Opinion
No. C 03-362 TEH (pr)
September 15, 2003
ORDER DENYING PETITION
INTRODUCTION
This matter is now before the court for consideration of the merits of Javier Huitron's pro se petition for writ of habeas corpus concerning his 1999 conviction in Santa Clara County Superior Court. For the reasons discussed below, the petition will be denied.
BACKGROUND
The California Court of Appeal described the crime:
Defendant was separated from his wife, Angie. He lived with his mother, Hilda, and his two children, Anjanette (age 8) and Esai (age 3). On the weekends, however, the children lived with Angie. One weekend, Angie planned to drop Anjanette at Hilda's so defendant could help with Anjanette's homework. Angie's boyfriend, Sam Mendez, drove Angie, Anjanette, and Esai to Hilda's. He parked on the street in front of the home at about 7:00 p.m. Angie exited with the two children and knocked on the front door. Defendant answered holding a beer bottle. He appeared drunk and angry. He yelled at Angie. Angie began returning to the car without Esai. Hilda picked up Esai and brought him to Angie. Angie opened the car door and placed Esai in the back seat. Defendant followed Angie. Hilda tried to restrain him. Angie got in the car, rolled up the window, and held the door closed as defendant tried to open it. Defendant then smashed the beer bottle on the windshield, breaking the bottle and shattering the windshield. He then went around the car to Mendez's open window, said "you are the cause of all this," and stabbed Mendez six times in the arm and shoulder with the beer bottle neck. Mendez drove away to a nearby 7-Eleven store where Angie called the police.
Defendant presented a defense via Hilda's testimony. According to Hilda, Esai was crying when Angie placed him in the back seat; Mendez grabbed Esai, pulled Esai toward him, shook Esai, and told Esai not to be a crybaby; defendant men broke the windshield and went around the car and stabbed Mendez.
Cal. Ct. App. Opinion, pp. 1-2.
Following a jury trial in Santa Clara County Superior Court in September-October 1999, Huitron was convicted of assault with a deadly weapon, see Cal. Penal Code § 245(a)(1), and was found to have personally used a deadly weapon and personally inflicted great bodily injury. He admitted that he had suffered a prior serious felony conviction and that he had served a prison term for another felony. On December 15, 1999, Huitron was sentenced to a term of 15 years in prison.
He appealed. The California Court of Appeal affirmed the judgment of conviction and the California Supreme Court denied his petition for review.
Huitron filed an earlier federal habeas petition that was dismissed without prejudice. After his state habeas petition filed in the California Supreme Court was denied, he filed this action.
Huitron's federal habeas petition raises three claims. First, he claims that he was denied his rights to a jury trial, a unanimous jury, an impartial jury and to due process by the trial court's use of pattern jury instruction CALJIC 17.41.1. He also alleges that the instruction violated jurors' free speech and privacy rights. Second, he alleges that he received ineffective assistance of appellate counsel. Third, he claims his right to due process was violated when the trial court refused to instruct the jury as requested about the defense-of-others defense. Respondent filed an answer to the court's order to show cause why the writ should not issue, and Huitron filed a traverse. The matter is now ready for consideration on the merits.
JURISDICTION AND VENUE
This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254, 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in Santa Clara County, California, which is located within this judicial district 28 U.S.C. § 2241(d).
STANDARD OF REVIEW
This court may entertain a petition for 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). The petition may not be granted with respect to any claim that was adjudicated 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); see Williams (Terry) v. Taylor, 529 U.S. 362 (2000).
EXHAUSTION
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c). The parties do not dispute that state court remedies were exhausted for the claims in the present petition.
DISCUSSION
A. Use of CALJIC 17.41.1.
At trial, the court included in the jury instructions CALJIC 17.41.1, which provides: "The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment, or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation." CT 128. Huitron alleges that CALJIC No. 17.41.1 interfered with jurors' First Amendment rights and interfered with his Sixth Amendment right to trial by jury and Fourteenth Amendment rights to due process and a fair trial. He also claims that the instruction infringed upon the practice of jury nullification.
The California Court of Appeal determined that, in the context of all the instructions given, CALJIC 17.41.1 was not troublesome. The court noted that other instructions informed juror of their duties to apply the law as given by the court even if they disagreed with it, to conscientiously weigh evidence and not be influenced by improper factors, and not to independently investigate the case. The state appellate court explained that CALJIC 17.41.1 "is designed to expose jurors only if and when they expressly refuse to perform these legal duties or say they intend not to perform these duties. . . . The instruction does not expose the jurors' thought processes or encourage or require jurors to reveal them." Cal. Ct. App. Opinion, p. 6. The instruction facilitates the discovery of juror misconduct which enables the court to more effectively deal with improper juror activity. The court also rejected the contention that the instruction tended to inhibit free discussion during deliberations because it only focused on misbehaving jurors. The court found the instruction not to encourage coercion of minority jurors in light of other instructions that told jurors to decide the case for themselves and to avoid capitulating to the majority just for the sake of reaching agreement. And the instruction did not interfere with the jury's power of nullification because the "defendant has no right to an instruction informing the jury of that power, and the court has no duty to give one." Id. at 8.
The California Supreme Court denied Huitron? habeas petition without comment but with citations to People v. Engleman, 28 Cal.4th 436 (Cal. 2002), and In re Waltreus, 62 Cal.2d 218 (1965). As discussed in the text, the Engleman case rejected a constitutional challenge to 17.41.1. The Waltreus cite stands for the proposition that any issue that was actually raised and rejected on appeal cannot be renewed in a petition for a writ of habeas corpus.
The California Court of Appeal's rejection of Huitron? claims was not contrary to, or an unreasonable application of, clearly established federal law as set forth by the U.S. Supreme Court. The U.S. Supreme Court and the Ninth Circuit Court of Appeals have not addressed the constitutionality of CALJIC 17.41.1 or an instruction like it. The California Supreme Court has, however, addressed the constitutionality of CALJIC 17.41.1 recently inPeople v. Engelman, 28 Cal.4th 436 (Cal. 2002). That court determined that the instruction did not infringe on a defendant's federal or state right to trial by jury or his state right to a unanimous verdict. Id. at 439-40. Nonetheless, the court determined that the instruction should not be used in the future because it had "the potential to intrude unnecessarily on the deliberative process and affect it adversely — both with respect to the freedom of jurors to express their differing views during deliberations, and the proper receptivity they should accord the views of their fellow jurors." Id. at 440.
There is no clearly established federal law that a defendant has a right cognizable in federal habeas for redressing an alleged violation of a juror's First Amendment or privacy rights. Although a criminal defendant has standing to assert a claim based on a violation of a juror's rights under the Equal Protection Clause, see Powers v. Ohio. 499 U.S. 400, 415 (1991), Powers does not give criminal defendants carte blanche to raise any and all claims on behalf of jurors. Because there was no clearly established federal law that a defendant can assert a juror's First Amendment or privacy claim, the state court's rejection of Huitron's First Amendment and privacy challenges cannot result in any relief in this habeas action. See 28 U.S.C. § 2254(d)(1). Moreover, the instruction does not appear to interfere with jurors' First Amendment rights any more than instructions requiring the jurors to deliberate do.
Huitron also suggests that CALJIC 17.41.1 deprives him of his right of jury nullification. Jury nullification is a reality, but it is not a right under the Constitution, laws or treaties of the United States. See Crease v. McKune, 189 F.3d 1188, 1194 (10th Cir. 1999) (noting no right to jury nullification in the context of federal habeas review); cf. United States v. Powell, 955 F.2d 1206, 1213 (9th Cir. 1992) (federal defendants are not entitled to jury nullification instructions). Any instruction that arguably impeded the non-existent right did not violate the Constitution, laws or treaties of the United States and cannot justify habeas relief.
Under California law, jurors have the ability to nullify or disregard the court's instructions and the evidence, and return a verdict contrary to the law and the evidence, but they have no right of nullification regarding the applicable legal principles which govern their role as factfinders. People V Williams, 25 Cal.4th 441, 454 (Cal. 2001).
Huitron also argues that CALJIC 17.41.1 violates his Sixth and Fourteenth Amendment rights to a jury trial and a fair trial. The instruction does not require that every word exchanged in deliberation be reported, or that a holdout juror be reported. Rather, the instruction attempts to ensure the proper functioning of the jury by enabling the trial court to investigate jury misconduct if necessary. The instruction does not misstate the law: a juror may not refuse to deliberate, may not disregard the law, and may not decide the case based on penalty or punishment or any other improper basis. The nub of Huitron's argument is that it was wrong to remind the jurors to police each other's behavior and to promptly report to the court any violation of these basic rules. Huitron fails to show a constitutional violation or any prejudice resulting therefrom.
Huitron suggests that the instruction chills discussion by instilling fear of punishment in the jurors. His contention is wholly speculative. The instruction includes no statement that punishment is forthcoming. Even though a reasonable juror might infer from the instruction that the court will investigate any reported misconduct, Huitron makes a far greater (and drastically less plausible) leap: he thinks jurors could hear that instruction and assume that the court will mete out punishment and/or will react arbitrarily and mete out punishment without actually investigating the alleged problem to determine whether an allegation was well-founded. The instruction just does not have the chilling effect Huitron ascribes to it.
Even if instructing the jury with CALJIC No. 17.41.1 was erroneous, Huitron is not entitled to federal habeas relief because he has not shown that the instruction so infected the entire trial that the resulting conviction violates due process. See Estelle v. McGuire, 502 U.S. 62, 72 (1991). As discussed earlier, in reviewing the faulty instruction, the court inquires whether there is a "reasonable likelihood" that the jury has applied the challenged instruction in a way that violates the Constitution. Id at 72 n. 4. If an error is found, the court must also determine that the error had a "substantial and injurious effect or influence in determining the jury's verdict" before granting relief in habeas proceedings. Brecht v. Abrahamson 507 U.S 619, 637(1993). It does not appear that CALJIC 17.41.1 had "a substantial and injurious effect' on the jury's verdict. The jury took no more than a half-hour to reach its verdict. See CT 133 There is no indication that the jury had any considerable difficulty in reaching the verdicts, or that the court was informed that any juror was refusing to follow the law or that the challenged instruction affected the verdict.
B. Ineffective Assistance Of Appellate Counsel Claim
Huitron claims that he was deprived of effective assistance of counsel on appeal because appellate counsel failed to raise two issues in a petition for review before the Supreme Court of California. The claim is without merit.
"[T]he right to appointed counsel extends to the first appeal of right, and no further." Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Where, as here, there is no constitutional right to counsel when pursuing a discretionary petition for review, there can be no claim for ineffective assistance. See id.; Wainwright v. Torna, 455 U.S. 586, 587-88 (1982) (no ineffective assistance of counsel claim for retained counsel's failure to file timely application for discretionary state appeal when no right to counsel at such proceeding). Huitron is not entitled to federal habeas relief on his claim of ineffective assistance of appellate counsel. See 28 U.S.C. § 2254(d).
C. Instructional Error Claim
Huitron's defense was that he stabbed Mendez based on his perception that his son was being attacked by Mendez. Huitron claims that his right to due process was violated because the court refused to give an instruction that actual danger was not necessary for his defense-of-others defense. At trial, the court instructed the jury pursuant with CALJIC 5.32, the pattern defense-of-others instruction: "It is lawful for a person who, as a reasonable person has grounds for believing and does believe that bodily injury is about to be inflicted upon Esai Huitron, to protect that individual from attack. In doing so, he may use all force and means which that person 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." RT 211. The trial court refused Huitron? request for an instruction — apparently no exact wording was ever offered by the defense — that tracked the principles of CALJIC 5.51, a pattern instruction stating that actual danger was not necessary for self-defense.
CALJIC 5.51 provides:
Actual danger is not necessary to justify self-defense. If one is confronted by the appearance of danger which arouses in [his] [her] mind, as a reasonable person, an actual belief and fear that [he] [she] is about to suffer bodily injury, and if a reasonable person in a like situation, seeing and knowing the same facts, would be justified in believing [himself] [herself] in like danger, and if that individual so confronted acts in self-defense upon these appearances and from that fear and actual beliefs, the person's right of self-defense is the same whether the danger is real or merely apparent.
The use note for CALJIC 5.51 indicates that CALJIC 5.12 (the instruction on justifiable homicide in self-defense) should be used instead of CALJIC 5.51 where the defense is justifiable homicide.
The California Court of Appeal found no instructional error. Huitron had conceded that no California case had actually recognized the doctrine of apparent necessity in a defense-of-others case. See Cal. Ct. App. Opinion, p. 5; see also Resp. Exh. A, p. 20, and Exh. E, p. 10. The state appellate court determined that, even assuming that the doctrine applied here, the instructions given adequately conveyed the concept:
CALJIC No. 5.32 tells the jury that defense of another applies when a person "has grounds for believing and does believe that bodily injury is about to be inflicted upon" another. These words focus on the person's belief and do not require that the belief be true. To underscore the concept, the instruction further describes me bodily injury about to be inflicted as the "injury which appears to be imminent." Again, the words focus on the person's belief in the appearance of danger, which is the manner in which CALJIC 5.51 instructs. In short, a reasonable juror applying defense-of-another would not require the existence of actual danger because CALJIC No. 5.32 only requires the appearance of danger.
Cal. Ct. App. Opinion, p. 5.
A state trial court's refusal to give an instruction does not alone raise a ground cognizable in a federal habeas corpus proceedings. See Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). The error must so infect the trial that the defendant was deprived of the fair trial guaranteed by the Fourteenth Amendment. See id. Whether a constitutional violation has occurred will depend upon the evidence in the case and the overall instructions given to the jury. See Duckett v.Godinez, 67 F.3d 734, 745 (9th Cir. 1995), cert. denied 517 U.S. 1158 (1996). A criminal defendant is entitled to adequate instructions on the defense theory of the case, as long as some evidence supports it. See Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 2000) (error to deny defendant's request for instruction on simple kidnaping where such instruction was supported by the evidence). However, the defendant is not entitled to have jury instructed in his or her precise terms where the given instructions adequately embody the defense theory. See United States v. Del Muro, 87 F.3d 1078, 1081 (9th Cir. 1996). If an error is found, the court also must determine that the error had a substantial and injurious effect or influence in determining the jury's verdict, see Brecht v. Abrahamson. 507 U.S. at 637, before granting relief in habeas proceedings.
The California Court of Appeal's rejection of Huitron's constitutional claim was not contrary to or an unreasonable application of clearly established federal law. Huitron has not contested that court's observation that the proposition he wanted the jury instructed on had never even been adopted by a California court, i.e., no California authority existed that held that apparent necessity was adequate to support a defense-of-others defense. The California appellate court's refusal to extend state law and announce such a principle — which would have been necessary to support a determination that the refusal to instruct on the principle was error — did not violate any federal constitutional right that Huitron possessed. The California court's determination that, even if such a principle applied, the instructions adequately conveyed it was a reasonable reading of the wording of the instruction. The jury instructions as a whole — especially CALJIC No. 5.32 — adequately embodied the defense theory of apparent necessity for defense of others. The failure to add on to the instructions Huitron? proposed other instruction emphasizing his theory did not violate his right to due process.
The court also notes that the evidence supporting any defense-of-others defense was, at most, extremely weak: Huitron? mother's testimony did not show an ongoing act of aggression or threat of aggression by Mendez toward Esai by the time Huitron stabbed Mendez, and she apparently only speculated that Huitron stabbed Mendez because Mendez shook Esai as she didn't hear Huitron say anything as he acted. Even if state law had actually required the giving of a separate instruction on apparent necessity if the evidence supported it (which state law didn't), there was not sufficient evidentiary support to require such an instruction.
The California Court of Appeal's rejection of the claim was not contrary to or an unreasonable application of clearly established federal law.
CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus is DENIED. The clerk shall close the file.IT IS SO ORDERED.