Opinion
CASE NO. 04-CV-881 H (POR).
November 30, 2005
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING HABEAS CORPUS PETITION
Paul Charles Peterson, a state prisoner proceeding pro se, brings this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Respondent answered the Petition on August 6, 2004. (Doc. Nos. 3 4.) On July 1, 2005, the Magistrate Judge issued a report and recommendation proposing denial of the Petition. (Doc. No. 11.) Petitioner filed objections to the report and recommendation on August 5, 2005. (Doc. No. 13.) Respondent did not file a reply to Petitioner's objections. For the reasons that follow, the Court ADOPTS the report and recommendation of the Magistrate Judge and DENIES the habeas corpus petition.
State Proceedings
On May 27, 1999, the San Diego county district attorney's office filed an information charging Petitioner Paul Charles Peterson with the murder of Ray Blessing (California Penal Code § 187(a).) (See Lodgment No. 1, Augmented Clerk's Transcript, Vol. 1 at 1.) After a jury trial, Peterson was found guilty of murder in the first degree. (Id. at 147.) Peterson was sentenced to twenty-five years to life. (Lodgment No. 1, Vol. 2 at 306.)
Peterson appealed his conviction to the California Court of Appeal, Fourth Appellate District, Division One. (Lodgment Nos. 3, 4, 5, 6, 7, 8.) The state appellate court affirmed Peterson's conviction in an unpublished opinion filed December 19, 2002. (Lodgment No. 9.) Peterson then filed a petition for review in the California Supreme Court. (Lodgment No. 10.) The Court denied the petition without citation of authority on March 5, 2003. (Lodgment No. 11.)
Peterson filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 in the Central District of California on March 3, 2004, which was transferred to this Court on April 28, 2004. (Doc. No. 1.) Respondent filed an Answer, Memorandum of Points and Authorities in Support of Answer, and Lodgments on August 6, 2004. (Doc. Nos. 4, 5, 6.) Peterson filed a Traverse on October 5, 2004. (Doc. No. 8.)
Factual Background
The Court gives deference to state court findings of fact and presumes them to be correct. Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness).
The following facts are taken from the California Court of Appeal opinion in People v. Peterson, No. D038367, slip op. (Cal.Ct.App. Dec. 19, 2002):
Around 6:20 a.m. on September 25, 1998, police and paramedics found a transient Ray Blessing dead in an enclosed dumpster area near a Wells Fargo Bank and a Ralph's supermarket in El Cajon where he had been living. Shortly thereafter, Janice Rodriguez, a transient living near the market, who had been seen leaving Blessing's dumpster enclosure around 6:00 a.m. with blood on her hands and clothes, was arrested for being drunk in public. [footnote omitted.] The subsequent investigation revealed Blessing had died of blunt force trauma to his head and from being stabbed in the heart. In addition to having been stabbed about 25 times in the head and neck, and 10 to 12 times in the chest, the autopsy showed Blessing had sustained damage to his kidney and liver, had a broken jaw, had two broken ribs, and had several bilateral hematomas in the brain. It also showed that Blessing's legs had been slashed after he had died.
Tests also revealed that the blood on Rodriguez's hands and clothes was Blessing's, that his blood was also on a camouflage knife and white-handled knife found in the enclosure near his body, and that his blood was on a knife with a cord-wrapped handle found near the back loading lot of a store near the Ralph's where Rodriguez slept. Rodriguez was charged with Blessing's murder in December 1998.
Because Rodriguez had blamed Peterson for the crime in her interviews with the authorities, two District Attorney (D.A.) investigators interviewed Peterson on January 27, 1999, about his relationship with Rodriguez and knowledge of Blessing's murder. Although the police had found his fingerprints on a can of beer and on a key card in Blessing's enclosure, Peterson denied he had entered the enclosure. He said he had only held Rodriguez's beer as he watched her and her boyfriend Daniel Honeycutt kick Blessing in the head and neck as he slept. Afraid they were going to kill him, Peterson threw the beer can into the enclosure, telling them to stop before he ran home. Peterson told the D.A. investigators he had only gone along with Rodriguez, who was drunk, to the enclosure to help her get back at Blessing because she and Honeycutt said Blessing had raped and hurt Rodriguez.
During the interview Peterson mentioned that earlier that evening he had helped Rodriguez get back some cigarettes and beer from a man outside a pool hall. Peterson denied seeing a knife or any stabbing. He also denied owning a big sheath knife or lock-blade knife, or ever seeing a camouflage knife. The only person he had told about the incident in Blessing's enclosure was his roommate at his board and care facility when he got home that night before midnight. Peterson believed that a Brian, and not a Michael, was his roommate at the time of Blessing's murder.
On February 4, 1999, an El Cajon police officer contacted Michael Edwards who said he had been Peterson's roommate on September 25, 1998, and that in the early morning of that day, Peterson had come home in a very agitated state and told him "he had bashed someone's head in." Peterson was arrested the next day for Blessing's murder. After waiving his rights under Miranda v. Arizona, (1966) 384 U.S. 436, Peterson told a police officer and a D.A. investigator that the only thing he left out of his earlier story was that the camouflage knife was his. He then proceeded to outline the events of that evening before Blessing died, as he had earlier done. This time, however, he explained that he had gone to Blessing's enclosure twice, first with Rodriguez and Honeycutt, and then again with Rodriguez after he had given her his knife. The second time he saw Rodriguez stab Blessing in the neck and several other places, including the leg areas. Afterwards, Rodriguez tossed the knife in a trash can. Peterson admitted he saw some blood on her hands at that time. When he was asked whether he knew Rodriguez was going to stab Blessing when he gave her the knife, Peterson replied, "I think I had that feeling."
Peterson also admitted that the first time in the enclosure he had gone through some of Blessing's "stuff" and had kicked Blessing several times. He denied knowing about any other knives being involved in the incidents. He said he returned to his residence in a panic and later threw away a Vietnam medal Rodriguez had handed him after stabbing Blessing.
When told someone had overheard him say he had just bashed some guy's head in, Peterson said, "That's the problem with my roommate, Michael. . . ." When questioned further, Peterson denied Michael was his roommate at the time of the incident and was adamant that a person named Brian was his roommate and the only person he ever told about the events of that evening.
Peterson went to trial for Blessing's murder after Rodriguez was tried and convicted of first degree murder with personal use of a deadly or dangerous weapon. In addition to playing the audio and video tapes of Peterson's two interviews with police, and eliciting testimony regarding Blessing's injuries and the results of the investigation of his death as noted above, the prosecution presented evidence at trial that showed it was around 9:00 p.m. on September 24, 1998, as Peterson was walking toward his board and care facility, when Rodriguez first approached him, telling him that another transient Keith Roberts had taken her cigarettes, beer and money. After agreeing to help get her property back, Peterson ran after Roberts as he was leaving a street party in the area. He put Roberts in a headlock and took beer, cigarettes and $2 cash from him. After Roberts broke away, he ran down an alley and jumped over a wall to get to a friend's house in a trailer park with Peterson and Rodriguez following close behind. They stopped chasing Roberts when the friend told them to leave Roberts alone.
Later, Peterson and Rodriguez purportedly joined up with Rodriguez's boyfriend Honeycutt in the parking lot of his trailer park. After some discussion the trio proceeded to Blessing's enclosed dumpster area where Peterson and Honeycutt stomped and kicked Blessing. Rodriguez looked through Blessing's property and together with Peterson rifled through Blessing's wallet taken from his pants. Peterson discarded a key card, but kept $3 to $4 found in Blessing's front pocket. At some point a Vietnam medal was ripped from Blessing's neck and handed to Peterson.
When the three left Blessing's enclosure, Honeycutt took off and Peterson and Rodriguez went to a liquor store to buy some beer with Blessing's cash. They then walked back to Honeycutt's trailer park, but were told to leave by the manager. As they walked around, Rodriguez asked Peterson if he had a gun, telling him she wanted to return to the dumpster enclosure to kill Blessing. Peterson only had a camouflage knife, which he gave to Rodriguez. Peterson left Rodriguez's presence after they returned to the dumpster enclosure and he watched her stab Blessing in the neck and legs before discarding the knife in the dumpster.
In his defense, Peterson essentially introduced evidence to show Honeycutt inflicted some or all of the kicking injuries which may have caused Blessing's death, or that Rodriguez, acting alone, or with Honeycutt, "at a later time, caused the death of the victim." To do so, he elicited testimony that Honeycutt and Rodriguez had had a brief sexual relationship; that Rodriguez had been found alone in Honeycutt's trailer by the police between 11:00 and 11:30 p.m. on September 25, 1998; that after she emerged from Blessing's dumpster enclosure with bloody hands and clothes around 6:00 a.m. the next day, she threw something in a dumpster behind a nearby store where the cord-wrapped knife with Blessing's blood was later found; that fibers removed from that knife were consistent with fibers on Rodriguez's clothes she wore at the time; and that partial shoe prints left on cardboard found inside Blessing's dumpster enclosure matched Honeycutt's athletic shoes. He also requested the court take judicial notice that Rodriguez had been convicted of first degree murder for Blessing's death.
Peterson further presented testimony from a maintenance man who cleaned the parking lot area near the market, stores and bank where Blessing's dumpster enclosure was located. At about 4:20 a.m. on September 25, 1998, from a distance of about 60 to 70 yards away, he saw the top of a tall male's head inside the enclosure and heard one male voice cursing and shopping carts being tipped over. At about 5:00 a.m., as he cleaned behind a store nearby, a woman approached him asking for a light. He later saw the same woman sitting in the back of a police car near Blessing's dumpster enclosure. He also saw a man walking across the parking lot area toward the trailers where Honeycutt lived shortly after 5:00 a.m.
Brian Vint also testified in the defense case that he was Peterson's roommate at the time of the murder. Although he had told a defense investigator that Peterson arrived home that night between 11:00 p.m. and 2:00 a.m., Vint recalled Peterson came to bed between 11:30 p.m. and midnight on September 24, 1998. Vint acknowledged that Edwards also lived at the residence with Peterson and him, but said he did not see him that night when Peterson, who appeared to have been intoxicated, came home, woke Vint up, and told him about seeing something bad. As far as Vint knew, after their half hour conversation, Peterson stayed at the residence the rest of the night before Vint left to catch a 5:45 a.m. bus.
On cross-examination, Vint conceded he did not know if anyone came or left his room between 12:30 and 5:30 a.m. on September 25, 1998, because he was asleep. He also admitted he has memory problems, was taking various medications that affect memory, and vaguely remembers the night in question.
Finally, Peterson presented expert testimony in his defense which showed he suffered from methamphetamine (meth)-induced psychotic disorders, including paranoid schizophrenic disorder, which had resulted in his conservatorship placement in various board and care facilities. Peterson had a long history of drug abuse and exhibited "suggestibility," a childlike affect which made him easy to be led. According to the expert, meth increases one's impulsivity, so that one does not usually consider the consequences of his or her actions. The expert opined that based on Peterson's history, his ability to consider, reflect and weigh and form judgments on September 24 and 25, 1998, was negatively affected by his mental condition and use of drugs.
During closing argument, Peterson acknowledged the evidence could place him in Blessing's enclosure for the robbery around 11:00 p.m., but argued it could not show he was there for the later murder. He conceded that even if it were determined he had aided and abetted the first attack to rob Blessing, any application of a felony-murder theory based on the robbery or aiding and abetting a robbery would not follow because such crime was complete before the murder occurred. Although he had given Rodriguez his knife after the robbery, he stressed that it was closed when he handed it to her, and that his more than 20 years of mental illness and substance abuse prevented him from forming any intent to kill, or knowledge that Rodriguez was really going to kill Blessing. He also argued there was reasonable doubt his knife was the one that killed Blessing since two other knives had been found with Blessing's blood on them. He essentially claimed that he had not intended to rob or murder that night, but was only being a "good Samaritan" to help Rodriguez reclaim her property and respect in both the Robert's and Blessing robbery incidents. The jury found otherwise.
(Lodgment No. 9 at 2-9.)
Discussion
Petitioner raises seven claims in his federal petition. He claims: (1) the trial court erred by excluding Brian Vint's testimony that Petitioner told him on the night of the murder that he had "seen someone's head bashed in"; (2) the jury instructions improperly permitted the jury to convict Petitioner of aiding and abetting a robbery; (3) the trial court erred when it failed to instruct the jury on the lesser included offense of theft; (4) the trial court erred when it failed to instruct the jury that voluntary intoxication was a defense to aiding and abetting; (5) the trial court erred when, in response to a jury question, it failed to clarify California Jury Instruction, Criminal ("CALJIC") No. 3.02, the natural and probable consequences theory of first degree murder; (6) his due process and fair trial rights were violated by CALJIC No. 17.41.1; and (7) the cumulative effect of all the errors violated his due process rights and his right to a fair trial. (Pet. at 5-7; Attach. to Pet. at 1-21.)
1. Standard of Review
Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus on 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.A. § 2254(a).
This action is governed by the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. Under 28 U.S.C. § 2254(d), as amended by AEDPA:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 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.A. § 2254(d).
A state court's decision may be "contrary to" clearly established Supreme Court precedent: (1) "if the state court applies a rule that contradicts the governing law set forth in [the Court's] cases" or (2) "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision may involve an "unreasonable application" of clearly established federal law, "if the state court identifies the correct governing legal rule from the Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407. Alternatively, an unreasonable application may be found, "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." Id.
"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. . . . Rather, that application must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (internal quotation marks and citations omitted). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the United States Supreme] Court's decisions." Williams, 529 U.S. at 412.
Finally, habeas relief is also available if the state court's adjudication of a claim, "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court." 28 U.S.C.A. § 2254(d)(2). In order to satisfy this provision, Petitioner must demonstrate that the factual finding upon which the state court's adjudication of his claim rests, assuming it rests on a factual determination, is objectively unreasonable. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). This Court will presume the state court's factual findings are correct, and Petitioner may overcome that presumption only by clear and convincing evidence. 28 U.S.C.A. § 2254(e)(1).
Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991). If the dispositive state court order does not "furnish a basis for its reasoning," federal habeas courts must conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Lockyer, 538 U.S. at 75-76); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). However, a state court need not cite Supreme Court precedent when resolving a habeas corpus claim. Early v. Packer, 537 U.S. 3, 8 (2002). "[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent,]" the state court decision will not be "contrary to" clearly established federal law. Id.
2. Analysis
A. Brian Vint's Testimony
Petitioner's first argument is that the trial court improperly excluded the testimony of Brian Vint. Petitioner claims that he returned home on the night of the murder and told Vint that he had seen a man's head bashed in. Peterson unsuccessfully sought to enter Vint's testimony of this statement at trial. Petitioner now argues that this statement was not hearsay and was admissible under the "excited utterance" exception to the hearsay rule. (Pet. at 5; Attach to Pet. at 2-5.) Petitioner further claims that the exclusion of this statement violated his federal due process rights. (Id.) Finally, Petitioner argues that if, as the state appellate court concluded, the issue was waived by trial counsel, he was denied his Sixth Amendment right to effective assistance of counsel. (Id.)
Under Ylst, 510 U.S. at 801-06, this Court must review the state appellate court's opinion on this issue. The state court found that Petitioner's trial counsel waived his arguments of error by not raising them properly at the trial. (Lodgment No. 9 at 9-11.) In addition, the court found that because the statement likely did not qualify for admission under the spontaneous declaration exception, "a reasonable attorney in the community would not necessarily seek the admission of such statement under the spontaneous declaration hearsay exception." (Id. at 12.) Accordingly, the state court concluded that Petitioner was not denied the effective assistance of counsel. Finally, the court noted that even if the exclusion of Vint's testimony was in error, Petitioner had not established that he was prejudiced by the error. (Id. at 13.) The court observed that "[t]he bottom line is that Peterson's own statements and the physical evidence were more than sufficient to seal his fate." (Id.)
Because the state court determined that Peterson's claim that Vint's testimony was erroneously excluded was waived, it did not "furnish a basis for its reasoning" with regard to its denial of that claim. Delgado, 223 F.3d at 981. Thus, this court must conduct its own independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. See Delgado, 223 F.3d at 982; Himes, 336 F.3d at 853. The state court did issue a reasoned decision, however, as to the question of whether trial counsel's failure to articulate the correct argument for the admission of Vint's testimony amounted to ineffective assistance of counsel. (See Lodgment No. 9 at 11-14.) As to that portion of Peterson's claim, therefore, this Court must determine whether the state court's decision was contrary to, or an unreasonable application of, clearly established Supreme Court law. See 28 U.S.C. § 2254(d);Williams, 529 U.S. at 412-13. i. Exclusion of Vint's Testimony
The Court turns first to the exclusion of Vint's testimony. At trial, the prosecution presented testimony from Petitioner's alleged roommate at an independent living center, Michael Edwards. Edwards testified that when Petitioner returned home the night of the murders, Petitioner said that "he [had] bashed someone's head in." (Lodgment No. 2, Vol. 2 at 279-81.) In rebuttal, Petitioner sought to offer the testimony of another resident, Brian Vint, whom Petitioner claims was his roommate on the night of the murder. Out of the presence of the jury, Petitioner's counsel represented to the court that Vint would rebut Edwards' testimony by testifying that Peterson had come home the night of the murders, woken Vint, and told him that he had witnessed a man's head being bashed in. (Lodgment No. 2, Vol. 3 at 526.) The prosecutor objected to the admission of Vint's statement as hearsay; Petitioner's attorney responded that the statement was admissible as either a prior consistent statement (consistent with Petitioner's statement to police) or a prior inconsistent statement (inconsistent with Michael Edwards' statement). (Id. at 526-27.) The trial court disagreed that Vint's statement was admissible on either basis and excluded it on evidentiary grounds.
While a defendant has a due process interest and a Sixth Amendment right to present witnesses, that right is not absolute.Taylor v. Illinois, 484 U.S. 400, 409 (1988); Chambers v. Mississippi, 410 U.S. 284, 294 (1973); Washington v. Texas, 388 U.S. 14, 19 (1967); Denham v. Deeds, 954 F.2d 1501, 1503 (9th Cir. 1992). The Ninth Circuit has summarized the scope of this right:
The Sixth Amendment guarantees the accused "compulsory process for obtaining witnesses in his favor." This right is a part of the due process that the fourteenth amendment requires of the state. Washington v. Texas, 388 U.S. 14, 18-19 [citations omitted] (1967). Compulsory process implicitly prevents the state from arbitrarily excluding such testimony. . . . The defendant's general fourteenth amendment right to due process also restrains the operation of state rules of evidence. Due process "is, in essence, the right to a fair opportunity to defend against the state's accusations." Chambers v. Mississippi, 410 U.S. 284, 294 [citations omitted] (1973). State evidentiary rules "may not be applied mechanistically to defeat the ends of justice." [citations omitted].
The defendant's right to present evidence, however, is not absolute. "In the exercise of this right, the accused, as is required of the state, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Chambers, 410 U.S. at 302, 92 S.Ct. at 1049 (right to confront witnesses). Even relevant and reliable evidence can be excluded when the state interest is strong. See Washington, 388 U.S. at 23 n. 21, 87 S.Ct. at 1925 n. 21 (attorney-client privilege).Perry v. Rushen, 713 F.2d 1447, 1450 (9th Cir. 1983).
The Ninth Circuit has identified five factors that should be considered when deciding whether a court's exclusion of defense evidence violates the Constitution: "(1) the probative value of the excluded evidence on the central issue; (2) its reliability; (3) whether it is capable of evaluation by the trier of fact; (4) whether it is the sole evidence on the issue or merely cumulative; and (5) whether it constitutes a major part of the defense." Tinsley v. Borg, 895 F.2d 520, 530 (9th Cir. 1990);see also Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000) (finding that "[Ninth Circuit] cases may be persuasive authority for purposes of determining whether a particular state court decision is an `unreasonable application' of Supreme Court law"). The importance of the evidence must then be balanced against the state's interest in exclusion. Tinsley, 895 F.2d at 530. To overcome the state's strong interest in the administration of its trials, the circumstances of the exclusion must be "unusually compelling." Perry, 713 F.2d at 1452.
The first Tinsley factor is the probative value of the excluded evidence on the central issue. Tinsley, 895 F.3d at 530. Here, there was some probative value of Vint's proposed testimony, but contravening factors negated its assistance to Peterson's defense. The prosecutor provided alternate theories for Peterson's liability, including straight first degree murder, felony murder during the commission of a robbery, felony murder as an aider or abettor, as well as second degree murder, unlawful act accelerating death, and involuntary manslaughter (Lodgment No. 1, Vol. 2, at 196-206.) Peterson attempted to establish that although he was present during the attack on Blessing and may have participated in the earlier robbery of Blessing, it was Rodriguez and/or Honeycutt who imparted the fatal blows by stabbing Blessing during subsequent attacks later in the evening or early morning, after the robbery was complete. (Lodgment No. 2, Vol. 5 at 943-59.) Vint's proposed testimony regarding Peterson's alleged statement that he had seen someone get his head bashed in, supported Peterson's defense at trial. It also impeached Edwards' testimony that Peterson had told him that he had just bashed a man's head in. Peterson, however, contradicted Vint's proposed testimony in his statement to police where he acknowledged that he kicked Blessing at or near his head. (Lodgment No. 2, Vol. 1 at 0131, 0134, 0138, 0144.) Additionally, Vint admitted that Peterson was his friend and that he had memory problems. (Lodgment No. 2, Vol. 3 at 529, 531.) Both of these facts negatively affected the value of Vint's proposed testimony. Thus, Vint's proposed testimony had some probative value, but was not particularly helpful to Peterson's defense.
The second Tinsley factor, reliability, does not weigh in Peterson's favor. At trial, the defense sought to introduce Peterson's out-of-court statement to Vint in order to prove the truth of the matter asserted in the statement, i.e., to establish that Peterson had seen Honeycutt "bash [Blessing's] head in." The state trial judge correctly determined that Vint's testimony was hearsay. Hearsay is typically excluded because it is considered unreliable, although exceptions to this rule exist. Peterson argued at trial that Vint's testimony was admissible under one of two exceptions to the hearsay rule, either the prior consistent statement (consistent with Peterson's statement to police) or a prior inconsistent statement (inconsistent with Edwards' testimony). (Id. at 526-27.) On appeal, Peterson contended that it was admissible as a spontaneous declaration. (See Lodgment No. 10 at 10-11.) Vint's testimony does not meet the criteria for admissibility under any of these exceptions.
First, in California, "[e]vidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing. . . ." (Cal. Evid. Code § 1236.) Peterson was not a "witness" at his trial because, although his statement to police was admitted, he did not testify. (See Black's Law Dictionary 1633 (8th ed. 2004) (defining "witness" as "[o]ne who gives testimony under oath or affirmation (1) in person, (2) by oral or written deposition, or (3) by affidavit"). Therefore, Peterson's hearsay statement to Vint is not admissible under the prior consistent statement exception to the hearsay rule.
Second, Vint's testimony was not a prior inconsistent statement. In California, "[e]vidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing. . . ." (Cal. Evid. Code § 1235.) Peterson was not a witness at trial, and the statement that he sought to admit was consistent, not inconsistent, with his statement to police. Moreover, defense counsel sought to admit Peterson's alleged statement to Vint ("I saw a man's head bashed in.") as a prior inconsistent statement to Edwards' testimony about Peterson's statement to him ("I bashed a man's head in."). The prior inconsistent statement exception only applies to a witness's own testimony. (See id.)
Finally, Peterson's statement to Vint was not admissible as a spontaneous declaration. California Evidence Code section 1240 states "[e]vidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception." (Cal. Evid. Code § 1240.) The state appellate court correctly noted that to qualify as a spontaneous declaration, the statement must have been made while the declarant's reflective powers are in abeyance. (See Lodgment No. 9 at 11 (citing Cal. Evid. Code § 1240(b); People v. Poggi, 45 Cal. 3d 306, 318 (1988); People v. Trimble, 5 Cal. App. 4th 1225, 1233 (1992).) Peterson stated to police that after he witnessed Honeycutt kick Blessing in the head and Rodriguez stab Blessing, he bought beer with Rodriguez and returned to Honeycutt's trailer with her before returning to the board and care facility. (Lodgment No. 1, Vol. 1 at 0089-90.) Peterson's intervening actions indicate that his statement to Vint was not made "under the stress of excitement caused by [his] perception [of the event]." See Cal. Evid. Code § 1240. Therefore, it is unlikely the statement would have been admissible as a spontaneous declaration. Because Vint's proposed testimony was inadmissible hearsay, it was inherently unreliable. Accordingly, the second Tinsley factor weighs against Peterson.
The third factor, whether the trier of fact was capable of evaluating the evidence, also does not weigh in Peterson's favor. As in this case, hearsay is excluded precisely because it is difficult for a fact finder to evaluate the probative value of testimony when it is not subject to cross-examination. Therefore, the third Tinsley factor weighs against Peterson.
The fourth factor, whether it is the sole evidence on the issue or merely cumulative, also does not weigh in Peterson's favor. There was substantial evidence offered on this issue, most notably Peterson's statement to police that he saw Honeycutt kick Blessing in the head, which was admitted at trial. (See Lodgment No. 1 at 0070-0145; Lodgment No. 2, Vol. 3 at 421.) Accordingly, the fourth Tinsley factor weighs against Peterson.
Finally, the fifth Tinsley factor, whether the evidence constitutes a major part of Peterson's defense, does not override the trial court's exclusion of the evidence on hearsay grounds. As noted above, the Court must weigh the state's interest against the defendant's interest in determining this evidentiary issue.See Perry, 713 F.2d at 1450. The Ninth Circuit noted inPerry:
Our common rules of evidence — testimonial privileges, the hearsay rule — have been justified by long experience. [citations omitted]. The state interests which they embody have already been weighed and found to be compelling; only the most urgent considerations, such as those in Chambers, can outweigh them. A defendant must show that his interest clearly outweighs the state's before we will interfere with routine procedural matters. [citations omitted].Id. at 1453.
Here, based on the totality of the circumstances, the Tinsley factors weigh against the admission of Vint's hearsay testimony. Peterson has failed to show that his interest in Vint's testimony "clearly outweighs" the state's interest in the enforcement of the well-established rule against admitting hearsay testimony. The Court therefore concludes that the state court's exclusion of Vint's testimony did not violate Peterson's due process rights. See Taylor, 484 U.S. at 409; Tinsley, 895 F. 2d at 503. Furthermore, the state appellate court's decision upholding the exclusion of the testimony was not contrary to, nor an unreasonable application of clearly established Supreme Court law. Williams, 529 U.S. at 412-13. Accordingly, Peterson is not entitled to relief as to this claim. Id. ii. Ineffective Assistance of Counsel Claim
Peterson further alleges that his trial counsel was ineffective when he failed to raise the spontaneous declaration hearsay exception regarding Vint's testimony. Relying on Strickland v. Washington, 466 U.S. 668 (1984), the state appellate court rejected this argument because even though a state habeas corpus petition was the proper vehicle to raise an ineffective counsel claim, he did not establish that he was prejudiced by any errors committed by counsel. (Lodgment No. 9 at 12-13.) The state appellate court stated:
[B]ecause this record shows Peterson, by his own statements to police, had joined Honeycutt in kicking Blessing several times and had continued his activities with Rodriguez after Honeycutt had left the scene, i.e., going to the liquor store to buy beer with Rodriguez, going back to the trailer park with her and then returning to Blessing's enclosure after giving her his knife and watching as she stabbed Blessing, it is doubtful that the trial court would have admitted Vint's testimony regarding Peterson's purported statement even if trial counsel had raised the spontaneous declaration hearsay exception. Such exception requires that the utterance must have been made under the stress of excitement and while the reflective powers of the declarant are still in abeyance. (Evid. Code § 1240, subd. (b); People v. Poggi (1998) 45 Cal. 3d 306, 318; People v. Trimble (1992) 5 Cal. App. 4th 1225, 1234.) Although the facts reveal Peterson may have been excited at the time he uttered his statement to Vint, they do not affirmatively show Peterson's reflective powers were in abeyance when he made the alleged, self-serving statement to Vint. Under such circumstances, a reasonable attorney in the community would not necessarily seek the admission of such statement under the spontaneous declaration hearsay exception. ( See Strickland v. Washington (1984) 466 U.S. 668, 686-688, 692 ( Strickland).)
Peterson thus has not met his burden of showing his alternative argument that his trial counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and that even if such were found unreasonable, the challenged omission of his counsel was prejudicial. ( Strickland, supra, 46 U.S. at pp. 686-688, 692.) An assessment of counsel's performance does not include the distorting effects of hindsight, but rather reevaluates such at the time of the claimed errors and in light of all the circumstances. ([ Strickland, 466 U.S.] at p. 689.) There is a strong presumption that counsel's representation was reasonable. ( Ibid.) Defendant must show there is a reasonable probability that, but for counsel's errors the result of the proceeding would have been different. ( Id. at p. 694.) A reasonable probability "is a probability sufficient to undermine confidence in the outcome." ( Ibid; In re Harris, (1993) 5 Cal. 4th 813, 832-833.)
Here, Peterson's counsel was not asked below why he did not proffer the statement under the spontaneous declaration exception to the hearsay rule. Under such circumstances, a claim for ineffective assistance of counsel is best left for decision in a habeas corpus proceeding. ( People v. Watson, (1992) 3 Cal. 4th 926, 936 ( Wilson), quoting People v. Pope, (1979) 23 Cal. 3d 412, 426 ( Pope).)
In any event, Peterson has not shown such omission prejudiced his case. Although Vint was not permitted to testify that Peterson told him he had just seen a man's head being stomped, the essence of such statement was before the jury in Peterson's own statements to police during his interviews that he saw Honeycutt stomp on Blessing's head. Because Peterson also had stated that he did not talk to Edwards at all that night, his statement to Vint did not, as Peterson now argues, "endorse Edward's [sic] statement as true."
(Id. at 12-13.)
The state court's denial of Peterson's ineffective counsel claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law, Williams, 529 U.S. at 412-13, which in this case, is Strickland. In California, a spontaneous declaration is an admissible exception to the hearsay rule. "Neither lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance." People v. Pirwani, 199 Cal. App. 4th 770, 789 (2004) (citing Trimble, 5 Cal. App. 4th at 1234-35; see also Poggi, 45 Cal. 3d at 318.
As the state appellate court correctly found, the performance of Peterson's attorney was not objectively unreasonable. See Strickland, 466 U.S. at 686-88. Peterson acknowledged in his statement that after he saw Honeycutt kick Blessing in the head, he and Rodriguez walked to a liquor store to purchase beer, walked to Honeycutt's trailer, then returned to Blessing's enclosure and watched Rodriguez stab Blessing before returning to his board and care facility where he allegedly told Vint that he had seen someone's head get bashed. (Lodgment No. 1, Vol. 1 at 0090, 0099, 0113-114.) Given these facts, the trial court would not have found Vint's testimony admissible under the spontaneous declaration exception to the hearsay rule. Therefore, Peterson's attorney did not act objectively unreasonable by not seeking to have Vint's testimony admitted under this exception.See Strickland, 466 U.S. at 686-88.
Furthermore, the state appellate court properly concluded that Peterson failed to establish that he was prejudiced by any errors committed by counsel. Although Vint's testimony would have supported Peterson's claim that he merely witnessed the murder, Peterson's statement to police expressing this very claim was admitted at trial. (Lodgment No. 2, Vol. 3 at 422; Lodgment No. 1, Vol. 1 at 0070-145.) Finally, despite that Vint's testimony concurred with Peterson's claim, its effect would have been only marginally helpful to Peterson, as Vint admitted he was Peterson's friend, which suggested bias, and that he had memory problems. (Lodgment No. 2, Vol. 3 at 529, 531.)
Accordingly, for the foregoing reasons, Peterson is not entitled to relief pursuant to his claim of ineffective counsel.See 28 U.S.C. § 2254(d); Williams, 529 U.S. at 412-13.
B. Jury Instruction Error
Petitioner asserts several claims that relate to the jury instructions. First, Petitioner argues that the aiding and abetting instructions "permitted the jury to find . . . petitioner guilty of aiding and abetting the robbery under facts that would not constitute aiding and abetting," and that the trial court "failed to instruct the jury (sua sponte) on the timing of the requisite mental state for aiding and abetting a robbery." (Attach. to Pet at 5-10.) Petitioner also asserts that the trial court erred by failing to instruct the jury on the crime of theft, a lesser included offense to robbery. (Id. at 10-13.) Finally, Petitioner contends that the trial court erred by also failing to "instruct the jury that evidence of intoxication is admissible on the question of aiding and abetting liability." (Id. at 13-15.) Respondent argues that the state courts' decisions denying these claims were not contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Answer at 12-19.)
The clearly established Supreme Court law governing jury instructional error is found in Henderson v. Kibbe, 431 U.S. 145 (1977):
The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process," Cupp v. Naughten, 414 U.S. [141], at 147, 94 S.Ct., at 400, 38 L.Ed.2d 368, not merely whether "the instruction is undesirable, erroneous, or even `universally condemned,'" id., at 146, 94 S.Ct., at 400. [T]he . . . burden is especially heavy [when] no erroneous instruction was given. . . . An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.Id. at 154.
However, "[a] criminal defendant is entitled to adequate instructions on his or her theory of defense." Bashor v. Risley, 730 F.3d 1228, 1240 (9th Cir. 1984); but see Gilmore v. Taylor, 508 U.S. 333, 343-44 (1993) (finding that the right to present a complete defense does not entitle a defendant to a particular set of jury instructions). The allegedly erroneous jury instruction cannot be judged in isolation. Estelle v. McGuire, 502 U.S. 62, 72 (1991). Rather, it must be considered in the context of the entire trial record and the instructions as a whole. Id. i. Aiding and Abetting Instruction
The Court begins with Petitioner's claim that the aiding and abetting instructions were in error. At trial, Petitioner's counsel and the trial judge agreed that CALJIC 8.27 should be given to the jury. The version in place at the time of Petitioner's trial was as follows:
If a human being is killed by any one of several persons engaged in the commission or attempted commission of the crime of (felony), all persons, who either directly and actively commit the act constituting that crime, or who with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid, promote, encourage, or instigate by act or advice its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental.
[In order to be guilty of murder, as an aider and abettor to a felony murder, the accused and the killer must have been jointly engaged in the commission of the (felony) at the time the fatal [blow was struck] [wound was inflicted].] [However, an aider and abettor may still be jointly responsible for the commission of the underlying (felony) (felonies) based upon other principles of law which will be given to you.]
(CALJIC No. 8.27.) The optional bracketed second paragraph of this instruction was not included in the instructions given to the jury.
Before the state court of appeal, Petitioner argued that the court erred in omitting the second component of CALJIC No. 8.27. The state court disagreed, ruling that this omission "caused no harm" to Peterson. (Lodgment No. 9 at 16.) According to the court, Peterson's argument to the jury was that his participation in the robbery was complete prior to Blessing's murder. (Id.) Petitioner did not dispute that he had participated in the robbery of Blessing. (Id.) Given this argument, the state appellate court found that the trial court "did not have a sua sponte duty" to "modify the traditional instruction." (Id.) The state appellate court explained that "[w]ithout such second paragraph, the jury was still fully and correctly instructed on all the required elements for a theory of aiding and abetting the alleged underlying robbery and the additional requirement that the murder of the victim by a coprincipal of the robbery be a natural and probable consequence of the robbery. (Id.) The court therefore concluded that the jury had been correctly instructed in this case. (Id. at 17.)
In its decision, the state appellate court referenced a connection between CALJIC No. 8.27 and People v. Pulido, 15 Cal. 4th 713 (1997). In Pulido, the defendant was charged with felony murder based on his participation in a robbery following a murder. The Court held that the defendant could not be found guilty of felony murder if the homicide occurred before the defendant agreed or intended to participate in the robbery, "because the killer was not then acting in pursuit of any such common design or purpose." Id. at 722. In accordance with this holding, CALJIC No. 8.27 was modified to include the second paragraph with the goal of "limit[ing] the liability of late joiners." Id. at 729. The second paragraph of CALJIC No. 8.27 requires "[i]n order to be guilty of murder, as an aider and abettor to a felony murder, the accused and the killer must have been jointly engaged in the commission of the (felony) at the time the fatal [blow was struck] [wound was inflicted].]" (CALJIC No. 8.27.)
Importantly, Petitioner's theory of the case was not that he was a late joiner. On the contrary, Peterson argued that his involvement with the robbery of Blessing was complete prior to the time when the fatal blow, the stab wound to the heart, was struck. (See Lodgment No. 2, Vol. 5 at 935, 943-44, 947, 950-51, 954). Under the law and Peterson's version of events, then, Petitioner would not be entitled to the second paragraph of CALJIC No. 8.27.
Moreover, the state court found that the instructions as given adequately informed the jury as to the required elements for a theory of aiding and abetting the alleged underlying robbery and the additional requirement that the murder of the victim by a coprincipal of the robbery be a natural and probable consequence of the robbery. (Lodgment No. 9 at 16.) "Under California law, there must be a logical nexus — i.e., more than mere coincidence of time and place — between the felony and the act resulting in death before the felony-murder rule may be applied to a non-killer." People v. Cavitt, 33 Cal. 4th 187, 197 (2004). Even where the nonkiller is not present at the time of the murder, the "logical nexus" is present "as long as the felony that the nonkiller committed or attempted to commit and the homicidal act are part of one continuous transaction." Id.
The court's instructions adequately advised Petitioner's jury of these legal requirements. The jury received CALJIC 3.02, which states that "[o]ne who aids and abets another in the commission of a crime is not only guilty of that crime, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aided and abetted." (Lodgment No. 1, Vol. 2 at 180.) With regard to Petitioner's liability for murder, the jury was informed that:
[i]n order to find the defendant guilty of the crime of Murder, you must be satisfied beyond a reasonable doubt that: 1. The crime of Robbery was committed; 2. That the defendant aided and abetted that crime; 3. That a co-principal in the crime committed the crime of Murder; and 4. The crime of Murder was a natural and probable consequence of the commission of the crime of Robbery.
(Id.) Peterson's jury was also instructed by CALJIC No. 3.41 that "[a]n unforeseeable intervening cause which breaks the chain of causation from the original act is itself regarded as the cause of death and relieves the original actor of criminal liability," and that "if the evidence raises a reasonable doubt as to whether a later attack was not a normal and reasonably foreseeable result of defendant's original act, then you must find the defendant not guilty." (Id. at 189.) The instructions also conveyed to the jury the requirement that the robbery and murder be part of "one continuous transaction." Cavitt, 33 Cal. 4th at 197. CALJIC No. 8.21.1 explained that the commission of the crime of robbery need not be confined "to a fixed place or limited period of time," and that the robbery would only be complete when "the perpetrator has eluded any pursuers, has reached a place of temporary safety, and is in unchallenged possession of the stolen property after having effected an escape with such property." (Lodgment No. 1, Vol. 2 at 220.) Additionally, the jury was instructed that first degree murder was appropriate where "a human being is killed by any one of several persons engaged in the commission or attempted commission of the crime of robbery. . . ." (Id. at 201.)
These instructions accurately reflected the law of felony murder. Petitioner has not established that the trial court's failure to give the second paragraph of CALJIC No. 8.27 to the jury "so infected the entire trial that the resulting conviction violates due process." See Henderson, 431 U.S. at 154. Accordingly, the state court's denial of this claim was not contrary to, nor an unreasonable application of clearly established Supreme Court law. Williams, 529 U.S. at 412-13.
ii. Lesser Included Offense Instruction
Petitioner's next argument is that the state court erred by not instructing the jury on the crime of theft, a lesser included offense to robbery. (Attach. to Pet. at 11-13.) Respondent's position is that this claim is unexhausted. (Answer at 5.) "An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C.A. § 2254(b)(1)(A). To satisfy the exhaustion requirement, a Petitioner must have "`fairly presented' his federal claim to the highest state court with jurisdiction to consider it, . . . or (2) demonstrate[d] that no state remedy remains available."Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted).
Petitioner did not raise this claim in his Petition for Review to the California Supreme Court. (Lodgment No. 10.) In his objections to the report and recommendation, Petitioner points out that he did raise this claim in his opening brief to the state appellate court. (Lodgment No. 3 at 35-37.) Although this is true, under Johnson, Petitioner must have appealed this issue to the State's highest court. 88 F.3d at 829. This Petitioner did not do. Accordingly, his claim is unexhausted.
In the Ninth Circuit, a district court may only deny an unexhausted claim under 28 U.S.C. § 2254(b)(2) if "it is perfectly clear that the applicant does not raise even a colorable federal claim." Cassett v. Stewart, 406 F.3d 614, 623-23 (9th Cir. 2005). The Court thus considers whether Petitioner's claim meets that standard.
There is no clearly established Supreme Court law which requires a trial court to instruct on a lesser included offense in non-capital cases. See Solis v. Garcis, 219 F.3d 922, 929 (9th Cir. 2000). In this case, Petitioner's defense did not set forth the argument that Petitioner was guilty of theft, not robbery. Petitioner's theory of the case, as presented to the jury, was that while he participated in the robbery of Blessing sometime late in the evening on September 24, 1998, he did not participate in the murder of Blessing that occurred early on the morning of September 25. Whether theft or robbery occurred was not raised in Petitioner's defense. Moreover, theft is not a lesser included offense to murder. The jury was instructed on the elements of robbery only as the target offense to the first degree felony murder. "Although a trial court on its own initiative must instruct the jury on lesser included offenses of charged offenses, this duty does not extend to uncharged offenses relevant only as predicate offenses under the felony-murder doctrine." People v. Silva, 25 Cal. 4th 345, 371 (2001).
Under current California law, "it is perfectly clear that [Peterson] does not raise even a colorable federal claim."Cassett, 406 F.3d at 623-24. For this reason, although Petitioner's claim is not exhausted, the Court is permitted to deny it on the merits under 28 U.S.C. § 2254(b)(2).
iii. Voluntary Intoxication Instructions
Petitioner's next claim relating to the jury instructions is that the trial court erred by failing to instruct the jury that evidence of voluntary intoxication was admissible in regard to whether Petitioner had the required mental state to aid and abet. (Attach. to Pet. at 13-15.) The state appellate court noted that under California law, while evidence of "voluntary intoxication could be presented on the question of whether a defendant had the required mental state for liability of criminal acts as an aider and abettor," there is no requirement that "any particular instruction" be used to "convey such holding." (Lodgment No. 9 at 18.) Here, the trial court discussed the voluntary intoxication instructions with the parties, and defense counsel specifically agreed to the instruction ultimately given by the court. Both counsel referenced voluntary intoxication in their closing argument. (Id. at 19.) On this basis, the state appellate court concluded that "[n]o prejudicial error is shown." (Id.)
This Court reviews the instruction to determine "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. . . ."Henderson, 431 U.S. at 154. Under California law, although voluntary intoxication does not absolve a defendant of liability, it is relevant to a jury's determination of "whether or not the defendant actually formed a required specific intent. . . ." (Cal. Penal Code § 22.)
In this case, the trial court repeatedly referenced the intent requirement in its instructions to the jury. For example, in the aiding and abetting instruction, CALJIC 3.01, the jury was informed that "A person aids and abets the commission of a crime when he or she (1) [w]ith knowledge of the unlawful purpose of the perpetrator and (2) [w]ith the intent or purpose of committing or encouraging or facilitating the commission of the crime. . . ." (Lodgment No. 2, Vol. 2 at 179.) Similarly, the jury was instructed that it may "not find the defendant guilty of the crime charged or the crime of Murder in the Second Degree, which is a lesser crime, or the crime of Robbery which is the target offense for aider and abetter liability, unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required specific intent and mental state, but (2) cannot be reconciled with any other rational conclusion." (Id. at 185.)
The court also gave a voluntary intoxication instruction that explained that "where a specific intent or mental state is an essential element of a crime" the jury should "consider the defendant's voluntary intoxication in deciding whether the defendant possessed the required specific intent or mental state at the time of the commission of the alleged crime." (Id. at 191.) The jury was informed that "[i]f the evidence shows that a defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether or not the defendant had the required specific intent or mental state." (Id. at 192.) The instructions explained that the murder charges against Petitioner were specific intent crimes, whereas the involuntary manslaughter charge was not. (Id. at 191.) These instructions, taken as a whole, adequately informed the jury that in order to find Peterson guilty of first degree felony murder as an aider and abettor, they were required to conclude that he "intend[ed] not only the act of encouraging and facilitating but also the additional criminal act the perpetrator commit[ed]." People v. Mendoza, 18 Cal. 4th 1114, 1130 (1998).
For the reasons stated, Petitioner has not shown that any error in the instructions with regard to his voluntary intoxication "so infected the entire trial that the resulting conviction violates due process. . . ." Henderson, 431 U.S. at 154. The Court therefore DENIES Petitioner's claim.
iv. Clarification of CALJIC No. 3.02
Petitioner next claims that the state court erred by refusing to clarify CALJIC No. 17.41.1 following a request for further explanation from the jury. On the second day of deliberations, the jury asked, by written note to the trial judge, "Could we have CALJIC 3.02 explained in further detail (specifically item #4.)" (Lodgment No. 1, Vol. 1 at 149.) After consultation and agreement by both counsel, the trial court advised the jury that the court could not provide any further explanation of CALJIC No. 3.02. (Id. at 148.) Three hours later, the jury returned a guilty verdict. (Lodgment No. 1, Vol. 2 at 242.)
On appeal, Petitioner claimed that clarification of CALJIC No. 3.02 was required in these circumstances. The state appellate court disagreed. In the view of the state appellate court, it was critical that Petitioner's counsel had discussed with the court the various options and had agreed that further elaboration on CALJIC No. 3.02 was not appropriate. The state appellate court also noted that "trial counsel may well have had a tactical reason for not suggesting a response to clarify what he perceived was a difficult concept presented by the instruction." (Lodgment No. 9 at 24.)
In California, courts have discretion to clarify a jury instruction upon request by the jury. A state court is not obligated to provide a clarification under Ninth Circuit law.Gonzior v. Craven, 449 F.2d 20, 21 (9th Cir. 1971) (citingDuncan v. Louisiana, 391 U.S. 145 (1968); Bloom v. Illinois, 391 U.S. 194 (1968); DeStefano v. Woods, 392 U.S. 631 (1968);Irvin v. Dodd, 366 U.S. 717 (1961)). This is especially true in this case, where defense counsel did not offer a proposed clarification and actually agreed that further elaboration was not appropriate.
The standard set forth in Henderson also governs the Court's consideration of this issue: whether CALJIC No. 3.02 "so infected the entire trial that the resulting conviction violates due process." 431 U.S. at 154. CALJIC No. 3.02 states as follows:
In order to find the defendant guilty of the crime of murder, you must be satisfied beyond a reasonable doubt that:
1. The crime of Robbery was committed;
2. That the defendant aided and abetted that crime;
3. That a co-principal in that crime committed the crime of Murder; and
4. The crime of Murder was a natural and probable consequence of the commission of the crime of Robbery.
(CALJIC No. 3.02.) This accurately sets forth California law.See People v. Prettyman, 14 Cal. 4th 248, 261 (1996). In no way did this jury instruction "so infect the entire trial that [Petitioner's] resulting conviction violates due process." Henderson, 431 U.S. at 154. Similarly, the Court finds no error with the prosecutor's closing argument, which Petitioner alleges improperly confused the jury about element 4 of CALJIC 3.02. (Attach. to Pet. at 17.) The jury was cautioned that statements by attorneys are not in evidence. (Lodgment No. 1, Vol. 2 at 154).
For the reasons stated, the state appellate court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law.Williams, 529 U.S. at 412-13. Accordingly, Petitioner's claim is DENIED.
v. CALJIC No. 17.41.1
Petitioner argues that CALJIC No. 17.41.1 violates his Sixth Amendment right to a fair and impartial trial by jury, as well as the jury's right to nullify. CALJIC No. 17.41.1 states:
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 this situation.
(CALJIC No. 17.41.1.)
The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed[.]" U.S. Const. Amend. VI. The Supreme Court has stated that the goal of the Sixth Amendment is "jury impartiality with respect to both contestants." Holland v. Illinois, 493 U.S. 474, 483 (1990). To achieve this goal, the Supreme Court has explained that "an impartial jury consists of nothing more than `jurors who will conscientiously apply the law and find the facts.'" Lockhart v. McCree, 476 U.S. 162, 178 (1986) (quoting Wainwright v. Witt, 469 U.S. 412, 423 (1985)).
The state appellate court rejected Peterson's claim, noting that "[n]othing in the record suggests that CALJIC No. 17.41.1 had any prejudicial impact on the jurors' deliberative process or the right to a jury trial." (Lodgment No. 9 at 21.) The Court agrees with the state court, as Peterson has failed to present any evidence as to how CALJIC No. 17.41.1 deprived him of a jury that conscientiously applied the law and found the facts. In the absence of any evidence, the Court concludes that the state court's denial of this claim was not an unreasonable application of Supreme Court law regarding the Sixth Amendment guarantee to a fair and impartial jury. Williams, 529 U.S. at 412-13.
Petitioner also claims that CALJIC No. 17.41.1 impermissibly infringes on jurors' First Amendment right to "speak freely during deliberations without fear of punishment." (Pet. Attach. at 18-20.) Peterson has failed to provide any evidence that CALJIC No. 17.41.1 improperly influenced the jury in his case, or how any of the jurors' First Amendment rights were actually affected. Rather, Petitioner has only speculated that CALJIC No. 17.41.1 might have affected jury deliberations. Such speculation is insufficient to warrant habeas relief. Accordingly, the state court's decision denying this claim was not contrary to, nor an unreasonable application of, clearly established Supreme Court law. Williams, 529 U.S. at 412-13.
vi. Cumulative Error
Finally, Petitioner argues that the cumulative effect of all the errors deprived him of due process and a fair trial. (Attach to Pet. at 21.) The Ninth Circuit has held that where a single error does not deprive a defendant of due process when considered alone, a series of errors may have the cumulative effect of denying a defendant due process when considered in total.Whelchel v. Washington, 232 F.3d 1197, 1212 (9th Cir. 2000). Here, the Court has concluded that there were no errors of constitutional magnitude at Peterson's trial. Therefore, the state court's denial of Peterson's cumulative effect claim was not contrary to, nor an unreasonable application of clearly established Supreme Court law. Williams, 529 U.S. at 412-13. Accordingly, Peterson is not entitled to relief as to this claim. 28 U.S.C. § 2254(d).
Conclusion
Based on the above, the Court ADOPTS the Report and Recommendation and DENIES the habeas corpus petition. The Clerk of Court shall close the case.
IT IS SO ORDERED.