Petition for Writ of Certiorari — Byron Christopher Chinchilla, Petitioner v. Greg Lewis, Warden

No.___________

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IN THE SUPREME COURT OF THE UNITED STATES

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BYRON CHINCHILLA

Petitioner

v.

GREG LEWIS, Warden,

Respondent

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ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

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PETITION FOR WRIT OF CERTIORARI

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Stephanie Adraktas

Attorney for Petitioner

2625 Alcatraz Avenue, #233

Berkeley, CA 94705

(415) 699-1507

CJA Appointed Counsel for Petitioner

No.___________

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IN THE SUPREME COURT OF THE UNITED STATES

________________________

BYRON CHINCHILLA

Petitioner,

v.

GREG LEWIS

Warden,

Respondent

________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

________________________

PETITION FOR WRIT OF CERTIORARI

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Petitioner, Byron Chinchilla, respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the Ninth Circuit in this case.

1

OPINIONS BELOW

The Ninth Circuit Court of Appeals affirmed the district court’s denial of habeas

relief in an unpublished order denying the petition for panel rehearing (App. 1), and an

unpublished memorandum decision. App. 6. 1 The order adopting the magistrate judge’s

findings and recommendations and the judgment of the district court denying Chinchilla’s

habeas corpus petition are unreported. App. 16, 17. The magistrate judge’s opinion is also

unreported. App. 25

The California Court of Appeal affirmed the conviction and sentence in an

unpublished decision. App. 64. The California Supreme Court denied review in an

unpublished decision. App. 62.

JURISDICTION

The final judgment of the Court of Appeals was entered on August 3, 2018. The

jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

In pertinent part, the Sixth Amendment to the United States Constitution provides

“In all criminal prosecutions, the accused shall enjoy the right . . .”to have “the assistance

of counsel” for his defense.

1

“App.” refers to the Appendix attached to this petition. “ER” refers to the Appellant’s

Excerpts of Record filed in the Court of Appeals for the Ninth Circuit simultaneously with the

Appellant’s Opening Brief on Appeal. “CR” refers to the docket number of the Court of Appeals

docket and “DCR” refers to the docket number of the federal district court docket.

2

Section 1 of the Fourteenth Amendment to the United States Constitution provides

in pertinent part: “No state shall . . . deprive any person of life, liberty or property without

due process of law.”

STATEMENT OF THE CASE

On September 16, 2010, Chinchilla and his co-defendant, Jorge Sotelo, were

convicted in Orange County Superior Court of four counts of attempted premeditated

murder, four counts of assault with a semiautomatic firearm, and one count each of

shooting at an occupied motor vehicle, second degree robbery, street terrorism, carrying a

concealed firearm as an active participant in a criminal street gang, and receiving stolen

property. The jury also found true an allegation that a principal was personally armed with

a firearm and that each offense was committed for the benefit of, at the direction of, and

in association with a criminal street gang, with the specific intent to promote, further and

assist in criminal conduct by gang members. The jury returned a not guilty verdict as to

the robbery of Angel Huitron charged in Count 10. 1 CT 58-67. On April 15, 2011,

Chinchilla was sentenced to four consecutive life terms with the possibility of parole, plus

80 years. 1 CT 74-75.

On December 27, 2012, the California Court of Appeal affirmed the judgment, but

reversed portions of the sentence and remanded for resentencing. I ER 49. On March 13,

3

2013, the California Supreme Court denied review without comment or citation to

authority. I ER 48. On August 13, 2014, the California Supreme Court denied Chinchilla's

petition for a writ of habeas corpus without comment or citation to authority. I ER 47.

Chinchilla timely filed a petition for writ of habeas corpus in the district court on

August 14, 2014. CR 1. June 1, 2016, the district court denied the petition on the merits

and issued a certificate of appealability. I ER 1, II ER 71

STATEMENT OF FACTS

A.

The Testimony of the Complaining Witnesses

On December 7, 2008, at about 1:15 a.m., two groups of young men were

standing outside their cars immediately after leaving a party that had been "raided" by

police officers. 1 RT 32, 2 RT 386. One group, Angel Huitron, his brother Efrain Huitron

Novoa, their cousin Jonathan De La Torre, and friend Michael Ponce, were standing near

Novoa's red Dodge Charger. The other group, consisting of Jose Gonzalez and two or

three unnamed companions, were standing by a Honda Accord that was parked behind the

Charger. 3 RT 478.

According to De La Torre, Chinchilla and Sotelo approached their group and

Chinchilla slapped or punched Gonzalez and tried to grab his phone. De La Torre said

that Gonzalez held on to the phone. 2 RT 387, 392. According to Ponce, Chinchilla took

the phone and then smashed it or threw it on the ground. 2 RT 352.

4

When Huitron attempted to assist Gonzalez, Sotelo brandished a black

semiautomatic handgun that had been in his waistband. Sotelo pulled back the slide,

pointed the gun at the group and told them to get back, which they did. According to De

La Torre, Chinchilla tried to go through all of their pockets but the men in the group

slapped away his hands and did not allow themselves to be searched. 2 RT 399; 3 RT 487.

De La Torre said that Chinchilla tried to grab Angel Huitron's keychain but Huitron

grabbed it back. 2 RT 399. Chinchilla took De La Torre's Los Angeles Angels baseball

cap. 2 RT 388.

According to Huitron, who admitted he had been drinking, Chinchilla went

through the pockets of all four men. 2 RT 184-186, 208. Contrary to De La Torre's

testimony, Huitron said Chinchilla took a key chain from him. Huitron could not

remember if he got the key chain back. 2 RT 187. Huitron had a wallet in his pocket but

Chinchilla did not take it. 2 RT 240.

As Chinchilla and Sotelo walked away, Sotelo said "you bitches just got smacked

up" by "West Side Playboys." 2 RT 193. As Chinchilla and Sotelo walked toward Euclid

Street, Huitron, Novoa, Ponce and De La Torre followed them in the Charger, at a speed

of about 5-10 miles per hour. The others were behind them in the Accord. RT 245, 511,

520-522.

According to Huitron, the group was following Chinchilla and Sotelo because they

wanted to see which way they would go. 2 RT 193-194. The group in the car was "pretty

5

angry" as they drove after Chinchilla and Sotelo, who were still on foot. 3 RT 480-481.

Huitron was "really angry" and said he wanted to "get these guys." 3 RT 481.

De La Torre admitted the group followed Chinchilla and Sotelo with the Charger

because they were mad and wanted to "teach them a lesson." 3 RT 494. He also wanted to

get their license plate number. 3 RT 497.According to Ponce, his group was angry and

they followed Chinchilla and Sotelo so they could "catch these guys and maybe get

revenge on them." 2 RT 356. During the car chase, they were "pretty heated up," had "a

lot of adrenaline" and were "pretty angry." 2 RT 356.

According to De La Torre and Ponce, none of them attempted to dial 911 or call

the police. 2 RT 357; 3 RT 491-492. According to Huitron one of the men in his car did

call 911 and spoke to a police officer. 2 RT 219.

When pressed by defense counsel as to why his group had decided to follow two

men who were armed with a gun, Huitron said "Yeah I was afraid. But, like I said, I was

under the influence of alcohol and I was mad and [his companions] are my family." 2 RT

217.

According to De La Torre, Sotelo and Chinchilla were walking in the middle of

the street, with the car following behind them. 2 RT 404; 3 RT 486. When asked "Did you

try to run [Sotelo and Chinchilla] over?" De La Torre replied. "Well, not really. We were

just following them to see where they go." 2 RT 403.

6

During the chase, Sotelo turned around twice to look at the pursuing vehicle. The

second time, he fired four shots at the car. The bullets hit a tire and the roof of the car. 2

RT 405-406. None of the occupants was hit. 2 RT 407. Huitron turned the Charger

around and drove back in the direction of the party, where he knew there were some

police officers. 2 RT 408.

B.

Testimony of Independent Witness Sean Godoy

Sean Godoy, who was not associated with either the complaining witnesses or the

defendants, saw the incident from his motorcycle as he drove up to an intersection. He

saw Chinchilla and Sotelo "fleeing" around a corner, pursued by a slow moving "caravan"

that included an orange car, the car behind it and a group of people who were walking

next to the cars. Godoy saw Sotelo fire shots at the car that was pursuing him and

Chinchilla. RT 511, 520-522.

C.

The Police Investigation and Arrest of Chinchilla and Sotelo

The Charger pulled up next to Santa Ana Police Officer Sergio Gutierrez, who had

heard the shots fired. 1 RT 31-43. The four men in the Charger told Officer Gutierrez that

they had just been robbed and that one of the robbers fired a gun at them. 1 RT 42-43.

There was a bullet hole in the front passenger side tire and damage to the roof on the

driver's side. 1 RT 45-51.

Officer Gutierrez and his partner found Chinchilla and Sotelo a short distance

away. They were getting into the back seat of a Toyota Camry. 1 RT 53-55. Chinchilla

7

was wearing an Angel's baseball hat. 1 RT 81. The officers found a semi automatic

handgun on the ground underneath the rear door on the driver's side of the Camry. 1 RT

64-65, 67.

Huitron, De La Torre, Novoa and Ponce identified Chinchilla and Sotelo as the

pair who had robbed and shot at them. Gun shot residue was found on Sotelo's hands but

not on Chinchilla's. 3 RT 464-466. Four bullet shells found in the area where the shots

were fired matched the caliber of the gun recovered next to the Camry. 2 RT 151-152, 3

RT 420-424.

Chinchilla told the police that he and Sotelo and two friends who were in the

Camry had attended a party that had been broken up by police. Chinchilla admitted they

were Playboys gang members. Chinchilla said he and his friends were in a parking lot

talking to some girls after the party. He denied being involved in a robbery or a shooting.

He also said he did not recall how he got the Angels baseball cap he had been wearing at

the time of his arrest. When asked about the gun that was found by Camry, Chinchilla

denied that he knew anything about it. 2 RT 159-161.

D.

Gang Expert Testimony

Santa Ana Police Department Detective Clinton Achziger testified concerning the

Playboy's gang and its primary criminal activities and some specific crimes necessary to

establish the gang enhancements. 3 RT 548-616. Detective Achziger also testified that

Chinchilla and Sotelo were both active Playboys gang members. Detective Achziger also

8

testified, hypothetically, that an incident like the charged incident would be committed for

the benefit of the Playboys gang. 4 RT 661-663.

E.

Co-Defendant Jorge Sotelo's Testimony

Sotelo testified that on the night of the charged incident, he had attended a party in

Santa Ana with Chinchilla and two other friends. II ER 119-120. He admitted that he was

a member of the Playboys gang. II ER 118. He and his friends were at the party for only

about five minutes before the police "broke it up." II ER 121. He admitted he had placed

a loaded gun in his car "for protection" before he went to the party. II ER 143-144. He

did not tell Chinchilla about the gun. Id.

After police broke up the party, Sotelo left with his friends. As they were walking

away from the party, they were "hit up" by a group of men. When asked where they were

"from," Sotelo said they were from the LA Playboys. II ER 151-152. The men became

angry and started trying to "harass" Chinchilla. II ER 126. When one of the taller men

grabbed Chinchilla, Sotelo pulled out his gun and the entire group of men backed off. II

ER 126-127, 153.

Sotelo insisted that he and Chinchilla did not rob the men. The reason he drew his

gun was to get the aggressors to back off. II ER 132, 136. However, as he and Chinchilla

were leaving, they said "Playboys" again and Chinchilla grabbed a baseball hat from the

head of one of the men who had accosted them. II ER 127, 137-138, 155. As they were

leaving, Sotelo put the gun away. II ER 128. Then, Sotelo, Chinchilla and the others

9

began to run because they were afraid the men were going to "jump" them. Sotelo called a

friend and asked him to come and pick them up. When he looked back, he saw two cars

approaching "pretty fast" and a group of people approaching on foot. II ER 129.

Sotelo estimated that the car carrying the men from the sidewalk encounter was

traveling 20-25 miles per hour. II ER 129-130. Sotelo was scared and he fired four shots

at the car. II ER 129, 163. He did not aim the gun at the passengers, he only aimed it at

the car. II ER 145, 148. He admitted he wanted to kill the people in the car because he

thought they were trying to "get" him. II ER 179.

F.

Chinchilla's Motion For a New Trial

After the verdicts, Chinchilla made a motion for a new trial arguing, among other

grounds, that the trial court had erred in failing to instruct the jury as to the lesser

included offense of attempted voluntary manslaughter based on imperfect or unreasonable

self defense. I ER 87. The trial court denied the motion. I ER 75.

G.

Direct Appeal

Chinchilla appealed to the California Court of Appeal, which affirmed his

conviction and sentence. I ER 49. With respect to Chinchilla's claim that trial counsel was

prejudicially ineffective for failing to request that the jury be instructed as to the lesser

included offense of attempted voluntary manslaughter due to imperfect or unreasonable

self defense, the Court of Appeal declined to decide whether counsel's performance was

professionally unreasonable. However, it held that the trial court erred in failing to so

10

instruct the jury. Nevertheless it held that defense counsel was not ineffective for failing

to request the instruction because Chinchilla was not prejudiced. I ER 64.

The Court of Appeal reasoned that the jury "clearly rejected" Chinchilla's self

defense claim when it convicted him of four counts of attempted premeditated murder. I

ER 64. Moreover, the jury found that when Sotelo fired at the car, he did so with

premeditation and deliberation, which demonstrated that the jury did not accept the

defendants' self defense theory. I ER 64. The Court of Appeal found "This finding is

inconsistent with a finding Sotelo believed, reasonably or unreasonably, he needed to

defend himself from the car. Therefore, the factual question posed by the omitted

instruction was necessarily resolved adversely to [the defendants] under other properly

given instructions." I ER 64 .

REASONS FOR GRANTING THE PETITION

1.

THIS COURT SHOULD GRANT CERTIORARI BECAUSE THE

OPINIONS BELOW ARE IN CONFLICT WITH THE DECISIONS

OF THIS COURT CONCERNING THE RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL AT TRIAL

This Court should grant certiorari because the decisions below are in conflict with

this Court’s precedents concerning the right to effective assistance of counsel at trial.

When a defendant alleges ineffective assistance of counsel, two elements must be proved:

(1) counsel's performance was objectively unreasonable and (2) but for counsel's errors

there is a "reasonable probability that the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668, 689 (1984).

11

Here, trial counsel was prejudicially ineffective for failing to request a jury

instruction as to a lesser included offense. Under California law, attempted premeditated

murder can be reduced to attempted voluntary manslaughter due to imperfect self defense.

That is, if the defendant actually but unreasonably believed that lethal force was necessary

in self defense, the jury may convict him of the lesser charge of attempted voluntary

manslaughter.

In this case, the trial court failed to instruct the jury as to the lesser included

offense of attempted voluntary manslaughter due to imperfect or unreasonable self

defense. The California Court of Appeal held correctly that the trial court's failure to

instruct the jury as to the doctrine of attempted voluntary manslaughter due to imperfect

self defense was error. However, as to Chinchilla's claim that his trial counsel was

ineffective for failing to request that instruction, the Court of Appeal unreasonably held

that Chinchilla was not prejudiced.

The Ninth Circuit held that trial counsel reasonably adopted an “all or nothing

strategy,” thereby forcing the jury to choose between a verdict of premeditated attempted

murder or an all out acquittal on those counts. App. 11. The Court of Appeals’ holding on

that point is contrary to the record, its own published precedent and this Court’s

authorities concerning effective assistance of counsel. No reasonable attorney under the

circumstances would have failed to request a lesser included offense instruction in this

case.

12

As set forth in more detail below, the AEDPA does not bar relief on Chinchilla’s

claim because the California Court of Appeal unreasonably determined the facts and

unreasonably applied Strickland when it held that Chinchilla was not prejudiced. This

Court should review the prejudice issue de novo, because the Court of Appeal applied a

state law standard when it analyzed the prejudice arising from the omitted instruction.

Because the state court failed to apply the correct federal constitutional prejudice standard

under Strickland v. Washington, 466 U.S. 668 (1984), AEDPA deference does not apply.

Moreover, the Court of Appeal’s holding that Chinchilla was not prejudiced was

objectively unreasonable under its own decision in Crace v. Hertzog, 798 F.3d 840 (9 th

Cir. 2015). Crace held that a state court was objectively unreasonable in holding that, so

long as there is sufficient evidence to support a jury’s verdict as to a greater offense, no

prejudice results from a defense attorney’s failure to request a lesser included offense

instruction. Because the state court’s prejudice analysis in this case was materially

comparable to that in Crace, the decision in this case is in conflict with the Ninth

Circuit’s precedent as to the right to effective assistance of counsel. Accordingly, this

Court should grant certiorari to resolve the conflict between the decision in this case and

the decision in Crace.

13

ARGUMENT

I.

THE SIXTH AND FOURTEENTH AMENDMENT RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL

A claim of ineffective assistance of trial counsel requires proof that : (1) counsel's

performance was objectively unreasonable and (2) but for counsel's error there is a

“reasonable probability that the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 689 (1984).

“The relevant question is not whether counsel's choices were strategic, but whether

they were reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000).

II.

TRIAL COUNSEL WAS PREJUDICIALLY INEFFECTIVE

BECAUSE SHE FAILED TO REQUEST A JURY INSTRUCTION AS

TO IMPERFECT SELF DEFENSE

A.

The State Court of Appeal Held Correctly That The Trial Judge

Should Have Instructed The Jury as to Unreasonable Self

Defense and It Follows That Trial Counsel Was Professionally

Unreasonable When She Failed to Request That Instruction

A defense attorney’s performance is ineffective when she fails to request a jury

instruction supporting the defense theory that counsel has selected and argued to the jury.

Breakiron v. Horn, 642 F.3d 126, 140-141 (3rd Cir. 2011)(defense counsel was deficient

when he failed to request a lesser included instruction as to offense of theft when

instruction was supported by the evidence and the sole defense theory was that the

defendant had committed the lesser crime).

14

In this case, the trial court instructed the jury as to self defense (II ER 456). Under

California law, if there is substantial evidence of a defendant's belief in the need for

self-defense, the court should also provide an imperfect self-defense instruction because

the reasonableness of that belief is generally at issue. People v. Ceja, 26 Cal.App.4th 78,

85-86 (1994); People v. De Leon, 10 Cal.App.4th 815, 824 (1992).

The omitted instruction was CALCRIM 571:

Voluntary Manslaughter: Imperfect Self-Defense - Lesser Included Offense

A killing that would otherwise be murder is reduced to voluntary manslaughter if

the defendant killed a person because (he/she) 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/her) action was lawful and you must find (him/her) not guilty of any crime.

The difference between complete (self-defense/ [or] defense of another) and (imperfect

self-defense/ [or] imperfect defense of another) depends on whether the defendant's belief

in the need to use deadly force was reasonable.

The defendant acted in (imperfect self-defense/ [or] imperfect defense of another)

if:

1. The defendant actually believed that (he/she/ [or] someone else/ <insert name of

third party>) was in imminent danger of being killed or suffering great bodily injury;

AND

2. The defendant actually believed that the immediate use of deadly force was

necessary to defend against the danger;

BUT

3. At least one of those beliefs was unreasonable.

Belief in future harm is not sufficient, no matter how great or how likely the harm

is believed to be.

15

In evaluating the defendant's beliefs, consider all the circumstances as they were

known and appeared to the defendant.

[If you find that <insert name of decedent/victim> threatened or harmed the

defendant [or others] in the past, you may consider that information in evaluating the

defendant's beliefs.]

[If you find that the defendant knew that <insert name of decedent/victim> had

threatened or harmed others in the past, you may consider that information in evaluating

the defendant's beliefs.]

[If you find that the defendant received a threat from someone else that (he/she)

reasonably associated with <insert name of decedent/victim>, you may consider that

threat in evaluating the defendant's beliefs.]

[Great bodily injury means significant or substantial physical injury. It is an injury

that is greater than minor or moderate harm.]

The People have the burden of proving beyond a reasonable doubt that the

defendant was not acting in (imperfect self-defense/ [or] imperfect defense of another). If

the People have not met this burden, you must find the defendant not guilty of murder.

CALCRIM 571

Here, the California Court of Appeal held correctly that the jury should

have been instructed as to the defense of imperfect self defense because Sotelo’s

testimony provided sufficient evidence to support the instruction. I ER 63. The Court

held:

At trial, Sotelo testified he brandished his gun after one of the

men attacked Chinchilla, and he denied either he or Chinchilla

robbed them. He admitted Chinchilla took the baseball hat as

they left. He also testified that when he and Chinchilla walked

away, the car was coming at them pretty fast and he was

16

scared and fired the gun. Needless to say, a car could be a

deadly weapon. Thus, based on this evidence a jury could

have concluded Sotelo fired the gun at the car to stop the

driver who Sotelo thought was going to run them down. The

jury could have concluded Sotelo actually and reasonably

believed in the necessity of defending himself from imminent

danger of death or great bodily injury. Although at the hearing

on the new trial motion the court indicated this story was

unbelievable, that was for the jury to decide, not the trial

court.

Based on this evidence, the jury could have also concluded Sotelo actually

believed he had to defend himself from imminent danger of death or great

bodily injury but that his belief was unreasonable. There was evidence from

which the jury could conclude he believed he had to defend himself but his

belief that firing a gun at a car that was slowly following him was

unreasonable. Thus, based on the record before us, we conclude the trial

court properly instructed the jury on self defense and erred in failing to

instruct the jury on imperfect self defense.

I ER 63.

The Court of Appeal declined to decide whether trial counsel’s performance was

professionally inadequate when she failed to request an imperfect self defense instruction.

I ER 64. However, because the trial court erred in failing to instruct the jury as to

unreasonable self defense, it follows that it was professionally unreasonable for defense

counsel to fail to request that instruction. This case is comparable to Crace v. Hertzog,

798 F.3d 840, (9 th Cir. 2015), where trial counsel’s conduct was professionally

unreasonable when he failed to request an instruction for a lesser included offense that

was supported by the trial evidence and would have supplied a basis for a verdict that

would have avoided a third strike sentence. Id at 844-845, 852-853. Here, likewise, trial

17

counsel failed to request a jury instruction supporting the self defense theory that counsel

herself had selected and argued to the jury. Because the trial judge would have been

required to give the unreasonable self defense instruction upon request, trial counsel’s

failure to request that instruction was professionally unreasonable. Crace at p. 852.

B.

Review of Strickland’s Prejudice Prong Should Be De Novo

Because The Court of Appeal Opinion Unreasonably Applied

Strickland When It Held That There Was No Prejudice to

Chinchilla’s Defense

When a habeas corpus petition alleges ineffective assistance of counsel, the court

must apply Strickland's prejudice standard and need not apply the Brecht standard. Hayes

v. Brown, 399 F.3d 972, 984 (9th Cir. 2005). 2 Prejudice exists if "there is a reasonable

probability that, but for the counsel's unprofessional errors, the result of the proceeding

would have been different." Strickland, supra, at 694. The petitioner must show that

“there is a reasonable probability that at least one juror would have struck a different

balance.” Wiggins v. Smith, 539 U.S. 510, 537 (2003).

When a state court unreasonably applies clearly established constitutional law or

applies a standard that is contrary to the Supreme Court’s constitutional decisions, the

federal court must then resolve the [constitutional] claim without the deference AEDPA

otherwise requires." 28 U.S.C. § 2254 (d)(1);Panetti v. Quarterman, 551 U.S. 930, 948

(2007); Deck v. Jenkins, 768 F.3d 1015, 1024 (9th Cir. 2014).

2

Brecht v. Abrahamson, 507 U.S. 619 (1993).

18

Here, as set forth in more detail below, the Court of Appeal’s analysis of the

prejudice prong was erroneous for two reasons. First, the Court of Appeal failed to apply

the Strickland prejudice test and second, under any standard, its analysis was objectively

unreasonable because it assumed that the jury would have necessarily reached the same

verdict even if the court had provided the omitted instruction.

As to Chinchilla’s Strickland claim, the Court of Appeal held:

If a defendant fails to show that he was prejudiced by counsel’s

performance, we may reject his ineffective assistance claim without

determining whether counsel’s performance was inadequate. (People v.

Sanchez (1995) 12 Cal.4th 1, 40-41, disapproved on other grounds in People

v. Doolin (2009) 45 Cal.4th 390.) As we explained above, [the defendants]

were not prejudiced by the trial court’s failure to instruct the jury on

imperfect self defense.

I ER 64.

The prejudice analysis to which the Court referred was based on the state law

prejudice standard in People v. Watson:

Any error in failing to instruct on imperfect self defense is

subject to the harmless error test articulated in People v.

Watson (1956) 46 Cal.2d 818, 836 (citation omitted). Under

this test, we may reverse a conviction for failing to instruct

only if after an examination of the record, it appears

reasonably probable the defendant would have obtained a more

favorable outcome had the error not occurred. (Ibid.) We

conclude it was not reasonably probable the result would have

been different had the trial court instructed the jury on

imperfect self defense.

The jury clearly rejected [the defendants’] claim of self

defense. The jury concluded Sotelo and Chinchilla robbed and

assaulted the victims. Additionally, the jury concluded that

19

when Sotelo fired the gun at the car, he did so with

premeditation and deliberation. This finding is inconsistent

with a finding Sotelo believed, reasonably or unreasonably, he

needed to defend himself from the car. Therefore, the

factual question posed by the omitted instruction was necessarily resolved

adversely to Sotelo under other, properly given instructions.

I ER .

California courts have observed that, while the Watson and Strickland prejudice

tests sound similar, they are not the same. People v. Howard, 43 Cal.3d 171, fn 4 (1987).

The Howard court stated:

The People urge that Strickland's reasonable probability

standard is the equivalent of the Watson test which has

traditionally been applied to most ineffective assistance claims.

(See People v. Fosselman (1983) 33 Cal. 3d 572, 584 [189 Cal.

Rptr. 855, 659 P.2d 1144].) While the language of the two

tests is certainly similar (Strickland: "reasonable probability"

vs. Watson: "reasonably probable"), Strickland specifically

holds that the test is not to be interpreted as requiring a

showing that a different result was "more likely than not." (466

U.S. at pp. 693-694 [80 L.Ed.2d at p. 697].) The Watson

standard, on the other hand, has at least been applied in a

manner closely approximating the "more likely than not" test.

(Citations omitted).

Id.

Here, the Court of Appeal applied the Watson test and did not conduct a Strickland

prejudice analysis. Accordingly, the Court of Appeal failed to apply the federal

constitutional standard when it decided that Chinchilla was not prejudiced by counsel’s

error in failing to request an instruction as to imperfect self defense. Moreover, even if the

Court were to find that the Court of Appeal applied the Strickland standard, its application

20

was objectively unreasonable because it assumed that, because the evidence was sufficient

to support the verdict, the jury would have necessarily reached the same conclusions if it

had been instructed as to imperfect self defense.

This Court’s decision in Crace controls. In Crace, the Washington Court of Appeal

reasoned that the jury must have found all of the elements of the charged crime beyond a

reasonable doubt in order to convict the defendant. It concluded, therefore, that there was

no error in failing to instruct the jury as to the lesser included offense. Specifically, “if the

jury had thought the defendant guilty of murder beyond a reasonable doubt, it necessarily

would have reached the same verdict even if had been instructed on lesser included

offenses.” Crace at p. 846.

This Court held that the Washington court’s methodology was a “patently

unreasonable” application of Strickland” and that “its decision in this case is thus

unworthy of deference under the AEDPA. Crace at p. 847. This Court reasoned that

because a jury convicted the defendant of a particular offense does not mean it could not

have come to a different verdict if it had been provided with different instructions. In

Crace, the Court pointed out that a properly instructed jury could have concluded that the

evidence at trial was a “better fit” for the omitted lesser included offense. Crace at p. 847.

The Court of Appeal’s analysis in this case is objectively unreasonable and

unworthy of AEDPA deference for the same reasons. As in Crace, the state court assumed

that because the jury had found true the elements of the offense and had rejected the claim

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of self defense, it would necessarily have rejected the defendant’s claim of unreasonable

self defense if it had been properly instructed as to the elements of that defense. I ER 64.

Because that reasoning was objectively unreasonable under Crace, AEDPA deference

does not apply.

C.

Chinchilla’s Defense Was Prejudiced Under Any Standard Because the

Omitted Instruction Was Crucial to the Jury’s Understanding of the

Lesser Included Offense

Under any standard of review, given the facts of this case, there is a reasonable

probability that a jury that was presented with the alternative of finding that Chinchilla and

Sotelo had honestly but unreasonably believed that they needed to fire at the car in self

defense would have accepted that defense and found the defendants guilty of the lesser

included offense of attempted voluntary manslaughter.

First, the prosecution witnesses claimed they had been robbed but Chinchilla and

Sotelo had no robbery proceeds except (possibly) Huitron’s key chain and De La Torre’s

baseball hat. If the two defendants had robbed four victims at gunpoint as they claimed,

they would have taken their wallets, cell phone, money or other valuables.

The testimony about the robbery was contradictory. Ponce testified that Chinchilla

grabbed and smashed his friend Jose Gonzalez’s cell phone (3 RT 381) while De La Torre

said Chinchilla never obtained the phone from Gonzalez. 3 RT 387, 392. De La Torre

testified that the incident began with a gang “hit up,” i.e, that Sotelo or Chinchilla had

asked them what gang they were from. 3 RT 479. Angel Huitron, claimed they were not

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asked about gang membership. 2 RT 239. De La Torre said he and his friends prevented

Chinchilla from going through their pockets. 2 RT 399. Huitron said he did. 2 RT 184186.

Moreover, the prosecution witnesses admitted they followed Chinchilla and Sotelo

with their car as the two men left the area on foot. However, the witnesses knew that there

were police officers at the party that they had just left. If the witnesses were actually afraid

of Chinchilla and Sotelo as they claimed, it does not make sense that they would follow

the armed men in their car.

Even if the jury believed that Chinchilla and Sotelo were the initial aggressors, it

was uncontested that the shots were fired as they fled the scene on foot while the

complaining witnesses, who outnumbered them by at least seven to two, followed on foot

and in two cars. As the California Court of Appeal acknowledged, a car can be used as a

deadly weapon. I ER 63.

According to Angel Huitron and independent witness Sean Godoy, there were two

cars carrying at least seven people following Chinchilla and Sotelo. 2 RT 195, 245; 3 RT

508-509. Godoy described the scene as two people fleeing on foot followed by a “caravan”

of vehicles and others on foot. 3 RT 509. A properly instructed jury could have reasonably

concluded that Sotelo and Chinchilla honestly but unreasonably believed that they had to

fire at the car in self defense.

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Finally, given the testimony at trial, it strains credulity to believe that the

prosecution witnesses were following Chinchilla and Sotelo in their car with peaceful

intentions. Moreover, Sotelo fired at the car’s tire and roof, which demonstrates that his

intent was only to deflect the attack and defend himself and Chinchilla. There is a

reasonable probability that a properly instructed jury would have concluded that the

caravan following Chinchilla and Sotelo intended to attack them and that Chinchilla and

Sotelo acted in an honest but unreasonable belief that they had to fire at the complaining

witnesses in order to avoid death or serious bodily injury. For all of these reasons, this

Court should find that trial counsel was prejudicially ineffective when she failed to request

that the jury be instructed as to the lesser included offense of voluntary manslaughter due

to imperfect self defense and grant the writ.

CONCLUSION

For the reasons stated above, this Court should grant certiorari and grant the writ.

Dated: October ___, 2018.

Respectfully submitted,

/s/ Stephanie M. Adraktas

_______________________

Stephanie M. Adraktas, #215323

Attorney For Byron Chinchilla

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