(HC) Inprasit v. Matteson

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 ARTHUR INPRASIT aka ARTHUR NOP No. 2:20-cv-00643 WBS KJN P

LEW,

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Petitioner,

13 FINDINGS & RECOMMENDATIONS

v.

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GISELLE MATTESON,

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Respondent.

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17 I. Introduction

18 Petitioner is a state prisoner, proceeding without counsel, with an application for a writ of

19 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his August 23, 2016,

20 conviction for assault with a deadly weapon. (ECF No. 10-3 at 143-44, 146.) On October 6,

21 2016, petitioner was sentenced to 14 years in state prison. (Id. at 207-08.) Petitioner makes six

22 claims in his habeas petition: (1) there was insufficient evidence to convict; (2) the state appellate

23 court improperly upheld a “verdict” not rendered by the jury; (3) a due process violation and

24 ineffective assistance of counsel based on defendant’s lack of knowledge that his conviction

25 would be reviewed under a different standard; (4) ineffective assistance of counsel for failing to

26 highlight exculpatory evidence and using a patently invalid legal theory; (5) a due process

27 violation for errors in jury instruction regarding circumstantial evidence; and (6) cumulative trial

28 errors deprived defendant of a fair trial. (ECF No. 1.) After careful review of the record, this

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1 court concludes that the petition should be denied.

2 II. Procedural History

3 On August 23, 2016, a jury found petitioner guilty of assault with a deadly weapon with

4 two related enhancements. (ECF No. 10-3 at 143-44, 146.) On October 6, 2016, petitioner was

5 sentenced to 14 years in state prison. (Id. at 207-08.)

6 Petitioner appealed the conviction to the California Court of Appeal, First Appellate

7 District. (ECF No. 10-8 at Exs. 3-5.) The Court of Appeal affirmed the conviction on July 26,

8 2018. (Id. at Ex. 6.) Petitioner filed a petition for rehearing, which the Court of Appeal denied.

9 (Id. at Exs. 7-8.)

10 Petitioner filed a petition for review in the California Supreme Court, which the court

11 denied on November 16, 2018. (Id. at Exs. 9-10.) The United States Supreme Court denied his

12 petition for writ of certiorari on March 25, 2019. (Id. at Ex. 11.) Petitioner filed two state habeas

13 petitions. The California Court of Appeal and California Supreme Court denied one (A151784

14 and S251193). The California Court of Appeal ordered petitioner to show cause for resentencing

15 consideration on the other (A156377).

16 Petitioner filed the instant petition on March 18, 2020. (ECF No. 1.) Respondent filed a

17 reply, and petitioner filed a traverse. (ECF Nos. 10 & 11.)

18 III. Facts 1

19 After independently reviewing the record, this court finds the appellate court’s factual

20 summary accurate and adopts it herein. In its unpublished memorandum and opinion affirming

21 petitioner’s judgment of conviction on appeal, the California Court of Appeal for the First

22 Appellate District provided the following factual summary:

23 Defendant was charged in an amended information, filed on August

4, 2016, with assault with a deadly weapon. (Pen. Code,2 § 245, subd.

24 (a)(1).) In connection with the charge, the information also alleged

enhancements for personal infliction of great bodily injury (§

25 12022.7, subd. (a) ), personal use of a deadly weapon (§ 12022, subd.

(b)(1) ), and various prior convictions including one strike.

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27 The facts are taken from the opinion of the California Court of Appeal for the First Appellate

District in People v. Lew, No. A149775, 2018 WL 3583540 (Cal. Ct. App. July 26, 2018), a copy

28 of which was lodged by respondent as ECF No. 10-8 at Ex. 6.

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1 [N.2 All statutory references are to the Penal Code unless otherwise

indicated.]

2

The charge against defendant was based on a March 8, 2016 fight

3 between him and Matthew H. Matthew and Nicole S. had been in a

long-term relationship and had lived with their two children and

4 Nicole’s adopted son. Shortly after Matthew and Nicole separated,

defendant began a sexual relationship with Nicole. Defendant and

5 Matthew had been friends prior to defendant’s relationship with

Nicole. However, when Matthew discovered defendant’s

6 relationship with Nicole, it triggered an exchange of threatening

messages between Matthew, Matthew’s brother, defendant, and

7 Nicole. In part, Matthew texted defendant, “You’re a target,” and

Matthew’s brother sent defendant a Facebook message reading, “I’m

8 going to send the goons, punk.” Matthew’s brother also texted Nicole

that defendant’s relationship with her was “a punishable offense” and

9 “The streets will provide justice.” In response, defendant called

Matthew “retarded,” and told him to “choose [your] words wisely

10 because [I] don’t play” and to “Bring it.”

11 A few days prior to the fight, Matthew went to the Mission Solano

homeless shelter where defendant sometimes stayed. Witnesses at

12 the shelter described Matthew as angry and making verbal threats

against defendant. Matthew testified he wanted to speak with

13 defendant to confront him and “get some closure,” but did not make

any threats. It is undisputed, however, Matthew was asked to leave

14 and did not speak with defendant at that time.

15 On March 8, 2016, Matthew arrived unannounced at Nicole’s

residence with two of the children. When she partially opened the

16 door, Matthew saw defendant in the house. Matthew became angry

because the third child also was in the house, and he and Nicole had

17 agreed significant others would not be around the children. Matthew

testified he was able to enter the house because Nicole let him in

18 when defendant stated, “Let the motherfucker in. Let that

motherfucker in. Let him in, Nicole.” Nicole and the children, on the

19 other hand, testified Matthew forced his way into the house, despite

her repeated requests that he not enter. It is undisputed that, while in

20 the doorway, Matthew pulled out and threw a box cutter at defendant,

although Matthew and Nicole dispute whether the blade was open.

21 Matthew then admitted to entering the house and picking up an

umbrella, but asserted he immediately dropped it. Nicole testified

22 Matthew picked up both a bat and an umbrella, and threatened

defendant with them. Matthew was angry and yelling during this

23 time.

24 Matthew then approached defendant. The evidence is undisputed

that, by this time, Matthew’s hands were empty. As he approached,

25 Matthew stated to defendant, “It’s fine. You can have her,” “I just

want a hug,” and “I don’t want to fight you.” Matthew had slightly

26 calmed down at this point. Matthew testified he intended to hug

defendant, but defendant pushed and stabbed him with a knife. In

27 response, Matthew began punching defendant, and defendant began

“slicing” Matthew with at least one knife. Matthew testified he

28 “staggered” defendant with one of his punches while being stabbed

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1 by defendant. Nicole’s testimony disputed Matthew’s account of the

fight. While she agreed Matthew approached defendant asking for a

2 hug, she testified Matthew triggered the fight by punching defendant.

3 Nicole had been between Matthew and defendant just prior to the

fight, but was pushed into the kitchen when the fight began. After

4 catching her balance, she returned to where the men were fighting,

pulled Matthew away from defendant, and told him to leave. At that

5 point, Matthew noticed the blood and lacerations, gathered his

things, and left the house. Nicole told her son to give Matthew a

6 towel. He did so, and Matthew left with the towel pressed to his neck.

Matthew and Nicole’s daughter, who entered the house around the

7 time the fight ended, testified defendant stated, “Nigga, I’m going to

come find you and kill you” while Matthew was leaving. She

8 testified she saw defendant with a bloody knife, and Nicole’s son and

Matthew both testified they saw defendant with two knives.

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The hospital activated the full trauma team in response to Matthew’s

10 injuries, a step usually taken only in instances of life-threatening

emergencies. The on-call trauma surgeon, John Zopfi, testified

11 Matthew required 40 minutes of resuscitation, intubation, and was

placed on a ventilator. Matthew had emergency surgery due to

12 certain injuries, including a 14-centimeter laceration on his neck that

transected the external jugular vein, a 12-centimeter laceration along

13 his jaw, and a 16-centimeter laceration on his forehead that went

down to the skull and transected his temporal artery. Prior to surgery,

14 Matthew lost approximately 30 to 35 percent of his total blood

volume. Dr. Zopfi opined Matthew would not have survived without

15 the surgery, and would have died in approximately 30 or 40 minutes

had the hemorrhages not been controlled.

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The jury convicted defendant of assault with a deadly weapon, and

17 found true the enhancements for personal infliction of great bodily

injury and personal use of a deadly weapon. He was sentenced to 14

18 years in state prison. Defendant timely appealed.

19 (People v. Lew, slip op. at 1-4; ECF No. 10-8 at 225-28.)

20 IV. Standards for a Writ of Habeas Corpus

21 An application for a writ of habeas corpus by a person in custody under a judgment of a

22 state court can be granted only for violations of the Constitution or laws or treaties of the United

23 States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation

24 or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire,

25 502 U.S. 62, 67-68 (1991).

26 Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas

27 corpus relief:

28 ////

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1 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 granted

2 with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim -

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

4 unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States; or

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

6 determination of the facts in light of the evidence presented in

the State court proceeding.

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8 28 U.S.C. § 2254(d).

9 For purposes of applying § 2254(d)(1), “clearly established Federal law” consists of

10 holdings of the Supreme Court at the time of the last reasoned state court decision. Thompson v.

11 Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 132 S. Ct. 38, 44-45

12 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S.

13 362, 412 (2000)). Circuit court precedent “may be persuasive in determining what law is clearly

14 established and whether a state court applied that law unreasonably.” Stanley, 633 F.3d at 859

15 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may

16 not be “used to refine or sharpen a general principle of Supreme Court jurisprudence into a

17 specific legal rule that th[e] [Supreme] Court has not announced.” Marshall v. Rodgers, 133 S.

18 Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (per curiam)).

19 Nor may it be used to “determine whether a particular rule of law is so widely accepted among

20 the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct.

21 Id. Further, where courts of appeals have diverged in their treatment of an issue, there is no

22 “clearly established federal law” governing that issue. See Carey v. Musladin, 549 U.S. 70, 77

23 (2006).

24 A state court decision is “contrary to” clearly established federal law if it applies a rule

25 contradicting a holding of the Supreme Court or reaches a result different from Supreme Court

26 precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003).

27 Under the “unreasonable application” clause of § 2254(d)(1), “a federal habeas court may grant

28 the writ if the state court identifies the correct governing legal principle from [the Supreme

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1 Court’s] decisions, but unreasonably applies that principle to the facts of the prisoner’s case.” 2

2 Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (quoting Williams, 529 U.S. at 413; see also Chia v.

3 Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, “a federal habeas court may not issue

4 the writ simply because that court concludes in its independent judgment that the relevant state-

5 court decision applied clearly established federal law erroneously or incorrectly. Rather, that

6 application must also be unreasonable.” Williams, 529 U.S. at 411; see also Schriro v. Landrigan,

7 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (“It is not enough that a federal habeas court,

8 in its ‘independent review of the legal question,’ is left with a ‘“firm conviction’” that the state

9 court was ‘“erroneous”’”). “A state court’s determination that a claim lacks merit precludes

10 federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state

11 court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v.

12 Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus

13 from a federal court, a state prisoner must show that the state court’s ruling on the claim being

14 presented in federal court was so lacking in justification that there was an error well understood

15 and comprehended in existing law beyond any possibility for fair-minded disagreement.” Id. at

16 103.

17 If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing

18 court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford,

19 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)

20 (en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of

21 § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by

22 considering de novo the constitutional issues raised.”).

23 The court looks to the last reasoned state court decision as the basis for the state court

24 judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).

25 If the last reasoned state court decision adopts or substantially incorporates the reasoning from a

26 2

Under § 2254(d)(2), a state court decision based on a factual determination is not to be

27 overturned on factual grounds unless it is “objectively unreasonable in light of the evidence

presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford,

28 384 F.3d 628, 638 (9th Cir. 2004)).

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1 previous state court decision, this court may consider both decisions to ascertain the reasoning of

2 the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When a

3 federal claim has been presented to a state court and the state court has denied relief, it may be

4 presumed that the state court adjudicated the claim on the merits in the absence of any indication

5 or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption

6 may be overcome by a showing “there is reason to think some other explanation for the state

7 court’s decision is more likely.” Id. at 99-100. Similarly, when a state court decision on

8 petitioner’s claims rejects some claims but does not expressly address a federal claim, a federal

9 habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the

10 merits. Johnson v. Williams, 568 U.S. 289, 298-301 (2013) (citing Richter, 562 U.S. at 98). If a

11 state court fails to adjudicate a component of the petitioner’s federal claim, the component is

12 reviewed de novo in federal court. See, e.g., Wiggins v. Smith, 539 U.S. 510, 534 (2003).

13 Where the state court reaches a decision on the merits but provides no reasoning to

14 support its conclusion, a federal habeas court independently reviews the record to determine

15 whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.

16 Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo

17 review of the constitutional issue, but rather, the only method by which we can determine whether

18 a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no

19 reasoned decision is available, the habeas petitioner has the burden of “showing there was no

20 reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98.

21 A summary denial is presumed to be a denial on the merits of the petitioner’s claims.

22 Stancle v. Clay, 692 F.3d 948, 957 & n.3 (9th Cir. 2012). While the federal court cannot analyze

23 just what the state court did when it issued a summary denial, the federal court reviews the state

24 court record to “determine what arguments or theories . . . could have supported the state court’s

25 decision; and then it must ask whether it is possible fairminded jurists could disagree that those

26 arguments or theories are inconsistent with the holding in a prior decision of [the Supreme]

27 Court.” Richter, 562 U.S. at 101. It remains the petitioner’s burden to demonstrate that ‘there

28 was no reasonable basis for the state court to deny relief.’” Walker v. Martel, 709 F.3d 925, 939

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1 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98).

2 When it is clear, however, that a state court has not reached the merits of a petitioner’s

3 claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal

4 habeas court must review the claim de novo. Stanley, 633 F.3d at 860 (citing Reynoso v.

5 Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006)).

6 V. Petitioner’s Claims

7 A. Insufficient Evidence

8 Petitioner claims that there was insufficient evidence to convict because the evidence

9 showed that he only used the force necessary to stop the attack, thus raising a possible self-

10 defense claim. (ECF No. 1 at 5.) He claims that the “prosecution failed to prove beyond a

11 reasonable doubt that less force would have stopped the attack.” (ECF No. 10-8 at 36; see also

12 ECF No. 1 at 5.)

13 In the last reasoned state court opinion, the California Court of Appeal considered this

14 claim and rejected it.

15 A. Sufficiency of Evidence for Assault Conviction

16 Defendant argues insufficient evidence supports his conviction for

assault “[b]ecause the prosecution’s evidence showed that only the

17 actions [defendant] took were sufficient to stave off [Matthew’s]

attack,” and thus raised reasonable doubt on the issue of self-defense.

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1. Standard of Review

19

Our review of any claim of insufficiency of the evidence is limited.

20 “ ‘ “When the sufficiency of the evidence is challenged on appeal,

the court must review the whole record in the light most favorable to

21 the judgment to determine whether it contains substantial evidence—

i.e., evidence that is credible and of solid value—from which a

22 rational trier of fact could have found the defendant guilty beyond a

reasonable doubt.” ’ ” (People v. Hill (1998) 17 Cal.4th 800, 848–

23 849.) The same standard of review applies when a conviction rests

primarily on circumstantial evidence. (People v. Perez (1992) 2

24 Cal.4th 1117, 1124.) We must presume in support of the judgment

the existence of every fact the trier of fact could have reasonably

25 deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978,

1053.) An appellate court does not reweigh the evidence, reassess

26 witness credibility or resolve factual questions. (People v. Ochoa

(1993) 6 Cal.4th 1199, 1206.) “ ‘If the circumstances reasonably

27 justify the trier of fact’s findings, the opinion of the reviewing court

that the circumstances might also reasonably be reconciled with a

28 contrary finding does not warrant a reversal of the judgment.’ ”

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1 (People v. Thomas (1992) 2 Cal.4th 489, 514.) Given this court’s

limited role on appeal, defendant bears a significant burden in

2 claiming there was insufficient evidence to sustain his convictions.

3 2. Analysis

4 “ ‘To justify an act of self-defense ..., the defendant must have an

honest and reasonable belief that bodily injury is about to be inflicted

5 on him. [Citation.]’ [Citation.] The threat of bodily injury must be

imminent [citation], and ‘... any right of self-defense is limited to the

6 use of such force as is reasonable under the circumstances.’ ” (People

v. Minifie (1996) 13 Cal.4th 1055, 1064–1065.) A person also has the

7 right to resist a battery (i.e., an offensive touching) by using force

that is reasonable under the circumstances, even if no injury is being

8 inflicted. (People v. Myers (1998) 61 Cal.App.4th 328, 335 (Meyers

).) However, “ ‘deadly force or force likely to cause great bodily

9 injury may be used only to repel an attack which is in itself deadly or

likely to cause great bodily injury.’ ” (People v. Hardin (2000) 85

10 Cal.App.4th 625, 629–630.)

11 Whether a defendant acted in self-defense may turn on various

factual issues, which are normally resolved by the jury. For example,

12 these may include whether the circumstances would cause a

reasonable person to perceive the necessity of self-defense, whether

13 the defendant actually acted in defense of himself, and whether the

force he used was excessive. (See People v. Clark (1982) 130

14 Cal.App.3d 371, 378, disapproved on other grounds in People v.

Blakeley (2000) 23 Cal.4th 82, 92.) As noted above, the substantial

15 evidence rule prohibits us from reassessing the credibility of the

witnesses or resolving factual disputes.

16

Here, the evidence supporting defendant’s self-defense claim was far

17 from uncontroverted, and reasonable persons could differ on whether

the amount of force he used was excessive under the circumstances.

18 It is undisputed Matthew entered the house and approached

defendant. Although conflicting evidence was offered regarding how

19 the fight began, it is undisputed Matthew was not wielding any

weapons while defendant possessed one or two knives.

20

Once the fight began, defendant engaged in conduct—stabbing with

21 a box cutter and/or knife—likely to cause great bodily injury. The

only justification for such conduct is if defendant reasonably

22 believed he was at risk of great bodily injury. (People v. Hardin,

supra, 85 Cal.App.4th at pp. 629–630.) The record does not establish

23 defendant either faced such a risk or could reasonably believe he

faced such a risk. Nothing in the record suggests Matthew’s fists,

24 alone, would cause such harm. Nor does the record suggest defendant

believed Matthew’s fists could cause such harm. Even Nicole, who

25 observed the entire fight and was between Matthew and defendant

for a portion of it, did not testify as to any injuries sustained by

26 defendant. The primary “threat” to defendant that Nicole identified

in her testimony was Matthew allegedly knocking defendant against

27 a sliding door and punching defendant from above. However, on

cross-examination, Nicole contradicted this testimony and conceded

28 defendant did not fall against the sliding door and instead Matthew

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1 and defendant were punching each other. The photographs of

defendant after the fight also do not disclose any obvious injuries.

2 While it is possible defendant was bruised under his clothing, he

clearly did not experience any meaningful injury to his head or face

3 and was not bleeding apart from a minor cut on one finger.

4 Moreover, there is no evidence to suggest defendant attempted to

first use lesser force without success. For example, there is no

5 evidence defendant began the fight with only his fists, or threatened

Matthew with the knife prior to actually using it. Rather, the record

6 shows the fight likely lasted for less than 40 seconds and Matthew

was in Nicole’s residence for no more than five minutes. The extent

7 of Matthew’s injuries—within a 40-second timeframe—suggests

defendant immediately utilized the knife in a manner to cause great

8 bodily injury without attempting to first defend himself with a lesser

degree of force.

9

Under these circumstances, the jury could have reasonably

10 determined the prosecutor presented sufficient evidence to negate

defendant’s self-defense claim. The evidence, viewed most

11 favorably to the prosecution, establishes defendant used

unreasonable force in his fight with Matthew, defeating his claim of

12 lawful self-defense. Although Matthew threw a box cutter at

defendant and initially picked up an umbrella and possibly a bat,

13 Matthew was not holding any weapons when he approached

defendant. While Matthew was able to strike defendant at least twice,

14 it is unclear whether those punches caused any actual harm to

defendant in light of the lack of any visible injuries on him. Matthew,

15 however, suffered multiple lacerations to his face, neck, arm, and

torso, including a forehead laceration that went all the way to the

16 skull and transected the temporal artery and a neck laceration that

transected the external jugular vein. Matthew’s injuries would have

17 been fatal had he not received emergency surgery, and he has

ongoing physical trauma.

18

Drawing all logical inferences in favor of the verdict, substantial

19 evidence supports the jury’s finding that defendant used excessive

force in defending himself against Matthew. (People v. Harris (1971)

20 20 Cal.App.3d 534, 537 [“ ‘the question of whether there was

[excessive force] is ordinarily one of fact for the jury to determine’

21 ”].) That the record also includes some evidence from which a

rational jury could have found otherwise does not establish defendant

22 acted in self-defense as a matter of law. Accordingly, we find the

evidence adduced at trial was sufficient to support his conviction.3

23

[N.3 Because we find substantial evidence supports a finding that

24 defendant used excessive force, we need not address whether there

was substantial evidence of mutual combat or of defendant initiating

25 the fight.]

26 (People v. Lew, slip op. at 4-7; ECF No. 10-8 at 228-31.)

27 A petitioner is entitled to habeas corpus relief on a sufficiency of the evidence claim “if it

28 is found that upon the record evidence adduced at the trial no rational trier of fact could have

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1 found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979);

2 see also Ngo v. Giurbino, 651 F.3d 1112, 1115 (9th Cir. 2011). This inquiry involves two steps.

3 First, this court must review the evidence in the light most favorable to the prosecution. Jackson,

4 443 U.S. at 319. If there are conflicting factual inferences, the federal habeas court must presume

5 the jury resolved the conflicts in favor of the prosecution. Id. at 326 (“[A] federal habeas corpus

6 court faced with a record of historical facts that supports conflicting inferences must presume—

7 even if it does not affirmatively appear in the record—that the trier of fact resolved any such

8 conflicts in favor of the prosecution, and must defer to that resolution.”); McDaniel v. Brown, 558

9 U.S. 120, 133 (2010) (per curiam). Second, this court will “determine whether the evidence at

10 trial, including any evidence of innocence, could allow any rational trier of fact to find the

11 essential elements of the crime beyond a reasonable doubt.” United States v. Nevils, 598 F.3d

12 1158, 1165 (9th Cir. 2010) (en banc).

13 Although this court’s review is grounded in due process under the Fourteenth

14 Amendment, the Jackson standard “must be applied with explicit reference to the substantive

15 elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n.16; Juan H.

16 v. Allen, 408 F.3d 1262, 1275-76 (9th Cir. 2005). This court will look to state law to establish

17 the elements of the offense and then turn to the federal question of whether the state court was

18 objectively unreasonable in concluding that sufficient evidence supported that conviction. See

19 Johnson v. Montgomery, 899 F.3d 1052, 1056 (9th Cir. 2018).

20 “After AEDPA, we apply the standards of Jackson with an additional layer of deference.”

21 Juan H., 408 F.3d at 1274; see Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam). On

22 direct appeal at the state level, “it is the responsibility of the jury—not the court—to decide what

23 conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the

24 jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could have

25 agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam). On habeas review,

26 “a federal court may not overturn a state court decision rejecting a sufficiency of the evidence

27 challenge simply because the federal court disagrees with the state court. The federal court

28 instead may do so only if the state court decision was ‘objectively unreasonable.’” Id. (quoting

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1 Renico v. Lett, 559 U.S. 766, 773 (2010)).

2 Under California law, the prosecution must prove the following elements to obtain a

3 conviction for assault with a deadly weapon:

4 1. The defendant did an act with a deadly weapon other than a

firearm that by its nature would directly and probably result in

5 the application of force to a person;

6 2. The defendant did that act willfully;

7 3. When the defendant acted, he was aware of facts that would lead

a reasonable person to realize that his act by its nature would

8 directly and probably result in the application of force to

someone;

9

4. When the defendant acted, he had the present ability to apply

10 force with a deadly weapon other than a firearm to a person;

11 AND

12 5. The defendant did not act in self-defense or in defense of

someone else.

13

14 (ECF No. 10-3 at 128; see also CAL. PENAL CODE 245(a)(1); People v. Golde, 163 Cal. 4th 101,

15 108-09 (2008).) Self-defense is a defense to this charge; “[t]he defendant acted in lawful self-

16 defense if:

17 1. The defendant reasonably believed that he or someone else was

in imminent danger of suffering bodily injury or was in imminent

18 danger of being touched lawfully;

19 2. The defendant reasonably believed that the immediate use of

force was necessary to defend against that danger;

20

AND

21

3. The defendant used no more force than was reasonably necessary

22 to defend against that danger.

23 (ECF No. 10-3 at 133; see also People v. Minifie, 13 Cal. 4th 1055, 1065-66 (1996).) The trial

24 court instructed the jury that “[t]he People have the burden of proving beyond a reasonable doubt

25 that the defendant did not act in lawful self-defense or defense of another.” (ECF No. 10-3 at

26 134.) Petitioner admits that the jury was properly instructed. (ECF No. 11 at 23-24.) He only

27 contests whether the third factor of self-defense—that defendant used no more force than was

28 reasonably necessary to defend against that danger—has been met. (Id. at 24, 26.)

12

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1 Here, the state appellate court reasonably concluded that “[t]he evidence, viewed most

2 favorably to the prosecution, establishes defendant used unreasonable force in his fight with

3 Matthew, defeating his claim of lawful self-defense.” (ECF No. 10-8 at 230; id. at 229 (“Here,

4 the evidence supporting defendant’s self-defense claim was far from unconverted, and reasonable

5 persons could differ on whether the amount of force he used was excessive under the

6 circumstances.”).) The fight was short, lasting about 40 seconds. (ECF No. 10-8 at 230.)

7 Matthew was not holding any weapons when he approached petitioner. (ECF No. 10-8 at 231;

8 ECF No. 10-5 at 114-17.) Although Matthew punched petitioner, it is unclear whether petitioner

9 suffered any injuries, as none were visible upon arrest. (ECF No. 10-8 at 231; ECF No. 10-5 at

10 272-75.) After being punched, petitioner started “slicing” Matthew with a knife, causing multiple

11 lacerations to Matthew’s face, neck, arm, and torso. (ECF No. 10-8 at 231; ECF No. 10-6 at 35-

12 39; ECF No. 10-5 at 120-21.) Matthew would have died from these injuries without emergency

13 surgery, and he continues to suffer physical trauma. (ECF No. 10-8 at 231; ECF No. 10-6 at 42;

14 ECF No. 10-5 at 132.) Based on the trial evidence, the state appellate court’s determination that

15 petitioner used an unreasonable amount of force thereby defeating his self-defense claim was not

16 objectively unreasonable.

17 To the extent that petitioner challenges the credibility of the trial evidence, this argument

18 fails. (ECF No. 11 at 25-26 & n.19.) A jury’s credibility determination is entitled to near-total

19 deference. Jackson, 443 U.S. at 326. If confronted by a record that supports conflicting

20 inferences, a federal habeas court “must presume—even if it does not affirmatively appear in the

21 record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must

22 defer to that resolution.” Id. Petitioner cannot meet this standard. As discussed above, the state

23 appellate court’s conclusion that the conviction was supported by sufficient evidence was not

24 objectively unreasonable.

25 Petitioner claims that the state appellate court “disposed of the claim by applying self-

26 defense elements applicable only in a homicide case.” (ECF No. 11 at 27.) Relatedly, petitioner

27 contends that the state appellate court “was not free to apply [People v. Hardin, 85 Cal. App. 4th

28 625 (2000)] dictum over the law as stated in [People v. Ceballos, 12 Cal. 3d 470 (1974)].” (Id. at

13

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1 27-28.) While this claim involves an interpretation of state law, the state appellate court did not

2 incorrectly apply state law. Rather, the state appellate court accurately restated that, under

3 California law, self-defense is rooted in the doctrine of necessity, giving rise to two related rules.

4 People v. Clark, 130 Cal. App. 3d 371, 380 (1982); see also Hardin, 85 Cal. App. 4th at 629-30.

5 “First, only that force which is necessary to repel an attack may be used in self-defense; force

6 which exceeds the necessity is not justified.” Clark, 130 Cal. App. 3d at 380. “Second, deadly

7 force or force likely to cause great bodily injury may be used only to repel an attack which is in

8 itself deadly or likely to cause great bodily injury; thus ‘[a] misdemeanor assault must be suffered

9 without the privilege of retaliating with deadly force.’” Id. “An assault with fists does not justify

10 the use of a deadly weapon in self-defense.” People v. Flores, No. B287454, 2018 WL 6695916,

11 at *2 (Cal. Ct. App. Dec. 20, 2018). Here, the state appellate court found that petitioner used

12 force likely to cause great bodily injury to counter a fist fight and that doing so was unreasonable,

13 negating his self-defense claim. (ECF No. 10-8 at 230.) The state court’s decision was not

14 contrary to, or an unreasonable application of, clearly established federal law, or that such a

15 finding was based on an unreasonable application of the facts. This court recommends denying

16 habeas relief on this claim.

17 B. Right to Trial by Jury

18 Petitioner claims that he was denied his right to fair jury because the Court of Appeal

19 “upheld” a verdict not rendered by the jury. Specifically, he argues the following:

20 The jury was correctly instructed, per CA law, that I could defend

with the amount of force necessary to repel any battery. The Court

21 of Appeal didn’t consider whether the prosecution proved I used

more. It found sufficient evidence to convict because a jury could

22 have found I faced no risk of great bodily injury but used force which

risked such injury to the attacker. The rule it applied is for homicide

23 cases, which is why the jury wasn’t instructed to consider the issue

and did not. My conviction was upheld on a theory never tried to a

24 jury.

25 (ECF No. 1 at 5.)

26 Petitioner raised this argument in his petition for rehearing before the California Court of

27 Appeal. (ECF No. 10-8 at Ex. 7.) In his rehearing brief, he argues that the state appellate court

28 should not have cited to People v. Hardin, 85 Cal. App. 4th 625 (2000), because the elements of

14

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1 self-defense in a homicide case are different than a self-defense claim in a non-homicide case.

2 (Id. at Ex. 7 at 300-02.) The state appellate court denied the petition for rehearing. (Id. at Ex. 8.)

3 Petitioner again raised this claim before the California Supreme Court. (Id. at Ex. 9.) The

4 California Supreme Court summarily denied review. (Id. at Ex. 10.) Because this claim was

5 sufficiently exhausted, this court proceeds to the merits of the claim.

6 This claim fails on the merits for several reasons. First, to the extent petitioner contends

7 that the court of appeals imposed a new verdict not reached by the jury, he is mistaken. The jury

8 convicted petitioner of assault with a deadly weapon intending to inflict great bodily injury.

9 (ECF No. 10-3 at 143-44, 146.) The court of appeals affirmed that judgment. (ECF No. 10-8 at

10 225, 245.) Nor did the court of appeals “engag[e] in fact-finding which the jury was never

11 required to make,” as petitioner alleges. (ECF No. 11 at 31.) As discussed above, the state

12 appellate court did not incorrectly apply state law and focused on the relevant issue—whether

13 petitioner’s use of force was reasonable under the circumstances. (ECF No. 10-8 at 229-30; ECF

14 No. 11 at 24.) It held that petitioner’s use of force was unreasonable. (ECF No. 10-8 at 229)

15 (“Here, the evidence supporting defendant’s self-defense claim was far from uncontroverted, and

16 reasonable persons could differ on whether the amount of force he used was excessive under the

17 circumstances.”); id. at 230 (“The evidence, viewed most favorably to the prosecution, establishes

18 defendant used unreasonable force in his fight with Matthew, defeating his claim of lawful self-

19 defense.”).

20 Second, state law determines the elements of a self-defense claim, and this court must

21 defer to the state court’s interpretation of state law applicable in this case. See Johnson, 566 U.S.

22 at 655; Hicks v. Feiock, 485 U.S. 624, 629-30 (1988). This court notes that the state appellate

23 court’s inquired whether petitioner reasonably believed he was in danger of suffering “great

24 bodily injury” as compared to the jury instruction which inquired whether petitioner was at risk of

25 “bodily injury.” (Compare ECF No. 10-8 at 230 to ECF No. 10-3 at 133.) Petitioner claims that

26 “this cannot mean that federal courts must pretend that the law in California is whatever a panel

27 of the Court of Appeal says it is on a given day, despite clear contrary state high court authority.”

28 (ECF No. 11 at 30.) It does not; however, federal habeas relief is not available for such alleged

15

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1 errors. See Feiock, 485 U.S. at 629-30 (“Although petitioner marshals a number of sources in

2 support of the contention that the state appellate court misapplied state law on these two points,

3 the California Supreme Court denied review of this case, and we are not free in this situation to

4 overturn the state court’s conclusion of state law.”) Lastly, petitioner does not cite any clearly

5 established federal law from the Supreme Court prohibiting a state from applying the same self-

6 defense claim in homicide and non-homicide cases. The state court’s decision, therefore, was not

7 contrary to, or an unreasonable application of, clearly established Supreme Court authority. This

8 court recommends denying habeas relief on this claim as well.

9 C. Due Process and Ineffective Assistance of Counsel Related to Jury Instruction

10 Petitioner claims a violation of due process and the right to effective assistance of counsel.

11 Specifically, he asserts the following:

12 Violations of due process and the right to the effective assistance of

counsel by giving notice, through the official pattern jury

13 instructions, that I would be tried under one standard, and then have

the conviction reviewed under one more favorable to the prosecution,

14 depriving me of an opportunity to defend under that standard at trial.

15 (ECF No. 1 at 7.)

16 Petitioner raised this argument in his petition for rehearing before the California Court of

17 Appeal. (ECF No. 10-8 at Ex. 7.) The state appellate court denied the petition for rehearing. (Id.

18 at Ex. 8.) Petitioner again raised this claim before the California Supreme Court. (Id. at Ex. 9 at

19 302.) The California Supreme Court summarily denied review. (Id. at Ex. 10.) Because this

20 claim was sufficiently exhausted, this court proceeds to the merits of the claim. Petitioner’s claim

21 three seems at least in part to repeat the arguments raised in claims one and two with regards to

22 the jury instructional error claim. This court will not rehash those arguments again here.

23 Petitioner’s ineffective assistance of counsel claim faces a high hurdle. To state an

24 ineffective assistance of counsel claim, a defendant must show that (1) his counsel’s performance

25 was deficient, falling below an objective standard of reasonableness, and (2) his counsel’s

26 deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88

27 (1984). For the deficiency prong, “a court must indulge a strong presumption that counsel’s

28 conduct falls within the wide range of reasonable professional assistance; that is, the defendant

16

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1 must overcome the presumption that, under the circumstances, the challenged action ‘might be

2 considered sound trial strategy.’” Id. at 689. For the prejudice prong, the defendant “must show

3 that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

4 proceeding would have been different. A reasonable probability is a probability sufficient to

5 undermine confidence in the outcome.” Id. at 694. “The standards created by Strickland and

6 § 2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’

7 so.” Richter, 562 U.S. at 105 (internal citations omitted); see also Landrigan, 550 U.S. at 473.

8 When § 2254(d) applies, the “question is whether there is any reasonable argument that counsel

9 satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105.

10 Petitioner does not surpass this high bar. Although the state appellate court and California

11 Supreme Court summarily denied his petitions, there are several reasonable arguments that trial

12 counsel satisfied the Strickland standard. First, trial counsel did not act deficiently. Petitioner

13 repeatedly acknowledged that the jury was correctly instructed and that his counsel defended him

14 based on those instructions. (ECF No. 10-8 at Ex. 9 at 300; ECF No. 11 at 24.) It seems obvious

15 that trial counsel cannot be deficient for following correct jury instructions. Furthermore,

16 petitioner’s ineffective assistance of counsel claim presumes that the state appellate court applied

17 the incorrect self-defense elements. But that is unclear. Petitioner admits that state courts are

18 inconsistent in how they review self-defense claims. (ECF No. 10-8 at Ex. 9 at 300 (“This court

19 should resolve the inconsistency between how juries are instructed and the test some reviewing

20 courts apply regarding whether, in a non-homicide case, only a threat of great bodily injury or

21 death can justify the use of potentially deadly force in self-defense.”); id. at 301 (“Where

22 potentially deadly force was used by the defendant, there appears to be inconsistency among the

23 Courts of Appeal in the standard they apply to reviewing the sufficiency of the evidence.

24 (Petitioner has not sought opinions applying the correct standard, but assumes that they likely

25 exist in significant numbers.).”) Lastly, petitioner fails to present any meritorious argument that

26 his counsel’s performance prejudiced his case. He offers no evidence other than his unsworn

27 statement that “the attorney’s recommendations concerning possible plea bargains would likely

28 [be] different.” (ECF No. 11 at 32.) Mere conclusory allegations, like petitioner’s here, “which

17

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1 are not supported by a statement of specific facts do not warrant habeas relief.” James v. Borg,

2 24 F.3d 20, 26 (9th Cir. 1994). This court concludes that the state court’s decision was not

3 contrary to, or an unreasonable application of, clearly established Supreme Court authority and

4 recommends denying habeas relief on claim three.

5 D. Ineffective Assistance of Counsel in Closing Argument

6 Petitioner claims that his counsel “failed to focus the jury’s attention on the critical

7 evidence exculpating me and substituted a patently invalid legal theory,” depriving him of

8 effective assistance of counsel. (ECF No. 1 at 7.)

9 In the last reasoned state court opinion, the California Court of Appeal considered this

10 claim and rejected it.

11 B. Ineffective Assistance of Counsel in Closing Argument

12 On appeal and in a related habeas corpus petition, defendant argues

ineffective assistance of counsel due to his counsel’s failure to

13 emphasize Matthew’s alleged concession that “it took every blow

[defendant] struck to get [Matthew] to back off.”

14

“Establishing a claim of ineffective assistance of counsel requires the

15 defendant to demonstrate (1) counsel’s performance was deficient in

that it fell below an objective standard of reasonableness under

16 prevailing professional norms, and (2) counsel’s deficient

representation prejudiced the defendant, i.e., there is a ‘reasonable

17 probability’ that, but for counsel’s failings, defendant would have

obtained a more favorable result.” (People v. Dennis (1998) 17

18 Cal.4th 468, 540.) “The right to effective assistance extends to

closing arguments. [Citations.] Nonetheless, counsel has wide

19 latitude in deciding how best to represent a client, and deference to

counsel’s tactical decisions in his closing presentation is particularly

20 important because of the broad range of legitimate defense strategy

at that stage. Closing arguments should ‘sharpen and clarify the

21 issues for resolution by the trier of fact,’ [citation], but which issues

to sharpen and how best to clarify them are questions with many

22 reasonable answers. Indeed, it might sometimes make sense to forgo

closing argument altogether. [Citation.] Judicial review of a defense

23 attorney’s summation is therefore highly deferential....” (Yarborough

v. Gentry (2003) 540 U.S. 1, 5–6.) “Reversals for ineffective

24 assistance of counsel during closing argument rarely occur; when

they do, it is due to an argument against the client which concedes

25 guilt, withdraws a crucial defense, or relies on an illegal defense.”

(People v. Moore (1988) 201 Cal.App.3d 51, 57.) “The mere

26 circumstance that a different, or better, argument could have been

made is not a sufficient basis for finding deficient performance by

27 defense counsel.” (People v. Ledesma (2006) 39 Cal.4th 641, 748.)

28 In this case, counsel may well have believed raising the argument

18

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1 defendant now asserts on appeal would not have been the best trial

strategy. First, counsel’s decision to focus on the increasing threat

2 posed by Matthew to justify defendant’s response was a reasonable

approach. Defendant acknowledges as much. He repeatedly notes his

3 counsel’s representation was “excellent” and “admirable” apart from

this one allegedly missing argument. As to the omitted argument, and

4 contrary to defendant’s assertions, Matthew never testified he

stopped only when defendant struck the final blow. Rather, Matthew

5 testified that “everything stopped” upon seeing blood everywhere,

and he left after realizing the extent of his injuries. Had trial counsel

6 pursued this alternative argument now proposed by defendant, he

would have been forced to address conflicting evidence regarding

7 how and why the fight stopped. For example, Nicole testified the

fight ended when she pulled Matthew away from defendant. Counsel

8 then would have needed to argue why Nicole would have been

unable to do the same had Matthew suffered lesser injuries. And

9 counsel would have needed to address and counter the prosecution’s

evidence that Matthew may have been more likely to continue

10 fighting due to the severity of his injuries. Contrary to defendant’s

position, this is neither a clean nor simple argument.

11

Second, trial counsel spent a considerable portion of time

12 impeaching Matthew during his testimony. After painting Matthew

as a liar, it was reasonable for counsel to avoid asking the jury to then

13 rely on Matthew’s testimony.

14 Finally, we note counsel did, in fact, argue the point defendant now

raises. And defendant concedes his trial counsel “did touch on this.”

15 Trial counsel argued as part of his summation: “When this incident

is going on, and when the fight is taken into the kitchen and

16 [Matthew] is punching [defendant] and [defendant] is defending

himself against these attacks, and the attacks wind up on the back

17 sliding glass door, [Matthew] tells the police officers that even as

he’s getting cut, even as [defendant] is defending himself against

18 these attacks, he caught him with a punch and he rocked him. [¶]

[Defendant] was backing up the entire time. The fight goes on. He’s

19 defending himself; and even as [defendant] is defending himself,

[Matthew] continues to go forward. He hits him with a punch so hard

20 that it rocked him. [¶] ... [¶] ... So is the danger over? Is the danger

over when an individual that has done all this, knife, bat, umbrella[,]

21 sucker punch, and the fight is taken to the kitchen, [defendant] uses

the knife to defend himself, and this individual is still coming

22 forward at you, and he’s still coming forward at you throwing

punches, punches hard enough to rock him, causing him to slide back

23 to the sliding glass door.”

24 Defendant’s position that the summation should have further

emphasized this point or been structured differently, does not support

25 a finding that counsel’s performance was deficient. As the United

States Supreme Court noted in Yarborough: “When counsel focuses

26 on some issues to the exclusion of others, there is a strong

presumption that he did so for tactical reasons rather than through

27 sheer neglect. [Citation.] That presumption has particular force

where a petitioner bases his ineffective-assistance claim solely on the

28 trial record, creating a situation in which a court ‘may have no way

19

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1 of knowing whether a seemingly unusual or misguided action by

counsel had a sound strategic motive.’ [Citation.] Moreover, even if

2 an omission is inadvertent, relief is not automatic. The Sixth

Amendment guarantees reasonable competence, not perfect

3 advocacy judged with the benefit of hindsight.” (Yarborough v.

Gentry, supra, 540 U.S. at p. 8.)

4

Defendant also contends trial counsel raised a “patently invalid legal

5 theory” when he first commented if someone uses deadly force

against you by shooting a gun, you can use deadly force to defend

6 yourself, and then analogized that to if someone throws a knife, you

can pick up the knife and defend yourself with it. Defendant asserts

7 this argument reduced counsel’s credibility because he was relying

on a misstatement of the law. Defendant cites no authority to support

8 his proposition. (People v. Stanley (1995) 10 Cal.4th 764, 793 [when

a defendant fails to support an argument with citations to authority,

9 we may treat it as waived].) Even considering the merits, counsel’s

closing, as a whole, was within the correct legal framework. As part

10 of his summation, trial counsel read the jury the instruction on self-

defense and proceeded to discuss each element. When he reached the

11 third element—whether defendant used no more force than was

necessary—he described how Matthew barged into the house, pulled

12 and opened a knife, and threw it at defendant. Trial counsel argued

an individual has the right to defend himself with a deadly weapon if

13 that deadly weapon was used against him, and analogized that

proposition to the current situation where “[a]n individual throws a

14 knife at [defendant]. He picks up the knife, and he defends himself

with the same knife.” Counsel then presented the following

15 argument: “And I submit to you, [defendant] acted reasonably by

picking up that knife, because [Matthew] did not deescalate. He

16 grabbed a bat. He grabbed an umbrella, and he sucker punched him,

furthe[r] escalating the incident. [¶] It goes along the line of what I

17 just said.... [Y]ou don’t have to wait for you to be injured by this

weapon, because if you wait, you might be dead.” In the context of

18 counsel’s larger argument, we do not believe defendant has

established this analogy reduced counsel’s credibility or otherwise

19 undermined his summation.

20 Accordingly, we reject defendant’s ineffective assistance claim

based on his counsel’s summation because he fails to overcome the

21 presumption that counsel’s argument reflected a reasonable tactical

choice. (See People v. Freeman (1994) 8 Cal.4th 450, 498 [decision

22 as to how to argue to the jury is inherently tactical].)

23 (People v. Lew, slip op. at 7-11.)

24 1. Exculpatory Evidence

25 Petitioner argues that his counsel should have stressed in his closing argument that “the

26 prosecution’s evidence showed it took every blow petitioner struck to get [Matthew] to back off,

27 that petitioner left him alone when he did, and that therefore the force he used was reasonably

28 necessary to defend against the danger posed by [Matthew’s] attacks.” (ECF No. 11 at 33.)

20

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1 As stated above, to state an ineffective assistance of counsel claim, a defendant must show

2 that (1) his counsel’s performance was deficient, falling below an objective standard of

3 reasonableness, and (2) his counsel’s deficient performance prejudiced the defense. Strickland,

4 466 U.S. at 687-88. “The right to effective assistance [of counsel] extends to closing arguments.”

5 Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam). However, counsel is afforded “wide

6 latitude” to determine how to represent his client and “deference to counsel’s tactical decisions in

7 his closing presentation is particularly important because of the broad range of legitimate defense

8 strategy at that stage.” Id. at 5-6; see also Smith v. Spisak, 558 U.S. 139, 150-54 (2010);

9 Gallegos v. Ryan, 820 F.3d 1013, 1033 (9th Cir. 2016). There are many reasonable ways to

10 sharpen and clarify issues at summation of trial, and in some cases, “it might sometimes make

11 sense to forgo closing argument altogether.” Gentry, 540 U.S. at 6.

12 This court finds that the state court’s rejection of petitioner’s ineffective assistance of

13 counsel claim was not objectively unreasonable. The state court correctly applied Strickland and

14 assessed whether counsel’s performance was deficient. (ECF No. 10-8 at 231-35); see also

15 Strickland, 466 U.S. at 697 (courts do not need to address both components of the inquiry to

16 dispose of an ineffective assistance of counsel claim). As the state court noted, in closing

17 argument, defense counsel focused on Matthew’s increasing threat to argue that petitioner acted

18 in self-defense. (ECF No. 10-8 at 232; ECF No. 10-6 at 300 (“He was scared, because [Matthew]

19 came in acting like a mad man.”); id. at 301 (arguing that Matthew barged into the house, threw a

20 knife at petitioner, pushed Nicole aside, and grabbed and/or threw an umbrella and bat before

21 punching petitioner); ECF No. 10-7 at 4-7 (stating that Matthew escalated the conflict by waving

22 around a knife and striking Nicole with a bat).) Defense counsel noted that “ultimately, this case

23 rests on whether or not you all find that there is lawful self-defense.” (ECF No. 10-7 at 9.)

24 Throughout his closing argument, defense counsel encouraged the jury to use certain facts to

25 determine whether petitioner’s conduct was reasonable. (See, e.g., Id. at 9 (“If you find that

26 Matthew [] threatened [petitioner] in the past, you can use that information in deciding whether or

27 not you believe [petitioner’s] conduct was reasonable.”); id. at 12 (“[W]hen you find somebody

28 has been threatened by a person in the past, that person is justified in acting more quickly or

21

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1 taking greater self-defense measures against that person.”).) This court agrees with the state court

2 that in light of the record, defense counsel could have reasonably believed that focusing on the

3 victim’s escalating threat was sound tactical strategy to establishing self-defense.

4 Petitioner contends that a “reasonably competent counsel would have argued the necessity

5 of petitioner’s using the force he employed.” (ECF No. 11 at 35; see also id. at 39.) The state

6 court correctly acknowledged that defense counsel made this argument. (ECF No. 10-8 at 233

7 (“Finally, we note counsel did, in fact, argue the point defendant now raises. And defendant

8 concedes his trial counsel ‘did touch on this.’”).) Specifically, in closing, defense counsel argued

9 So is the danger over? Is the danger over when an individual that has

done all this, knife, bat, umbrella sucker punch, and the fight is taken

10 to the kitchen, [petitioner] uses the knife to defend himself, and this

individual is still coming forward at you, and he’s still coming

11 forward at you throwing punches hard enough to rock him, causing

him to slide back to the sliding glass door.

12

13 (ECF No. 10-7 at 17.) In hindsight, petitioner may have wanted his counsel to emphasize this

14 point rather than just touch upon it. But “judicious selection of arguments for summation is a

15 core exercise of defense counsel’s discretion.” Gentry, 540 U.S. at 8. Furthermore, “[j]udicial

16 review of a defense attorney’s summation is therefore highly deferential and doubly deferential

17 when it is conducted through the lens of federal habeas.” Id. at 6. Petitioner has failed to meet

18 this high burden to succeed on this claim. “The Sixth Amendment guarantees reasonable

19 competence, not perfect advocacy judged with the benefit of hindsight.” Id. at 8. This court

20 concludes that the state court’s rejection of petitioner’s ineffective assistance of counsel argument

21 was not objectively unreasonable. 3

22 ////

23

24 3

Petitioner also appears to be arguing that the state court unreasonably interpreted the facts when

it stated “Matthew never testified he stopped only when defendant struck the final blow. Rather,

25 Matthew testified that ‘everything stopped’ upon seeing blood everywhere, and he left after

26 realizing the extent of his injuries.” (ECF No. 11 at 35-36.) This court reviewed the trial record

and finds that the state court accurately characterized Matthew’s testimony. When asked how the

27 whole altercation ended, Matthew testified that he “backed up” noticing the blood and cut on his

neck, and “started to walk outside.” (ECF No. 10-5 at 124; see also id. at 126 (testifying that

28 petitioner “just stopped in the kitchen”).)

22

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1 2. Invalid Legal Theory

2 Petitioner also contends that his counsel was ineffective because counsel incorrectly

3 argued that petitioner had the right to defend himself “just as one who has been shot at has the

4 right (supposedly) to fire at the assailant even after knowing that the assailant is no longer

5 armed.” (ECF No. 11 at 33.)

6 This argument fails for several reasons. As the state court noted, petitioner did not cite

7 any authority to support his argument that counsel’s argument was a misstatement of state law.

8 (ECF No. 10-8 at 234). But even assuming that it was a misstatement of state law, it was not

9 objectively unreasonable for the state court to conclude that petitioner was not prejudiced by this

10 error. Petitioner admitted that the trial court correctly instructed the jury, and defense counsel

11 defended him on those instructions. (ECF No. 10-8 at Ex. 9 at 300-01; ECF No. 11 at 24; see

12 also ECF No. 10-6 at 259-63.) Both the prosecutor and defense attorney discussed the jury

13 instructions during closing arguments. (ECF No. 10-6 at 275-78; ECF No. 10-7 at 9.) It is

14 axiomatic that a jury is presumed to follow its instructions. Weeks v. Angelone, 528 U.S. 225,

15 234 (2000). Petitioner has not provided any reason for this court to reject that presumption here.

16 Lastly, defense counsel referenced his theory three times in closing argument. (ECF No. 10-6 at

17 300; ECF No. 10-7 at 4, 15.) These brief references must be viewed in the context of the defense

18 counsel’s entire closing argument, which focused on his key theme that petitioner “acted

19 reasonably by picking up that knife, because [Matthew] did not deescalate.” (ECF No. 10-7 at

20 16.) And that theme is consistent with the jury instruction that petitioner is “only entitled to use

21 that amount of force that a reasonable person would believe is necessary in the same situation.”

22 (ECF No. 19-6 at 263.) Given the trial record, this court concludes that the state court’s decision

23 was not contrary to, or an unreasonable application of, clearly established Supreme Court

24 authority and recommends denying habeas relief on this claim.

25 E. Jury Instruction on Circumstantial Evidence (CALCRIM No. 224)

26 Petitioner argues in claim five that the circumstantial evidence jury instruction was

27 inconsistent with state law and improperly shifted the burden of proof to defendant. (ECF No. 1

28 at 7-8; ECF No. 11 at 48-56.) Respondent claims that this argument is procedurally barred and

23

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1 fails on the merits. (ECF No. 10-1 at 20-24.)

2 In the last reasoned state court opinion, the California Court of Appeal considered this

3 claim and rejected it.

4 Defendant contends the trial court erred by failing to instruct the jury

“it could not convict unless the circumstantial evidence was

5 inconsistent with any rational conclusion other than guilt.” The

People assert defendant forfeited this argument by failing to raise it

6 below. We agree the argument is forfeited.

7 As a general rule, “ ‘[a] party may not argue on appeal that an

instruction correct in law was too general or incomplete, and thus

8 needed clarification, without first requesting such clarification at

trial.’ ” (People v. Livingston (2012) 53 Cal.4th 1145, 1165

9 (Livingston ).) Defendant does not dispute he failed to object to the

jury instruction, but contends he was not required to request

10 clarification because the instruction actually given was an incorrect

statement of law. (See People v. Franco (2009) 180 Cal.App.4th 713,

11 719 [“The rule of forfeiture does not apply, however, if the

instruction was an incorrect statement of the law [citation], or if the

12 instructional error affected the defendant’s substantial rights.”].)

13 Defendant relies on People v. Bender (1945) 27 Cal.2d 164, 175

(Bender ) and CALJIC No. 2.01 in support of his argument. These

14 authorities provide “ ‘that, to justify a conviction, the facts or

circumstances must not only be entirely consistent with the theory of

15 guilt but must be inconsistent with any other rational conclusion.’ ”

(Bender, at p. 175, italics added; CALJIC No. 2.01 [“a finding of

16 guilt as to any crime may not be based on circumstantial evidence

unless the proved circumstances are not only (1) consistent with the

17 theory that the defendant is guilty of the crime, but (2) cannot be

reconciled with any other rational conclusion”].) The Supreme Court

18 in Bender further noted, “ ‘Neither the statement in an instruction

that the guilt of the defendant must be established beyond a

19 reasonable doubt, nor the statement that as between two opposing

reasonable inferences the one which is consistent with innocence

20 must be preferred to the one tending to show guilt, satisfies the right

of the defendant to have the jury instructed that where circumstantial

21 evidence is relied upon by the People it must be irreconcilable with

the theory of innocence in order to furnish a sound basis for

22 conviction.’ ” (Bender, at pp. 175–176.) Defendant maintains the

trial court’s omission of the italicized language from its jury

23 instruction conflicts with authority from our high court. (See id. at

pp. 175, 177.)

24

Defendant is correct CALCRIM No. 224 does not contain the

25 language stating circumstantial evidence must be “inconsistent with

any other rational conclusion.” But no authority requires use of this

26 precise language. Our Supreme Court “has long held that when the

prosecution’s case rests substantially on circumstantial evidence,

27 trial courts must give ‘an instruction embodying the principle that to

justify a conviction on circumstantial evidence the facts and

28 circumstances must not only be entirely consistent with the theory of

24

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1 guilt but must be inconsistent with any other rational conclusion.’ ”

(Livingston, supra, 53 Cal.4th at p. 1167, italics added.)

2

Here, the trial court instructed the jury, “[B]efore you may rely on

3 circumstantial evidence to find the defendant guilty, you must be

convinced that the only reasonable conclusion supported by the

4 circumstantial evidence is that the defendant is guilty.” Thus, the trial

court fulfilled its obligation to instruct the jury that, to justify a

5 conviction on circumstantial evidence, the facts and circumstances

must be inconsistent with any other rational conclusion. (Livingston,

6 supra, 53 Cal.4th at p. 1167; Bender, supra, 27 Cal.2d at pp. 175,

177.)

7

No reasonable jury would interpret CALCRIM No. 224 in such a

8 way as to allow conviction if it could draw multiple reasonable

inferences from the circumstantial evidence, one of which points to

9 innocence. “Words of equal import may be substituted if the

principle is substantially but clearly and fairly set forth.” (People v.

10 Navarro (1946) 74 Cal.App.2d 544, 550.) None of the authority cited

by defendant suggests otherwise. (See, e.g., People v. Koenig (1946)

11 29 Cal.2d 87, 93 [error in not giving the requested instruction or “a

proper statement of the principle”]; People v. Kinowaki (1940) 39

12 Cal.App.2d 376, 380 [trial court erred in refusing to give requested

instruction or “its equivalent”].) The instruction given adequately

13 conveys and embodies the principle articulated in Bender. Contrary

to defendant’s contention, CALCRIM No. 224 does not merely

14 convey circumstantial evidence must be consistent with guilt, but

that it must be “the only reasonable conclusion” to be drawn from

15 the circumstantial evidence. (CALCRIM No. 224.) Accordingly,

defendant forfeited his claim of error.5

16

[N.5 Because we find defendant forfeited his claim of error, we need

17 not address defendant’s argument that the error was significant.]

18 (ECF No. 10-8 at 238-40.)

19 Although procedural issues are often addressed before the merits, they need not be. A

20 federal court may deny a habeas petition on the merits notwithstanding the petitioner’s failure to

21 exhaust remedies. 28 U.S.C. § 2254(b)(2). As to procedural bar, the Supreme Court in Lambrix

22 v. Singletary, 520 U.S. 518 (1997) skipped over the procedural bar argument and proceeded to the

23 merits. Id. at 525 (“Despite our puzzlement at the Court of Appeals’ failure to resolve this case

24 on the basis of procedural bar, we hesitate to resolve it on that basis ourselves.”); see also

25 Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (stating that courts may “reach the

26 merits of habeas petitions if they are, on their face and without regard to any facts that could be

27 developed below, clearly not meritorious despite an asserted procedural bar.”). “Procedural bar

28

25

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1 issues are not infrequently more complex than the merits issues” and “it may well make sense in

2 some instances to proceed to the merits if the result will be the same.” Franklin, 290 F.3d at

3 1232; see, e.g., Dean v. Schriro, 371 F. App’x 751 (9th Cir. Mar. 17, 2010). Because this claim

4 can be resolved on the merits, this court declines to decide whether a procedural bar precludes

5 petitioner from obtaining habeas relief.

6 On the merits, federal habeas relief is only available if “‘the ailing instruction by itself so

7 infected the entire trial that the resulting conviction violates due process.’” Estelle, 502 U.S. at

8 72 (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973)); see also Gilmore v. Taylor, 508 U.S.

9 333, 342 (1993) (In non-capital cases, “we have never said that the possibility of a jury

10 misapplying state law gives rise to federal constitutional error. To the contrary, we have held that

11 instructions that contain errors of state law may not form the basis for federal habeas relief.”).

12 The instruction cannot merely be “undesirable, erroneous, or even ‘universally condemned.’”

13 Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). It must violate a constitutional right. Id.

14 “[T]he defendant must show both that the instruction was ambiguous and that there was ‘a

15 reasonable likelihood’ that the jury applied the instruction in a way that relieved the State of its

16 burden of proving every element of the crime beyond a reasonable doubt.” Waddington v.

17 Sarausad, 555 U.S. 179, 190-91 (2009). The jury instruction “‘may not be judged in artificial

18 isolation,’ but must be considered in the context of instructions as a whole and the trial record.”

19 Estelle, 502 U.S. at 72 (quoting Cupp, 414 U.S. at 147). The Supreme Court has cautioned that

20 there are few infractions that violate fundamental fairness. Id. at 72-73; see, e.g., Sarausad, 555

21 U.S. at 191-92; Middleton v. McNeil, 541 U.S. 433, 437 (2004) (per curiam) (“Nonetheless, not

22 every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due

23 process violation”); Jones v. United States, 527 U.S. 373, 390-92 (1999); Gilmore, 508 U.S. at

24 344.

25 Petitioner argues that the jury instruction was ambiguous because it did not expressly state

26 that, to convict, circumstantial evidence must be inconsistent with any rational conclusion other

27 than guilt. (ECF No. 11 at 49-50.) Although the state court noted that the instruction did not

28 contain this exact language, it rejected his claim. (ECF No. 10-8 at 239-40.)

26

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1 The state court’s conclusion that the instruction was unambiguous was not objectively

2 unreasonable. The trial court instructed the jury on CALCRIM No. 224 as follows:

3 Before you may rely on circumstantial evidence to conclude that a

fact necessary to find the defendant guilty has been proved, you must

4 be convinced that the People have proved each fact essential to that

conclusion beyond a reasonable doubt.

5

Also, before you may rely on circumstantial evidence to find the

6 defendant guilty, you must be convinced that the only reasonable

conclusion supported by the circumstantial evidence is that the

7 defendant is guilty. If you can draw two or more reasonable

conclusions from the circumstantial evidence, and one of those

8 reasonable conclusions points to innocence and another to guilt, you

must accept the one that points to innocence. However, when

9 considering circumstantial evidence, you must accept only

reasonable conclusions and reject any that are unreasonable.

10

11 (ECF No. 10-3 at 110; ECF No. 10-6 at 251-52.) The state court stated that the California

12 Supreme Court “has long held that when the prosecution’s case rests substantially on

13 circumstantial evidence, trial courts must give ‘an instruction embodying the principle that to

14 justify a conviction on circumstantial evidence the facts and circumstances must not only be

15 entirely consistent with the theory of guilt but must be inconsistent with any other rational

16 conclusion.’” (ECF No. 10-8 at 239 (citing People v. Livingston, 53 Cal. 4th 1145 (2012)

17 (emphasis added)).) The trial court satisfied this obligation. It instructed the jury that “before

18 you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that

19 the only reasonable conclusion supported by the circumstantial evidence is that the defendant is

20 guilty.” (ECF No. 10-3 at 110.) Petitioner acknowledged in his traverse that the instruction could

21 be “effectively expressed in slightly different formulations” and included examples that are

22 similar to the instruction at issue. (ECF No. 11 at 51 & n.28 (“‘You may convict only if the facts

23 or circumstances are inconsistent with any reasonable hypothesis that negates guilt.’”))

24 Even assuming that the jury instruction was ambiguous, the state court’s determination

25 that there was no reasonable likelihood that the jury applied the instruction in an unconstitutional

26 manner was not objectively unreasonable. The instruction expressly stated that the jury must be

27 convinced that the “only reasonable conclusion” is guilt. (ECF No. 10-3 at 110.) The state court

28

27

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1 reasonably concluded that no reasonable jury could understand this as permitting conviction “if it

2 could draw multiple inferences from the circumstantial evidence, one of which points to

3 innocence.” (ECF No. 10-8 at 239-40.)

4 Petitioner insists that the jury instruction does not adequately reflect California law and

5 improperly shifts the burden of proof. (ECF No. 11 at 49-55.) But the state court disagreed with

6 petitioner, finding that the instruction was correct under California law. (ECF No. 10-8 at 240.)

7 It is axiomatic that a state court’s interpretation of state law is binding on a federal habeas court.

8 Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Estelle, 502 U.S. at 67-68. Because this court

9 cannot second-guess the state court’s interpretation of its own laws, this argument fails. As does

10 petitioner’s argument that the appellate court “tacitly permitted a Judicial Council task force on

11 jury instructions, which has not law-making power under the state constitution, to modify the law

12 set forth by the California Supreme Court.” (ECF No. 11 at 52.)

13 Lastly, petitioner cites Hicks v. Oklahoma, 447 U.S. 343 (1980), and In re Winship, 397

14 U.S. 358 (1970) to support his claim. (ECF No. 1 at 10.) Both are distinguishable. In Hicks, the

15 Supreme Court held that petitioner was denied due process of law because the state court refused

16 to fix his 40-year sentence, which a state court had declared unconstitutional. Hicks, 447 U.S. at

17 344-45 (“In this case Oklahoma denied the petitioner the jury sentence to which he was entitled

18 under state law, simply on the frail conjecture that a jury might have imposed a sentence equally

19 as harsh….”) Petitioner has not cited, nor is this court aware of, any authority declaring the

20 relevant jury instruction unconstitutional. See People v. Ibarra, 156 Cal. App. 4th 1174, 1187

21 (2007) (“CALCRIM No. 224 correctly states the law.”) In Winship, the Supreme Court held that

22 the “constitutional safeguard of proof beyond a reasonable doubt” is “required during the

23 adjudicatory stage of a [juvenile] delinquency proceeding.” In re Winship, 397 U.S. at 368.

24 Here, petitioner does not challenge the state court’s reasonable doubt jury instruction. (ECF No.

25 10-3 at 107.) This court concludes that the state court’s decision was not contrary to, or an

26 unreasonable application of, clearly established Supreme Court authority and recommends

27 denying habeas relief on this claim.

28 ////

28

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1 F. Cumulative Error

2 In claim six, petitioner argues that the cumulative effect of the several trial errors not

3 discussed above constitute a denial of due process. (ECF No. 1 at 7-9; ECF No. 11 at 56-61.)

4 This court addresses each claim individually before assessing the cumulative effect of the alleged

5 errors.

6 1. Ineffective Assistance of Counsel

7 First, petitioner argues that “[a]s noted in Claim Four, counsel abandoned a strong

8 argument in favor of a weak one.” (ECF No. 1 at 8; see also ECF No. 11 at 61.) As analyzed in

9 depth above, this court concluded that the state court’s rejection of petitioner’s ineffective

10 assistance of counsel claim was not objectively unreasonable.

11 2. Jury Instruction on Circumstantial Evidence (CALCRIM No. 224)

12 Second, petitioner claims that “[a]s noted in Claim Five [c], the circumstantial-evidence

13 instruction implanted the suggestion that the evidence had to ‘point to’ a conclusion that I acted in

14 reasonable self-defense, rather than simply fail to rule that out as a reasonable possibility.” (ECF

15 No. 1 at 8-9; see also ECF No. 11 at 48-56.) As analyzed in depth above, this court concluded

16 that the state court’s rejection of petitioner’s ineffective assistance of counsel claim was not

17 objectively unreasonable.

18 3. Jury Instruction on Mutual Combat (CALCRIM No. 3471)

19 Third, petitioner argues that the court erred in instructing the jury on mutual combat

20 because it was inapplicable to his case. (ECF No. 1 at 9; ECF No. 11 at 58.) The relevant

21 instruction reads as follows:

22 A person who engages in mutual combat or who starts a fight has a

right to self-defense only if:

23

1. He actually and in good faith tried to stop fighting;

24

2. He indicated, by word or by conduct, to his opponent, in

25 a way that a reasonable person would understand, that he

wanted to stop fighting and that he had stopped fighting;

26

AND

27

3. He gave his opponent a chance to stop fighting.

28

29

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1 If the defendant meets these requirements, he then had a right to self-

defense if the opponent continued to fight.

2

However, if the defendant used only non-deadly force, and the

3 opponent responded with such sudden and deadly force that the

defendant could not withdraw from the fight, then the defendant had

4 the right to defend himself with deadly force and was not required to

try to stop fighting, communicate the desire to stop to the opponent,

5 or give the opponent a chance to stop fighting.

6 A fight is mutual combat when it began or continued by mutual

consent or agreement. That agreement may be expressly stated or

7 implied and must occur before the claim to self-defense arose.

8 (ECF No. 10-3 at 135.)

9 In the last reasoned state court opinion, the California Court of Appeal considered this

10 claim and rejected it.

11 Defendant contends the court erred in instructing the jury on mutual

combat pursuant to CALCRIM No. 3471, because there was no

12 evidence he either provoked the fight or engaged in mutual combat.

We agree, but conclude the error was harmless.

13

It is well settled that “instructions not supported by substantial

14 evidence should not be given. [Citation.] ‘It is error to give an

instruction which, while correctly stating a principle of law, has no

15 application to the facts of the case.’ ” (People v. Ross (2007) 155

Cal.App.4th 1033, 1050 (Ross ).) “Evidence is ‘[s]ubstantial’ for this

16 purpose if it is ‘sufficient to “deserve consideration by the jury,” that

is, evidence that a reasonable jury could find persuasive.’ ” (Id. at pp.

17 1049–1050.)

18 As both parties concede, the doctrine of mutual combat as provided

in CALCRIM No. 3471 requires “ ‘not merely the combat, but the

19 preexisting intention to engage in it ... be mutual.’ ” (People v.

Nguyen (2015) 61 Cal.4th 1015, 1044, first italics added; accord,

20 Ross, supra, 155 Cal.App.4th at p. 1045 [the term “ ‘mutual combat’

means not merely a reciprocal exchange of blows but one pursuant

21 to mutual intention, consent, or agreement preceding the initiation

of hostilities”].) There “must be evidence from which the jury could

22 reasonably find that both combatants actually consented or intended

to fight before the claimed occasion for self-defense arose.” (Ross, at

23 p. 1047.)

24 Here, no one testified defendant and Matthew shared a preexisting

intent to fight at Nicole’s house. Matthew testified he intended to hug

25 defendant when he approached defendant. Only after defendant

allegedly pushed (and stabbed) Matthew did Matthew begin

26 punching defendant. While other witnesses contradicted Matthew’s

depiction of events, they also did not recount any preexisting

27 agreement to fight. For example, Nicole testified Matthew

approached defendant requesting a hug but then sucker punched

28 defendant. Under her version, Matthew unilaterally attacked

30

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1 defendant. Despite this contradictory evidence, under either scenario

there was no mutual, preexisting agreement to fight.6

2

[N.6 Nor does the other evidence cited by the parties suggest a

3 preexisting intention to engage in mutual combat. For example, the

exchange of threatening texts was not directly related to the March 8

4 incident. Likewise, Matthew’s testimony that defendant told Nicole

to let Matthew into the house must be viewed in the context of

5 Matthew’s other testimony—i.e., that he no longer desired to fight

when approaching defendant. We also note the prosecution conceded

6 defendant was not the aggressor.]

7 Although the instruction on mutual combat should not have been

given here, the error is harmless. (People v. Clem (1980) 104

8 Cal.App.3d 337, 344–345 [reversal required only if there is a

reasonable probability that a result more favorable to the defendant

9 would have been reached had the instruction not been given].)

“[G]iving an irrelevant or inapplicable instruction is generally ‘ “only

10 a technical error which does not constitute ground for reversal.” ‘ ”

(People v. Cross (2008) 45 Cal.4th 58, 67.) When a court errs by

11 giving a correct instruction that has no application to the facts of the

case, the error does not amount to a constitutional violation and is

12 reviewed under the standard articulated in People v. Watson (1956)

46 Cal.2d 818, 836 (Watson ). (People v. Guiton (1993) 4 Cal.4th

13 1116, 1129–1130.) “Under Watson, reversal is required if it is

reasonably probable the result would have been more favorable to

14 the defendant had the error not occurred.” (Id. at p. 1130.)

15 The record reflects no such probability. The jury was instructed,

pursuant to CALCRIM No. 200, that some of the instructions may

16 not apply, depending on its findings about the facts of the case, and

that the inclusion of a particular instruction did not mean the court

17 was “suggesting anything about the facts.” The jury was also

instructed to first determine what the facts were, then follow the

18 instructions that applied to the facts as it found them. Although there

was insufficient evidence of mutual combat, we presume the jury,

19 following the directive of CALCRIM No. 200, disregarded the

inapplicable portions of CALCRIM No. 3471. (See People v.

20 Holloway (2004) 33 Cal.4th 96, 152–153; People v. Guiton, supra, 4

Cal.4th at p. 1131 [“The jurors’ ‘own intelligence and expertise will

21 save them from’ the error of giving them ‘the option of relying upon

a factually inadequate theory.’ ”].) We further note the prosecutor did

22 not argue the applicability of CALCRIM No. 3471 in his closing

argument and, in fact, acknowledged “Matthew ... came in hot.... [¶]

23 [and] defendant reasonably believed that the use of—the immediate

use of force was necessary to defend against that danger.” (People v.

24 Crandell (1988) 46 Cal.3d 833, 870 [no harm where “instruction did

not figure in the prosecutor’s closing argument”].) And there is no

25 evidence, such as questions from the jury, indicating the jury relied

on the mutual combat instruction in reaching its verdict. For these

26 reasons, it is not reasonably probable that defendant would have

received a more favorable verdict had the mutual combat instruction

27 not been given.

28 (ECF No. 10-8 at 240-42.)

31

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1 “As we have stated above, however, the fact that the instruction was allegedly incorrect

2 under state law is not a basis for habeas relief.” Estelle, 502 U.S. at 71-72. An irrelevant or

3 incorrect jury instruction is grounds for habeas relief only if the error “so infected the entire trial

4 that the resulting conviction violates due process.” Id. at 72 (internal citation and quotation marks

5 omitted). Courts must view the instruction in the context of all the instructions and the trial

6 record. Id. To determine whether an ambiguous jury instruction rises to a constitutional error,

7 courts ask whether “‘there is a reasonable likelihood that the jury has applied the challenged

8 instruction in a way’ that violates the Constitution.” Id. (quoting Boyde v. California, 494 U.S.

9 370, 380 (1990)). But habeas relief is not automatically warranted if there was a constitutional

10 violation. Petitioner must show that the error “had a substantial and injurious effect or influence

11 in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also

12 Ybarra v. McDaniel, 656 F.3d 984, 995 (9th Cir. 2011).

13 Here, the state appellate court found that “[a]lthough the instruction on mutual combat

14 should not have been given here, the error [was] harmless.” (ECF No. 10-8 at 241.) This court

15 finds that the state court’s decision was objectively reasonable. The mutual combat instruction

16 was not erroneous under state law; it was merely irrelevant in this case. The trial court instructed

17 the jury that certain instructions may not apply.

18 Some of these instructions may not apply, depending on your

findings about the facts of the case. Do not assume just because I

19 give a particular instruction that I am suggesting anything about the

facts. After you have decided what the facts are, follow the

20 instructions that do apply to the facts as you find them.

21 (ECF No. 10-3 at 104 (CALCRIM No. 200).) Courts have found no constitutional error when the

22 there was no reasonable likelihood that the jury could be misled by the challenged jury

23 instruction. See McNeil, 541 U.S. at 438 (“Given three correct instructions and one contrary one,

24 the state did not unreasonably apply federal law when it found that there was no reasonable

25 likelihood the jury was misled.”); Bergara v. Cate, 536 F. App’x 744 (9th Cir. 2013); see also

26 Ayers v. Belmontes, 549 U.S. 7, 19-21 (2006); Brown v. Payton, 544 U.S. 133, 146-47 (2005).

27 Petitioner has not presented any evidence to suggest that the jury could have been reasonably

28 misled by this instruction. Outside the presence of the jury, defense counsel objected to this

32

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1 instruction but also stated that “I think if there’s evidence of mutual combat, it’s thin.” (ECF No.

2 10-6 at 89.) The trial court noted that even with the instruction, defense counsel just has to argue

3 that there was no mutual combat and his client acted in self-defense. (Id.) In response, defense

4 counsel plainly stated “[t]hat’s been our position the entire time.” (Id.)

5 Even assuming that the mutual combat instruction resulted in a constitutional error,

6 petitioner suffered no actual prejudice. The Ninth Circuit has found that surplus jury instructions,

7 which are irrelevant to the jury verdict, could not have had a substantial and injurious effect on

8 the verdict. See, e.g., James v. Woodford, 360 F. App’x 939, 940-41 (9th Cir. 2010); Sinay v.

9 Garcia, 243 F.3d 549 (9th Cir. 2000); Stanton v. Benzler, 146 F.3d 726, 729 (9th Cir. 1998).

10 Additionally, courts have concluded that there was no prejudice when the error was a single

11 instruction within the body of correct jury instructions. See, e.g., Brown v. Tilton, 472 F. App’x

12 561, 562 (9th Cir. 2012). Petitioner’s feeling that the instruction “muddied the deliberative

13 waters” is insufficient to meet this exacting standard. (ECF No. 11 at 58.) There is no evidence

14 to suggest that petitioner would have received a more favorable outcome without the challenged

15 instruction. As the state court noted, there is no indication in the record that the jury relied on the

16 mutual combat instruction to reach its guilty verdict. This court concludes that the state court’s

17 decision was not contrary to, or an unreasonable application of, clearly established Supreme

18 Court authority and recommends denying habeas relief on this claim.

19 4. Prosecutorial Misconduct

20 Next, petitioner argues that the prosecutor “suggested repeatedly in argument that I

21 committed attempted murder, which he had not charged, implying that conviction of the charged

22 offense of assault with a deadly weapon would be a lenient outcome.” (ECF No. 1 at 9; see also

23 ECF No. 11 at 58-60; ECF No. 10-8 at 50-52.)

24 In the last reasoned state court opinion, the California Court of Appeal considered this

25 claim and rejected it.

26 Defendant first contends the prosecution engaged in misconduct by

suggesting defendant was getting off lightly with an assault

27 conviction rather than one for attempted murder. Defendant argues

the prosecution engaged in a deceptive method of persuasion by

28 suggesting defendant deserved harsher treatment than he would

33

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1 receive via conviction. We disagree.

2 The standards governing review of misconduct claims are settled.

Under state law, reversal is required “when a prosecutor uses

3 ‘deceptive or reprehensible methods to persuade either the court or

the jury’ [citation] and ‘ “it is reasonably probable that a result more

4 favorable to the defendant would have been reached without the

misconduct.” ‘ ” (People v. Davis (2009) 46 Cal.4th 539, 612.)

5 Although it is not necessary to show the prosecutor acted in bad faith,

a defendant asserting misconduct must show, “ ‘ “[i]n the context of

6 the whole argument and the instructions” [citation], there was “a

reasonable likelihood the jury understood or applied the complained-

7 of comments in an improper or erroneous manner.” [Citation.] If the

challenged comments, viewed in context, ‘would have been taken by

8 a juror to state or imply nothing harmful, [then] they obviously

cannot be deemed objectionable.’ ” (People v. Cortez (2016) 63

9 Cal.4th 101, 130.)

10 Defendant concedes he did not object at trial to the alleged instances

of misconduct he now raises on appeal. Nor did he request the jury

11 be admonished. “A defendant generally ‘ “ ‘may not complain on

appeal of prosecutorial misconduct unless in a timely fashion—and

12 on the same ground—[he or she] made an assignment of misconduct

and requested that the jury be admonished to disregard the

13 impropriety. [Citation.]’ ” [Citation.]’ [Citation.] A defendant’s

failure to object and to request an admonition is excused only when

14 ‘an objection would have been futile or an admonition ineffective.’ ”

(People v. Fuiava (2012) 53 Cal.4th 622, 679 (Fuiava ).)

15

Defendant asserts we should excuse his failure to object because

16 doing so would have been futile and any admonishment ineffective.

He cites People v. Hill, supra, 17 Cal.4th 800, 820 in support of his

17 position. But this case is not on a par with the circumstances of Hill.

“[D]efense counsel here was not faced with a ‘ “constant barrage of

18 [the prosecutor’s] unethical conduct” ‘ and counsel’s objections did

not provoke ‘ “the trial court’s wrath.” ‘ Unlike in Hill, the trial court

19 in this case did not suggest before the jury that counsel was ‘ “an

obstructionist,” ‘ and was merely ‘ “delaying the trial with ‘meritless’

20 objections.” ‘ ” (Fuiava, supra, 53 Cal.4th at p. 680; accord, People

v. Friend (2009) 47 Cal.4th 1, 29 [defense counsel’s failure to object

21 to alleged misconduct is excused “when the ‘misconduct [is]

pervasive, defense counsel [has] repeatedly but vainly objected to try

22 to curb the misconduct, and the courtroom atmosphere was so

poisonous that further objections would have been futile’ ”]; People

23 v. Dykes (2009) 46 Cal.4th 731, 775 [exception to forfeiture rule does

not apply when the case “did not involve counsel experiencing—as

24 did counsel in Hill—a ‘constant barrage’ of misstatements,

demeaning sarcasm, and falsehoods, or ongoing hostility on the part

25 of the trial court, to appropriate, well-founded objections”].) As was

the case in Fuiava, “[h]ere, the record does not establish that properly

26 framed objections would have been in vain or provoked any ‘wrath’

on the part of the trial court; rather, all indications are that the court

27 was reasonably responsive to defense objections throughout the

trial,” and was courteous and succinct in ruling on the objections of

28 both parties. (Fuiava, at p. 680.) “There is no reason to suspect the

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1 trial court was predisposed to overrule objections to the prosecutor’s

deeds (i.e., that an objection would have been futile), or that

2 corrective actions, such as appropriately strong admonitions, would

not have been able to cure any prejudicial effect on the jury had

3 defendant requested them.” (Ibid.) Accordingly, we do not excuse

the failure to preserve prosecutorial misconduct claims below. Those

4 claims were forfeited.

5 Nor does defendant’s claim have merit. Nowhere in the record does

the prosecution argue defendant deserved harsher treatment than he

6 would receive if convicted of the charged offense. Instead, the

statements at issue related to the extent of Matthew’s injuries and

7 defendant’s “intent to kill.”4 Such comments are appropriate. “

‘[T]he prosecutor has a wide-ranging right to discuss the case in

8 closing argument. He has the right to fully state his views as to what

the evidence shows and to urge whatever conclusions he deems

9 proper. Opposing counsel may not complain on appeal if the

reasoning is faulty or the conclusions are illogical because these are

10 matters for the jury to determine.’ ” (People v. Thomas, supra, 2

Cal.4th at p. 526.) In Thomas, for example, the defendant alleged the

11 prosecutor engaged in misconduct by inviting the jury to speculate

that a murder was sexually motivated. (Ibid.) The Supreme Court

12 framed the issue as whether the inference of possible motive “found

some basis in the evidence, or was instead based on mere suspicion,

13 imagination, speculation, surmise, conjecture, or guesswork.” (Id. at

p. 527.) The court ultimately rejected the argument, concluding the

14 “comments here had a sufficient evidentiary basis.” (Ibid.)

15 [N. 4 While defendant argues these statements implied he committed

attempted murder, these comments were made in the context of

16 whether he exercised a reasonable degree of force when acting in

self-defense. (People v. Dennis, supra, 17 Cal.4th 468, 522 [“we

17 must view the statements in the context of the argument as a

whole”].) Accordingly, we view these statements as addressing

18 whether defendant responded with reasonable force.]

19 Here, the statements regarding the extent of Matthew’s injuries are

directly drawn from the evidence presented by Dr. Zopfi. He testified

20 Matthew required 40 minutes of resuscitation and was placed on a

ventilator. He described the various injuries on Matthew, including a

21 14-centimeter laceration on his neck, a 12-centimeter laceration

along the jaw, and a 16-centimeter laceration on his forehead. Zopfi

22 noted one laceration was down to the skull and transected the

temporal artery, and one laceration transected the external jugular

23 vein. He estimated Matthew lost approximately 30 to 35 percent of

his total blood volume and would have died within 30 to 40 minutes

24 from his injury without control of the hemorrhage. The prosecutor’s

comments regarding defendant’s intent to kill are also supported by

25 testimony. Matthew and Nicole’s daughter testified defendant said,

“Nigga, I’m going to come find you and kill you,” when Matthew

26 was leaving Nicole’s residence. The prosecutor’s comments were

thus based in the evidence and did not amount to deceptive or

27 reprehensible methods of persuasion.

28 (ECF No. 10-8 at 235-38.) Because this claim can be resolved on the merits, this court need not

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1 address the procedural challenges.

2 On the merits, petitioner argues that “state court’s treatment was an unreasonable

3 determination of the facts.” (ECF No. 11 at 60.) This court disagrees. In his appellate brief,

4 petitioner indicates which comments he considers inappropriate. (ECF No. 10-8 at 50-51.) After

5 reviewing the trial record, this court finds that the state court reasonably concluded that the

6 prosecutor’s comments were appropriate. His remarks fall into two categories. First, some of the

7 prosecutor’s comments addressed whether petitioner exercised a reasonable degree of force when

8 acting in self-defense. (ECF No. 10-6 at 271 (“Seven stab wounds, a slit throat; [Hamilton]

9 stumbled out of 1773 Enterprise Drive, clinging to death, clinging to life, clinging to anything to

10 survive; and luckily he made it, but he was close. He was very close, and he was close because of

11 the defendant and what the defendant did to him.”); id. at 272 (“He wanted to kill Matthew

12 Hamilton, straight up. He used deadly force; and he almost did. Remember, he was thirty

13 minutes away from dying. That was the evidence you heard.”); id. at 281 (describing the

14 reasonable force requirement); id. at 297 (“This is directed. This is an attack. This is purposeful.

15 You don’t just get a slit across your neck by chance, by accident.”); id. at 299 (“The defendant

16 does not have a scratch on him two days later. The victim almost died. He’s in critical condition.

17 He lost 35 percent of his total blood. Is that necessary? Did he need to do that?”); ECF No. 10-7

18 at 20-21 (“[Defendant] knows that there’s no weapon there, [defendant] can’t stab [Hamilton]

19 seven times and slit his throat. And again, these are targeted injuries … All of the injuries are

20 concentrated in the kill zone, in the area where you’re going to die, if you get serious injuries to

21 it.”).) This is consistent with the prosecutor’s central theme that the victim’s “injuries are the key

22 to whether or not the defendant was acting in lawful self-defense.” (ECF No. 10-6 at 275; ECF

23 No. 10-7 at 22 (Arguing that “even if you give [defendant] the benefit of the doubt, you still can’t

24 use that amount of force. It’s unbelievable, to slit his throat in this situation….”)) Second, the

25 prosecutor’s remaining comments were accurate restatements of the trial testimony. For example,

26 an expert testified that Hamilton would have died in 30 or 40 minutes without emergency surgery,

27 and the prosecutor argued that Hamilton was close to dying after the altercation. (Compare ECF

28 No. 10-6 at 42 to ECF No. 10-6 at 271, 295.) As another example, two witnesses testified that

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1 petitioner was holding two knives, and prosecutor argued that petitioner had two knives because

2 he was “waiting” for Hamilton. (Compare ECF No. 10-5 at 120-21, 184, 220-21 to ECF No. 10-6

3 at 296.) This court does not recommend overturning the state court’s factual findings because

4 they were objectively reasonable in the context of the entire trial record.

5 To the extent that petitioner presents a legal challenge to the state court’s findings, he has

6 a difficult standard to meet. A prosecutor’s comments constitute misconduct if they “so infected

7 the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v.

8 Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly, 416 U.S. at 643); see also Parker v.

9 Matthews, 567 U.S. 37, 45 (2012). The “appropriate standard of review for such a claim on writ

10 of habeas corpus is ‘the narrow one of due process, and not the broad exercise of supervisory

11 power.’” Darden, 477 U.S. at 181 (quoting Donnelly, 416 U.S. at 642). For “trial type”

12 constitutional errors, including prosecutorial misconduct, habeas relief is warranted only if the

13 errors “had substantial and injurious effect or influence in determining the jury’s verdict.”

14 Brecht, 507 U.S. at 637-38 (internal quotation marks omitted). Here, petitioner has not provided

15 any evidence suggesting that the trial was unfair. The trial judge instructed the jury that

16 “[n]othing that the attorneys say is evidence. In their opening statements and closing arguments,

17 the attorneys discuss the case, but their remarks are not evidence.” (ECF No. 10-3 at 108.) In

18 closing arguments, the prosecutor did not misstate or manipulate the evidence. Nor did he

19 implicate other rights of the accused such as his right to remain silent or his right to counsel. See

20 Darden, 477 U.S. at 181-82. His claim, therefore, fails. The state court’s decision was not

21 contrary to, or an unreasonable application of, clearly established federal law, or that such a

22 finding was based on an unreasonable application of the facts.

23 5. Failure to Instruct on Prosecutorial Immunity (CALCRIM No. 226)

24 Petitioner asserts that the court improperly “excluded a state-law required [jury

25 instruction] calling the jury’s attention to the role of a grant of prosecutorial immunity to the

26 complaining witness in exchange for testimony.” (ECF No. 1 at 9; see also ECF No. 11 at 60-61;

27 ECF No. 10-8 at 60-63.)

28 In the last reasoned state court opinion, the California Court of Appeal considered this

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1 claim and rejected it.

2 Defendant next contends the trial court erred by failing to instruct the

jury that a grant of immunity is a factor to consider when evaluating

3 credibility. We disagree.

4 CALCRIM No. 226 is the pattern instruction on determining the

credibility of a witness. (People v. Anderson (2007) 152 Cal.App.4th

5 919, 934–936.) The introductory paragraphs state in part: “You alone

must judge the credibility or believability of the witnesses. In

6 deciding whether testimony is true and accurate, use your common

sense and experience.... [¶] In evaluating a witness’s testimony, you

7 may consider anything that reasonably tends to prove or disprove the

truth or accuracy of that testimony.” (CALCRIM No. 226.) The

8 pattern instruction lists numerous factors for the jury to consider as

to a witness’s credibility, including whether the witness is influenced

9 by any bias, prejudice, or a personal interest in how the case is

decided. (Ibid.) The pattern instruction also has various optional or

10 “bracketed” witness credibility factors that may be included—when

relevant—based on the evidence presented. (Ibid.; People v. Horning

11 (2004) 34 Cal.4th 871, 910 [court “may omit factors that are

inapplicable under the evidence”].) One such bracketed factor states:

12 “Was the witness promised immunity or leniency in exchange for his

or her testimony?” (CALCRIM No. 226.)

13

Here, defendant asserts the interview between Matthew and the

14 police constitutes such a promise of immunity or leniency.

Specifically, during the interview Matthew expresses concern

15 regarding whether he would be charged for his conduct. In response,

the police officers responded that it was “not our job” and “the DA

16 will look at it,” but “There’s nothing that you’ve explained to me so

far that I can see a crime in.” The police also stated, “We’re not gonna

17 charge you with anything,” and explained the “major lacerations” on

Matthew’s face and neck were “our main concern right here.”

18

Nothing in People v. Rincon-Pineda (1975) 14 Cal.3d 864, nor any

19 other case cited by defendant, requires the inclusion of the bracketed

factor on immunity in the trial court’s witness credibility instruction.

20 Nor are we aware of any such authority requiring inclusion of this

factor under similar circumstances. Moreover, CALCRIM No. 226

21 specifically states: “In evaluating a witness’s testimony you may

consider anything that reasonably tends to prove or disprove the truth

22 or accuracy of that testimony.” The jurors were thus free to draw

whatever conclusion they wished to draw from Matthew’s exchange

23 with the police.

24 Finally, even if we were to deem the omission of the bracketed

credibility factor from the given CALCRIM No. 226 instruction to

25 constitute error, we would find such an error harmless. CALCRIM

No. 226, as given, instructed the jury to “Consider the testimony of

26 each witness” and to “consider anything that reasonably tends to

prove or disprove the accuracy of that testimony.” In addition,

27 defendant did not argue at trial that Matthew’s credibility was

suspect due to any alleged agreement of immunity or lenience.

28 Accordingly, we see no reasonable probability that defendant would

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1 have obtained a more favorable outcome had the bracketed

credibility factor been included in the CALCRIM No. 226 instruction

2 given to the jury. (Watson, supra, 46 Cal.2d at p. 836.)

3 (ECF No. 10-8 at 242-44.)

4 First, petitioner claims that the state appellate court “inaccurately” recounted the facts

5 relevant to this claim. More specifically, he asserts that “not only was there an exchange with

6 police strongly suggesting that Hamilton could talk freely because he would not be prosecuted,

7 but, when Hamilton spoke with the prosecutor, the latter confirmed that no charges would be

8 filed.” (ECF No. 11 at 60 (internal citations omitted).) Under § 2254(d)(2), a state court decision

9 based on a factual determination is not to be overturned on factual grounds unless it is

10 “objectively unreasonable in light of the evidence presented in the state court proceeding.”

11 Stanley, 633 F.3d at 859 (quoting Davis, 384 F.3d at 638).

12 After reviewing the trial record, this court concludes that the state appellate court’s

13 recitation of the facts was not objectively unreasonable. Petitioner admitted that “there was no

14 testimony that there was an exchange of testimony for immunity.” (ECF No. 10-8 at 211.)

15 Without direct evidence of prosecutorial immunity, this court looks to circumstantial evidence in

16 the record. At best, the evidence shows that Hamilton expressed concern that he was in trouble

17 for his actions, and the police and district attorney explained that he was not being charged. (ECF

18 No. 10-4 at 5, 10, 14-15; ECF No. 10-5 at 152-53.) During the police interview, the police told

19 Hamilton that “[t]here’s nothing that you’ve explained to me so far that I can see a crime in” and

20 they were primarily concerned about his injuries. (ECF No. 10-4 at 14.) Just because petitioner

21 can conjure up a list of crimes he thinks Hamilton committed does not mean the police should

22 have charged Hamilton or that Hamilton was granted prosecutorial immunity for this testimony.

23 The police did not believe Hamilton committed a crime, therefore, there was no need to offer

24 prosecutorial immunity for his testimony.

25 Petitioner then argues that the jury instruction does not adequately reflect California law

26 because it excluded immunity as a factor in the witness credibility instruction. The state court

27 rejected this argument, finding that no “authority requiring inclusion of this fact under similar

28

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1 circumstances.” (ECF No. 10-8 at 243.) As stated above, a state court’s interpretation of state

2 law is binding on a federal habeas court. Richey, 546 U.S. at 76; Estelle, 502 U.S. at 67-68, 71-

3 72. This court declines petitioner’s invitation to second-guess that decision on habeas review.

4 To the extent that petitioner is contesting the state appellate court’s finding that any

5 alleged error was harmless, this argument also fails. As this court articulated earlier, an incorrect

6 jury instruction is grounds for habeas relief only if the error “so infected the entire trial that the

7 resulting conviction violates due process.” Estelle, 502 U.S. at 72 (internal citation and quotation

8 marks omitted). Courts must view the instruction in the context of the entire record and assess

9 whether there was a reasonable likelihood that the jury misinterpreted the instruction in manner

10 that would violate the Constitution. Id. If there was a constitutional violation, petitioner must

11 show that the error “had a substantial and injurious effect or influence in determining the jury’s

12 verdict.” Brecht, 507 U.S. at 623; see also Ybarra, 656 F.3d at 995.

13 Here, the alleged error did not have a substantial or injurious effect on the jury’s verdict

14 for two reasons. First, the trial court instructed the jury that it “alone must judge the credibility or

15 believability of the witnesses.” (ECF No. 10-3 at 111.) The witness credibility instruction also

16 stated “[y]ou may believe all, part, or none of any witness’s testimony. Consider the testimony of

17 each witness and decide how much of it you believe. In evaluating a witness’s testimony, you

18 may consider anything that reasonably tends to prove or disprove the truth or accuracy of that

19 testimony.” (Id.) Second, both the prosecutor and defense counsel called Hamilton’s credibility

20 into question during closing arguments. (ECF No. 10-6 at 272 (prosecutor stating that “he’s not

21 perfect…I know there are things that he didn’t tell the truth about, and you know it, too”); id. at

22 273-74; id. at 302 (defense counsel claiming that Hamilton lied during his testimony); ECF No.

23 10-7 at 4-5.) At the end of his closing argument, defense counsel claimed it was unjust that

24 Hamilton was not facing criminal charges. (ECF No. 10-7 at 18 (“The district attorney has

25 promised Mr. Hamilton that despite throwing a knife, despite picking up a bat and causing this

26 injury, despite sucker punching somebody and entering a house that you have absolutely no

27 business in, they’ve told him, ‘Hey, I think it’s unlikely you’re ever going to be charged with

28 anything? Where is the justice?”).) The jury, therefore, had an opportunity to consider this

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1 evidence in reaching its verdict. The state court’s decision was not contrary to, or an

2 unreasonable application of, clearly established federal law, or that such a finding was based on

3 an unreasonable application of the facts. Accordingly, this court recommends denying habeas

4 relief on this claim as well.

5 6. Cumulative Error

6 Lastly, petitioner collectively argues that these combined errors violated his right to due

7 process. (ECF No. 1 at 8-9; ECF No. 11 at 56-58; see also ECF No. 10-8 at 47-50, 179-86, 215-

8 20.)

9 In the last reasoned state court opinion, the California Court of Appeal considered this

10 claim and rejected it.

11 Defendant raises two arguments regarding his due process right to a

fair trial. First, defendant contends that the cumulative effect of the

12 purported errors undermined the fundamental fairness of the trial.

However, as we have “ ‘either rejected on the merits defendant’s

13 claims of error or have found any assumed errors to be

nonprejudicial,’ ” we reach the same conclusion with respect to the

14 cumulative effect of the purported errors. (People v. Cole (2004) 33

Cal.4th 1158, 1235–1236, quoting People v. Sapp (2003) 31 Cal.4th

15 240, 316.)

16 Second, defendant argues reversal is required because his trial was

fundamentally unfair, even if such unfairness was not the result of

17 any error. In support of this argument, defendant relies on People v.

Chambers (1964) 231 Cal.App.2d 23 (Chambers ). Chambers is

18 distinguishable. In Chambers, the owner of a convalescent home was

charged with one count of assault on a patient in a convalescent

19 home. He was jointly tried with an employee who had been charged

with three separate assaults on patients, none of which were the same

20 assault the defendant was charged with. (Id. at pp. 24–25.) Defense

counsel had stipulated to a joint trial and did not object to the

21 “voluminous evidence of unrelated acts of brutality by [the

employee], admissible only because she was on trial for offenses

22 unrelated to that charged against [the defendant].” (Id. at p. 27.) The

jury was not admonished about the limited admissibility of the

23 evidence. (Id. at pp. 27–28.) Further, there was irrelevant evidence

that suggested the defendant and his employee shared a bed. (Id. at

24 p. 28.) As a result, the appellate court concluded the defendant was

probably convicted based on his employment and romantic

25 relationships with his employee, rather than by evidence of his

personal guilt. (Id. at p. 28.) The appellate court stated, even though

26 no motion for severance had ever been made: “The record impresses

us with the belief that [the defendant] was probably fastened with

27 vicarious responsibility for the long-continued brutality of [the

employee], in the absence of any charge of concerted or

28 conspiratorial action.” (Id. at p. 29.)

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1 Chambers thus involved a different issue, that is, review of a decision

to consolidate or to sever. Normally, review of a trial court’s decision

2 to consolidate or sever trials is based on the evidence available to the

trial court at the time it made the ruling. (People v. Hardy (1992) 2

3 Cal.4th 86, 167.) This review standard does not evaluate what

actually occurred at trial. Chambers, and those cases following

4 Chambers, recognize in some cases consolidation may result in gross

unfairness due to a defendant being convicted based on guilt by

5 association with a codefendant. In those cases, despite the lack of

objection or error associated with consolidation, reversal is merited.

6 (Chambers, supra, 231 Cal.App.2d at pp. 28, 34; accord, People v.

Ervin (2000) 22 Cal.4th 48, 68–69.) Chambers and its progeny do

7 not create a general rule that a defendant is entitled to appellate

review of a claim that was waived below or reversal in the absence

8 of any error.7

9 [N.7 Defendant also argues People v. Romero and Self (2015) 62

Cal.4th 1, supports his position because a similar argument was

10 raised by the parties on appeal. To this end, on February 19, 2018,

defendant filed an unopposed request for judicial notice of certain

11 briefs filed in that appeal. We grant that request. (Evid. Code, § 452,

subd. (d).) However, the fact that the parties raised a similar

12 argument in Romero and Self does not suggest the Supreme Court

found it to have any merit. To the contrary, it was summarily

13 rejected. (Romero and Self, at p. 58 [“We further conclude this error

and any assumed error are not prejudicial when considered

14 cumulatively, nor have defendants otherwise demonstrated that they

were denied a fair trial.”].)]

15

Here, we are not faced with a consolidation issue or the prospect

16 defendant may have been convicted due to inflammatory evidence

and guilt by association with a codefendant. Instead we have

17 evidentiary and instructional challenges, none of which raise issues

that were unduly inflammatory. Under these circumstances, we reject

18 defendant’s claim that he was denied a fair trial.

19 (ECF No. 10-8 at 244-45.)

20 The Ninth Circuit has concluded that under clearly established United States Supreme

21 Court precedent the combined effect of multiple trial errors may give rise to a due process

22 violation if it renders a trial fundamentally unfair, even where each error considered individually

23 would not require reversal. Parle v. Runnels, 505 F.3d 922, 927 (9th. Cir. 2007) (citing Donnelly,

24 416 U.S. at 643, and Chambers v. Mississippi, 410 U.S. 284, 290 (1973)). “[T]he fundamental

25 question in determining whether the combined effect of trial errors violated a defendant’s due

26 process rights is whether the errors rendered the criminal defense ‘far less persuasive,’ and

27 thereby had a ‘substantial and injurious effect or influence’ on the jury’s verdict.” Parle, 505 F.3d

28 at 928 (internal citations omitted); see also Hein v. Sullivan, 601 F.3d 897, 916 (9th Cir. 2010)

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1 (same).

2 This court has addressed each of petitioner’s claims and has concluded that no error of

3 constitutional magnitude occurred. This court also concludes that the alleged errors, even when

4 considered together, did not render petitioner’s defense “far less persuasive,” nor did they have a

5 “substantial and injurious effect or influence on the jury’s verdict.”

6 Next petitioner asserts that, even without any trial errors, he is still entitled to reversal

7 because his trial was fundamentally unfair. (ECF No. 10-8 at 179-80, 215-20; ECF No. 11 at 57-

8 58.) In support of his argument, he cites three cases, but all of them are inapposite. In Taylor v.

9 Kentucky, 436 U.S. 478, 490 (1978), the Supreme Court held that the trial court’s refusal to give

10 a presumption of innocence jury instruction violated defendant’s right to a fair trial. Petitioner,

11 however, does not allege that such a violation occurred in this case. Second, in Alcala v.

12 Woodford, 334 F.3d 862, 865 (9th Cir. 2003), the Ninth Circuit concluded that defendant’s trial

13 suffered from multiple constitutional errors, imposing a substantial and injurious effect on the

14 jury’s verdict. This case is distinguishable because petitioner’s trial did not suffer from multiple

15 constitutional errors. Petitioner seemingly agrees that this case “is not directly on point.” (ECF

16 No. 11 at 57-58.) Lastly, in People v. Chambers, 231 Cal. App. 2d 23, 28 (1964), the state

17 appellate court determined that “defendant was probably convicted by association with [his co-

18 defendant], in trial and otherwise, rather than by evidence of his personal guilt, that an unfairness

19 so gross has occurred as to deprive him of due process of law.” Here, petitioner was not tried

20 with any other persons.

21 Finally, petitioner claims that the fact that the jury deliberated for only three hours “is

22 strong evidence that improper factors greased the skids for conviction.” (ECF No. 11 at 58.)

23 Petitioner fails to cite any authority to support his claim. Mere speculation as to why the jury

24 deliberated for the time it did is insufficient to support a constitutional violation. The length a

25 jury deliberated may have more to do with the strength of the prosecution’s case rather than any

26 alleged errors that occurred at trial.

27 Accordingly, petitioner is not entitled to relief on his claim of cumulative error. This

28 court recommends denying relief on this claim.

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1 VI. Conclusion

2 Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of

3 habeas corpus be denied.

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

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

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

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

8 “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections,

9 he shall also address whether a certificate of appealability should issue and, if so, why and as to

10 which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the

11 applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

12 § 2253(c)(3). Any response to the objections shall be filed and served within fourteen days after

13 service of the objections. The parties are advised that failure to file objections within the

14 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

15 F.2d 1153 (9th Cir. 1991).

16 Dated: February 15, 2022

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