Justice Department database to get a correct address from Raffaele, and tried to persuade Raffaele over the telephone to testify or provide his location. These efforts are sufficient to establish that the prosecution made a reasonable and good faith effort to procure Raffaele's attendance. See e.g., Windham v. Merkle, 163 F.3d 1092, 1102 (9th Cir. 1998) (finding prosecutor made good-faith effort to locate witness where he subpoenaed witness, met with witness to discuss proposed testimony after issuing subpoena, tried to call witness three times as trial date approached, contacted witness' parole officer, had bench warrant issued for witness' arrest, and assigned a criminal investigator to locate witness). Given these circumstances, Raffaele is "unavailable" under the first element of the Roberts framework for analyzing petitioner's Confrontation Clause claim.
As explained above, Roberts also requires that Raffaele's preliminary hearing statements be reliable. Reliability can be inferred where the evidence falls within a "firmly rooted" hearsay exception or there are particularized guarantees of trustworthiness. Wright, 497 U.S. at 815; Gray v. Klauser, 282 F.3d 633, 641 (9th Cir. 2002). Preliminary hearing testimony has sufficient guarantees of trustworthiness to satisfy the reliability prong of the Confrontation Clause analysis, provided that the declarant was subject to cross-examination. See Roberts, 448 U.S. at 70-73; Green, 399 U.S. at 165-66 (holding where defendant had opportunity to cross-examine declarant at preliminary hearing, no Confrontation Clause violation in admitting statements of unavailable declarant at trial). Here, the record clearly reflects that Raffaele was cross-examined at the preliminary hearing. See Clerk's Transcript ("CT") (attached as Respondent's Exhibit 1) at 11-27. As a result, underRoberts, his preliminary hearing testimony is sufficiently reliable.
For the above-stated reasons, the admission of Raffaele's preliminary hearing testimony meets the Roberts requirements and thus did not violate the Confrontation Clause. Accordingly, petitioner is not entitled to habeas relief on this basis.
2. Instructions Regarding Defense Against Robbery
Petitioner claims that his Sixth Amendment right to present a defense was violated by the trial court's failure to instruct the jury pursuant to CALJIC 5.10 and 5.16, sua sponte, that forcible resistance to robbery is a defense to attempted murder.
Petitioner points to no Supreme Court authority to the effect that the failure to give a jury instruction on a defense theory violates the constitutional right to present a defense. As explained above, habeas relief may only be based on error under "clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has made clear that the erroneous exclusion of defense evidence may violate the Sixth Amendment right to present a defense. DePetris v. Kuykendall, 239 F.3d 1057, 1062 (9th Cir. 2001) (citing Chambers v. Mississippi, 410 U.S. 284, 294 (1973), andWashington v. Texas, 388 U.S. 14, 18-19 (1967)). Similarly, the right to present a closing argument is part of the right to present a defense. See Herring v. New York, 422 U.S. 853, 858 (1975). It is not settled, however, that the right to present a defense also guarantees the defendant the right to have the trial court issue jury instructions sua sponte on affirmative defenses, such as the self-defense instruction to which petitioner here refers. See Gilmore v. Taylor, 508 U.S. 333, 343 (1993) (noting Supreme Court has never invoked the right to present a defense in examining jury instructions affecting affirmative defense);see also Duckett v. Godinez, 67 F.3d 734, 743-45 (9th Cir. 1995) (conducting due process analysis as to failure to give alibi instruction). Thus, while there is clearly established law that a criminal defendant has a due process right to adequate instructions on the defendant's theory of the case, Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 2000), the law is not clearly established that a criminal defendant has an equivalent right under the Sixth Amendment to present a defense. Accordingly, the Court analyzes whether the trial court's failure to issue instructions on the defense of resistance to robbery violated petitioner's due process right to a fair trial.
Due process requires that an instruction be given if the evidence supports it. See Hopper v. Evans, 456 U.S. 605, 611 (1982); Miller v. Stagner, 757 F.2d 988, 993 (9th Cir.), amended, 768 F.2d 1090 (9th Cir. 1985). The significance of the omission of an instruction is evaluated by a comparison of the omitted instruction with the instructions that were given. Murtishaw v. Woodford, 255 F.3d 926, 971 (9th Cir. 2001) (quoting Henderson, 431 U.S. at 156). Consequently, whether the failure to issue an instruction violates due process will depend on the evidence presented as well as the overall instructions received by the jury. Duckett, 67 F.3d at 745.
Petitioner asserts that the trial court should have given CALJIC 5.10 and 5.16. CALJIC 5.10 states:
Homicide is justifiable and not unlawful when committed by any person who is resisting an attempt to commit a forcible and atrocious crime.
CALJIC 5.16 states, in pertinent part:
A forcible and atrocious crime is any felony that by its nature and the manner of its commission threatens, or is reasonably believed by the defendant to threaten, life or great bodily injury so as to instill in him a reasonable tear of death or great bodily injury. . . . Robbery is a forcible and atrocious crime.
Petitioner argues that these two instructions were required in light of the evidence that he was resisting a robbery when he shot Collazo. Petitioner testified that Collazo told him, at gunpoint, to give her his money; that he shot her the first two times by accident while he was struggling over her gun and Smith and Raffaele were beating him up; and that he shot Collazo twice more as she was going to get another gun. Petitioner's testimony regarding the first two shots could reasonably support a finding that they occurred while petitioner was "resisting an attempt" to rob him, within the meaning of CALJIC 5.10 and 5.16. Similarly, petitioner's testimony could support a finding that at the time he fired the subsequent shots, petitioner feared that Collazo would rob him after retrieving a gun from the bedroom. Respondent argues that petitioner's testimony suggests he was acting in fear of being assaulted or shot, not robbed. Although it is reasonable to infer from petitioner's testimony that he feared he was going to be shot by Collazo, and/or further assaulted by Smith and Raffaele, such concerns are not inconsistent with a fear of being robbed. Robbery, under California law, includes the taking of property from the person of another by "force or fear." See CALJIC 9.40. Given this definition, petitioner's testimony that he was assaulted and threatened with a gun does not preclude his reliance on the affirmative defense that he was resisting a robbery Accordingly, the evidence in the supports the issuance of CALJIC 5.10 and 5.16.
The omission of CALJIC 5.10 and 5.16 did not violate due process, however, because the other instructions in this case adequately conveyed to the jury petitioner's theory of self-defense. The trial court issued six instructions with regard to self-defense. CT 150-55. The first of these, patterned after California's model jury instruction regarding self-defense against an assault (CALJIC 5.30), reads as follows:
It is lawful for a person who is being assaulted to defend himself from attack, if as a reasonable person, he has grounds for believing and does believe that bodily injury is about to be inflicted upon him In doing so, such person may use all force and means which he believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.
CT at 150. If Collazo threatened petitioner's life with a gun and Smith and Raffaele beat him up, as petitioner testified, petitioner would have had a reasonable fear "that great bodily injury [was] about to be inflicted upon him" and he would fall within the purview of this instruction. Although CALJIC 5.10 and 5.16 further specify that one may use self-defense against a robbery, such specification was unnecessary in this case. Petitioner's testimony was that Collazo tried to rob him by pointing her gun at him and by having Smith and Raffaele beat him up. Thus, to find that petitioner was being robbed in this case, the jury would have had to find that petitioner was assaulted, and that he had a reasonable fear of imminent bodily injury as well. Such a finding would entitle him to the defense provided in CALJIC 5.30, which instruction was given. As the instructions issued by the trial court adequately conveyed petitioner's self-defense theory, the failure to issue CALJIC 5.10 and 5.16 did not render the trial fundamentally unfair so as to violate due process. Accordingly, this claim for relief is denied.
The jury was also instructed that there need not have been an "actual danger;" the appearance of danger which reasonably arouses fear of injury would suffice. CT at 152 (quoting CALJIC 5.51).
3. Instruction on Voluntary Manslaughter
Petitioner claims that his right to due process was violated because the trial court failed to instruct the jury sua sponte on attempted voluntary manslaughter, a lesser-included offense of attempted second degree murder. Petitioner was convicted of attempted second degree murder, but argues that the jury would have convicted him only of attempted voluntary manslaughter, based on a theory of heat of passion or imperfect self defense, if they had been so instructed.
The failure of a state trial court to instruct on lesser included offenses in a non-capital case does not ordinarily present a federal constitutional claim. See Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000); Windham v. Merkle, 163 F.3d 1092, 1105-06 (9th Cir. 1998);Turner, 63 F.3d at 819 (citing Bashor v. Riley, 730 F.2d 1228, 1240 (9th Cir.), cert. denied, 469 U.S. 838 (1984)); cf. Beck v. Alabama, 447 U.S. 625, 638 (1980) (holding failure to instruct on lesser included offense in capital case violates due process if evidence presented to support the instruction). There is a limited exception to this general rule where the lesser included offense is necessary to safeguard "the defendant's right to adequate jury instructions on his or her theory of the case."Solis, 219 F.3d at 929. Solis suggests, however, that the exception is only available if there is "substantial evidence" to warrant the instruction on the lesser included offense. See id. 929-30.
Because this exception has not been announced by the United States Supreme Court, it is unclear whether it is "clearly established" federal law, upon which habeas relief under § 2254(d)(1) may be granted. The Court assumes, for the purposes of the present discussion, that the decision in Solis reflects an assessment that the exception is in fact "clearly established."
While the California Court of Appeal did find that the trial court's failure to issue the instructions on voluntary manslaughter violated state law under People v. Breverman, 19 Cal.4th 141, 154, 162, (1998), it denied relief after concluding that the error was harmless. The Court of Appeal rejected petitioner's federal due process claim on the ground there is no federal constitutional violation based on a failure to instruct on a lesser included offense in a non-capital case. Even if this finding is contrary to federal law, in light of Solis, habeas relief is only granted if there is prejudice as defined in Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). See Penry, 121 S.Ct. at 1920; Packer v. Hill, No. 00-57051, slip op. 3173, 3193 n. 12 (9th Cir. Feb. 27, 2002). As petitioner, under Brecht, cannot show that he suffered prejudice as a result of the omission of the manslaughter instruction, this Court need not determine whether the state court's decision was contrary to federal law. Cf. Williams v. Calderon, 52 F.3d 1465, 1470 n. 3 (9th Cir. 1995) (holding court's finding of insufficient prejudice obviates need for analysis of counsel's deficiencies on claim of ineffective assistance).
The Court of Appeal applied the harmless error standard for state law violations, see People v.Watson, 46 Cal.2d 818, 836 (1956), as opposed to the harmless error standard for federal constitutional violations, see Chapman v. California, 386 U.S. 18, 22 (1967). Slip op. at 10 n. 5.
To establish prejudice under Brecht, petitioner would need to show that the failure to issue the instruction on voluntary manslaughter had a substantial and injurious effect on the jury's determination that petitioner was guilty of attempted second degree murder. Brecht, 507 U.S. at 638. The Court finds that it did not.
The California Court of Appeal summarized the difference between attempted second degree murder and attempted manslaughter as follows:
Here, the defendant was charged with attempted murder, i.e., an attempted intentional killing with malice. (Pen. Code § 664, 189.) Attempted voluntary manslaughter is a lesser included offense because it involves an attempted intentional killing without malice. (§ 664, 192 subd. (A); see People v. Van Eronk (1985) 171 Cal.App.3d 818, 822-825.) In particular, one commits attempted voluntary manslaughter when he or she attempts to kill another (1) in the heat of passion after being provoked or (2) in the actual but unreasonable belief in the need to defend oneself Both circumstances — heat of passion and unreasonable self-defense — negate the malice in an attempted murder, reducing it to attempted voluntary manslaughter. (See People v. Breverman, supra, 19 Cal.4th at p. 154.)
Slip Op. at 13-14. The jury's task in this case was, in large part, to decide whom to believe — Collazo or petitioner. Either petitioner attacked Collazo first and followed her to the bedroom closet, as Collazo testified, or Collazo threatened and tried to rob petitioner and he shot her to defend himself as petitioner testified. Consequently, in order to find that petitioner acted in the heat of passion with provocation or in unreasonable self-defense, the jury would have had to accept petitioner's testimony and reject Collazo's.
There is little likelihood, however, that the jury believed petitioner over Collazo. First, the jury's second-degree murder verdict indicates that the jury in fact rejected petitioner's testimony that he did not intend to kill Collazo, but only shot her accidentally and/or with the intent to injure her. Second, the evidence at trial contradicted petitioner's version of events and strongly supported Collazo's. There was uncontroverted expert testimony that the spent shells would not have landed in the bedroom if, as petitioner testified, the gun was fired from the living room. The blood on the floor and door inside the closet supported Collazo's statement that she was inside the closet when petitioner shot her, not outside as petitioner testified. None of the shots described by petitioner during the struggle or as Collazo ran away from him would have taken the downward trajectory from Collazo's shoulder to her inner organs. Petitioner testified that from the living room, he saw Collazo in the bedroom closet getting a gun. A photograph of the crime scene, however, revealed that a vacuum cleaner would have prevented the closet door from opening wide enough for anyone to have been able to see the closet from the living room. There was no evidence of any bruises or other injuries to petitioner to corroborate his testimony that he was hit on the head with a gun, beaten on the back with a hammer, and kicked and hit in the face. In addition, no witnesses corroborated petitioner's account of the shooting, nor had petitioner told the police that he had been attacked when the police stopped him in his car and found the gun.
By contrast, Collazo's testimony that petitioner shot her while she was sitting on the living room couch and while she was inside the bedroom closet was corroborated by the downward trajectory of one of the bullets, by the spent shells in the bedroom, and by the blood on the inside of the closet. Moreover, Raffaele substantially corroborated Collazo's testimony. Petitioner points to the fact that the jury, in convicting petitioner of attempted murder in the second degree, rejected the prosecution's argument that petitioner had premeditated. The verdict, however, does not reflect a rejection of Collazo's testimony, as Collazo never testified that petitioner had premeditated before attacking her, but rather the jury's rejection of the circumstantial evidence of premeditation.
The verdict of attempted second degree murder is consistent with Collazo's version of the events. The fact that the other evidence in the case strongly corroborated her testimony and impeached much of petitioner's testimony makes it highly unlikely that the jury would have found that petitioner acted in the heat of passion or in unreasonable self-defense even if the trial court had instructed on voluntary manslaughter. As a result, the omission of such instruction did not have a substantial and injurious effect on the verdict and thus, underBrecht, was not prejudicial. Accordingly, habeas relief is not available on this claim.
4. Instructions in Response to Jury Inquiry
In response to a request by the jury during deliberations regarding the intent element of attempted murder, the trial court issued further instructions. Petitioner claims that these instructions and the trial court's accompanying comments favored the prosecution and thus rendered the trial fundamentally unfair in violation of his right to due process.
During jury deliberations, the jury sent a note to the judge stating: "We, the jury are unable to reach a unanimous verdict on one of the three counts. We would like the judge to explain the second element of the charge of attempted murder (i.e. intent to kill, malice aforethought, etc.)." CT at 179. The second element of attempted murder in the jury instructions issued prior to deliberations was: "The person committing such act harbored express malice aforethought, namely, a specific intent to kill unlawfully another human being." CT at 140. The trial court responded to the jury's request by rereading the following six instructions that had been issued prior to deliberations: (1) direct and circumstantial evidence (CALJIC 2.00), (2) proof of specific intent (CALJIC 2.02), (3) concurrence of act and specific intent (CALJIC 3.31), (4) definition of an attempt (CALJIC 6.00), (5) definition of attempted murder (CALJIC 8.66), and (6) definition of premeditation and deliberation (CALJIC 8.67).
In rereading the instructions on attempt, the trial court made the following additional comments:
[Instruction No.] 25 could define an attempt to steal, burn a building, and attempt to knock a TV set off a table if that were a crime, okay. So this is a basic attempt definition. Then you tag that onto that the substantive crime of trying to commit an attempt to commit a crime consists of two elements. [sic] Namely, specific intent to commit the crime and a direct but ineffectual I act done towards his [sic] commission.
Let me give you an example of the second p art, not the first, direct but ineffectual act done towards its commission. If I punch somebody in the nose, that's a battery. A battery is unlawful touching of rude offense unlawful touching okay. If I took a swing at somebody and missed them, that's an attempt.
In the most simple terms, you try to do something and you weren't successful you tried to punched [sic] me in the nose and missed, that's an attempt. You had the intent to punch me in the face, but you couldn't carry it out. I moved my head. The attempt part, the second part, is there. The ineffectual act done towards his [sic I commission.
Sometimes that's the easier part. Sometime it's not. But your question, you're not focusing on that part. You're focusing on the other aspect. Namely the intent requirement so let me read on. Number 25.
In determining whether or not such an act was done, it is necessary to distinguish between mere preparation, on the one hand, and the actual commencement of the doing of the criminal deed, on the other.
In lay terminology. I'm going over there to the jury box and I'm going to punch — I'll pick [juror name] — in the nose. Okay. Let's listen to what I've just said in determining whether it was done.
It is necessary to distinguish between the mere preparation on the one hand, and on the other if I started to walk over there, that s the preparation font.
That's not an attempt to do it, is it? I have to get over there and get in close proximity enough to you so that you can take a swing and have the opportunity to do it. But if you got out of here, took out the robe and turned and ran by me to get out of the box, that's mere preparation.
If I get over there I take a swing at you and I miss that's the attempt. The touching would be the battery.
Again, that's not the focus of your question. Your focus on the other aspect of the crimes is, let me continue to read
. . .
The facts that you can see are easy. Which go to go [sic] inside of someone's mind it may not be obvious, so you might have to discuss the facts and the attending circumstances. After you do that, you make the decision it's there or it's not there. But you do that by first deciding what the facts are. And the facts are not just what you can see.
Sometimes you have to look inside someone's mind, and in order to do that you might have to look at the circumstantial evidence to see what reasonable inferences you might draw.
Reporter's Transcript ("RT") (attached as Respondent's Exhibit) at 784-86, 790.
"When a jury makes explicit its difficulties, a trial judge should clear them away with concrete accuracy." Bollenbach v. United States, 326 U.S. 607, 612-13 (1946). The trial judge has a duty to respond to the jury's request for clarification with sufficient specificity to eliminate the jury's confusion. See United States v. Frega, 179 F.3d 793, 808-11 (9th Cir. 1999). In determining whether the trial court's response to the jury's request for clarification violates due process, the court generally examines whether it is reasonably likely that the court's instructions caused the jury to misapply the law in a way that violates the Constitution. Estelle v. McGuire, 502 U.S. 62, 71-72 n. 4 (1991);see also Weeks v. Angelone, 528 U.S. 225, 233-34 (2000). Additionally, the due process guarantee of a fair and impartial trial judge prohibits any bias or advocacy by the trial judge during the course of a trial. See Taylor v. Hayes, 418 U.S. 488, 501-04 (1974). A trial judge's participation oversteps the bounds of propriety and deprives the parties of a fair trial when the record discloses actual bias or leaves the reviewing court with an abiding impression that the judge's remarks projected to the jury an appearance of advocacy or partiality. United States v. Parker, 241 F.3d 1114, 1119 (9th Cir. 2001).
Petitioner contends that the trial court's response to the jury question was unfairly biased towards the prosecution because: some of the instructions reread to the jury were irrelevant to the jury's question; the trial court placed undue emphasis on specific intent; the trial court used an example to illustrate the attempt element that mirrored the prosecution's account of how petitioner tried to kill Collazo; and the trial court did not reread the instruction regarding the prosecutor's burden of proof
Petitioner's arguments are not convincing. First, the six instructions reread to the jury all related to the jury's request for an explanation of specific intent, the second element of attempted murder. In particular, two of the instructions (CALJIC 2.02 and 3.31) directly addressed the element of specific intent; the instructions on the definition of attempt and attempted murder (CALJIC 6.00 and 8.66) provided context for the element of specific intent; the instruction on circumstantial evidence (CALJIC 2.00) explained how the specific intent element could be proven; and the instruction on premeditation (CALJIC 8.67) served to distinguish malice from other aspects of specific intent implicated in the charged offense. Second, the trial court did not put undue emphasis on the specific intent element by elaborating beyond the pattern instructions. The jury had expressly asked to have specific intent explained, assumedly in greater detail than in the instructions they had already received. Third, the trial court's example of an attempted punch was not similar to the facts presented by the prosecution, and provided a neutral and noninflammatory illustration. As the Court of Appeal explained: "[C]ompared with Collazo's, or even defendant's, version of the incident, the court's examples were simple, basic, and direct. Moreover, they did not involve a deadly weapon or an attempt to kill. Furthermore, they accurately illustrated the legal concepts for which they were offered." Slip Op. at 19. In addition, the trial court again admonished the jury not to misinterpret its comments as suggesting what they should or should not do. RT at 791-92. Finally, although the trial court did not reread the entire jury instruction regarding the prosecution's burden of proof the court did remind the jury that the prosecution had the burden of proof beyond a reasonable doubt. RT at 793.
Under these circumstances, there is no reasonable likelihood that the jury applied the trial court's instructions in an unconstitutional manner, nor is there any indication of bias or that the trial judge projected to the jury an appearance of advocacy or partiality. As a result, petitioner has not established a violation of due process based on the trial court's response to the jury's question.
5. Erroneous Instruction
Petitioner claims that the trial court's issuance of CALJIC 1.00 violated his right to due process by decreasing the prosecution's burden of proof. The Due Process Clause of the Fourteenth Amendment protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. 358, 364 (1970). If there is a reasonable likelihood that a jury instruction would cause a jury to apply a lower standard of proof the giving of such instruction violates due process. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Here, the instruction under CALJIC 1.00 stated:
You must not be influenced by pity for or prejudice against a defendant. You must not be biased against a defendant because he has been arrested for this offense, charged with a crime or brought to trial. None of these circumstances is evidence of guilt, and you must not infer or assume from any or all of them that a defendant is more likely to be guilty than not guilty.
CT 112. Petitioner argues that whether a defendant "is more likely to be guilty than innocent" is not a relevant determination for the jury, and that by using this phrase, this instruction essentially lessened the prosecution's burden of proof to a preponderance of evidence.
It is highly unlikely that this instruction would cause the jury to believe that the standard of proof was lower than beyond a reasonable doubt. The instruction does not at any point address or purport to address the applicable standard of proof or the prosecution's burden of proof. Indeed, the instruction, which is intended to benefit the defendant by disabusing the jury of certain commonly held assumptions inconsistent with the presumption of innocence, informed the jury about matters that it should not' consider. Moreover, there were many other instances in which the trial court clearly and expressly instructed the jury that the prosecution had the burden of proving petitioner's guilt beyond a reasonable doubt, including an entire instruction, CALJIC 2.90, dedicated to this principle. CT 133, 143, 146, 157. See Estelle, 502 U.S. at 72 (stating that an instruction must be judged in the context of the instructions as a whole, not in isolation). Accordingly, petitioner has not established a violation of his right to due process based on CALJIC 1.00.
CALJIC 2.90 reads in relevant part: "A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt." CT 133.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is hereby DENIED. All pending motions are terminated and the clerk shall close the file.
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED the petition for a writ of habeas corpus is hereby DENIED. ALL pending motions are TERMINATED.