(HC) Moore v. Frauenheim

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 RYAN JUDSON MOORE, No. 2:19-cv-155-WBS-EFB P

12 Petitioner,

13 v. FINDINGS AND RECOMMENDATIONS

14 SCOTT FRAUENHEIM,

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 Solano County Superior Court of second degree murder (Pen. Code § 187, subd. (a)) and firearm

20 enhancements (§§ 12022.53 (b)-(d)). The instant habeas petition raises three claims. First,

21 petitioner argues that the state court erred when it concluded that his constitutional rights were not

22 violated in light of a juror’s prejudicial statements during deliberations. Second, he argues that

23 the state court of appeal unreasonably concluded that the jury’s discussions regarding his failure

24 to testify did not amount to federal constitutional error. Third, petitioner argues that the state

25 court of appeal unreasonably concluded that the instructions on involuntary manslaughter did not

26 relieve the prosecution of its burden of proof on the issue of malice.

27 For the reasons stated below, it is recommended that the petition be denied.

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1

1 FACTUAL BACKGROUND

2 Both petitioner and the respondent accept1 (and reproduce in their briefs) the state court of

3 appeal’s summation of the facts. ECF No. 1 at 16; ECF No. 19-1 at 9. The court has reviewed

4 the record and, having done so, finds nothing therein that clearly and convincingly rebuts the

5 summation. See Moses v. Payne, 555 F.3d 742, 746 n. 1 (9th Cir. 2009) (“Because this initial

6 statement of facts is drawn from the state appellate court’s decision, it is afforded a presumption

7 of correctness that may be rebutted only by clear and convincing evidence.”). Thus, the

8 summation is reproduced here:

9 Prosecution Case

10 On October 23, 2012, at around 7:00 or 8:00 p.m., Moore invited his

friend, Timothy W., over to play a video game. Timothy walked to

11 Moore’s house in Suisun City. When Timothy arrived at Moore’s

house, he walked in through the open front door, used the restroom,

12 then returned to the living room and sat down in a tan recliner. Moore

was standing by a blue recliner. Brown, who was a friend of Moore’s

13 and the girlfriend of Timothy’s uncle, was sitting on the couch.2

Brown and Moore were acting friendly.

14

Moore asked Brown to make him a burrito. She agreed and went to

15 the kitchen. Meanwhile, Moore received a text message from his ex-

girlfriend, which he showed to Timothy. Immediately thereafter,

16 Moore looked “sad” and “down.” Timothy asked, “can we play the

game now[?]” Brown returned from the kitchen, handed Moore a

17 plate with the burrito, and sat down again on the couch. Moore put

the plate down and picked up a bottle of tequila, which he guzzled

18 “like it was water.” Moore’s sister called and asked to borrow a tool.

After Moore refused, his sister hung up. Moore said, “my family

19 hates me” and guzzled more tequila, still appearing sad.

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22 1

Petitioner offers the qualification that he “accepts the Court of Appeal’s summary of

23 procedural and general evidentiary facts except to the extent it is inconsistent with the express or

implied factual averments and/or legal arguments set forth below.” ECF No. 1 at 16. Having

24 reviewed the petition, the court concludes that nothing therein contradicts the summation.

Petitioner does offer additional background discussing why the state’s own evidence militated in

25 favor of an involuntary manslaughter verdict (id. at 20-22), but this additional context/argument

26 does not contradict or otherwise invalidate the state court’s summation.

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27 [footnote in original text] Moore was letting Brown stay at the house for a few days

because Timothy’s uncle had obtained a restraining order against her.

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1 While remaining seated in the recliner, Moore began playing with a

butterfly knife. Timothy told Moore, who was two or three feet from

2 him, not to play with the knife because it could “fly out of his hand

and cut one of us.” Brown said, “‘he’s not going to cut me.’” The

3 knife fell out of Moore’s hand and dropped to the floor. Moore stood

up and went to a corner of the room, where he picked up a rifle

4 without saying anything.3 Moore held the rifle with two hands and

banged the barrel of the rifle against his head twice.

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Timothy, who was still seated in the tan recliner, told Moore, “put

6 the gun down.” Moore did not and, while standing about one foot

away from Brown, aimed it at Brown’s front left side. Moore was

7 still using both hands to hold the rifle—one hand was on the front of

the gun and the other was on the trigger. Timothy told Moore to take

8 his finger off the trigger. Brown said, “‘he’s not going to shoot me.’”

Moore “fired the gun.”4

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Timothy asked Moore: “Did you shoot her? Did you shoot her? Like

10 are you playing? Are you playing?” After being shot, Brown stood

up and said, “‘this mother fucker shot me.’” She slumped and held

11 her side. Moore dropped the rifle, went to Brown, and attempted to

stop the bleeding and give her cardiopulmonary resuscitation.

12 Fearing for his own life, Timothy ran to his uncle’s house a few

blocks away. Because Timothy did not have a cell phone, he called

13 911 from his uncle’s home, telling the dispatcher he witnessed “a

white guy” shoot “a black female.” After calling 911, Timothy called

14 his mother and asked her to drive him back to Moore’s house. There,

Timothy told police he witnessed the shooting.5

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[footnote in original text] Moore’s brother-in-law lived with Moore and was not at home

20 on the evening of the shooting. He testified that the rifle belonged to Moore; Moore initially kept

the rifle in his bedroom; and, more recently, had kept the rifle in the living room.

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22 [footnote in original text] The prosecutor asked Timothy if Moore said anything before

firing the gun. Timothy answered, “No.” Timothy was then asked if he remembered testifying at

23 the preliminary hearing that, before firing the gun, Moore said, “I’m going to shoot her.” After

reviewing the preliminary hearing transcript and a statement he gave to a police officer on the

24 night of the shooting, Timothy still could not recall stating as much. Timothy was asked, “Do

you remember [Moore] saying ‘I’m going to shoot her then’ that evening before he fired the

25 gun?” Timothy answered: “I don’t recall. I think so.” Finally, when asked if on the night of the

26 incident he related to police the statement, “I’m going to shoot her then,” Timothy recalled having

done so. On redirect examination, Timothy again stated he could not currently remember what

27 Moore said on the night of the shooting.

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[footnote in original text] On cross-examination, Timothy denied ever touching the gun.

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1 Police Investigation

2 At 8:19 p.m., Moore called 911, telling the operator he killed

someone by “accident” and had tried to give her cardiopulmonary

3 resuscitation, but she was going to die. The dispatcher could not

understand Moore and hung up after 30 seconds. Moore called back

4 a minute later.

5 When Suisun City Police Department Officers James Sousa and

David O’Brien arrived at the scene, Moore was standing in the

6 doorway, smoking a cigarette, and talking on a phone. Moore was

“frantic, confused, crying,” and had blood on his hands. On the living

7 room floor, Sousa and O’Brien found Brown’s unresponsive body.

Brown had been shot in the chest above her left breast. A video game

8 controller was found on the tan recliner and a bottle of tequila was

found nearby.

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The police officers searched “[e]verywhere” for a firearm—inside

10 the house, inside the garage, and outside. It was dark, but Sousa used

a flashlight to search the front yard, the backyard, as well as the side

11 yard between Moore’s house and a neighbor’s house to the east.

O’Brien searched the side yard on the west side of the house. No

12 weapon was located.

13 Later that night, while in a holding cell at the police station, Moore

banged on his cell door and spontaneously told a police officer, “I

14 killed her. I did it. He ain’t got nothing to do with it.” Moore

repeatedly said it was an accident and he did not mean for it to

15 happen. Later, when the same officer transported Moore to county

jail, Moore again said the shooting was an accident. Moore, who

16 appeared to be under the influence of alcohol, also said he was going

to jail for a long time “because that’s what happens when you kill

17 someone.”

18 Forensic pathologist, Susan Hogan, M.D., determined Brown died

from a gunshot wound to the chest. Hogan did not observe any soot

19 or stippling on Brown’s clothing or body, which she would expect to

see if the gun was fired within three feet of the victim.

20

Defense Case

21

Moore’s next door neighbor came home from his night shift early in

22 the morning on October 24, 2012. Using a flashlight, he looked over

Moore’s front yard for five minutes but did not see a gun. Around

23 noon, the neighbor went back outside and saw a rifle in Moore’s front

yard. Police collected the weapon. No latent fingerprints were found

24 on the weapon, a .22-caliber rifle. The rifle had water spots on it that

could have been produced by someone cleaning it. Low level DNA

25 mixtures were found on the rifle, but the samples were insufficient

for interpretation.

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1 On the night of the shooting, both Moore and Timothy were tested

for the presence of gunshot residue.6 The results were positive for

2 each. As gunshot residue can be found on a person’s hands after

firing a weapon or being in the vicinity of a fired weapon, the

3 shooter’s identity could not be determined. A blood sample was also

taken from Moore at around 10:50 p.m. on October 23. The sample

4 showed Moore had a 0.33 percent blood alcohol concentration

(BAC).

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The defense firearms expert, criminalist Peter Barnett, examined the

6 rifle and observed it had an intermittent problem where the trigger

could be cocked simply by rotating the bolt, rather than pulling it

7 back.7 Barnett’s test of the rifle’s trigger pull showed it requires three

pounds of pressure to pull the trigger, which is somewhat lighter than

8 in similar weapons. Barnett opined that if a person were to hold the

rifle in the standard way with his finger on the trigger, and another

9 person yanked it out of his hands with a sudden motion, that action

could cause sufficient force for the gun to discharge.

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Psychiatrist Randall Solomon, M.D., testified as an expert regarding

11 the effects of alcohol on the brain and memory. Solomon testified

alcohol can impact memory after as little as two drinks, but the more

12 a person drinks, the more likely it will cause memory problems, such

as a “blackout”—a type of amnesia that happens when short-term

13 memories do not get encoded as long-term memories. Short-term

memory is not affected by alcohol. A person can still function during

14 a blackout and observers might not know it is happening.

Fragmentary blackout is the most common type. It creates holes in

15 memory that a person might not be aware of until asked about

something he cannot remember. A complete blackout is a period of

16 no memory at all.

17 At 0.3 percent BAC, Solomon opined there would be a greater than

50 percent chance of a blackout. Not everyone would experience

18 blackout at that BAC, but drinking very rapidly would also increase

the probability. If BAC was at that level three hours after a person

19 stopped drinking, his or her BAC necessarily would have declined to

that level from an earlier, higher BAC. If someone was able to

20 remember details an hour or three hours later then he would not have

been in a complete blackout, unless he had been rehearsing these

21 details in his short term memory the entire time.

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23 [footnote in original text] Timothy, who had been arrested before, later hired an attorney

because he felt the police were pressuring him to “say something [he] had nothing to do with.”

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[footnote in original text] On cross-examination Barnett acknowledged that even though

25 the rifle had an intermittent issue, the rifle would not be capable of firing unless the cartridge was

26 inserted into the chamber. He also acknowledged that, in order to chamber a round, the bolt must

be pulled up into the open position and pulled down all the way back, then pushed forward. The

27 rifle is a single-action weapon, meaning the hammer has to be cocked and ready to fire before you

press the trigger. in addition, before it can be fired, the safety has to be off.

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1 Moore’s friend, Rashaun M.,8 testified that on the night of the

shooting he was at a hospital in San Francisco with his daughter.

2 Rashaun received a phone call from his family that night, during

which he spoke to Timothy about what happened. Timothy did not

3 mention a gun. After learning Brown had been shot, Rashaun told

Timothy to go back to Moore’s house and call the police. Sometime

4 later, Rashaun saw Timothy in person. Timothy then told Rashaun

that, when Moore dropped the gun, Timothy picked it up, hopped

5 over the couch, and ran with it to his uncle’s home.

6 Six character witnesses testified they knew Moore to be peaceful,

reliable, generous, trustworthy, protective, and honest.

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People’s Rebuttal Case

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Angela M., Rashaun’s aunt and Timothy’s mother, testified she had

9 been sitting outside the courtroom with Timothy during Moore’s

trial. Rashaun approached her and said he was going into the

10 courtroom. When Angela asked him not to, Rashaun said, “Auntie,

I don’t give an ‘F’ about [Brown].” He added, “If I get called as a

11 witness, I’m going to lie for my partner, to get my partner off.”

12 Instructions and Closing Argument

13 The trial court repeatedly informed the jury of Moore’s constitutional

right not to testify and that no negative inference could be drawn

14 from Moore’s exercise of the right.9 The jury also received

instructions, among others, on premeditated first degree murder,

15 express and implied malice second degree murder, accidental

homicide, and involuntary manslaughter. Moore also requested, and

16 received, an instruction that if, while unconscious as the result of

voluntary intoxication, he killed without malice or intent to kill, the

17 crime was not murder, but involuntary manslaughter. The jury was

also instructed, as to crimes requiring specific intent, that it could

18 consider the effect of Moore’s voluntary intoxication, if any, when

determining whether he formed such intent.

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During closing argument, the prosecutor maintained Moore was

20 guilty of either first or second degree murder. The People relied on

both express and implied malice theories, arguing that Moore’s

21 words and actions—aiming the rifle at Brown’s chest and pulling the

trigger after being warned to put the gun down and take his finger off

22 the trigger—showed either intent to kill or conscious disregard for

human life.

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[footnote in original text] Rashaun is Timothy’s cousin and Brown was Rashaun’s

father’s girlfriend.

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26 [footnote in original text] Specifically, the jury was instructed: “A defendant has an

absolute, constitutional right not to testify. He may rely on the state of the evidence and argue

27 that the People have failed to prove the charges beyond a reasonable doubt. Do not consider for

any reason at all the fact that the defendant did not testify. [¶] Do not discuss that factor in your

28 deliberations or let it influence your decision in any way.”

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1 Defense counsel contended Moore’s behavior after the shooting was

inconsistent with malice and showed the shooting was an accident or

2 that, at most, Moore was guilty of involuntary manslaughter if he was

either criminally negligent or unconscious due to voluntary

3 intoxication. Counsel also claimed the jury could find the shooting

was accidental by inferring Timothy’s involvement in a struggle over

4 the rifle. In rebuttal, the prosecutor argued the defense’s theory of the

case was inconsistent with the evidence.

5

Verdict

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The jury found Moore not guilty of first degree murder, convicted

7 him of second degree murder, and found the firearm enhancements

true. Moore filed a motion for new trial, which was denied after an

8 evidentiary hearing. The trial court sentenced Moore to an

indeterminate term of 40 years to life in state prison. A timely notice

9 of appeal followed.

10 ECF No. 20-9, Ex. C, at 2-8.

11 STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA

12 I. Applicable Statutory Provisions

13 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of

14 1996 (“AEDPA”), provides in relevant part as follows:

15 (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

16 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

18 an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

19 States; or

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

determination of the facts in light of the evidence presented

21 in the State court proceeding.

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

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

24 362, 412 (2000). It does not, however, “imply abandonment or abdication of judicial review,” or

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

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

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

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

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

3 (2011). State court rejection of a federal claim will be presumed to have been on the merits

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

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

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

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

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

9 A. “Clearly Established Federal Law”

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

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

12 538 U.S. 63, 71 72 (2003). Only Supreme Court precedent may constitute “clearly established

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

14 issue is clearly established by Supreme Court precedent.” Marshall v. Rodgers, 569 U.S. 58, 64

15 (2013).

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

Federal Law

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

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

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

21 529 U.S. at 404-05 (the “contrary to” and “unreasonable application” clauses of (d)(1) must be

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

23 available).

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

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

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

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

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

2 283 F.3d 1040, 1051 n.5 (9th Cir. 2002). See, e.g., Williams, 529 U.S. at 391, 393 95 (Virginia

3 Supreme Court’s ineffective assistance of counsel analysis “contrary to” Strickland10 because it

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

5 2010) (California Supreme Court’s Batson11 analysis “contrary to” federal law because it set a

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

7 F.3d at 734 35 (Arizona court’s application of harmless error rule to Faretta12 violation was

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

23 539 U.S. at 526 28 & 534; Rompilla v. Beard, 545 U.S. 374, 388 909 (2005); Porter v.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

17 those arguments or theories to § 2254(d) scrutiny. Harrington, 562 U.S. at 101-102.

18 C. “Unreasonable Determination Of The Facts”

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

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

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

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

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

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

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

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

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

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

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

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

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

5 366 F.3d 992, 999 1001 (9th Cir.), cert. denied, 543 U.S. 1038 (2004). Moreover, if “a state

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

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

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

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

10 2254(d)(2) because “state court . . . refused Nunes an evidentiary hearing” and findings

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

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

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

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

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

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

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

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

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

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

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

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

23 II. The Relationship Of § 2254(d) To Final Merits Adjudication

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

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

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

27 2008) (en banc). There is no single prescribed order in which these two inquiries must be

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

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

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

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

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

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

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

8 1070 71 (9th Cir. 2006) (finding § 2254(d)(1) unreasonableness in the state court's conclusion

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

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

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

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

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

14 capital sentencing, and granting penalty phase relief).

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

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

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

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

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

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

21 DISCUSSION

22 I. Juror Misconduct

23 After the jurors rendered their verdict, petitioner moved for a new trial. ECF No. 20-2

24 (Clerk’s Transcript Vol. 2) at 10 – 11. The motion was based on juror affidavits which indicated

25 that misconduct had occurred during deliberations. Id. at 13. There are two separate instances of

26 purported misconduct at issue. Prior to examining each issue, the court finds it useful to

27 reproduce the state court of appeal’s summation of the background surrounding juror misconduct

28 and the motion for new trial:

12

1 On the day after the jury delivered its verdict, the trial court’s judicial

assistant received a call from Juror No. 3, who indicated he had

2 “second thoughts about the verdict and [believed] that the jury came

to the wrong conclusion.” Moore moved for a new trial, on the

3 grounds of, inter alia, alleged juror misconduct. Moore relied on

declarations from Juror Nos. 3 and 10 stating the jury had discussed

4 Moore's failure to testify. Juror No. 3 declared: “Jurors #7, 9, and 10

discussed during deliberations that [Moore] did not testify. They

5 stated that they would have understood the holes in the story of this

case better if [Moore] had testified. These three jurors also stated

6 that [Moore’s] failure to testify supported their belief and their

verdict that he was guilty of murder.”

7

Juror No. 10 declared: “During the course of deliberations, the jury

8 spent at least four hours over the several days of deliberations

discussing the fact that [Moore] did not take the stand. This was a

9 recurring topic that the jury returned to many times during

deliberations. Included in these conversations were statements that

10 the case involved many unexplained questions that could have been

answered had [Moore] taken the stand and testified. Additionally, it

11 was discussed that [Moore] should have tried to protect his innocence

by taking the stand and that he should have testified because he was

12 on trial for murder. It was also discussed that had [Moore] taken the

stand and testified regarding what occurred, it would have likely

13 helped to lessen his degree of culpability. The jury also discussed

the fact that [Moore] must not have taken the proceedings seriously

14 as he did not take the stand in his defense. Finally, it was discussed

that [Moore] seemed genuinely sympathetic on the 911 call and that,

15 had he taken the stand in his own defense, the jury would have better

understood what was on his mind and the outcome of the trial would

16 likely have been different.”

17 The People opposed Moore’s motion, supporting their opposition

with declarations from Jurors Nos. 2, 3, 5, 8, 9, and 10. Juror No. 2

18 declared: “During deliberations the subject of [Moore’s] failure to

testify came up twice. [¶] When the subject arose, at least three

19 people reminded the jury [Moore’s] failure to testify cannot be taken

into account. [¶] . . . [J]urors explained the court instructed them not

20 to allow [Moore's] failure to testify to sway their judgment because

it is the burden of the prosecutor to prove the defendant committed

21 the crime. [¶] I would not characterize the subject as being

‘discussed’ during deliberations. I would call it one of those ‘quick

22 things.’ [¶] There was no agreement between the Jury to disregard

the Judges [sic] instructions regarding [Moore's] failure to testify. [¶]

23 I personally reminded the jury of the [trial court's] instruction . . . .”

24 Declarations of Juror Nos. 5 and 8 were similar. Juror No. 5 stated:

“During the course of the Jury’s deliberations I heard brief comments

25 from jurors about [Moore's] failure to testify. [¶] These comments

did not last very long and I certainly do not remember anyone talking

26 about the topic for hours at a time. [¶] At no time during the

deliberations did I mention [Moore’s] failure to testify had an effect

27 on my decision. [¶] I did not observe any of the jurors mention

[Moore’s] failure to testify was affecting their decision making

28 process during the course of the deliberations. [¶] There was no

13

1 explicit or implicit agreement . . . to disregard the Court’s instruction

regarding [Moore's] failure to testify.” Juror No. 8 stated: “During

2 the deliberations three of the jurors discussed [Moore’s] failure to

testify for a few minutes if that. [¶] There was no explicit or implicit

3 agreement among the Jury to disregard the Court's instruction

regarding [Moore’s] failure to testify. [¶] Some of the jurors spoke

4 out and reminded the Jury [Moore] has the right not to take the stand

and it was up to the District Attorney to prove his case.”

5

Juror No. 9 declared: “One of the juror[s] indicated they wished

6 [Moore] would have testified. [¶] The other jurors immediately

responded the Judge instructed us that you cannot hold that against

7 the defendant. [¶] I never stated [Moore’s] failure to testify supported

my belief of what happened and that [Moore] was guilty of murder.

8 [¶] The other jurors also responded the jury needs to piece together

the facts based upon the evidence that had been received during the

9 trial. [¶] The discussion about [Moore’s] failure to testify lasted

seconds. The discussion lasted at most ten seconds. [¶] There was no

10 agreement by the jury to disregard the courts instructions on any

point of law.” Juror No. 3 also submitted a declaration in support of

11 the People’s opposition, in which he stated: “During deliberations the

Jury briefly discussed [Moore’s] failure to testify for less than five

12 minutes. Prior to Juror #10’s remark that we had to ‘fill in holes’

there was additional discussion to the effect that if [Moore] had

13 testify [sic] a lot of questions could have been answered. [We]

discussed this topic for some time. [¶] There was no agreement . . .

14 to disregard the Judges [sic] instructions regarding [Moore’s] failure

to testify.”

15

Juror No. 10’s declaration in support of the opposition provides:

16 “[Moore’s] failure to testify came up within the context of trying to

determine what transpired. [¶] . . . [¶] I reminded my fellow jurors

17 this is not a moral court and we must decide the case based on the

facts and the law as it is written. [¶] I never stated that [Moore’s]

18 failure to testify supported my belief on the case and my verdict that

[Moore] was guilty of murder. [¶] . . . [¶] There was no explicit

19 agreement among the Jury to disregard the Court's instruction

regarding [Moore’s] failure to testify.”

20

Moore filed a reply, with additional supporting declarations from

21 Jurors Nos. 3, 5, and 10. In support of Moore's reply, Juror No. 3

declared: “The topic of [Moore's] failure to testify was not, and was

22 far from, just a matter of seconds, nor was it a mere comment, but

addressed and discussed in detail. I did not hear any juror actually

23 stop further discussion regarding [Moore’s] failure to testify. The

discussion regarding the failure to testify was significant in length,

24 as it was a recurring topic. . . . [M]ore than one juror discussed this

topic and its affect [sic] reaching their verdicts.” Juror No. 5 also

25 declared: “It was discussed several times during deliberations that

[Moore] did not testify. Members of the jury expressed that they

26 would have understood the holes in the story of this case better if

[Moore] had testified. These discussions lasted approximately 30

27 minutes.”

28 /////

14

1 Juror No. 10 declared: “[Moore’s] failure to testify came up as the

jurors discussed what happened on the night of the incident and as

2 jurors discussed the holes in the story and unexplained questions. The

holes and unexplained questions, and the attempt to fill in these holes

3 and answer the questions—including speculation as to what

transpired on the night of the incident were discussed for a significant

4 amount of time . . . . Furthermore, jurors continually came back to

the issue that [Moore] had not testified to fill in the holes and

5 unexplained questions during this time . . . . Some jurors also

commented that [Moore] did not look like a person who would

6 commit this crime intentionally, and that if he had taken the stand

and explained his story and filled in missing information, it would

7 help to lessen his culpability. [¶] During the recurring discussions

about [Moore’s] failure to testify, there was in fact additional

8 discussion by the jury that had [Moore] taken the stand and testified

it would have likely helped to lessen his degree of culpability . . . .”

9

The prosecution filed additional declarations from Juror Nos. 2, 5, 8,

10 and 9. Juror No. 9 declared: “During deliberations, I did not hear any

juror state if [Moore] had taken the stand it would help lessen his

11 ‘culpability.’ The two topics were not discussed together. [¶] During

deliberations, I remember Juror #6 state, ‘I just wish he would have

12 testified because then we would have heard his side of the story.’ As

soon as Juror #6 stated this, other jurors reminded him we need to go

13 by the evidence presented at trial. [¶] During deliberations I did not

hear any member of the jury state [Moore] should have testified to

14 protect his innocence and he should have testified because he was on

trial for murder. [¶] During deliberations I did not hear any member

15 of the jury state [Moore] did not take the stand; therefore he must be

guilty of murder. [¶] During deliberations I did not hear any member

16 of the jury state the reason I believe [Moore] is guilty of murder is

because of his failure to testify.” Additional declarations by Juror

17 Nos. 2, 5, and 8 were substantially the same.

18 After receiving these conflicting declarations and indicating that

some additional portions of the declarations were inadmissible, the

19 trial court tentatively found Moore established a rebuttable

presumption prejudicial misconduct had occurred. An evidentiary

20 hearing was held at the People’s request to resolve conflicts in the

declarations and determine if the People had rebutted the

21 presumption of prejudice.

22 To that end, in January 2014, Juror Nos. 3 and 7 were examined by

the court. Juror No. 3 testified that, after the jury had eliminated first

23 degree murder, but before a verdict had been reached on second

degree murder and they were discussing Moore’s motive and intent.

24 He reported that Juror No. 10 said “we were filling in the holes in the

case because we . . . didn't have the testimony from [Moore], and so

25 we were trying to fill in what happened that night.” Other jurors

“chimed in” that “[i]t would have been a lot easier to be able to get

26 the full picture . . . if they had testimony from [Moore].” When asked

how long the discussion of the subject went on, Juror No. 3 said, “It

27 was a lot longer than [five minutes]. I would say at least a half hour

or more but at the same time, it was kind of . . . a common thread

28 throughout the whole discussion.” Juror No. 3 said to other jurors:

15

1 “[O]bviously, it would have been a lot easier to be able to . . . gather

all that [missing] information . . . if [Moore] would have testified.”

2 According to Juror No. 3, another juror reminded them they should

not consider Moore’s failure to testify, but it kept coming up. Juror

3 No. 3 did not remember anyone saying that Moore’s failure to testify

supported their belief he was guilty. However, Juror No. 3 himself

4 suggested to other jurors that they could have understood Moore's

motive and intent if he had testified. The other jurors expressed

5 Moore's testimony would have been helpful “to understand the whole

situation,” but no one expressly said they were considering Moore’s

6 failure to testify in reaching a decision. However, Juror No. 3 said

Juror No. 10 told him at some point after the individual jurors were

7 polled but before a final verdict was reached, that it would have been

“a different story” if Moore had testified.

8

Juror No. 7 testified that, on the first day of deliberations before the

9 jury reached a decision regarding first degree murder, “one of the

jurors made a comment that it would have been easier if we heard

10 [Moore] testify,” and Juror No. 7 said, “I agree.” Although Juror No.

7 and another juror expressly cautioned that Moore's failure to testify

11 should not be held against him, the subject came up a second time

later that same day. The subject only came up twice and probably

12 took about “[e]ight seconds” in passing comments. Juror No. 7 did

not recall any juror saying Moore should have testified if he wanted

13 to defend himself, protect his innocence, or lessen his culpability.

14 The trial court also examined Juror Nos. 9 and 10. Juror No. 9 heard

only Juror No. 10 mention Moore's decision not to testify. This

15 discussion lasted “just a few seconds.” Juror No. 9 could not clearly

remember when the discussion took place, but his best recollection

16 was the discussion took place after they had reached a decision on

first degree murder but before they had made a decision on second

17 degree murder. Juror No. 9 and another juror said, “We can’t

consider that.” Juror No. 9 did not hear any juror indicate that, if

18 Moore had testified, it would have helped lessen his culpability. Nor

did Juror No. 9 hear anyone say that Moore’s failure to testify

19 indicated he was trying to hide something or did not take the

proceedings seriously. However, Juror No. 10 did say that, if Moore

20 had testified, it would have filled some of the holes in the story. Juror

No. 10 “said at the same time we need to go by what the Judge said.”

21 Thereafter, the conversation “died down” and the jurors switched

topics.

22

Juror No. 10 testified that Moore’s decision not to testify was

23 discussed for approximately two to four hours over the course of two

days of deliberations. “If we added up all the time. Because

24 sometimes we got through the day and somebody would bring

something else up again. And we would have to go back and say, we

25 can’t think about that. We have to go off what we have in front of

us.” Juror No. 10 remembered: “[A] couple of [female jurors] saying

26 that they didn’t understand why he didn't get up there and testify for

himself. [¶] But then my comment, after that, it would be well, we

27 have to actually deal with what is presented to us and what is given

to us. We can’t go off what we think or what we think he might have

28 said or anything like that. We have to go with the evidence that is in

16

1 front of us.” One of the jurors said Moore should have tried to protect

his innocence by taking the stand. On the first day of deliberations,

2 before a decision was reached regarding first degree murder,

someone expressed Moore would have likely helped to lessen his

3 degree of culpability if he had testified.

4

5 When asked to explain the context of the discussion, Juror No. 10

explained: “[B]efore we walked back there, [the prosecutor] said that

6 [defense counsel] has these holes and she wants you guys to fill them

in. And when we went back there, they were kind of discussing if he

7 had . . . testified for himself . . . . And I said, ‘remember what he said,

[the prosecutor],’ they were like, yeah, I said, ‘we can’t, you know,

8 just come up with our answers.’ You know, I said, ‘we have to sit

here and actually go off what we have in front of us.’’ Juror No. 10

9 was asked, “[D]o you understand what they meant by would lessen

the degree of culpability?” Juror No. 10 answered, “That maybe the

10 information that we had on paper, maybe that it wouldn’t be a second

degree or first degree, maybe manslaughter, involuntary

11 manslaughter or something like that. Not second degree murder or

first degree murder.”

12

Juror No. 10 also testified that, when the jury was discussing whether

13 Moore committed first degree murder, second degree murder, or

involuntary manslaughter, two female jurors said, “[Moore] didn’t

14 look like the type of person that would do that type of crime. But it

would have helped him out if he would had spoke for himself or got

15 up there and said something.” Juror No. 10 denied saying that

Moore’s failure to testify supported his belief Moore was guilty of

16 second degree murder. Juror No. 10 mentioned two or three times

that Moore's failure to testify could not be considered. Sometime

17 during the first day of deliberations, Juror No. 10 heard someone say

that Moore must not take the proceedings very seriously because he

18 did not testify. Juror No. 10 could not remember who said this.

19 After the evidentiary hearing had concluded, Juror No. 3 sent a letter

to the trial court, which read: “During the [January 13] hearing your

20 honor asked me if juror number ten had stated that [Moore’s] failure

to testify supported his belief that he was guilty of murder. I replied

21 inadequately with, ‘I think so.’ I want to restate my response to that

question and say ‘yes’ he did state [Moore’s] failure to testify

22 supported juror number ten's belief that [Moore] was guilty. [¶]

Juror's [sic] number ten made a comment about justice not being

23 carried out in the Trayvon Martin case and in [Moore's] case it had

been carried out. Following this comment I heard juror number ten

24 say that the 'The outcome of this case would have been a lot different

if [Moore] had . . .’ and he cut his sentence short from saying ‘. . .

25 had testified.’ I feel his statement meant that [Moore] was guilty of

murder because he had not testified in court. I strongly believe there

26 were other jurors who heard him make this comment. . . . [¶] I want

to clarify my declaration wherein jurors number seven and nine had

27 also stated that [Moore’s] failure to testify supported his belief that

he was guilty of murder. Juror number seven stated during

28 deliberations that ‘we wouldn’t still be here (in deliberations) if

17

1 [Moore] had testified.’ Juror number nine stated that [Moore’s]

testimony would have been helpful but, ‘that anyone that has a

2 loaded gun in their home and kills someone while intoxicated

accidently or not is guilty of murder.’ I feel that both of these two

3 jurors and others commented during deliberation in their own words

or gestured with an affirmative nod that [Moore’s] testimony would

4 have filled in the ‘holes’ as mentioned previously by juror number

ten.” (Italics added.)

5

After receipt of the letter, Juror No. 3 was reexamined and affirmed

6 his statements in the recent letter. Most importantly, Juror No. 3

made clear that Juror No. 10 did not actually finish the sentence

7 italicized above to say “had testified.” Rather, Juror No. 10’s voice

trailed off and Juror No. 3 had subjectively construed the remark.

8

The trial court denied Moore’s motion for new trial. In explaining its

9 decision, the court initially observed it had personally polled each of

the 12 jurors before the verdict was orally announced and each juror

10 personally confirmed “that was [his or her] true and correct verdict.”

After the jurors were polled, the court announced the verdict, which

11 was “received very emotionally.” The court said: “[T]he reason I'm

putting this on the record, I actually never had that level of emotion

12 in the courtroom. I turned and looked at this jury. They were ashen.

. . . Some people were shaking.”

13

The court further stated: “[D]uring the course of receiving some of

14 the jury information and the declarations I found were not detailed

or were inconsistent or . . . didn't make sense in terms of the context

15 of the statements and when they were made. And context is very

important because . . . we have a case where the defendant was

16 acquitted of first degree [murder]. This jury did not hold his failure

to testify against him and didn't convict him of the highest degree of

17 crime. [¶] In the context of the closing argument, the argument

advanced in closing there was a struggle. I did sustain an objection

18 because there was no evidence of a struggle, but I did allow and we

did have a discussion at the bench, arguments about the inference

19 that there might have been a struggle. [¶] People pointed out, there

are holes in that argument. It isn't inconceivable or inappropriate for

20 the jury to consider the defense's case. That doesn't mean they are

considering [Moore’s] failure to testify. [¶] So there were points in

21 time where I could see the [testifying jurors] were confused about

what it was we were asking them, whether they were asking the

22 consideration of the defendant's entire case or whether they are

asking about particular statements made about the defendant[’s]

23 constitutional right not to testify. [¶] There was not sufficient time to

go line by line, I am not able to do that, but . . . I spent hours and

24 hours charting and comparing the declarations to the actual testimony

and there are considerable portions of testimony that I cannot receive

25 pursuant to [Evidence Code section] 1150. They are either hearsay,

or they are deliberat[ive] process or they are subjective reasoning. I

26 can only receive evidence that is the type of evidence that refers to .

. . overt acts. [¶] So in this case, I do believe that the defense has

27 shown admissible evidence that there was jury misconduct . . . there

[were] overt acts prescribed by [Moore’s] constitutional right not to

28 testify as we discussed. [¶] But I believe the third part, based upon

18

1 all of the credible, believable evidence, there is no substantial

likelihood of bias, and I do believe this case is similar to [People v.

2 Loker (2008) 44 Cal.4th 691, 749, 80 Cal. Rptr. 3d 630, 188 P.3d 580

(Loker), Leonard, supra, 40 Cal.4th at page 1425, and Hord, supra,

3 15 Cal. App.4th at pages 727-728.] [¶] For those reasons, based on

the credible believable evidence, in its totality, I'll deny the Motion

4 for New Trial based on jury misconduct.” (Italics added.)

5 ECF No. 20-9 (Ex. C) at 13-21.

6 A. Reference to Extraneous Matters

7 First, petitioner points to a juror affidavit which related references to extraneous matters

8 during deliberations. Specifically, one affidavit indicated:

9 Juror # 10 stated during deliberations that this case was similar to

Dick Cheney shooting his friend in the woods except Dick Cheney

10 wasn’t drunk. He further expressed to jurors his belief that Mr.

Moore must be guilty based upon a comparison to facts involving

11 Dick Cheney. He also stated that in the Trayvon Martin/Zimmerman

trial,13 justice was not served. Then he stated in this trial the jury

12 made the right conclusion in comparison . . .

13 Id. at 44. In a tentative ruling, the trial court stated its intent to exclude this portion of the

14 affidavit from the evidentiary hearing insofar as it was evidence of deliberative process. ECF No.

15 20-8 (Reporter’s Transcript Vol. 4) at 19. Petitioner’s counsel did not object to this tentative

16 ruling. Moreover, although these statements were referenced in the motion for new trial, it was

17 never argued that they were an independent basis for granting a new trial.14 Petitioner raised the

18 issue on direct appeal.

19 /////

20 /////

21 13

Petitioner states that he is Caucasian and that Brown, the victim, was African-

22 American. See, e.g., ECF No. 20-6 (Reporter’s Transcript Vol. 2) at 60. He notes that Juror # 10

was also African-American. ECF No. 21-1 (Aug. Reporter’s Transcript) at 230.

23

14

Rather, the motion, with respect to juror misconduct, was premised on jurors’

24 discussion of petitioner’s failure to take the stand and their failure to “accurately and fully

deliberate the charges in question.” ECF No. 20-2 (Clerk’s Transcript Vol. 2) at 13. The latter

25 argument was bifurcated and petitioner claimed that jurors: (1) failed to deliberate insofar as they

26 did not understand “the pivotal and controlling law of implied malice, and the intent required to

prove the charges herein” and were dissuaded by the jury foreman from submitting a question on

27 the issue to the court (id. at 21); and (2) failed to render a true and correct verdict insofar as one

juror – Juror # 3 – stated that he was “dominated and pressured to go along with the verdict that

28 was not in fact the true and correct verdict in his own mind” (id. at 23).

19

1 1. State Court Decision

2 The state court of appeal rejected the claim as follows:

3 Moore also refers to another alleged instance of juror misconduct

disclosed by Juror No. 3’s initial declaration and contends it should

4 have been the basis for a new trial. Moore relies on statements

purportedly made by Juror No. 10 and related by Juror No. 3.

5 Specifically, Juror No. 3 stated: “Juror #10 stated during

deliberations that this case was similar to Dick Cheney shooting his

6 friend in the woods except that Dick Cheney wasn't drunk. He further

expressed to the jurors his belief that [Moore] must be guilty based

7 upon a comparison [of] the facts involving Dick Cheney. He also

stated that in the Trayvon Martin/Zimmerman trial, justice was not

8 served. Then he stated in this trial the jury made the right conclusion

in comparison.” At the evidentiary hearing, Juror No. 3 indicated the

9 statements were made after circulation of the completed verdict form

but before final submission of the verdict.

10

The People contend Moore forfeited this argument by failing to raise

11 the issue in his motion for new trial or press for a ruling in the trial

court. We agree. (See People v. Dykes, supra, 46 Cal.4th at p. 808,

12 fn. 22; People v. Masotti (2008) 163 Cal.App.4th 504, 508, 77 Cal.

Rptr. 3d 483 [“[a] motion for new trial may be granted only upon a

13 ground raised in the motion”]; People v. Williams (1957) 153

Cal.App.2d 21, 25, 314 P.2d 42 [grounds for new trial motion “may

14 not be presented for the first time on appeal”].) Moore submitted

Juror No. 3’s declaration containing the statements regarding Dick

15 Cheney and Trayvon Martin in support of his motion for new trial.

The statements are also briefly referenced on one page of the

16 memorandum in support of motion for new trial. However, such

statements were never asserted to be an independent basis for

17 granting the motion for new trial.

18 Furthermore, as Moore recognizes in his reply brief, the trial court's

tentative ruling stated its intent to strike the currently challenged

19 portion of Juror No. 3’s declaration as inadmissible evidence of

deliberative process. It explained: “[T]he court is not considering any

20 of the deliberations or the thinking process of any of the jurors. That

is beyond the scope of something this Court could consider. [¶] . . .

21 [¶] So there are aspects of these declarations that I do intend to strike

because they are beyond something this Court can consider.” The

22 trial court made clear that, although the evidentiary hearing would be

limited to considering overt acts regarding Moore’s decision not to

23 testify, the parties could secure a final ruling after the evidentiary

hearing. Nevertheless, Moore did not object to this tentative ruling,

24 or otherwise raise the issue, other than to suggest the statements gave

corroborating context for his other jury misconduct claims.

25

In any event, we review the trial court’s admissibility determination

26 for an abuse of discretion. (Barboni v. Tuomi (2012) 210 Cal.App.4th

340, 345, 148 Cal. Rptr. 3d 581.) Even if Moore did not forfeit the

27 instant claim, we cannot agree the trial court abused its discretion by

28

20

1 excluding this evidence of alleged misconduct.15 We are not

persuaded by Moore’s claim that Juror No. 10’s statements are

2 admissible as “overt acts.” Moore contends Juror No. 10’s

statements constituted evidence that the jurors were improperly

3 exposed to extraneous information outside the evidence and the

statements themselves constitute misconduct because they show

4 Juror No. 10, who is African American, was actually influenced by

such outside information and racially biased against Moore.

5

The facts of this case have little in common with the authority on

6 which Moore relies to support this position. (See In re Stankewitz,

supra, 40 Cal.3d at pp. 396, 398-400 [juror’s erroneous legal advice

7 to other jurors was admissible evidence of misconduct]; Grobeson v.

City of Los Angeles, supra, 190 Cal.App.4th at pp. 784, 790-791

8 [juror's statement during trial that she had made up her mind and was

not going to listen to “the rest of the stupid argument” was admissible

9 evidence of misconduct]; Clemens v. Regents of University of

California (1971) 20 Cal.App.3d 356, 363, 97 Cal. Rptr. 589 [juror’s

10 statement “nobody is never going to change my mind” was

admissible evidence of misconduct].)

11

That Juror No. 10 made the statements attributed to him by Juror No.

12 3 is not misconduct in and of itself. Juror No. 10's statement does not,

by itself, show a juror injected facts or law about Moore's case that

13 were outside the evidence. (See People v. Nesler, supra, 16 Cal.4th

at p. 578 [“[j]uror misconduct, such as the receipt of information

14 about a party or the case that was not part of the evidence received at

trial, . . . may establish juror bias” (italics added)].) Nor do the

15 statements show Juror No. 10 prejudged Moore’s case. Moore’s

briefing itself makes clear he sought to have Juror No. 3's recitation

16 of Juror No. 10’s out of court statements considered “as a reflection

on why [Juror No. 10] would support a verdict of second degree

17 murder.” Accordingly, we agree with the People that the challenged

portion of Juror No. 3’s declaration was inadmissible to impeach the

18 verdict. (See People v. Duran (1996) 50 Cal.App.4th 103, 113, 57

Cal. Rptr. 2d 635 [“when a juror in the course of deliberations gives

19 the reasons for his or her vote, the words are simply a verbal

reflection of the juror's mental processes”]; People v. Danks, supra,

20 32 Cal.4th at p. 302 [same]; People v. Lewis (2001) 26 Cal.4th 334,

391, 110 Cal. Rptr. 2d 272, 28 P.3d 34 [juror statement sharing

21 personal religious view and how he reconciled his vote for death

penalty is inadmissible].)

22

The excluded portion of Juror No. 3’s declaration relates solely to

23 Juror No. 10’s mental processes and subjective reasoning. The court

did not abuse its discretion in excluding such evidence.

24

ECF No. 20-9 (Ex. C) at 29 – 31. Petitioner raised this claim in a petition for review to the

25

26 15

[footnote thirteen in original text] For the first time in his reply brief, Moore suggests he

27 received ineffective assistance of counsel if his trial counsel forfeited the instant argument. Moore

has not shown a good reason for waiting until his reply brief to raise an ineffective assistance of

28 counsel claim. However, we need not consider the argument.

21

1 California Supreme Court (ECF No. 20-13 (Ex. G) at 15; the petition was summarily denied (ECF

2 No. 20-14 (Ex. H)).

3 2. Relevant Federal Law

4 Federal habeas corpus relief is not available to correct alleged errors in a state court’s

5 application or interpretation of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“We

6 have stated many times that ‘federal habeas corpus relief does not lie for errors of state law.’”);

7 With respect to the admissibility of evidence, the Supreme Court has held that “[t] accused does

8 not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise

9 inadmissible under standard rules of evidence.” Taylor v. Illinois, 484 U.S. 400, 410 (1988); see

10 also Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (“The accused, as is required of the State,

11 must comply with established rules of procedure and evidence designed to assure both fairness

12 and reliability in the ascertainment of guilt and innocence.”).

13 Apart from the state rules applied by California courts, there are indicators of established

14 federal law within the meaning of AEDPA with respect to juror statements regarding

15 deliberations. Addressing the issue, federal courts have routinely relied on Federal Rule of

16 Evidence 606(b), which dictates:

17 “Upon an inquiry into the validity of a verdict or indictment, a juror

may not testify as to any matter or statement occurring during the

18 course of the jury's deliberations or to the effect of anything upon

that or any other juror’s mind or emotions as influencing the juror to

19 assent to or dissent from the verdict or indictment or concerning the

juror's mental processes in connection therewith. But a juror may

20 testify about (1) whether extraneous prejudicial information was

improperly brought to the jury's attention, [or] (2) whether any

21 outside influence was improperly brought to bear upon any juror

. . . . A juror's affidavit or evidence of any statement by the juror may

22 not be received on a matter about which the juror would be precluded

from testifying.”

23

24 Fed. R. Evid. 606(b). The United States Supreme Court has held that the foregoing was

25 applicable to juror affidavits which petitioners sought to introduce at a post-verdict hearing. See

26 Tanner v. United States, 483 U.S. 107, 121 (1987) (“Petitioners have presented no argument that

27 /////

28 /////

22

1 Rule 606(b) is inapplicable to the juror affidavits and the further inquiry they sought in this case,

2 and, in fact, there appears to be virtually no support for such a proposition.”).16

3 3. Analysis

4 As an initial matter, the parties dispute whether this claim is procedurally defaulted. The

5 claim plainly fails on its merits, however, and the court elects to recommend its dismissal on

6 those terms. See Reed v. Ross, 468 U.S. 1, 9 (1984) (“Our decisions have uniformly

7 acknowledged that federal courts are empowered under 28 U. S. C. § 2254 to look beyond a state

8 procedural forfeiture and entertain a state prisoner's contention that his constitutional rights have

9 been violated.”).

10 Turning to the merits, this court cannot grant relief based on any assertion that the state

11 courts erred in applying state law. See Estelle, 502 U.S. at 67-68. Thus, the only pertinent

12 question is whether the trial court’s exclusion of this evidence in weighing the motion for new

13 trial violated petitioner’s rights under federal law. It did not.

14 First, the comments made by Juror # 10 are not the sort of “extraneous information” for

15 which 606(b) provides an escape hatch. The shooting mishap related to former vice president

16 Dick Cheney and the acquittal of George Zimmerman in the shooting of Trayvon Martin were

17 events well-covered by news media and fall within the public’s general knowledge. The Ninth

18 Circuit has held that “[t]he type of after-acquired information that potentially taints a jury verdict

19 should be carefully distinguished from the general knowledge, opinions, feelings, and bias that

20 every juror carries into the jury room.” Hard v. Burlington Northern R. Co., 870 F.2d 1454,

21 1461 (9th Cir. 1989) (emphasis added). Although the role of the jury in our justice system is to

22 16

The discussion of 606(b), though obviously separate from the state rules applied by

23 California courts, is an obvious indicator of established federal law within the meaning of

AEDPA.

24 The court notes that Cal. Evid. Code § 1150(a) is similar to 606(b) and provides that:

“Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be

25 received as to statements made, or conduct, conditions, or events occurring, either within or

26 without the jury room, of such a character as is likely to have influenced the verdict improperly.

No evidence is admissible to show the effect of such statement, conduct, condition, or event upon

27 a juror either in influencing him to assent to or dissent from the verdict or concerning the mental

processes by which it was determined.” See generally In re Hamilton, 20 Cal. 4th 273, 294

28 (1999).

23

1 render a verdict after impartial consideration of the facts, it would be neither realistic nor

2 reasonable to expect jurors to forget the world in which they live when they begin their

3 deliberations.

4 Instead, the comments attributed to Juror # 10 pertain, as the state court of appeal

5 reasonably concluded, to his mental processes and subjective reasoning. His statements are

6 appropriately read as part and parcel of his “deliberative process.” And the deliberative process

7 lies outside the bounds of 606(b). See Tarango v. McDaniel, 837 F.3d 936, 947 (9th Cir. 2016)

8 (“[C]ourts universally prohibit jurors from impeaching their own verdicts through evidence of

9 their internal deliberative process.”).

10 Petitioner notes that the Supreme Court’s recent Pena-Rodriguez decision announced an

11 exception to the foregoing rule on piercing the deliberative process. Pena-Rodriguez held that the

12 no-impeachment rule is excepted “when a juror’s statements indicate that racial animus was a

13 significant motivating factor in his or her finding of guilt.” 137 S. Ct. 855, 867 (2017). The High

14 Court reasoned:

15 In the years before and after the ratification of the Fourteenth

Amendment, it became clear that racial discrimination in the jury

16 system posed a particular threat both to the promise of the

Amendment and to the integrity of the jury trial. . . .

17

Permitting racial prejudice in the jury system damages both the fact

18 and the perception of the jury's role as a vital check against the

wrongful exercise of power by the State. . . .

19

Racial bias of the kind alleged in this case differs in critical ways

20 from the compromise verdict in McDonald, the drug and alcohol

abuse in Tanner, or the pro-defendant bias in Warger. The behavior

21 in those cases is troubling and unacceptable, but each involved

anomalous behavior from a single jury—or juror—gone off course.

22 Jurors are presumed to follow their oath and neither history nor

common experience show that the jury system is rife with mischief

23 of these or similar kinds. . . .

24 The same cannot be said about racial bias, a familiar and recurring

evil that, if left unaddressed, would risk systemic injury to the

25 administration of justice.

26 Id. at 867-68 (citations and internal quotation marks omitted). But Pena-Rodriguez, unlike this

27 case, concerned statements whose racial animus was unambiguous. The Supreme Court

28 summarized the offending statements:

24

1 The affidavits by the two jurors described a number of biased

statements made by another juror, identified as Juror H. C. According

2 to the two jurors, H. C. told the other jurors that he “believed the

defendant was guilty because, in [H. C.’s] experience as an ex-law

3 enforcement officer, Mexican men had a bravado that caused them

to believe they could do whatever they wanted with women.” The

4 jurors reported that H. C. stated his belief that Mexican men are

physically controlling of women because of their sense of

5 entitlement, and further stated, “‘I think he did it because he’s

Mexican and Mexican men take whatever they want.’” According to

6 the jurors, H. C. further explained that, in his experience, “nine times

out of ten Mexican men were guilty of being aggressive toward

7 women and young girls.” Finally, the jurors recounted that Juror H.

C. said that he did not find petitioner’s alibi witness credible because,

8 among other things, the witness was “‘an illegal.’” (In fact, the

witness testified during trial that he was a legal resident of the United

9 States.)

10

Id. at 862. The Supreme Court ultimately noted that its holding in Pena-Rodriguez applied to

11

clear statements of racial bias. Id. at 869 (“[T]he Court now holds that where a juror makes a

12

clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal

13

defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to

14

permit the trial court to consider the evidence of the juror’s statement and any resulting denial of

15

the jury trial guarantee.”) (emphasis added). Juror # 10’s statements are simply not analogous.

16

He made no explicit statements regarding petitioner’s race. He referred to the shooting of

17

Trayvon Martin – an incident that obviously inflamed racial tensions, but he also referred to the

18

Dick Cheney incident, which had no obvious racial overtones. At best, one might infer that Juror

19

#10’s decision to convict was based on his belief that Zimmerman’s acquittal was a racial

20

injustice that required redress. But Pena-Rodriguez does not authorize courts to sift through juror

21

statements for hints of racial bias. Indeed, it explicitly cautioned against such action:

22

Not every offhand comment indicating racial bias or hostility will

23 justify setting aside the no-impeachment bar to allow further judicial

inquiry. For the inquiry to proceed, there must be a showing that one

24 or more jurors made statements exhibiting overt racial bias that cast

serious doubt on the fairness and impartiality of the jury’s

25 deliberations and resulting verdict. To qualify, the statement must

tend to show that racial animus was a significant motivating factor in

26 the juror’s vote to convict. Whether that threshold showing has been

satisfied is a matter committed to the substantial discretion of the trial

27 court in light of all the circumstances, including the content and

timing of the alleged statements and the reliability of the proffered

28 evidence.

25

1 Id.

2 For the foregoing reasons, this claim should be denied.

3 B. Juror’s Discussion of Petitioner’s Failure to Testify

4 Next, petitioner argues that the trial court erred when it found no substantial prejudice

5 from the jury’s discussion of his failure to testify. There was no question that the jurors discussed

6 petitioner’s failure to testify. Petitioner’s motion for new trial argued that this discussion

7 warranted a new trial. ECF No. 20-2 (Clerk’s Transcript Vol. 2) at 16-20. The trial court

8 ultimately found, however, that “based upon all of the credible, believable evidence,” there was

9 no substantial likelihood of bias resulting from this juror misconduct. ECF No. 20-8 (Reporter’s

10 Transcript Vol. 4) at 258. Petitioner appealed this finding.

11 1. State Court Decision

12 The court of appeal rejected this claim as follows:

13 “The Fifth Amendment to the federal Constitution provides that no

person ‘shall be compelled in any criminal case to be a witness

14 against himself.’ . . . Thus, the Fifth Amendment entitles a criminal

defendant, upon request, to an instruction that will ‘minimize the

15 danger that the jury will give evidentiary weight to a defendant's

failure to testify.’ (Carter v. Kentucky (1981) 450 U.S. 288, 305, 101

16 S. Ct. 1112, 67 L. Ed. 2d 241.)” (Leonard, supra, 40 Cal.4th at pp.

1424-1425.) “[T]he purpose of the rule prohibiting jury discussion of

17 a defendant's failure to testify is to prevent the jury from drawing

adverse inferences against the defendant, in violation of the

18 constitutional right not to incriminate oneself.” (Id. at p. 1425.) It is

undisputed the jurors did discuss Moore's failure to testify, in

19 violation of the trial court's instruction, and this constituted

misconduct. (People v. Lavender (2014) 60 Cal.4th 679, 687, 181

20 Cal. Rptr. 3d 28, 339 P.3d 318.) The only question before us is

whether the presumption of prejudice was rebutted. Moore argues the

21 trial court erred when it found no substantial likelihood of prejudice

from the jury's discussion of his failure to testify. We disagree.

22

Moore contends: “The court's prejudice analysis . . . was deeply

23 flawed. That analysis did not rest on any finding that the extensive

discussions of the prohibited subject . . . had not occurred, but rather

24 on the fact that [Moore] had been ‘acquitted of first degree [murder].

This jury did not hold [Moore’s] failure to testify against him and

25 didn't convict him of the highest degree crime.’ [¶] As a factual

matter, it is impossible to reconcile the trial court's assumption that

26 the prohibited matter was only considered in assessing the first

degree charge as opposed to [the jury's] selection among lesser

27 alternatives.” The People disagree, insisting the trial court's ruling is

clear that it found Juror No. 3 not credible and credited only the

28 testimony and declarations of Juror Nos. 2, 5, 7, 8, 9, and 10.

26

1 As stated previously, our role is to independently assess the “legal

import” of the facts found by the trial court. (People v. Cissna, supra,

2 182 Cal.App.4th at p. 1118, italics omitted.) In doing so, we must

accept “the trial court's factual findings and credibility

3 determinations [that] are supported by substantial evidence.” (People

v. Dykes, supra, 46 Cal.4th at p. 809.) Our review has been made

4 unnecessarily difficult because the trial court did not explicitly state

its final evidentiary rulings, factual findings, or credibility

5 determinations on the record. (See People v. Barnwell (2007) 41

Cal.4th 1038, 1053, 63 Cal. Rptr. 3d 82, 162 P.3d 596 [“[a] trial court

6 facilitates review when it expressly sets out its analysis of the

evidence”].) Nevertheless, when a trial court denies a motion for new

7 trial, we presume the order is correct. “‘“[A]ll intendments are

indulged in to support it on matters as to which the record is silent,

8 and error must be affirmatively shown.” [Citation.] We must “view

the record in the light most favorable to the trial court's ruling and

9 defer to its findings of historical fact, whether express or implied, if

they are supported by substantial evidence.”’” (Jie v. Liang Tai

10 Knitwear Co. (2001) 89 Cal.App.4th 654, 666, 107 Cal. Rptr. 2d 682,

italics added; accord, People v. Carpenter (1999) 21 Cal.4th 1016,

11 1045-1046, 90 Cal. Rptr. 2d 607, 988 P.2d 531 [order denying

motion to suppress]; Grobeson v. City of Los Angeles, supra, 190

12 Cal.App.4th at p. 794.) “We do not seek out inferences that, if true,

would cause us to reverse the trial court's order granting the motion

13 for a new trial.” (Grobeson, at p. 795.)

14 Moore asks us to flip this standard on its head. In challenging the trial

court’s prejudice analysis, Moore assumes the court relied on a

15 factual finding the jury only discussed his decision not to testify

when assessing the first degree murder charge—a finding that is not

16 supported by substantial evidence. Moore points out that Juror No. 3

was clear that the discussion took place after a decision had been

17 reached to acquit Moore of first degree murder, but before a verdict

had been reached on second degree murder, and thus insists “the trial

18 court's attempt to draw significance from the jurors’ rejection of the

first degree murder charge is logically unfounded.” Moore's

19 argument is misguided. The trial court never stated such a finding

and we will not presume it made a finding unsupported by substantial

20 evidence. (See Jie v. Liang Tai Knitwear Co., supra, 89 Cal.App.4th

at pp. 666-667; Grobeson v. City of Los Angeles, supra, 190

21 Cal.App.4th at p. 794.) What the trial court did say is that, “based

upon all of the credible, believable evidence . . . this case is similar

22 to [Loker, supra, 44 Cal.4th at page 749, Leonard, supra, 40 Cal.4th

at page 1425, and Hord, supra, 15 Cal.App.4th at pages 727-728.]”

23 In order to discern the facts found by the trial court, we turn to a

discussion of this authority.

24

It is settled law that “[t]ransitory comments of wonderment and

25 curiosity" about a defendant's failure to testify, although technically

misconduct, "are normally innocuous, particularly when a comment

26 stands alone without any further discussion.” (Hord, supra, 15

Cal.App.4th at pp. 727-728.) “When comments go beyond natural

27 curiosity and their content suggests inferences from forbidden areas,

the chance of prejudice increases. For example, if a juror were to say,

28 ‘The defendant didn't testify so he is guilty,’ or ‘we will have to find

27

1 the defendant guilty of the greatest charges to ensure he will be

adequately punished,’ the comments go beyond mere curiosity and

2 lean more toward a juror's drawing inappropriate inferences from

areas which are off limits.” (Id. at pp. 728.) On the other hand, “a

3 reminder to the jury of the court's instructions to disregard a

defendant’s decision not to testify is, in the absence of objective

4 evidence establishing a basis to question the effectiveness of the

reminder . . . , strong evidence that prejudice does not exist.” (People

5 v. Lavender, supra, 60 Cal.4th at p. 687.)

6 In Hord, supra, 15 Cal.App.4th 711, misconduct was found despite

a conflict among the jurors regarding whether they discussed the

7 defendant's choice not to testify. (Id. at pp. 721-722, 725.)

Specifically, some jurors did not recall any such discussion, another

8 four recalled comments being made, and three of the latter jurors

recalled the foreperson immediately advising they could not consider

9 the defendant's failure to testify. (Id. at pp. 721-722.)

10 After independent review, our Supreme Court determined the

misconduct did not pose a substantial likelihood of prejudice. The

11 Hord court explained: “Here, during deliberations there was a

comment or comments made about [the] defendant's not testifying

12 and a comment regarding [the] defendant's sentence. Although these

matters were not to be discussed, the discussion was very different

13 than when a juror performs experiments or brings in new law or facts

into deliberations. The jury was obviously well aware here that

14 defendant did not testify and equally aware that he would be

punished if the jury found him to be guilty. Thus the comments did

15 not interject any new material into deliberations that was not already

known by the jury from the trial itself. . . . The fact that only some of

16 the jurors recalled the comments tends to indicate that this was not a

discussion of any length or significance.” (Hord, supra, 15

17 Cal.App.4th at pp. 727-728.) An initial declaration from one juror

recited another juror’s “oblique remark about a party not saying

18 anything to protect himself.” (Id. at p. 728.) “Although this comment

may have carried a greater potential for prejudice than a mere

19 statement of curiosity,” it did not necessitate reversal because the

discussion did not appear to be lengthy or suggest “a movement to

20 disobey the court's instructions.” (Ibid.) Most importantly, the jurors

were reminded they could not consider the defendant's failure to

21 testify. (Id. at pp. 727-728.)

22 Leonard, supra, 40 Cal.4th 1370 is also illustrative. In that capital

case, the jury committed misconduct by discussing the defendant's

23 failure to testify during its penalty phase deliberations. Specifically,

the jurors said they wished the defendant had testified so they could

24 have better understood why he committed the crimes. (Id. at pp.

1424-1425.) Our Supreme Court independently determined the

25 misconduct was not prejudicial, reasoning that the jurors’ comments

“merely expressed regret that defendant had not testified, because

26 such testimony might have assisted the jurors in understanding him

better. . . . ‘[W]anting to hear defendants testify is natural. We do the

27 best we can to deter jurors from speculating and from drawing

negative inferences, but merely referencing that they wish he would

28 have testified is not the same as punishing the [d]efendant for not

28

1 testifying. It is not the same as drawing negative inferences from the

absence of testimony.’” (Ibid.)

2

Finally, in Loker, supra, 44 Cal.4th 691, juror misconduct again was

3 not prejudicial. In their original declarations, several jurors stated

they discussed, during penalty deliberations, the defendant's failure

4 to testify as signifying lack of remorse. (Id. at p. 748.) Amended

declarations clarified that, whenever the topic was brought up, the

5 foreperson had reminded the jury they could not consider it and must

restrict its deliberations to the evidence and the instructions. (Ibid.)

6 The presumption of prejudice was rebutted “because the discussions

were brief, the foreperson admonished the jury, and thereafter the

7 subject was dropped.” (Id. at p. 749.) The Loker court reasoned:

“Clearly, the [trial] court accepted the version of the discussions

8 presented in the amended declarations. We will not disturb that

credibility determination, which is supported by substantial

9 evidence. [Citation.] [¶] . . . It is natural for jurors to wonder about a

defendant's absence from the witness stand. [Citation.] . . . Even if

10 some comments disclosed in the amended declarations might have

given rise to inferences adverse to defendant, the foreperson

11 promptly forestalled that possibility, reminding the jurors that

defendant had a right not to testify and that his assertion of that right

12 could not be held against him.” (Ibid., italics added.)

13 Moore insists juror statements in this case are distinguishable from

those made in Hord, Leonard, and Loker because instead of merely

14 expressing regret or curiosity about Moore’s decision not to testify,

the jurors’ statements “linked that [decision] to determining

15 [Moore’s] culpability for the crime.” We disagree. Substantial

evidence supports the trial court's implicit finding the misconduct in

16 this case consisted of brief passing comments in which the jurors

expressed their wish Moore had testified because it would have been

17 helpful to have heard his side of the story.

18 Jurors Nos. 3 and 10 did, at least initially, testify to some more

troubling comments. (See People v. Hord, supra, 15 Cal.App.4th at

19 p. 728 [“if a juror were to say, ‘The defendant didn’t testify so he is

guilty,’ or ‘we will have to find the defendant guilty of the greatest

20 charges to ensure he will be adequately punished,’ the comments go

beyond mere curiosity and lean more toward a juror's drawing

21 inappropriate inferences from areas which are off limits”].)

Specifically, Juror No. 3 originally declared that Jurors Nos. 7, 9, and

22 10 “stated that [Moore’s] failure to testify supported their belief and

their verdict that he was guilty of murder.” However, Juror No. 3’s

23 testimony at the evidentiary hearing was to the contrary. Juror No. 3

testified he did not remember anyone saying Moore's failure to testify

24 supported their belief he was guilty.17 Furthermore, Jurors Nos. 7, 9,

25 17

[footnote twelve in original text] In construing the record in favor of the judgment, we

26 could infer the trial court found Juror No. 3 entirely “not credible” due to inconsistencies in his

declarations and sworn testimony. (See Jie v. Liang Tai Knitwear Co., supra, 89 Cal.App.4th at

27 pp. 666-667.) Even if the trial court found Juror No. 3 credible in part, the court properly ignored

that part of Juror No. 3’s testimony in which he stated he considered Moore's failure to testify in

28

29

1 and 10 all explicitly denied making such a statement. Nor did other

jurors recall such statements having been made. Juror No. 3

2 ultimately retracted his testimony regarding the statements made by

Jurors Nos. 7, 9, and 10, and Juror No. 3's hypotheses regarding other

3 jurors' mental processes are clearly inadmissible (Evid. Code, §

1150).

4

In his initial declaration, Juror No. 10 also declared that, among other

5 things, jurors stated Moore should have testified “to protect his

innocence,” “had [Moore] . . . testified regarding what occurred, it

6 would have likely helped to lessen his degree of culpability,” and that

“jurors continually came back to the issue that [Moore] had not

7 testified to fill in the holes and unexplained questions [regarding

what happened on the night of the shooting.]” However, again, the

8 other jurors were unanimous is not recalling any statements

resembling the first two statements. Although the “fill in the holes”

9 comments were corroborated, Juror No. 10’s testimony at the

evidentiary hearing clarified that such comments were made in the

10 context of the jurors considering defense evidence and speculating

about Moore’s possible explanations for the shooting. Such

11 comments certainly do not appear to suggest negative inferences

were taken from Moore’s decision not to testify.

12

In contrast to Jurors Nos. 3 and 10, Jurors Nos. 2, 5, 7, 8, and 9

13 presented a consistent account of the limited nature and extent of the

jurors’ discussion of Moore’s failure to testify. On this record, we

14 cannot question the trial court's implicit crediting of those jurors who

only recalled passing statements that it would have been helpful to

15 have Moore’s side of the story. (See People v. Nesler, supra, 16

Cal.4th at p. 582; In re Carpenter, supra, 9 Cal.4th at p. 646.)

16 Substantial evidence supports the trial court’s finding.

17 Most importantly, even if the trial court found some juror statements

suggested negative inferences, reversal is not mandated. (People v.

18 Lavender, supra, 60 Cal.4th at p. 689 [“[t]he likelihood that

comments drawing inappropriate inferences from a defendant’s

19 decision not to testify pose an increased ‘chance of prejudice’ . . . as

compared to comments merely expressing curiosity about a

20 defendant's decision does not mean that an explicit reminder to the

jury that this is a forbidden topic would necessarily be ineffective at

21 dispelling the presumption of prejudice”]; Hord, supra, 15

Cal.App.4th at p. 728; Loker, supra, 44 Cal.4th at p. 749.) Just as in

22 Hord and Loker, substantial evidence supports the trial court’s

implied finding that, whenever the subject came up, jurors were

23 admonished not to consider Moore’s decision not to testify. The

jurors were ultimately unanimous on this point. Juror No. 3 may have

24 initially declared he did not hear “any juror actually stop further

discussion regarding [Moore's] failure to testify,” but he later

25 conceded another juror reminded them they should not consider it.

26

reaching his verdict. This testimony was inadmissible as it merely demonstrated Juror No. 3’s

27 reasoning process. (See Evid. Code, § 1150; People v. Nesler, supra, 16 Cal.4th at p. 584 [juror’s

testimony that extraneous information played no role in her consideration of evidence is

28 inadmissible].)

30

1 Moore again maintains the facts of this case are distinguishable

because, whatever reminders may have been given in this case,

2 discussion continued over a significant amount of time about

Moore's failure to testify. “Where . . . a mistake by one or more jurors

3 during deliberations is promptly followed by a reminder from a

fellow juror to disregard a defendant's decision not to take the

4 stand—and the discussion of the forbidden topic thereafter ceases,

without any objective evidence that the reminder of the court's

5 instructions was ineffective—the reminder tends strongly to rebut the

presumption that ‘[t]he defendant's failure to testify may still have

6 affected the decision of at least one of the jurors.’” (People v.

Lavender, supra, 60 Cal.4th at p. 691, italics added.) In contrast, “a

7 persistent refusal to follow the court's instructions would tend to

confirm the prejudicial effect of the misconduct.” (Id. at p. 692.)

8

Jurors Nos. 3 and 10 testified that Moore's decision not to testify was

9 discussed for somewhere between 30 minutes up to four hours over

the course of two days of deliberations. However, the trial court’s

10 implicit discrediting of these statements is supported by the record.

Simply put, the testimony was conclusory; none of the jurors,

11 including Nos. 3 and 10, testified about anything more than, at most,

a few minutes of conversation. Juror No. 3 was the only juror to

12 suggest the admonitions of other jurors were ineffective. And as we

have previously stated, we are in no position to second guess the trial

13 court's implicit discrediting of Juror No. 3, who appears to have

based that conclusion on his own “second thoughts” about the

14 verdict, rather than any overt act corroborated by the other jurors.

15 We see no meaningful basis on which to distinguish this case from

Hord, Leonard, and Loker. Nor can we agree with Moore that the

16 evidence supporting the jury's second degree murder verdict is weak.

Timothy testified that Moore aimed a loaded rifle at Brown's chest

17 and, after being warned to put the gun down, Moore pulled the

trigger. Other evidence, including Moore's own admissions,

18 corroborated Timothy’s account and suggested Moore was conscious

of his actions and their natural and probable consequences.

19 Substantial evidence supports the trial court's findings and our

independent review of the record shows no substantial likelihood of

20 prejudice.

21 ECF No. 20-9 (Ex. C) at 21-27. Petitioner raised this claim in a petition for review to the

22 California Supreme Court (ECF No. 20-13 (Ex. G) at 17; the petition was summarily denied (ECF

23 No. 20-14 (Ex. H)).

24 2. Relevant Federal Law

25 Under the Sixth Amendment, a criminal defendant has the right to be tried by an impartial

26 jury. See Irvin v. Dowd, 366 U.S. 717, 722 (1961). Due process demands that a criminal

27 defendant be tried by “a jury capable and willing to decide the case solely on the evidence before

28 it.” Smith v. Phillips, 455 U.S. 209, 217 (1982).

31

1 The discussion of Federal Rule of Evidence 606(b), contained in the foregoing section, is

2 also applicable here.

3 3. Analysis

4 Petitioner is not entitled to relief on this claim.

5 First, 606(b)(2) limits the scope of what this court can consider with respect to juror

6 statements challenging the validity of a verdict. This court may only consider “extraneous

7 prejudicial information . . . improperly brought to the jury’s attention;” “outside influence . . .

8 improperly brought to bear upon any juror;” or “a mistake . . . in entering the verdict onto the

9 verdict form.” Fed. R. Evid. 606(b)(2).18 The Ninth Circuit has held that 606(b) bars

10 consideration of juror statements indicating that they ignored a court’s instructions and discussed

11 a defendant’s failure to testify during their deliberations. See United States v. Rutherford, 371

12 F.3d 634, 640 (9th Cir. 2004) (“[T]he jurors learned of Mrs. Rutherford’s failure to testify

13 through their personal observations during trial, not through a prohibited route or improper ex

14 parte contact. Under these circumstances, the district court did not err in concluding that

15 testimony regarding Mrs. Rutherford’s absence from the witness stand is inadmissible under Rule

16 606(b) . . . .”); see also Raley v. Ylst, 470 F.3d 792, 803 (9th Cir. 2006) (“The fact that Petitioner

17 did not testify in his own defense is not extrinsic evidence. Although the jury's discussion of this

18 issue clearly violated the trial court's instructions, what happened (or did not happen) in the

19 courtroom was a part of the trial, not extrinsic to it. We may not inquire into a jury's deliberations

20 concerning the evidence at trial.”) (internal citations omitted).

21 Second, even if Rule 606(b) posed no bar to this claim, the petition still must be denied.

22 The state court’s finding that there was no substantial likelihood of prejudice was not objectively

23 unreasonable. See Towery v. Schriro, 641 F.3d 300, 304 (9th Cir. 2010) (“When a state court has

24 found a constitutional error to be harmless beyond a reasonable doubt, a federal court may not

25 grant habeas relief unless the state court’s determination is objectively unreasonable.”). As the

26 state court of appeal noted, there were conflicting statements regarding the nature and extent of

27

18

This rule applies in federal habeas proceedings. See Capps v. Sullivan, 921 F.2d 260,

28 262 (10th Cir. 1990).

32

1 the jury’s discussion about petitioner’s failure to testify. ECF No. 20-9 at 27 (“In contrast to

2 Jurors Nos. 3 and 10, Jurors Nos. 2, 5, 7, 8, and 9 presented a consistent account of the limited

3 nature and extent of the jurors’ discussion of Moore’s failure to testify. On this record, we cannot

4 question the trial court’s implicit crediting of those jurors who only recalled passing statements

5 that it would have been helpful to have Moore’s side of the story.”). This court is poorly

6 positioned to second-guess the state courts’ determinations of juror credibility. Indeed, the Ninth

7 Circuit has explicitly noted that “[n]o sort of factual finding . . . is more appropriate for

8 deferential treatment than is a state court’s credibility determination.” Knaubert v. Goldsmith,

9 791 F.2d 722, 727 (9th Cir. 1986); see also Rushen v. Spain, 464 U.S. 114, 120 (1983) (“Here,

10 both the State’s trial and appellate courts concluded that the jury's deliberations, as a whole, were

11 not biased. This finding of ‘fact’ -- on a question the state courts were in a far better position than

12 the federal courts to answer -- deserves a ‘high measure of deference . . . .’”).

13 C. Involuntary Manslaughter Instruction

14 Finally, petitioner argues that the trial court’s instruction on involuntary manslaughter

15 relieved the prosecution of its burden to prove malice beyond a reasonable doubt in order to

16 obtain a murder conviction. The instruction at issue – CALCRIM 626 – directed:

17 Involuntary manslaughter has been proved if you find beyond a

reasonable doubt that:

18

1. The defendant killed without legal justification or excuse;

19

2. The defendant did not act with the intent to kill;

20

3. The defendant did not act with a conscious disregard for human

21 life;

22 AND

23 4. As a result of voluntary intoxication, the defendant was not

conscious of (his/her) actions or the nature of those actions.

24

The People have the burden of proving beyond a reasonable doubt

25 that the defendant was not unconscious. If the People have not met

this burden, you must find the defendant not guilty of murder.

26

27 ECF No. 20-1 (Clerk’s Transcript Vol. 1) at 288. Petitioner contends that the instruction is

28 flawed in two ways. First, he argues that it required proof beyond a reasonable doubt of the

33

1 absence of malice. He contends that a correct instruction would include language indicating

2 involuntary manslaughter is proved if the prosecution has failed to prove beyond a reasonable

3 doubt the presence of malice. Thus, petitioner argues that the instruction, as phrased, incorrectly

4 placed the burden on him to demonstrate his lack of malice. Second, petitioner argues that the

5 instruction restricted his available defenses by requiring him to demonstrate not only the absence

6 of malice, but also that he lacked consciousness at the time the rifle was fired. He contends that

7 this instruction effectively limited his defense to lack of consciousness. In other words, “[t]he

8 jury was precluded from returning a verdict of involuntary manslaughter based on the theory that,

9 while [petitioner] was conscious at the time, the shooting was accidental rather than intentional,

10 and thus non-malicious.” ECF No. 1 at 48.

11 1. State Court Decision

12 Petitioner raised this claim on direct appeal, and the state court of appeal rejected it:

13 Moore also contends his second degree murder conviction should be

reversed because the jury was improperly instructed. Moore's

14 position is that an instruction given on involuntary manslaughter,

pursuant to CALCRIM No. 626, relieved the prosecution of its

15 burden to prove malice beyond a reasonable doubt in order to obtain

a conviction for murder. Moore did not object to this instruction at

16 trial. In fact, apparently making a tactical decision that a conviction

on the lesser offense would be preferable, he specifically requested

17 that CALCRIM No. 626 be given without any modification.

Although this raises a serious question regarding whether the instant

18 claim was preserved for our review, we nonetheless proceed to the

merits.19

19

In order to provide context for Moore’s legal arguments, we first

20 review the law of homicide, and specifically the distinctions between

first and second degree murder and involuntary manslaughter.

21 “Murder is the unlawful killing of a human being . . . with malice

aforethought.” (§ 187, subd. (a); People v. Rios (2000) 23 Cal.4th

22 450, 460, 97 Cal. Rptr. 2d 512, 2 P.3d 1066.) Malice may be express

or implied. (§ 188.) Express malice is shown by the defendant's intent

23 to unlawfully kill. (People v. Perez (2010) 50 Cal.4th 222, 233, fn.

7, 112 Cal. Rptr. 3d 310, 234 P.3d 557.) “‘Malice is implied . . . when

24 a killing results from an intentional act, the natural consequences of

which are dangerous to human life, and the act is deliberately

25 performed with knowledge of the danger to, and with conscious

26 19

[footnote fourteen in original text] The People do not raise invited error or forfeiture,

27 and Moore asserts section 1259 permits us “[to] review any instruction given, refused or

modified, even though no objection was made thereto in the lower court, if the substantial rights

28 of the defendant were affected thereby.”

34

1 disregard for, human life.’” (People v. Carlson (2011) 200

Cal.App.4th 695, 703, 133 Cal. Rptr. 3d 218.) Thus, malice exists if

2 the homicide was committed with an intent to kill or with a conscious

disregard for danger to human life. (Rios, at p. 460.)

3

First degree murder is a killing that is premeditated and deliberate,

4 that occurs during the commission of certain enumerated felonies

(statutory felony murder), or that occurs under other specified

5 circumstances not relevant here, where malice is not negated by heat

of passion or imperfect self-defense. (§ 189; People v. Rios, supra,

6 23 Cal.4th at p. 465.) Second degree murder is any other killing

committed with an intent to kill or conscious disregard for danger to

7 human life “but without the additional elements, such as willfulness,

premeditation, and deliberation, that would support a conviction of

8 first degree murder.” (People v. Knoller (2007) 41 Cal.4th 139, 151,

59 Cal. Rptr. 3d 157, 158 P.3d 731; accord, § 189.)

9

Involuntary manslaughter is defined by statute as “the unlawful

10 killing of a human being without malice . . . [¶] . . . [¶] . . . in the

commission of an unlawful act, not amounting to felony; or in the

11 commission of a lawful act which might produce death, in an

unlawful manner, or without due caution and circumspection,”

12 excepting acts committed in the driving of a vehicle. (§ 192, subd.

(b).) “[T]here are three types of predicate acts that may underlie

13 involuntary manslaughter: a misdemeanor, a lawful act, or a

noninherently dangerous felony. All three acts require the same mens

14 rea of criminal negligence.” (People v. Butler (2010) 187

Cal.App.4th 998, 1012, 114 Cal. Rptr. 3d 696.) “The term ‘unlawful

15 act, not amounting to felony’ as used in section 192(b) codifies the

traditional common law form of involuntary manslaughter as the

16 predicate for finding that a homicide committed without malice was

involuntary manslaughter.” (People v. Cox (2000) 23 Cal.4th 665,

17 671, 97 Cal. Rptr. 2d 647, 2 P.3d 1189.) This first clause, which is

often referred to as the misdemeanor manslaughter rule, applies only

18 if the underlying misdemeanor committed is dangerous to human life

or safety, not in the abstract, but under the circumstances of its

19 commission and is committed with criminal intent or criminal

negligence. (Id. at p. 675.) Under this theory, “an accidental shooting

20 that occurs while the defendant is brandishing a firearm in violation

of section 417 could be involuntary manslaughter.” (People v.

21 Thomas, supra, 53 Cal.4th at p. 814.)

22 Under section 192 subdivision (b)’s second clause, “without due

caution and circumspection” has been construed to require criminal

23 negligence. (People v. Penny (1955) 44 Cal.2d 861, 879, 285 P.2d

926.) Other nonstatutory theories of involuntary manslaughter have

24 also been recognized. A killing while one is unconscious of one's acts

due to voluntary intoxication is also involuntary manslaughter.

25 (People v. Abilez (2007) 41 Cal.4th 472, 516, 61 Cal. Rptr. 3d 526,

161 P.3d 58.) Although “‘[u]nconsciousness is ordinarily a complete

26 defense to a charge of criminal homicide . . . [i]f the state of

unconsciousness results from intoxication voluntarily induced, . . . it

27 is not a complete defense. ([Former] Pen. Code, § 22.)’” (People v.

Ochoa (1998) 19 Cal.4th 353, 423, 79 Cal. Rptr. 2d 408, 966 P.2d

28 442; accord § 29.4.) “When a person renders himself or herself

35

1 unconscious through voluntary intoxication and kills in that state, the

killing is attributed to his or her negligence in self-intoxicating to that

2 point, and is treated as involuntary manslaughter.” (Ibid.)

3 We review the trial court's jury instructions independently. (People

v. Guiuan (1998) 18 Cal.4th 558, 569, 76 Cal. Rptr. 2d 239, 957 P.2d

4 928.) “‘In considering a claim of instructional error we must first

ascertain what the relevant law provides, and then determine what

5 meaning the instruction given conveys. The test is whether there is a

reasonable likelihood that the jury understood the instruction in a

6 manner that violated the defendant's rights.’ [Citation.] We

determine the correctness of the jury instructions from the entire

7 charge of the court, not from considering only parts of an instruction

or one particular instruction. [Citation.] The absence of an essential

8 element from one instruction may be cured by another instruction or

the instructions taken as a whole. [Citation.] Further, in examining

9 the entire charge we assume that jurors are ‘“‘“intelligent persons

and capable of understanding and correlating all jury instructions

10 which are given.”’”’” (People v. Smith (2008) 168 Cal.App.4th 7, 13,

85 Cal. Rptr. 3d 180.) The entirety of the court's instructions

11 contradict Moore's contention that the burden of proof was reversed

or that the jury could convict him of involuntary manslaughter only

12 on an unconsciousness theory, even if malice was not proven beyond

a reasonable doubt.

13

Pursuant to CALCRIM No. 626, the trial court instructed the jury:

14 “Voluntary intoxication may cause a person to be unconscious of his

or her actions. A very intoxicated person may still be capable of

15 physical movement but may not be aware of his or her actions or the

nature of those actions. [¶] A person is voluntarily intoxicated if he

16 or she becomes intoxicated by willingly using any intoxicating drink

or other substance knowing that it could produce an intoxicating

17 effect, or willingly assuming the risk of that effect. [¶] When a person

voluntarily causes his or her own intoxication to the point of

18 unconsciousness, the person assumes the risk that while unconscious

he or she will commit acts inherently dangerous to human life. If

19 someone dies as a result of the actions of a person who was

unconscious due to voluntary intoxication, then the killing is

20 involuntary manslaughter. [¶] Involuntary manslaughter has been

proved if you find beyond a reasonable doubt that: [¶] 1. The

21 defendant killed without legal justification or excuse; [¶] 2. The

defendant did not act with the intent to kill; [¶] 3. The defendant did

22 not act with a conscious disregard for human life; [¶] AND [¶] 4. As

a result of voluntary intoxication, the defendant was not conscious of

23 his actions or the nature of those actions. [¶] The People have the

burden of proving beyond a reasonable doubt that the defendant was

24 not unconscious. If the People have not met this burden, you must

find the defendant not guilty of murder.” (Italics omitted & added.)

25

Moore contends the above instruction is “incorrect” because, under

26 italicized paragraphs 2 and 3 above, CALCRIM No. 626 erroneously

shifted the burden to the defense to prove the absence of an intent to

27 kill and the absence of a conscious disregard for human life in order

to secure a verdict of involuntary manslaughter and preclude a

28 verdict of second degree murder. In other words, he complains the

36

1 instruction is erroneous because it does not state “involuntary

manslaughter has been proved if the jury finds beyond a reasonable

2 doubt that the defendant did kill without legal justification or excuse,

but further concludes that the prosecution has failed to prove beyond

3 a reasonable doubt the presence of malice—i.e., that the defendant

acted with the intent to kill or acted with a subjective and conscious

4 disregard for human life.”

5 There is no reasonable likelihood the jury could have believed that,

in order to be acquitted of second degree murder, Moore had the

6 burden to prove the absence of malice beyond a reasonable doubt.

Nothing in CALCRIM No. 626 places the burden of proof on Moore.

7 The jury was given the standard reasonable doubt instruction

(CALCRIM No. 220), by which it was informed: "A defendant in a

8 criminal case is presumed to be innocent. This presumption requires

that the People prove a defendant guilty beyond a reasonable doubt.

9 Whenever I tell you the People must prove something, I mean they

must prove it beyond a reasonable doubt. [¶] . . . [¶] . . . Unless the

10 evidence proves the defendant guilty beyond a reasonable doubt, he

is entitled to an acquittal and you must find him not guilty." Most

11 importantly, the jury was instructed the People had the burden to

prove all the elements of second degree murder. From these two

12 instructions alone, we can assume the jury understood they must

acquit Moore if they had a reasonable doubt whether the People

13 proved malice.

14 The jury was also instructed, under CALCRIM No. 580, on

misdemeanor manslaughter/lawful act theories of involuntary

15 manslaughter. That instruction provides: “When a person commits

an unlawful killing but does not intend to kill and does not act with

16 conscious disregard for human life, then the crime is involuntary

manslaughter. [¶] The difference between other homicide offenses

17 and involuntary manslaughter depends on whether the person was

aware of the risk to life that his or her actions created and consciously

18 disregarded that risk. An unlawful killing caused by a willful act

done with full knowledge and awareness that the person is

19 endangering the life of another, and done in conscious disregard of

that risk, is voluntary manslaughter or murder. An unlawful killing

20 resulting from a willful act committed without intent to kill and

without conscious disregard of the risk to human life is involuntary

21 manslaughter. [¶] . . . [¶] In order to prove murder, the People have

the burden of proving beyond a reasonable doubt that the defendant

22 acted with intent to kill or with conscious disregard for human life.

If the People have not met either of these burdens, you must find the

23 defendant not guilty of murder.” (Italics added.) Moore’s trial

counsel emphasized the italicized language in closing argument.

24

The trial court’s entire charge to the jury made clear the People had

25 the burden of proof on both murder and involuntary manslaughter.

This burden was in no way altered by the fact that Moore's trial

26 counsel urged the jury to reject second degree murder and convict

27 /////

28 /////

37

1 Moore of, at most, involuntary manslaughter.20 (See Carella v.

California (1989) 491 U.S. 263, 265, 109 S. Ct. 2419, 105 L. Ed. 2d

2 218 [prosecution bears burden of proving all elements of an offense

beyond a reasonable doubt.].)

3

Moore also contends CALCRIM No. 626 improperly instructed the

4 jury that a conviction for involuntary manslaughter, on any theory,

required not only the absence of malice but also that Moore lacked

5 consciousness at the time the rifle was fired. Thus, Moore insists the

instruction “effectively limited [his] defenses to the single one of

6 lack of consciousness. The jury was precluded from returning a

verdict of involuntary manslaughter based on the theory that, while

7 [Moore] was conscious at the time, the shooting was accidental rather

than intentional, and thus non-malicious.” Our previous recitation of

8 CALCRIM No. 580 refutes Moore's contention. There is no conflict

in the two instructions. CALCRIM Nos. 580 and 626 simply instruct

9 on two distinct theories of involuntary manslaughter. (People v. Turk

(2008) 164 Cal.App.4th 1361, 1381, fn. 15, 80 Cal. Rptr. 3d 473.)

10 There is no reasonable likelihood the jury would have concluded it

could only convict Moore of involuntary manslaughter if he was

11 unconscious at the time the rifle was fired.

12 The trial court did not err in instructing the jury with CALCRIM No.

626.21

13

14 ECF No. 20-9 (Ex. C) at 31-37. Petitioner raised this claim in a petition for review to the

15 California Supreme Court (ECF No. 20-13 (Ex. G) at 30; the petition was summarily denied (ECF

16 No. 20-14 (Ex. H)).

17 /////

18 /////

19 /////

20

20

[footnote fifteen in original text] To the extent Moore suggests voluntary intoxication is

21 a complete defense to second degree murder, he is incorrect. With respect to murder prosecutions,

22 voluntary intoxication evidence is admissible as to whether the defendant premeditated, and

deliberated, or harbored express malice aforethought. (People v. Timms (2007) 151 Cal.App.4th

23 1292, 1296-1297, 60 Cal. Rptr. 3d 677; § 29.4, subd. (b).) However, voluntary intoxication can

no longer be used to negate implied malice in a second degree murder prosecution. (People v.

24 Ferguson (2011) 194 Cal.App.4th 1070, 1081, 124 Cal. Rptr. 3d 182; People v. Timms, supra,

151 Cal.App.4th at pp. 1298, 1300-1301; § 29.4, subds. (a), (b).)

25

21

26 [footnote sixteen in original text] Accordingly, we need not address the ineffective

assistance of counsel claim Moore asserts, for the first time, in his reply brief. It is also

27 unnecessary to address the People's alternative argument that there is no substantial evidence

Moore was unconscious and the trial court had no obligation to instruct the jury regarding this

28 theory of involuntary manslaughter.

38

1 2. Relevant Federal Law

2 “It is not the province of a federal court to reexamine state court determinations of state

3 law questions.” Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). With respect to jury instructions,

4 the Supreme Court has held that:

5 The burden of demonstrating that an erroneous instruction was so

prejudicial that it will support a collateral attack on the constitutional

6 validity of a state court's judgment is even greater than the showing

required to establish plain error on direct appeal. The question in

7 such a collateral proceeding is “whether the ailing instruction by

itself so infected the entire trial that the resulting conviction violates

8 due process,” not merely whether “the instruction is undesirable,

erroneous, or even ‘universally condemned.’”

9

10 Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (quoting Cupp v. Naughten, 414 U.S. 141, 147

11 (1973)).

12 3. Analysis

13 As an initial matter, any claim that the relevant instruction was erroneous under state law

14 is foreclosed by the state court’s determination that it was not. See Bradshaw v. Richey, 546 U.S.

15 74, 76 (2005) (per curiam) (“[A] state court’s interpretation of state law, including one announced

16 on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”).

17 Thus, the only question is whether the instruction violated petitioner’s federal due process rights.

18 It did not.

19 The court of appeal reasonably concluded that the jury instructions, viewed in their

20 totality, established that the prosecution had the burden of proof on murder and voluntary

21 manslaughter. See Boyde v. California, 494 U.S. 370, 378 (1990) (“[A] single instruction to a

22 jury may not be judged in artificial isolation, but must be viewed in the context of the overall

23 charge.”). As the state court noted, the jury was instructed as to reasonable doubt:

24 A defendant in a criminal case is presumed to be innocent. This

presumption requires that the People prove a defendant guilty beyond

25 a reasonable doubt. Whenever I tell you the People must prove

something, I mean they must prove it beyond a reasonable doubt.

26

27 ECF No. 20-1 (Clerk’s Transcript Vol. 1) at 261. The jury was also instructed, pursuant to

28 CALCRIM 580, that: that the prosecution had the burden, with respect to second degree murder,

39

1 of proving beyond a reasonable doubt that petitioner “acted with intent to kill or with conscious

2 disregard for human life.” Id. at 285 (CALCRIM 580).

3 And, with respect to the issue of consciousness, the court of appeal reasonably determined

4 that the trial court’s issuance of CALCRIM 580 precludes a finding that the jury was instructed

5 that it could only convict petitioner if he was unconscious at the time the rifle fired. CALCRIM

6 580 provides:

7 When a person commits an unlawful killing but does not intend to

kill and does not act with conscious disregard for human life, then

8 the crime is involuntary manslaughter.

9 The difference between other homicide offenses and involuntary

manslaughter depends on whether the person was aware of the risk

10 to life that his or her actions created and consciously disregarded that

risk. An unlawful killing caused by a willful act done with full

11 knowledge and awareness that the person is endangering the life of

another, and done in conscious disregard of that risk, is voluntary

12 manslaughter or murder. An unlawful killing resulting from a willful

act committed without intent to kill and without conscious disregard

13 of the risk to human life is involuntary manslaughter.

14 The defendant committed involuntary manslaughter if:

15 The defendant committed a crime that possessed a high risk of death

or great bodily injury because of the way in which it was committed;

16 and

17 The defendant’s acts unlawfully caused the death of another person.

18 Great bodily injury means significant or substantial physical injury.

It is an injury that is greater than minor or moderate harm.

19

In order to prove murder or voluntary manslaughter, the People have

20 the burden of proving beyond a reasonable doubt that the defendant

acted with intent to kill or with conscious disregard for human life.

21 If the People have not met either of these burdens, you must find the

defendant not guilty of murder and not guilty of voluntary

22 manslaughter.

23 Id. at 284. Separately, the trial court instructed with respect to CALCRIM 626:

24 Voluntary intoxication may cause a person to be unconscious of his

or her actions. A very intoxicated person may still be capable of

25 physical movement but may not be aware of his or her actions or the

nature of those actions. A person is voluntarily intoxicated if he or

26 she becomes intoxicated by willingly using any intoxicating drink,

drug, or other substance knowing that it could produce an

27 intoxicating effect, or willingly assuming the risk of that effect.

28 /////

40

1 When a person voluntarily causes his or her own intoxication to the

point of unconsciousness, the person assumes the risk that while

2 unconscious he or she will commit acts inherently dangerous to

human life. If someone dies as a result of the actions of a person who

3 was unconscious due to voluntary intoxication, then the killing is

involuntary manslaughter.

4

Involuntary manslaughter has been proved if you find beyond a

5 reasonable doubt that:

6 The defendant killed without legal justification or excuse. That’s No.

1.

7

No. 2. The defendant did not act with the intent to kill;

8

No. 3. The defendant did not act with a conscious disregard for

9 human life; and

10 4. As a result of voluntary intoxication, the defendant was not

conscious of his actions or the nature of those actions.

11

The People have the burden of proving beyond a reasonable doubt

12 that the defendant was not unconscious. If the People have not met

this burden, you must find the defendant not guilty of murder or

13 voluntary manslaughter.

14 ECF No. 20-7 (Reporter’s Transcript Vol. 3) at 210-211. A review of the foregoing instructions

15 supports the court of appeal’s determination that the each provides for distinct theories of

16 involuntary manslaughter. The instructions are separate, distinct, and non-conflicting. Thus, the

17 jury was not required to find that petitioner lacked consciousness at the time the rifle was fired in

18 order to return a verdict of involuntary manslaughter.

19 In light of the foregoing, the court concludes that, at the very least, reasonable jurists

20 could disagree as to the court of appeal’s jury instruction determinations vis à vis malice and

21 consciousness. Thus, habeas relief is foreclosed. See Harrington v. Richter, 562 U.S. 86, 101

22 (2011) (“A state court's determination that a claim lacks merit precludes federal habeas relief so

23 long as fairminded jurists could disagree on the correctness of the state court's decision. . .”).

24 CONCLUSION

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

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

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

28 /////

41

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

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

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

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

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

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

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

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

9 1991). In his objections petitioner may address whether a certificate of appealability should issue

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

11 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a

12 final order adverse to the applicant).

13 DATED: December 4, 2019.

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