# (HC) Moore v. Frauenheim

> District Court, E.D. California · December 4, 2019

URL: https://www.frixlaw.com/law-library/cases/10015567

## Case

- **Court:** District Court, E.D. California
- **Decided:** December 4, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10015567

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10

11 RYAN JUDSON MOORE, No. 2:19-cv-155-WBS-EFB P
12 Petitioner,
13 v. FINDINGS AND RECOMMENDATIONS
14 SCOTT FRAUENHEIM,
15 Respondent.
16

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.

28 /////
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.
20

21

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.
2
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.
28
2
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.
5
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
9
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
15

16 /////

17 /////

18 /////

19
3
[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.
21
4
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.

28 5
[footnote in original text] On cross-examination, Timothy denied ever touching the gun.
3
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.
9
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.
26
/////
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4
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).
5
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.
10
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.
22
6
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.”
24
7
[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.
28
5
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.
7
People’s Rebuttal Case
8
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.
19
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.
23

24 8
[footnote in original text] Rashaun is Timothy’s cousin and Brown was Rashaun’s
father’s girlfriend.
25
9
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.”
6
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
6
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 -
17
(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).

28 /////
7
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
17

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
28
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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).
25
10
26 Strickland v. Washington, 466 U.S. 668 (1984).
11
27 Batson v. Kentucky, 476 U.S. 79 (1986).

28 12
Faretta v. California, 422 U.S. 806 (1975).
9
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.
28 /////
10
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
28 /////
11
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:

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10015567. Public record. Not legal advice.