Opinion
No. C 01-1090 MMC (PR)
October 8, 2002
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Xieng Khou ("petitioner") is a California prisoner proceeding pro se, who filed this habeas corpus petition pursuant to 28 U.S.C. § 2254. After an initial review, the Court dismissed two of the claims for failure to state a cognizable basis for federal habeas relief, and ordered respondent to show cause why the petition should not be granted on the basis of petitioner's third claim. Respondent has filed an answer supported by a memorandum and exhibits contending that the third claim should be denied on its merits. Though offered an opportunity to do so, petitioner has not filed a traverse.
FACTUAL BACKGROUND
"This factual background is derived from the opinion of the California Court of Appeal (hereinafter "Slip Op."), which has been lodged as respondent's Exhibit E.
At 10:30 a.m. on September 10, 1991, officers from the Oakland Police Department were dispatched to a residential robbery in progress at the Chan residence. According to the dispatcher, Yuet Chan ("Yuet") was downstairs, and her daughter Sarah had called the dispatcher from a closet on the second floor. Officer T.W. Johnson ("Johnson") arrived at the scene but saw no suspects or sign of forced entry at the house and could not gain entry because the windows and doors were locked. Johnson, while standing on the hood of his car with his ear to the wall, heard footsteps on the stairs, a struggle, a woman screaming, two gunshots, "what sounded like a body hitting the floor," and then two or three more gunshots. Within a few minutes, petitioner, Quyen Van ("Van"), and Steven Hua ("Hua") emerged from the house and were arrested. Petitioner told Johnson that the gun was in an upstairs closet.
The police found Yuet in the laundry room and Sarah in the living room. Both of them had been killed by gunshot wounds to the head. Yuet was tied up with electrical cord, and her face was covered in packing tape that had blocked her airway. The police found a revolver in an upstairs closet, which was determined to be the weapon used to kill Yuet and Sarah, along with spent shell casings.
At the police station, petitioner signed a confession stating that early that morning he, Hua, Van, and a man named Wing Cheng ("Cheng"), had planned to rob Bok Chan ("Bok"), Yuet's husband. Petitioner had a gambling debt of $12,000, and they planned to split four ways the $100,000 they expected to find at Bok's house. Cheng called Bok and asked to meet him at a bakery, which Bok did. Petitioner, Hua, Van and Cheng then went to Bok's house. Hua and Van said that if the "lady" in the house resisted, "they were going to kill her." Petitioner was opposed to shooting anyone, but he had a steak knife, tape and gloves with him. When Yuet came to the front door, Hua pulled out a gun and the four men forced their way in. Yuet was brought into the laundry room, where petitioner sat on her and held her arms while the others tied her up. Petitioner threatened to shoot her if she screamed. Petitioner, Hua and Van then went to look for money upstairs. While he was upstairs, petitioner saw Sarah run downstairs, where Van shot her. Hua then took the gun and shot Yuet. They all fled to the back of the house, and, after being shot at by the police, surrendered.
A jury in Alameda County Superior Court convicted petitioner of two counts of first degree murder with the special circumstance of multiple murder and an enhancement for use of a firearm. The trial court sentenced petitioner to two consecutive terms of life without the possibility of parole. Petitioner filed unsuccessful direct appeals to the California Court of Appeal and to the Supreme Court of California.
DISCUSSION
A. Standard of Review
This Court may entertain a petition for a 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); Rose v. Hodges, 423 U.S. 19, 21 (1975).
A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed 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); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). In evaluating whether there has been a violation of § 2254(d)(1), the court should first review the state court decision for error de novo and then determine whether the decision was contrary to or an unreasonable application of controlling law.See Van Tran v. Lindsey, 212 F.3d 1143, 1155, 1159 (9th Cir. 2000). In addition, habeas relief is warranted only if the constitutional error at issue had a "'substantial and injurious effect or influence in determining the jury's verdict.'"Penry v. Johnson, 121 S.Ct. 1910, 1920 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). A federal court must presume the correctness of the state court's factual findings. 28 U.S.C. § 2254(e)(1).
B. Legal Claims
Petitioner claims that the trial court's use of a modified version of a California model jury instruction (CALJIC No. 3.34) violated his constitutional rights by relieving the prosecution of its burden of proving the element of intent to kill beyond a reasonable doubt. As read to the jury, the modified version of CALJIC 3.34 stated:
The intent with which an act is done may be shown as follows: First, by a statement of his intent made by the defendant; second, by the circumstances attending the act, the manner in which it is done, and by the means used.
According to petitioner, this instruction "allowed the jury to infer that specific intent and mental state were synonymous with the commission of an act." Petitioner contends that the instruction relieved the prosecution of its burden of proving the requisite mental state — intent to kill — because it allowed the jury to find intent based on no more than mere proof of petitioner's actions. The California Court of Appeal rejected this claim under People v. Osband, 13 Cal.4th 622, 684-85 (1996), in which the California Supreme Court rejected a constitutional challenge to CALJIC 3.34, finding "[t]here is no reasonable likelihood that the jury would have understood that it must find intent established if it found certain acts to have been committed. Rather, it would have understood that intent is found, if at all, either by a defendant's own statements or by circumstantial evidence from which it can be inferred."
The Due Process Clause of the Fourteenth Amendment protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. See In re Winship, 397 U.S. 358, 364 (1970). This constitutional principle prohibits the use of jury instructions that create mandatory evidentiary presumptions, as such instructions have the effect of relieving the State of its burden of proof. See Carella v. California, 491 U.S. 263, 265-66 (1989); see, e.g.,Sandstrom v.Montana, 442 U.S. 510, 520-24 (1979) (finding unconstitutional an instruction stating "the law presumes that a person intends the ordinary consequences of his voluntary acts"). An instruction involving an evidentiary inference, such as the instruction petitioner challenges here, creates a mandatory presumption in violation of due process if it "tells the jury that it must presume that an element of a crime has been proven if the government proves certain predicate facts." See United States v. Warren, 25 F.3d 890, 897 (9th Cir. 1994). On the other hand, if an instruction "allows, but does not require, a jury to infer a specified conclusion if the government proves certain predicate facts," it simply creates a "permissive inference." Id. The instruction petitioner challenges herein did not require the jury to find intent. By stating that the intent "may be" inferred, the instruction simply allowed the jury to draw the inference after consideration of the circumstances surrounding the killing and the statements of the defendant. As a result, the instruction created a permissive inference, not a mandatory presumption. See id. . at 898 (finding instruction stating that malice "may be" inferred from use of a deadly weapon created permissive inference); Hanna v. Riveland, 87 F.3d 1034, 1036-37 (9th Cir. 1996) (finding instruction that person who is speeding "may be inferred to have driven in a reckless manner" creates permissive inference).
Having determined that the instruction did not create a mandatory presumption, the Court must determine whether, in the context of the other instructions, the instruction nevertheless relieved the State of its burden of proving intent beyond a reasonable doubt. Warren, 25 F.3d at 898. Here, the jury was specifically admonished in other instructions that the prosecution bears the burden of proving each and every element of the crime beyond a reasonable doubt and that intent is an element in each of the crimes of which petitioner was charged. Moreover, where permissive inference instructions have been found unconstitutional, such instructions have allowed the jury to infer an element of the offense from the proof of a specific predicate fact. See, e.g., Hanna, 87 F.3d at 1037-38 (finding unconstitutional an instruction permitting jurors to infer reckless driving solely from proof of excessive speed); Schwendeman v. Wallenstein, 971 F.2d 313, 316 (9th Cir. 1992) (same); cf. Warren, 25 F.3d at 896-98 (finding constitutional an instruction permitting inference of malice from proof of defendant's use of a deadly weapon). The instruction in this case, by contrast, did not allow the State to prove intent by way of the shortcut of proving the existence of a specific fact. Rather, the instruction described several broad categories of evidence — petitioner's statements, the "circumstances" surrounding petitioner's actions, the "manner" and "means" used to commit the crimes — which the jury was entitled to consider on the question of intent. The instruction did not shift or decrease the State's burden of actually producing the evidence of intent and then of persuading the jury that such evidence proved intent beyond a reasonable doubt. Cf. Drayden v. White, 232 F.3d 704, 714-15 (9th Cir. 2000) (finding instruction concerning witness testimony did not shift the prosecution's burden of proof in any way because it merely discussed how the jury is to consider the testimony of each witness).
The state is not precluded from adopting a rule that makes it easier for the state to meet the requirement of proof beyond a reasonable doubt as long as the rule does not shift or reduce the State's burden of proof. See Montana v. Egelhoff, 518 U.S. 37, 54-55 (1996). The modified form of CALJIC 3.34 used in this case simply described how intent "may" be proved in general terms. As the California state courts reasonably concluded, this did not reduce the prosecution's burden of proving intent beyond a reasonable doubt. Accordingly, petitioner's right to due process was not violated and habeas relief is not warranted on this claim.
CONCLUSION
In light of the foregoing, the petition for a writ of habeas corpus is DENIED. All pending motions are terminated and the Clerk shall close the file.
IT IS SO ORDERED.