Summary
distinguishing Suniga on the ground that the trial court did not instruct the jury that various charges were felonies inherently dangerous to human life and the jury was left to guess what might be a qualifying felony
Summary of this case from Berry v. DavisOpinion
No. C 00-2466 SI (pr)
May 23, 2001
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
This matter is now before the court for consideration of the merits of Fred Francisco Orellana's pro se petition for writ of habeas corpus concerning his 1998 murder conviction in the San Francisco County Superior Court. For the reasons discussed below, the petition will be denied on the merits.
BACKGROUND
Shortly before 5:00 am. on March 17, 1996, Orellana called 9-1-1 in San Francisco, sobbing that he had killed his wife. A San Francisco Fire Department rescue squad was dispatched to Orellana's house and found Orellana sitting on the outside stairs with his hands covering his face. A rescue squad member observed Orellana repeatedly crying out, "I killed my wife. I killed my wife." Respondent's Exhibit 3. California Court of Appeal Opinion ("Cal. Ct. App. Opinion"), p. 1. Inside the house, the rescue squad member found the deceased victim, Alicia Orellana, lying face up in bed with her arms spread wide and with stab wounds in her chest. He also saw a large blood-covered kitchen knife on the dresser in the bedroom. The police arrived within minutes of the rescue squad.
One police inspector interviewed Orellana at the house and another police inspector interviewed him a few hours later at the police station. Orellana provided to the second inspector this information about the crime and events leading up to it: About ten days earlier he learned that his wife was involved in an extramarital relationship and seven days earlier he moved from their bedroom to another bedroom. The night before the killing, he inhaled cocaine and drank many beers. When his wife returned home after midnight, she did not want to talk to him so he slept awhile. Orellana woke up between 3:00 a.m. and 4:00 a.m. and went into his wife's room. They discussed the status of their relationship and he argued for a reconciliation. She wanted to separate and talked about her sexual relationship with another man. She told Orellana, "kill me, and Orellana replied, "that's what [he] wanted to do." Id. at 3. He went into the kitchen and obtained a knife. He returned and, despite his wife's plea of"please don't kill me," he stabbed her. Id. A blood sample taken at about 6:30 a.m. showed alcohol and cocaine in Orellana's blood.
At Orellana's trial in the San Francisco County Superior Court, the focus was whether the killing was a murder as charged by the prosecution or manslaughter as argued by the defense. The defense's contention was that malice was negated by provocation, heat of passion and intoxication. See Resp. Exh. 4, Petition For Review, p. 5-6.
The jury found Orellana guilty of second degree murder. The jury also found that he had personally used a dangerous weapon during commission of the murder and had suffered a prior serious felony conviction. Orellana was sentenced to a term of 36 years to life in state prison. He appealed. His conviction was affirmed by the California Court of Appeal. His petition for review was denied by the California Supreme Court.
Orellana then filed this action, seeking a federal writ of habeas corpus. The court reviewed the petition and found that Orellana had adequately pled a claim that the trial court's use of a modified version of CALJIC 8.51 violated his rights to due process and a fair trial. The instruction allegedly impermissibly interjected the doctrine of felony murder into his case and improperly eliminated the element of malice required for murder. Respondent filed an answer in response to the court's order to show cause and Orellana filed a traverse. The petition is now ready for consideration on the merits.
DISCUSSION
A. 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 (2000).
B. 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); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). The parties agree that Orellana exhausted his state court remedies for the claim raised in this proceeding.
C. Jury Instruction Error Claim
1. California's Felony Murder Rule
An essential element for the crime of murder is malice. In California, when a killing occurs during the commission of a felony inherently dangerous to human life, the felony murder rule makes the killing at least second degree murder. See People v. Ireland, 70 Cal.2d 522, 538 (Cal. 1969). The malice required for the crime of murder is imputed to the perpetrator of such a felony under the felony murder rule. See People v. Hansen, 9 Cal.4th 300, 308 (Cal. 1994). The felony murder rule does not apply, however, where the underlying felony merges into the murder, such as is the case where the underlying felony is a felonious assault. Thus, "a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged." People v. Ireland, 70 Cal.2d at 539.
The merger rule avoids the possibility that almost every felonious assault ending in death will be elevated to a murder. If the merger rule did not exist, the prosecution would be relieved of the burden of proving malice in most murder prosecutions. See People v. Hansen, 9 Cal.4th at 311.
California has several pattern jury instructions touching on the felony murder rule. The one of interest here is CALJIC 8.51, which provides in part: "If a person causes another's death, while committing a felony which is dangerous to human life, the crime is murder." CALJIC 8.51 is not inherently troublesome; the problem arises when it is given in a case to which it does not apply, i.e., where the felony has merged into the homicide. CALJIC 8.51's Use Note even specifically directs that it is not to be used in such a case. The problem with giving the instruction in a case where an assault with a deadly weapon results in the victim's death is that it allows the jury to reach a verdict of guilty of murder under a legally erroneous felony murder rule because there is no such crime as felony murder based on a killing occurring during the commission of assault with a deadly weapon in California.
CALJIC 8.51 is captioned "Murder And Manslaughter Distinguished — Nature of Act Involved" and provides in full:
[If a person causes another's death, while committing a felony which is dangerous to human life, the crime is murder. If a person causes another's death, while committing a [misdemeanor] [or] [infraction] which is dangerous to human life under the circumstances of its commission, the crime is involuntary manslaughter.]
[There are many acts which are lawful but nevertheless endanger human life. If a person causes another's death by doing an act or engaging in conduct in a criminally negligent manner, without realizing the risk involve, he is guilty of involuntary manslaughter. If, on the other hand, the person realized the risk and acted in total disregard of the danger to life involved, malice is implied, and the crime is murder.]
2. Orellana's Case In State Court
At Orellana's trial, the jury was given this modified version of CALJIC 8.51: "If a person causes another's death while committing a felony inherently dangerous to human life, the crime is murder. If, on the other hand, the person realized the risk and acted in total disregard of the danger to life involved, malice is implied and the crime is murder." RT 437; CT 106. The record does not disclose which party requested CALJIC 8.51 or why it was edited as it was. Cal. Ct. App. Opinion, p. 4, n. 2.
On appeal, Orellana contended that the instruction erroneously permitted the jury to convict him of murder based on the impermissible felony of assault without having to find actual malice. The California Court of Appeal considered the vice of the instruction to be that it was irrelevant, not that it led the jury to convict on an erroneous theory. The court explained that "[t]rial courts have a duty to refrain from instructing on principles of law that are irrelevant to the issues and have the effect of confusing the jury or relieving it from making findings on relevant issues." Id. at 4. Although the appellate court found that it was error to give the instruction, it found the error to be harmless. Under the totality of the circumstances, there was no reasonable likelihood that the instruction misled the jury to think it could find Orellana guilty of second degree murder without finding malice. There was no allegation in the information of any offense other than murder, there was no evidence that the killing occurred during the commission of another felony, the prosecutor never referred to the crime of assault in her argument to the jury, the defense never defended against a felony murder theory, the other jury instructions required malice and were legally correct, the jury was instructed to disregard any instruction that applied to facts it determined did not exist, and the verdict form did not ask the jury to identify a predicate felony on which a felony murder verdict might be based. See id. at 4-6. The court concluded "that in the totality of the circumstances under which this case was tried, the error was harmless; there is no reasonable likelihood that the instruction misled the jury to think it could find appellant guilty of second degree murder without finding malice." U. at 5. The court thought that the "only rational explanation is that the jury treated CALJIC 8.51 as an abstract instruction that was superfluous to the facts of the case." Id. at 6.
3. Federal Habeas Analysis
To obtain federal habeas relief for errors in the jury charge, the petitioner must show that "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72 (1991) (internal quotes omitted). The instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. See id. In reviewing an ambiguous instruction, the court does not inquire how reasonable jurors could or would have understood the instruction as a whole; rather, the court must inquire whether there is a "reasonable likelihood" that the jury has applied the challenged instruction in a way that violates the Constitution. See id. at 72 n. 4. A determination that there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution establishes only that an error has occurred. See Calderon v. Coleman, 525 U.S. 141, 146-47 (1998). 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. 619, 637 (1993), before granting relief in habeas proceedings. See Calderon v. Coleman, 525 U.S. at 146.
A line of cases exists concerning instructional errors that allow a jury to convict based on legally invalid grounds. A conviction must be overturned if one of the theories submitted to the jury is legally erroneous because jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law. See Keating v. Hood, 191 F.3d 1053, 1062 (9th Cir. 1999) (habeas relief required because instructions permitted jury to convict on either of two theories, one of which erroneously did not include a mens rea requirement), cert. denied, 121 S.Ct. 69 (2000); see generally Griffin v. United States, 502 U.S. 46 (1991) (no due process violation where instructions allowed conspiracy conviction based on either of two conspiracy-objects, one of which was factually inadequate); Stromberg v. California, 283 U.S. 359 (1931) (relief warranted because instruction permitted jury to convict on any of three grounds, one of which was unconstitutional); but see Griffin, 502 U.S. at 53 (Stromberg does "not necessarily stand for anything more than the principle that, where a provision of the Constitution forbids conviction on a particular ground, the constitutional guarantee is violated by a general verdict that may have rested on that ground"). The conviction need not be overturned if it is absolutely certain that the jury relied upon the legally correct theory to convict the defendant, i.e., when the court determines that it was impossible for the jury to have relied on the infirm instruction. See Keating, 191 F.3d at 1063 (citing Suniga v. Bunnell, 998 F.2d 664, 667, 669-70 (9th Cir. 1993)); Shackleford v. Hubbard, 234 F.3d 1072, 1077-79 (9th Cir. 2000) (although jury was instructed on nonexistent felony murder theory, error was harmless because it was certain that jury returned a verdict of guilt on the alternative, legally correct, theory of first-degree murder by torture).
Suniga v. Bunnell, 998 F.2d 664 is heavily relied upon by Orellana and is quite similar to Orellana's case. There, the jury had been instructed on the felony murder rule where the killing resulted from an assault with a deadly weapon. Suniga set the conviction aside because it may have rested on the non-existent theory of liability rejected in People v. Ireland and therefore violated due process. Suniga recognized the settled rule that a mere error of state law cannot be remedied in a federal habeas action, but found that the writ should issue because the error — an instruction allowing the jury to convict on the non-existent offense of felony murder based on the underlying felony of assault with a deadly weapon — was fundamentally unfair and thus rose to the level of violating not just state law, but also the defendant's right to due process. See Suniga, 998 F.2d at 667-70.
The threshold question in this case is whether the instruction should be analyzed as one which allowed the jury to convict based on a legally invalid ground, i.e., whether Suniga guides the analysis. This court concludes that the instruction should not be so analyzed because of the particular language not used in the instruction. Orellana's jury was not instructed that assault, assault with a knife, or assault with a deadly weapon was dangerous to human life. The only felonies mentioned in the jury instructions were murder and manslaughter. See RT 435 ("to reduce an intentional felonious homicide from the offense of murder to manslaughter . . .") This key fact distinguishes Orellana's case from the Suniga case. While the jury in Suniga had been instructed that an "assault with deadly weapon is a felony inherently dangerous to human life," Orellana's jury received no such instruction. See Suniga, 998 F.2d at 666; accord People v. Ireland, 70 Cal.2d at 538 (conviction reversed; jury was instructed that it was murder "when the killing is a direct causal result of the perpetration or attempt to perpetrate a felony inherently dangerous to human life, such as an assault with a deadly weapon"). While the jury in Suniga had been told of a qualifying felony that was wrong as a matter of law, Orellana's jury was left to guess what might be a qualifying felony. Following exactly and only the instructions actually given in Suniga (and in Ireland), a jury could have found the defendant guilty of murder based on the legally invalid theory of felony murder because the killing occurred during an assault with a deadly weapon. By contrast, Orellana's jury would have had to fill in a gap and guess that assault with a knife was a "felony which is dangerous to human life" in order to return a verdict on that theory. The fact that Orellana's jury would have had to guess what would be a qualifying felony convinces this court that the Suniga case does not provide the answer for this case. referred was assault with a knife is not persuasive for it is not such common knowledge among jurors that an assault (or even an assault with a knife) is a felony or a dangerous felony. No one would seriously contend that the verdict is infirm because the jury could have made other guesses as to a qualifying felony that also would have been legally incorrect, e.g., arguing with a spouse (which is not a felony) or consuming cocaine (which, though a felony, probably would not be inherently dangerous to human life). But those guesses are no less likely than the one Orellana insists is the one actually made by the jury.
To determine that assault with a knife was a dangerous felony, the jury would have had to ignore the judge's instruction that jurors "must accept and follow the law as I state it to von whether or not you agree with the law" as well as his instruction that jurors "must not make any independent investigation of the . . . law." RT 418, 420. Reviewing courts presume "that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court's instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them." Francis v. Franklin, 471 U.S. 307, 324 n. 9 (1985). See also Richardson v. Marsh, 481 U.S. 200, 206 (1987) (referring to "the almost invariable assumption of the law that jurors follow their instructions"). The cases concerning the submission to the jury of legally invalid theories of liability do not require a departure from this presumption. If the presumption of an obedient jury is not accepted, virtually any verdict would be open to question because it can always be argued that the jury was a rogue one and disobeyed the instructions or simply made up law to augment the instructions given. The jurors at Orellana's trial presumably followed all (and only) the instructions given. Doing so would not permit them to convict him of felony murder occurring during the commission of an assault with a knife because they had not been instructed that that was a felony dangerous to human life.
Since the cases concerning instructions that permit a verdict based on non-existent theories of liability do not guide the analysis, the court returns to the Estelle v. McGuire rule, i.e., federal habeas relief is warranted only if the instructional error "so infected the entire trial that the resulting conviction violates due process." See Estelle v. McGuire, 502 U.S. at 72. The existence of state law error in the giving of the instruction at Orellana's trial does not alone mean that the giving of the instruction amounted to federal constitutional error. See id. at 71-72. Upon consideration of the record, this court concludes that the instruction did not rise to the level of a constitutional error. The instruction was a stray statement of law in a sea of otherwise correct and applicable jury instructions. The jury instructions as a whole adequately instructed about first degree murder, second degree murder, and manslaughter. The instructions adequately conveyed the requirement that malice must be proved for the jury to convict the defendant of first degree or second degree murder. RT 429-432, 437. The felony murder rule played no part in the trial: the charging information did not allege felony murder, there was no evidence presented that the killing occurred during the commission of another felony, the prosecution did not argue that the killing occurred during the crime of assault, and the defense defended against an actual malice murder theory. The instruction was irrelevant and unhelpful, but it did not so mislead the jury as to cast doubt on the jury's ability to do its job. There is no reasonable likelihood that the jury applied the instruction to bypass the malice requirement or to find Orellana guilty of a non-existent crime. Even if the giving of the instruction rose to the level of a constitutional error, the error was harmless as it did not have a substantial and injurious effect on the jury's verdict. The California Court of Appeal's rejection of Orellana's constitutional challenge was not contrary to or an unreasonable application of clearly established federal law.
Finally, although this court concludes that Suniga and other cases concerning instructions on legally invalid grounds for conviction do not provide the right framework for the analysis of Orellana's claim, this is an extremely close call. Reasonable jurists could find the court's assessment of the constitutional claim debatable. See Slack v. McDaniel, 529 U.S. 473, 485 (2000). Upon Orellana's filing of a timely notice of appeal, the court will not hesitate to issue a certificate of appealability.
CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus is DENIED. The clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT
The petition for writ of habeas corpus is denied on the merits.
IT IS SO ORDERED AND ADJUDGED.