Opinion
No. C 02-290 MMC
October 21, 2003
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Before the Court is Thomas Lester Stark's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In response to the Court's order to show cause why the petition should not be granted, respondent Roderick Hickman filed an answer and a memorandum in support thereof, to which petitioner replied by filing a traverse. Having reviewed the papers filed in support and in opposition to the petition, including the state court record, the Court rules as follows.
PROCEDURAL BACKGROUND
On May 30, 1997, petitioner was charged with murder and personal use of a firearm, by an information filed in the Superior Court of California, in and for the County of Contra Costa. (Clerk's Transcript ("CR") 0192.) Petitioner entered pleas of not guilty and not guilty by reason of insanity. (CR 0193; Reporter's Transcript at 1-6 (October 27, 1997).) On April 28, 1998, at the first phase of a bifurcated trial, a jury found petitioner guilty-of murder in the first degree and found the firearm allegation to be true. (CR 0519.) On May 12, 1998, at the second phase of the trial, the jury found petitioner was legally sane at the time of the commission of the offense charged. (CR 0648.) Petitioner thereafter moved for a new trial or, alternatively, for modification of the verdict. (CR 0663.) On July 27, 1998, the trial court denied petitioner's motion for a new trial and granted petitioner's motion to modify the verdict. (CR 0743.) In granting the motion to modify the verdict, the trial court found the evidence insufficient to support the jurys verdict of first degree murder and, accordingly, reduced the verdict to second degree murder. (Id.) On July 27, 1998, the trial court sentenced petitioner to a term of 15 years to life for second degree murder and 10 years for personal use of a firearm, the two terms to be served consecutively. (CR 0744-45.) In the aggregate, the prison term imposed was 25 years to life. (Id.)
The Clerk's Transcript is respondent's Exhibit 1; portions of the Clerk's Transcript have also been filed as petitioner's Exhibit A.
The Reporter's Transcript of the proceeding held on October 27, 1997 is respondent's Exhibit 2.
On October 23, 2000, the California Court of Appeal affirmed the judgment, (Pet'r's Ex. I; Resp't's Ex. 3), and on January 30, 2001, the California Supreme Court denied review. (Pet'r's Ex. K; Resp't's Ex. 5.) On January 16, 2002, petitioner filed the instant petition for a writ of habeas corpus.
FACTUAL BACKGROUND
The Factual Background is derived from the opinion of the California Court of Appeal (hereinafter "Slip Op."). (See Pet'r's Ex. I; Resp't's Ex. 3.)
According to the testimony of petitioner's wife, Marilyn Stark ("Marilyn"), petitioner learned in 1996 that Marilyn was having an affair with Steve Johnson ("Johnson"). Petitioner became depressed about Marilyn's affair and threatened to commit suicide. He also threatened to kill Johnson. In December 1996, Marilyn separated from petitioner. In January 1997, she moved into an apartment with Johnson.
Marilyn further testified that on February 24, 1997, petitioner and Marilyn went out for dinner to discuss their relationship. Petitioner had asked Marilyn to make a decision about whether she wanted a divorce. At the restaurant, Marilyn told petitioner that she wanted a divorce. They left the restaurant and on their way back to petitioner's home, petitioner saw Johnson following them in his truck. After they arrived home, Johnson drove up to the house. Johnson was driving fast and "burned rubber" before stopping to park. Marilyn had told Johnson that she was going to ask petitioner for a divorce that evening. She and Johnson had agreed to meet later that evening.
Marilyn spoke with Johnson in the front yard of the house. While she was talking with Johnson, petitioner came out of the house with a gun. He waved it around and told Johnson, "Leave, little worm." Johnson responded, "Why don't you put that gun down and fight like a man?" Johnson left but returned about 45 minutes to an hour later. Marilyn went out to talk with him. Johnson was upset because Marilyn was not yet ready to leave. Marilyn wanted to stay because she was trying to persuade petitioner not to commit suicide. She told Johnson to leave and that she would meet him later. Petitioner, who was at the kitchen window, told Johnson, "Go home, little worm." Johnson, in turn, yelled at petitioner to come out. Marilyn persuaded Johnson to leave. Marilyn left the house sometime thereafter and drove to a bowling alley to look for Johnson. She returned about 15 minutes later and pulled into the driveway of a neighbor, Ben Stevens ("Stevens"). Petitioner came out of his house and told Marilyn to park the car and come into the house. Petitioner yelled that he had spoken with Johnson, that Johnson was coming over, and that Petitioner was going to "settle this" and fix him once and for all.
Stevens testified that Johnson arrived at the house a short time later. Stevens alerted petitioner that Johnson had arrived and told him, "Whatever you are going to do, make up your mind because he's here." Petitioner went outside with a revolver. Petitioner met Johnson on the sidewalk and called him "a little fucking worm." Johnson responded, "You are a big man with that gun. I would like to see what you could do without it." Johnson did not have anything in his hands. Petitioner and Johnson began pushing each other During the scuffle, petitioner stumbled and fired his gun into the ground. Petitioner regained his balance and pushed Johnson towards the wall beside the garage. Petitioner pinned Johnson to the wall and pointed the gun at Johnson's torso area and made a mocking gunshot sound — "boom, boom." Johnson pushed petitioner and the gun fired. Johnson clutched his stomach and immediately fell to the ground. Stevens ran into the house to call 911 and saw that Marilyn was already on the telephone with 911. Stevens went back outside and saw that petitioner was leaning over Johnson. Stevens returned to the house and, as he entered it, he heard at least two more gunshots.
Marilyn testified that she had called 911 when Johnson arrived the third time because she thought petitioner was going to shoot Johnson.
Marilyn testified that she told the 911 dispatcher that petitioner had shot Johnson. Within a minute, Marilyn heard three more shots. She ran outside and saw Johnson lying face down on the ground, gasping for breath. Marilyn rolled him over and tried to give him mouth-to-mouth resuscitation. Petitioner told Marilyn "that motherfucker's dead" and kicked Johnson in the head. Marilyn did not see a knife near Johnson.
According to the testimony of police officers who responded to the scene, Marilyn was cradling Johnson, who was lying on his back near the driveway of the house. The officers did not find a knife or weapon in Johnson's possession or near him on the ground. Johnson was then taken by ambulance to the hospital. The parties stipulated that a hospital orderly found a knife in the sheets of the hospital gumey on which Johnson had been placed. Officer DuPont, a crime scene investigator, testified that the knife was a two and a half-inch pocketknife.
Mark A. Super, M.D. ("Dr. Super"), a forensic pathologist, testified that Johnson died of multiple gunshot wounds. The pathologist opined that Johnson most likely suffered a gunshot wound to his abdomen first, followed by a shot in the neck. The wound to the abdomen perforated the inferior vena cava, the large vein that runs under the center of the body, and hit his lower spine. That wound probably would have caused Johnson to fall down, but "he would not be dead and likely not be unconscious." (Reporter's Transcript ("RT") 1316.) The final two shots, both in Johnson's back, perforated his right lung, with one of the shots also severing a major coronary artery. Johnson could not have survived the final two shots in the back. In Dr. Super's words, "Once he was shot in the back, those were — he was not going to be saved." (RT 1318.)
Some portions of the Reporter's Transcript have been filed as petitioners Exhibit B: other portions of the Reporter's Transcript have been filed as respondent's Exhibit 2.
Petitioner testified that he was afraid of Johnson because Johnson threatened him over a four-month period, and told him that he was a martial arts expert and could kill him with his bare hands. At the time of the shooting, petitioner had intended only to make Johnson back down. When petitioner had Johnson up against the wall of the garage, he told him to leave but Johnson lunged forward with a knife in his right hand and grabbed the gun, which then fired. Johnson came toward petitioner again and petitioner fired the gun. Petitioner had no recollection of the two final gunshots to Johnson's back. After shooting Johnson, petitioner went into the house, unloaded the gun, swallowed a handful of pills and then left the house.
The Court of Appeal noted that Johnson was left-handed.
A police officer testified that he found petitioner unconscious in a truck the next morning at about 2:00 a.m.
In rebuttal, a detective who interviewed petitioner after the shooting testified that petitioner never mentioned that Johnson had a knife. He further testified that petitioner had told him he was not afraid of Johnson.
DISCUSSION
A. Standard of Review
A district court may grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court only if 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." See 28 U.S.C. § 2254(d).
B. Legal Claims
Petitioner raises two claims: (1) the trial court's instruction, given during the guilt phase of the trial, that the jury was to conclusively presume petitioner was sane violated petitioner's rights to due process and to a fair trial and (2) the trial court's refusal to give an instruction on antecedent threats violated petitioner's rights to due process, to a fair trial, to present a defense, and to a jury determination of the relevant facts beyond a reasonable doubt.
1. Presumption of Sanity Instruction
Under California law, when a defendant pleads not guilty and, in the alternative, not guilty by reason of insanity, a bifurcated trial is conducted. See Patterson v. Gomez. 223 F.3d 959, 964 (9th Cir. 2000) (citing Cal. Penal Code § 1026), cert. denied, 397 U.S. 1104 (2001). In the first phase, the defendant's guilt is determined without reference to his plea of insanity. See id. at 964. If a defendant is found guilty in the first phase, the trial proceeds to a second phase in which the defendant's legal sanity is determined. See id.
During the guilt phase of petitioner's trial, the trial court instructed the jury to t conclusively presume petitioner was sane:
In the guilt phase of a criminal action the defendant is conclusively presumed to be sane; however, you have received evidence regarding a mental defect or mental disorder of the defendant at the time of the commission of the crime charged, namely, murder of the first degree, murder of the second degree, or the lesser crime thereto, namely, voluntary manslaughter. You should consider this evidence solely for the purpose of determining whether the defendant actually formed the required specific intent, premeditated, deliberated, or harbored malice aforethought which are an element of the crime charged, namely, murder of the first degree, murder of the second degree, or the lesser crime of voluntary manslaughter.
(See RT 2511-2512.) Petitioner argues that the foregoing instruction, given without an instruction defining sanity, violated his rights to due process and to a fair trial.
"Under current California law, evidence of mental disease, defect, or disorder . . . is admissible to show whether a particular defendant actually had the mens rea required for a specific intent crime." Patterson, 223 F.3d at 964 (citing Cal. Penal Code § 28(a)). Thus, evidence of a defendant's mental disease, defect or disorder is admissible during the guilt phase. See Id. Here, during the guilt phase, petitioner called two psychiatrists to testify that he had a mental disease, defect or disorder, and argued that such testimony established that, on the night in question, he did not form the requisite mens rea. (See, e.g., RT 2611.) Petitioner asserts that when the jury was given an instruction on the presumption of sanity, without a definition of sanity, the jury was erroneously led to believe they could not consider petitioner's argument that he had a mental disability that precluded him from forming the requisite intent on the night in question. As a result, according to petitioner, the instruction had the effect of lowering the state's burden of proving the requisite intent.
Kenneth Hjortsvang, M.D. ("Dr. Hjortsvang"), testified that petitioner suffered from "major depression" at the time of the shooting, which condition Dr. Hjortsvang described as "severe." (See RT 1847.) George Woods, M.D., testified that petitioner suffered from "a major depressive disorder" at the time of, and for several months prior to, the shooting, (see RT 2242) and, on the day of the shooting, had "an acute stress disorder." (See RT 2259.)
The California Court of Appeal rejected this argument. The Court of Appeal, after first observing that petitioner had failed to object to or seek modification of the instruction, held "there is no possibility that [petitioner] was prejudiced by the court's instruction." See Slip Op. at 8. In so ruling, the California Court of Appeal relied on the California Supreme Court's decision announced in People v. Coddinaton. InCoddinaton, the California Supreme Court held that the presumption of sanity instruction there at issue did not undermine the defendant's argument that he did not form the requisite specific intent where the jury was instructed that "evidence that the defendant suffered from a mental illness or defect could be considered in determining if [the requisite] mental states were present" and the "prosecutor and defense counsel argued the presence or absence of mental disease during guilt phase closing argument, with defendant reminding the jury that whether [he] was mentally ill was for the jury to decide." See People v. Coddinaton, 23 Cal. 4th 529, 584-85 (2000), cert. denied, 531 U.S. 1195 (2001), overruled on other grounds, Price v. Superior Court, 25 Cal. 4th 1046 (2001). The California Court of Appeal found Coddington dispositive because, in the instant case, "the jury was instructed that it could consider the evidence of [petitioner's] mental defect or mental disorder in determining whether he formed the requisite specific intent and the issue of [petitioner's] mental state was vigorously debated during the closing arguments of both the prosecutor and defense counsel." See Slip Op. at 8.
Petitioner argues that the Court of Appeal's decision was contrary to or involved an unreasonable application of clearly established federal law established by the United States Supreme Court. Specifically, petitioner cites the federal law established by the United States Supreme Court in Sandstrom v. Montana, 442 U.S. 510 (1979) and Francis v. Franklin, 471 U.S. 307 (1985).
In Sandstrom, the Supreme Court considered an instruction reading "the law presumes that a person intends the ordinary consequences of his voluntary acts," and held that when given in a case in which intent is an element, the instruction is unconstitutional because it has "the effect of relieving the State of the burden of proof . . . on the critical question of [the defendant's] state of mind." See Sandstrom, 442 U.S. at 512, 521-24. In Francis, the Supreme Court, relying on Sandstrom, considered instructions reading "[t]he acts of a person of sound mind and discretion are presumed to be the product of the person's will, but the presumption may be rebutted" and "[a] person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts."See Francis, 471 U.S. at 309. The Court held that because intent was an element of the charged offense, such instructions were unconstitutional "[b]ecause a reasonable jury could have understood the challenged portions of the jury instruction . . . as creating a mandatory presumption that shifted to the defendant the burden of persuasion on the crucial element of intent." See id. at 325.
In Patterson, the Ninth Circuit, in considering the constitutionality of a presumption of sanity instruction given without an instruction defining sanity, held the instruction there at issue was unconstitutional under clearly established federal law determined by the United States Supreme Court in Francis. See Patterson, 223 F.3d at 962-67.Patterson involved a defendant charged with murder who pleaded not guilty and not guilty by reason of insanity; the following instruction was given during the guilt phase:
Evidence has been received regarding a mental disease or mental disorder of the defendant at the time of the crime in the Information. You may consider such evidence solely for the purpose of determining whether or not the defendant actually formed the mental state which is an element of the crime charged in the Information, and are [sic] found in the definitions of murder.
If from all the evidence you determine to be credible you have a reasonable doubt whether the defendant formed any required mental state or had the necessary specific intent, you must find that he did not have such mental state or specific intent.
At the time of the alleged offense charged in the Information, you were [sic] instructed to presume that the defendant was sane.See Id. at 964 (emphasis in original)
As the Ninth Circuit explained:
The problem with the instruction given in this case is that it tells the jury to presume a mental condition that — depending on its definition — is crucial to the state's proof beyond a reasonable doubt of an essential element of the crime. Under California law, a criminal defendant is allowed to introduce evidence of the existence of a mental disease, defect, or disorder as a way of showing that he did not have the specific intent for the crime. . . . If the jury is required to presume the non-existence of the very mental disease, defect, or disorder that prevented the defendant from forming the required mental state for [the crime], that presumption impermissibly shifts the burden of proof for a crucial element of the case from the state to the defendant. Whether the jury was required to presume the non-existence of a mental disease, defect, or disorder depends on the definition of sanity that a reasonable juror could have had in mind.See id. at 965.
In so ruling, the Ninth Circuit contrasted the legal definition of "sanity" under California law with the commonly understood definition of that term. Under California law, "[s]anity is defined using a modernized version of the M'Naghten Rule: a person is insane if he or she is `incapable of knowing or understanding the nature and quality of his or her act [or] of distinguishing right from wrong at the time of the commission of the offense.'" See id. at 964 (quoting CaI. Penal Code § 25(b)). By contrast, the ordinary "lay" definitions of "sane" include "proceeding from a sound mind," "rational," "mentally sound," and "able to anticipate and appraise the effect of one's own actions." See id. at 966 (quoting Merriam Webster's Coflegiate Dictionary 1035 (1998)). The Ninth Circuit explained that "If a jury is instructed that a defendant must be presumed `sane' — that is, `rational' and `mentally sound,' and `able to anticipate and appraise the effect of [his] actions,' — a reasonable juror could well conclude that he or she must presume that the defendant had no mental disease, defect, or disorder. If a juror so concludes, he or she presumes a crucial element of the state's proof that the defendant was guilty of [the requisite intent.]" See Id.
In Patterson, as the Ninth Circuit noted, the trial court had given no instruction to counter the likelihood that a reasonable juror would presume a crucial element of the state's proof. "Nowhere in his preliminary or concluding instructions did the judge explain that the presumption of sanity was the analytical basis for the bifurcated trial; nowhere did he provide the M'Naghten definition of insanity that the jury was asked to presume; and nowhere did he warn the jury that `sane' was being used in something other than the conventional lay sense that the jurors were likely to have had in mind." See id. Under such circumstances, the Ninth Circuit held "the guilt phase instruction to presume the defendant sane was a violation of the Due Process Clause of the Fourteenth Amendment," and that the California Court of Appeal's decision that the conviction was proper was contrary to, or involved an unreasonable application of, the clearly established federal law announced by the United States Supreme Court in Francis. See id. at 966-67.
Here, the presumption of sanity instruction read to the jury was, in all material respects, equivalent to the instruction at issue inPatterson. As in Patterson, a crucial issue in dispute during the guilt phase was whether petitioner had a mental disease, defect, or disorder that caused him not to form the requisite specific intent. Also as inPatterson, the jury was not advised that the presumption of insanity was the analytical basis for the bifurcated trial, nor was it provided with a definition of the word "sane" or warned that the word "sane" was being used in a manner other than in the conventional lay t sense. Consequently, on the issue of whether the giving of the instruction was error under ! clearly established federal law, the holding in Patterson is applicable to the instant case.
A petitioner is not entitled to relief under § 2254, however, if a constitutional error was harmless. Cf. id. at 967-68 (holding petitioner entitled to habeas relief because constitutional error arising from presumption of sanity instruction not harmless). Here, the California Court of Appeal concluded that Patterson was "distinguishable on its facts" and that, unlike the defendant in Patterson, "there [was] no possibility that appellant was prejudiced by the court's instruction." See Slip Op. at 7-8.
"A federal court reviewing a state-court determination in a habeas corpus proceeding ordinarily should apply the harmless error standard . . ., namely whether the error had substantial and injurious effect or influence in determining the jury's verdict." California v. Roy, 519 U.S. 2, 4-5 (1997). In Patterson, the Ninth Circuit applied the standard set forth in Roy and found that the trial court's error in giving the presumption of sanity instruction was not harmless. See Patterson, 223 F.3d at 967-68. In so holding, the Ninth Circuit observed, at the outset, that because the petitioner's mental state was the "primary issue" in the guilt phase, "[a]ny presumption that would have relieved the state of its burden to prove a crucial element of such mental state necessarily played an important role in the jury's ultimate determination of guilt." See id. at 967. The Ninth Circuit went on to find that the presumption of sanity instruction had a substantial and injurious effect or influence on the jury's verdict for two reasons. See id. First, "[a]ware of the importance of petitioner's evidence concerning his mental state, and equally aware of the importance of the presumption of sanity, the prosecutor in closing argument repeatedly relied on the presumption to teil the jury that petitioner's evidence was legally irrelevant and must be disregarded." See id. Second, after the jury returned a verdict of guilty, the same jury thereafter was instructed with the "M'Naghten definition of sanity" and was unable to reach a verdict on the question of whether petitioner was sane under that definition. See id. at 968. As the Ninth Circuit observed, "Because the M'Naghten definition of sanity is harder to satisfy than the lay definition, it is difficult escape the conclusion that a jury unwilling to find unanimously that petitioner was sane underM'Naghten would also have been unwilling, if properly instructed, to find that petitioner had the mental state necessary for first degree murder."See id.
"The prosecutor argued:
Mr. Patterson is presumed to be sane. And that[f] in this stage of the proceeding[,] is the law. . . . [W]hen Mr. Patterson called the psychiatrists[,] he called at the guilt phase and in a sense has put the cart before the horse. Mr. Patterson has attempted to show that because of his mental condition, he didn't form an intent, the intent required or [sic] premeditate or deliberate. . . . The basis of opinions — and you're going to be instructed to basically disregard any opinion that goes to the ultimate fact. You heard — the instruction says any opinion from a psychiatrist that goes to intent, premeditation or the ultimate fact[.] disregard. That's the law. At this stage of the proceeding you are to do that. You are to presume he's sane. You are not to accept that opinion.
The prosecutor continued:
Those are the elements. Unlawful killing of a human being with malice aforethought and for first degree murder willful, deliberate, premeditated. We talked about motive not being an element. But the motive was provided for us simply by Mr. Patterson. He's presumed to be sane in this stage of the proceeding. He was sane."See id. at 967-68 (revisions in original; emphasis in original)
In the instant case, as noted by the California Court of Appeal, petitioner did not object to the presumption of sanity instruction or to the failure to accompany such instruction with the legal definition of sanity. The Supreme Court has held: "Ordinary procedure requires that the respective adversaries' views as to how the jury should be instructed be presented to the trial judge in time to enable him to deliver an accurate charge and to minimize the risk of committing reversible error. It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court."Henderson v. Kibbe, 431 U.S. 145, 154 (1977). When no objection is made, the petitioner is not entitled to relief simply by demonstrating that the instruction was "undesirable, erroneous or even universally condemned;" rather, the petitioner must demonstrate that the instruction "by itself so infected the entire trial that the resulting conviction violated due process." See id. (holding petitioner, convicted of murder, not entitled to habeas relief where intoxicated victim died as result of being struck by vehicle after having been robbed by petitioner and left on unlighted rural road at night; finding trial court's failure to instruct jury on definition of causation not prejudicial as petitioner failed to establish such failure "so infected the entire trial that the resulting conviction violated due process").
Here, petitioner did not deny killing the victim; his defense was that he did not have the requisite specific intent to kill. As noted, in support of his theory, petitioner offered the testimony of two psychiatrists, each of whom testified that petitioner had mental impairments at the time of the homicide, and petitioner argued that he did not form the requisite specific intent to kill, at least in part, because of such impairments.
Petitioner also argued that the first two shots were fired in self-defense or in "unreasonable" self-defense. (See RT 2608, 2619-20.)
The California Court of Appeal, in large part, based its finding that petitioner was not prejudiced by the subject instruction on the fact that the parties "vigorously debated" petitioner's mental state during their respective closing arguments. See Slip Op. at 8. Before the closing arguments began, the trial court, in direct reference to the state's burden to prove petitioner had the requisite specific intent, instructed the jury that "[i]f from all the evidence that you have, you have a reasonabl[e] doubt whether the defendant had that specific intent or mental state, you must find the defendant did not have that specific intent or mental state." (See RT 2513.) The record reflects that the parties vigorously debated that very issue during closing arguments.
In his closing argument, the prosecutor argued that petitioner's own actions indicated, in spite of any mental impairment, that he had the ability to form, and did form, the requisite specific intent. For example, the prosecutor argued that, assuming petitioner had "acute stress disorder" as one psychiatrist had testified, such condition did not prohibit petitioner from forming an intent to kill because petitioner made a number of decisions on the night of the homicide, which the prosecutor then cataloged. (See RT 2580-82.) Unlike the case inPatterson, the prosecutor did not emphasize the presumption of sanity, make any argument indicating that the psychiatric testimony offered by petitioner was legally irrelevant, or, for that matter, even refer to the presumption of sanity.
Defense counsel, while acknowledging that in the guilt phase, "it's conclusively presumed that a defendant is sane," made it clear that the jury had "received evidence of a mental disease, defect, or mental disorder of the defendant that pertains to the crimes charged," and that such evidence was to be considered "for the purpose of determining whether or not the defendant actually formed the required specific intent." (See RT 2601-02.) Defense counsel then proceeded to argue that petitioner did not form the required specific intent because of mental impairments, clearly indicating to the jury that the presumption of sanity did not preclude them from considering petitioner's mental impairment evidence. For example, after discussing the various diagnoses offered by the psychiatrists, defense counsel argued that "[t]he ability that [petitioner] had on the 24th of February 1997 to form intent, to really know what he was doing, wasn't what it should be. That's what the doctors told us in no uncertain terms." (See RT at 2606.) Again, after emphasizing that the "mental defect, mental disability, mental disability evidence" was "uncontroverted," defense counsel argued that petitioner's "decision making abilities were all impaired that night," (see RT at 2609), and, as another example, argued, "Did he have the mental ability capacity to make that decision? Was he capable of it given his mental state? The doctors say, No." (See RT at 2613.)
In short, both the prosecutor and defense counsel vigorously debated the issue of whether petitioner suffered from any mental impairment and, if so, whether such impairment affected his ability to form the requisite intent. As a result, it was made clear to the jury that they were to decide the issue, not that they were foreclosed from deciding the issue based on a presumption of sanity.
Additionally, there is no indication in the record that the jury was actually misled or confused by the presumption of sanity instruction. InPatterson, by contrast, the same jury that found the petitioner guilty was undecided as to whether he was sane, cf. Patterson, 223 F.3d at 967-68, and in Francis, the jury requested reinstruction on the issue of intent. See Francis, 471 U.S. at 312, 326 (holding jury's request for reinstruction on malice and accident, where petitioner's only defense was lack of intent to commit murder, supported conclusion that instruction directing jury to presume petitioner intended consequences of his acts was not harmless error).
In sum, the Court of Appeal's decision, that there was "no possibility" the jury would have understood the presumption of sanity instruction to preclude them from considering evidence of mental disease, defect or disorder when determining whether petitioner formed the requisite specific intent, is not, in light of the record, objectively unreasonable. See Woodford v. Visciotti, 537 U.S. 19, 123 S. Ct 357, 361 (2002) (holding petitioner not entitled to relief under § 2254 unless state court decision is objectively unreasonable, even if petitioner convinces federal habeas court that state court incorrectly applied clearly established Supreme Court precedent); Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1172 (2003) (holding that if "there are substantial arguments presented both for reasonableness and for unreasonableness of the state court's application of the [clearly established federal law]," a federal habeas court "cannot say that the state court's decision was contrary to or an unreasonable application of clearly established federal law").
Accordingly, petitioner is not entitled to habeas relief based on the trial court's instruction as to a presumption of sanity.
2. Antecedent Threats
At trial, petitioner requested that the trial judge give the jury an instruction on the legal effect of antecedent threats. Specifically, petitioner requested the following instruction:
One who has received threats against his life or person made by another is justified in acting more quickly and taking harsher measures for his own protection in the event OT assault either actual or threatened, than would a person who had not received such threats.
If in this case you believe that Steve Johnson made prior threats against the defendant and that the defendant, because of such threats, had a reasonable cause to fear greater peril in the event of an altercation with Steve Johnson, you are to consider such facts in determining whether defendant acted reasonably in protecting his own life or bodily safety.
(See CT 498) The trial court declined to give the requested instruction, on the ground that the concepts stated therein were included in other instructions concerning self-defense. (See id.) Petitioner contends the trial court's refusal to give the requested instruction violated his rights to due process, to present a defense, to a jury trial, and to a jury determination of material facts beyond a reasonable doubt.
The California Court of Appeal, noting that petitioner had offered evidence that the victim, Johnson, had threatened petitioner, agreed with petitioner that the trial court erred in refusing to give an antecedent threats instruction, but found that such refusal was harmless. See Slip Op. at 5. The Court of Appeal reasoned that the jury was provided with the "complete instructions on self defense" and that such instructions "in essence directed [the jury] to consider the evidence of Johnson's threats on appellant in determining whether appellant believed himself to be in danger"; that nothing in the instructions given "suggested to the jury that they were to ignore or disregard the admitted evidence of Johnson's prior threats"; and that, "even if the jury believed that [petitioner] was justified in initially taking harsher measures against Johnson because of his prior threats, [petitioner's] act of firing two additional shots to Johnson's back after he was already incapacitated could not be justified under the doctrine of self-defense." See Slip Op. at 5-6.
Petitioner, in his petition, has identified that evidence as follows:
Marilyn testified she told Petitioner that when she asked Steve [Johnson] to move out of their apartment in January, 1997, Steve became very angry and said he would hurt Petitioner if Marilyn went home. (RT 1179-1181.) Petitioner testified he was afraid of Steve because Steve had threatened him for four months. (RT 1928, 2009, 2025-2026, 2145.) Steve threatened to kill Petitioner in October, 1996. (RT 1939, 2038, 2058-2059, 2200.) He said he would beat Petitioner to death. (RT 1940, 2072-2073.) Petitioner was told repeatedly that Steve could kill him with his bare hands, which Petitioner believed. (RT 2003, 2025, 2051-2053, 2073, 2145.) Steve drove by Petitioner's house 50 to 75 times over a four-month period. (RT 2053, 2055.) Petitioner and Marilyn both testified that when Steve came over to their home twice on the night of the shooting prior to it, he took his jacket off and threatened to beat up Petitioner. (RT 1271, 1968, 1975.) During his second trip over, Steve ran up and banged on the window behind which Petitioner was standing. (RT 1976, 2081-2082.) Petitioner testified that just before the shooting, Steve told him on the phone that he J (Steve) was coming over to finish things once and for all and was going to finish off Petitioner. (RT 1998-1999, 2139, 2146, 2150.)
(See Pet. at 31-32.)
Petitioner argues that the California Court of Appeal's decision was contrary to or involved an unreasonable application of clearly established federal law established by the United States Supreme Court. Petitioner, however, does not identify the particular law established by the United States Supreme Court that is implicated by the Court of Appeal's decision. Nonetheless, it appears petitioner is relying on the theory that, because the jury did not receive an instruction on antecedent threats, the jury did not weigh the impact of such threats when considering petitioner's self-defense argument, which in turn may have lessened the burden on the state to prove that the killing was unlawful. See In re Winship, 397 U.S. 358, 364 (1970) ("[T]he Due Process Clause 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.")
Petitioner, in his petition and traverse, discusses law established by California state courts and by federal circuit courts. Habeas relief, however, is unavailable based solely on a violation of state law, see Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), or a violation of federal circuit law, see Ortiz-Sandoval, 323 F.3d at 1172.
Under California law, if the defendant makes a showing that the "killing may have been provoked or in honest response to perceived danger," the prosecution "must prove beyond reasonable doubt that these circumstances were lacking in order to establish the murder element of malice." See People v. Rios, 23 CaI. 4th 450, 461-62 (2000). Here, to determine whether the failure to specifically instruct as to the legal effect of antecedent threats might reasonably have led the jury to believe that the prosecution did not have the burden of proving the killing was not provoked or was not in honest response to a perceived danger, the Court must consider the instructions as a whole.
All of petitioner's arguments assume that the jury, when determining whether petitioner acted in self-defense, was of the opinion that they were prohibited from considering the effect on petitioner of the antecedent threats. The California Court of Appeal, however, found that the self-defense instructions, as a whole, directed the jury to "consider the circumstances in which [petitioner] found himself at the time of the shooting in determining whether he was justified in acting in self-defense," see Slip Op. at 5, and that, from those instructions, "the jury was in essence directed to consider the evidence of Johnson's threats on [petitioner] in determining whether [petitioner] believed himself to be in danger." See id. at 6.
Among the self-defense instructions that directed the jury to consider the circumstances in which petitioner found himself when he encountered the victim at the time of the shooting, were the following:
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 on 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.
(See RT 2514-15)
In the exercise of his right of self-defense, a person may stand his ground and defend himself by the use of all force and means which would appear necessary to a reasonable person in a similar situation with similar knowledge. . . .
(See RT 2517)
If one is confronted by the appearance of danger which arouses in his mind, as a reasonable person, an actual belief and fear that he is about to suffer great bodily injury, and if a reasonable person in a like situation seeing and knowing the same facts would be justified in believing himself in 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.
(See RT 2517-18.)
The above-referenced instructions directed the jury to consider the facts known to petitioner at the time of the killing, and no instruction suggested that the jury was not to consider the evidence of antecedent threats made by the victim.
In any event, even if the jury may have believed they could not consider the evidence of antecedent threats, petitioner is entitled to habeas relief only if the failure to instruct on that specific issue had a "substantial and injurious effect or influence in determining the jury's verdict." See Roy, 519 U.S. at 4-5. Here, petitioner, in his petition, acknowledges that, of the four shots he fired into the victim, the final two shots fired into the victim's back were not justifiable under a self-defense theory. (See Pet. at 35.) At trial, during closing argument, defense counsel made a similar concession, arguing only that the first two shots were in self-defense. (See RT 2608, 2619-20.) Petitioner, however, does not argue in his petition, nor did he argue to the California Court of Appeal, that the first two shots alone caused the victim's death. Nor is there any evidence to support such an argument. The forensic pathologist, when asked, "[D]id all four of those shots contribute to and cause [the victim's] death?," answered "Yes." (See RT 1335.) This testimony was uncontradicted. Petitioner argues, nonetheless, that, in the absence of an antecedent threats instruction, "there is a reasonable likelihood that [he] was convicted based on a finding that he was not justified in confronting and firing the first two shots at what might have been an unarmed victim." (See Pet. at 36.)
The forensic pathologist testified that, while the first shot was "potentially fatal," the victim likely would have been saved if he received surgery within an hour. (See RT 1316-17, 1319.) When petitioner shot the victim the final two times, however, any such likelihood ceased to exist. As the pathologist explained, one of the final two shots punctured the victim's heart such that the victim would not have survived. (See RT 1318.)
In order to accept petitioner's argument that a "reasonable likelihood" exists that the jury convicted petitioner of murder based on the first two shots alone, the Court would have to speculate that the jurors concluded that the first two shots were the cause of death, even though the evidence did not support such a finding and neither party argued that theory to the jury. Such unwarranted speculation cannot support a claim that constitutional error occurred. See Henderson, 431 U.S. at 157 ("Even if we were to make! the unlikely assumption that the jury might have reached a different verdict pursuant to an additional instruction, that possibility is too speculative to justify the conclusion that constitutional error was committed.")
In closing, the prosecution argued that the jurors could simply focus on the final two shots, and not even consider the first two shots. (See RT 2537-38 ("If you want to concentrate on this case and make this case as easy as possible, i will tell you to concentrate on the two shots to the back. Don't even debate the first two shots."); RT 2577 ("What I would suggest if you want to go the easy route, just look at these last two shots. Just look at these last two shots, don't even go through the analysis for the first two shots, go through the analysis of the second two shots."))
Petitioner also argues that if the antecedent threats instruction had been given, and the jury had found the first two shots were justified under a self-defense theory based on the victim's prior threats to petitioner, the jurors would "likely have accepted" petitioner's other arguments concerning the final two shots. (See Pet. at 36.) This argument likewise is based on speculation. There is no necessary legal or factual relationship between the two sets of shots. The jury, for example, may have found the first two shots were fired in self-defense, but rejected petitioner's argument that he did not form the requisite specific intent when he fired the final two shots into the victim's back.
In his traverse, petitioner identifies his other defenses as "a combination of mental incapacity and intoxication as well as imperfect self-defense." (See Traverse at 6.) Petitioner, however, did not refer to an intoxication-based defense when arguing the case to the jury and, as noted above, argued "unreasonable self-defense" as one theory to explain the first two shots, not the second two shots.
In sum, under the circumstances, the California Court of Appeal's decision, that the failure to give a specific instruction on antecedent threats was harmless error, was not objectively unreasonable.
Accordingly, petitioner is not entitled to habeas relief based on the trial court's failure to give an antecedent threats instruction.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is hereby DENIED.
The Clerk shall close the file.