holding due process does not guarantee a defendant the right to present all relevant 8 evidence
How later courts described this case
- holding due process does not guarantee a defendant the right to present all relevant 8 evidence
- Prosecutor’s remark about defendant’s expectations 6 at trial by itself was not a denial of due process.
- no constitutional violation where 8 prosecutor’s statement “was but one moment in an extended trial and was followed by specific 9 disapproving instructions”
- exclusion of evidence does not violate Due Process Clause 14 unless “it offends some principle of justice so rooted in the traditions and conscience of our people 15 as to be ranked as fundamental”
Written by the judges who cited it.
The opinion
1 UNITED STATES DISTRICT COURT
2 NORTHERN DISTRICT OF CALIFORNIA
3
4 KEITH M. WILKINS, Case No. 19-cv-06119-YGR (PR)
5 Petitioner, ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS; AND
6 v. DENYING CERTIFICATE OF
APPEALABILITY
7 JEFF LYNCH, Acting Warden,
8 Respondent.
9 I. INTRODUCTION
10 Petitioner Keith M. Wilkins brings this pro se petition for a writ of habeas corpus pursuant
11 to 28 U.S.C. § 2254, challenging his state court conviction. Dkt. 1. Specifically, on December 22,
12 2015, a San Francisco County jury found Petitioner guilty of voluntary manslaughter, second
13 degree murder, and multiple counts of firearm-possession. The victims, Frederick Glaspie and
14 Marche Daniels, were shot and killed on July 30, 3012 in San Francisco, California. Petitioner
15 was convicted of both murders.
16 Having read and considered the papers filed in connection with this matter and being fully
17 informed, the Court hereby DENIES the petition as to all claims for the reasons set forth below.
18 II. BACKGROUND
19 A. Factual Background
20 The state appellate court handled the direct appeal filed by Petitioner in an unpublished
21 opinion and described the relevant facts as follows1:
22 At trial, the prosecution played a surveillance video which showed on
the afternoon of July 30, 2012, appellant shot Glaspie in the head.
23 Daniels witnessed the shooting and began to run away, but appellant
shot him in the head from behind. Appellant then stood over Daniels
24 and shot him twice more in the head. He returned to Glaspie and shot
him again in the head.
25
Glaspie had no weapon on him and none were found near his body.
26 Daniels also had no weapon on him and there were no weapons on
27
the ground near him.
1
Appellant’s friend, Elijah Hopkins, had been killed two days before
2 and appellant believed Daniels was involved in his murder. On July
30, 2012 some of Hopkins’s family and friends, including appellant,
3 were gathered at his home on Burr Street (the Burr Street house) in
San Francisco.
4
Janeka Fells was visiting the Burr Street house to check on her friend
5 Erica Augusta, Hopkin’s sister. She saw Daniels and Glaspie arrive
at the house and go upstairs and then she heard yelling. Everyone
6 went outside and she saw that Daniels was crying and his lip was
bleeding. She saw appellant talking with Glaspie. Daniels repeatedly
7 told Fells: “I didn’t do it.” Fells never saw Daniels or Glaspie with a
weapon or heard them threaten anyone.
8
Erica Augusta testified that when Daniels and Glaspie arrived at her
9 house she felt scared because there had been talk that Daniels killed
her brother.
10
Augusta identified appellant as the shooter in the video. Fells and
11 Augusta both testified that appellant had a reputation as a peacemaker
and a nonviolent person.
12
After the shooting, appellant fled the scene. Approximately three
13 weeks later, officers attempted to arrest appellant and he ran from the
officers after discarding a semiautomatic handgun.
14
Appellant testified at trial and admitted he shot both Daniels and
15 Glaspie. He stated that he shot them because he was “afraid for his
life and the lives of others in the house that they were going to kill
16 somebody. Or hurt somebody.” He stated that Towerside gang
members had “shot up the house” before in 2009 and he believed
17 Daniels was going to start fighting. Appellant stated he had been
threatened multiple times in the past by Glaspie. When he was 17
18 years old, Glaspie threatened him with a gun. Appellant believed
Glaspie wanted to start a gang war and was unconcerned about killing
19 innocent people.
20 Appellant testified that Glaspie was a “general” in the Towerside
gang. He acted as a mediator for the Towerside and Sunnydale gangs.
21 Appellant believed that Daniels was Glaspie’s “flunkey” who did
Glaspie’s “dirty work.” Appellant stated that Glaspie told him that if
22 you messed with him, he would kill “whoever was close to you.”
23 Appellant testified that on the day of shooting, he felt “panic” when
he saw Daniels and Glaspie arrive at the Burr Street house. He said
24 two of the people in the house had guns. He took a gun from one of
them. He said he just wanted to prevent any violence from happening.
25
When Daniels and Glaspie arrived at the front porch, appellant
26 confronted them. Daniels stated: “I didn’t do it.” Appellant testified
that he told Daniels, “Get the fuck out of here” and “you did it.”
27 Daniels entered the house. Appellant blocked Glaspie from entering
house, Glaspie pushed past appellant to go inside. Appellant walked
1 out to the sidewalk with a gun under his arm. Appellant was afraid
Daniels and Glaspie had other friends or gang members coming to
2 back them up.
3 When Glaspie and Daniels returned to the front of the house, appellant
pulled out the gun and told them to leave. Appellant stated he did not
4 want to shoot Glaspie but he needed him to leave because he did not
want a war between the gangs. Everyone was arguing and appellant
5 believed Glaspie and Daniels were lying. He described himself as
“[a]ngry, frightened, scared, hurt, nervous, paranoid, sad.”
6
At this point, appellant claims Glaspie said: “I’m going to get my
7 Tower niggas.” He started shooting because he was “scared” that
Glaspie was going to hurt someone in the house. “I’m like, fuck,
8 you’re not going to hurt me or nobody else.”
9 On cross-examination, appellant admitted that he did not think
Daniels was armed.
10
See People v. Wilkins, No. A148607, 2018 WL 4091012, *1-2 (Cal. App. 1 Dist. Aug. 28, 2018).
11
B. Procedural History
12
1. Conviction and Sentencing
13
Petitioner was charged with two counts of premeditated first degree murder (Cal. Penal
14
Code § 187(a)) for the murders of Glaspie (count one) and Daniels (count two). The information
15
alleged personal discharge of a firearm (Cal. Penal Code § 12022.53(d)) and the special
16
circumstance of multiple murders (Cal. Penal Code § 190.2(a)(3)). Additionally, Petitioner was
17
charged with one count of being a felon in possession of a firearm (Cal. Penal Code
18
§ 25400(a)(2)), and one count of being a convicted person carrying a loaded firearm (Cal. Penal
19
Code § 25850(a)).
20
A San Francisco County jury acquitted Petitioner of the first degree murder counts but
21
found him guilty of the lesser-included offenses of voluntary manslaughter for count one (Glaspie)
22
and second degree murder for count two (Daniels). The jury found true the firearm-discharge
23
allegations and found Petitioner guilty of all remaining counts. The trial court sentenced
24
Petitioner to forty years to life, plus twenty-one years. 5 Clerk Transcript (“CT”) 1134-1140.
25
2. Post-Conviction Appeals and Collateral Attack
26
Petitioner appealed the judgment and argued that his second degree murder conviction
27
should be reversed. 5 CT 1136. On August 28, 2018, the California Court of Appeal disagreed
1 and affirmed Petitioner’s judgment. Resp’t Ex. A; Wilkins, 2018 WL 4091012, *10. On
2 December 12, 2018, the California Supreme Court denied the petition for review. Resp’t Ex. B.
3 3. Federal Court Proceedings
4 On September 26, 2019, Petitioner filed the instant federal habeas petition.2 Dkt. 1. The
5 Court points out that Petitioner is only challenging his second degree murder conviction as to the
6 killing of Daniels, just as he did on direct appeal. See id. at 10, 34; see also Wilkins, 2018 WL
7 4091012, at *1. He raises three claims: (1) the trial court improperly excluded expert testimony
8 that was necessary to his defense; (2) the prosecutor committed misconduct3 during the rebuttal
9 argument by misstating the standard for heat of passion voluntary manslaughter; and
10 (3) cumulative error. Dkt. 1 at 8-37.4 On October 29, 2019, the case was reassigned from
11 Magistrate Judge Joseph C. Spero to the undersigned. Dkt. 6. On December 27, 2019, the Court
12 issued an order to show cause. Dkt. 9. On February 24, 2020, Respondent filed an answer. Dkt.
13 12, 12-1. Petitioner then filed a traverse on July 13, 2020.5 Dkt. 15. This matter is fully briefed
14 and ripe for adjudication.
15 III. LEGAL STANDARD
16 A federal court may entertain a habeas petition from a state prisoner “only on the ground
17 that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28
18 U.S.C. § 2254(a). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996,
19 a district court may not grant a petition challenging a state conviction or sentence on the basis of a
20 claim that was reviewed on the merits in state court unless the state court’s adjudication of the
21
22
2 The Court notes that Petitioner completed the Court’s federal habeas corpus form, but
instead of outlining his claims he has attached a copy of his petition for review, which was filed in
23
California Supreme Court. See Dkt. 1 at 7-37.
24
3 Petitioner describes this claim as “prosecutorial misstatement” but discusses legal
theories relating to prosecutorial misconduct. Dkt. 1 at 27-34. Thus, the Court refers to
25
Petitioner’s second claim as a prosecutorial misconduct claim.
26
4 Page number citations refer to those assigned by the Court’s electronic case management
filing system and not those assigned by the parties.
27
1 claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of,
2 clearly established Federal law, as determined by the Supreme Court of the United States; or
3 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of
4 the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The first prong
5 applies both to questions of law and to mixed questions of law and fact, see Williams (Terry) v.
6 Taylor, 529 U.S. 362, 407-09 (2000), while the second prong applies to decisions based on factual
7 determinations, see Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
8 A state court decision is “contrary to” Supreme Court authority, that is, falls under the first
9 clause of section 2254(d)(1), only if “the state court arrives at a conclusion opposite to that
10 reached by [the Supreme] Court on a question of law or if the state court decides a case differently
11 than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams (Terry), 529
12 U.S. at 412-13. A state court decision is an “unreasonable application of” Supreme Court
13 authority, falling under the second clause of section 2254(d)(1), if it correctly identifies the
14 governing legal principle from the Supreme Court’s decisions but “unreasonably applies that
15 principle to the facts of the prisoner’s case.” Id. at 413. The federal court on habeas review may
16 not issue the writ “simply because that court concludes in its independent judgment that the
17 relevant state-court decision applied clearly established federal law erroneously or incorrectly.”
18 Id. at 411. Rather, the application must be “objectively unreasonable” to support granting the writ.
19 Id. at 409.
20 Under the second prong, see 28 U.S.C. § 2254(d)(2), a state court decision “based on a
21 factual determination will not be overturned on factual grounds unless objectively unreasonable in
22 light of the evidence presented in the state-court proceeding.” Miller-El, 537 U.S. at 340; Torres
23 v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). Moreover, “a determination of a factual issue
24 made by a State court shall be presumed to be correct,” and the petitioner “shall have the burden
25 of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C.
26 § 2254(e)(1).
27 On federal habeas review, AEDPA “imposes a highly deferential standard for evaluating
1 Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks omitted). Even if constitutional
2 error is established, habeas relief is warranted only if the error had a “substantial and injurious
3 effect or influence in determining the jury’s verdict.” Penry v. Johnson, 532 U.S. 782, 795-96
4 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)).
5 In applying the above standards on habeas review, the courts in this Circuit look to the
6 decision of the highest state court to address the merits of the petitioner’s claims in a reasoned
7 decision. See Wilson v. Sellers, __ U.S. __, 138 S. Ct. 1188, 1192 (2018); LaJoie v. Thompson,
8 217 F.3d 663, 669 n.7 (9th Cir. 2000). When there is no reasoned opinion from the highest state
9 court to consider the petitioner’s claims, the courts look to the last reasoned opinion. Ylst v.
10 Nunnemaker, 501 U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th
11 Cir. 2000). Thus, a federal court will “look through” the unexplained orders of the state courts
12 rejecting a petitioner’s claims and analyze whether the last reasoned opinion of the state court
13 unreasonably applied Supreme Court precedent. See Ylst, 501 U.S. at 804-06; LaJoie, 217 F.3d at
14 669 n.7. The last reasoned decision in this case is the California Court of Appeal’s unpublished
15 disposition issued on August 28, 2018, in which the state appellate court considered all of
16 Petitioner’s claims. See Wilkins, 2018 WL 4091012, at *1-10.
17 IV. DISCUSSION
18 A. Exclusion of Defense Gang-Expert Testimony
19 1. Background
20 Petitioner claims that the trial court improperly excluded the proposed testimony of a
21 defense gang-expert witness, who would have discussed the victims’ gang affiliation and the
22 character of the neighborhood. Dkt. 1 at 9-25. Just as Petitioner did on direct appeal, he only
23 raises this claim as to the second degree murder conviction for killing Daniels. Id. at 10; see also
24 Wilkins, 2018 WL 4091012, at *1. Specifically, Petitioner claims that he was deprived of a
25 meaningful opportunity to present a complete defense because had the jurors heard such testimony
26 “it is reasonably probable that at least one [juror] would have had a reasonable doubt that
27 Daniel[s]’s death did not result from imperfect self-defense or heat-of-passion manslaughter.”
2. State Court Opinion
1
The state appellate court summarized the proposed testimony and relevant trial court
2
proceedings as follows:
3
Prior to trial, appellant filed an “Offer of Proof Re: Witness Tim
4 O’Brien.” O’Brien is a private investigator who had 20 years’
experience investigating crimes in the Sunnydale and Visitation
5 Valley area of San Francisco. The Offer of Proof included O’Brien’s
views of the victims, Fred Glaspie and Marche Daniels. Glaspie was
6 a “senior member” of the Towerside gang and Daniels was a member.
It also included his views on appellant who he was told by other
7 officers was not a gang member.
8 The prosecution filed a motion in limine to exclude or limit the
presentation of gang evidence. There were no gang allegations in the
9 information and any gang evidence was irrelevant. They argued
appellant could not properly present evidence of a victim’s character
10 pursuant to Evidence Code section 1103 through O’Brien’s hearsay
testimony. The testimony was not relevant to self-defense because
11 the standard is a reasonable person not a reasonable gang member or
reasonable person in a tough neighborhood. The introduction of
12 evidence of the victims’ gang association was not relevant, was
prejudicial, and would consume an inordinate amount of time.
13
In response, appellant proposed to call San Francisco Police
14 Department Inspector Joshua Kumli to testify as a gang expert. Kumli
would testify about a gang’s impact on young black males in their
15 territory, the gang’s use of fear, violence and intimidation, and gang
members proclivity for carrying firearms. Kumli would also assert
16 that both victims were active gang members with reputations for
dangerousness and violence. Appellant argued his state of mind was
17 relevant to provocation and self-defense.
18 The court held a hearing on the issue on July 15, 2015. The court
stated that it could not see how the gang issue was relevant. There
19 was “no self-defense” because the video showed the shooter going up
to each of the victims as they are lying on the ground and shooting
20 each of them a second time.
21 Appellant argued it was a single course of conduct and only a matter
of seconds between shots. The prosecution argued appellant’s state
22 of mind was something only he could testify to and no third party
could explain what appellant felt or understood. It is an objective
23 reasonable person standard, “not a reason[able] person from a
particular neighborhood.” In addition, the testimony was unduly
24 prejudicial and time-consuming.
25 The court stated that under Evidence Code section 352, the gang
evidence “tends to mislead the jury and is an undue consumption of
26 time.” The court then stated that if appellant elected to testify and it
opened the door, the court was not precluding him from raising the
27 issue again.
a reasonable person in a similar neighborhood with similar
1 knowledge. The court responded: “It’s not a reasonable member of
that community.” (Italics added.) The court stated that it was
2 allowing evidence that the community believed the victims had killed
Elijah Hopkins.
3
The prosecution argued the evidence would demonstrate that
4 appellant believed Daniels was responsible for Hopkins’s death and
that motivated the shooting. The evidence related to the personal
5 relationship among these men, not a broad-based history of the
neighborhood.
6
The court again stated that it had not heard from appellant yet and it
7 would “leav[e] the door open” to raise the issue again if the
prosecution raised something making it relevant. “At this point I
8 think it’s [Evidence Code section] 352. It’s not probative. It is very
prejudicial. It’s also extremely time consuming . . . and it takes the
9 jury on a completely different tangent from the facts before us.”
10 At the close of the prosecution’s case, defense counsel again asked
that Inspector Kumli be allowed to testify about Glaspie’s gang
11 involvement. The prosecution argued that one of the officers testified
that Glaspie was “friendly” but not about his reputation. This did not
12 open the door to allow gang testimony. Whether Glaspie was a gang
member was not a question before the jury requiring expert testimony.
13 The court responded: “I agree. So that’s not coming in.”
14 Wilkins, 2018 WL 4091012, at *3-4.
15 The state appellate court rejected this claim upon finding no error in the trial court’s
16 exclusion of gang expert testimony, stating as follows:
17 Appellant argues that the court abused its discretion in refusing to
admit the testimony of his gang expert. On appeal, appellant only
18 raises this claim as to the second-degree murder conviction for killing
Daniels. Appellant asserts preclusion of the testimony violated his
19 Sixth and Fourteenth Amendment rights to present a defense.
20 “Self-defense, when based on a reasonable belief that killing is
necessary to avert an imminent threat of death or great bodily injury,
21 is a complete justification, and such a killing is not a crime.
[Citations.] A killing committed when that belief is unreasonable is
22 not justifiable. Nevertheless, ‘one who holds an honest but
unreasonable belief in the necessity to defend against imminent peril
23 to life or great bodily injury does not harbor malice and commits no
greater offense than manslaughter.’ [Citation.]” (People v. Elmore
24 (2014) 59 Cal. 4th 121, 133-134, italics omitted.) “ ‘The subjective
elements of self-defense and imperfect self-defense are identical.
25 Under each theory, the [defendant] must actually believe in the need
to defend . . . against imminent peril to life or great bodily injury.’
26 [Citation.]” (People v. Sotelo-Urena (2016) 4 Cal. App. 5th 732, 744
(Sotelo-Urena).)
27
in imminent danger of being killed or suffering great bodily injury or
1 reasonably believe the immediate use of deadly force was necessary.
“When deciding whether the defendant’s beliefs were reasonable,
2 consider all the circumstances as they were known to and appeared to
the defendant and consider what a reasonable person in a similar
3 situation with similar knowledge would have believed.” The court
further instructed the jury they could consider if appellant knew
4 Glaspie and Daniels had threatened or harmed others in the past. The
trial court also instructed the jury on heat of passion, provocation, and
5 imperfect self-defense.
6 The trial court did not err in refusing to allow a gang expert to testify
for several reasons. First, appellant failed to renew his motion to
7 introduce expert testimony after he testified as he was advised to do
by the court. At the original hearing, the court stated that the
8 prosecution’s theory of the case was that appellant killed both victims
because he believed they killed Hopkins. The prosecution stated the
9 shooting was personal, not related to the history of the neighborhood.
Appellant argued it related to his experiences over the last four or five
10 years and the prosecution was going to argue it is something he made
up and his fears were not based in fact. The court responded: “Maybe.
11 I haven’t heard from Mr. Wilkins yet. Nobody has. That’s why I’m
leaving the door open. If it happens that you need to corroborate
12 something from the District Attorney’s Office, I’m going to revisit
this issue, and you are welcome to bring it up again.” The court
13 specifically stated that it was not precluding appellant from talking
about these issues but the expert testimony was not probative, it was
14 prejudicial and “extremely time consuming.”
15 Appellant’s testimony raised the issue that the victims’ gang
membership created his fear. Appellant testified about his
16 relationship with Glaspie and that Glaspie had threatened him [in] the
past. He did not testify to any similar threats by Daniels. Appellant’s
17 testimony did not require corroboration by a gang expert. He
explained the nature of the community, the fact he believed Glaspie
18 and Daniels were Towerside gang members, and his thoughts and
feelings prior to the shooting.
19
Appellant argues that we should apply the analysis in Sotelo-Urena
20 where Division Two of this court reversed a first degree murder
conviction because the trial court precluded expert testimony on
21 homelessness relevant to the defendant’s claim of self-defense.
(Sotelo-Urena, supra, 4 Cal. App. 5th at pp. 736-737.) Sotelo-Urena,
22 a homeless man, stabbed another homeless man. Sotelo-Urena
claimed self-defense based on his belief he needed to use lethal force
23 to defend himself from an attack. (Id. at p. 741.) Sotelo-Urena sought
to have a former judge testify as an expert on homelessness in three
24 areas: (1) empirical studies on the higher rate of violence against
homeless people; (2) fear and victimization among the homeless; and
25 (3) a greater than normal sensitivity to perceived threats of violence
by homeless individuals. (Id. at pp. 741-742.) The trial court found
26 that homelessness was within the common experience of the jurors
and the issue was not the defendant’s homelessness but being alone,
27 at night behind the library. (Id. at p. 742.) The court precluded the
1 Sotelo-Urena was homeless and had been stabbed a few weeks prior
to the murder. He believed that the victim had been involved in his
2 stabbing and he had to stab the victim before the victim stabbed him.
(Sotelo-Urena, supra, 4 Cal. App. 5th at p. 745.) The expert “was
3 prepared to testify that individuals who are chronically homeless, like
defendant, are subjected to a high rate of violence by both housed and
4 homeless individuals, and that the experience of living for years on
the streets instills a perpetual fear of violence that would have affected
5 defendant’s belief in the need to defend himself with lethal force.”
(Id. at pp. 745-746.) Division Two found this testimony was relevant
6 because it would have helped the jury understand the situation from
the defendant’s perspective. (Id. at p. 746.) It explained his
7 heightened sensitivity to aggression. (Ibid.) The court applied the
same rationale as intimate partner battering where the victim spouse
8 has a heightened sensitivity to danger. (Ibid.) “The same rationale
applies here. According to [the expert], a homeless individual who
9 has repeatedly been subjected to violence and the threat of violence
will experience a heightened sensitivity to such threats and will have
10 a reduced threshold at which he or she subjectively perceives an
imminent threat.” (Id. at p. 747.)
11
In People v. Humphrey (1996) 13 Cal. 4th 1073 (Humphrey), our
12 Supreme Court held that expert evidence on intimate partner violence
was admissible under Evidence Code section 1107, but explained that
13 its decision was not “changing the standard from objective to
subjective, or replacing the reasonable ‘person’ standard with a
14 reasonable ‘battered woman’ standard” for self-defense and that its
decision “would not, in another context, compel adoption of a
15 ‘ “reasonable gang member” standard.’ ” (Humphrey, at p. 1087.)
16 The Attorney General argues that Sotelo-Urena is distinguishable
because Sotelo-Urena did not testify and no other trial evidence
17 established the high rates of violence against homeless individuals.
Here, appellant’s own testimony established the character of the
18 neighborhood, the fact both victims were Towerside gang members,
and that he feared an outbreak of gang violence at the gathering. Prior
19 to appellant’s testimony, the court had concluded that the video of
appellant’s conduct showed no self-defense. In the video, appellant
20 shot both victims and then shot each of them again when they were
lying on the ground.
21
Sotelo-Urena faced an imminent threat of violence from the other
22 homeless man. The man was on drugs, Sotelo-Urena believed he had
a knife in his hand, and they began to “tangl[e]” with each other.
23 (Sotelo-Urena, supra, 4 Cal. App. 5th at p. 738.) Here the undisputed
testimony is neither Glaspie nor Daniels were armed, both men were
24 on the street in front of the house and neither of them posed an
imminent threat of violence or injury to appellant. Daniels was
25 walking away when he was shot in the back of the head. Appellant
testified that he knew neither man was armed so, at most, his fear was
26 that other members of the Towerside gang might arrive and cause him
or other[s] harm. As explained below, this is insufficient to support
27 an imperfect self-defense claim.
meant no information about the violence against and among homeless
1 individuals was before the jury. The expert’s testimony would have
allowed the jury to hear [and] understand the perspective of a
2 chronically homeless man who had been recently assaulted. (Sotelo-
Urena, supra, 4 Cal. App. 5th at p. 745.) Here, there was evidence
3 before the jury about the character of the neighborhood and
appellant’s previous exposure to gang violence. Additionally,
4 appellant testified about his own fear and feelings at the time of the
shooting. Finally, the experience of living in a high-crime
5 neighborhood or area with gangs is not beyond the jury’s common
experience. A multitude of cases provide that expert testimony about
6 the psychology and culture of street gangs is admissible to explain the
actions of gang members (People v. Gonzalez (2006) 38 Cal. 4th 932,
7 944), but appellant repeatedly stressed he was not a gang member.
Unlike the chronically homeless man in Sotelo-Urena or the abused
8 spouse in Humphrey, there was no basis to admit expert testimony
that appellant had a heightened sensitivity to threats of violence.
9 Appellant and other witnesses described him as a peacemaker or
mediator in the community demonstrating an ability to control his
10 emotions and calm others.
11 In a recent decision, the Fourth District sought to clarify the
reasonable person standard applicable to self-defense. (People v.
12 Brady (2018) 22 Cal. App. 5th 1008 (Brady).) Brady involved a self-
defense claim by a homeless individual with bipolar disorder,
13 posttraumatic stress disorder, and a history of being a victim of
violence. (Id. at pp. 1010-1011.) He argued that the standard is what
14 would someone with his attributes do when faced with an imminent
threat. The court held this was not the standard. “To justify an act
15 based on self-defense, a defendant must have subjectively held an
objectively reasonable belief that bodily injury was imminent. The
16 objective component considers what would have appeared necessary
to a reasonable person in the defendant’s situation with his or her
17 knowledge.” (Id. at p. 1010.) The Brady court recognized Sotelo-
Urena concluded that expert testimony regarding chronic
18 homelessness was relevant to the objective prong of a self-defense
claim. (Id. at p. 1016.) But Sotelo-Urena did not create a
19 “‘reasonable homeless person standard.’” (Ibid.) Brady interpreted
the court’s holding in Sotelo-Urena as “expert testimony regarding
20 chronic homelessness could bear on the issue of reasonableness by
showing that, due to the greater incidence of violence toward
21 homeless persons, ‘a [homeless individual] might become sensitized
and thus able reasonably to discern when danger is real and when it is
22 not.’ ” (Ibid., quoting Humphrey, supra, 13 Cal. 4th at p. 1086.)
23 The Brady court concluded: “Simply put, we view Humphrey and
Sotelo-Urena as providing that the reasonable person standard takes
24 into account a defendant’s knowledge that may increase his or her
ability to accurately predict impending violence. [Citation.]” (Brady,
25 supra, 22 Cal. App. 5th at p. 1017, italics omitted.) The court held
this did not include Brady’s personal attributes or experiences. His
26 personal history of trauma was not folded into the objective prong of
a self-defense claim. (Ibid.)
27
reasonable person standard and does not require expert testimony.
1
The expert testimony appellant sought to introduce was not probative
2 and was prejudicial. The offer of proof included O’Brien’s views of
the gang culture in Visitation Valley, the victims’ gang affiliation and
3 the city attorney’s gang injunction against the Towerside gang. It also
included O’Brien’s opinions about the victims, much of which was
4 inadmissible hearsay.
5 After appellant testified, his testimony combined with Augusta and
Fells explained the relationship between the Towerside gang and
6 individuals present at the Burr Street house. Appellant also explained
his experience with the victims and the fact he was threatened when
7 he was younger. The jury had the necessary “ ‘ “ ‘facts and
circumstances’ ” ’ ” to determine whether a reasonable person in a
8 similar situation with similar knowledge would feel the need to
defend himself. (Humphrey, supra, 13 Cal. 4th at pp. 1082-1083.)
9 We find no error in the court’s exclusion of gang expert testimony.
10 Id. at *4-8 (brackets added).
11 The state appellate court further found that even if the trial court erred in excluding the
12 gang expert’s testimony, Petitioner was not prejudiced, stating as follows:
13 Even if the trial court erred in excluding the gang testimony, any such
error was not prejudicial. Appellant argues that we must apply the
14 harmless beyond a reasonable doubt standard under Chapman v.
California (1967) 386 U.S. 18, 24 (Chapman), but “ ‘the routine
15 application of provisions of the state Evidence Code law does not
implicate a criminal defendant’s constitutional rights.’ (People v.
16 Jones (2013) 57 Cal. 4th 899, 957; accord People v. Robinson (2005)
37 Cal. 4th 592, 626-627 [‘ “[A]s a general matter, the ordinary rules
17 of evidence do not impermissibly infringe on the accused’s [state or
federal constitutional] right to present a defense.” ’].) . . . [T]he trial
18 court’s error was one of state evidentiary law only, and the proper
standard of review is whether it is reasonably probable that defendant
19 would have obtained a more favorable result in the absence of the
error. [Citations.]” (Sotelo-Urena, supra, 4 Cal. App. 5th at p. 756.)
20 We therefore consider whether it is reasonably probable that appellant
would have obtained a more favorable verdict if the testimony was
21 admitted under People v. Watson (1956) 46 Cal. 2d 818, 836.
22 Given the evidence at trial, it is not reasonably probable that appellant
would have obtained a more favorable result if a gang expert was
23 allowed to testify. As the trial court noted, the videotape played for
the jury showed appellant shoot Glaspie in the head. Daniels
24 witnessed the shooting and began to run away and appellant shot him
in the head from behind. Appellant then stood over Daniels and shot
25 him twice more in the head. He then returned to Glaspie and shot him
again in the head. Both victims were not armed.
26
Prior to the shooting, Daniels was crying and repeatedly saying “I
27 didn’t do it.” Janeka Fells testified she never saw Daniels or Glaspie
mentioned any threat by Daniels. Appellant perceived Glaspie’s
1 statement as a threat, but even if we accept the statement as true, it
was not an imminent threat. Self-defense “requires without exception
2 that the defendant must have had an actual belief in the need for self-
defense. . . . Fear of future harm—no matter how great the fear and
3 no matter how great the likelihood of the harm—will not suffice. The
defendant’s fear must be of imminent danger to life or great bodily
4 injury.” (In re Christian S. (1994) 7 Cal. 4th 768, 783, italics
omitted.) Appellant failed to demonstrate imminent danger,
5 especially from Daniels. Glaspie and Daniels were standing on the
street, unarmed. Even if we believe appellant’s testimony that he
6 thought Glaspie may have summoned or would summon members of
his gang, that was not an immediate threat to appellant’s life or body.
7
The gang expert testimony was supposed to demonstrate Glaspie was
8 a Towerside gang leader, Daniels was associated with Towerside
gang members and that their presence at the Burr Street house was a
9 provocative act. However, all of this was presented to [the] jury
through testimony of other witnesses as well as appellant’s testimony.
10
Finally, appellant testified the [sic] he felt scared and wanted to
11 prevent gang violence which caused him to shoot Glaspie and
Daniels. However, shooting two gang members, one of whom
12 appellant believed to be a leader, would only incite more violence and
retribution. Appellant failed to testify to anything that made the gang
13 expert testimony more probative than prejudicial.
14 The trial court did not err in finding the proposed expert testimony
was more prejudicial than probative because it was not relevant to the
15 issues before the jury.
16 Id. at *7-8.
17 3. Applicable Federal Law
18 A state court’s evidentiary ruling is not subject to federal habeas review unless the ruling
19 violates federal law, either by infringing on a specific federal constitutional or statutory provision
20 or by depriving the defendant of the fundamentally fair trial guaranteed by due process. See
21 Pulley v. Harris, 465 U.S. 37, 41 (1984); Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir.
22 1991). Furthermore, a violation of a state procedural law does not give rise to a cognizable claim
23 on federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“‘federal habeas corpus
24 relief does not lie for errors of state law.’”) (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). It
25 is well established that “the Constitution guarantees criminal defendants ‘a meaningful
26 opportunity to present a complete defense.’” Holmes v. South Carolina, 547 U.S. 319, 324 (2006)
27 (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). However, this right is not absolute.
1 LaGrand v. Stewart, 133 F.3d 1253, 1266 (9th Cir. 1998). States have “broad latitude” to
2 establish rules excluding evidence from criminal trials so long as the rules “are not ‘arbitrary’ or
3 ‘disproportionate to the purposes they are designed to serve.’” United States v. Scheffer, 523 U.S.
4 303, 308 (1998) (citations omitted).
5 State and federal rule makers have broad discretion in excluding evidence from trials.
6 Holmes v. South Carolina, 547 U.S. 319, 324 (2006); see also Montana v. Egelhoff, 518 U.S. 37,
7 42 (1996) (holding due process does not guarantee a defendant the right to present all relevant
8 evidence). This discretion is limited by a defendant’s constitutional rights to due process and “a
9 meaningful opportunity to present a complete defense.” Holmes, 547 U.S. at 324 (quoting Crane
10 v. Kentucky, 476 U.S. 683, 690 (1986)). Despite this, “well-established rules of evidence permit
11 trial judges to exclude evidence if its probative value is outweighed by certain other factors such
12 as unfair prejudice, confusion of the issues, or potential to mislead the jury.” Holmes, 547 U.S. at
13 326; see Egelhoff, 518 U.S. at 43 (exclusion of evidence does not violate Due Process Clause
14 unless “it offends some principle of justice so rooted in the traditions and conscience of our people
15 as to be ranked as fundamental”).
16 Furthermore, there is little guidance on how to evaluate claims regarding discretionary
17 exclusion of expert testimony or any other particular piece of evidence:
18 [T]he Supreme Court’s cases have focused only on whether an
evidentiary rule, by its own terms, violated a defendant’s right to
19 present evidence. These cases do not squarely address whether a
court’s exercise of discretion to exclude expert testimony violates a
20 criminal defendant’s constitutional right to present relevant evidence.
Nor do they clearly establish ‘a controlling legal standard’ for
21 evaluating discretionary decisions to exclude the kind of evidence at
issue here.
22
Brown v. Horell, 644 F.3d 969, 983 (9th Cir. 2011) (quoting Moses v. Payne, 555 F.3d 742, 758-
23
59 (9th Cir. 2009)).
24
Finally, a violation of the constitutional right to a meaningful opportunity to present a
25
complete defense is not in and of itself enough for federal habeas relief under 28 U.S.C. § 2254.
26
State prisoners seeking federal habeas relief are only entitled to relief if the constitutional trial
27
error “‘had substantial and injurious effect or influence in determining the jury’s verdict.’”
1 Brecht, 507 U.S. at 627 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). In other
2 words, federal habeas relief is limited to constitutional error that resulted in “actual prejudice.” Id.
3 at 637 (citation omitted).
4 4. Analysis
5 In the petition, Petitioner argues that the “centerpost of [his] defense was that he shot two
6 menacing intruders, Glaspie and Daniels, in an explosive and dangerous situation, panicked they
7 would summon fellow gang members to hurt him or other people.” Dkt. 1 at 11. Petitioner urges
8 that his defense rested on the jury’s complete understanding of the impact of his circumstances,
9 arguing:
[Petitioner’s] decades [of] living in a neighborhood plagued by
10 extreme gang violence informed his fear, his perception of threat, and
his belief that he had to shoot. The jury needed to know just how
11 serious, pervasive, and threatening that violence was to understand
his assertion that he only shot in imperfect self-defense, and/or heat-
12 of-passion manslaughter.
13 Id. Petitioner claims that he “offered a superbly[,] qualified and experienced expert” on gang
14 affiliation, Investigator O’Brien, who would have testified as follows:
15 The expert would have testified that Glaspie was a senior gang
member committed to violence with rival gangs, involved with
16 myriad gang member committed to violence with rival gangs,
involved with myriad gang homicides and shootings; and that Daniels
17 was close to him and deeply involved with the gang. (4 CT 793-794,
798, 795.) He would have testified that Glaspie and Daniels were
18 known to carry guns and that the community believed Daniels had
killed Elijah Hopkins and Glaspie knew about the murder and may
19 have participated in it. (4 CT 797.)
20 Id. at 11-12. Petitioner asserts that the evidence was relevant and argues the trial court erred in
21 excluding the evidence as irrelevant because it adopted the prosecutor’s reasoning that “imperfect
22 self-defense and heat-of-passion manslaughter applied ‘a reasonable person standard,’ not that of a
23 reasonable person from a particular neighborhood.” Id. at 12-13 (citing July 15, 2015 Augmented
24 Reporter’s Transcript (“ART”) 5-6). He also argues that the resulting error was therefore
25 prejudicial and not harmless. Id. at 21-25.
26 However, in rejecting Petitioner’s claim, the state appellate court pointed out that in
27 excluding the aforementioned expert testimony “[t]he [trial] court specifically stated that it was
1 probative, it was prejudicial and ‘extremely time consuming.’” Wilkins, 2018 WL 4091012, at *4.
2 In response to Petitioner’s argument supporting the more subjective “reasonable gang member”
3 standard, the state appellate court noted:
4 In People v. Humphrey (1996) 13 Cal. 4th 1073 (Humphrey), our
Supreme Court held that expert evidence on intimate partner violence
5 was admissible under Evidence Code section 1107, but explained that
its decision was not “changing the standard from objective to
6 subjective, or replacing the reasonable ‘person’ standard with a
reasonable ‘battered woman’ standard” for self-defense and that its
7 decision “would not, in another context, compel adoption of a
‘ “reasonable gang member” standard.’ ” (Humphrey, at p. 1087.)
8
Id. at *5. Furthermore, the state appellate court turned to a recent state court decision, which
9
sought to clarify the reasonable person standard applicable to self-defense by stating as follows:
10
To justify an act based on self-defense, a defendant must have
11 subjectively held an objectively reasonable belief that bodily injury
was imminent. The objective component considers what would have
12 appeared necessary to a reasonable person in the defendant’s situation
with his or her knowledge.
13
Id. at *6 (quoting People v Brady, 22 Cal. App. 5th 1008, 1017, 1010 (2018)). The state appellate
14
court noted that the “reasonable person standard takes into account a defendant’s knowledge that
15
may increase his or her ability to accurately predict impending violence[,]” but “this did not
16
include [the defendant’s] personal attributes and experiences” and “[a defendant’s] personal
17
history of trauma was not folded into the objective prong of a self-defense claim.” Id. at *7.
18
Thus, the state appellate court concluded that Petitioner’s “personal experience with Glaspie and
19
the Towerside gang was presented to the jury but it [was] not part of the reasonable person
20
standard and does not require expert testimony.” Id. at *8 (brackets added). Again, the state
21
appellate court stressed that the defense gang-expert testimony Petitioner sought to introduce was
22
“not probative and was prejudicial” and the trial court did not err in excluding it, stating as
23
follows:
24 The expert testimony appellant sought to introduce was not probative
and was prejudicial. The offer of proof included O’Brien’s views of
25 the gang culture in Visitation Valley, the victims’ gang affiliation and
the city attorney’s gang injunction against the Towerside gang. It also
26 included O’Brien’s opinions about the victims, much of which was
inadmissible hearsay.
27
individuals present at the Burr Street house. Appellant also explained
1 his experience with the victims and the fact he was threatened when
he was younger. The jury had the necessary “ ‘ “ ‘facts and
2 circumstances’ ” ’ ” to determine whether a reasonable person in a
similar situation with similar knowledge would feel the need to
3 defend himself. (Humphrey, supra, 13 Cal. 4th at pp.1082-1083.) We
find no error in the court’s exclusion of gang expert testimony.
4
Id. Finally, the state appellate court found that “[t]he trial court did not err in finding the proposed
5
expert testimony was more prejudicial than probative because it was not relevant to the issues
6
before the jury. Id.
7
First, habeas relief is not warranted here because the Supreme Court has never addressed
8
whether the exclusion of expert witness testimony violates the Constitution. See Brown, 644 F.3d
9
at 983; Moses, 555 F.3d at 758-59. In the absence of a Supreme Court case on point, federal
10
habeas relief is not available.
11
Second, to the extent that Petitioner claims that the trial court’s exclusion of the gang-
12
expert testimony violated state procedural law, such a claim does not give rise to a cognizable
13
claim on federal habeas relief. See Estelle 502 U.S. at 67.
14
Third, Respondent points out that the “record does not show that the trial court
15
constitutionally erred by barring the proffered gang-expert testimony.” Dkt. 12-1 at 24. This
16
Court agrees that any due process claim related to the denial of gang-expert testimony was
17
reasonably rejected on appeal. Wilkins, 2018 WL 4091012, at *7. The state appellate court held
18
that the trial court acted reasonably in determining that the potential probative value of the gang-
19
expert testimony was outweighed by its prejudicial effect and the time such testimony would
20
consume. Id. The record shows that the trial court considered Petitioner’s arguments at the July
21
15, 2015 hearing on the defense motion to introduce the gang-expert testimony. See ART 3-9.
22
After listening to argument from the parties, the trial court reasonably found the proffered
23
testimony not relevant under California Evidence Code § 210 and more prejudicial than probative
24
under California Evidence Code § 352. See id. Specifically, the state appellate court reasonably
25
determined the record supported the trial court’s barring the proffered gang-expert testimony, as
26
follows:
27
and appellant shot him in the head from behind. Appellant then stood
1 over Daniels and shot him twice more in the head. He then returned
to Glaspie and shot him again in the head. Both victims were not
2 armed.
3 Prior to the shooting, Daniels was crying and repeatedly saying “I
didn’t do it.” Janeka Fells testified she never saw Daniels or Glaspie
4 with a weapon or heard them threaten anyone. Appellant testified
Glaspie said: “I’m going to get my Tower niggas,” but he never
5 mentioned any threat by Daniels. Appellant perceived Glaspie’s
statement as a threat, but even if we accept the statement as true, it
6 was not an imminent threat. Self-defense “requires without exception
that the defendant must have had an actual belief in the need for self-
7 defense. . . . Fear of future harm—no matter how great the fear and
no matter how great the likelihood of the harm—will not suffice. The
8 defendant’s fear must be of imminent danger to life or great bodily
injury.” (In re Christian S. (1994) 7 Cal. 4th 768, 783, italics
9 omitted.) Appellant failed to demonstrate imminent danger,
especially from Daniels. Glaspie and Daniels were standing on the
10 street, unarmed. Even if we believe appellant’s testimony that he
thought Glaspie may have summoned or would summon members of
11 his gang, that was not an immediate threat to appellant’s life or body.
12 The gang expert testimony was supposed to demonstrate Glaspie was
a Towerside gang leader, Daniels was associated with Towerside
13 gang members and that their presence at the Burr Street house was a
provocative act. However, all of this was presented to jury through
14 testimony of other witnesses as well as appellant’s testimony.
15 Finally, appellant testified the [sic] he felt scared and wanted to
prevent gang violence which caused him to shoot Glaspie and
16 Daniels. However, shooting two gang members, one of whom
appellant believed to be a leader, would only incite more violence and
17 retribution. Appellant failed to testify to anything that made the gang
expert testimony more probative than prejudicial.
18
The trial court did not err in finding the proposed expert testimony
19 was more prejudicial than probative because it was not relevant to the
issues before the jury.
20
Wilkins, 2018 WL 4091012, at *7-8 (brackets added).
21
Fourth, while Petitioner argues that corroboration of his testimony was an essential
22
component of his defense, such an argument is unavailing. Dkt. 1 at 20. Petitioner relies on a
23
Ninth Circuit case, United States v. James, to support his argument that “evidence corroborating a
24
defendant’s account is critical to a homicide defense.” Id. (citing United States v. James, 169 F.3d
25
1210, 1214 (9th Cir. 1999)). In James, the Ninth Circuit found that evidence corroborating
26
defendant’s reason to fear the victim was “absolutely necessary to her defense.” James, 169 F.3d
27
at 1214. This corroboration was deemed necessary to ensure that the defendant was not making
1 up wild stories of her partner’s violence (including his “stabbing of an old man; stabbing of
2 another person with a pen; and [his] murdering a man.”). Id. Conversely, here, the record shows
3 that the validity of Petitioner’s belief—that Glaspie and Daniels were gang members and that gang
4 violence was prevalent in his neighborhood—was not at issue as it was already corroborated by
5 evidence other than Petitioner’s own testimony. For example, other evidence admitted at trial
6 established that Glaspie was a self-admitted Towerside general, and that Daniels associated with
7 Towerside gang members and was Glaspie’s “flunkey.” 14 RT 1112-1113, 1115-1116. The 911
8 call established that the caller was fearful because Elijah Hopkins’s suspected killer had arrived at
9 50 Burr Street, and that gunshot ensued after the killer’s arrival. 5 CT 948-953. Janeka Fells
10 corroborated that “commotion” and “yelling” followed Daniels’ and Glaspie’s arrival at the
11 residence. 11 RT 750-753. Erica Augusta testified that she had heard that Daniels was Elijah’s
12 killer, and testified that she became scared after Daniels and Glaspie arrived at her residence. 11
13 RT 790, 793. Eric Sexton testified that he became scared after Daniels and Glaspie showed up.
14 16 RT 1358. Thus, because the record shows that such proffered evidence was cumulative to the
15 other evidence admitted at trial, the state appellate court reasonably found no error in the trial
16 court’s exclusion of the gang-expert testimony. See Wilkins, 2018 WL 4091012, at *7.
17 Fifth, the state appellate court reasonably determined that the trial court instructed the jury
18 on self-defense, heat of passion, provocation, and imperfect self-defense, stating as follows:
19 The trial court instructed the jury on self-defense that appellant must
reasonably believe he or others present at the Burr Street house were
20 in imminent danger of being killed or suffering great bodily injury or
reasonably believe the immediate use of deadly force was necessary.
21 “When deciding whether the defendant’s beliefs were reasonable,
consider all the circumstances as they were known to and appeared to
22 the defendant and consider what a reasonable person in a similar
situation with similar knowledge would have believed.” The court
23 further instructed the jury they could consider if appellant knew
Glaspie and Daniels had threatened or harmed others in the past. The
24 trial court also instructed the jury on heat of passion, provocation, and
imperfect self-defense.
25
Id. at *4. Thus, the jury was equipped with the instructions necessary to determine whether
26
Petitioner’s testimony (that he was prompted to act out of fear based on his belief that Glaspie and
27
Daniels were gang members, see 14 RT 1109) was trustworthy as corroborated by the 911 call (5
1 CT 948-953), Erica Augusta (11 RT 790, 793), and Eric Sexton (16 RT 1358). Because, as
2 mentioned above, Petitioner’s belief—that Glaspie and Daniels posed a greater risk due to their
3 alleged gang affiliation—had already been corroborated by multiple sources, the state appellate
4 court reasonably determined that the jury would then be able to use such information in their
5 consideration of whether Petitioner “knew Glaspie and Daniels had threatened or harmed others in
6 the past.” Wilkins, 2018 WL 4091012, at *7.
7 Finally, Petitioner has not shown prejudice. As explained above, a violation of a
8 constitutional right is not in and of itself enough for federal habeas relief. State prisoners seeking
9 federal habeas relief are only entitled to it if the constitutional trial error resulted in “actual
10 prejudice.” Brecht, 507 U.S. at 637. Petitioner alleges that the state appellate court
11 misunderstood the nature of his defense by arguing that the surveillance video admitted into
12 evidence (showing Petitioner shot both victims multiple times) demonstrated that “he could not
13 have had actual fear justifying self-defense.” Dkt. 1 at 22 (citing Wilkins, 2018 WL 4091012, at
14 *7). In focusing on the second degree murder conviction for killing Daniels, Petitioner argues that
15 he never alleged self-defense, but instead argued consistently that if the gang-expert had testified,
16 the jury could have found that Daniels’s shooting was manslaughter through imperfect self-
17 defense or heat of passion manslaughter.” Id. (italics in original).6 Specifically, Petitioner argues
18 as follows:
Here, the expert’s testimony would have shown jurors that
19 [Petitioner] could have believed he needed to shoot to protect himself
or others because Daniels could have his gang cohorts there in an
20 instant. It also would have shown Daniels’ intrusion into the grieving
family’s home, followed by his fistfight with Elijah Hopkins’ brother,
21 was so provocative, in light of the full circumstances that the shooting
could have been heat-of-passion manslaughter rather than second-
22 degree murder.
23 Id. at 23-24. Furthermore, Petitioner argues that that the state appellate court’s “observation that
24
25
6 The jury was instructed pursuant to CALCRIM No. 571 as follows: “A killing that would
otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because
26
he acted in imperfect self-defense or imperfect defense of another. [¶] If you conclude the
defendant acted in complete self-defense or defense of another, his action was lawful and you
27
must find him not guilty of any crime. The difference between complete self-defense or defense
1 ‘all of this was presented to the jury through testimony of other witnesses as well as appellant’s
2 testimony’ ignores the power of having an expert corroborate and buttress a witness’s testimony.”
3 Id. at 24 (quoting Wilkins, 2018 WL 4091012, at *8). Petitioner asserts that,
4 [his] testimony that decades of experience with extreme gang
violence caused him to believe he had to shoot Daniels to prevent
5 harm to himself or others was ‘not substantially corroborated by
evidence giving it independent reliability.’ The proffered expert
6 testimony would have provided that corroboration.
7 Id. at 25. However, the state appellate court reasonably found that none of these alleged errors
8 resulted in actual prejudice as indicated by the jury finding Petitioner guilty of the lesser-included
9 offense as to Glaspie’s killing, stating: “The fact that the jury convicted appellant of the voluntary
10 manslaughter of Glaspie rather than first degree murder demonstrates the jury understood the
11 court’s instructions and properly applied them.” Wilkins, 2018 WL 4091012, at *9.7 Moreover,
12 the evidence supporting the convictions was strong. All gunshots were fired at close range and at
13 unarmed men, refuting the defense theory of self-defense. Immediately, after the shootings,
14 Petitioner fled the scene. About three weeks later, officers attempted to arrest Petitioner and he
15 ran from the officers after discarding a semiautomatic handgun. On this record, given the
16 overwhelming evidence of guilt, any presumed evidentiary error was harmless under Brecht. See
17 507 U.S. at 637-638.
18 In sum, it cannot be said that the state courts’ rejection of Petitioner’s claim was contrary
19 to, or an unreasonable application of Supreme Court precedent, nor was it objectively
20 unreasonable in light of the totality of the evidence presented. It is therefore entitled to AEDPA
21 deference. Accordingly, Claim 1 is DENIED.
22
23
7 The jury was instructed with CALCRIM No. 522, which states as follows:
24
Provocation may reduce a murder from first degree to second degree
and may reduce a murder to manslaughter. The weight and
25
significance of the provocation, if any, are for you to decide. If you
conclude that the defendant committed murder but was provoked,
26
consider the provocation in deciding whether the crime was first or
second degree murder. Also, consider the provocation in deciding
27
whether the defendant committed murder or manslaughter.
B. Prosecutorial Misconduct
1
1. Background
2
Petitioner claims that the prosecution committed misconduct during rebuttal argument by
3
misstating the standard for heat of passion voluntary manslaughter (specifically as to provocation)
4
which, because left uncorrected by the trial court, violated Petitioner’s Fourteenth Amendment
5
right to due process and a fair trial. Dkt. 1 at 27-34. Again, the Court points out that Petitioner
6
only challenges his second degree murder conviction as to the killing of Daniels, just as he did on
7
direct appeal. See id. at 34 (“The error requires reversal of the second-degree murder
8
conviction.”); see also Wilkins, 2018 WL 4091012, at *1. Therefore, Petitioner argues that, absent
9
the prosecution’s misleading statement regarding provocation, and the trial court’s failure to
10
provide proper clarification, “the jury could have had a reasonable doubt that the prosecution had
11
proved that Daniels’[s] shooting did not fall under [the provocation] doctrine” therefore finding a
12
verdict lesser than second degree murder. Dkt. 1 at 34.
13
2. State Court Opinion
14
The state appellate court summarized offered testimony and trial court proceedings as
15
follows:
16
In its rebuttal argument, the prosecution stated:
17
“Provocation is a small portion of heat of passion. Take a look at
18 what the law actually says. It’s not enough that the defendant simply
was provoked. Everybody at [the Burr Street house] was
19 provoked. . . . [¶] The defendant is not allowed to set up his own
standard of conduct. In deciding whether provocation was sufficient
20 consider whether a person of average disposition in the same situation
and knowing the same facts would have acted from passion rather
21 than judgment.
22 “So everybody there was upset, was angry, was yelling. Lawyers go
back and forth about who the average person or who the reasonable
23 person is. But I would submit to you that a good example would be
evidence of every other person at [the Burr Street house]. Every other
24 person was in the same situation. They had at least the same
relationship to this young man who was killed, if not closer. They
25 knew the same facts. They heard the same rumors. . . .
26 “This is natural reaction of a reasonable person: I’m upset. I’m angry.
I’m sad. I’m confused. I’m going to yell at you. . . . [¶] You can
27 decide by looking at the reaction of the average reasonable person,
1 Defense counsel objected: it “misstates the law.” The court then
instructed the jury: “if counsel states something different from my
2 instructions, you are to follow my instructions.”
3 Wilkins, 2018 WL 4091012, at *8.
4 The state appellate court rejected the claim as follows:
5 “ ‘To constitute a violation of the federal Constitution, prosecutorial
misconduct must “ ‘so infect[ ] the trial with unfairness as to make
6 the resulting conviction a denial of due process.’ ” [Citations.]
Conduct by a prosecutor that does not render a criminal trial
7 fundamentally unfair is prosecutorial misconduct under state law only
if it involves “ ‘the use of deceptive or reprehensible methods to
8 attempt to persuade either the court or the jury.’ ” ’ ” (People v.
Harris (2005) 37 Cal. 4th 310, 341, quoting People v. Benavides
9 (2005) 35 Cal. 4th 69, 108.) A prosecutor’s improper comments
violate the federal Constitution if they “ ‘ “so infect[ ] the trial with
10 unfairness as to make the resulting conviction a denial of due
process.” ’ [Citations.]” (People v. Cunningham (2001) 25 Cal. 4th
11 926, 1000.)
12 Heat of passion arises if, “ ‘ “at the time of the killing, the reason of
the accused was obscured or disturbed by passion to such an extent as
13 would cause the ordinarily reasonable person of average disposition
to act rashly and without deliberation and reflection, and from such
14 passion rather than from judgment.” ’ ” (People v. Beltran (2013) 56
Cal. 4th 935, 942 (Beltran).)
15
Appellant relies on People v. Najera (2006) 138 Cal. App. 4th 212
16 (Najera). During the closing argument in Najera, the prosecutor
argued to evaluate heat of passion, the jury must consider whether “a
17 reasonable, ordinary person” would have reacted as the defendant did.
(Id. at p. 223.) The prosecutor stated: “Would a reasonable person do
18 what the defendant did? Would a reasonable person be so aroused as
to kill somebody? That’s the standard.” (Ibid., italics omitted.) In
19 rebuttal, the prosecutor stated: “ ‘[T]he reasonable, prudent person
standard . . . [is] based on conduct, what a reasonable person would
20 do in a similar circumstance. Pull out a knife and stab him? I hope
that’s not a reasonable person standard.’ ” (Ibid.)
21
The Najera court held: “The focus is on the provocation—the
22 surrounding circumstances—and whether it was sufficient to cause a
reasonable person to act rashly. How the killer responded to the
23 provocation and the reasonableness of the response is not relevant to
sudden quarrel or heat of passion.” (Najera, supra, 138 Cal. App. 4th
24 at p. 223.) The prosecutor’s remarks were misleading and a
misstatement of law, but despite the error, the court concluded that no
25 reversal was necessary. (Id. at p. 224.) The court explained that the
remarks did not require a reversal as the victim’s conduct that
26 precipitated the attack did not demonstrate adequate provocation as a
matter of law. (Id. at p. 226.)
27
was not the proper statement of the law under Beltran. “The proper
1 focus is placed on the defendant’s state of mind, not on his particular
act. To be adequate, the provocation must be one that would cause an
2 emotion so intense that an ordinary person would simply react,
without reflection.” (Beltran, supra, 56 Cal. 4th at p. 949, italics
3 omitted.) The prosecutor told the jury that everyone else present did
not react by committing murder. This was improper because it
4 focused on appellant’s actions rather than on his mental state. The
prosecutor’s statement that a reasonable person would not have killed
5 Daniels and Glaspie was improper because it suggested that the jury
should evaluate whether a reasonable person would have acted the
6 way appellant did.
7 We conclude, however, this statement was not prejudicial. The
prosecutor’s other statements about provocation and heat of passion
8 were accurate and to the extent the jury was confused, it was properly
instructed by the court. The court instructed the jury that “defendant
9 killed someone because of a sudden quarrel or heat of passion if the
defendant was provoked. As a result of the provocation the defendant
10 acted rashly and under the influence of intense emotion that obscured
his reasoning or judgment. And the provocation would have caused
11 a person of average disposition to act rashly and without due
deliberation, that is, from passion rather than judgment.” The court
12 further explained that it is not enough that the defendant was
provoked. “The defendant is not allowed to set up his own standard
13 of conduct. In deciding whether provocation is sufficient, consider
whether a person of average disposition in the same situation and
14 knowing the same facts would have reacted from passion rather than
judgment.” We presume that the jury followed those instructions.
15 (People v. Boyette (2002) 29 Cal. 4th 381, 436.)
16 The fact that the jury convicted appellant of the voluntary
manslaughter of Glaspie rather than first degree murder demonstrates
17 the jury understood the court’s instructions and properly applied
them.
18
Furthermore, prior to closing arguments, the court instructed the jury:
19 “Nothing that the attorneys say is evidence. In their opening
statements and closing arguments the attorneys discuss the case, but
20 their remarks are not evidence.” We presume that the “ ‘the jury
treated the court’s instructions as statements of law, and the
21 prosecutor’s comments as words spoken by an advocate in an attempt
to persuade.’ ” (People v. Seaton (2001) 26 Cal. 4th 598, 646.)
22
Appellant argues at length the prosecutor’s statement violated his
23 Sixth and Fourteenth Amendment rights and should be reviewed
under the Chapman standard. “We find that, even if the prosecutor’s
24 argument constituted misconduct, it did not render the trial so
fundamentally unfair that it triggered the Chapman standard. Nor is
25 it reasonably probable that a more favorable result would have been
reached absent the alleged objectionable argument. Reversal is
26 neither warranted nor appropriate. [Citations.]” (People v.
Fernandez (2013) 216 Cal. App. 4th 540, 564.)
27
[Citation.]” (People v. McDowell (2012) 54 Cal. 4th 395, 438.)
1
Id. at *8-10.
2
3. Applicable Federal Law
3
A defendant’s due process rights are violated when a prosecutor’s comments render a trial
4
fundamentally unfair. See Darden v. Wainwright, 477 U.S. 168, 170, 181, 183 (1986); Donnelly
5
v. DeChristoforo, 416 U.S. 637, 643 (1974) (Prosecutor’s remark about defendant’s expectations
6
at trial by itself was not a denial of due process.); Smith v. Phillips, 455 U.S. 209, 219 (1982) (“the
7
touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of
8
the trial, not the culpability of the prosecutor”). However, “the appropriate standard of review for
9
such a claim on writ of habeas corpus is ‘the narrow one of due process, and not the broad exercise
10
of supervisory power.’” Darden, 477 U.S. at 181 (quoting Donnelly, 416 U.S. at 642).
11
A petitioner is not entitled to habeas corpus relief in the absence of a due process violation
12
even if the prosecutor’s comments were “undesirable” or “erroneous.” Donnelly, 416 U.S. at 642.
13
A prosecutorial misconduct claim based on improper statements is decided “on the merits,
14
examining the entire proceedings to determine whether the prosecutor’s remarks so infected the
15
trial with unfairness as to make the resulting conviction a denial of due process.” Johnson v.
16
Sublett, 63 F.3d 926, 929 (9th Cir. 1995) (internal quotation marks omitted); see Trillo v. Biter,
17
769 F.3d 995, 1001 (9th Cir. 2014) (“Our aim is not to punish society for the misdeeds of the
18
prosecutor; rather, our goal is to ensure that the petitioner received a fair trial.”).
19
Even if prosecutorial misconduct occurred, habeas relief is not available unless the
20
constitutional error had a “‘substantial and injurious effect or influence in determining the jury’s
21
verdict.’” Brecht, 507 U.S. at 637-638.
22
4. Analysis
23
Petitioner claims that the prosecutor engaged in misconduct by misstating the law on
24
provocation during rebuttal argument. Dkt. 1 at 27-34. As explained above, the jury was
25
instructed with CALCRIM No. 522, which states in pertinent part, as follows: “Provocation may
26
reduce a murder from first degree to second degree and may reduce a murder to manslaughter.
27
The weight and significance of the provocation, if any, are for you to decide.” 5 CT 1011. In
1 California, heat of passion voluntary manslaughter requires that the provocation be such as would
2 cause an ordinary person “to act rashly and without due deliberation,” and not that the provocation
3 be such as would cause an ordinary person to kill.8 5 CT 1012. Petitioner pointed out that the
4 prosecution initially stated the correct standard, but then misstated the law:
5 [T]he prosecution argued that the jury could not find sufficient
provocation for voluntary manslaughter because the other people in
6 the house “didn’t murder two people.” (16 RT 1423.) It quoted the
proper standard, saying: “In deciding whether the provocation was
7 sufficient consider whether a person of average disposition in the
same situation and knowing the same facts would have acted from
8 passion rather than judgment.” (16 RT 1422.) But it did not stay
with that correct standard.
9
Moments later, it improperly argued that the provocation wasn’t
10 sufficient for manslaughter because no one but appellant “murdered
two people.” It urged: “Everybody at 50 Burr was provoked . . .
11 Everybody was feeling the same emotions . . . everybody there was
upset, was angry, was yelling. . . . Lawyers go back and forth about
12 who the average person or who the reasonable persion [sic] is. But I
would submit to you that a good example would be evidence of every
13 other person at 50 Burr Street. Every other person was in the same
situation. . . . You can decide by looking at the reaction of the average
14 reasonable person, of everyone else, what did they not do? Murder
two people.” (16 RT 1422-1423).
15
Dkt. 1 at 27-28 (brackets added). Thus, this amounted to prosecutorial misconduct in Petitioner’s
16
view.
17
The state appellate court agreed that the challenged statement in the prosecution’s rebuttal
18
was improper, but concluded that it was not prejudicial because “[t]he prosecutor’s other
19
statements about provocation and heat of passion were accurate and to the extent the jury was
20
confused, it was properly instructed by the court.” Wilkins, 2018 WL 4091012, at *9.
21
Petitioner challenges the state appellate court’s finding by arguing that “the [trial] court
22
never addressed the misstatement, so the jury had no way to know that it could not, in fact,
23
24
8 The jury instructions for “Voluntary Manslaughter: Heat of Passion” stated in pertinent
part: “A killing that would otherwise be murder is reduced to voluntary manslaughter if the
25
defendant killed someone because of a sudden quarrel or in the heat of passion. The defendant
killed someone because of a sudden quarrel or in the heat of passion if: (1) The defendant was
26
provoked; (2) As a result of the provocation the defendant acted rashly and under the influence of
intense emotion that obscured his reasoning or judgment; AND (3) The provocation would have
27
caused a person of average disposition to act rashly and without due deliberation that is, from
1 consider whether other people at 50 Burr were moved to kill.” Dkt. 1 at 29. Instead, Petitioner
2 points out that the trial court “did not cure the problem” after defense counsel objected, stating as
3 follows: “It did not tell it which instruction to consult; it did not flag the difference between a
4 standard where a reasonable person would have been moved to kill, and a standard where a
5 reasonable person would have been moved to act out of passion, without deliberation.” Id. at 32.
6 The record shows that that the trial court told the jury that “if counsel states something different
7 from [the court’s] instructions, [the jurors] are to follow [its] instructions.”9 16 RT 1423.
8 Petitioner argues that the trial court’s “response did not cure the error, because improper
9 prosecutorial statements cannot be neutralized by instructions that do not in any way address ‘the
10 specific statements of the prosecutor.’” Dkt. 1 at 32 (quoting United States v. Weatherspoon, 410
11 F.3d 1142, 1151 (9th Cir. 2005)).
12 As mentioned above, even if the prosecutor’s statement was “undesirable,” “erroneous,”
13 or, as in this case, left uncured, it would not entitle Petitioner to habeas corpus relief without a
14 finding of a due process violation. Donnelly, 416 U.S. at 642. Therefore, the issue is not, as
15 Petitioner presents it, whether the prosecution’s misstatement of the law went uncured, but rather
16 whether it had the effect of “infect[ing] the [overall] trial with unfairness.” Johnson, 63 F.3d at
17 929. The state appellate court reasonably found that it did not. See Wilkins, 2018 WL 4091012, at
18 *9-10. In light of the legally correct jury instruction on heat of passion voluntary manslaughter
19 (including the portion on provocation), the trial court’s reminder to jurors that its version of the
20 law controlled, and the overwhelming evidence supporting the convictions (as stated above), the
21 alleged prosecutorial misconduct did not have a “‘substantial and injurious effect or influence in
22 determining the jury’s verdict.’” Brecht, 507 U.S. at 638.
23 Additionally, Respondent urges that the prosecution’s comment should “at worst” be
24 considered “noncomprehensive” since it “did not purport to restate the entire law contained in the
25 trial court’s jury instruction on adequate provocation . . . [and] [i]nstead, the prosecutor argued
26 that others who were present were not provoked to kill.” Dkt. 12-1 at 29. Respondent also points
27
1 out that “the trial court admonished the jury with a reiteration of CALCRIM No. 200 that they
2 were to follow the law as instructed by the trial court.” Id. (citing 16 RT 1423; 5 CT 978). In
3 determining whether a due process violation occurred, “it is appropriate to consider whether the
4 jury was instructed to decide solely on the basis of the evidence rather than counsel’s arguments,
5 and whether the state’s case was strong.” Furman v. Wood, 190 F.3d 1002, 1006 (9th Cir. 1999)
6 (citing Darden, 477 U.S. at 182). The Supreme Court has recognized similar limiting instructions
7 to be presumed effective. Donnelly, 416 U.S. at 645 (no constitutional violation where
8 prosecutor’s statement “was but one moment in an extended trial and was followed by specific
9 disapproving instructions”); see also Brown v. Payton, 544 U.S. 133, 146-147 (2005) (even where
10 prosecutor erroneously argued that jury could not consider defense evidence and trial court did not
11 give immediate curative instruction or expressly inform jury it could consider evidence, “[t]he jury
12 was not left without any judicial direction” as it was advised in closing instructions to consider
13 “all evidence”). This Court must therefore presume that the jury carefully examined the trial
14 court’s instruction on heat of passion voluntary manslaughter (CALCRIM No. 570) and that the
15 jury determined the adequacy of the provocation by considering whether a person of average
16 disposition would have been induced to react from passion, rather than from judgment. Therefore,
17 it was reasonable for the state appellate court to conclude that reversal of the second degree
18 murder conviction for the killing of Daniels was unwarranted because the prosecutor’s
19 misstatement did not so infect the trial with unfairness to amount to a due process violation. See
20 Wilkins, 2018 WL 4091012, at *10.
21 Accordingly, Petitioner is not entitled to the writ on this claim, and Claim 2 is DENIED.
22 C. Cumulative Error
23 Petitioner argues that the cumulative effect of the errors violated his right to a fair trial.
24 The state appellate court determined that the cumulative effect of any trial errors did not violate
25 due process, stating: “We have rejected appellant’s arguments that errors occurred during his trial.
26 Accordingly, we reject his contention that the cumulative effect of the errors requires reversal.”
27 Wilkins, 2018 WL 4091012, at *10.
1 the cumulative effect of several errors may still prejudice a defendant so much that his conviction
2 must be overturned. Alcala v. Woodford, 334 F.3d 862, 893-95 (9th Cir. 2003). However, where
3 there is no single constitutional error existing, as in this case, nothing can accumulate to the level
4 of a constitutional violation. Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011). Accordingly, the
5 || Court finds that the state appellate court was reasonable in its rejecting Petitioner’s claim for
6 cumulative error, and he is not entitled to relief. Therefore, Claim 3 is DENIED.
7 WV. CERTIFICATE OF APPEALABILITY
8 No certificate of appealability is warranted in this case. For the reasons herein, jurists of
9 || reason would not find this Court’s denial of Petitioner’s claims debatable or wrong. See Slack v.
10 || McDaniel, 529 U.S. 473, 484 (2000). Petitioner may not appeal the denial of a Certificate of
11 Appealability in this Court but may seek a certificate from the Ninth Circuit under Rule 22 of the
12 || Federal Rules of Appellate Procedure. See Rule 11(a) of the Rules Governing Section 2254
5 13 Cases.
14 || VI. CONCLUSION
15 For the reasons outlines above, the Court orders as follows:
16 1. All claims from the petition are DENIED, and a certificate of appealability will not
3 17 issue. Petitioner may seek a certificate of appealability from the Ninth Circuit Court of Appeals.
S 18 2. The Clerk of the Court shall terminate any pending motions and close the file.
19 IT IS SO ORDERED.
20 Dated: March 12, 2021
21
DGE YVONN¥ GORZALEZ R@GERS
23 nited States District Judge
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