Opinion
No. C 02-2343 VRW (PR)
December 19, 2003
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner was convicted by a jury in the Superior Court of the State of California in and for the County of Contra Costa of second degree murder, attempted robbery, and unlawful possession of a firearm by a felon. The jury also found that petitioner had used a firearm in the commission of the crimes of murder and attempted robbery, and the court found that he had suffered two prior prison terms. On or about October 2, 1998, petitioner was sentenced to a determinate term of 9 years and 8 months, and a consecutive indeterminate term of 25 years to life in state prison.
The California Court of Appeal affirmed the judgment of conviction and, on May 16, 2001, the Supreme Court of California denied review. Petitioner then filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on August 12, 2002, the court found that the petition, when liberally construed, stated cognizable claims under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause and petitioner has filed a traverse.
FACTUAL BACKGROUND
The California Court of Appeal summarized the facts of the case as follows:
Appellant admitted in his testimony at trial that he shot the murder victim, Santos Maldonado, after the two had an argument. It was appellant's position that he acted in self-defense. On the other hand, the prosecution argued that appellant shot Maldonado while attempting to rob the victim of his drugs and money.
Maldonado was a drug dealer in the city of Pittsburg, who sold drugs with his girlfriend Ami Jurica. Maldonado and Jurica both were acquainted with appellant, whom they knew as "R.G."
On the evening of July 12, 1995, Jurica and Maldonado were in the latter's car, selling drugs in front of the house of an acquaintance, Jerry Silva, on Eighth Street in the City of Pittsburg. Around 8:00 p.m., appellant waved at them, approached, and began talking to Maldonado. The two men soon started arguing about the ownership of a.357 handgun that Maldonado possessed. Appellant claimed the gun was his, and that he had loaned it to their mutual acquaintance, Silva, who had in turn loaned it to Maldonado. Appellant now wanted it back. However, Maldonado claimed to have purchased it from Silva. Inasmuch as Silva lived in the house in front of which Maldonado had parked his car, the two men went inside to see Silva and resolve their dispute.
When Maldonado and appellant returned to the parked car, John Marshall, who had approached Maldonado to buy a gram of methamphetamine for $20, momentarily interrupted the two men. After purchasing drugs, Marshall asked Maldonado if he was "packing" a gun. Maldonado, who was seated in his car, pulled out a.38-caliber handgun and showed it to Marshall and then placed the gun on the car seat.
As Marshall was speaking to Maldonado, appellant asked the latter how much "crank" (methamphetamine) he would sell for a "C note" ($100). Maldonado replied he would sell an "eight ball" weighing three and one-half grams. Stating that he had the money nearby and would be right back, appellant left. Meanwhile, Maldonado and Jurica waited in me vehicle for appellant to return with the money.
About ten minutes later appellant returned, not with the money but with a gun. He approached the driver's side of the car where Maldonado was seated, and shot Maldonado in the neck. Jurica had been listening to music and did not see appellant return to the vicinity of the vehicle. Suddenly she heard the discharge of a gun. Jurica turned to see Maldonado slumped and immobile and, at the same time, appellant standing outside me car, holding a gun and looking "angry and shaky." Next, appellant tore off Maldonado's gold chain, and rifled his clothing for drugs and money, yelling that he wanted the dope and money. Jurica handed appellant $40 in currency. Appellant started to flee, but then turned and pointed the gun at Jurica. She ducked down in the car, but no other shots were fired.
Jurica drove away from the scene of the shooting in the victim's car. Reaching a pay phone at a nearby Jack-in-the-Box fast food restaurant, she dialed 911 and hailed down a passing police car. Pittsburg Police Officer David Zuniga and Robert Dupont responded and found Jurica covered with blood, crying, screaming, and hysterical. Maldonado was unconscious with a gunshot wound to the left side of the neck; he was "gasping for air" and "gurgling" blood. He was taken to the hospital where he was soon pronounced dead as a result of loss of blood and blood filling his lungs. Jurica told the police that appellant was the shooter, and she gave them his description which was broadcast to other police units. Jurica however was not at first truthful in telling the authorities all of the circumstances surrounding the shooting, including her involvement with Maldonado in drug sales, but she did so later after learning of his death.
Meanwhile, appellant had escaped to a nearby house that was occupied by a fellow drug user, Phillip Drake. Drake and his friend, ex-felon Wendy Nguyen, were both inside the Drake residence when appellant arrived. Appellant knocked on the door and demanded immediate admittance; he was carrying two guns, and was acting "real rushed." Appellant said he had just robbed and shot Maldonado "in the neck" and that his victim would not be criticizing him any more. Then, appellant went into a closet to a take a "hit," i.e., do some drugs.
Later that evening, shortly before midnight, Officers Bruce Brown and Kirby McNesby, who had earlier heard a broadcast of the suspect's description over police radio, spotted appellant near an apartment complex on Tenth Street. As appellant turned to walk into the complex, Officers Brown and McNesby parked their patrol vehicle and followed him, splitting up to cover both sides of the complex. Brown next spotted appellant as he was kneeling down near the east side of the complex. At gunpoint, Brown ordered him to stop and put his hands up, but appellant walked away to the other side of the complex in the direction taken by McNesby. McNesby took appellant into custody. Appellant was searched, and his pants pocket contained $90, in denominations of two twenties, two tens, and thirty ones. Moments later, Brown recovered a handgun in a utility box for the apartment complex, about 25 feet from the location where he first saw appellant inside the apartment complex. There was blood on the barrel of the weapon, with five rounds and one expended cartridge in the cylinder. Forensic testing showed the recovered weapon was consistent with the gun that fired the bullet removed from the victim's body, although a positive match could not be made.
Appellant was charged with Maldonado's murder; the robberies of Maldonado and Jurica; being a felon in possession of a firearm; the special circumstances allegation of robbery; two allegations of firearm-use; and two enhancements of prison term priors. The People sought the death penalty.
Appellant brought a motion to quash the master list and jury venire, contending that African-American jurors were underrepresented on the lists of potential jurors in Contra Costa County. The trial court ultimately denied appellant's motion, ruling that he failed to make our a prima facie case that African-Americans are unconstitutionally excluded from Contra Costa County Superior Court venires. . . .
The matter proceeded to jury trial, and the prosecution adduced the evidence summarized above. Appellant presented evidence which tended to undercut the credibility of Jurica, based upon her involvement in various criminal activities, conflicting statements given to the police in an apparent effort to escape prosecution on drug charges, and a grant of immunity received in exchange for her testimony.
Appellant also introduced latent prints lifted from the inside of the victim's car, which did not match appellant's fingerprints, as well as the testimony of a longtime acquaintance, Robert Reeder. Reeder offered that appellant visited him at his apartment on the night of appellant's arrest, and that he did not see him in possession of a gun. Reeder at first indicated appellant had been with him for hours, suggesting a possible alibi, but later testified appellant had only been with him a few minutes. Reeder acknowledged that the two men had been incarcerated in jail together after the shooting, but denied ever having discussed appellant's case.
Appellant also testified. He acknowledged being a convicted felon, and that he shot Maldonado. However, he claimed to have done so in self-defense after the victim, whom he believed to be high on drugs, pulled a gun on him during an argument the two men were having over a gun appellant had loaned Silva. Appellant denied robbing or taking any property from either Maldonado or Jurica. It was only after Maldonado pulled out a gun and ordered, "get the fuck away from my car," that he shot Maldonado, allegedly in self-defense. Appellant's testimony confirmed portions of evidence presented by the prosecution, such as his shooting of the victim, his flight to Drake's house, his subsequent use of crack cocaine, and his hiding of the gun used in the shooting inside the utility box. Appellant also admitted lying to the police, telling them he knew nothing about the shooting, because he did not trust the police and was scared and high on drugs.
Evidence was also presented of the presence of methamphetamine, amphetamine, and alcohol in the victim's blood. According to a defense medical expert, Dr. David Smith, the level of methamphetamine in Maldonado's blood was consistent with chronic abuse, and he would expect such a person to exhibit symptoms of paranoia, impaired impulse control, and delusional thinking. Given the levels of alcohol and methamphetamine in the victim's blood, and the hostile threatening environment that presented itself to the victim, Dr. Smith hypothesized that Maldonado could have experienced a "rage reaction," which would cause him to aggressively respond to a perceived threat. The jury convicted appellant of second degree murder (count one), the attempted robbery of Maldonado (a lesser-included offense of count two), and unlawful possession of a firearm by a felon (count four). ([Cal Penal Code] §§ 187; 664/211-212.5, subd. (c); 12021, subd. (a)(1).) The two special allegations charging personal use of a firearm as to counts one and to were also found to be true. ([Id] § 12022.5, subd. (a).) Appellant was acquitted on the charge of robbery as to Jurica (count three). In a bifurcated proceeding tried to the court, the two prison term prior were found to be true. ([Id] § 667.5, subd. (b).) Appellant received an aggregate determinate term of nine years eight months in state prison, and a consecutive indeterminate term of 25 years to life for the murder and two firearm-use allegations.People v. Currie, No AO84426, slip op at 2-7 (Cal Ct App. Jan 30, 2001) (Resp't Ex F).
DISCUSSION
A. Standard of Review
A federal writ of habeas corpus may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
"[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id at 412;Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir 2003). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Id.
B. Claims
Petitioner raises three claims for relief under § 2254: (1) the jury selection process used by the County of Contra Costa results in the systematic under-representation and exclusion of African Americans from jury venires in violation of the Sixth Amendment; (2) the prosecutor's use of peremptory challenges against several African-American jurors violated the Equal Protection Clause; and (3) the trial court's erroneous instruction on imperfect self-defense violated petitioner's due process right to a fair trial.
1. Jury Selection Process
Petitioner claims that Contra Costa County's jury selection process did not produce a fair and representative number of African Americans on the jury venire panel and that this underrepresentation was due to the systematic exclusion of African Americans from the jury selection process.
The Sixth Amendment guarantees every defendant a jury pool or venire designed to represent a fair cross-section of the community. SeeHolland v. Illinois, 493 U.S. 474, 476 (1990); Taylor v. Louisiana, 419 U.S. 522, 526-31 (1975). In order to establish a prima facie violation of the fair-cross-section requirement, a defendant must show
The fair-cross-section requirement applies only to the larger jury pool or venire; it does not apply to petit juries. See Lockhart v. McCree, 476 U.S. 162, 173-74 (1986) (although 6th Amendment guarantees that petit jury will be selected from pool of names representing cross-section of community, it does not require that petit juries actually chosen must mirror community and reflect various distinctive groups in population).
(1)that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to the systematic exclusion of the group in the jury-selection process.Duren v. Missouri, 439 U.S. 357, 364 (1979). If the defendant makes a prima facie showing, the burden shifts to the state to justify the infringement by demonstrating that attainment of a fair cross-section is incompatible with a significant state interest. See id at 367-68;Thomas v. Borg, 159 F.3d 1147, 1150 (9th Cir 1998).
The California Court of Appeal addressed petitioner's fair-cross-section claim under Duren's three-prong test. It found that African Americans are a cognizable group under Duren and, therefore, that petitioner satisfied the first prong of theDuren test. People v. Currie, No AO84426, slip op at 8 (Cal Ct App. Jan 30, 2001). However, the court concluded that, even if petitioner could satisfy the second prong by showing sufficient underrepresentation of African-Americans jurors in venires, he was not entitled to relief because he did not satisfy the third prong by showing "that the disparity was caused by the `systematic exclusion' of African-American jurors." Id. at 11. Petitioner did not "establish a prima facie case of systematic exclusion of a cognizable class in the jury selection process." Id. at 14.
Petitioner is not entitled to federal habeas relief on his fair-cross-section claim because (1) he does not satisfyDuren's second prong, and because (2) the state courts' determination that he did not satisfy Duren's third prong was not objectively unreasonable under 28 U.S.C. § 2254(d).
To satisfy Duren's second prong, petitioner must show that the representation of African Americans in Contra Costa County venires from which juries were selected was not fair and reasonable in relation to the number of African Americans in the community. Thomas v. Borg, 159 F.3d 1147, 1150 (9th Cir 1998). In federal court, this requires subjecting petitioner's proof, typically statistical data, to an absolute disparity analysis. Id. "We determine absolute disparity by taking the percentage of the group at issue in the total population and subtracting from it the percentage of that group that is represented on the master jury wheel." Id. (citations omitted).
State courts have used several different tests to determine the degree of underrepresentation of minorities on jury venires, including the comparative analysis test on which petitioner relies. However, the Ninth Circuit has made clear that the absolute disparity test applies whenever a petitioner presents a fair-cross-section claim in a federal habeas proceeding. See Thomas, 159 F.3d at 1150; see alsoUnited States v. Royal 174 F.3d 1, 8-9 (1st Cir 1999) (finding that Supreme Court employed absolute disparity test in Duren and that comparative disparity test is irrelevant to 6th Amendment challenge).
By petitioner's most favorable absolute disparity measurement, he shows an absolute disparity of 3.8 percent. Unfortunately for him, this is insufficient to satisfy Duren's second prong in a federal habeas proceeding. See id at 1151 (finding that absolute disparity of 5 percent insufficient to satisfy second prong in federal habeas case). The Ninth Circuit has "consistently held that absolute disparities below 7.7% are insubstantial and constitutionally permissible." United States v. Cannady, 54 F.3d 544, 548 (9th Cir 1995). The disparity in this case is insufficient to make out a prima facie case under the Sixth Amendment. Thomas, 159 F.3d at 1151.
Petitioner is also precluded from federal habeas relief on his fair-cross-section claim because the state courts reasonably determined that he did not meet Duren's third prong by showing that the proven disparity/underrepresentation is due to the systematic exclusion of African Americans from the jury selection process. Petitioner argued in state court, as he does here, that "the chronic nature of the underrepresentation as well as Contra Costa County's refusal to take steps to remedy this problem itself demonstrates systematic exclusion."
The California Court of Appeal acknowledged that the underrepresentation of African Americans on Contra Costa County jury venires, arising from the higher rate of such jurors failing to appear in response to a summons, is a longstanding problem. However, the court carefully explained that there was no evidence of systematic exclusion:
. . . [T]he procedures employed by the county to summon and select persons for jury service are, according to the undisputed evidence, entirely race-neutral. As the evidence disclosed and the trial court ruled, the disparity in representation is attributable to the disproportionately high rate of failures to appear by those summoned for jury service from the county's Bay Judicial District, which is located in the City of Richmond. "Statistical underrepresentation of minority groups resulting from race-neutral . . . practices does not amount to `systematic exclusion' necessary to support a representative cross-section claim. [Citations.]" ( People v. Danielson (1992) 3 Cal.4th 691, 706.)
A prima facie case of systematic exclusion, under Daren's third prong, cannot be established through appellant's claim that the county has failed to adopt other measures, which he suggests might increase the racial representation of African-Americans on jury venires in Contra Costa County. Our high court has repeatedly admonished that such reference to measures not taken by the county is insufficient to establish a prima facie case of systematic exclusion: "`Evidence that "race/class neutral jury selection processes may nonetheless operate to permit the de facto exclusion of a higher percentage of a particular class of jurors than would result from a random draw' is insufficient to make out a prima facie case. ([People v. Morales (1989) 48 Cal.3d 527,] 546, italics in original.)'" (Danielson, supra, 3 Cal.4th at p. 706; see also People v. Sanders (1990) 51 Cal.3d 471, 492-93.)
For example, appellant suggests Contra Costa County might reduce the high failure to appear among African-American jurors by instituting such affirmative measures as "insuring direct transportation" from west county to the site of the trial of this case in Martinez. Even the majority opinion in People v. Buford (1982) 132 Cal.App.3d 288, the only appellate decision crediting a defendant with making out a prima facie case as to Contra Costa County venires, rejected a similar suggestion. (See Buford, supra, at p. 299 ["And we certainly do not suggest that a county should engage in race conscious selection procedures in order to assure representative juries."].)
Contra Costa County is not constitutionally required — and may not even be constitutionally permitted — to implement racially disparate practices such as affirmative action quotas, busing, or other race-based programs in order to correct any underrepresentation caused by factors unrelated to exclusionary features of the jury selection process: "The Sixth Amendment forbids the exclusion of members of a cognizable class of jurors, but it does not require that venires created by a neutral selection procedure be supplemented to achieve the goal of selection from a representative cross-section of the population. ( United States v. Cecil [(4th Cir. 1988)] 836 F.2d 1431, 1447-1449.)" ([ People v. Bell (1989) 49 Cal.3d 502,] 530, italics in original.)
The adoption of other measures, even if constitutionally permissible, would appear to be unavailing as a practical matter. The failure to appear rate for Richmond jurors remains constant, whether jurors are summoned to appear at the local Richmond courthouse or at the superior court in Martinez. In fact, to obtain sufficient jurors to operate the local Richmond courts, the county has been required to increase the frequency of summoning local Richmond residents for jury service. Appellant paradoxically assails the county for doing so, suggesting that local Richmond residents, who are likely to be African-Americans, would be less willing to serve given the greater frequency upon which they are summoned. Appellant however presents no evidence to support such speculation. Even if he were correct, such a phenomenon would not demonstrate the constitutionally impermissible "`systematic exclusion'" of African-Americans allegedly caused by the county's jury selection process. (Bell, supra, 49 Cal.3d at p. 53O.)
In the final analysis, appellant has established nothing more than statistical evidence of disparity; he has not associated the underrepresentation of African-Americans with any constitutionally impermissible feature of the Contra Costa County jury selection process. The procedures employed by the county to summon and select persons for jury service are, according to the undisputed evidence, entirely race-neutral. The lower court found that the disparity in representation is attributable to the disproportionately high rate of failure to appear by those summoned for service in me Bay District. "Statistical underrepresentation of minority groups resulting from race-neutral . . . practices does not amount to `systematic exclusion' necessary to support a representative cross-section claim. [Citations.]" (Danielson, supra, 3 Cal.4th at p. 706.) Nor, as we have found, is the county required to implement racially disparate practices to correct underrepresentation caused by factors unrelated to exclusionary features of the jury selection process.
The evidence presented by appellant fails to establish a prima facie case of systematic exclusion of a cognizable class in the jury selection process. . . .People v. Currie, slip op at 11-14 (footnote omitted).
The California Court of Appeal's rejection of petitioner's fair-cross-section claim was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent, or an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). The state court reasonably determined that petitioner did not make out a prima facie case of systematic exclusion of African Americans in the selection process based on the county's alleged failure to correct underrepresentation caused by factors unrelated to exclusionary features in the jury selection process. SeeThomas, 159 F.3d at 1153 (noting that no case holds that disparity that results notwithstanding application of neutral and presumptively constitutionally permissible jury selection criteria is a product of systematic exclusion). Petitioner is not entitled to federal habeas relief on his Sixth Amendment fair-cross-section claim.
2. Peremptory Challenges
Petitioner, who is African-American, claims that the trial court erred in finding that the prosecutor had legitimate, non-discriminatory reasons for exercising peremptory challenges as to two African-American jurors. He argues that the discriminatory use of peremptory challenges against these two prospective jurors deprived him of his right to equal protection under Batson v. Kentucky, 476 U.S. 79 (1986).
The Equal Protection Clause forbids the exclusion of jurors by peremptory challenge solely on account of their race. Batson, 476 U.S. at 89. Batson permits prompt rulings on objections to peremptory challenges under a three-step process. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Id. at 96-97. That is, the defendant must demonstrate that the facts and the circumstances of the case "raise an inference" that the prosecution has excluded venire members from the petit jury on account of their race. Id at 96. If the defendant makes this showing, the burden then shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Id. at 97. Finally, the court must determine whether the defendant has carried his burden of proving purposeful discrimination. Id. at 98. To fulfill its duty, the court must evaluate the prosecutor's proffered reasons and determine whether there was intentional discrimination. Lewis v. Lewis, 321 F.3d 824, 831 (9th Cir 2003).
During step two, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral. Hernandez v. New York, 500 U.S. 352, 360 (1991).
Here, the record shows that the prosecutor exercised several peremptory challenges, including challenges to three of four prospective African-American jurors — jurors 210, 246 and 287. Petitioner made a "Batson/Wheeler motion" after the prosecutor exercised a peremptory challenge as to each of the three prospective African-American jurors. The trial court found that petitioner had made a prima facie case of discrimination and called upon the prosecution to offer an explanation for the exercise of the challenges. After the prosecutor stated his reasons, the court denied petitioner's motions on the ground that the prosecutor's justifications were race-neutral and not pretextual or insincere.
In California, a party who believes his opponent is using his peremptory challenges to strike jurors on grounds of group bias alone may raise the point by way of a timely motion. See People v. Wheeler, 22 Cal.3d 258, 280 (1978). After Batson, these motions have been commonly referred to in the California courts as"Batson/Wheeler motions."
As he unsuccessfully did on appeal, petitioner now challenges the prosecutor's exercise of peremptory challenges as to jurors 210 and 287.
a. Juror 210
The prosecutor explained that he exercised a peremptory challenge as to juror 210 because this juror's attitude towards the death penalty was not as favorable to the prosecution as that of the other jurors already seated in the jury box, including another African-American juror who had been accepted. Juror 210 had indicated that she was "undecided" about the death penalty. The trial court found this explanation to be a race-neutral, appropriate explanation for the exercise of the peremptory challenge: "She does indicate that she was undecided about the death penalty. She does make that comment, that's true. [¶] All right, based upon the explanation given by [the prosecutor] in this case, I do not find that he excused this person just because she is an African American. Has nothing to do with race. All right."
The California Court of Appeal rejected petitioner's Batson claim as to juror 210 on the ground that there was substantial evidence to support the trial court's ruling that the prosecutor's challenge of juror 210 was based on her skepticism as to the death penalty, rather than on her race. People v. Currie, slip op at 18. The court explained:
The fact that a juror has moral qualms against imposing the death penalty, or is unsure or undecided as to the propriety of this punishment, is a valid, race-neutral reason for the exercise of a peremptory challenge. ( People v. Turner (1994) 8 Cal.4th 137, 171; People v. Walker (1988)47 Cal.3d 605, 624.) Appellant does not dispute that juror 210 was a skeptic on the death penalty, or that her answers constituted a race-neutral basis for the prosecution's actions. Instead, he conducts his own comparative analysis of the jury panel, concluding that this juror's attitude towards the death penalty was no more defense-oriented than that of certain other jurors, some of whom were African-American and some of whom were not, and whom the prosecutor did not challenge. He asserts that juror 210 would otherwise have been pro-prosecution. From this, appellant claims the peremptory challenge was improper, because the reason enunciated by the prosecution was pretextual.
First, we are forbidden to conduct such a comparative analysis of the jurors for the first time on appeal. (See People v. Jones (1997) 15 Cal.4th 119, 162; People v. Williams (1997) 16 Cal.4th 635, 664; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Second, appellant's comparative analysis is unconvincing, and discloses many of the defects which have led our Supreme Court to reject such false comparisons.
It is inaccurate to state that juror 210 was a pro-prosecution juror, quite apart from her skeptical views on the death penalty. Certainly there were some aspects in her background that might have appealed to the prosecutor, but there were others that would have appealed to the defense. For example, that this juror had take classes in law enforcement with the thought of pursuing an occupation in this field might be viewed as a pro-prosecution response. On the other hand, the fact that his juror ultimately rejected that pursuit, had since experienced negative contact with the police, and had voiced unfavorable opinions regarding law enforcement authorities, would be circumstances more favorable to the defense. Most significantly, however, are juror 210's expressed doubts or undecided state of mind as to whether she could impose the punishment sought by the prosecution. As to the other jurors cited by appellant, although expressing some reservations, they all agreed they could impose the death penalty if the circumstances of the crime were "heinous" or "aggravating." On the other hand, juror 210 believed she could avoid having to vote for the death penalty by letting the judge decide the appropriate punishment. Upon learning this was not the case, she was surprised and apparently dismayed. On the limited review we conduct, substantial evidence supports the trial judge's ruling. It was not an abuse of discretion to reject appellant's claim that the prosecutor's challenge of juror 210 was based on her race, rather than her skepticism as to me death penalty. (See People v. Arias (1996) 13 Cal.4th 92, 136.)People v. Currie, slip op at 17-18.
The California Court of Appeal's rejection of petitioner'sBatson claim as to juror 210 was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent, or an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). It is undisputed that a prospective juror's doubts or undecided state of mind as to the death penalty is a valid, race-neutral basis for the exercise of a peremptory challenge. And, importantly, the state trial court's finding that the prosecutor's challenge was based on juror 210's skepticism as to the death penalty, rather that her race, is entitled to a presumption of correctness petitioner does not overcome. SeePurkett v. Elem, 514 U.S. 765, 769 (1995) (trial court's findings on the issue of discriminatory intent are findings of fact entitled to the presumption of correctness in federal habeas review). Petitioner's proffered comparative juror analysis does not compel a different result. See 28 U.S.C. § 2254(e)(1) (petitioner must present clear and convincing evidence to overcome 28 U.S.C. § 2254(e)(1)'s presumption of correctness); Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir), amended, 253 F.3d 1150 (9th Cir 2001) (same). At minimum, the state courts' determination that the prosecutor's peremptory challenge was not based on juror 210's race (even in light of petitioner's proffered comparative juror analysis) is reasonable, which means that it must stand. See Early v. Packer, 123 S Ct 362, 366 (2002).
b. Juror 287
The prosecutor explained that he challenged juror 287 because she was too liberal, and too sympathetic to drug abusers and persons who engage in criminal activity. He noted that juror 287 was a member of the Mary Freeman Missionary Society; her husband was a drug abuser; and he had once been charged with a crime of violence. In addition, juror 287 expressed a preference for the penalty of life without parole over the death penalty and indicated that, to impose the death penalty, she would require proof of guilt "beyond a doubt" rather than proof of guilt "beyond a reasonable doubt." The trial court accepted the prosecutor's explanation for exercising a challenge against juror 287 and rejected petitioner's Batson/Wheeler motion:
The Court notes that this is the third challenge of an African-American in this particular case. The Court has to and does look carefully to the reasons that [the prosecutor] has given for challenging this [juror] and the test isn't whether or not she says she would consider the death penalty, the test is whether or not [the prosecutor] has valid grounds for believing that she could not be, you know, or he has a non-racial basis for challenging this person. And he has articulated reasons.
I do not believe that he's lying. She does, in fact, have a husband who has apparently had an assault. There is a drug history in the past in the family.
As far as her statement about not understanding the burden of proof, I believe she was explained by the Court and I do not have any problem with her understanding that it is proof beyond a reasonable doubt. [The prosecutor] feels maybe she would have a problem with that.
I'm not making any ruling based on that one particular factor. But he has articulated non-race neutral reasons on his basis for excluding her. I do not find that it is based on, you know, simply because he wants to kick every black African-American off the jury. He does have an African-American here that's still on the jury. Therefore, the motion is denied.
Rep Tr at 6341-42.
The California Court of Appeal rejected petitioner's Batson claim as to juror 287 on the ground that there was substantial evidence to support the trial court's ruling that the prosecutor's challenge of juror 287 was not based on her race, but on other race-neutral considerations. People v. Currie, slip op at 20. The court explained:
The fact that the juror's husband was a drug abuser who had been accused of assault and battery was itself a valid, race-neutral reason for exercising the peremptory challenge. (See Williams, supra, 16 Cal.4th at pp. 664-665 [peremptory challenge proper where juror's sons had criminal records].) Likewise, the juror's liberal leanings and her membership ties to the Mary Freeman Missionary Society would suggest she had a tolerant attitude and sympathy for the underdog. While this may speak well of juror 287 as a person, it would also constitute valid reasons for a challenge. (See People v. Trevino (1997) 55 Cal.App.4th 396, 411-412.)
Appellant does not directly contend these reasons are not appropriate race-neutral grounds supporting the exercise of a peremptory challenge. Rather, he again conducts his own comparative analysis of the juror panel, and again reaches the conclusion that the prosecutor's reasons were pretextual. Even if we were permitted to conduct such flawed comparisons, we would find the results unconvincing. Appellant attempts to compare juror 287 to other jurors who had disclosed having relatives with alcohol or drug problems. However, he studiously avoids comparing her to other jurors whose husbands had been prosecuted for crimes of violence, who were liberal members of philanthropic organizations, and who favored imposing the penalty of life without parole over the death penalty. In fact, the other jurors appellant cites in this comparison all favored the death penalty, or had stated that the existence of prior felony convictions (of which appellant had many) would be a significant factor in deciding whether or not to impose the death penalty.
There is ample evidence supporting the trial judge's ruling that the prosecutor's challenge to juror 287 was not based on race, but on other race-neutral considerations. (See Arias, supra, 13 Cal.4th at p. 136.)People v. Currie, slip op at 19-20.
The California Court of Appeal's rejection of petitioner'sBatson claim as to juror 287 was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent, or an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). It is well-established that the reasons offered by the prosecutor for challenging juror 287 are valid, race-neutral bases for the exercise of a peremptory challenge. See, e.g., United States v. Smith, 223 F.3d 554, 569 (7th Cir 2002) (accepting as valid and race-neutral challenge based on juror being "social worker type" thought to be too sympathetic to defendants, and challenge based on juror's brother having been prosecuted for drugs). And, importantly, the state trial court's finding that the prosecutor's challenge was not based on juror 287's race, but on other race-neutral considerations, is entitled to a presumption of correctness petitioner does not overcome. See 28 U.S.C. § 2254(e)(2); Purkett, 514 U.S. at 769. The record makes clear that, after carefully considering the race-neutral reasons given by the prosecutor for challenging juror 287, the state trial court reasonably determined that the prosecutor was being truthful and that there was no discriminatory intent. See Lewis v. Lewis, 321 F.3d 824, 830 (9th Cir 2003) (noting that determination of whether there was discriminatory intent turns largely on trial court's evaluation of prosecutor's credibility). Petitioner is not entitled to federal habeas relief on his Batson claim as to juror 287. The state courts' determination that the prosecutor's peremptory challenge was not based on juror 287's race (even in light of petitioner's proffered comparative juror analysis) is reasonable and therefore must stand. See Early v. Packer, 123 S Ct 362, 366 (2002).
3. Imperfect Self-Defense Instruction
Petitioner claims that the trial court erred when instructing the jury on imperfect self-defense using the standard jury instruction CALJIC No. 5.17.
As given by the court, the instruction stated:
A person, who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully, but does not harbor malice aforethought and is not guilty of murder. This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief Such an actual but unreasonable belief is not a defense to the crime of voluntary or involuntary manslaughter.
As used in this instruction, an "imminent" peril or danger means one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer.
However, this principle is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary's use of force, or attack.
Rep Tr at 9225-26. Petitioner specifically contends that: (1) the trial court should have omitted the last or third paragraph of the standard instruction; (2) the trial court should have defined the terms "unlawful or wrongful conduct" and "legally justified," as used in the last paragraph of the instruction; and (3) there was no substantial evidence to support this particular aspect of the instruction on imperfect self-defense. He claims that the instructional error denied him the fair trial guaranteed by the Due Process Clause.
To obtain federal habeas relief for error in the jury charge, petitioner must show that the error "so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72 (1991). The error may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. Id.
Where ambiguous or potentially defective instructions are at issue, the court must inquire whether there is a "reasonable likelihood" that the jury has applied the challenged instructions in a way that violates the Constitution. See id at 72 n4; Boyde v. California, 494 U.S. 370, 380 (1990). However, a determination that there is a reasonable likelihood that the jury has applied the challenged instructions in a way that violates the Constitution establishes only that a constitutional error has occurred.Calderon v. Coleman, 525 U.S. 141, 146 (1998). If constitutional error is found, the court also must determine that the error had a substantial and injurious effect or influence in determining the jury's verdict before granting habeas relief. Id. at 146-47 (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
Petitioner's first contention — that the trial court should have omitted the last or third paragraph of the instruction because it misstates the law on imperfect self-defense — involves a claim of state law error not cognizable in federal habeas proceedings. SeeEstelle, 502 U.S. at 67-68; see also Peltier v. Wright, 15 F.3d 860, 861-62 (9th Cir 1994) (federal writ of habeas corpus unavailable for violations of state law or for alleged error in the interpretation or application of state law). Moreover, the California Court of Appeal's conclusion that "[t]he last paragraph of CALJIC No. 5.17, even when read alone, does not recite an erroneous principle of [California] law," People v. Currie, slip op at 23, is binding on this court. See Hicks v. Feiock, 485 U.S. 624, 629-30 (1988) (determination of state law by state appellate court is binding in federal habeas action).
Petitioner's second contention — that the trial court should have defined the terms "unlawful or wrongful conduct" and "legally justified," as used in the last paragraph of the instruction — was carefully considered by the California Court of Appeal. People v. Currie, slip op at 24-26. The court noted that the premise of petitioner's contention was that not every unlawful or wrongful act creates circumstances that legally justify the use of deadly force in response; according to petitioner, unlawful conduct, such as a simple assault or an attempt to purchase drugs, could be misinterpreted by the jury as constituting the requisite "unlawful or wrongful conduct" legally justifying Maldonado's (the victim) exercise of deadly force in response. Id. at 24. The court rejected the claim:
Considering the jury instructions as a whole, we do not find that further definition or amplification of these commonly understood terms was required in order for the jury to apply the legal principles of CALJIC No. 5.17. (See People v. Anderson (1996) 64 Cal.2d 633, 639-640; People v. Ordonez (1991) 226 Cal.App.3d 1207, 1229-1230; People v. Tatman (1993) 20 Cal.App.4th 1, 13.) First of all, CALJIC No. 5.17 discusses the killing relative to the defendant's unreasonable belief in the necessity to defend against "imminent peril to life or great bodily injury." This language essentially directs the jurors to consider the doctrine of imperfect self-defense, focusing upon the actions of the victim and appellant in close temporal proximity to the killing, rather than upon attenuated wrongful or unlawful conduct.
Additionally, other self-defense instructions such as CALJIC No. 5.12 (justifiable homicide in self-defense), speak only of using deadly force in self-defense in order to avoid "death or great bodily injury." These instructions served to reinforce the notion that justification for Maldonado's use of deadly force could only have been created by "wrongful or unlawful conduct" that threatened death or great bodily injury. Under the instructions given to the jury, appellant's attempt to purchase drugs, or his purported assault on Maldonado by nondeadly force (of which there was no evidence), would not create a circumstance permitting the victim to use deadly force in response. Nor would appellant, in either instance, be precluded from invoking the doctrine of self-defense.
The trial court's instructions did not cause the jury to misunderstand or misapply the unreasonable self-defense doctrine. Considered as a whole, the court's instructions of law fairly informed the jury as to the nature of appellant's unlawful or wrongful conduct which would create the circumstances legally justifying his victim's use of force or attack.
Even if we were to find error, we would find it to be harmless. Reversal for improper instruction on a theory of manslaughter, such as imperfect self-defense, is not warranted unless it appears reasonably probable from the entire record that a defendant would have achieved a more favorable result in the absence of such error. ( People v. Breverman (1998) 19 Cal.4th 142, 149.)
In the present case, the evidence supports the jury's verdict of second degree murder. After the two men argued, appellant armed himself with a handgun, approached the vehicle, and shot Maldonado who was seated in his car. The evidence supports the jury's implied finding that he made no effort to overly harm appellant. Further, the jury was properly instructed as to the two degrees of murder, voluntary and involuntary manslaughter, justifiable homicide, self-defense and, as we have ruled, imperfect self-defense. Under the circumstances, it is not reasonably probable that appellant would have achieved a more favorable result even if different or more extensive imperfect self-defense instructions were required to have been given. (See Breverman, supra, 19 Cal.4th at p. 149; People v. Watson (1956) 46 Cal.2d 818, 836.)People v. Currie, slip op at 25-26.
The California Court of Appeal's rejection of petitioner's second contention was not contrary to, or unreasonable application of, clearly established Supreme Court precedent, or an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). The state appellate court reasonably determined that, when considered as a whole, the instructions fairly informed the jury that only unlawful or wrongful conduct that threatened death or great bodily injury could justify Maldonado's use of force or attack. See Estelle, 502 U.S. at 72 (alleged jury instruction error must be considered in the context of the instructions as a whole and the trial record). After all, the first sentence of CALJIC No. 5.17 itself states that self-defense applies to a "person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury." and the other given instructions on perfect or complete self-defense informed the jury that the killer would be fully justified in using deadly force onlyif "imminently threatened with death or great bodily injury." Under the circumstances, it simply cannot be said that there is a reasonable likelihood that the jury understood petitioner's non-deadly attempt to purchase drugs (or his claimed simple, non-deadly assault) as justifying Maldonado's responsive use of deadly force and thus precluding petitioner's invocation of imperfect self-defense. See id. The California Court of Appeal's rejection of petitioner's second contention regarding CALJIC No. 5.17 was not objectively unreasonable. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 409 (2000).
Petitioner's third contention — that there was no substantial evidence to support the last or third paragraph of the instruction on imperfect self-defense — was also carefully considered, and rejected, by the California Court of Appeal. People v. Currie, slip op at 23-34. The court explained:
The record contains considerable evidence that leads us to conclude that appellant created the circumstances which could have justified Maldonado's use of force. For example, the evidence disclosed that the two armed men, Maldonado and appellant, were arguing over another handgun appellant claimed to own. According to appellant, as he approached the vehicle, the victim moved his gun from the car seat to an area between his lees. Maldonado did not point the gun at appellant, but the latter pulled his own gun from the waistband and held it at his side. From appellant's own version of the facts, the appellant's act of pulling his weapon can reasonably be viewed as an escalation of the verbal argument that was taking place, justifying the victim's purported response of pointing his weapon at appellant. Maldonado's act of reaching for his weapon, if this occurred at all, only took place after appellant had already introduced a gun into verbal argument, thereby creating the dangerous situation. Although conflicting on this point, substantial evidence nevertheless exists showing that, if appellant was placed in peril, such peril was of his own making. In light of these facts, the lower court correctly refused appellant's request for an instruction on imperfect self-defense that would have omitted the legal principle contained in the instruction's final paragraph.
Id.
The California Court of Appeal's rejection of petitioner's third contention was not contrary to, or unreasonable application of, clearly established Supreme Court precedent, or an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). As the state appellate court makes clear, there was ample evidence showing that petitioner created circumstances which would have justified Maldonado's use of deadly force. On the evidence presented, it was a question for the jury which of the two men jockeying for position was the wrongdoer who caused the fatal event. The California Court of Appeal's rejection of petitioner's third contention regarding CALJIC No. 5.15 was not objectively unreasonable. See 28 U.S.C. § 2254(d); Williams, 529 U.S. at 409.
Petitioner is not entitled to federal habeas relief on his instructional error due process claim. Like the California Court of Appeal, this court is satisfied that there is no reasonable likelihood that the jury applied CALJIC No. 5.17 in a way that violates the Constitution, or that the alleged errors had a substantial and injurious effect or influence in determining the jury's verdict. See Calderon v. Coleman, 525 U.S. 141, 146-47 (1998).
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.
The clerk shall enter judgment in favor of respondent and close the file.
SO ORDERED.