The opinion
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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10 CLARENCE RAY ALLEN, Case No. 1:21-cv-01088-DAD-EPG-HC
11 Petitioner, FINDINGS AND RECOMMENDATION
RECOMMENDING DENIAL OF PETITION
12 v. FOR WRIT OF HABEAS CORPUS
13 D. SAMUEL,
14 Respondent.
15
16 Petitioner Clarence Ray Allen is a state prisoner proceeding pro se with a petition for writ
17 of habeas corpus pursuant to 28 U.S.C. § 2254. In the petition, Petitioner asserts instructional
18 error claims. For the reasons discussed herein, the undersigned recommends denial of the
19 petition for writ of habeas corpus.
20 I.
21 BACKGROUND
22 On August 14, 2018, Petitioner was convicted by a jury in the Fresno County Superior
23 Court of carjacking (count 1), second-degree robbery (count 2), and assault with a firearm (count
24 5). The jury found true the special allegations regarding Petitioner’s personal use of a firearm
25 during the commission of the offenses. (CT1 256–58). Petitioner was sentenced to five years for
26 the carjacking plus ten years for the firearm enhancement. Petitioner’s sentences for counts 2 and
27 5 were stayed. (CT 268). On March 24, 2021, the California Court of Appeal, Fifth Appellate
1 District affirmed the judgment. People v. Allen, No. F078600, 2021 WL 1113263 (Cal. Ct. App.
2 Mar. 24, 2021). On June 9, 2021, the California Supreme Court denied Petitioner’s petition for
3 review. (LD2 8).
4 On July 14, 2021, Petitioner filed the instant federal habeas petition raising the following
5 claims for relief: (1) the trial court erroneously instructed the jury with CALCRIM No. 376 and
6 provided the jury with an invalid “alternate theory of guilt” for the carjacking and robbery; and
7 (2) the trial court erroneously failed to instruct the jury on receiving stolen property. (ECF No.
8 1). Respondent filed an answer, and Petitioner filed a traverse. (ECF Nos. 12, 13).
9 II.
10 STATEMENT OF FACTS3
11 On March 28, 2018, friends, T.R. and P.G., were chatting inside P.G.’s parked
vehicle with the windows open just outside of a public park. T.R. testified she was
12 sitting on the passenger’s side, and P.G. was on the driver’s side. At around 4:30
p.m., a man with burgundy/reddish colored dreads, wearing a red bandana around
13 his neck and all red clothing, approached the passenger side of the vehicle. T.R.
had never seen the man before, but identified him as appellant from a photo
14 lineup shown to her by law enforcement the following day and also identified
appellant during trial. Appellant leaned into the vehicle and asked if they had any
15 change. The encounter lasted fewer than five minutes, and appellant left. T.R.’s
purse was in the vehicle, which contained her ID and other personal items, and
16 her phone was on her lap. The items were visible from where appellant was
standing.
17
After appellant walked away from the vehicle, T.R. observed appellant walk up to
18 another man, who she later identified as Jerry Whitehead from a photo lineup
shown to her by law enforcement, and who was wearing a spandex cap, a black
19 shirt, and black shorts.
20 Whitehead approached the vehicle, asked P.G. if he was from the area, and said
he would be back in 15 minutes. He then walked off with appellant. T.R. and P.G.
21 began talking about what had just happened, and before this conversation ended,
Whitehead approached the passenger’s side of the vehicle and pointed a rifle
22 directly at T.R.’s face. T.R. observed appellant wearing the red bandana and a red
shirt on the driver’s side of the vehicle pointing a silver handgun at P.G.
23
P.G. had his hand on the ignition as if he were going to start the vehicle, and
24 appellant told him not to move. P.G. and T.R. were told to exit the vehicle; they
complied and went to the sidewalk. T.R. left her purse and phone in the vehicle,
25 and P.G.’s belongings were in the vehicle as well. Appellant got in the driver’s
seat, Whitehead got into the passenger seat, and they drove off.
26
27 2 “LD” refers to the documents lodged by Respondent on September 8, 2021. (ECF No. 11).
3 The Court relies on the California Court of Appeal’s March 24, 2021 opinion for this summary of the facts of the
1 On cross-examination, T.R. was presented with footage from law enforcement’s
body camera taken within an hour of the incident of her explaining what had
2 happened to the investigating officer. In the footage, T.R. tells the officer a man in
a red shirt and reddish-brown dyed dreads came up to the vehicle; she saw him
3 leave to talk to another individual, a man in a black shirt with long dreads. The
man in black then approached and said they would be back in 15 minutes. T.R.
4 told the officer that the guy with the long dreads came back with another
individual about 15 minutes later. T.R. said the guy with the red dreads and red
5 clothing “didn’t come back” and that the man with the handgun had dark brown
or black dreads and was wearing a mask. After viewing the video, T.R. testified
6 the man with the handgun did not have a mask on and had dreads with burgundy,
reddish-brown tips. T.R. said that when she mentioned the dark brown or black
7 dreads, she was referring to Whitehead, not the man with the handgun. She did
not recall telling an officer the man in red never came back.
8
The day following the incident, a sheriff’s deputy was dispatched to respond to an
9 area where P.G.’s vehicle was sighted. Appellant had been observed driving the
vehicle and was present at the scene. The deputy performed a search of appellant
10 and found P.G.’s driver’s license in his front pocket. He then turned it over to
Fresno Police Department personnel.
11
Fresno Police Department Officer Kham Xiong, lead investigator of the case,
12 testified he reviewed a nearby homeowner’s security footage, which showed an
area near the scene of the crimes. Xiong identified two subjects at 4:34 p.m.—one
13 wearing blue jean shorts and a black sweater with white stripes with long dreads
and another wearing black pants and a red shirt with short collar-length dreads—
14 walking away from where the vehicle was parked but looking back in that
direction. The man with the shorter dreads had “short dreads just like [appellant]”
15 and the dreads had a “slight hue of a different color” with “a reddish or maybe
like an orange tint.” At 4:47 p.m., the subjects appear on the footage again
16 walking toward the vehicle; they were both wearing dark clothing. The subject
Xiong believed was appellant was wearing a red bandana around his neck. It
17 appeared to Xiong appellant moved the red bandana to cover the lower part of his
face. Xiong did not see an individual dressed in all red in any of the footage he
18 reviewed.
19 When T.R. was shown the security camera footage during her testimony and it
was pointed out to her that the individual she identified as appellant was wearing
20 black when he came back, rather than red as she testified, she stated she was not
paying attention to what he was wearing when he came back. She was focused on
21 his red bandana and red dreads and recognized his voice and face.
22 Xiong testified when the vehicle was recovered, it was searched and a red
bandana was found in the sunglass storage area of the vehicle.
23
Xiong interviewed appellant at police headquarters on March 29, 2018. The
24 interview was recorded and played for the jury. In the interview, appellant denied
involvement in the crime and said he was not present at the park when the crimes
25 took place. Appellant stated on the morning of March 28, he asked his friend,
Steve William, to borrow his vehicle. Appellant had asked William if the vehicle
26 was stolen, and William responded it was not.
27 Allen, 2021 WL 1113263, at *1–2.
///
1 III.
2 STANDARD OF REVIEW
3 Relief by way of a petition for writ of habeas corpus extends to a person in custody
4 pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws
5 or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor,
6 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed
7 by the United States Constitution. The challenged convictions arise out of the Fresno County
8 Superior Court, which is located within the Eastern District of California. 28 U.S.C. § 2254(a);
9 28 U.S.C. § 2241(d).
10 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act
11 of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its
12 enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th
13 Cir. 1997) (en banc). The instant petition was filed after the enactment of AEDPA and is
14 therefore governed by its provisions.
15 Under AEDPA, relitigation of any claim adjudicated on the merits in state court is barred
16 unless a petitioner can show that the state court’s adjudication of his claim:
17 (1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
18 determined by the Supreme Court of the United States; or
19 (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
20 State court proceeding.
21 28 U.S.C. § 2254(d); Davis v. Ayala, 576 U.S. 257, 268–69 (2015); Harrington v. Richter, 562
22 U.S. 86, 97–98 (2011); Williams, 529 U.S. at 413. Thus, if a petitioner’s claim has been
23 “adjudicated on the merits” in state court, “AEDPA’s highly deferential standards” apply. Ayala,
24 576 U.S. at 269. However, if the state court did not reach the merits of the claim, the claim is
25 reviewed de novo. Cone v. Bell, 556 U.S. 449, 472 (2009).
26 In ascertaining what is “clearly established Federal law,” this Court must look to the
27 “holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the
1 decision must “‘squarely address[] the issue in th[e] case’ or establish a legal principle that
2 ‘clearly extend[s]’ to a new context to the extent required by the Supreme Court in . . . recent
3 decisions”; otherwise, there is no clearly established Federal law for purposes of review under
4 AEDPA and the Court must defer to the state court’s decision. Moses v. Payne, 555 F.3d 742,
5 754 (9th Cir. 2008) (alterations in original) (quoting Wright v. Van Patten, 552 U.S. 120, 125,
6 123 (2008)).
7 If the Court determines there is clearly established Federal law governing the issue, the
8 Court then must consider whether the state court’s decision was “contrary to, or involved an
9 unreasonable application of, [the] clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A
10 state court decision is “contrary to” clearly established Supreme Court precedent if it “arrives at
11 a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state
12 court decides a case differently than [the Supreme Court] has on a set of materially
13 indistinguishable facts.” Williams, 529 U.S. at 413. A state court decision involves “an
14 unreasonable application of[] clearly established Federal law” if “there is no possibility
15 fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme
16 Court’s] precedents.” Richter, 562 U.S. at 102. That is, a petitioner “must show that the state
17 court’s ruling on the claim being presented in federal court was so lacking in justification that
18 there was an error well understood and comprehended in existing law beyond any possibility for
19 fairminded disagreement.” Id. at 103.
20 If the Court determines that the state court decision was “contrary to, or involved an
21 unreasonable application of, clearly established Federal law,” and the error is not structural,
22 habeas relief is nonetheless unavailable unless it is established that the error “had substantial and
23 injurious effect or influence” on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
24 (internal quotation mark omitted) (quoting Kotteakos v. United States, 328 U.S. 750, 776
25 (1946)).
26 AEDPA requires considerable deference to the state courts. Generally, federal courts
27 “look through” unexplained decisions and review “the last related state-court decision that does
1 adopted the same reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). This presumption
2 may be rebutted “by showing that the unexplained affirmance relied or most likely did rely on
3 different grounds than the lower state court’s decision, such as alternative grounds for affirmance
4 that were briefed or argued to the state supreme court or obvious in the record it reviewed.” Id.
5 “When a federal claim has been presented to a state court[,] the state court has denied
6 relief,” and there is no reasoned lower-court opinion to look through to, “it may be presumed that
7 the state court adjudicated the claim on the merits in the absence of any indication or state-law
8 procedural principles to the contrary.” Richter, 562 U.S. at 99. Where the state court reaches a
9 decision on the merits and there is no reasoned lower-court opinion, a federal court
10 independently reviews the record to determine whether habeas corpus relief is available under
11 § 2254(d). Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013). “Independent review of the
12 record is not de novo review of the constitutional issue, but rather, the only method by which we
13 can determine whether a silent state court decision is objectively unreasonable.” Himes v.
14 Thompson, 336 F.3d 848, 853 (9th Cir. 2003). The federal court must review the state court
15 record and “must determine what arguments or theories . . . could have supported, the state
16 court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that
17 those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme]
18 Court.” Richter, 562 U.S. at 102.
19 IV.
20 DISCUSSION
21 A. CALCRIM No. 376 Instruction
22 In his first claim for relief, Petitioner asserts that the trial court erroneously instructed the
23 jury with CALCRIM No. 376 and provided the jury with an invalid “alternate theory of guilt” for
24 the carjacking and robbery based on two essential facts instead of each statutory element of the
25 offenses. (ECF No. 1 at 5).4 Respondent argues that the state court’s rejection of this claim was
26 reasonable. (ECF No. 12 at 5–8).
27
1 This claim was raised on direct appeal to the California Court of Appeal, Fifth Appellate
2 District, which denied the claim in a reasoned decision. The claim also was raised in Petitioner’s
3 petition for review in the California Supreme Court, which summarily denied the petition. As
4 federal courts review the last reasoned state court opinion, the Court will “look through” the
5 summary denial and examine the decision of the California Court of Appeal. See Wilson, 138 S.
6 Ct. at 1192.
7 In denying the instructional error claim regarding CALCRIM No. 376, the California
8 Court of Appeal stated:
9 The jury was instructed with CALCRIM No. 376, as follows:
10 “If you conclude that the defendant knew he possessed property and you
conclude that the property had in fact been recently stolen, you may not
11 convict the defendant of Carjacking, charged in Count One or Robbery,
charged in Count Two based on those facts alone. However, if you also
12 find that supporting evidence tends to prove his guilt, then you may
conclude that the evidence is sufficient to prove he committed Carjacking
13 or Robbery.
14 “The supporting evidence need only be slight and need not be enough by
itself to prove guilt. You may consider how, where, and when the
15 defendant possessed the property, along with any other relevant
circumstances tending to prove his guilt of.
16
“Remember that you may not convict the defendant of any crime unless
17 you are convinced that each fact essential to the conclusion that the
defendant is guilty of that crime has been proved beyond a reasonable
18 doubt.”
19 The jury was also given standard instructions on the elements of carjacking
(CALCRIM No. 1650) and robbery (CALCRIM No. 1600).
20
Appellant contends CALCRIM No. 376 created a “legally erroneous” “alternate
21 theory of guilt” for both carjacking and robbery. He argues the instruction
allowed the jury to find appellant guilty of carjacking and robbery based upon
22 finding only what he contends are two “elements”: (1) that appellant knowingly
possessed stolen property; and (2) that there existed other “supporting evidence”
23 that tended to connect appellant to the crimes. Appellant reasons the phrase in the
last sentence of CALCRIM No. 376—“each fact essential to the conclusion that
24 the defendant is guilty of that crime has been proved beyond a reasonable
doubt”—is reasonably interpreted as referring to the two “elements” appellant
25 contends are described in CALCRIM No. 376, not the elements provided in the
robbery and carjacking instructions. Therefore, as appellant claims, the instruction
26 creates a “stand-alone theory of guilty—complete with required elements and a
burden of proof.” According to appellant, this allowed the jury to convict
27 appellant of carjacking and robbery without finding each element of each offense
as instructed in CALCRIM Nos. 1650 and 1600 true beyond a reasonable doubt in
1 We need not address the merits of appellant’s contention because we conclude
any error is clearly harmless beyond a reasonable doubt. (Chapman v. California
2 (1967) 386 U.S. 18, 24; People v. Aledamat (2019) 8 Cal.5th 1, 11–13.)
3 Appellant contends the alleged error contributed to the jury’s verdict primarily
based on his assertion that T.R.’s testimony “did not likely provide proof beyond
4 a reasonable doubt that appellant committed the offenses,” but “did provide slight
‘supporting evidence’ beyond a reasonable doubt that tended to prove appellant’s
5 guilt.” To support this contention, he points out that T.R.’s testimony was
inconsistent and “significantly impeached” and argues a “reasonable juror would
6 not likely find T.R.’s testimony proved beyond a reasonable doubt that appellant
committed the robbery and carjacking.” Appellant posits for these reasons, “the
7 jury was far more likely to use CALCRIM No. 376, which allowed the jury to
convict based on ‘slight’ evidence, than it was to use CALCRIM Nos. 1600 and
8 1650, which required proof of the statutory elements beyond a reasonable doubt.”
9 Appellant’s argument is belied by the jury’s verdict. The jury found unanimously,
beyond a reasonable doubt, under properly given instructions not challenged by
10 appellant, both that appellant was guilty of assault with a firearm and that the
allegations he personally used a firearm during the commissions of all charged
11 offenses were true. As the only evidence of appellant using a firearm was T.R.’s
testimony, the jury clearly found her testimony sufficient to make these findings.
12 It is therefore highly improbable the jury did not find her testimony sufficient to
support their findings on the carjacking and robbery charges beyond a reasonable
13 doubt.
14 Further, because of the way the evidence was presented at trial, if the jury found
unanimously, beyond a reasonable doubt, appellant was the individual wielding
15 the firearm at the crime, it would have been unreasonable for them not to find the
individual statutory elements of carjacking and robbery true beyond a reasonable
16 doubt. The primary issue at trial was identity; it was undisputed that P.G.’s
vehicle and T.R.’s belongings were taken from them against their will. No
17 evidence or theory was presented to the jury that appellant committed assault with
a firearm but did not commit the robbery or carjacking. Rather, the only scenario
18 presented to the jury by the prosecution was that appellant used the firearm to
effectuate the carjacking and robbery, and appellant’s defense was that he was not
19 the perpetrator of any of the crimes and was not even present at the time and place
of the crimes. In other words, if the jury found beyond a reasonable doubt
20 appellant was guilty of assault with a firearm and the firearm enhancements, as
they did here, they clearly found beyond a reasonable doubt he was guilty of the
21 carjacking and robbery because, on the facts presented, the crimes were
intertwined. If the jury had not been instructed with CALCRIM No. 376, there is
22 no reasonable doubt their verdict would be the same as it was. Any alleged error
was harmless.
23
24 Allen, 2021 WL 1113263, at *2–4.
25 Applying Chapman v. California, 386 U.S. 18 (1967), the California Court of Appeal
26 found that any error in instructing the jury with CALCRIM No. 376 was harmless. Under
27 Chapman, “the test for determining whether a constitutional error is harmless . . . is whether it
appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict
1 obtained.’” Neder v. United States, 527 U.S. 1, 15 (1999) (quoting Chapman, 386 U.S. at 24).
2 The Supreme Court has held that when a state court’s “Chapman decision is reviewed under
3 AEDPA, ‘a federal court may not award habeas relief under § 2254 unless the harmlessness
4 determination itself was unreasonable.’” Davis v. Ayala, 576 U.S. 257, 269 (2015) (quoting Fry
5 v. Pliler, 551 U.S. 112, 119 (2007)). That is, Petitioner must show that the state court’s harmless
6 error determination “was so lacking in justification that there was an error well understood and
7 comprehended in existing law beyond any possibility of fairminded disagreement.” Ayala, 576
8 U.S. at 269–70 (internal quotation marks omitted) (quoting Richter, 562 U.S. at 103).
9 The prosecutor’s sole theory of the case, as articulated in the closing argument, was that
10 Petitioner used a handgun to effectuate a carjacking and robbery, (5 RT 1246–52), describing
11 “the purpose of the handgun” as “[t]he instrumentality of a carjacking and the robbery,” (5 RT
12 1251). The principal issue at trial was identity, and Petitioner’s defense was that he was not the
13 perpetrator of the offenses and was not present when the offenses took place. (5 RT 1296–97).
14 Given that the jury found Petitioner guilty beyond a reasonable doubt of assault with a firearm
15 and the firearm enhancements under instructions not challenged by Petitioner and based solely
16 on T.R.’s testimony, and in light of the interwoven nature of the carjacking and robbery with the
17 firearms charges, the state court’s harmless error determination was not contrary to, or an
18 unreasonable application of, clearly established federal law, nor was it based on an unreasonable
19 determination of fact. The decision was not “so lacking in justification that there was an error
20 well understood and comprehended in existing law beyond any possibility for fairminded
21 disagreement.” Richter, 562 U.S. at 103. Accordingly, Petitioner is not entitled to habeas relief
22 on his first claim, and it should be denied.
23 B. Failure to Instruct on Receiving Stolen Property
24 In his second claim for relief, Petitioner asserts that the trial court erroneously refused to
25 instruct the jury on receiving stolen property. (ECF No. 1 at 7). Respondent argues that the state
26 court’s rejection of this claim was reasonable. (ECF No. 12 at 8–9).
27 This claim was raised on direct appeal to the California Court of Appeal, Fifth Appellate
1 petition for review in the California Supreme Court, which summarily denied the petition. As
2 federal courts review the last reasoned state court opinion, the Court will “look through” the
3 summary denial and examine the decision of the California Court of Appeal. See Wilson, 138 S.
4 Ct. at 1192.
5 In denying the instructional error claim regarding receiving stolen property, the
6 California Court of Appeal stated:
7 Appellant contends the trial court erred when it “refused” to instruct the jury on
the lesser related offense of receiving stolen property in violation of appellant’s
8 Sixth and Fourteenth Amendment rights to present a complete defense.5 Appellant
contends the instruction was paramount to the defense theory of his case, which
9 was that he was not present at the time of the carjacking and robbery and “was
potentially guilty only of the uncharged crime of receiving stolen property.”
10
Appellant provides no authority directly supporting his claim that his right to
11 present a defense was implicated by the court’s failure to instruct on the crime of
receiving stolen property. Rather, he acknowledges that an argument
12 substantively similar to his has been rejected by the appellate court in People v.
Valentine (2006) 143 Cal.App.4th 1383 (Valentine), which he encourages this
13 court not to follow.
14 The defendant in Valentine was charged with robbery, but argued the evidence at
trial showed he committed the uncharged crime of receiving stolen property. The
15 defendant unsuccessfully urged the trial court to instruct on the uncharged offense
in hopes that he could convince the jury he committed the uncharged offense, and
16 they would acquit him of robbery. (Valentine, supra, 143 Cal.App.4th at pp. 1385,
1387.) On appeal, the defendant maintained he was entitled to the requested
17 instruction as an explanation of his defense theory that he received stolen property
but did not steal it. (Id. at p. 1387.) While the defendant acknowledged Supreme
18 Court precedent precluded him from an instruction on the lesser related offense to
argue for conviction of the lesser related offense rather than the charged offense,
19 the defendant requested the lesser related instruction so that he could argue for
outright acquittal. (Id. at p. 1388.) The court rejected this argument reasoning it
20 would turn the precedent “on its head” and explained the commission of a lesser
related offense is not a true defense to the charged offense and, therefore, the lack
21 of an instruction did not impinge on the defendant’s right to present a defense. (Id.
at pp. 1387–1388.) Rather, “[i]t simply reflected the fact that the prosecutor chose
22 not to file on the other charge.” (Id. at p. 1388.) The court stated its decision did
23
5 At a jury instruction conference, the court addressed defense counsel stating, “there were no requests for any type
24 of lessers. Is that still your position?”
The following colloquy occurred:
25 “[DEFENSE COUNSEL]: I probably would ask for an instruction on receiving stolen property.
“THE COURT: What would it be a lesser of?
“[DEFENSE COUNSEL]: I guess not robbery, so I’ll leave it at that.
26
“THE COURT: Okay.”
The parties disagree over whether appellant withdrew his request for the instruction based on the above.
27 While it is clear the trial court interpreted defense counsel’s statement as a withdrawal of the request, which we
agree was reasonable, we address the merits of appellant’s claims because he asserts the trial court had a sua sponte
1 not preclude the defendant from arguing to the jury that his culpability was as one
who was in possession of stolen property but not as one who committed a
2 robbery. (Ibid.)
3 Appellant contends the Valentine rule is “unworkable,” stating that under
Valentine, “counsel can present a lesser related offense defense, but the jury
4 should never be instructed how to interpret that defense,” rendering “counsel’s
right to present the defense to the jury... meaningless.” Appellant has not
5 convinced us to diverge from our colleagues’ holding in Valentine. First, we note
appellant’s frequent use of the word “defense” indicates he misreads Valentine.
6 The court in Valentine expressly said, “the offense of receiving stolen property is
not a defense to robbery; rather, it is a theory of criminal liability based on a
7 different offense.” (Valentine, supra, 143 Cal.App.4th at p. 1388; cited with
approval in People v. Jennings (2010) 50 Cal.4th 616, 668.) We agree with
8 Valentine that the commission of an uncharged offense is not a true defense to the
charged crime when the commission of the lesser related offense does not
9 necessarily negate an element of the charged offense. (See Valentine, at p. 1388.)
10 Further, just because the jury was not instructed on the elements of a lesser related
offense, does not, as the court in Valentine clearly states, preclude a defendant
11 from arguing the elements of the charged offense were not proven. Here, defense
counsel did so thoroughly.
12
Appellant’s defense was he was not the perpetrator of, nor present during, the
13 commission of the charged crimes. Defense counsel hammered this concept to the
jury by: (1) arguing there was no independent evidence presented such as phone
14 calls or text messages showing any connection between appellant and Whitehead;
(2) pointing out inconsistencies in Xiong’s report and Xiong’s failure to follow up
15 with appellant’s alibi witnesses; and (3) attacking the inconsistencies in T.R.’s
testimony and description of the perpetrators. Defense counsel characterized the
16 case as one of “faulty identification.” To explain appellant’s possession of the
vehicle, defense counsel highlighted appellant’s statement that he had borrowed it
17 from another individual. Defense counsel then told the jury: “Now, if you believe
that [appellant] at that point knew or reasonably should have known that the car
18 was stolen, that’s possession of stolen property ... and that’s not charged.”
Defense counsel went on to further highlight there was no evidence of a
19 connection between appellant and Whitehead or the offense.
20 In context of defense counsel’s argument on the whole, by arguing appellant was
merely guilty of receiving stolen property, defense counsel was underlining to the
21 jury that, under the defense theory of the case, just because appellant possessed
the stolen property the day following the crimes, did not mean he was the
22 perpetrator of the crimes. The jury would reasonably understand from defense
counsel’s argument that if they accepted appellant’s version of events, the proper
23 verdict would be not guilty even though he perhaps was guilty of an uncharged
offense by being in possession of the vehicle. This concept was clear, and the jury
24 did not need to be instructed on the elements of receiving stolen property to
understand the thrust of appellant’s defense.
25
As stated, we find no reason not to follow Valentine, under which appellant’s
26 claim fails. In addition, we do not otherwise find the failure to instruct on
receiving stolen property implicated appellant’s federal Sixth and Fourteenth
27 Amendment rights to a meaningful opportunity to present a complete defense and
to adequate instructions on the defense theory of the case. There is no federal
1 instructions. (People v. Birks (1998) 19 Cal.4th 108, 124.) Further, there is no
basis to conclude the failure to instruct on receiving stolen property resulted in a
2 fundamentally unfair trial. (See People v. Rundle (2008) 43 Cal.4th 76, 148 [the
absence of lesser related instruction did not prevent the defendant from presenting
3 his version of events, or from arguing to the jury that he was not guilty of the
charged crime such that it could be concluded his trial was fundamentally
4 unfair].)
5 Allen, 2021 WL 1113263, at *4–5 (footnote in original).
6 To the extent that Petitioner asserts the state trial court violated due process by refusing
7 to instruct the jury on receiving stolen property as a lesser related offense to robbery, the Court
8 finds that Petitioner is not entitled to habeas relief. Beck v. Alabama, 447 U.S. 625 (1980), held
9 that due process is violated in a capital case “when the jury was not permitted to consider a
10 verdict of guilt of a lesser included non-capital offense, and when the evidence would have
11 supported such a verdict.” 447 U.S. at 627. The Supreme Court in Beck expressly declined to
12 determine whether due process requires giving a lesser included offense instruction in noncapital
13 cases. Id. at 638 n.14. The Ninth Circuit has declined to extend Beck to noncapital cases, Solis v.
14 Garcia, 219 F.3d 922, 929 (9th Cir. 2000) (per curiam), and has recognized that “[t]here is no
15 Supreme Court precedent establishing that a state trial court is required to instruct on lesser
16 included offenses in noncapital cases,” Bortis v. Swarthout, 672 F. App’x 754, 754 (9th Cir.),
17 cert. denied sub nom. Bortis v. Arnold, 137 S. Ct. 1605 (2017). In Hopkins v. Reeves, 524 U.S.
18 88 (1998), the Supreme Court “consider[ed] whether Beck requires state trial courts to instruct
19 juries on offenses that are not lesser included offenses of the charged crime under State law,” and
20 “conclude[d] that such instructions are not constitutionally required.” Hopkins, 524 U.S. at 90–
21 91. The habeas petitioner in Hopkins had been convicted of felony murder and asserted that the
22 trial court’s refusal to issue instructions on second-degree murder and manslaughter, which were
23 not lesser included offenses of felony murder under state law, was unconstitutional under Beck.
24 Id. at 93, 95. In rejecting the habeas petitioner’s claim, the Supreme Court stated:
25 Almost all States. . . provide instructions only on those offenses
that have been deemed to constitute lesser included offenses of the
26 charged crime. We have never suggested that the Constitution
requires anything more. The Court of Appeals in this case,
27 however, required in effect that States create lesser included
offenses to all capital crimes, by requiring that an instruction be
1 related offense”--when no lesser included offense exists. Such a
requirement is not only unprecedented, but also unworkable. Under
2 such a scheme, there would be no basis for determining the
offenses for which instructions are warranted. The Court of
3 Appeals apparently would recognize a constitutional right to an
instruction on any offense that bears a resemblance to the charged
4 crime and is supported by the evidence. Such an affirmative
obligation is unquestionably a greater limitation on a State’s
5 prerogative to structure its criminal law than is Beck’s rule that a
State may not erect a capital-specific, artificial barrier to the
6 provision of instructions on offenses that actually are lesser
included offenses under state law.
7
Hopkins, 524 U.S. at 96–98 (citations and footnote omitted). Accordingly, the state court’s
8
denial of Petitioner’s instructional error claim regarding receiving stolen property as a lesser
9
related offense was not contrary to, or an unreasonable application of, clearly established federal
10
law. See Gonzalez v. Runnels, 395 F. App’x 481, 481–82 (9th Cir. 2010) (holding that state
11
court’s denial of habeas petitioner’s claim “that his due process rights were violated when the
12
trial court declined to instruct the jury on the lesser related offense of grossly negligent discharge
13
of a firearm” was “foreclosed by Hopkins” and “not an unreasonable application of clearly
14
established federal law” because “the state was not required to provide instructions on lesser
15
related offenses”).
16
To the extent that Petitioner asserts the state court violated his right to present a complete
17
defense by refusing to instruct the jury on receiving stolen property, the Court finds that
18
Petitioner is not entitled to habeas relief. “[T]he Constitution guarantees criminal defendants ‘a
19
meaningful opportunity to present a complete defense.’” Crane v. Kentucky, 476 U.S. 683, 690
20
(1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). Although as a matter of
21
federal criminal procedure the Supreme Court has stated that “a defendant is entitled to an
22
instruction as to any recognized defense for which there exists evidence sufficient for a
23
reasonable jury to find in his favor,” Mathews v. United States, 485 U.S. 58, 63 (1988),6 the
24
Supreme Court has noted that “the cases in which we have invoked th[e] principle [of a criminal
25
26
6 Mathews concerned “whether a defendant in a federal criminal prosecution who denies commission of the crime
may nonetheless have the jury instructed, where the evidence warrants, on the affirmative defense of entrapment.”
27 485 U.S. at 59. Both the majority and dissent recognized that the issue was “not of ‘constitutional dimension.’” Id. at
66 (quoting United States v. Russell, 411 U.S. 423, 433 (1973)); accord Mathews, 485 U.S. at 60 (White, J.,
1 defendant’s right to present a complete defense] dealt with the exclusion of evidence or the
2 testimony of defense witnesses” and did not “involve[] restrictions imposed on a defendant’s
3 ability to present an affirmative defense,” Gilmore v. Taylor, 508 U.S. 333, 343–44 (1993)
4 (citations omitted). Accordingly, the state court’s denial of Petitioner’s receiving stolen property
5 instructional error claim as violating his right to present a complete defense was not contrary to,
6 or an unreasonable application of, clearly established federal law. See Carey v. Musladin, 549
7 U.S. 70, 77 (2006) (“Given the lack of holdings from this Court regarding the [issue] . . .
8 involved here, it cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established
9 Federal law.’” (first alteration added) (quoting 28 U.S.C. § 2254(d)(1)); Marquez v. Gentry, 708
10 F. App’x 924, 925 (9th Cir. 2018) (affirming denial of claim that refusal to give an insanity
11 instruction violated due process because “the extent of the right to present a ‘complete defense’
12 under federal law does not extend to ‘restrictions imposed on a defendant’s ability to present an
13 affirmative defense,’ but only the ‘exclusion of evidence’ and the ‘testimony of defense
14 witnesses’” (quoting Gilmore, 508 U.S. at 343–44)).
15 Moreover, even if the failure to give a receiving stolen property instruction did implicate
16 Petitioner’s right to present a complete defense and the trial court erred in failing to give the
17 instruction in Petitioner’s case,7 the Court finds that any error was harmless because the error did
18 not have a “substantial and injurious effect or influence in determining the jury’s verdict.”
19 Brecht, 507 U.S. at 637. The lack of a receiving stolen property instruction did not prevent
20 Petitioner from presenting his defense that he was not the perpetrator of the offenses and was not
21 even present during the commission of the crimes. Counsel argued to the jury that there was no
22 evidence connecting Petitioner with Whitehead, emphasized the inconsistencies in T.R.’s
23 testimony and her descriptions of the perpetrators, and highlighted the inconsistencies in the
24
25
7 The Court notes that there are Ninth Circuit cases applying AEDPA and holding that “[f]ailure to instruct on the
defense theory of the case is reversible error if the theory is legally sound and evidence in the case makes it
applicable.” Byrd v. Lewis, 566 F.3d 855, 860 (9th Cir. 2009) (internal quotation marks omitted) (quoting Beardslee
26
v. Woodford, 358 F.3d 560, 577 (9th Cir. 2004)). See also Bradley v. Duncan, 315 F.3d 1091, 1099 (9th Cir. 2002)
(noting that a “state court’s failure to correctly instruct the jury on the defense may deprive the defendant of his due
27 process right to present a defense . . . because the right to present a defense ‘would be empty if it did not entail the
further right to an instruction that allowed the jury to consider the defense’” (quoting Tyson v. Trigg, 50 F.3d 436,
1 detective’s report in addition to the detective’s failure to follow up with Petitioner’s alibi
2 witnesses. Defense counsel specifically stated,
3 And, ladies and gentlemen, that was something that Mr. Allen
addressed in his statement to Detective Xiong. “I went up and
4 borrowed the car.” And I said, “Hey, this isn’t stolen or anything,
is it?” The guy says no and he hops in.
5
Now, if you believe that Mr. Allen at that point knew or reasonably
6 should have known that the car was stolen, that’s possession of
stolen property. There’s no -- and that’s not charged.
7
8 (5 RT 1295–96). The jury was presented with evidence and arguments of Petitioner’s defense
9 theory and was instructed regarding the various charges the prosecutor elected to bring against
10 Petitioner. As noted by the California Court of Appeal,
11 The jury would reasonably understand from defense counsel’s
argument that if they accepted [Petitioner]’s version of events, the
12 proper verdict would be not guilty even though he perhaps was
guilty of an uncharged offense by being in possession of the
13 vehicle. This concept was clear, and the jury did not need to be
instructed on the elements of receiving stolen property to
14 understand the thrust of [Petitioner]’s defense.
15 Allen, 2021 WL 1113263, at *5.
16 Based on the foregoing, the state court’s denial of Petitioner’s instructional error claim
17 with respect to receiving stolen property was not contrary to, or an unreasonable application of,
18 clearly established federal law, nor was it based on an unreasonable determination of fact. The
19 decision was not “so lacking in justification that there was an error well understood and
20 comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562
21 U.S. at 103. Accordingly, Petitioner is not entitled to habeas relief on his second claim, and it
22 should be denied.
23 V.
24 RECOMMENDATION
25 Accordingly, the undersigned HEREBY RECOMMENDS that the petition for writ of
26 habeas corpus be DENIED.
27 This Findings and Recommendation is submitted to the assigned United States District
1 | Rules of Practice for the United States District Court, Eastern District of California. Within
2 | THIRTY (30) days after service of the Findings and Recommendation, any party may file
3 | written objections with the court and serve a copy on all parties. Such a document should be
4 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the
5 | objections shall be served and filed within fourteen (14) days after service of the objections. The
6 | assigned United States District Court Judge will then review the Magistrate Judge’s ruling
7 | pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within
8 | the specified time may waive the right to appeal the District Court’s order. Wilkerson v.
9 | Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th
10 | Cir. 1991)).
11
Db IT IS SO ORDERED.
Dated: _March 3, 2022 [see ey
14 UNITED STATES MAGISTRATE JUDGE
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