Opinion

(HC) Hale v. Asuncion

Court
District Court, E.D. California
Filed
Oct 30, 2019
Cited by
0 cases
Authority
More cited than 17.3%

California Supreme Court’s Batson2 analysis “contrary to” federal law because it set a 7 higher bar for a prima facie case of discrimination than established in Batson itself

How later courts described this case

  • California Supreme Court’s Batson2 analysis “contrary to” federal law because it set a 7 higher bar for a prima facie case of discrimination than established in Batson itself
  • finding § 2254(d)(1) 14 unreasonableness in the state court’s refusal to consider drug addiction as a mitigating factor at 15 capital sentencing, and granting penalty phase relief
  • “[W]e reemphasize 9 that it is not the province of a federal habeas court to reexamine state-court determinations on 10 state-law questions.”
  • state 21 court’s finding that the prosecutor’s strike was not racially motivated was unreasonable in light 22 of the record before that court

Written by the judges who cited it.

The opinion

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 ISAIAH DOMINIC HALE, No. 2:18-cv-1924-JAM-EFB P

12 Petitioner,

13 v. FINDINGS AND RECOMMENDATIONS

14 DEBBIE ASUNCION,

15 Respondent.

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17 Petitioner is a California state prisoner who, proceeding with counsel, brings an

18 application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He was convicted in the

19 Sacramento County Superior Court of attempted deliberate and premeditated murder (Pen. Code

20 §§ 187, subd. (a), 664) and firearm enhancements (§§ 12022, subd. (a)(1), 12022.5, subd. (a),

21 12022.53, subds. (b), (c), (d)). The instant petition raises the following claims: (1) the trial

22 court’s failure to properly instruct the jury as to the elements of petitioner’s defense violated his

23 Fourteenth Amendment due process rights and Sixth Amendment right to a jury trial; (2)

24 petitioner’s trial counsel was ineffective in failing to object to the foregoing instructional error;

25 (3) the state court of appeal unreasonably applied United States Supreme Court precedent when it

26 determined that petitioner was not prejudiced by the trial court’s denial of a jury trial as to

27 whether his prior conviction was a ‘strike’; and (4) petitioner’s Fourteenth Amendment due

28 /////

1 process rights were violated when the state court of appeal determined that there was sufficient

2 evidence to support a finding that his prior conviction was a strike.

3 For the reasons stated below, it is recommended that the petition be denied in its entirety.

4 FACTUAL BACKGROUND

5 Joe Williams (“Joe”) - petitioner’s co-defendant - was cousins with Julian Williams

6 (“Julian”). In mid- February 2010, Joe phoned Julian and asked him to come to his home and

7 collect an SKS assault-style rifle. Joe explained that he was currently fighting with his girlfriend,

8 sometimes violently, and was concerned that police responding to a domestic violence incident

9 might discover the gun. Julian took the gun.

10 On February 28, 2010, Julian had the rifle in his vehicle when he was stopped by police.

11 A victim had told police that they had been verbally threatened by someone claiming to have an

12 SKS rifle and Julian’s vehicle matched their description. Officers found the rifle in the vehicle,

13 confiscated it, and arrested Julian for possession of a firearm. The next day, Julian posted the six-

14 thousand dollar bail.

15 Soon after, Joe called Julian and demanded payment of three hundred and fifty dollars for

16 the confiscated rifle. Joe threatened to shoot Julian if he did not comply with the demands.

17 These threats were repeated by phone and voice-mail several times.

18 On March 7, 2010, Julian was at his residence with his girlfriend Zinha Sylvester. At

19 approximately 10:30 p.m., a gun was fired two or three times at the house. After investigating,

20 Julian discovered three bullet holes in his garage door. Julian called Joe and demanded to know

21 whether he was responsible for the shooting. Joe denied responsibility. Police arrived shortly

22 thereafter, and Julian informed them of his belief that Joe was responsible.

23 On March 10, 2010, Julian went with Sylvester to a shopping center where she had her

24 eyebrows waxed. As the two exited the salon, Joe confronted them and again demanded payment

25 for the confiscated rifle. Julian explained that, having recently posted six-thousand dollar bail, he

26 did not have the money. Irritated, Joe indicated a willingness to physically fight Julian, but

27 ultimately turned and walked away.

28 /////

1 Julian continued toward his parked vehicle and, on the way, encountered petitioner.

2 Petitioner had accompanied Joe to the shopping center that day and had watched Joe and Julian

3 nearly come to blows over payment for the gun. To this point, Julian had met petitioner on only

4 one other occasion and had no history with him. Upon seeing Julian, petitioner said something to

5 the effect of “Nigga, you got my gun took. You think we playing.” Julian had little time to react

6 before petitioner fired a gun at him several times, from a distance of roughly five or six feet.

7 Julian suffered gunshot wounds to his arm, elbow, and penis. He survived the shooting.

8 At trial, petitioner stated that he believed Julian was carrying a gun based on the latter’s

9 assertion, made during the confrontation with Joe, that he “stay[ed] strapped.” He claimed to

10 have seen Julian reach under his shirt and, believing he was going for a gun, chose to fire first.

11 Petitioner stated that he aimed low on Julian’s body because he intended only to injure, rather

12 than kill him. Petitioner claimed that he only realized that Julian was not armed after he saw the

13 latter hit the ground with an empty hand.

14 STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA

15 I. Applicable Statutory Provisions

16 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of

17 1996 (“AEDPA”), provides in relevant part as follows:

18 (d) An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a state court shall not be

19 granted with respect to any claim that was adjudicated on the merits

in State court proceedings unless the adjudication of the claim -

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(1) resulted in a decision that was contrary to, or involved

21 an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

22 States; or

23 (2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented

24 in the State court proceeding.

25 Section 2254(d) constitutes a “constraint on the power of a federal habeas court to grant a

26 state prisoner’s application for a writ of habeas corpus.” (Terry) Williams v. Taylor, 529 U.S.

27 362, 412 (2000). It does not, however, “imply abandonment or abdication of judicial review,” or

28 “by definition preclude relief.” Miller El v. Cockrell, 537 U.S. 322, 340 (2003). If either prong

1 (d)(1) or (d)(2) is satisfied, the federal court may grant relief based on a de novo finding of

2 constitutional error. See Frantz v. Hazey, 533 F.3d 724, 736 (9th Cir. 2008) (en banc).

3 The statute applies whenever the state court has denied a federal claim on its merits,

4 whether or not the state court explained its reasons. Harrington v. Richter, 562 U.S. 86, 99-100

5 (2011). State court rejection of a federal claim will be presumed to have been on the merits

6 absent any indication or state law procedural principles to the contrary. Id. at 784-785 (citing

7 Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is

8 unclear whether a decision appearing to rest on federal grounds was decided on another basis)).

9 “The presumption may be overcome when there is reason to think some other explanation for the

10 state court's decision is more likely.” Id. at 785.

11 A. “Clearly Established Federal Law”

12 The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing

13 legal principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade,

14 538 U.S. 63, 71 72 (2003). Only Supreme Court precedent may constitute “clearly established

15 Federal law,” but courts may look to circuit law “to ascertain whether . . . the particular point in

16 issue is clearly established by Supreme Court precedent.” Marshall v. Rodgers, 133 S. Ct. 1446,

17 1450 (2013).

18 B. “Contrary To” Or “Unreasonable Application Of” Clearly Established

Federal Law

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Section 2254(d)(1) applies to state court adjudications based on purely legal rulings and

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mixed questions of law and fact. Davis v. Woodford, 384 F.3d 628, 637 (9th Cir. 2003). The two

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clauses of § 2254(d)(1) create two distinct exceptions to AEDPA’s limitation on relief. Williams,

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529 U.S. at 404-05 (the “contrary to” and “unreasonable application” clauses of (d)(1) must be

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given independent effect, and create two categories of cases in which habeas relief remains

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available).

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A state court decision is “contrary to” clearly established federal law if the decision

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“contradicts the governing law set forth in [the Supreme Court’s] cases.” Id. at 405. This

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includes use of the wrong legal rule or analytical framework. “The addition, deletion, or

28

1 alteration of a factor in a test established by the Supreme Court also constitutes a failure to apply

2 controlling Supreme Court law under the ‘contrary to’ clause of the AEDPA.” Benn v. Lambert,

3 283 F.3d 1040, 1051 n.5 (9th Cir. 2002). See, e.g., Williams, 529 U.S. at 391, 393 95 (Virginia

4 Supreme Court’s ineffective assistance of counsel analysis “contrary to” Strickland1 because it

5 added a third prong unauthorized by Strickland); Crittenden v. Ayers, 624 F.3d 943, 954 (9th Cir.

6 2010) (California Supreme Court’s Batson2 analysis “contrary to” federal law because it set a

7 higher bar for a prima facie case of discrimination than established in Batson itself); Frantz, 533

8 F.3d at 734 35 (Arizona court’s application of harmless error rule to Faretta3 violation was

9 contrary to U.S. Supreme Court holding that such error is structural). A state court also acts

10 contrary to clearly established federal law when it reaches a different result from a Supreme Court

11 case despite materially indistinguishable facts. Williams, 529 U.S. at 406, 412 13; Ramdass v.

12 Angelone, 530 U.S. 156, 165 66 (2000) (plurality op’n).

13 A state court decision “unreasonably applies” federal law “if the state court identifies the

14 correct rule from [the Supreme Court’s] cases but unreasonably applies it to the facts of the

15 particular state prisoner’s case.” Williams, 529 U.S. at 407 08. It is not enough that the state

16 court was incorrect in the view of the federal habeas court; the state court decision must be

17 objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 520 21 (2003). This does not mean,

18 however, that the § (d)(1) exception is limited to applications of federal law that “reasonable

19 jurists would all agree is unreasonable.” Williams, 529 U.S. at 409 (rejecting Fourth Circuit’s

20 overly restrictive interpretation of “unreasonable application” clause). State court decisions can

21 be objectively unreasonable when they interpret Supreme Court precedent too restrictively, when

22 they fail to give appropriate consideration and weight to the full body of available evidence, and

23 /////

24 /////

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1 Strickland v. Washington, 466 U.S. 668 (1984).

27 2 Batson v. Kentucky, 476 U.S. 79 (1986).

28 3 Faretta v. California, 422 U.S. 806 (1975).

1 when they proceed on the basis of factual error. See, e.g., Williams, 529 U.S. at 397-98; Wiggins,

2 539 U.S. at 526 28 & 534; Rompilla v. Beard, 545 U.S. 374, 388 909 (2005); Porter v.

3 McCollum, 558 U.S. 30, 42 (2009).

4 The “unreasonable application” clause permits habeas relief based on the application of a

5 governing principle to a set of facts different from those of the case in which the principle was

6 announced. Lockyer, 538 U.S. at 76. AEDPA does not require a nearly identical fact pattern

7 before a legal rule must be applied. Panetti v. Quarterman, 551 U.S. 930, 953 (2007). Even a

8 general standard may be applied in an unreasonable manner. Id. In such cases, AEDPA

9 deference does not apply to the federal court’s adjudication of the claim. Id. at 948.

10 Review under § 2254(d) is limited to the record that was before the state court. Cullen v.

11 Pinholster, 131 S. Ct. 1388, 1398 (2011). The question at this stage is whether the state court

12 reasonably applied clearly established federal law to the facts before it. Id. In other words, the

13 focus of the § 2254(d) inquiry is “on what a state court knew and did.” Id. at 1399.

14 Where the state court’s adjudication is set forth in a reasoned opinion, § 2254(d)(1) review

15 is confined to “the state court’s actual reasoning” and “actual analysis.” Frantz, 533 F.3d at 738

16 (emphasis in original). A different rule applies where the state court rejects claims summarily,

17 without a reasoned opinion. In Richter, supra, the Supreme Court held that when a state court

18 denies a claim on the merits but without a reasoned opinion, the federal habeas court must

19 determine what arguments or theories may have supported the state court’s decision, and subject

20 those arguments or theories to § 2254(d) scrutiny. Richter, 131 S. Ct. at 786.

21 C. “Unreasonable Determination Of The Facts”

22 Relief is also available under AEDPA where the state court predicated its adjudication of

23 a claim on an unreasonable factual determination. Section 2254(d)(2). The statute explicitly

24 limits this inquiry to the evidence that was before the state court.

25 Even factual determinations that are generally accorded heightened deference, such as

26 credibility findings, are subject to scrutiny for objective reasonableness under § 2254(d)(2). For

27 example, in Miller El v. Dretke, 545 U.S. 231 (2005), the Supreme Court ordered habeas relief

28 where the Texas court had based its denial of a Batson claim on a factual finding that the

1 prosecutor’s asserted race neutral reasons for striking African American jurors were true.

2 Miller El, 545 U.S. at 240.

3 An unreasonable determination of facts exists where, among other circumstances, the

4 state court made its findings according to a flawed process – for example, under an incorrect

5 legal standard, or where necessary findings were not made at all, or where the state court failed to

6 consider and weigh relevant evidence that was properly presented to it. See Taylor v. Maddox,

7 366 F.3d 992, 999 1001 (9th Cir.), cert. denied, 543 U.S. 1038 (2004). Moreover, if “a state

8 court makes evidentiary findings without holding a hearing and giving petitioner an opportunity

9 to present evidence, such findings clearly result in a ‘unreasonable determination’ of the facts”

10 within the meaning of § 2254(d)(2). Id. at 1001; accord Nunes v. Mueller, 350 F.3d 1045, 1055

11 (9th Cir. 2003) (state court's factual findings must be deemed unreasonable under section

12 2254(d)(2) because “state court . . . refused Nunes an evidentiary hearing” and findings

13 consequently “were made without . . . a hearing”), cert. denied, 543 U.S. 1038 (2004); Killian v.

14 Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (“state courts could not have made a proper

15 determination” of facts because state courts “refused Killian an evidentiary hearing on the

16 matter”), cert. denied, 537 U.S. 1179 (2003).

17 A state court factual conclusion can also be substantively unreasonable where it is not

18 fairly supported by the evidence presented in the state proceeding. See, e.g., Wiggins, 539 U.S.

19 at 528 (state court’s “clear factual error” regarding contents of social service records constitutes

20 unreasonable determination of fact); Green v. LaMarque, 532 F.3d 1028 (9th Cir. 2008) (state

21 court’s finding that the prosecutor’s strike was not racially motivated was unreasonable in light

22 of the record before that court); Bradley v. Duncan, 315 F.3d 1091, 1096 98 (9th Cir. 2002) (state

23 court unreasonably found that evidence of police entrapment was insufficient to require an

24 entrapment instruction), cert. denied, 540 U.S. 963 (2003).

25 II. The Relationship of § 2254(d) To Final Merits Adjudication

26 To prevail in federal habeas proceedings, a petitioner must establish the applicability of

27 one of the § 2254(d) exceptions and also must also affirmatively establish the constitutional

28 invalidity of his custody under pre-AEDPA standards. Frantz v. Hazey, 533 F.3d 724 (9th Cir.

1 2008) (en banc). There is no single prescribed order in which these two inquiries must be

2 conducted. Id. at 736, 37. The AEDPA does not require the federal habeas court to adopt any

3 one methodology. Lockyer v. Andrade, 538 U.S. 63, 71 (2003).

4 In many cases, § 2254(d) analysis and direct merits evaluation will substantially overlap.

5 Accordingly, “[a] holding on habeas review that a state court error meets the § 2254(d) standard

6 will often simultaneously constitute a holding that the [substantive standard for habeas relief] is

7 satisfied as well, so no second inquiry will be necessary.” Frantz, 533 F.3d at 736. In such cases,

8 relief may be granted without further proceedings. See, e.g., Goldyn v. Hayes, 444 F.3d 1062,

9 1070 71 (9th Cir. 2006) (finding § 2254(d)(1) unreasonableness in the state court’s conclusion

10 that the state had proved all elements of the crime, and granting petition); Lewis v. Lewis, 321

11 F.3d 824, 835 (9th Cir. 2003) (finding § 2254(d)(1) unreasonableness in the state court’s failure

12 to conduct a constitutionally sufficient inquiry into a defendant’s jury selection challenge, and

13 granting petition); Williams v. Ryan, 623 F.3d 1258 (9th Cir. 2010) (finding § 2254(d)(1)

14 unreasonableness in the state court’s refusal to consider drug addiction as a mitigating factor at

15 capital sentencing, and granting penalty phase relief).

16 In other cases, a petitioner’s entitlement to relief will turn on legal or factual questions

17 beyond the scope of the § 2254(d) analysis. In such cases, the substantive claim(s) must be

18 separately evaluated under a de novo standard. Frantz, 533 F.3d at 737. If the facts are in dispute

19 or the existence of constitutional error depends on facts outside the existing record, an evidentiary

20 hearing may be necessary. Id. at 745; see also Earp, 431 F.3d 1158 (remanding for evidentiary

21 hearing after finding § 2254(d) satisfied).

22 DISCUSSION

23 I. Failure to Properly Instruct on Self-Defense

24 Petitioner argues that his rights were violated when the trial court provided an erroneous

25 self-defense instruction.

26 A. Last Reasoned Decision

27 The court of appeal issued the last reasoned decision when it denied this claim on direct

28 appeal:

1 Hale argues the trial court misinstructed the jury on self-defense and

thereby violated his state and federal constitutional rights to due

2 process and a fair jury trial. Williams in his reply brief joins in the

argument, noting that since his liability is as an aider and abettor,

3 Hale's instructional error argument concerning self-defense is

applicable to him as well. We conclude Hale's argument lacks merit.

4

Hale's theory of the case, based on his own testimony, was that he

5 shot the victim in self-defense during a spontaneous argument

between the victim and Williams, into which Hale injected himself

6 to support Williams, but which the victim escalated into a deadly

fight by saying he “stay[s] strapped,” and then making a “‘reachin’”

7 motion, which Hale said he interpreted as a move to pull out a gun.

Hale claimed he was not trying to kill the victim but only “shoot him

8 so we [Hale and defendant Williams] can get away.”

9 The trial court instructed the jury on self-defense and imperfect self-

defense. Using CALCRIM No. 505 concerning self-defense, the trial

10 court told the jury: “A defendant is not required to retreat. He is

entitled to stand his ground and defend himself and, if reasonably

11 necessary, to pursue an assailant until the danger of great bodily

injury has passed. This is so even if safety could have been achieved

12 by retreating.”

13 Using CALCRIM No. 3471, the trial court also instructed on initial

aggressor/mutual combat as follows: “A person who engages in

14 mutual combat or who starts a fight has a right to self-defense only

if: [¶] 1. He actually and in good faith tried to stop fighting; [¶] AND

15 [¶] 2. He indicated, by word or by conduct, to his opponent, in a way

that a reasonable person would understand, that he wanted to stop

16 fighting and that he had stopped fighting. [¶] If the defendant meets

these requirements, he then had a right to self-defense if the opponent

17 continued to fight. [¶] However, if defendant Isaiah Hale used only

non-deadly force, and the opponent responded with such sudden and

18 deadly force that the defendant could not withdraw from the fight,

then the defendant had the right to defend himself with deadly force

19 and was not required to try to stop fighting, communicate the desire

to stop to the opponent, or give the opponent a chance to stop

20 fighting.” (Italics added.)

21 The italicized text is an optional bracketed paragraph in CALCRIM

No. 3471. It is the portion of the instruction at issue here. Hale

22 belatedly complains the trial court should have added the words “in

safety” to the bracketed language, so that it would read if Hale “could

23 not withdraw in safety from the fight” after his opponent used deadly

force, then Hale could use deadly force. He argues, “There was never

24 any real dispute as to whether Mr. Hale could have retreated. He

could have. The only real question was whether he could do so safely

25 and — if not — whether he was nevertheless entitled to rely on self-

defense.” Hale claims the trial court “removed from the jury's

26 consideration” whether he could have withdrawn in safety.

27 We agree with the People that Hale forfeited this argument by failing

to object in the trial court. A party may not complain on appeal that

28 a jury instruction correct in law and responsive to the evidence was

1 too general or too incomplete unless the party has requested

appropriate clarifying or amplifying language in the trial court.

2 (People v. Lang (1989) 49 Cal.3d 991, 1024, 264 Cal. Rptr. 386, 782

P.2d 627.) Hale argues there was no forfeiture because his contention

3 is that the instruction given was incorrect, and such contentions may

be raised for the first time on appeal under section 1259. Hale further

4 argues that, if the contention was forfeited, then his trial counsel

rendered ineffective assistance of counsel by failing to object in the

5 trial court.

6 Even if not forfeited, the contention fails on its merits because the

instruction does not use the word "withdraw" in a vacuum but rather

7 in the context of withdrawing from a “sudden and deadly” escalation

of the fight by the opponent. The California Supreme Court has used

8 the term “withdraw” in this context interchangeably with “retreat in

safety.”

9

Specifically, in People v. Hecker (1895) 109 Cal. 451, 42 P. 307

10 (Hecker), the Supreme Court said the defendant was entitled to an

instruction justifying the killing if the defendant “was put in such

11 sudden jeopardy by the acts of the deceased that [the defendant]

could not withdraw . . . .” (Id. at p. 461, superseded by statute on

12 other grounds as stated in People v. Hardin (2000) 85 Cal.App.4th

625, 633, 102 Cal. Rptr. 2d 262, italics added.) Later in the opinion,

13 the court explained the same concept as follows: “[i]f . . . the counter

assault [by the deceased] be so sudden and perilous that no

14 opportunity be given to decline or to make known to his adversary

his willingness to decline the strife, if he cannot retreat with safety,

15 then as the greater wrong of the deadly assault is upon his opponent,

he would be justified in slaying, forthwith, in self-defense.” (Hecker,

16 at p. 464, italics added.) Based on our Supreme Court's usage of the

two terms interchangeably, we reject Hale's contention the

17 instruction on self-defense was wrong.

18 Hale cites People v. Quach (2004) 116 Cal.App.4th 294, 10 Cal.

Rptr. 3d 196 (Quach), which reversed because the trial court failed

19 to provide any instruction on how a defendant could respond if the

opponent in mutual combat responds to a simple assault by using

20 deadly force. (Id. at p. 303.) The Quach court observed that the trial

court provided no instructions regarding “the rule that, ‘Where the

21 original aggressor is not guilty of a deadly attack, but of a simple

assault or trespass, the victim has no right to use deadly or other

22 excessive force. . . . If the victim uses such force, the aggressor's right

of self-defense arises. . . .’ [citation], or its corollary, ‘If, however,

23 the counter assault be so sudden and perilous that no opportunity be

given to decline or to make known to his adversary his willingness

24 to decline the strife, if he cannot retreat with safety, then as the

greater wrong of the deadly assault is upon his opponent, he would

25 be justified in slaying, forthwith, in self-defense.’” (Id. at pp. 301-

302, citing Hecker, supra, 109 Cal. at pp. 463-464, italics added.) The

26 Quach court went on to recognize instructional language that would

address the situation where an opponent in mutual combat involving

27 simple assault escalates the assault by responding with deadly force.

First, it noted language approved in People v. Sawyer (1967) 256

28 Cal.App.2d 66, 63 Cal. Rptr. 749 (Sawyer), a case from this court.

1 The pertinent language in the Sawyer instruction read: “‘unless the

attack is so sudden and perilous that he cannot withdraw’” (Sawyer,

2 at p. 75, fn. 2),4 language that is similar to the language used in the

CALCRIM instruction here. Hale cites the other instruction noted in

3 Quach, an instruction that came from People v. Gleghorn (1987) 193

Cal.App.3d 196, 238 Cal. Rptr. 82. That instruction read: “‘[W]here

4 the counter assault is so sudden and perilous that no opportunity be

given to decline further to fight and he cannot retreat with safety he

5 is justified in slaying in self-defense.’” (Gleghorn, at p. 201, italics

added.) It is the Gleghorn instruction Hale contends should have

6 been given here. But in making that argument, he fails to note that

the Quach court reversed because there was no “instruction such as

7 the one approved in” Gleghorn and that the court also identified the

instruction in Sawyer as such an instruction. (Quach, at pp. 302-303,

8 italics added.) Given the Quach court’s recognition of the instruction

in Sawyer, we do not read Quach as requiring any specific language.

9 Indeed, it seems clear from its reference to the Sawyer instruction

that had that instruction been given by the trial court in Quach, the

10 court of appeal would not have found error. Our view of this issue

explains why the CALCRIM Committee included language in the

11 optional bracketed paragraph in CALCRIM No. 3471 that more

approximates the instruction in Sawyer and leaves out the redundant

12 reference to “‘with safety’” from the Gleghorn instruction.5

13 Here, in contrast to Quach where there was no instruction given such

as the ones approved in Sawyer and Gleghorn, the trial court did

14 instruct the jury on the principle that no retreat was necessary if the

victim escalated the attack to “such sudden and deadly force that the

15 defendant could not withdraw.” Although the instruction did not use

the words “with safety,” as we have noted, no such talismanic words

16 were needed. “[W]ithdraw from the fight [that had suddenly turned

deadly]” and “retreat in safety” are the same thing. If the person is

17 assaulted with sudden and deadly force while attempting to

withdraw, then there was no actual withdrawal from the fight. The

18 person would still be in the fight. In other words, withdrawing from

the fight means the person has escaped from the fight. By definition,

19 that means the person is safe.

20

21 4 [Footnote seven in original text] The entire instruction approved by the

court in Sawyer reads as follows: “‘Where a person seeks or induces a quarrel which

22 leads to the necessity in his own defense of using force against his adversary, the

right to stand his ground and thus defend himself is not immediately available to

23 him, but, instead he first must decline to carry on the affray, must honestly endeavor

to escape from it, and must fairly and clearly inform his adversary of his desire for

24 peace and of his abandonment of the contest unless the attack is so sudden and

perilous that he cannot withdraw. Only when he has done so will the law justify him

25 in thereafter standing his ground and using force upon his antagonist.’” (Sawyer,

supra, 256 Cal.App.2d at p. 75, fn. 2.)

26

27 5 [Footnote eight in original text] We also note that the CALCRIM No.

Committee cites Hecker, Quach, and Sawyer in the bench notes, but not Gleghorn.

28 (CALCRIM No. 3471, Bench Notes.)

1 Moreover, even assuming for the sake of argument that the

instruction was ambiguous, it is not reasonably likely the jurors here

2 would have applied the instruction improperly. (People v. Williams

(2013) 56 Cal.4th 630, 688-689, 156 Cal. Rptr. 3d 214, 299 P.3d

3 1185, citing Estelle v. McGuire (1991) 502 U.S. 62, 72 [112 S. Ct.

475, 116 L.Ed.2d 385, 399] [in reviewing an ambiguous instruction,

4 courts inquire whether there is a reasonable likelihood the jury

applied the instruction in a way that violates the Constitution].) Hale

5 argues Quach, supra, 116 Cal.App.4th at page 303, requires

application of the harmless error test of Chapman v. State of

6 California (1967) 386 U.S. 18 [87 S. Ct. 824, 17 L.Ed.2d 705]. But

Quach said this standard applied to erroneous instructions. (Quach,

7 at p. 303.) Here, the issue would be an ambiguous instruction, not an

erroneous instruction. In any event, the error is harmless under any

8 standard.

9 We note that the prosecutor did not misuse the instruction in closing

argument to the jury or exacerbate the purported ambiguity. She

10 argued that Hale was the initial aggressor, and the victim was not a

mutual combatant. She highlighted Hale's testimony that he was not

11 scared when the victim said he had a gun, and therefore he kept

walking toward the victim, assertedly in order to better hear what the

12 victim was saying. In support of her theory that Hale acted with

deliberation rather than in self-defense, the prosecutor argued, “Like

13 really? What would [the victim] be saying that was so important at

that point in time after he just said I stay strapped according to [Hale]

14 that you're gonna run up on that person. That's ridiculous.” The

prosecutor did not argue the law required that Hale try to escape

15 regardless of whether it was safe to do so before he could respond to

deadly force with deadly force.

16

Furthermore, it is not reasonably likely the jurors would have thought

17 a person had to withdraw at the risk of being killed or injured when

the purpose of self-defense is to avoid being killed or injured.

18 Contrary to Hale’s argument, there was no federal constitutional

error here precluding or limiting the jury from full consideration of

19 Hale's theory of the case.6

20

6 [Footnote nine in original text] Hale contends the length of deliberations,

21 about 19 hours, shows this was a close case. (E.g., People v. Cardenas (1982) 31

Cal.3d 897, 907, 184 Cal. Rptr. 165, 647 P.2d 569.) We disagree. The jury

22 deliberated for one hour on the first day of deliberations, returned the next day and

deliberated from 9:00 a.m. to 4:30 p.m. (during which the jury asked a question

23 about aiding and abetting culpability for discharge of the firearm). The third day,

the jury deliberated from 9:00 a.m. to 4:30 p.m. The fourth day, the jury deliberated

24 from 9:00 a.m. until 4:15 p.m., when they sent the court a note that they had reached

a verdict on everything except one count for one person. The jury did not request

25 additional instructions on self-defense during deliberations. The following morning,

the trial court entered the verdicts on count two and declared a mistrial as to count

26 one, shooting at an inhabited dwelling, alleged against Williams only. A little more

than three days of deliberations does not prove a close case, because the case

27 involved two incidents and two defendants with multiple issues, and the jury was

unable to reach a verdict on the count related to the first incident involving the drive-

28

1 Finally, any instructional error here is harmless by any standard

given the lack of evidence of mutual combat or that Hale started a

2 fight. Hale did not physically fight the victim. The victim did testify

that Hale asked if the victim was the person who got his gun “‘took’”

3 or something to that effect and then said something to the victim like,

“‘Nigga, you got my gun took. You think we playing,’” before Hale

4 began shooting. According to Hale's own testimony, he never fought

the victim, there was no physical assault occurring when he circled

5 around the pickup and approached the victim and Hale had not used

non-deadly force against the victim. There was only an exchange of

6 words. Hale claimed he pulled out his gun and began shooting

because the victim had said he was “strapped” and reached toward

7 his waistband.

8 As noted, CALCRIM No. 3471, as read to the jury in this case,

begins, “A person who engages in mutual combat or who starts a

9 fight . . . .” It goes on to say in the optional bracketed language at

issue here, “if defendant Isaiah Hale used only non-deadly force, and

10 the opponent responded with such sudden and deadly force . . . .”

Thus, non-deadly assaultive conduct by a defendant is a predicate to

11 the application of the optional bracketed paragraph in CALCRIM

No. 3471. That predicate is missing here and consequently, no

12 reasonable jury could have found self-defense or imperfect self-

defense based on CALCRIM No. 3471, even if the words “with

13 safety” had been added.7

14 We conclude there was no instructional error regarding initial

aggressor/mutual combat and, even assuming error, it was harmless

15 under any standard.

16 Lodg. Doc. No. 10 at 13-20. Petitioner raised this claim in his petition for review to the

17

by shooting at the victim's home. The length of deliberations could as easily be

18 reconciled with the jury's conscientious performance of its civic duty, rather than a

close case on the attempted murder charge. (People v. Houston (2005) 130

19 Cal.App.4th 279, 301, 29 Cal. Rptr. 3d 818.)

20

7 [Footnote ten in original text] We have discussed the wording of the

21 initial aggressor/mutual combat instruction here because the instruction was given

for the jury to consider, and Hale has argued that the trial court had a sua sponte

22 duty to add language to the instruction and trial counsel was constitutionally

ineffective for failing to ask for that language. But we also note that the trial court

23 would not have abused its discretion if it had not given the instruction. The optional

bracketed paragraph in the instruction only applies where the defendant has

24 committed a simple assault. This was recently clarified by our high court. In People

v. Salazar (2016) 63 Cal.4th 214, 202 Cal. Rptr. 3d 638, 371 P.3d 161, the court

25 wrote: “Defendant claims the self-defense instructions were incomplete because

they did not include the principle that ‘”where [a] counter assault is so sudden and

26 perilous that no opportunity be given to decline further to fight and [the defendant]

cannot retreat with safety he is justified in slaying in self-defense.”’ [Citations.] [Fn.

27 omitted.] However, as the Gleghorn and Quach courts made clear, this qualification

only applies where the defendant commits a simple assault.” (Id. at p. 249, italics

28 added.)

1 California Supreme Court. Lodg. Doc. No. 11. That petition was summarily denied. Lodg. Doc.

2 No. 12.

3 B. Relevant Federal Law

4 The Supreme Court has “repeatedly held that a state court’s interpretation of state law,

5 including one announced on direct appeal of the challenged conviction, binds a federal court

6 sitting in habeas corpus.” See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam). It

7 follows that challenges to state jury instructions based on errors of state law are not cognizable on

8 federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[W]e reemphasize

9 that it is not the province of a federal habeas court to reexamine state-court determinations on

10 state-law questions.”). Nevertheless, habeas relief may be available where a petitioner can

11 demonstrate that “the ailing instruction by itself so infected the entire trial that the resulting

12 conviction violates due process.” Id. at 72.

13 C. Analysis

14 Consistent with the foregoing, this court may not grant habeas relief on this claim merely

15 because the instruction was (allegedly) incorrect or incomplete as a matter of state law. The only

16 question is whether the instruction, as articulated, resulted in a conviction that violates due

17 process. The burden of demonstrating as much lies with petitioner and he has failed to carry it.

18 He argues that:

19 Certainly some jurors could have believed that petitioner could not

invoke self-defense because he could withdraw - that is remove

20 himself - from the fight. Such jurors, on learning that petitioner was

required not only to remove himself, but also to remove himself in

21 safety from the situation, could easily have found that petitioner was

not guilty of murder because he was justified in acting in self-

22 defense.

23 ECF No. 1 at 23-24. Such contentions are insufficient. A habeas petitioner bears the burden of

24 showing “not merely that the errors at his trial constituted a possibility of prejudice, but that they

25 worked to his actual and substantial disadvantage, infecting his entire trial with errors of

26 constitutional dimension.” United States v. Frady, 456 U.S. 152, 170 (1982). Petitioner’s failure

27 /////

28 /////

1 to point to any concrete evidence of prejudice precludes a finding that this instruction infected his

2 entire trial and rendered it constitutionally unfair.8

3 II. Ineffective Assistance by Trial Counsel

4 Petitioner argues that his trial counsel was constitutionally ineffective in failing to object

5 to the trial court’s erroneous self-defense instruction (the subject of the foregoing claim). He

6 raised this claim on direct appeal and the state court of appeal acknowledged it but did not

7 address it in any detail. ECF No. 9-10 at 14. Nevertheless, as respondent persuasively argues,

8 this claim was resolved when that court determined that the instructional error claim – upon

9 which the ineffective assistance claim was contingent – lacked merit. In light of the fact that the

10 state court of appeal determined that the trial court’s instruction was correct as a matter of state

11 law, it cannot be concluded that his trial counsel was constitutionally ineffective in failing to

12 object to it. See Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985) (holding that “[f]ailure to

13 raise a meritless argument does not constitute ineffective assistance”).

14 III. Entitlement to a Jury Trial and Sufficient Evidence as to Prior ‘Strike’ Conviction

15 Petitioner’s last two claims bear on the state court determination that a prior conviction

16 counted as a ‘strike’ pursuant to Cal. Pen. Code § 667(e)(1).9 The court will address them

17 together.

18 /////

19 /////

20 /////

21 /////

22

8 Because the court finds that this claim fails on its merits, it does not reach respondent’s

23

alternative argument that this claim is procedurally barred.

24

9 This section provides that:

25

If a defendant has one prior serious and/or violent felony conviction

26 as defined in subdivision (d) that has been pled and proved, the

determinate term or minimum term for an indeterminate term shall

27 be twice the term otherwise provided as punishment for the current

felony conviction.

28

1 A. Last Reasoned Decision

2 On direct appeal, the state court of appeal held:

3 B. Nature of the Prior Conviction Alleged as a Strike

4 1. Hale's Contentions

5 Hale argues the trial court improperly used his prior battery with

serious bodily injury conviction (§ 243, subd. (d))10 as a strike to

6 double his sentence (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)).11

Defendant notes that battery with serious bodily injury is not a strike

7 unless he personally inflicted the injury on a person who was not an

accomplice. (§ 1192.7, subd. (c)(8) ["'serious felony'" includes "any

8 felony in which the defendant personally inflicts great bodily injury

on any person, other than an accomplice"].) Hale argues: (1) there

9 was insufficient evidence that he personally inflicted injury12 or that

the victim was not an accomplice; (2) these two factual questions

10 should have been submitted to the jury and the failure to so instruct

violated defendant's Sixth Amendment right to a jury trial; and (3)

11 double jeopardy precludes retrial of the prior conviction.

12 We agree that Hale had a constitutional right to a jury determination

of the personal infliction and non-accomplice elements related to the

13 strike allegation. However, we conclude that the error was harmless

beyond a reasonable doubt.

14

15

16

10 [Footnote eleven in original text] Section 243, subdivision (d), states,

17 “When a battery is committed against any person and serious bodily injury is

inflicted on the person, the battery is punishable by imprisonment in a county jail

18 not exceeding one year or imprisonment in the state prison for two, three, or four

years.”

19

20 11 [Footnote twelve in original text] Under section 667, subdivision (e)(1),

and section 1170.12, if a defendant has one prior serious or violent felony

21 conviction, as defined in section 667.5 or 1192.7, “that has been pled and proved,

the determinate term or minimum term for an indeterminate term shall be twice the

22 term otherwise provided as punishment for the current felony conviction.” (§

1170.12, subd. (c)(1).)

23

24 12 [Footnote thirteen in original text] Normally in the context of this type

of serious felony, the inquiry is three pronged: "[W]hether the prior conviction

25 involved (1) personal infliction, (2) of great bodily injury, (3) on any person other

than an accomplice." (People v. Wilson (2013) 219 Cal.App.4th 500, 511, 162 Cal.

26 Rptr. 3d 43 (Wilson), citing § 1192.8, subd. (a).) Hale provides no argument on

appeal that the evidence was insufficient to establish that the injury inflicted was

27 great bodily injury. His focus is on the personal infliction and non-accomplice

elements.

28

1 2. Additional Background

2 Hale in his trial testimony admitted he was convicted in 2009 of “a

felony violation of 243(d).” When asked what kind of case it was,

3 Hale said, “Domestic violence.” When asked “to who was that

with?” Hale answered, “The mother of my son.”

4

Additionally, the People submitted exhibit 36, minutes and minute

5 orders from the prior conviction, certified by the superior court clerk,

which show that on March 13, 2009, before Judge Tochterman in

6 Sacramento County, Hale pleaded nolo contendere to a single count

of violating section 243, subdivision (d). On April 8, 2009, Judge

7 Winn granted Hale probation conditioned in part on Hale's

participation in a batterer's treatment program “pursuant to Section

8 273.5(e) [sic: (f)13] and/or 1203.[0]97(a)(6).”14 The typewritten order

of probation states, “Count 2 as a strike.” The minute order of the

9 March 13, 2009, plea before Judge Tochterman bears a handwritten

notation, “4/8/09 Judge Winn said Ct 2 as a strike.”15

10

The jury in this case found Hale had a prior conviction in 2009 for

11 battery with serious bodily injury in violation of section 243,

subdivision (d). CALCRIM No. 3100, the standard instruction given

12 for prior convictions, was given by the trial court. The court did not

tell the jury it needed to determine whether the prosecution had

13 proved the personal infliction and non-accomplice elements beyond

a reasonable doubt.

14

On the day set for sentencing, Hale moved to strike the prior

15 conviction (§ 1385; People v. Superior Court (Romero) (1996) 13

Cal.4th 497, 53 Cal. Rptr. 2d 789, 917 P.2d 628) on various grounds,

16 including that “the facts underlying the strike as indicated in the

probation report are minor in the sense that it was a swollen eye and

17 a small laceration . . . .” The probation report for the current case

described the incident underlying the 2009 conviction: “During a

18 verbal argument that turned physical, the 18-year-old female victim

reported that her boyfriend/defendant punched her in the face causing

19 her to fall to the ground. The victim sustained a swollen eye and a

20

13[Footnote fourteen in original text] Section 273.5, subdivision (f),

21 provides that probation granted in a domestic violence case is subject to conditions

in section 1203.097.

22

14 [Footnote fifteen in original text] Section 1203.097, subdivision (a),

23 states, “If a person is granted probation for a crime in which the victim is a person

defined in Section 6211 of the Family Code, the terms of probation shall include . .

24 . [¶] . . . [¶] (6) Successful completion of a batterer's program . . . .” Section 6211,

subdivision (d), of the Family Code defines “‘[d]omestic violence’” to include abuse

25 perpetrated against a person with whom the perpetrator has had a child.

26

15 [Footnote sixteen in original text] The exhibit does not contain the

27 charging document or a reporter's transcript of the plea or sentencing, and there is

no indication that the trial court in the current case had before it any other documents

28 from the court's file of the prior case.

1 small laceration above her eye. The victim was transported to Mercy

San Juan Hospital for further treatment.”

2

The trial court denied the motion to strike the prior conviction. The

3 court acknowledged it had discretion but said, “I think it would be an

abuse of my discretion to strike Mr. Hale's [prior conviction] in light

4 of the fact that he was on probation for a serious and violent felony

[the 2009 conviction] at the time he committed the instant offense. I

5 would note that the felony conviction was against a female, a person

to whom it appears that he was in a dating relationship with [sic]. She

6 did receive a significant injury, and so I will decline to strike Mr.

Hale's prior.” The trial court thus implicitly found that the nature of

7 the prior conviction qualified as a strike.

8 3. Applicable Legal Principles

9 For purposes of three strikes sentencing, the prosecution has the

burden to prove beyond a reasonable doubt that alleged prior

10 convictions qualify as strikes. (People v. Miles (2008) 43 Cal.4th

1074, 1082, 77 Cal. Rptr. 3d 270, 183 P.3d 1236 (Miles).) Where the

11 mere fact of the conviction does not prove the offense was a serious

felony, the nature of the conviction may be proved by the defendant's

12 admissions or “otherwise admissible evidence from the entire record

of the conviction.” (Ibid.) “A court document, prepared

13 contemporaneously with the conviction, as part of the record thereof,

by a public officer charged with that duty, and describing the nature

14 of the prior conviction for official purposes, is relevant and

admissible on this issue.” (Ibid.; see also Evid. Code, § 452.5

15 [certified copy of official record of conviction is admissible to prove

commission of prior conviction or other act, condition, or event

16 recorded by the record].)

17 “[I]f the prior [offense] was for an offense that can be committed in

multiple ways, and the record of the conviction does not disclose how

18 the offense was committed, a court must presume the conviction was

for the least serious form of the offense.” (Miles, supra, 43 Cal.4th

19 at p. 1083.) “In such a case, if the serious felony nature of the prior

conviction depends upon the particular conduct that gave rise to the

20 conviction, the record is insufficient to establish that a serious felony

conviction occurred.” (Ibid.) “On the other hand, the trier of fact may

21 draw reasonable inferences from the record presented. Absent

rebuttal evidence, the trier of fact may presume that an official

22 government document, prepared contemporaneously as part of the

judgment record and describing the prior conviction, is truthful and

23 accurate. Unless rebutted, such a document, standing alone, is

sufficient evidence of the facts it recites about the nature and

24 circumstances of the prior conviction.” (Ibid.)

25 On review for sufficiency of the evidence concerning a prior

conviction, we examine the record in the light most favorable to the

26 judgment to ascertain whether it is supported by substantial evidence.

In other words, we determine whether a rational trier of fact could

27 have found that the prosecution sustained its burden of proving the

elements of the sentence enhancement beyond a reasonable doubt.

28 (Miles, supra, 43 Cal.4th at p. 1083.)

1 Section 1170.12 calls for doubling Hale's sentence if he has a prior

conviction for a serious or violent felony as defined in sections 667.5

2 or 1192.7. (§ 1170.12, subds. (b)-(c).) Battery with serious bodily

injury under section 243, subdivision (d), is not expressly listed in

3 sections 667.5 or 1192.7 and is therefore not necessarily a strike.

(People v. Bueno (2006) 143 Cal.App.4th 1503, 1508, 50 Cal. Rptr.

4 3d 161 (Bueno).) However, section 1192.7, subdivision (c)(8),

provides that “‘serious felony’” includes “any felony in which the

5 defendant personally inflicts great bodily injury on any person, other

than an accomplice.” The element of serious bodily injury under

6 section 243 is essentially equivalent to the great bodily injury

element required for a serious felony sentencing enhancement under

7 sections 667 and 1192.7. (Bueno, at p. 1508, fn. 5; People v. Moore

(1992) 10 Cal.App.4th 1868, 1871, 13 Cal. Rptr. 2d 713 (Moore).)

8

4. Analysis

9

Hale argues there was insufficient evidence that he personally

10 inflicted injury on a non-accomplice.

11 However, Hale testified the battery was domestic violence against

the mother of his child. This constitutes conclusive evidence that the

12 injured person was not Hale's accomplice in inflicting the battery.

The person who was hurt was the victim of the crime for which

13 defendant was convicted, a crime defendant characterized as

domestic violence, as opposed to assisted suicide or some crime

14 where the victim could also be an accomplice to the commission of

the crime. For example, this is clearly not a case where a confederate

15 was injured by a coperpetrator during the commission of some other

felony.

16

As to personal infliction by Hale, he argues there is no evidence that

17 he personally inflicted the injuries on the mother of his child. We

disagree. Even if we do not consider the handwritten and typed

18 notations that the conviction was a "strike" in the record of

conviction, the trial court in the 2009 case specifically required that

19 Hale himself participate in a “batterer's treatment program” as a

condition of probation. The sentencing record is a record of

20 conviction that may be used to establish the nature of a strike

conviction. (See People v. Smith (1988) 206 Cal.App.3d 340, 345,

21 253 Cal. Rptr. 522 [transcript of the sentencing hearing is a record of

conviction]; People v. Colbert (1988) 198 Cal.App.3d 924, 930, 244

22 Cal. Rptr. 98 [abstract of judgment is a record of conviction

admissible to prove a strike allegation].) Based on Hale's testimony

23 and the condition of probation noted in the records admitted to prove

the strike, it was reasonable for the trier of fact in the current case,

24 here the trial court, to infer that Hale was the one who inflicted the

injuries on the mother of his child in the 2009 case. (Miles, supra, 43

25 Cal.4th at p. 1083 [“trier of fact may draw reasonable inferences

from the record presented”]; People v. Ledbetter (2014) 222

26 Cal.App.4th 896, 900-901, 166 Cal. Rptr. 3d 448 [same].)

27 Moreover, we disagree with Hale that a trier of fact could not

consider the notations on the 2009 minute orders that indicate Hale

28 pled to a strike. Hale characterizes these notations as being “curious”

1 because one handwritten notation on the March 13, 2009, minutes

was dated April 8, 2009. Hale also argues the notations are unreliable

2 hearsay of individual judge's opinions. However, the postdated

handwritten notation does not detract from the typewritten statement

3 in the April 2009 probation order that the conviction was a strike.

The 2009 court records indicating the battery was a “strike” are

4 admissible to show Hale pleaded no contest to a strike. (Evid. Code,

§§ 452.5 [certified copy of official record of conviction is admissible

5 to prove commission of prior conviction or other act, condition, or

event recorded by the record], 664 [“[i]t is presumed that official

6 duty has been regularly performed”].) We reject Hale's unsupported

assertion that we should reject as meaningless “opinion” the

7 sentencing judge's inclusion in the probation order that the

conviction was a strike. As we have noted, “the trier of fact may draw

8 reasonable inferences from the record presented. Absent rebuttal

evidence, the trier of fact may presume that an official government

9 document, prepared contemporaneously as part of the judgment

record and describing the prior conviction, is truthful and accurate.

10 Unless rebutted, such a document, standing alone, is sufficient

evidence of the facts it recites about the nature and circumstances of

11 the prior conviction.” (Miles, supra, 43 Cal.4th at p. 1083.)

12 We conclude substantial evidence supports the conclusion that the

2009 conviction was a serious felony offense and thus a strike within

13 the meaning of the three strikes law. However, as we shall now

discuss, the trial court should not have been the trier of fact.

14

C. Right to Jury Trial on the Strike Allegation16

15

2. Analysis

16

In People v. McGee (2006) 38 Cal.4th 682, 708-709, 42 Cal. Rptr.

17 3d 899, 133 P.3d 1054 (McGee), the California Supreme Court held

that a defendant has no federal constitutional right to a jury

18 determination as to whether a prior conviction qualifies as a serious

felony. Rather, whether the nature of the prior conviction met the

19 requirements for a strike was a matter to be determined by the trial

court, even when the trial court was required to determine facts

20 underlying the conviction. (Ibid. [no Sixth Amendment right to a jury

trial regarding whether a Nevada robbery conviction qualified as a

21

22 16 [Footnote seventeen in original text] The People contend that defendant

has forfeited his Sixth Amendment claim by not raising it in the trial court. A

23 challenge to the sufficiency of the evidence, founded in a violation of the Sixth

Amendment right to jury trial, is cognizable on appeal without objection to the

24 evidence in the trial court. (People v. McCaw (2016) 1 Cal.App.5th 471, 477, fn. 3,

203 Cal. Rptr. 3d 914 (McCaw), citing People v. Trujillo (2010) 181 Cal.App.4th

25 1344, 1350, fn. 3, 105 Cal. Rptr. 3d 316 [“an argument that the evidence is

insufficient to support a verdict is never waived”].) Moreover, the claim is not

26 forfeited because the trial court was not authorized to impose an enhanced sentence

without a jury determination on the factual issues of personal infliction and non-

27 accomplice victim, and “‘[i]f a trial court imposes a sentence unauthorized by law,

a reviewing court may correct that sentence whenever the error is called to the court's

28 attention.’” (Wilson, supra, 219 Cal.App.4th at p. 518.)

1 strike conviction where the elements of robbery in Nevada were

different than in California, but defendant's conduct as reflected in

2 the record of conviction was conduct that would constitute a serious

felony under California law].)

3

The McGee court recognized, however, that the United States

4 Supreme Court was yet to weigh in on this issue. The court wrote:

“Unless and until the high court directs otherwise, we shall assume

5 that the precedents from that court and ours support a conclusion that

sentencing proceedings such as those conducted below do not violate

6 a defendant's constitutional right to a jury trial. Although we

recognize the possibility that the high court may extend the scope of

7 the Apprendi decision . . . , we are reluctant, in the absence of a more

definitive ruling on this point by the United States Supreme Court, to

8 overturn the current California statutory provisions and judicial

precedent that assign to the trial court the role of examining the

9 record of a prior criminal proceeding to determine whether the

ensuing conviction constitutes a qualifying prior conviction under

10 the applicable California sentencing statute. . . . [W]e are not

prepared to assume that the high court will interpret the federal

11 constitutional right to a jury trial as requiring a state to assign this

function to a jury.” (McGee, supra, 38 Cal.4th at p. 686.)

12

The United States Supreme Court spoke on this matter in Descamps

13 v. United States (2013) ___ U.S. ___ [133 S. Ct. 2276, 186 L.Ed.2d

438]. Following Descamps, several courts of appeal have concluded

14 that criminal defendants have a Sixth Amendment right to have a jury

determine whether conduct underlying a prior conviction qualifies

15 the conviction as a serious felony offense. (McCaw, supra, 1

Cal.App.5th at pp. 484-485 [Sixth Amendment right to jury trial was

16 violated where the trial court determined a New York robbery

qualified as a California strike based on the New York plea transcript

17 showing that the defendant took property from the robbery victim's

person]; People v. Denard (2015) 242 Cal.App.4th 1012, 1030-1031,

18 195 Cal. Rptr. 3d 676 [right to jury trial was violated by trial court's

use of facts in a Florida probable cause affidavit to establish that

19 conduct underlying the prior conviction constituted a strike]; People

v. Saez (2015) 237 Cal.App.4th 1177, 1207, 189 Cal. Rptr. 3d 72

20 [“while Descamps did not explicitly overrule McGee, Descamps's

discussion of the Sixth Amendment principles applicable when prior

21 convictions are used to increase criminal sentences is clear and

unavoidable”; determination by trial court that the defendant

22 personally used a firearm from the record of conviction violated the

defendant's Sixth Amendment right to jury trial].)

23

Two of the post-Descamps court of appeal cases involved the

24 elements at issue here — whether the defendant personally inflicted

great bodily injury on a non-accomplice in the commission of the

25 prior conviction offense. (People v. Marin (2015) 240 Cal.App.4th

1344, 1363, 193 Cal. Rptr. 3d 294 [prior conviction for vehicular

26 manslaughter; under Descamps, judicial factfinding authorized by

McGee, going beyond the elements of the crime to determine

27 whether the record of conviction reveals whether the conviction was

based on conduct that would constitute a serious felony under

28 California law violates the Sixth Amendment]; Wilson, supra, 219

1 Cal.App.4th at p. 516 [prior conviction for vehicular manslaughter

while intoxicated; “[a] court may not impose a sentence above the

2 statutory maximum based on disputed facts about prior conduct not

admitted by the defendant or implied by the elements of the

3 offense”].)

4 We agree with the reasoning in these cases. Descamps represents the

guidance the California Supreme Court indicated was needed from

5 the high court before it could be said that a judicial determination of

whether conduct underlying prior convictions constitutes a serious

6 felony offense violates the Sixth Amendment right to jury trial. (See

McGee, supra, 38 Cal.4th at p. 709.) The determination of whether a

7 defendant personally inflicted the victim’s injuries and whether the

victim was an accomplice must be made by a jury, unless a jury trial

8 is waived by the defendant.

9 3. Harmless Error

10 Even though Hale was entitled to a jury determination regarding the

personal infliction and non-accomplice elements of the serious

11 felony conviction allegation, we need not reverse if we conclude the

error was harmless. “‘Failure to submit a sentencing factor to the

12 jury, like failure to submit an element to the jury, is not structural

error.’ [Citation.] ‘Such an error does not require reversal if the

13 reviewing court determines it was harmless beyond a reasonable

doubt, applying the test set forth in Chapman v. California (1967)

14 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.’” (Wilson, supra, 219

Cal.App.4th at pp. 518-519, quoting People v. French (2008) 43

15 Cal.4th 36, 52-53, 73 Cal. Rptr. 3d 605, 178 P.3d 1100 (French)

[“‘The failure to submit a sentencing factor to a jury may be found

16 harmless if the evidence supporting that factor is overwhelming and

uncontested, and there is no 'evidence that could rationally lead to a

17 contrary finding.’”].)

18 We conclude beyond a reasonable doubt that a jury would have found

Hale's strike allegation true. The evidence supporting findings on the

19 elements at issue is compelling and uncontested. There is no

evidence that could rationally lead to a contrary finding. (French,

20 supra, 43 Cal.4th at pp. 52-53.)

21 As we have noted, serious bodily injury is the equivalent of great

bodily injury for strike enhancements. (Bueno, supra, 143

22 Cal.App.4th at p. 1508, fn. 5; Moore, supra, 10 Cal.App.4th at p.

1871.) Defendant admitted the prior conviction was one of domestic

23 violence involving the mother of his child. For the reasons we have

stated, the victim could not have been an accomplice. Defendant was

24 ordered to attend a batterer's treatment program. It can be reasonably

inferred from these facts that defendant personally inflicted the

25 injury, even without consideration of the notations on the court

documents. However, the notations on the minute orders provide

26 additional evidence that Hale pled to a strike. There can be no

contrary rational conclusion.

27

28

1 The error in the trial court determining that Hale's prior conviction is

a serious felony offense and thus a strike, is harmless beyond a

2 reasonable doubt.

3 Lodg. Doc. No. 10 at 20-30. Petitioner raised both claims in his petition for review to the

4 California Supreme Court. Lodg. Doc. No. 11. As noted supra, the California Supreme Court

5 summarily denied that petition. Lodg. Doc. No. 12.

6 B. Relevant Federal Law

7 1. Jury Trial

8 “Other than the fact of a prior conviction, any fact that increases the penalty for a crime

9 beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a

10 reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). An error under Apprendi

11 is subject to review for harmless error. Washington v. Recuenco, 548 U.S. 212, 222 (2006). The

12 appropriate standard of review is found in Neder v. United States, 527 U.S. 1 (1999) which

13 explained that an error is harmless where the record contains “overwhelming” and

14 “uncontroverted” evidence supporting an element of the crime. See United States v. Zepeda-

15 Martinez, 470 F.3d 909, 913 (9th Cir. 2006). By contrast, an error is not harmless where “the

16 defendant contested the omitted element and raised evidence sufficient to support a contrary

17 finding.” Id. When a state court determines that a constitutional violation is harmless, the

18 harmlessness determination itself must be unreasonable. Mitchell v. Esparza, 540 U.S. 12, 18

19 (2003).

20 2. Sufficiency of the Evidence

21 The Fourteenth Amendment’s Due Process Clause guarantees that a criminal defendant

22 may be convicted only “upon proof beyond a reasonable doubt of every fact necessary to

23 constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). The

24 Supreme Court announced the federal standard for determining the sufficiency of the evidence to

25 support a conviction in Jackson v. Virginia, 443 U.S. 307 (1979). “[T]he relevant question is

26 whether, after viewing the evidence in the light most favorable to the prosecution, any rational

27 trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id.

28 at 319.

1 The Supreme Court has explicitly noted, however, that “[w]e have not extended Winship’s

2 protections to proof of prior convictions used to support recidivist enhancements.” Dretke v.

3 Haley, 541 U.S. 386, 395 (2004).

4 C. Analysis

5 The state court of appeal’s determination of these claims was not unreasonable. The

6 record indicated that: (1) petitioner had previously been convicted of felony domestic violence

7 (ECF No. 9-5 at 111); (2) the victim of that crime was the mother of petitioner’s child (id.);

8 (3) petitioner was, in connection with the 2009 felony, sentenced to probation on the condition

9 that he participate in a batterer’s treatment program (ECF No. 9-3 at 8); and (4) the minute order

10 of petitioner’s 2009 plea bore a notation indicating that it was a strike (id. at 9). Based on the

11 foregoing, the court of appeal was reasonable in concluding that there was sufficient evidence by

12 which to conclude that petitioner – who had been convicted of domestic violence - personally

13 inflicted injury on a non-accomplice – the mother of his child. This conclusion is further

14 bolstered by the sentencing requirement that petitioner enroll in a batterer treatment program.

15 Assuming the Winship protections apply here, the standard announced in Jackson was clearly

16 met. The evidence supporting the fact that he personally inflicted injury on a non-accomplice

17 was overwhelming.

18 And, in light of the foregoing, the court finds that the state court of appeal was not

19 unreasonable in concluding that failure to submit the issue to a jury was harmless. Notably,

20 plaintiff failed to present any evidence of his own which meaningfully rebuts the convincing

21 evidence relied on by the court of appeal. Instead, he relies primarily on the Supreme Court’s

22 decision in Descamps v. United States, 570 U.S. 254 (2013). He claims that Descamps forbids

23 the review of documents – of the sort conducted by the court of appeal in this case – to “discern

24 what a trial showed, or a plea revealed, about a defendant’s underlying conduct.” ECF No. 1 at

25 28 (quoting Descamps, 570 U.S. at 269). Descamps, however, only “clarified application of the

26 modified categorical approach in light of existing precedent.” Ezell v. United States, 778 F.3d

27 762, 766 (9th Cir. 2015). “Descamps is a statutory interpretation case: It clarifies when certain

28 crimes qualify as violent felonies under the ACCA [Armed Career Criminal Act], a congressional

1 || enactment.” Id. Descamps did not “impose a new obligation nor did it break new ground” nor

2 | did it announce a new rule of constitutional law. Jd. at 766-67. It certainly did not, as respondent

3 || points out, overrule the Supreme Court’s previous decisions in Recuenco or Neder.

4 Thus, both claims fail.

5 CONCLUSION

6 For all the reasons explained above, the state courts’ denial of petitioner’s claims was not

7 || objectively unreasonable within the meaning of 28 U.S.C. § 2254(d). Accordingly, IT IS

8 | HEREBY RECOMMENDED that the petition for writ of habeas corpus be denied.

9 These findings and recommendations are submitted to the United States District Judge

10 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days

11 | after being served with these findings and recommendations, any party may file written

12 || objections with the court and serve a copy on all parties. Such a document should be captioned

13 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

14 | shall be served and filed within fourteen days after service of the objections. Failure to file

15 || objections within the specified time may waive the right to appeal the District Court’s order.

16 || Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir.

17 || 1991). In his objections petitioner may address whether a certificate of appealability should issue

18 | in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section

19 || 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a

20 || final order adverse to the applicant).

21 | DATED: October 29, 2019.

22 EDMUND F. BRENNAN

73 UNITED STATES MAGISTRATE JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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