Opinion
No. C 02-3657 SI (pr)
June 10, 2003
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
This matter is now before the court for consideration of the merits of Adan Hernandez's pro se petition for writ of habeas corpus concerning his 1999 murder conviction. For the reasons discussed below, the petition will be denied.
BACKGROUND
A. The Crimes
The California Court of Appeal described the evidence of the crimes leading to Hernandez's murder conviction:
Around 4:30 p.m. on March 12, 1998, defendant's Chevy Blazer collided with a Lincoln Continental that was parked on the street outside Togami's auto repair shop on Almaden Avenue in San Jose. The collision pushed the Blazer into Carolyn Burton s car. Burton was waiting to pick up her car while Eric Togami, Frank's son, added oil to it. The Blazer lurched back and forth, hitting the left rear of the Continental a second time.
Frank Togami, born in February 1926, came out of his son's shop and tried to stop defendant by waving his hands in front of the truck. The Blazer lurched towards him. Frank started moving out of the street. The Blazer came at him. Frank jumped onto the hood and held onto a brush guard. Defendant's face was expressionless. Eric, Burton, and other onlookers yelled at defendant to stop. He raced off at high speed, running a red light, with Frank clinging to the hood.
Defendant next collided with a Corsica driven by Al Collins, who was stopped at an intersection. Defendant was driving too fast to make the turn from Almaden onto Reed. The Blazer hit the left rear of the Corsica. Frank Togami, who was still clinging to the Blazer's hood, was either crushed against the Corsica, according to Randy Jackson, or thrown off by the impact, according to Stacey Lorenzi-Douglas. The Blazer backed up and drove forward, maneuvering through a tight spot to get into the clear. In driving forward, defendant ran over Frank, who died at age 72 01 multiple traumatic internal injuries.
Defendant next collided with a Toyota Tercel driven by Abri Ibrahim. Ibrahim was just starting to enter an intersection after the light turned green when defendant came through the intersection and hit the passenger side of his car.
Defendant next collided with a Nissan pickup truck driven by Andrea Sturdevant. He rear-ended her while she was stopped at a red light. The impact totaled her vehicle and caused her ongoing headaches.
Defendant drove away from this collision, by now with several vehicles in pursuit. He was traveling too fast to make the turn onto an on-ramp to the 280 freeway and drove into the bushes, running over a sign. Defendant slowly got out of the Blazer and started walking down the street.
Cal. Ct. App. Opinion, pp. 2-3 (footnote omitted). In the back seat of Hernandez's Blazer was a keg of beer with the tap hose running up to the front seat and a partly full cup of beer in the front seat. (The prosecutor argued at trial that the partly full cup of beer at the end of the driving episode supported the inference that "he poured himself a beer because the way he's been driving the beer would have slushed out of the cup." RT 317.)
Once Hernandez got out of his Blazer and unsteadily began to walk away, he was aided by a firefighter who came upon the scene. At the firefighter's request, Hernandez sat down and waited. A police officer who responded noticed that Hernandez had a strong odor of alcohol about him, had watery and bloodshot eyes, slurred speech, and was unable to walk without assistance. A blood sample taken from Hernandez after he was taken to the police station showed a blood alcohol level of .32%.
At trial, one toxicologist testified for the prosecution and another toxicologist testified for the defense. According to both toxicologists, a blood alcohol level of .32% could kill an inexperienced drinker and at such a high level, the drinker's perception, coordination and judgment would be depressed and impaired. The prosecution's toxicologist testified that one with a blood alcohol level of .30% or above could operate a motor vehicle "`but yet be unable to effect conscious decision-making.'" Cal. Ct. App. Opinion, p. 4. Defense toxicologist Anne Imobsteg testified that person with a high blood alcohol level "has `problems . . . connecting the dots. In other words, they see something, they don't understand what the heck is going on, and they don't know how to respond because they don't understand what they're seeing.' `Somebody could operate a motor vehicle at that level and not be aware of what they're doing but just doing it by habit or practice but yet not be fully functional in understanding what they're doing.' It is possible to be capable of operating a motor vehicle `even though one is not capable or is incapable of conscious decision-making due to alcohol consumption.'" Cal. Ct. App. Opinion, p. 4.
The defense presented evidence at trial that a friend of Hernandez's saw him that afternoon and, when the friend greeted Hernandez, Hernandez did not seem to recognize him and appeared to be very drunk.
Evidence also was presented that Hernandez had a previous drunk driving conviction and that his license was suspended after the current crimes for not completing a court-ordered alcohol education program.
B. Case History
Following a jury trial in Santa Clara County Superior Court in September 1999, Hernandez was convicted of second degree murder involving the personal use of a deadly weapon, and felonious driving under the influence of alcohol causing injury. The trial court found true allegations that Hernandez had two prior convictions for driving under the influence. Hernandez was sentenced to nineteen years to life in prison.
He appealed. The California Court of Appeal affirmed the judgment of conviction and the California Supreme Court denied Hernandez' petition for review.
On July 30, 2002, Hernandez filed this action for a federal writ of habeas corpus. Hernandez alleged the following cognizable federal constitutional claims in his petition: (1) his right to due process was violated by the admission of evidence of a prior drunk driving conviction to prove his mental state and the refusal to give an appropriate limiting instruction, (2) his right to due process was violated when the court failed to properly instruct on voluntary intoxication and unconsciousness with regard to the weapon use enhancement, (3) his rights under the First, Fifth, Sixth, and Fourteenth Amendments were violated by jury instructions that prohibited jury nullification and had a chilling effect on deliberations, and (4) he received ineffective assistance of trial counsel in that counsel failed to ask for a limiting instruction on the use of a prior drunk driving conviction and failed to ask for correct instructions on voluntary intoxication with regard to the deadly weapon enhancement. Respondent filed an answer to the court's order to show cause why the writ should not issue, and Hernandez filed a traverse. The matter is now ready for consideration on the merits.
JURISDICTION AND VENUE
This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in Santa Clara County, California, which is located within this judicial district. 28 U.S.C. § 2241(d).
STANDARD OF REVIEW
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petition 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): see Williams (Terry) v. Taylor, 529 U.S. 362, 120 S. Ct 1495 (2000).
EXHAUSTION
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c). The parties agree that state court remedies were exhausted for the claims in the present petition.DISCUSSION
A. Evidence of The Prior Conviction
At trial, evidence was admitted that Hernandez had suffered a prior misdemeanor conviction for drunk driving. According to the docket for the 1997 misdemeanor conviction admitted in evidence, Hernandez was ordered not to consume intoxicating liquors and drive. The 1997 court minutes indicated that Hernandez was to complete an alcohol education program. A DMV record dated September 30, 1998 showed that Hernandez's license was suspended effective May 13, 1998 because he had not completed the alcohol education program. In her closing argument, the prosecutor argued that the prior conviction and order to complete an alcohol education program showed implied malice. The prosecutor commented on the evidence that Hernandez had not completed the ordered alcohol education class: "Now I guess there is two ways of looking at that. You might think, Well, if he had gone, then they would have told him it's dangerous and he would have known, and the fact that he didn't go he has no way of knowing that driving under the influence is a bad idea. Well, yeah, but I think the reasonable inference is that he doesn't go because he doesn't care. It's that wanton and reckless disregard for any life except his own." RT 315.
Hernandez actually had two prior drunk driving convictions, although the prosecutor only introduced evidence of the 1997 conviction at trial. Hernandez had unsuccessfully moved in limine to exclude the evidence of both convictions. RT 46-47, 61.
The state appellate court found that there was substantial evidence that Hernandez was ordered to attend an alcohol education program. That unrebutted determination is presumed correct by this court.See 28 U.S.C. § 2254(e)(1).
Hernandez claims three errors with regard to this evidence: (a) a due process violation in its admission, (b) a due process violation from the failure to provide a limiting instruction, and (c) ineffective assistance of counsel for failing to seek a limiting instruction. Rarely does a case illustrate the harmless error principle as well as this one does.
1. Admission of Evidence
The state court's evidentiary ruling may be addressed in a federal habeas action only if it violated federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process.See Pulley v. Harris, 465 U.S. 37, 41 (1984); Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995). Failure to comply with state rules of evidence is neither a necessary nor a sufficient basis for granting federal habeas relief on due process grounds. See Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). Only if there are no permissible inferences that the jury may draw from the evidence can its admission violate due process. See id. at 920.
There was a permissible inference that a jury could draw from Hernandez's prior drunk driving conviction and failure to attend the ordered alcohol education program. The jury could infer from this evidence that he acted with implied malice — express or implied malice being required for the killing to be a murder. Under state law, a prior drunk driving conviction is relevant to prove the defendant's subjective awareness of the risks of drunk driving. Cal. Ct. App. Opinion, p. 6. And participation in an alcohol education program after conviction is probative that a defendant was aware of the risks involved in drunk driving, although attending such a program is not a prerequisite to finding implied malice. Id. "The dangers of drinking and driving are virtually indisputable (Evid. Code, §§ 451, subd. (f), 452, subd. (h)) and have received widespread publicity in our society. Suffering a criminal conviction for driving while intoxicated, with its attendant penalties and punishments, should bring this message home to a driver. We regard a prior conviction alone as probative of the state of mind of a person who drinks and drives again. As the prosecutor argued, defendant's disregard of an order to attend a program was also indicative of his mental state." Cal. Ct. App. Opinion, p. 7.
The court gave this instruction on second degree murder: "Murder of the second degree is the unlawful killing of a human being when: [¶] One. The killing resulted from an intentional act; [¶] Two. The natural consequences of the act are dangerous to human life; and [¶] Three. The act was deliberately performed with knowledge of the danger to and with conscious disregard for human life, [¶] When the killing is the direct result of such an act, it is not necessary to establish that the defendant intended that his act would result in the death of a human being." RT 345. The court also instructed on implied malice. RT 344.
The evidence of the prior conviction and the failure to attend the alcohol education program was properly admitted under state law and the jury could draw the permissible inference from the evidence that Hernandez acted with the malice necessary for a second degree murder when he killed the victim. Although Hernandez had not completed the alcohol education program by the time of the current offense, merely being ordered to take the class after his conviction imparted knowledge that drunk driving was a dangerous activity to be avoided. The fact that five months had passed and he had not bothered to attend the program supported the prosecutor's restrained comment that that itself evidenced Hernandez's disregard for others' safety. There was no federal constitutional error in the admission of the evidence.
Even if there had been no permissible inference that could be drawn from the evidence, any error resulting from its admission would have been harmless. The facts of the current crime were extremely inflammatory: Hernandez ran down an elderly man and drove for several blocks with the man clinging for life on the hood of his car until the man was dislodged when Hernandez ran into another car. Hernandez then drove over the man's body, crushing it, before driving off to hit more vehicles. All this was topped off by Hernandez having a tapped keg of beer and a partly full cup of beer in his vehicle when he finally stopped. After having this vivid and terrible picture painted for it, the jury would not have been swayed a whit by learning the additional fact that Hernandez had an earlier drunk driving conviction and had failed to attend the alcohol education program. This is especially so in light of the fact that the killer's identity was not in dispute and the fact that the killer had a .32% blood alcohol level. While a prior conviction might in some cases improperly tilt the evidentiary balance, it did not do so here. See Brecht v. Abrahamson, 507 U.S. 619, 623, 637 (1993) (to obtain habeas relief on the basis of an evidentiary error, a petitioner must show that the error had "a substantial and injurious effect" on the verdict).
2. Absence of Limiting Instruction
Hernandez contends that his right to due process was violated when the trial court failed to instruct the jury that his prior conviction was relevant only to show his state of mind and should not be used to prove disposition to commit crimes or that he was a person of bad character. The jury was not instructed that any evidence was admitted for a limited purpose. The California Court of Appeal rejected Hernandez's claim that the trial court had any duty to instruct sua sponte on the limited relevance of a defendant's prior criminal conduct. Cal. Ct. App. Opinion, p. 9. And the appellate court rejected the argument that defense counsel was ineffective in failing to ask for one, finding that no prejudice resulted from the absence of a limiting instruction: "[T]he evidence of defendant's prior conviction was not presented in an inflammatory way. The prosecutor properly argued its limited relevance. The facts of the instant case eclipse the potential prejudice of a prior misdemeanor conviction." Cal. Ct. App. Opinion, p. 9.
A state trial court's failure to give a jury instruction does not alone raise a ground cognizable in a federal habeas corpus proceeding. See Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). The error must so infect the trial that the defendant was deprived of the fair trial guaranteed by the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. See id. Whether a constitutional violation has occurred will depend upon the evidence in the case and the overall instructions given to the jury. See Duckett v. Godinez, 67 F.3d 734, 745 (9th Cir. 1995), cert. denied, 517 U.S. 1158 (1996). An examination of the record is required to see precisely what instructions were given and what were refused and whether the given instructions adequately embodied the defendant's theory. See United States v. Tsinnijinnie, 601 F.2d 1035, 1040 (9th Cir. 1979),cert. denied, 445 U.S. 966 (1980). If an 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, see Brecht v. Abrahamson, 507 U.S. at 637, before granting relief in habeas proceedings.
Here, the absence of a limiting instruction was, at most, harmless error. Any error was harmless because a limiting instruction would not have changed the outcome. As explained earlier, the evidence regarding the current crime painted a vivid and terrible picture for the jury. By contrast, the evidence of the prior conviction was not inflammatory and the prosecution did not emphasize the evidence except to mention it on the permissible point that it showed malice. Hernandez fails to persuade with his argument that, without a limiting instruction, the jury could consider this evidence to show that he was a bad person or had a propensity to commit a crime. It is foolhardy to think that the evidence of the prior conviction and failure to attend an alcohol education program worsened the jury s view of this defendant in light of the inflammatory nature of his current crime. And the absence of an instruction that the evidence could not be used to show propensity did not have a substantial and injurious effect or influence in determining the jury's verdict, especially in light of the fact that there was no dispute that Hernandez was the driver of the vehicle that killed the victim and that he had a .32% blood alcohol level at the end of his drunk driving episode. There was no real question that some crime had taken place; there was no question that someone had died during the event; there was no real question that Hernandez was the driver and had perpetrated at least some crime. With at least four separate collisions with other vehicles, a dead victim crushed by his car, an extremely high blood alcohol level, a tapped keg, and a partly full cup of beer in his car, a limiting instruction about the use of a prior conviction would have made no difference at Hernandez's trial. Hernandez is not entitled to the writ on this claim.
3. Ineffective Assistance Of Counsel Claim
The Sixth Amendment to the U.S. Constitution guarantees not only assistance, but effective assistance, of counsel. See Strickland v. Washington, 466 U.S. 668. 686 (1984). The purpose of the right is to ensure a fair trial, and the benchmark for judging any claim of ineffectiveness is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. To prevail on an ineffective assistance of counsel claim, a habeas petitioner must show that (1) counsel's performance was "deficient," i.e., his "representation fell below an objective standard of reasonableness" under prevailing professional norms, id. at 687-88, and (2) prejudice flowed from counsel's performance, i.e., that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. See id. at 691-94.
The analysis of Hernandez's ineffectiveness claim is quite simple: it fails for a lack of a showing of prejudice. Because the absence of a limiting instruction made no difference to the jury's verdict, Hernandez cannot show any prejudice resulting from counsel's failure to seek such an instruction. He is not entitled to the writ on this claim.
B. Failure To Instruct On Intoxication Regarding The Weapon Enhancement
Hernandez alleges that his right to due process was violated by the trial court's failure to instruct that voluntary intoxication could negate the specific intent necessary for the weapon use enhancement allegation. He contends that the weapon use enhancement allegation required the prosecution to prove that he intended to use his car as a dangerous and deadly weapon, and that voluntary intoxication was probative on the absence of such intent. The California Court of Appeal determined that personal use of a deadly weapon was not a specific intent enhancement under California law and a voluntary intoxication instruction was therefore irrelevant. Cal. Ct. App. Opinion, ¶ 16-17. The California appellate court determined that the underlying premise of Hernandez' argument was wrong as a matter of state law.
A federal habeas court generally will not revisit a determination of state law by the state appellate court. See Hicks v. Feiock, 485 U.S. 624, 629 (1988) (court is not free to review state court's determination of state law); cf id at 630 n. 3 (quoting West v. American Telephone Telegraph Co., 311 U.S. 223, 237-38 (1940) (determination of state law made by an intermediate appellate court must be followed and may not be "`disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise'")). Once one accepts that under California law voluntary intoxication provides no defense to the sentence enhancement allegation, the habeas result is inevitable. The trial court's failure to give an instruction that was not a correct statement of California law did not violate Hernandez's right to due process. He is not entitled to the writ on the claim.
Hernandez also makes the related argument that his counsel was ineffective for not seeking an instruction that voluntary intoxication could negate the specific intent necessary for the weapon use enhancement allegation. This portion of his claim fails for lack of a showing of the prejudice required for a successful ineffectiveness claim. See Strickland v. Washington, 466 U.S. at 691-94. If counsel had requested the instruction, the request would have been denied because such an instruction would not have been a correct statement of California law. Hernandez was not prejudiced by his counsel's failure to seek the erroneous instruction. He is not entitled to the writ on this claim.
C. Refusal To Instruct On Unconsciousness
Hernandez argues that the trial court should have given the requested instruction on unconsciousness because it was his theory of the case. The trial court refused to give the instruction, staying there was no evidence of unconsciousness and that it appeared that Hernandez acted voluntarily. Hernandez appears to concede that the unconsciousness caused by voluntary intoxication was not a defense to second degree murder, and instead argues that it could have been used to negate the existence of the specific intent to use the car as a deadly and dangerous weapon for the purposes of the sentence enhancement. Petition, ¶. 22-23.
On appeal, Hernandez made the claim that he now abandons, i.e., that the trial court erred in failing to instruct on unconsciousness as a defense to the murder charge. The California Court of Appeal rejected Hernandez's claim that the trial court erred in refusing to give CALJIC 8.47 because no prejudice was caused by its omission. Under state law, voluntary intoxication was not admissible to negate implied malice after a change in the law in 1995. See Cal. Ct. App. Opinion, pp. 12-13. The court also found that the omission of the instruction was harmless if it was error, in light of the other instructions given. "The unconsciousness instruction would have asked the jury to determine whether defendant was completely unaware of his actions. In order to convict defendant of second-degree murder, the jury had to find under the given instructions that defendant acted with a `conscious disregard for human life.' Since the jury necessarily resolved that defendant was not unconscious, we conclude that the omission of an instruction like CALJIC No. 8.47 was harmless." Cal. Ct. App. Opinion, p. 13.
California Penal Code § 22 was amended in 1995, a few years before the killing at issue here, so that it now provides:
(a) No act committed while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act.
(b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.
(Emphasis added.)
Hernandez's claim that the failure to instruct on unconsciousness taints the weapon use enhancement finding has no merit. As described in the preceding section, the weapon use enhancement allegation didnot require the prosecution to prove that he intended to use his car as a dangerous and deadly weapon. In light of the determination that the California weapon use sentence enhancement does not require a specific intent and in light of the absence of any argument from Hernandez that unconsciousness would be relevant to a general intent weapon use sentence enhancement, there was no due process violation when the court did not instruct on unconsciousness. He is not entitled to the writ on this claim.
D. Use of CALJIC 17.41.1.
At trial, the court included in the jury instructions CALJIC 17.41.1, which provides: "The integrity of a trial requires that jurors at all times during their deliberations conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law, or to decide the case based on penalty or punishment, or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation." RT 360. Hernandez alleges that CALJIC No. 17.41.1 interfered with jurors' First Amendment rights and interfered with his Sixth Amendment right to trial by jury and Fourteenth Amendment rights to due process and a fair trial. He also claims that the instruction infringed upon the practice of jury nullification.
The California Court of Appeal determined that, in the context of all the instructions given, the instruction was not troublesome.
In considering the impact of CALJIC 17.41.1, we ask what is new about it. 17.41.1 reinforces the message of CALJIC No. 1.00 that jurors must accept the law whether or not they agree with it. It reinforces the message of CALJIC No. 17.40 that each juror should engage in deliberations. It reinforces the message of CALJIC No. 17.42 that jurors must not consider penalty or punishment. All that we see as new is that CALJIC No. 17.41.1 imposes an obligation of each juror to report possible misconduct in deliberations to the trial court.
Cal. Ct. App. Opinion, p. 19. A juror's refusal to deliberate or inability to obey the court's instructions on the law provides good cause for his discharge and the court has the power to inquire about such problems. Id. at 19-20. The appellate court thought the instruction was "designed to expose jury misconduct and not to curtail legitimate deliberations. No juror should fear being reported for engaging in deliberations within the bounds of the given instructions." Id. at 20. And the court rejected the notion that the instruction increased the danger of majority coercion of a holdout juror. The state appellate court also rejected the idea that the instruction infringed on a defendant's right to jury nullification, noting that there was no such legally recognized right.
The California Court of Appeal's rejection of Hernandez's claims was not contrary to, or an unreasonable application of, clearly established federal law as set forth by the U.S. Supreme Court. The U.S. Supreme Court and the Ninth Circuit Court of Appeals have not addressed the constitutionality of CALJIC 17.41.1, or an instruction like it, as suggested by the dearth of any relevant authority from either court in Hernandez' petition. The California Supreme Court has, however, addressed the constitutionality of CALJIC 17.41.1 recently in People v. Engelman, 28 Cal.4th 436 (Cal. 2002). That court determined that the instruction did not infringe on a defendant's federal or state right to trial by jury or his state right to a unanimous verdict. Id. at 439-440. Nonetheless, the court determined that the instruction should not be used in the future because it had "the potential to intrude unnecessarily on the deliberative process and affect it adversely — both with respect to the freedom of jurors to express their differing views during deliberations, and the proper receptivity they should accord the views of their fellow jurors." Id. at 440.
The instruction does not misstate the law: a juror may not refuse to deliberate, may not disregard the law, and may not decide the case based on penalty or punishment or any other improper basis. The nub of Hernandez's argument is that it was wrong to remind the jurors to police each others behavior and to promptly report to the court any violation of these basic rules. Hernandez fails to show a constitutional violation.
There is no clearly established federal law that a defendant has a right cognizable in federal habeas for an alleged violation of a juror's First Amendment rights. Although a criminal defendant has standing to assert a claim based on a violation of a juror's rights under the Equal Protection Clause, see Powers v. Ohio, 499 U.S. 400, 415 (1991), Powers does not give criminal defendants carte blanche to raise any and all claims on behalf of jurors. Because there was no clearly established federal law that a defendant can assert a juror's First Amendment claim, the state court's rejection of Hernandez's First Amendment challenge cannot result in any relief in this habeas action.See 28 U.S.C. § 2254(d)(1). Moreover, the instruction does not appear to interfere with jurors' First Amendment rights any more than instructions requiring the jurors to deliberate do.
Hernandez also suggests that CALJIC 17.41.1 deprives him of his right of jury nullification. Jury nullification is a reality, but it is not a right under the Constitution, laws or treaties of the United States.See Crease v. McKune, 189 F.3d 1188, 1194 (10th Cir. 1999) (noting no right to jury nullification in the context of federal habeas review); cf United States v. Powell, 955 F.2d 1206, 1213 (9th Cir. 1992) (federal defendants are not entitled to jury nullification instructions). Any instruction that arguably impeded the non-existent right did not violate the Constitution, laws or treaties of the United States and cannot warrant habeas relief.
Under California law, jurors have the ability to nullify or disregard the court's instructions and the evidence, and return a verdict contrary to the law and the evidence, but they have no right of nullification regarding the applicable legal principles which govern their role as factfinders. People v. Williams, 25 Cal.4th 441, 454 (Cal. 2001).
Hernandez also argues that CALJIC 17.41.1 violates his Sixth and Fourteenth Amendment rights to a jury trial and a fair trial. The California Court of Appeal's rejection of these constitutional claims was not contrary to or an unreasonable application of clearly established federal law. The instruction does not require that every word exchanged in deliberation be reported, or that a holdout juror be reported. Rather, the instruction attempts to ensure the proper functioning of the jury by enabling the trial court to investigate jury misconduct if necessary.
Even if instructing the jury with CALJIC No. 17.41.1 was erroneous, Hernandez is not entitled to federal habeas relief because he has not shown that the instruction so infected the entire trial that the resulting conviction violates due process. See Estelle v. McGuire, 502 U.S. 62, 72 (1991). As discussed earlier, in reviewing the faulty instruction, the court inquires whether there is a "reasonable likelihood" that the jury has applied the challenged instruction in a way that violates the Constitution. Id. at 72 n. 4. If an error is found, the court must also determine that the error had "a substantial and injurious effect or influence in determining the jury's verdict before granting relief in habeas proceedings." Brecht v. Abrahamson, 507 U.S. at 637. It does not appear that CALJIC 17.41.1 had "a substantial and injurious effect" on the jury's verdict. There is no indication that the jury had any considerable difficulty in reaching the verdicts. There also was no evidence that the court was informed that any juror was refusing to follow the law or that the challenged instruction affected the verdict.
The state court's rejection of Hernandez's claims was not contrary to or an unreasonable application of clearly established federal law. Hernandez is not entitled to the writ.
JUDGMENT
The petition for writ of habeas corpus is denied on the merits.
IT IS SO ORDERED AND ADJUDGED.