Opinion
No. C 04-1518 CRB.
August 30, 2004
MEMORANDUM AND ORDER
Now before the Court is Jacob Steven Lowman's ("Lowman") petition for a writ of habeas corpus. The petition arises out of Lowman's 2001 conviction for assault with a semiautomatic firearm. On appeal, Lowman contends that the trial court erred by refusing to instruct the jury on self-defense against assault. After careful review and consideration of the memoranda submitted by the parties, the petition for a writ of habeas corpus is DENIED.
I. BACKGROUND
A. Factual History
Lowman's conviction arose from a confrontation with members of the Sureño gang in Santa Cruz, California on the morning of April 24, 2001. Lowman drove his blue Honda Civic to Santa Cruz with two individuals, Ruben Serna and Elijah Sells, for the purpose of buying marijuana and cruising around. Lowman's nine millimeter semiautomatic handgun was in the car along with several clips of hollow-point bullets. Lowman had purchased the gun after an incident involving two Norteño gang members who had been providing alcohol to his younger sister. After Lowman confronted the two men at his mother's house, he bought the gun for his protection.
Soon after arriving in Santa Cruz, Lowman, Serna, and Sells bought $40 worth of marijuana and searched for a place where they could park and smoke the marijuana. They proceeded into an area of Santa Cruz known as the Beach Flats, a stronghold of the Sureños, the rival gang of the Norteños. The Norteños identify themselves with the color red and the number 14. The Sureños identify themselves with the color blue and the number 13. Serna openly represented himself as a member of the Norteños, and Sells associated with the Norteños. Serna was wearing a red beanie cap and a red sweatshirt and Sells was wearing a red flannel pullover and a black do-rag. Sells testified that he had taken off his red flannel pullover when they arrived in Santa Cruz because it was hot. Lowman denies being a member of either gang, but admits that he spent time with Serna. Lowman was wearing a red Nike cap and a red belt with an "N" on the buckle that his sister had given him.
The prosecutor's theory at trial was that prior to purchasing the marijuana, Lowman, Serna, and Sells had seen two Sureño members "flip them off." Reporter's Transcript ("RT") at 1517-18. According to Sells' testimony, after purchasing the marijuana the trio drove to the vicinity of the Boardwalk where they saw the same two Sureño members "flip them off again." RT 1529. The trio then began looking for a parking place. RT 1581. Lowman alleges that he saw a parking place on Park Place but couldn't park immediately because it was a one way street heading in the wrong direction. RT 2582, 2584-2585. Lowman asserts that he tried to get to the parking place by continuing onto Third Street and essentially going around the block, through Sureño territory. Lowman turned left onto Raymond, and then left onto Liebrandt to head back towards Park Place. While driving through Sureño territory, Serna began "throwing" Norteño gang signs. RT 1535, 2079, 2121, 2147, 2588. Serna then yelled out, "East Side Norteños." RT 2149. A Sureño member threw a bottle or can of soda at the car. The container struck Serna, and soda splashed onto Sells' face. Lowman drove down Leibrandt Street, past the park and back onto Beach/Third Street, which was the only way out of the Beach Flats area.
Some witnesses allege that Serna yelled out, "East Side Salinas;" however both remarks would indicate that Serna was a member of the Norteños.
Some men from the Sureño group ran down Kaye Street and Uhden Street. According to various witnesses, it appeared that the Sureños intended to cut off the Honda as it looped around. RT 1381, 1400, 2080, 2591-2593. Some of the men from the Sureños group carried bottles, and possibly bricks, knives, sticks, and bats. RT 1398, 2149, 2151. Arturo Venegas, the victim, ventured part of the way down Kaye Street to watch the events unfold. According to his testimony, he wanted to see what would happen, "having watched this happen before." RT 1383, 1385, 2103-2104.
While turning onto Third Street, Lowman obtained the gun from the rear of the car. RT 2593. Serna got out his folding knife and put it in his lap. RT 890-891, 2303, 2593. When their car reached Third Street, Lowman could see approximately ten individuals at Uhden and Third Street, armed with 40 ounce bottles. RT 2598-99. Lowman attempted to spin his wheels at the group of Sureños to scare them off, however Lowman testified that this only seemed to make them angrier. RT 2598. A bottle was thrown in the direction of the car, landing nearby. RT 1541, 1603, 2585. Two gang members running towards them had gotten to within 25 feet of the car. RT 1539, 2649. Lowman testified that he "fired his gun" down towards the middle of the road "where I seen nobody [sic]."
The bullet struck Arturo Venegas in the chest. Venegas walked back to the corner of Kaye and Park Place, where he fell down. RT 1773, 2083-2084, 2103. Emergency personnel arrived soon afterwards and Venegas was transported to the hospital. Venegas suffered a minor abrasion on his chest. Neither his skin nor his shirt had been perforated. RT 1009, 1757-1758.
Petitioner offered evidence at trial that the bullet had deflected off the ground to hit Venegas.
Meanwhile, Lowman, Serna, and Sells drove to Watsonville and stopped at a Jack in the Box. RT 2602. Sells wiped down the gun and Lowman went inside to wash his hands. RT 2602. Shortly thereafter, their vehicle was stopped and all three individuals were arrested. RT 804-805, 2603.
Lowman was placed in a holding cell where he was videotaped. (RT 876). Lowman and Serna were placed in adjacent cells. Lowman asked Officer Sarifina if "there was a shooting or somebody got shot?" Officer Sarifina told him, "Yes, somebody got shot." Lowman stated, "That's unfortunate." While Serna and Lowman were alone, Lowman said, "I don't know. I shot that fool." California Appellate Court Opinion, "Opinion," 4. After reading Lowman his Miranda rights, Detective Medina asked Lowman about the gun police had found in the Honda. Opinion 4. At first, Lowman denied using the gun that day. After Detective Medina told Lowman that no one had been killed, Lowman recited the events leading up to the shooting. He explained that he felt like his life was in danger and that he felt trapped by the Sureños. Lowman stated that he felt he had to get out of there so he fired a warning shot. During the interrogation, Lowman stated that he fired towards Venegas, that he "sighted him in," because he feared Venegas was going to "bounce a 40 ounce bottle off my forehead." However, Lowman quickly backed off the assertion that he sighted Venegas in and stated that he "pulled the trigger off in that direction just to let him know, hey, don't throw these bottles." He stated, "I wasn't expecting to hit him . . . all I wanted to do was get out of there." He further stated that he just wanted to scare them, and that he honestly couldn't believe that he had hit Venegas. He also stated that he felt he was aiming down. At trial, Lowman stated that he just shot down the middle of the road in order to scare off the Sureños, and classified the shot as a "warning shot."
B. Procedural History
Lowman was charged, by information, with attempted murder under California Penal Code sections 663 and 187(a), (count 1), and assault with a semiautomatic firearm under California Penal Code section 245(b), (count 2). The information alleged that Lowman committed both offenses for the benefit of a criminal street gang under California Penal Code section 186.22(b)(1). As to count 1, the information alleged that Lowman personally discharged a firearm under California Penal Code section 12022.5(c) and personally used a firearm under California Penal Code sections 12022.53(b) and 12022.5(a)(1). As to count 2, the information alleged that Lowman personally used a firearm under California Penal Code section 12022.5(a)(1).
On July 11, 2001, Lowman was arraigned and pleaded not guilty. RT 145. On October 18, 2001, a jury trial commenced. RT 160. Lowman requested the trial court instruct the jury on self-defense pursuant to CALJIC No. 5.30, Self-Defense Against Assault. CALJIC No. 5.30 provides:
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, that 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.
The trial court refused, finding that there was insufficient evidence to warrant the use of "deadly force." RT 2821-22, 3004. The trial court did give, on its own initiative, imperfect self-defense instructions, with regard to the attempted murder charge, which would reduce the charge to an attempted voluntary manslaughter. RT 3004.
On November 9, 2001, the jury returned a verdict after three days of deliberation. The jury found Lowman not guilty as to the attempted murder charge, not guilty as to the reduced charge of attempted voluntary manslaughter, and guilty as to the assault with a deadly weapon charge. The special allegation of gang purpose was found to be not true, but the special allegation of personal use of a weapon was found to be true. On February 22, 2002, the Court sentenced Lowman to the midterm, six years, staying the special allegation of personal use of a weapon.
Lowman appealed his conviction. The state appellate court affirmed the judgment, with one dissenting justice, in an opinion filed on November 7, 2003. A Motion for Rehearing was filed on November 19, 2003, which was denied on December 1, 2003, again with one dissenting justice. An order modifying the opinion without changing the judgment was also filed on December 1, 2003.
The California Supreme Court summarily denied the petition for review on January 28, 2004. Lowman subsequently filed a timely petition for a writ of habeas corpus alleging that the trial court's refusal to instruct the jury on self-defense violated his right under the Sixth and Fourteenth Amendments to adequate jury instructions on his theory of defense, and the Sixth Amendment right to a jury trial.
II. STANDARD OF REVIEW
Because Lowman filed his habeas petition after April 24, 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), applies. The Court may review a petition for writ of habeas corpus filed by a state prisoner challenging his state court conviction. 28 U.S.C. § 2254(a). The petition will not be granted with respect to any claim adjudicated on the merits in state court proceedings unless the state court's adjudication was either "(1) `contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States,' or (2) `involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States.'" Williams v. Taylor, 529 U.S. 362, 404 (2000) (O'Connor, J. concurring). A state-court decision is contrary to the Supreme Court's clearly established precedent "if the state court applies a rule that contradicts the governing law set forth" in the Supreme Court's cases. Id. Under the "unreasonable application" inquiry, the court "should ask whether the state court's application of clearly established federal law was objectively unreasonable."Id. at 1521. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 1522.
III. DISCUSSION
Lowman claims that his conviction was tainted by the trial court's refusal to instruct the jury on self-defense against assault, pursuant to CALJIC 5.30. It is well established that a criminal defendant is entitled to adequate instructions on the defense theory of the case. See Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 2000) (citing Schmuck v. United States, 489 U.S. 705 1989). However, 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). After all, due process does not require that an instruction be given unless 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), cert. denied, 475 U.S. 1048 (1986).
An examination of the record is required to see precisely what was given and what was refused and whether the given instructions adequately embodied the defendant's theory. See United States v. Tsinnijinnie, 601 F.2d 1035, 1040 (9th Cir. 1979), cert. denied, 445 U.S. 966 (1980). In other words, it allows a determination of whether what was given was so prejudicial as to infect the entire trial and so deny due process. See id.
Under California law, self-defense negates the mental state element of the crime of assault, and the prosecution has the burden of disproving self-defense beyond a reasonable doubt once substantial evidence exists that the defendant used self-defense.People v. Banks 67 Cal. App. 3d 379, 383-384 (1976). The prosecution did not oppose the self-defense instruction submitted to the trial court. RT 2753, 2758. However, the trial court refused to give self-defense instructions, finding that there was insufficient evidence to warrant the use of deadly force. The appellate court affirmed this decision and found that there was no substantial evidence to support a finding that Lowman acted with a reasonable belief that it was necessary to shoot his firearm in self-defense. Opinion, 1.
The appellate court found that for self-defense instructions to be given, there must be substantial evidence to support a finding that the defendant acted in self-defense. People v. Flannel 25 Cal. 3d 668, 684, fn. 12 (1979). To "justify an act of self-defense for [an assault charge under Penal Code section 245], the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted upon him. The threat of bodily injury must be imminent and any right of self-defense is limited to the use of such force as is reasonable under the circumstances." People v. Minifie 13 Cal. 4th 1055, 1064-1065 (1996). The appellate court also found that "imminent peril means that the peril must have existed or appeared to the defendant to have existed at the very time the fatal shot was fired. In other words, the peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with." People v. Aris 215 Cal. App. 3d 1178, 1186 (1989) (disapproved on other grounds by People v. Humphrey 13 Cal. 4th 1073, 1089 (1996)).
The appellate court interpreted "imminent peril" as a present attack requiring instant action. The appellate court also found that the use of a firearm constitutes "deadly force." Petitioner's dispute is with the appellate court's determination of what is meant by imminent peril and deadly force. In particular, petitioner argues that: (1) the appellate court's determination that petitioner was not in imminent peril was erroneous because the court "ignor[ed] crucial facts and misconstrued other facts," Petition at 4, and (2) the appellate court's determination that petitioner's use of a gun constituted deadly force was erroneous. Such arguments do not constitute a valid basis for this Court to grant habeas relief. A challenge to a jury instruction solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings.See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Rather, this Court must defer to the state court's interpretation of state law. Hicks v. Feiock 485 U.S. 624, 629 (1988). The appellate court would require a present attack to warrant a finding of sufficient evidence in order to instruct the jury on self-defense. From the record, it was not unreasonable for the trial court judge to find that there was not sufficient evidence of a present attack upon Lowman to warrant self-defense instructions. Although there were approximately ten members of a rival gang awaiting Lowman's car to pass, and two others running towards Lowman's car with bottles, it was not unreasonable for the appellate court to find that there was no present attack which required the use of deadly force. Therefore, this Court must defer to the appellate court's interpretation of the state law.
IV. CONCLUSION
For the foregoing reasons, Lowman's petition for writ of habeas corpus is DENIED.IT IS SO ORDERED.