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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 JEROME SMITH, No. 1:21-cv-1395 DAD AC

12 Petitioner,

13 v. FINDINGS AND RECOMMENDATIONS

14 TAMMY FOSS, Warden,

15 Respondent.

16

17 Petitioner is a California state prisoner proceeding pro se with an application for a writ of

18 habeas corpus pursuant to 28 U.S.C. § 2254. The action proceeds on Claims One, Two and Five

19 of the Second Amended Petition, ECF No. 27, which challenges petitioner’s 2017 conviction for

20 murder and related offenses. Respondent has answered. ECF No. 41. Petitioner did not file a

21 traverse and the time to do so has expired.

22 BACKGROUND

23 I. Proceedings in the Trial Court

24 A. Overview

25 Petitioner was charged in Stanislaus County with first degree murder, arson, and related

26 offenses arising from a 2015 fire in a Modesto hotel room which killed a woman. The case was

27 tried twice. At the first trial in April 2016, the prosecutor pursued a premeditated murder theory;

28 the jury was not instructed on felony murder. The jury found petitioner guilty of unlawful

1 possession of a firearm but could not reach a verdict on the murder and arson charges. The vote

2 on each count was 11 in favor of conviction and 1 in favor of acquittal. A mistrial was declared.

3 Prior to the start of the second trial, which took place in November 2016, the prosecutor decided

4 to withdraw the premeditation theory of first degree murder and proceed only on first degree

5 felony-murder based on arson.

6 B. The Evidence Presented at the Second Trial

7 1. Overview of the Prosecution Case1

8 Sometime around 6:00 a.m. on November 14, 2015, firefighters and law enforcement

9 officers responded to the Arrow Inn in Modesto because of a fire in room No. 108. The motel’s

10 manager reported the room had been rented by Valerie Villegas and petitioner. The motel’s

11 security cameras showed that petitioner and Villegas entered room No. 108 together over one

12 hour before the fire. The cameras showed Villegas never left the room. No one else entered.

13 After the fire started, the security cameras showed petitioner walk out of the room and stand in

14 front of the door as smoke billowed out. Petitioner was the only person who left the room.

15 After the fire was extinguished, Villegas’s body was found in room No. 108’s bathroom.

16 She had been hit in the back of the head three separate times with a blunt object. The autopsy

17 showed that she was still alive, both when she was hit in the head, and when the fire started in the

18 room. The cause of death was smoke inhalation.

19 When petitioner was later interviewed by a detective, he claimed that he did not know

20 Villegas; that Villegas was never in his room; and that another woman, Anastasia Lee, who had

21 been staying in the room next door, had entered the room and woken him up to alert him to the

22 fire. These statements were refuted by the video from the motel’s security cameras.

23 Fire Investigator Paul Spani testified that the burn patterns showed the fire had started

24 inside Room 108. There was no evidence of any accidental cause of fire. Because the mattress

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1 The evidence relevant to petitioner’s sufficiency of the evidence claim is set forth in greater

detail below regarding Claim One. The transcripts of the second trial are contained in the

27 Reporter’s Transcript on Appeal, vol. 3 (“3 RT”) at p. 528 through vol. 5 (“5 RT”) at p. 1086

(ECF No. 39-8 at 190 through ECF No. 39-10 at 177). A detailed summary of the evidence is

28 provided in the opinion of the California Court of Appeal, ECF No. 13-2 at pp. 3-29.

1 and boxspring were the most heavily damaged parts of the room and had burned the longest, the

2 bed was likely the fire’s area of origin. The precise point of origin could not be determined. The

3 debris in the sleeping area included a bullet casing but no cigarette butts; cigarette filters do not

4 burn even in a flashover. No roach clip, pipe, or other drug smoking paraphernalia was found in

5 the fire debris. A “flashover” event had occurred, in which heat and smoke from the initial fire

6 ran up and down the walls of the room and across the ceiling until the entire room became so hot

7 that everything ignited all at once. The bathroom exhibited heat and smoke damage, including

8 blistered paint and melted plastic, but no fire damage.

9 On cross-examination, Investigator Spani said he had been unaware when he wrote his

10 report that a package of filtered cigarettes and a lighter had been found in the bathroom. He also

11 did not know that Villegas had been seen entering Room 108 holding a lit cigarette before the

12 fire. He reiterated that if filtered cigarettes had been used to ignite the sheets or bed, the filters

13 would have survived the fire. The lighter could have been an ignition source used to set the fire

14 in the sleeping area and then moved to the bathroom.

15 2. Defense Case

16 Petitioner did not testify.

17 Nikki Lavan testified that on the night of the fire she was staying in Room 109 of the

18 Arrow Inn, next door to Room 108, with Anastasia Lee and a third woman. Lee was a prostitute

19 and petitioner’s girlfriend. She was angry at petitioner that night because he had left her at a

20 convenience store and she had to walk back to the motel. Lee had stood outside by Rooms 108

21 and 109 and shouted that she was going to “burn this mother[**]er down.”

22 Dr. Avak Howsepian, a psychiatrist, testified in his expert opinion that a person with the

23 quantity of methamphetamine in their system that was found in Villegas would likely suffer from

24 methamphetamine intoxication, and possibly from psychosis or delirium.

25 C. Outcome

26 The jury found petitioner guilty of the first degree murder of Villegas, based on a felony-

27 murder theory, with the special circumstance that the murder was committed while defendant was

28 engaged in the arson of an inhabited structure, and an enhancement for personal use of a firearm.

1 Petitioner was also convicted of arson of an inhabited structure. He was sentenced on these

2 counts together with the conviction from the first trial for unlawful possession of a firearm by a

3 felon. Petitioner was sentenced to life in prison without the possibility of parole on the murder

4 count, plus a consecutive ten year term for the firearm enhancement. Additional sentences on the

5 other counts were imposed and stayed.

6 II. Post-Conviction Proceedings

7 Petitioner timely appealed, and the California Court of Appeal affirmed the judgment of

8 conviction on March 4, 2020. ECF No. 13-2. The California Supreme Court denied review on

9 May 27, 2020. ECF No. 13-4.

10 Petitioner filed a petition for writ of habeas corpus in the Superior Court of Stanislaus

11 County on October 29, 2020, which was summarily denied the next day. ECF Nos. 13-5, 13-6.

12 Petitioner filed another habeas petition in the superior court on May 18, 2021, which was

13 summarily denied on May 24, 2021. ECF Nos. 13-7, 13-8.

14 The original federal habeas petition was docketed on September 10, 2021, together with a

15 motion for a stay pending exhaustion. ECF Nos. 1, 2. The petition was administratively stayed

16 on December 8, 2021, ECF No. 16, and petitioner filed an exhaustion petition in the California

17 Supreme Court on January 13, 2022, ECF No. 29-1. The California Supreme Court denied the

18 petition on May 18, 2022, with citation to People v. Duvall, 9 Cal. 4th 464, 474 (1995) and In re

19 Swain, 34 Cal. 2d 300, 304 (1949). ECF No. 29-2.2 Petitioner filed his second amended federal

20 petition, together with a motion to lift the stay, in June 2022. ECF Nos. 22, 27.

21 The stay was lifted on February 6, 2024, ECF No. 26,3 and the case proceeded on the basis

22 of the Second Amended Petition, ECF No. 27. Respondents moved to dismiss Claims Three,

23 Four and Five on grounds of untimeliness. ECF No. 28. The undersigned recommended that the

24 motion be granted as to Claims Three and Four but denied as to Claim Five. ECF No. 33. The

25 district judge adopted this recommendation. ECF No. 36. Respondent filed an answer addressing

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27 2 Petitioner also filed a petition in the superior court on September 8, 2022, which was denied the

following day. ECF Nos. 29-3, 29-4.

28 3 The delay was caused by repeated judicial reassignments.

1 Claims One, Two and Five. ECF No. 41. Petitioner did not file a traverse and the time for doing

2 so has expired.

3 STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA

4 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of

5 1996 (“AEDPA”), provides in relevant part as follows:

6 (d) An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a state court shall not be

7 granted with respect to any claim that was adjudicated on the merits

in State court proceedings unless the adjudication of the claim –

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

9 unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

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

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

State court proceeding.

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

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

15 (2011). State court rejection of a federal claim will be presumed to have been on the merits

16 absent any indication or state-law procedural principles to the contrary. Id. (citing Harris v. Reed,

17 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a

18 decision appearing to rest on federal grounds was decided on another basis)). “The presumption

19 may be overcome when there is reason to think some other explanation for the state court's

20 decision is more likely.” Id. at 99-100.

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

22 principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade, 538

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

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

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

26 (2013).

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

28 “contradicts the governing law set forth in [the Supreme Court’s] cases.” Williams v. Taylor, 529

1 U.S. 362, 405 (2000). A state court decision “unreasonably applies” federal law “if the state

2 court identifies the correct rule from [the Supreme Court’s] cases but unreasonably applies it to

3 the facts of the particular state prisoner’s case.” Id. at 407-08. It is not enough that the state court

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

5 unreasonable. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003).

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

7 Pinholster, 563 U.S. 170, 180-181 (2011). The question at this stage is whether the state court

8 reasonably applied clearly established federal law to the facts before it. Id. at 181-182. In other

9 words, the focus of the § 2254(d) inquiry is “on what a state court knew and did.” Id. at 182.

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

11 confined to “the state court’s actual reasoning” and “actual analysis.” Frantz v. Hazey, 533 F.3d

12 724, 738 (9th Cir. 2008) (en banc). A different rule applies where the state court rejects claims

13 summarily, without a reasoned opinion. In Richter, supra, the Supreme Court held that when a

14 state court denies a claim on the merits but without a reasoned opinion, the federal habeas court

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

16 subject those arguments or theories to § 2254(d) scrutiny. Richter, 562 U.S. at 102.

17 DISCUSSION

18 I. Claim One: Sufficiency of the Evidence as to Arson

19 A. Petitioner’s Allegations and Pertinent State Court Record

20 Petitioner alleges that his conviction for arson, and therefore also for felony-murder,

21 violates due process. He contends that accidental causes of fire were not ruled out and there was

22 no evidence to support a conclusion that he intentionally set the fire. ECF No. 27 at 5. Relying

23 heavily on the testimony of the fire investigator that neither the cause of the fire nor its precise

24 point of origin could be determined, petitioner argues that the prosecution failed to prove intent

25 beyond a reasonable doubt. Id. at 7.

26 B. The Clearly Established Federal Law

27 Due process requires that each essential element of a criminal offense be proven beyond a

28 reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). In reviewing the sufficiency of

1 evidence to support a conviction, “the relevant question is whether, after viewing the evidence in

2 the light most favorable to the prosecution, any rational trier of fact could have found the essential

3 elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

4 (1979). If the evidence supports conflicting inferences, the reviewing court must presume “that

5 the trier of fact resolved any such conflicts in favor of the prosecution,” and the court must “defer

6 to that resolution.” Id. at 326. “A reviewing court may set aside the jury’s verdict on the ground

7 of insufficient evidence only if no rational trier of fact could have agreed with the jury.” Cavazos

8 v. Smith, 565 U.S. 1, 2 (2011) (per curiam).

9 C. The State Court’s Ruling

10 This claim was raised on direct appeal. Because the California Supreme Court denied

11 discretionary review, the opinion of the California Court of Appeal constitutes the last reasoned

12 decision on the merits and is the subject of habeas review in this court. See Ortiz v. Yates, 704

13 F.3d 1026, 1034 (9th Cir. 2012); Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991).

14 The Court of Appeal first addressed two preliminary evidentiary issues raised by

15 petitioner in relation to his challenge to the sufficiency of the evidence: (1) that Investigator

16 Spani’s testimony must be disregarded because he did not qualify as an expert, his testimony was

17 limited to the examination of physical evidence he found at the scene, he was not permitted to

18 testify about his opinion on the cause of the fire, and his investigation did not comply with

19 recognized standards; and (2) that petitioner’s statements from his pretrial interview with

20 Detective Buck could not be considered because the prosecution had failed to establish the corpus

21 delicti for arson—that the fire was of an incendiary origin—independently of the statements.

22 ECF No. 13-2 at 31. The court rejected both contentions under California law. ECF No. 13-2 at

23 32-40.

24 On the merits of the sufficiency of evidence issue, the court ruled as follows:

25 We turn now to defendant’s contention that there is insufficient

evidence as a matter of law to support his conviction in count 2 for

26 arson. Defendant further argues that since there is insufficient

evidence for count 2, there is also insufficient evidence to support

27 his conviction in count 1 for felony murder based on arson, and the

jury’s true finding on the arson-murder special circumstance.

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1 A. Substantial Evidence

2 “In addressing a challenge to the sufficiency of the evidence

supporting a conviction, the reviewing court must examine the

3 whole record in the light most favorable to the judgment to

determine whether it discloses substantial evidence - evidence that

4 is reasonable, credible and of solid value - such that a reasonable

trier of fact could find the defendant guilty beyond a reasonable

5 doubt. [Citation.] The appellate court presumes in support of the

judgment the existence of every fact the trier could reasonably

6 deduce from the evidence. [Citations.]” (People v. Kraft (2000) 23

Cal.4th 978, 1053.)

7

“‘Conflicts and even testimony [that] is subject to justifiable

8 suspicion do not justify the reversal of a judgment, for it is the

exclusive province of the trial judge or jury to determine the

9 credibility of a witness and the truth or falsity of the facts upon

which a determination depends. [Citation.] We resolve neither

10 credibility issues nor evidentiary conflicts; we look for substantial

evidence. [Citation.]’ [Citation.] A reversal for insufficient

11 evidence ‘is unwarranted unless it appears “that upon no hypothesis

whatever is there sufficient substantial evidence to support”’ the

12 jury’s verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th

327, 357.)

13

“The same standard applies when the conviction rests primarily on

14 circumstantial evidence. [Citation.] Although it is the jury’s duty to

acquit a defendant if it finds the circumstantial evidence susceptible

15 of two reasonable interpretations, one of which suggests guilt and

the other innocence, it is the jury, not the appellate court that must

16 be convinced of the defendant’s guilt beyond a reasonable doubt.

[Citation.]" (People v. Kraft, supra, 23 Cal.4th at pp. 1053- 1054.)

17 We “must accept logical inferences that the jury might have drawn

from the circumstantial evidence. [Citation.]” (People v. Maury

18 (2003) 30 Cal.4th 342, 396.)

19 “Where the circumstances reasonably justify the trier of fact’s

findings, a reviewing court’s conclusion the circumstances might

20 also reasonably be reconciled with a contrary finding does not

warrant the judgment’s reversal. [Citation.]” (People v. Zamudio,

21 supra, 43 Cal.4th at p. 358.)

22 B. Section 451

23 As set forth above, “[a] person is guilty of arson when he or she

willfully and maliciously sets fire to or bums or causes to be burned

24 or who aids, counsels, or procures the burning of, any structure,

forest land, or property.” (§ 451.)

25

“Arson’s malice requirement ensures that the act is ‘done with a

26 design to do an intentional wrongful act ... without any legal

justification, excuse or claim of right.’ [Citation.] Its willful and

27 malice requirement ensures that the setting of the fire must be a

deliberate and intentional act, as distinguished from an accidental or

28 unintentional ignition or act of setting a fire; ‘“in short, a fire of

1 incendiary origin.’” [Citations.] ‘Because the offensive or

dangerous character of the defendant’s conduct, by virtue of its

2 nature, contemplates such injury, a general criminal intent to

commit the act suffices to establish the requisite mental state.’

3 [Citation.] Thus, there must be a general intent to willfully commit

the act of setting on fire under such circumstances that the direct,

4 natural, and highly probable consequences would be the burning of

the relevant structure or property. [Citations.]” (People v. Atkins

5 (2001) 25 Cal.4th 76, 88-89; In re V.V. (2011) 51 Cal.4th 1020,

1029.)

6

The lack of direct or eyewitness evidence to establish a defendant’s

7 guilt does not render a jury’s guilty verdict for arson deficient.

(People v. Maler (1972) 23 Cal.App.3d 973, 982-983.) Arson is

8 generally “committed in stealth, without warning and often under

the cloak of darkness,” so that “perpetrators of such clandestine acts

9 frequently escape detection by human eye.” (People v. Andrews,

supra, 234 Cal.App.2d at p. 75.) “‘The very nature of the crime of

10 arson ordinarily dictates that the evidence will be circumstantial.

[Citation.]’ [Citation.] Consequently, the lack of an eyewitness

11 placing defendant at the scene or other direct evidence to establish

his guilt does not render the jury’s verdict of guilty of arson

12 constitutionally deficient. [Citation.]” (People v. Solis (2001) 90

Cal.App.4th 1002, 1010.) “Circumstantial evidence may be relied

13 upon to establish culpability for arson. [Citation.]” (People v.

Belton (1980) 105 Cal.App.3d 376, 379- 380 (Belton).)

14

“[R]evenge and vindictiveness are principal motives for arson

15 [citation].” (People v. Atkins, supra, 25 Cal.4th at p. 92.) “A typical

arson is almost never the product of pyromania [citations]. Instead,

16 ‘it often is an angry impulsive act, requiring no tools other than a

match or lighter, and possibly a container of gasoline.’ [Citation.]

17 ‘Arson is one of the easiest crimes to commit on the spur of the

moment ... it takes only seconds to light a match to a pile of clothes

18 or a curtain.’ [Citation.]” (Id. at pp. 91-92.)

19 C. Analysis

20 Defendant asserts his arson conviction must be reversed because

there is insufficient evidence he intentionally and deliberately set

21 the fire since the cause was undetermined, an accident could not be

ruled out, and there was no evidence the fire was of an incendiary

22 origin. As explained in issues I and II, ante, the People established

the corpus delicti of arson and defendant’s pretrial statements were

23 admissible, the court did not exclude fire investigator’s testimony

about his investigation and the fire’s area of origin, the expert’s

24 testimony about the investigation and various hypotheticals was

properly admitted, and both the fire investigator’s testimony and

25 defendant’s pretrial statements may be considered to determine

whether his arson conviction is supported by substantial evidence.

26

At trial, the People relied on the felony-murder theory of arson

27 arguing defendant hit Villegas in the head with the gun, leaving her

unconscious, and starting the fire with the specific intent to kill her

28 because he knew she could identify him.

1 In the defense closing argument, counsel argued the evidence

presented three reasonable possibilities about what happened inside

2 room No. 108, and defendant relies on these same theories on

appeal: (1) Lee had a motive to set the fire because she was mad at

3 defendant and repeatedly kicked the door to room No. 108; and Lee

started the fire by throwing a lit cigarette through room No. 108’s

4 window; the window was only a few feet from the bed, and it

ignited the bed while defendant was asleep; (2) the fire accidentally

5 started if defendant was smoking a marijuana cigarette and fell

asleep, since the unfiltered cigarette would have been consumed by

6 the flames. Defendant admitted he used marijuana, and the fire

investigator did not know about the lighter found in the room; or (3)

7 Villegas started the fire because there was more physical evidence

that tied her to that room instead of defendant; the lighter and the

8 package of cigarettes were found near her body; she ignited the bed

while defendant was asleep because she was upset with him;

9 Villegas likely opened room No. 108’s door when the fire started

even though she was not shown on the security video; she had a

10 potentially toxic level of methamphetamine in her system that could

have made her disoriented; she was too confused to run out and

11 instead went back into the bathroom, fell down, hit her head on one

of the surfaces, and was left unconscious while the fire consumed

12 the room. Counsel discounted the argument that defendant used the

gun to hit Villegas on the head, since defendant would have likely

13 put the gun in his pocket, the gun was found in Villegas’s purse,

and there were no unique marks to connect the gun to the head

14 injuries.

15 There is strong and, indeed, overwhelming evidence, albeit of a

circumstantial nature, that defendant intentionally set the fire inside

16 room No. 108. The small room measured approximately 10.5 feet

by 16.5 feet. There was one door and one window that were under

17 constant video surveillance for the relevant time. There were only

two people inside the room when the fire started - defendant and

18 Villegas. Defendant was the only person who emerged from the

room after the fire started and he initially acted without any sense

19 of urgency.

20 Defendant repeatedly claimed in his pretrial statement that he did

not know Villegas and had no idea she was in the room. The motel

21 manager refuted this assertion, and testified defendant told him

someone was going to rent a room for him. The manager identified

22 Villegas as the woman who later arrived at the motel and said she

was getting a room for J-Rock, using defendant’s nickname. While

23 the manager said Villegas used another name, he positively

identified Villegas from her photograph. The manager gave her the

24 cardkey to room No. 108, and she paid for a second night. A few

hours before the fire, defendant arrived at the motel, paid for yet

25 another night for that same room, and the manager gave him a

cardkey to room No. 108.

26

Defendant asserts his actions as seen on the motel’s security video

27 are insufficient to support his conviction, even considering his

conduct after he opened the door and the heavy smoke came out of

28 room No. 108. To the contrary, the most compelling evidence

1 against defendant was the security video, which we have

extensively addressed in the factual statement.4 It shows defendant

2 and Villegas knew each other, they talked, they walked into room

No. 108 together, they were in the room when the fire started, and

3 Villegas never left the room.

4 The video also showed that after Villegas went into room No. 108,

and prior to the fire, defendant came out of the room and talked

5 with Lee in the driveway. Defendant and Lee clearly knew each

other and had what appeared to be a heated conversation. Defendant

6 went into room No. 108, closed the door, and did not emerge again

until after the fire started. Lee went in and out of room No. 109,

7 stood in front of both rooms, knocked and kicked on room No.

108’s door, knocked on the window, and tried to look into the

8 window and open it. While defendant argued at trial, and on appeal,

that Lee may have started the fire by throwing something into room

9 No. 108, the video showed Lee never went inside the room; she

never opened the room's door or window; and she did not appear to

10 push or throw anything through the window.

11 Neither Lee nor anyone else was standing outside room No. 108

when defendant ultimately opened the door, smoke poured out of

12 the room, and he walked onto the doorstep. Defendant calmly stood

in front of the open door with his hands in his pockets as smoke

13 continued to billow out. He did not knock on the doors of any

adjacent rooms, use a phone to call for help, or appear to shout or

14 yell for assistance. Instead, he just stood there as the smoke poured

out of the room and surrounded him. At some point, defendant

15 turned, looked inside, went back into the room, and emerged with a

burning blanket, and then went back and dragged out a burning

16 sheet. He shook both items and stamped out the flames on the

driveway pavement. Defendant did not appear to act with any

17 urgency, and he still did not go to any of the motel rooms to ask for

help or appear to call out in any way.

18

Defendant made another attempt to go into the room but was

19 apparently pushed back by the flames and smoke. At that point, he

left room No. 108 and disappeared from the video, just as other

20 people arrived at burning room as flames shot out of the doorway.

After defendant left, Lee and the other occupants of room No. 109

21 ran out of their room, and Lee also disappeared from the video.

Another security camera showed defendant and Lee driving away

22 from the motel. Defendant did not talk to the police or firefighters

or notify them that another person was in the room.

23

The fire investigator determined the fire’s area of origin was the

24 bed. The bed had been pulled away from the wall, the mattress had

been moved so that it was at an angle on top of the box spring, and

25 the gun and Villegas's purse were found at the base of the box

spring near the wall. It was entirely reasonable for the jury to

26 conclude that defendant suddenly went back into the room in an

effort to retrieve the gun, that he moved the mattress and box spring

27 and dragged the burning sheet and blanket outside to look for the

28 4 See ECF No. 13-2 at 5-11 (detailing surveillance video evidence).

1 weapon. The gun and perhaps the purse could have fallen off the

burning bed when he did so.

2

Defendant argues the People improperly relied on a speculative

3 argument that he set the fire, based on the allegedly false premise

that Villegas was rendered unconscious from the blows to her head

4 before the fire started. Defendant asserts the pathologist could not

determine “with any degree of reasonable medical certainty” that

5 Villegas was unconscious when the fire started, and it was possible

she could have started the fire. The evidence belies these assertions.

6 Villegas’s body was found in the small bathroom in the back of

room No. 108. There was no evidence that the fire started in the

7 bathroom, or that it even burned there. Villegas’s clothing had not

been burned or singed, and there was no evidence she had been

8 dragged in or out of the bathroom. Villegas had suffered three

separate blows to the back of her head that were inflicted by a blunt

9 object. The pathologist testified that she was alive when she was

assaulted based on the bleeding from the back of her head, and

10 opined it was possible these blows left her unconscious.

11 The pathologist further testified that while there were no specific

patterns on the back of her head, it was “possible” the three blows

12 were inflicted with the butt of the gun found in the room, since the

butt was a blunt object with a linear shape.

13

Detective Buck testified the dimensions of the gun’s handle were

14 consistent with the size of each laceration on the back of Villegas’s

head, and he did not find anything else in the bathroom that looked

15 consistent with having inflicted those injuries. Again, defendant and

Villegas were the only people in that room, and the circumstantial

16 evidence points to defendant as the perpetrator of both the assault

and the fire.

17

Defendant asserts the potentially toxic level of methamphetamine in

18 Villegas’s system was a possible cause of death. The defense expert

testified Villegas could have been left unconscious because of her

19 methamphetamine use, but the pathologist testified she was still

alive when she was hit on the head and also when the fire started.

20 He testified that she died from smoke inhalation based on the soot

in her respiratory system, and further testified, without

21 contradiction, there would not have been any soot in her respiratory

system if she was dead before the fire started.

22

Defendant makes much of the fire inspector’s failure to determine

23 the fire’s specific point of origin, and the court’s agreement -

pursuant to the stipulation of the parties - to limit his testimony so

24 that he could not testify to an opinion as to whether the cause was

incendiary. As explained in issue I, ante, the fire inspector was

25 properly allowed to testify about his inspection of the room and the

investigation of the burned contents, and the jury was properly

26 instructed on the consideration of his testimony. He determined the

fire’s area of origin was the bed, a flashover event occurred, and the

27 flashover would have been exacerbated when the door was opened

because of the additional oxygen. The material covering the

28 mattress and box spring was almost completely consumed by fire,

1 and they were burned down to the springs. The other items in the

sleeping area - the tires and rims, the dresser, and the speaker box -

2 showed the most fire damage on the sides that faced the bed. The

fire investigator ruled out an accidental cause from the electrical

3 appliances and outlets. He found no evidence of cigarette butts in

the sleeping area and explained that a cigarette butt would not have

4 been completely destroyed, even in a flashover event.

5 Defendant complains the fire investigator’s testimony was

unreliable because he did not know about the Bic lighter, the pack

6 of cigarettes, and the cigarette butt found in the bathroom.

Defendant further argues that evidence leads to the reasonable

7 inference the fire was accidental, and was started by a smoldering,

unfiltered cigarette that he left on the bed when he fell asleep.

8 Defendant asserts this theory is consistent with the fire

investigator’s failure to rule out an accidental fire; a marijuana

9 unfiltered cigarette would have been consumed by the fire; and

defendant said in his pretrial statement that he was “smoking

10 marijuana.”

11 Defendant’s arguments are refuted by the evidence. The fire

investigator acknowledged that in contrast to a filtered cigarette, an

12 unfiltered or marijuana cigarette would have been completely

consumed by the fire. He did not know a lighter and a cigarette butt

13 had been found anywhere in room No. 108. However, the evidence

is undisputed that the package of filtered cigarettes and the only

14 cigarette butt were found inside a plastic bag that was recovered

from the top of the toilet in the bathroom, and there was no

15 evidence that the fire started or even burned in the bathroom.

16 Moreover, the fire investigator’s admission that he did not know

about the cigarette butt and the lighter is far outweighed by the

17 importance of defendant’s own statements during his pretrial

interview with Detective Buck. In contrast to defendant’s appellate

18 arguments, there was no evidence defendant was smoking

marijuana or anything else in the room before the fire started, and

19 he repeatedly denied engaging in any activities that could have

accidentally started the fire.

20

During the pretrial interview, Detective Buck asked defendant

21 about his drug use. Defendant said he used cocaine and smoked

marijuana “every now and then,” and the following exchange

22 ensued:

23 “Buck: On Saturday, before you went to bed, before all this

happened, did you use?

24

“[Defendant]: No sir.

25

“Buck: No weed?

26

“[Defendant]: Yea I smoked some weed.

27

“Buck: How much did you smoke?

28

1 “[Defendant]: Um bout normal?

2 “Buck: Normal? I mean.

3 “[Defendant]: Normal like 4-5 blunts.

4 “Buck: 4-5 blunts? That's normal for you?

5 “[Defendant]: Not yeah not like back to back to back like.

6 “Buck: Throughout the night?

7 “[Defendant]: Through the day.” (Italics added, capitalization

omitted.)

8

Defendant further said that he did not smoke in the room, and he

9 “didn’t even have a lighter.” (Capitalization omitted.) Defendant

claimed he “passed out” and fell asleep in room No. 108 while

10 waiting for someone and had no idea how the fire started.

Defendant’s own statements thus undermine any claim that he used

11 a lighter or smoked a marijuana cigarette when he was in room No.

108 before the fire started.

12

Defendant argues the People failed to prove beyond a reasonable

13 doubt that he was the perpetrator. Defendant asserts “it is equally

reasonable, and more consistent with the evidence,” to infer

14 Villegas started the fire in retaliation for being hit in the head by

defendant, that she used the Bic lighter to ignite the bedding, that

15 she retreated to the bathroom with the lighter and became

unconscious either because of her methamphetamine use or from

16 smoke inhalation. Defendant asserts this theory is more reasonable

since it is consistent with the discovery of the Bic lighter near

17 Villegas’s body and his “uncontradicted statements” during the

pretrial interview “that he was sleeping on the bed when the fire

18 started.” Defendant further argues the motel’s security video

“confirmed much” of what he said during the pretrial interview -

19 that he ran out of the door and began asking for help.

20 As set forth above, defendant’s statements during the pretrial

interview, particularly his repeated claim that he did not know

21 Villegas or how she got into his room, are inculpatory and are

completely undermined by the contrary visual evidence from the

22 security video and by the motel manager’s testimony that Villegas

said she was renting a room for defendant, and defendant later

23 arrived and was given the key to room No. 108. The video clearly

showed Lee never got into the room or warned him about the fire.

24

Finally, defendant argues that even if his own pretrial statements

25 are considered, they are still insufficient to support his arson

conviction:

26

“There could be a variety of reasons why [defendant] would

27 not want to implicate someone else in this crime. However,

his failure to implicate someone else does not implicate him.

28 In other words, the fact that [defendant] did not tell police

1 that someone else set the fire does not prove he set the fire.

Simply pointing to an absence of evidence is not proof of

2 absence. This reasoning ... is known as an ... argument from

ignorance, in which the prosecution used an absence of

3 evidence for an asserted premise as proof of the opposite

premise; i.e., [defendant] must have started the fire because

4 he didn't say, and we couldn't prove, anyone else did it. This

is not proof beyond a reasonable doubt.”

5

In making these arguments, defendant acknowledges this court

6 cannot reweigh the evidence, but still asserts there was “at most” a

“coin flip” or “50 percent probability” that he started the fire and it

7 was of an incendiary origin, which is insufficient to support a

conviction.

8

However, “[w]here, as here, the jury’s findings rest to some degree

9 upon circumstantial evidence, we must decide whether the

circumstances reasonably justify those findings, ‘but our opinion

10 that the circumstances also might reasonably be reconciled with a

contrary finding’ does not render the evidence insubstantial.

11 [Citation.]” (People v. Earp (1999) 20 Cal.4th 826, 887-888.)

Defendant’s appellate assertions are “arguments to be made to a

12 jury, not to an appellate court. Defendant in effect requests us to

reweigh and reinterpret the evidence in a manner consistent with

13 innocence of the crime .... But such a determination is the function

of the trier of fact; at this stage the test is not whether the evidence

14 may be reconciled with innocence, but whether there is substantial

evidence in the record on appeal to warrant the inference of guilt

15 drawn by the trier below. [Citation.]” (People v. Saterfield (1967)

65 Cal.2d 752, 759; People v. Gaulden (1974) 36 Cal.App.3d 942,

16 962-963.) “‘If such substantial evidence [is] found, it is of no

consequence that the [trier of fact] believing other evidence, or

17 drawing other reasonable inferences, might have reached a contrary

conclusion.’ [Citation.]” (People v. Ortiz (2012) 208 Cal.App.4th

18 1354, 1363.)

19 We find defendant’s conviction for arson is supported by

substantial evidence. As a result, we similarly reject his related

20 arguments that his conviction for felony murder based on arson and

the jury’s true finding on the arson-murder special circumstance

21 must be reversed.

22 ECF No. 13-2 at 41-51.

23 D. Objective Reasonableness Under § 2254(d)

24 The state court’s rulings on the preliminary evidentiary issues related to Inspector Spani’s

25 testimony and petitioner’s pretrial statements are not subject to review in this court. Evidentiary

26 matters are exclusively issues of state law, see Estelle v. McGuire, 502 U.S. 62, 67 (1991), and

27 this court must defer to state court rulings on state law matters, Bradshaw v. Richey, 546 U.S. 74,

28 76 (2005) (federal habeas court is bound by a state court’s interpretation of state law).

1 Accordingly, this court’s review of petitioner’s Jackson claim proceeds on the basis of the entire

2 evidentiary record considered by the state court.

3 The California standards for substantial evidence review recited by the Court of Appeal,

4 ECF No. 13-2 at 41-42, comport fully with Jackson and progeny. See Early v. Packer, 537 U.S.

5 3, 8 (2002) (even where state court fails to cite federal authority, its decision must be upheld “so

6 long as neither the reasoning nor the result of the state-court decision contradicts” clearly

7 established United States Supreme Court authority). The undersigned finds that these standards

8 were applied reasonably. The California Court of Appeal was not merely permitted but required

9 by U.S. Supreme Court precedent to defer to the jury’s inferences as to the existence of an

10 “incendiary event,” petitioner’s responsibility for setting the fire, and his intent. See Jackson v.

11 Virginia, 443 U.S. at 326 (where evidence supports conflicting inferences, reviewing court must

12 presume “that the trier of fact resolved any such conflicts in favor of the prosecution,” and the

13 court must “defer to that resolution.”); see also Juan H. v. Allen, 408 F.3d 1262, 1274, 1275 & n.

14 13 (9th Cir. 2005). It did so entirely in line with clearly established federal law.

15 That a competing theory of the evidence can also be articulated does not make the jury’s

16 conclusion irrational, as petitioner urges. See Cavazos, 565 U.S. at 2 (standard is whether any

17 rational trier of fact could have agreed with the jury, not whether an alternative theory was also

18 supported by evidence and permissible inferences); see also United States v. Toro-Barboza, 673

19 F.3d 1136, 1145 (9th Cir. 2012) (Jackson satisfied where there is “a plausible chain of logic to

20 support the jury’s verdict”). It is indisputable that a conviction may rest entirely on

21 circumstantial evidence and inferences drawn from it. Walters v. Maass, 45 F.3d 1355, 1358 (9th

22 Cir. 1995). The inferences drawn by the jury from the evidence in this case, regarding both

23 causation and intent, are no less rational than those which were held constitutionally sufficient to

24 support a murder verdict in Cavazos, supra. In that case a grandmother was convicted of the

25 murder of her infant grandchild on a “shaken baby” theory, despite the absence of any direct

26 evidence of child abuse or homicide; the defense case was significantly stronger in that case than

27 here. If the conviction in Cavozos survives federal habeas scrutiny under Jackson, which the U.S.

28 Supreme Court said that it does, petitioner cannot prevail on the facts of this case. Particularly in

1 light of the “double dose of deference” to the verdict that is required under Jackson and the

2 AEDPA, Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011), federal habeas relief is

3 unavailable.

4 II. Claim Two: Ineffective Assistance of Counsel

5 A. Petitioner’s Allegations and Pertinent State Court Record

6 Petitioner alleges that his trial counsel provided constitutionally defective representation

7 by failing to object to the prosecutor’s closing argument regarding reasonable doubt. ECF No. 27

8 at 9-11. In closing, the prosecutor reviewed the details of petitioner’s pretrial statements about

9 how he discovered the room was on fire, and argued that his version was refuted by the security

10 video and other evidence. She continued:

11 There is not a reasonable doubt as to who started the fire. And

ultimately, that’s what we care about in a criminal case, reasonable

12 doubt. [The court] told you, and you have to accept this, anything in

life is possible or subject to imaginary doubt. You can imagine any

13 kind of way that this fire started, but we only care about, in a

criminal case, a reasonable explanation.

14

There’s no reasonable explanation for this fire. And if there’s no

15 reasonable explanation, you have no reasonable doubt as to how the

fire started. Remember that. It’s about reasonableness….

16

There’s not a reasonable explanation, but for this man had to get rid

17 of a problem and he set a fire, watched it grow, and then took off

and then lied about it, and it killed [Villegas].

18

19 5 RT 1031-1032 (ECF No. 39-10 at 81-82).

20 After addressing the evidence in support of felony-murder and the arson-murder special

21 circumstance, she returned to reasonable doubt:

22 Now, I want to tell you one more time, in a criminal case, we’re

only talking about reasonable doubt. You’ve probably heard maybe

23 on TV or, you know, talking to your friends, you’ve probably heard

phrases like “beyond a shadow of a doubt,” “without any possible

24 doubt,” “100 percent certainty.” Those are not things we care about

in a criminal case. The Judge told you, you have to accept as true

25 everything in life is subject to imaginary doubt. So that’s why we

only care about what’s reasonable. And that’s where you get to use

26 your collective common sense, your collective minds. Think about

what’s reasonable.

27

If there’s no reasonable explanation for this fire, other than this man

28 set the fire to get rid of his problem, and [Villegas] died in that fire,

1 there’s no reasonable doubt. So when you’re deliberating together

… keep that in mind. Say to yourselves … [w]e care about what’s

2 reasonable. Not about what’s imaginary or what’s possible. We

don’t care about what’s possible. If it’s not reasonable, you have no

3 reasonable doubt in the case.

4 5 RT 1037 (ECF No. 39-10 at 87).

5 The prosecutor referred the jury to the court’s instruction on reasonable doubt and

6 added, “the evidence need not eliminate all possible doubt. There’s no reasonable explanation.”

7 5 RT 1038 (ECF No. 39-10 at 88).

8 Defense counsel argued in closing that the prosecution had failed to meet its burden of

9 proving the charges beyond a reasonable doubt, which was a very high burden. Counsel

10 extensively addressed the definitions of the presumption of innocence and reasonable doubt in the

11 jury instructions, and argued the jury had to find petitioner was not guilty. Counsel argued that

12 the prosecutor was relying on assumptions and not evidence about what happened. He

13 emphasized the absence of physical or direct evidence that petitioner intentionally set the fire, and

14 cautioned the jury against relying on circumstantial evidence to reach unsupported conclusions.

15 In rebuttal, the prosecutor again reviewed the evidence and argued that only defendant

16 could have hit Villegas in the head and started the fire. She contended that although defense

17 counsel had suggested “possible” scenarios of what happened,

18 We don’t care about what’s possible. We care about what’s

reasonable. That’s why the Judge read you the reasonable doubt

19 instruction more than one time. It’s not reasonable that [Villegas]

bashed herself in the head three times and lay on the bathroom

20 floor. That’s not reasonable. It’s not reasonable, after watching the

video of [Lee], to think that she managed to get a cigarette in there.

21 It’s not reasonable to think that this was an accidental fire based on

the fact that there was nothing left that would have started the fire.

22 No cigarette filter. Those survive…. [¶] None of those are

reasonable. That means you have no reasonable doubt in this case.

23

24 5 RT 1068-1069 (ECF No. 39-10 at 118-119).

25 B. The Clearly Established Federal Law

26 To establish a constitutional violation based on ineffective assistance of counsel, a

27 petitioner must show (1) that counsel’s representation fell below an objective standard of

28 reasonableness, and (2) that counsel’s deficient performance prejudiced the defense. Strickland v.

1 Washington, 466 U.S. 668, 692, 694 (1984). Prejudice means that the error actually had an

2 adverse effect on the defense. There must be a reasonable probability that, but for counsel's

3 errors, the result of the proceeding would have been different. Id. at 693-94. The court need not

4 address both prongs of the Strickland test if the petitioner’s showing is insufficient as to one

5 prong. Id. at 697. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of

6 sufficient prejudice, which we expect will often be so, that course should be followed.” Id.

7 C. The State Court’s Ruling

8 This claim was raised on direct appeal, and the opinion of the California Court of Appeal

9 is therefore the subject of federal habeas review. See Ortiz, 704 F.3d at 1034.

10 The appellate court ruled in pertinent part as follows:

11 Defendant contends the prosecutor misstated the People’s burden of

proof in closing argument by comparing it to whether defendant

12 gave a reasonable explanation for his actions. Defendant concedes

defense counsel did not object to the prosecutor’s argument, and

13 asserts counsel was prejudicially ineffective for failing to do so.

14 We review the well-settled standards for prosecutorial misconduct,

and the portions of the prosecutor’s argument relied upon by

15 defendant.

16 A. Prosecutorial Misconduct

17 “A prosecutor’s misconduct violates the Fourteenth Amendment to

the federal Constitution when it ‘infects the trial with such

18 unfairness as to make the conviction a denial of due process.’

[Citations.] In other words, the misconduct must be ‘of sufficient

19

significance to result in the denial of the defendant’s right to a fair

20 trial.’ [Citation.] A prosecutor's misconduct ‘that does not render a

criminal trial fundamentally unfair’ violates California law ‘only if

21 it involves “‘the use of deceptive or reprehensible methods to

attempt to persuade either the court or the jury.’”’[Citations.]”

22 (People v. Harrison (2005) 35 Cal.4th 208, 242.)

23 “When attacking the prosecutor’s remarks to the jury, the defendant

must show that, ‘[i]n the context of the whole argument and the

24 instructions’ [citation], there was ‘a reasonable likelihood the jury

understood or applied the complained-of comments in an improper

25 or erroneous manner. [Citations.] In conducting this inquiry, we “do

not lightly infer” that the jury drew the most damaging rather than

26 the least damaging meaning from the prosecutor’s statements.

[Citation.]’ [Citations.]” (People v. Centeno (2014) 60 Cal.4th 659,

27 667 (Centeno).) The court must consider the challenged statements

in the context of the argument as a whole to make its determination.

28 (People v. Cowan (2017) 8 Cal.App.5th 1152, 1159.)

1 B. Failure to Object

2 “[I]t is improper for the prosecutor to misstate the law generally

[citation], and particularly to attempt to absolve the prosecution

3 from its prima facie obligation to overcome reasonable doubt on all

elements [citation].” (People v. Marshall (1996) 13 Cal.4th 799,

4 831; Centeno, supra, 60 Cal.4th at pp. 665-667 .)

5 “A prosecutor's misstatements of law are generally curable by an

admonition from the court. [Citation.]” (Centeno, supra, 60 Cal.4th

6 at p. 674.) “As a general rule, ‘“[a] defendant may not complain on

appeal of prosecutorial misconduct unless in a timely fashion, and

7 on the same ground, the defendant objected to the action and also

requested that the jury be admonished to disregard the perceived

8 impropriety.”’ [Citations.] The defendant’s failure to object will be

excused if an objection would have been futile or if an admonition

9 would not have cured the harm caused by the misconduct.

[Citation.]” (Ibid.)

10

Defendant concedes his attorney did not object to any portion of the

11 prosecutor’s closing argument. As a result, he has forfeited his

direct challenge based on prosecutorial misconduct.

12

C. Ineffective Assistance

13

In the alternative, defendant asserts counsel was prejudicially

14 ineffective for failing to do so. “‘A defendant whose counsel did

not object at trial to alleged prosecutorial misconduct can argue on

15 appeal that counsel’s inaction violated the defendant’s

constitutional right to the effective assistance of counsel.’

16 [Citation.] ... [Defendants] bear[] the burden of showing by a

preponderance of the evidence that (1) counsel’s performance was

17 deficient because it fell below an objective standard of

reasonableness under prevailing professional norms, and (2)

18 counsel’s deficiencies resulted in prejudice. [Citations.]” (Centeno,

supra, 60 Cal.4th at p. 674, quoting Stricklandv. Washington (1984)

19 466 U.S. 668, 688, 694.)

20 D. The Prosecutor’s Closing Argument

21 [….]5

22 E. Centeno and Cortez

23 Defendant argues that in the italicized excerpts quoted above, the

prosecutor misstated the reasonable doubt standard by equating it to

24 whether there was a reasonable explanation for what happened in

the case, and that such argument erroneously diluted the People’s

25 burden of proof.

26 Defendant’s arguments are based on Centeno, supra, 60 Cal.4th

27

5 The pertinent portions of closing arguments, all quoted by the Court of Appeal, have been set

28 forth above under the heading of Petitioner’s Allegations and Pertinent State Court Record.

1 659, where the California Supreme Court reversed the defendant’s

convictions after finding the prosecutor misstated the burden of

2 proof in rebuttal argument. In that case, the defendant was

convicted of multiple offenses for sexually assaulting a seven-year-

3 old child, who gave inconsistent testimony and refused to answer

many questions at trial. (Id. at pp. 662-664.) On appeal, the

4 defendant argued the prosecutor committed prejudicial misconduct

by misstating the burden of proof in rebuttal argument. The

5 defendant conceded that his attorney failed to object and raised

ineffective assistance as an alternative argument. (Id. at p. 674.)

6

Centeno held the prosecutor misstated the burden of proof in two

7 separate instances in rebuttal argument.

8 1. Visual Display

9 [Omitted.]

10 2. Whether the Prosecution’s Theory was “Reasonable”

11 Centeno separately held the prosecutor misstated the burden of

proof in another section of rebuttal argument when she “strongly

12 implied that the People’s burden was met if its theory was

‘reasonable’ in light of the facts supporting it.” (Centeno , supra, 60

13 Cal.4th at p. 671.)

14 [….]

15 3. Prejudice

16 Centeno held defense counsel was ineffective for failing to object to

both the prosecutor’s use of the diagram and the hypothetical, and

17 also her argument about a reasonable interpretation of the evidence,

because both “problems with the prosecutor’s argument were not

18 difficult to discern," and counsel required “no authority ... to

conclude that the prosecutor’s argument urging the jury to convict

19 based on a reasonable account of the evidence misstated the burden

of proof.” (Centeno, supra, 60 Cal.4th at p. 675.)

20

Centeno held the defense counsel’s failure to object was prejudicial

21 because it was “reasonably likely” that the jury was misled by both

the prosecutor’s visual image in the diagram and accompanying

22 hypotheticals, and her argument about a reasonable interpretation of

the evidence, particularly since the errors occurred during rebuttal

23 and prevented defense counsel from countering the argument.

(Centeno, supra, 60 Cal.4th at pp. 674- 676.)

24

[….]

25

4. Cortez

26

In People v. Cortez (2016) 63 Cal.4th 101 (Cortez), the defendant

27 was convicted of murder and attempted murder for shooting victims

from a car. In rebuttal argument, the prosecutor said: “‘The court

28 told you that beyond a reasonable doubt is not proof beyond all

1 doubt or imaginary doubt. Basically, I submit to you what it means

is you look at the evidence and you say, “I believe I know what

2 happened, and my belief is not imaginary. It’s based in the evidence

in front of me.”’” Defense counsel objected and, before the court

3 responded, the prosecutor added, “‘That's proof beyond a

reasonable doubt.’” The court then overruled the objection. (Id. at

4 p. 130.)

5 In Cortez, a majority of the California Supreme Court rejected the

defendant’s argument that the prosecutor diluted the burden of

6 proof. Cortez held “the challenged remarks, viewed in isolation,

were incomplete at best,” (Cortez, supra, 63 Cal.4th at p. 131) and

7 when the remarks were viewed in context, there was no reasonable

likelihood the jury would misunderstand the burden of proof. The

8 majority found it significant that defense counsel emphasized the

People’s burden of proof in closing argument, the jury was properly

9 instructed on reasonable doubt prior to closing argument, and the

court submitted the written instruction to the jury for deliberations.

10 (Cortez, supra, 63 Cal.4th at pp. 131-133.) “As we have explained,

‘[w]e presume that jurors treat the court’s instructions as a

11 statement of the law by a judge, and the prosecutor's comments as

words spoken by an advocate in an attempt to persuade.’

12 [Citation.]” (Id. at p. 131 .) In reaching these conclusions, the

majority opinion did not address Centeno. (Cortez, at pp. 130-133.)

13

A concurring opinion was filed in Cortez, wherein Justice

14 Werdegar (joined by Justices Liu and Cuellar) relied on Centeno

and wrote that the prosecutor similarly misstated the burden of

15 proof by saying that reasonable doubt meant that “‘ ... you look at

the evidence and you say, “I believe I know what happened, and my

16 belief is not imaginary. It ‘s based in the evidence in front of me.”

... That’s proof beyond a reasonable doubt.’” (Cortez, supra, 63

17 Cal.4th at p. 134 (conc. opn. of Werdegar, J.), italics added in

original.) Justice Werdegar compared the prosecutor’s argument in

18 Cortez to the same language disapproved in Centeno about a

reasonable account of evidence, because it “reversed the standard of

19 proof beyond a reasonable doubt, telling the jury that their belief in

guilt need only be nonimaginary, rather than that the evidence must

20 exclude all reasonable doubts." (Cortez, at p. 134 (conc. opn. Of

Werdegar, J.) .)

21

However, Justice Werdegar agreed with the majority’s conclusion

22 that any error was not prejudicial. (Cortez, supra, 63 Cal.4th at p.

136 (conc. opn. Of Werdegar, J.).)

23

“The contextual factors the majority brings forward are, however,

24 persuasive as to the lack of prejudice from this prosecutor’s

misstatement of the law. The prosecutor’s isolated misstatement

25 clearly was not so extensive and egregious as to render the trial

fundamentally unfair, infringing on defendant's federal due process

26 rights. The misstatement violated only California law against the

use of deceptive methods in jury argument, making it subject only

27 to the prejudice standard generally applicable to state law trial

errors, whether a reasonable probability exists the error affected the

28 jury's verdict. [Citations.] Consequently, for the same reasons the

1 majority finds no reasonable likelihood ‘the jury construed or

applied the prosecution's challenged remarks in an objectionable

2 fashion’ [citation], I would find no reasonable probability the

prosecutor's misstatement of the law affected the jury's verdict.”

3 (Id. at pp. 135- 136 (conc. opn. of Werdegar, J.).)

4 F. Analysis

5 Based on Centeno, we are compelled to find the prosecutor

misstated the reasonable doubt standard in the portions of closing

6 and rebuttal argument quoted above, by improperly equating

whether there was a reasonable explanation for the fire with the

7 People’s burden of proof beyond a reasonable doubt: “If there’s no

reasonable explanation for this fire, other than this man set the fire

8 to get rid of his problem, and [Villegas] died in that fire, there’s no

reasonable doubt. So when you're deliberating together . .. keep that

9 in mind. Say to yourselves ... [w]e care about what’s reasonable.

Not about what’s imaginary or what’s possible. We don’t care

10 about what’s possible. If it’s not reasonable, you have no

reasonable doubt in the case.” (Italics added.)

11

As explained in Centeno, “it is error for the prosecutor to suggest

12 that a ‘reasonable’ account of the evidence satisfies the prosecutor’s

burden of proof.” (Centeno, supra, 60 Cal.4th at p. 672.) In doing

13 so, the prosecutor improperly “confounded the concept of rejecting

unreasonable inference, with the standard of proof beyond a

14 reasonable doubt [and] repeatedly suggested that the jury could find

defendant guilty based on a ‘reasonable’ account of the evidence.

15 These remarks clearly diluted the People’s burden." (Id. at p. 673.)

16 In contrast to Centeno, however, the prosecutor’s misstatement was

harmless beyond a reasonable doubt and there is no reasonable

17 probability that defense counsel’s failure to object impacted the

verdict. (Centeno, supra, 60 Cal.4th at pp. 674- 677.) Centeno’s

18 assignments of error were based on the prosecutor’s misconduct

both by using the improper diagram and hypotheticals and

19 misstating the burden of proof. In contrast, the prosecutor in this

case did not project an objectionable diagram or hypotheticals that

20 were critical to the decision in Centeno.

21 As in Cortez, the court properly instructed the jury about the

People’s burden of proof, and defense counsel extensively argued

22 the People failed to meet that burden in this closing argument. In

addition, both the prosecutor and defense counsel referred the jury

23 to the reasonable doubt instruction which the court had already read

to them.

24

More importantly, as we have already explained above, this case is

25 not similar to the “very close case” that existed in Centeno where

there was no physical evidence, the minor denied the event at trial,

26 the minor’s father corroborated the defendant’s denials, and the

prosecutor “depended almost entirely on [the victim’s] credibility,

27 which was called into question in several respects.” (Centeno,

supra, at p. 677.) Instead, the motel’s security camera clearly

28 showed defendant and Villegas knew each other; only defendant

1 and Villegas were in the room together when Villegas was hit in the

head, likely left unconscious, and the fire started; defendant,

2 contrary to his pretrial claims, did not attempt to save her in any

way from the conflagration that consumed the small motel room;

3 and the pathologist testified without contradiction that Villegas was

still alive when she was hit in the head and when the fire started.

4 While there was no eyewitness who saw defendant hit Villegas and

start the fire, the circumstantial evidence was undisputed and

5 extremely strong. This case is further distinguished from Centeno

since the various defense theories of the case lacked virtually any

6 supporting factual basis, the cause of Villegas’s death was also

undisputed, and the direct evidence presented on the security video

7 was also undisputed - that defendant and Villegas knew each other,

they were the only two people in the room, and Lee never got inside

8 the room or threw anything into the window.

9 ECF No. 13-2 at 60-72.

10 D. Objective Reasonableness Under § 2254(d)

11 The California appellate court found that there was no ineffective assistance because,

12 although the prosecutor did misstate the burden of proof, her error was harmless beyond a

13 reasonable doubt. Accordingly, defense counsel’s failure to object cannot have prejudiced

14 petitioner. ECF No. 13-2 at 71 (“… there is no reasonable probability that defense counsel’s

15 failure to object impacted the verdict.”). There is nothing objectively unreasonable about this

16 conclusion. It is fully consistent Strickland to deny an ineffective assistance claim without

17 consideration of counsel’s performance where the challenged act or omission had no likely effect

18 on the outcome of the trial. Strickland, 466 U.S. at 697.

19 In evaluating prejudice, the state court reasonably relied on the facts that the jury was

20 correctly instructed on the reasonable doubt standard, that both counsel expressly referred the jury

21 to those instructions, and that defense counsel vigorously argued the reasonable doubt issue.

22 Jurors were also instructed that “[i]f you believe that the attorney’s comments on the law conflict

23 with [the court’s] instructions, you must follow [the court’s] instructions.” 2 CT 489 (ECF No.

24 39-2 at 21). These circumstances negate any likelihood that the jurors gave undue weight to the

25 prosecutor’s misstatements. The state court also properly considered the impact of the

26 prosecutor’s statements in light of the trial evidence as a whole. The state of that evidence, which

27 was thoroughly reviewed and reasonably evaluated, further negates any likelihood that the verdict

28 was based on application of an erroneous understanding of the reasonable doubt standard. This

1 was not an objectively unreasonable conclusion on the part of the appellate court. Accordingly,

2 federal habeas relief is unavailable on this claim.

3 III. Claim Five: Cumulative Error

4 A. Petitioner’s Allegations and Pertinent State Court Record

5 Claim Five alleges that his right to due process was violated by the cumulative effect of

6 the asserted trial errors. ECF No. 27 at 18. This claim has previously been limited to the

7 cumulative effects of the errors alleged in Claims One and Two. ECF No. 33 at 5; ECF No. 36.

8 B. The Clearly Established Federal Law

9 Multiple errors that are harmless individually may be so prejudicial that they rise to the

10 level of a due process violation. See Chambers v. Mississippi, 410 U.S. 284, 290 n. 3 (1973).

11 C. The State Court’s Ruling

12 This claim was denied in state habeas. ECF Nos. 29-1, 29-2. In denying the petition, the

13 California Supreme Court cited People v. Duvall, 9 Cal. 4th 464, 474 (1995) and In re Swain, 34

14 Cal. 2d 300, 304 (1949). ECF No. 29-2.

15 D. The Claim is Meritless

16 This court need not consider whether the state court’s citations to Duvall and Swain create

17 a procedural bar to federal relief,6 because defaulted federal claims may be denied on the merits.

18 See Lambrix v. Singletary, 520 U.S. 518, 523-25 (1997). It is elementary that where no error of

19 constitutional magnitude has occurred, no cumulative prejudice is possible. Hayes v. Ayers, 632

20 F.3d 500, 525 (9th Cir. 2011). Because the evidence was sufficient to support the verdict, and

21 petitioner has not established any other trial error of constitutional magnitude, there is nothing to

22 cumulate with defense counsel’s failure to object to the prosecutor’s misleading statements in

23 closing argument. Accordingly, petitioner’s cumulative error claim necessarily fails under any

24 standard of review.

25 ////

26 ////

27

28 6 See Coleman v. Thompson, 501 U.S. 722 (1991).

1 CONCLUSION

2 For all the reasons explained above, the state courts’ denial of petitioner’s claims was not

3 || objectively unreasonable within the meaning of 28 U.S.C. § 2254(d). Accordingly, IT IS

4 | HEREBY RECOMMENDED that the petition for writ of habeas corpus be denied.

5 These findings and recommendations are submitted to the United States District Judge

6 || assigned to the case, pursuant to the provisions of 28 U.S.C. §636(b)(1).. Within twenty-one days

7 || after being served with these findings and recommendations, any party may file written

8 || objections with the court and serve a copy on all parties. Such a document should be captioned

9 || “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections,

10 || he shall also address whether a certificate of appealability should issue and, if so, why and as to

11 || which issues. See 28 U.S.C. § 2253(c)(2). Any reply to the objections shall be served and filed

12 || within fourteen days after service of the objections. The parties are advised that failure to file

13 || objections within the specified time may waive the right to appeal the District Court’s order.

14 || Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991).

15 | DATED: October 20, 2025 -

16 Attu —Clone_

ALLISON CLAIRE

17 UNITED STATES MAGISTRATE JUDGE

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