Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Fernando M. Olguin, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on October 7, 2013. Respondent filed an Answer and an accompanying Memorandum of Points and Authorities on November 6, 2013. Petitioner filed a "Travers[e]/Motion for Counsel" on December 3, 2013.
Petitioner's Motion for Counsel is denied. See Knaubert v. Goldsmith , 791 F.2d 722, 728-30 (9th Cir.), cert. denied, 479 U.S. 867 (1986).
BACKGROUND
Late at night on January 18, 2008, or early in the morning on January 19, 2008, motorists' 911 calls reported that two men were lying on the ground near Delaware Street in Huntington Beach after having been assaulted (Reporter's Transcript ("R.T.") 80-107; Clerk's Transcript ("C.T.") 1194-1200). One of these men, Abraham Sanchez, had been fatally shot (R.T. 191). The other man, Cruz Aguirre, had been stabbed multiple times in the back and side, but survived (R.T. 117, 123, 202). Aguirre later testified that he and Sanchez had been unarmed and riding on Sanchez's bicycle when a SUV stopped in front of them (R.T. 110-15). According to Aguirre, a group of people had exited the SUV and had attacked Aguirre and Sanchez (R.T. 115).
Immediately after the 911 calls, the police obtained a witness's description of the SUV as a dark colored Suburban (R.T. 168-69, 172-73). Soon thereafter, the police stopped a Suburban carrying two males in their late teens or early twenties (R.T. 173-77). Police saw blood in multiple places within the Suburban (R.T. 178-79). Several of the 15 latent fingerprints later collected from the Suburban matched the fingerprints of Petitioner (R.T. 534-41).
A search of Petitioner's bedroom located a bloodstained jersey (R.T. 738-44). Testing of the blood on this jersey revealed a "one in one trillion" DNA match for Petitioner and a "one in one trillion" DNA match for victim Cruz Aguirre (R.T. 779-84).
Three participants in the assault on Sanchez and Aguirre testified at trial. The first, Miguel Camacho, testified:
Camacho and other members of the Southside Huntington Beach Gang had planned to "go f____ up" members of the rival Amberleaf Gang because of Amberleaf's tagging activities (R.T. 283-318). Gathered in the Dairyview Circle area that night were "around 20" Southside Huntington Beach Gang members, including Petitioner (R.T. 306-13). Petitioner is known as "Lil Sniper" (R.T. 312-13). As this group talked among themselves, Ignacio Ruiz (known as "Lil Dreamer"), said he had a gun and he was going to be shooting (R.T. 314-16). Camacho drove Petitioner and four other gang members in the Suburban, and another car with other gang members drove along with the Suburban (R.T. 316-21). The passengers in the Suburban accosted the two victims on the bicycle by asking them where the victims "were from" (R.T. 322-23). The passengers in the Suburban, including Petitioner, then exited the Suburban and jumped one of the victims, punching and kicking him (R.T. 327-31). Camacho heard a gunshot at some point (R.T. 328-31). Petitioner was the last gang member to stop beating on one of the victims and the last gang member to get back into the Suburban (R.T. 332-33). Camacho saw Petitioner putting a gun in his waistband (R.T. 336). Camacho drove back to Dairyview, where he dropped off Petitioner and all of the other passengers in the Suburban except one (R.T. 339). Soon thereafter, police stopped the Suburban and arrested Camacho and the remaining passenger (R.T. 339-46).
Jesus Varela Ortega, the remaining passenger in the Suburban who had been arrested with Camacho, testified:
Ortega had been at Dairyview with Southside Huntington Beach Gang members, including Petitioner (R.T. 559-63). These Southside Gang members had planned to fight Amberleaf Gang members (R.T. 567). Ruiz, who had a gun during the planning, said that the gun was "real loud, " and if someone used it, the user would have to "get out of there quick" (R.T. 567-69). While riding in the Suburban, Ortega saw the two victims throwing gang signs (R.T. 572). Ortega and others then jumped the two victims, punching and kicking them (R.T. 573-80). When Ortega heard a gunshot, he decided to leave the fight and run back to the Suburban (R.T. 580-82). Petitioner and another Southside Gang member were leaning over one of the bodies (R.T. 584). Petitioner was late getting back to the Suburban (R.T. 585-86). When Petitioner returned to the Suburban, Petitioner said "I stabbed that mother f...." (R.T. 589). Ruiz gave Petitioner the gun (R.T. 591). The Suburban returned to Dairyview to drop off some people there, but Ortega and Camacho remained in the Suburban (R.T. 593).
David Candelario, the third admitted participant in the murder and attempted murder, testified:
The Southside Gang members hanging out at Dairyview, including Petitioner, Ruiz and Pacheco, talked about doing a "mission" against Amberleaf in retaliation for Amberleaf's previous spray painting (R.T. 789-800). Candelario saw Ruiz get close to one of the victims, heard the gunshot, and saw Ruiz running back with the gun close to his stomach, while eight or nine other Southsiders (including Petitioner) were kicking, stomping and punching the other victim (R.T. 807-10).
Neither Petitioner nor co-defendants Ignacio Ruiz and Hector Genaro Pacheco testified at trial. Ruiz previously had given a statement to police in which he admitted his presence at the scene of the events, however. Ruiz's statement to police, redacted to remove any direct references to Petitioner or Pacheco, was introduced into evidence (R.T. 1013-14; see C.T. 1226-59). The redacted statement referenced "about ten" other participants, and did not name any of the participants other than Ruiz (id.). The trial court instructed the jury that Ruiz's redacted statement could not be used against the other co-defendants (R.T. 1014).
A statement given by Ortega to police was also admitted into evidence (R.T. 763-64, 884-90, 1009-12, 1015; see C.T. 1202-23). This statement recounted the same events to which Ortega testified at trial (id.).
Petitioner presented no affirmative evidence at trial (R.T. 1191). Petitioner's counsel argued that Camacho, Ortega and Candelario were lying about Petitioner's alleged participation in the murder and attempted murder (R.T. 1392-1425). Petitioner's counsel did not argue that the participants in the murder and attempted murder had been provoked (id.).
The jury found Petitioner, Ruiz and Pacheco guilty of first degree murder, attempted murder with premeditation and deliberation, and street terrorism (R.T. 1475-77). The jury also found to be true certain special circumstances and enhancement allegations. Id . The California Court of Appeal affirmed Petitioner's conviction in a reasoned decision. See People v. Lugo, 2012 WL 268536 (Cal.App. Jan. 30, 2012). The California Supreme Court summarily denied Petitioner's petition for review (Lodgment 7).
SUMMARY OF PETITIONER'S CONTENTIONS
Petitioner contends:
1. The trial court erred by admitting into evidence the redacted version of Ruiz's interview with the police and by refusing to sever Petitioner's trial from the trial of his co-defendants (Grounds One and Two);
2. The trial court erred by admitting into evidence Ortega's statement to police as a prior consistent statement (Ground Three);
3. The trial court erred by failing to instruct the jury that provocation can negate premeditation and deliberation (Ground Four); and
4. Petitioner's trial counsel was ineffective for failing to request jury instructions regarding provocation (Ground Five).
STANDARD OF REVIEW
Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the 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); Woodford v. Visciotti , 537 U.S. 19, 24-26 (2002); Early v. Packer , 537 U.S. 3, 8 (2002); Williams v. Taylor , 529 U.S. 362, 405-09 (2000).
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher , 132 S.Ct. 38, 44 (2011); Lockyer v. Andrade , 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts... materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer , 537 U.S. at 8 (citation omitted); Williams v. Taylor , 529 U.S. at 405-06.
Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade , 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti , 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor , 529 U.S. at 407 (citation omitted).
"In order for a federal court to find a state court's application of [Supreme Court] precedent unreasonable, ' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith , 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been objectively unreasonable.'" Id . at 520-21 (citation omitted); see also Waddington v. Sarausad , 555 U.S. 179, 190 (2009); Davis v. Woodford , 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, ... or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter , 131 S.Ct. 770, 786 (2011). This is "the only question that matters under § 2254(d)(1)." Id . (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id . at 786-87 ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").
In applying these standards, the Court looks to the last reasoned state court decision. See Delgadillo v. Woodford , 527 F.3d 919, 925 (9th Cir. 2008). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories... could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen v. Pinholster , 131 S.Ct. 1388, 1403 (2011) (citation, quotations and brackets omitted).
Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey , 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
Furthermore, on federal habeas review of trial-type errors, this Court must apply the harmless error standard set forth in Brecht v. Abrahamson , 507 U.S. 619 (1993) ("Brecht"). Brecht forbids a grant of habeas relief for a trial-type error unless the error had a "substantial and injurious effect or influence" on the outcome of the state proceeding.
DISCUSSION
For the reasons discussed below, the Petition should be denied and dismissed with prejudice.
I. The Trial Court's Admission into Evidence of Ruiz's Redacted Statement and the Court's Refusal to Sever Petitioner's Trial From the Trial of the Co-Defendants
Petitioner argues that the trial court's admission of Ruiz's redacted statement, and the court's refusal to sever Petitioner's trial from that of Ruiz and Pacheco, violated Petitioner's constitutional rights. Petitioner relies predominantly on Bruton v. United States , 391 U.S. 123 (1968) ("Bruton"), in which the Supreme Court held that the admission of a non-testifying co-defendant's confession at a joint trial violated the defendant's right to confrontation.
The California Court of Appeal rejected Petitioner's claims, ruling, inter alia, that the redacted statement's reference to a large group of unnamed participants did not violate Petitioner's constitutional rights, and that the trial court did not abuse its discretion in denying Petitioner's request for a severance. People v. Lugo, 2012 WL 268536, at *15-17 (Cal.App. Jan. 30, 2012). The Court of Appeal also found that any alleged error was harmless. Id . at *17.
Bruton prohibits the admission of a non-testifying co-defendant's statement that is "incriminating [of the other defendant(s)] on its face." Richardson v. Marsh , 481 U.S. 200, 208 (1987) ("Richardson"). In Richardson, the Supreme Court ruled that Bruton does not prohibit the introduction of a non-testifying co-defendant's statement that becomes incriminating of the other defendant(s) only when "linked with [other] evidence" of record. See id. Thus, "Richardson placed outside the scope of Bruton's rule those statements that incriminate inferentially." Gray v. Maryland , 523 U.S. 185, 195 (1998) ("Gray") (citation omitted); see also United States v. Olano , 62 F.3d 1180, 1195 (9th Cir. 1995), cert. denied, 519 U.S. 931 (1996) ("in Richardson, ... the Supreme Court limited Bruton to confessions that are facially incriminating"; citations and internal quotations omitted).
In Gray, however, the Supreme Court tempered Richardson's limitation of Bruton. In Gray, a police detective had read into evidence a co-defendant's redacted statement that "Me, [deleted], [deleted], and a few other guys" had committed the crime. Gray , 523 U.S. at 188-89, 192. Immediately after this redacted statement was read to the jury, the prosecutor had asked the detective whether, after the detective received this information, the detective had arrested the petitioner. Id . at 188-89. The Gray Court held that, notwithstanding Richardson, the admission of the redacted statement had violated Bruton. Id . at 196. However, the Gray Court also suggested that the statement properly could have been redacted to read "Me and a few other guys." Id . After Gray, the substitution of a pronoun (such as "they") in place of a defendant's name does not suffice to avoid Bruton error "if it is obvious that an alteration has occurred to protect the identity of a specific person." United States v. Peterson , 140 F.3d 819, 821 (9th Cir. 1998).
In the present case, the redacted statement of Ruiz did not implicate Petitioner "on its face." Nor was it "obvious" that the redactions to the statement had "occurred to protect the identity of a specific person." Rather, the redacted statement referenced a large number of unnamed participants, and the trial court instructed the jury that the statement could not be used against Petitioner (or Pacheco) (R.T. 1014). Under these circumstances, the introduction of Ruiz's redacted statement did not violate Petitioner's constitutional rights. See United States v. Vega Molina , 407 F.3d 511, 520-21 (1st Cir.), cert. denied, 546 U.S. 919 (2005) ("A particular case may involve numerous events and actors, such that no direct inference plausibly can be made that a neutral phrase like "another person" refers to a specific co-defendant."); United States v. Sutton , 337 F.3d 792 (7th Cir.), cert. denied, 540 U.S. 1050 , 1051 (2003) (use of words "individuals" or "persons" to describe co-defendants permissible, where there was no one-to-one correspondence between replacement words and either co-defendant); United States v. Ortiz , 315 F.3d 873, 899-900 (8th Cir. 2002), cert. denied, 538 U.S. 1042 , 1073 (2003) (use of passive voice to describe crimes permissible, as jury was not told who committed the crimes); United States v. Chrismon , 965 F.2d 1465, 1471-72 (7th Cir. 1992) (no Bruton error where the co-defendant's statement referenced "you guys" and "they" but the alleged conspiracy potentially involved numerous individuals).
Similarly, the trial court's decision to try the co-defendants together did not violate Petitioner's constitutional rights. The improper joinder of defendants does not violate the Constitution unless "it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial." United States v. Lane , 474 U.S. 438, 446 n.8 (1986). When reviewing a trial court's denial of a motion to sever, "[t]he question presented in a state prisoner's petition for writ of habeas corpus is whether the state proceedings satisfied due process. To prevail, the [petitioner] bears the burden of demonstrating that the state court's denial of his severance motion rendered his trial fundamentally unfair." Grisby v. Blodgett , 130 F.3d 365, 370 (9th Cir. 1997) (internal citations and quotation marks omitted); see also Davis v. Woodford , 384 F.3d at 638-39. Fundamental unfairness is shown if the "impermissible joinder had a substantial and injurious effect or influence in determining the jury's verdict." Sandoval v. Calderon , 241 F.3d 765, 772 (9th Cir. 2000), cert. denied, 534 U.S. 943 (2001).
Here, neither the introduction of Ruiz's redacted statement nor any other consequence of the joint nature of the trial had any substantial and injurious effect or influence on the jury's verdict. As previously indicated, the trial court properly instructed the jury regarding the limited relevance of Ruiz's statement, thereby neutralizing any risk of prejudice from the joint trial. See Zafiro v. United States , 506 U.S. 534, 539-41 (1993) (risk of prejudice from joinder of multiple defendants for trial is of the type that can be cured with proper instructions). Moreover, the compelling nature of the incriminating evidence against Petitioner also rendered harmless any error allegedly resulting from the introduction of Ruiz's statement or the joint nature of the trial. In addition to the damning testimony of Camacho, Ortega and Candelario, there was convincing forensic evidence linking Petitioner to the Suburban and, more importantly, to the blood of one of the victims. On this record, neither the receipt of Ruiz's redacted statement nor the joint nature of the trial materially prejudiced Petitioner.
For all of the foregoing the reasons, the state courts' rejection of Petitioner's Bruton claim and severance claim was not objectively unreasonable. Petitioner is not entitled to federal habeas relief on these claims.
To the extent Petitioner's severance claim remains unexhausted, the Court may deny the claim on the merits as "not colorable" for the reasons discussed above. See Cassett v. Stewart , 406 F.3d 614, 623-24 (9th Cir. 2005), cert. denied, 546 U.S. 1172 (2006) (federal habeas court may deny on the merits an unexhausted claim that is "not colorable").
II. The Trial Court's Admission into Evidence of Ortega's Prior Consistent Statement
Petitioner cites only California state law authorities in arguing that the trial court erred by admitting into evidence Ortega's prior consistent statement. Federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). State law evidentiary errors do not warrant federal habeas corpus relief. See Estelle v. McGuire , 502 U.S. 62, 67-68 (1991).
In any event, it is evident that the introduction of Ortega's prior consistent statement does not entitle Petitioner to federal habeas relief. Because Ortega testified at trial, the introduction of the statement cannot have violated Petitioner's right to confrontation. See Crawford v. Washington , 541 U.S. 36, 54 (2004) (opportunity for cross-examination of the declarant satisfies the constitutional right to confrontation); accord Farr v. Davis, 2012 WL 707033, at *20 (E.D. Mich. March 5, 2012), Portillo v. Adams, 2011 WL 4383648, at *6 (C.D. Cal. Aug. 24, 2011), adopted 2011 WL 4383624 (C.D. Cal. Sept. 20, 2011); Terrell v. Walsh, 2005 WL 3309658, at *2 (S.D.N.Y. 2005).
Neither did the introduction of Ortega's prior statement violate Petitioner's due process rights. "The admission of evidence does not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation of due process.'" Holley v. Yarborough , 568 F.3d 1091, 1101 (9th Cir. 2009) (citation omitted); see also Jammal v. Van de Kamp , 926 F.2d 918, 919 (9th Cir. 1991) (proper analysis on federal habeas review is "whether the admission of the evidence so fatally infected the proceedings as to render them fundamentally unfair"). "The Supreme Court has made very few rulings regarding the admission of evidence as a violation of due process." Holley v. Yarborough , 568 F.3d at 1101. "Although the Court has been clear that a writ should issue when constitutional errors have rendered the trial fundamentally unfair [citation], it has not yet made a clear ruling that admission of irrelevant or overly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ." Id . Accordingly, Petitioner has not shown that the state court's rejection of his challenges to the admission of evidence was contrary to, or an unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d).
Finally, the introduction of Ortega's prior consistent statement was harmless. The statement was almost entire cumulative of Ortega's trial testimony, and was almost equally subject to impeachment as a self-interested statement. The prior consistent statement had no substantial and injurious effect or influence on the jury's verdict.
III. The Trial Court's Failure to Instruct the Jury that Provocation Can Reduce First Degree Murder to Second Degree Murder
The trial court instructed the jury on the elements of first degree murder and attempted murder (R.T. 1226-1228, 1230-32). The trial court also instructed the jury on the elements of second degree murder, voluntary manslaughter, attempted murder and attempted voluntary manslaughter (R.T. 1228-34). These instructions included an explanation that provocation can cause an unlawful killing to be voluntary manslaughter rather than murder (R.T. 1228-29). Petitioner claims that the trial court erred by failing to instruct the jury in addition that provocation can negate premeditation and deliberation so as to reduce a first degree murder to a second degree murder. As discussed below, this claim does not merit federal habeas relief.
"[I]nstructions that contain errors of state law may not form the basis for federal habeas relief." Gilmore v. Taylor , 508 U.S. 333, 342 (1993); see also Estelle v. McGuire , 502 U.S. at 71-72 ("the fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief"); Dunckhurst v. Deeds , 859 F.2d 110, 114 (9th Cir. 1988) (instructional error "does not alone raise a ground cognizable in a federal habeas corpus proceeding"). When a federal habeas petitioner challenges the validity of a state jury instruction, the issue is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire , 502 U.S. at 72; Clark v. Brown , 450 F.3d 898, 904 (9th Cir.), cert. denied, 549 U.S. 1027 (2006). The court must evaluate the alleged instructional error in light of the overall charge to the jury. Middleton v. McNeil , 541 U.S. 433, 437 (2004); Henderson v. Kibbe , 431 U.S. 145, 154 (1977); Villafuerte v. Stewart , 111 F.3d 616, 624 (9th Cir. 1997), cert. denied, 522 U.S. 1079 (1998). "The relevant inquiry is whether there is a reasonable likelihood that the jury has applied the challenged instruction' in an unconstitutional manner." Houston v. Roe , 177 F.3d 901, 909 (9th Cir. 1999), cert. denied, 528 U.S. 1159 (2000) (quoting Boyde v. California , 494 U.S. 370, 380 (1990)). In challenging the failure to give an instruction, a habeas petitioner faces an "especially heavy" burden. Henderson v. Kibbe , 431 U.S. at 155.
In the present case, no error of state law occurred. Under California law, the trial court had no duty to instruct the jury sua sponte that provocation can negate premeditation and deliberation. See People v. Rogers , 39 Cal.4th 826, 878, 48 Cal.Rptr.3d 1, 141 P.3d 135 (2006), cert. denied, 550 U.S. 920 (2007).
In any event, omission of the suggested provocation instructions did not "so infect the entire trial that the resulting conviction violate[d] due process." Provocation was essentially a non-issue at Petitioner's trial. Evidence of tagging, the leaving of bottles in Southside territory, the victims' throwing of gang signs, and the unarmed victims' ineffective fighting back against the armed aggression and overwhelming numbers of the perpetrators all furnished precious little evidence of "provocation." Cf. People v. Oropeza , 151 Cal.App.4th 73, 83, 59 Cal.Rptr.3d 653 (2007) ("A defendant may not provoke a fight, become the aggressor, and, without first seeking to withdraw from the conflict, kill an adversary and expect to reduce the crime to manslaughter by merely asserting that it was accomplished upon a sudden quarrel or in the heat of passion"); People v. Villegas , 92 Cal.App.4th 1217, 1224, 113 Cal.Rptr.2d 1 (2001) (exchange of gang signs insufficient provocation to negate malice). Although the test for whether provocation negates premeditation and deliberation is a "subjective" test, People v. Padilla , 103 Cal.App.4th 675, 678, 126 Cal.Rptr.2d 889, 891-92 (2002), there was no direct evidence of Petitioner's subjective state of mind, and little or no inferential evidence that Petitioner had deemed himself "provoked."
For the same reasons, the failure to give further instructions regarding provocation did not have any substantial and injurious effect or influence on the jury's verdict. Petitioner is not entitled to federal habeas relief on this claim.
IV. Counsel's Failure to Request Additional Jury Instructions Regarding Provocation
Petitioner also argues that his attorney was ineffective for failing to request additional jury instructions regarding provocation. The California Court of Appeal rejected this claim, reasoning that "the defense theory at trial was inconsistent with the theory of provocation now being argued." People v. Lugo, 2012 WL 268536, at *18. The Court of Appeal also found that there was no reasonable probability the outcome of Petitioner's trial would have been more favorable to him if his attorney had requested additional instructions regarding provocation. Id . For the reasons discussed below, the Court of Appeal's decision was not objectively unreasonable.
To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington , 466 U.S. 668, 688, 694, 697 (1984) ("Strickland"). A reasonable probability of a different result "is a probability sufficient to undermine confidence in the outcome." Id . at 694. The court may reject the claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id . at 697; see Gentry v. Sinclair , 705 F.3d 884, 889 (9th Cir.), cert. denied, 134 S.Ct. 102 (2013) ("[f]ailure to meet either [Strickland] prong is fatal to a claim"); Rios v. Rocha , 299 F.3d 796, 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other.") (citation omitted).
Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford , 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (quoting Strickland , 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland , 466 U.S. at 690. The court may "neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight...." Matylinsky v. Budge , 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see Yarborough v. Gentry , 540 U.S. 1, 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.") (citations omitted). Petitioner bears the burden to show that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter , 131 S.Ct. 770, 787 (2011) (citation and internal quotations omitted); see Strickland , 466 U.S. at 689 (petitioner bears burden to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy") (citation and quotations omitted); see also Morris v. California , 966 F.2d 448, 456-57 (9th Cir.), cert. denied, 506 U.S. 831 (1992) (if the court can conceive of a reasonable tactical reason for counsel's action or inaction, the court need not determine the actual explanation).
Under these standards, Petitioner's claim of ineffective assistance of counsel plainly fails. As the California Court of Appeal reasonably observed, the theory of Petitioner's trial defense had nothing to do with provocation. Petitioner's counsel argued that the eyewitnesses were lying and the evidence as a whole was insufficient to prove beyond a reasonable doubt that Petitioner had participated in the attacks on the victims. Given Petitioner's theory of defense, and the lack of any substantial evidence of provocation, counsel reasonably could have decided to forego requesting additional instructions regarding provocation. See Sosa v. Barnes, 2013 WL 5935628, at *9 (C.D. Cal. Nov. 2, 2013) ("The Court agrees that counsel's decision to forego a provocation defense was a reasonable one because there was almost no evidence to support it"); Perez v. Jacquez, 2010 WL 475453, at *16 (E.D. Cal. Feb. 4, 2010) ("an instruction on provocation might have undermined [the defendant's] claim that he was not present at the shooting.... Defense counsel may have had sound tactical reasons for not requesting CALCRIM No. 522, such as the desire not to focus the jurors' attention on second degree murder but instead on persuading them to return a verdict of guilty on the lesser offense on voluntary manslaughter").
Furthermore, as the California Court of Appeal also reasonably concluded, there is no reasonable probability that a request for additional jury instructions regarding provocation would have yielded a more favorable verdict. Petitioner is not entitled to federal habeas relief on this claim.
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.