Opinion
No. C-00-4733 MMC
December 22, 2003
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Before the Court is Juan Manuel Valdez, Jr.'s ("Valdez") petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. In response to the Court's order to show cause why the petition should not be granted, respondent Roy A. Castro filed an answer and a brief in support thereof, to which Valdez replied by filing a traverse. Having reviewed the papers filed in support of, and in opposition to, the petition, the Court rules as follows.
FACTUAL AND PROCEDURAL BACKGROUND
The statement of facts is taken verbatim from the unpublished California Court of Appeal decision filed January 29, 1999.
On April 9, 1993, beginning at around 10:30 p.m., nineteen-year-old Valdez drank eight to ten beers. He drank these beers over a period of a couple of hours. At approximately 1:00 a.m., he and three of his friends noticed that a party was underway at a warehouse in Watsonville. Valdez and his friends Gabriel Gonzalez and Jose Luis Mendoza had an altercation with the bouncer who was monitoring entry to the party. Mendoza and Gonzalez were involved in a physical confrontation with the bouncer, in which Gonzalez sustained an injury to his head that bled profusely. The bouncer and other persons at the party told Valdez and his friends to leave. Valdez said in a "very angry and loud" manner: "Look what you did to my brother, motherfucker. We're going to get you. We're going to kill you." Valdez looked "mean," and he was challenging people to fight. He spoke "viciously" and clearly "wanted some revenge." Valdez seemed to believe that one of the partygoers had used a flashlight to hit Gonzalez. Valdez challenged this partygoer to fight. The partygoer refused to fight Valdez. Valdez threatened "I'm going to fucking kill you. I know who you are. I'm going to get a gun and come back here and fucking kill you." He also threatened "I'll be back with the gun to kill you motherfuckers." Gonzalez and Mendoza said "Yeah, we'll be back with a gun. We're going to kill you." All three men declared that "We're brown and proud" and threatened that they would be back to kill "all of [you] white motherfuckers." The three men then got into a car and left.
Valdez and his friends proceeded to a hospital. On the way to the hospital, Gonzalez asked Valdez "[w]here were you when we were getting our ass kicked." Valdez was already mad, and this statement made Valdez even more mad. Valdez insisted that he wanted to return to the warehouse and fight the "bouncer." Valdez and Mendoza left Gonzalez and their other friend at the hospital. Valdez directed Mendoza to drive them to a house where Edgar Paul Valencia, one of Valdez's best friends, was staying. Valdez was still intoxicated and mad. Valdez awakened Valencia and told him what had happened and that he wanted to go back to the party and fight with "some people." Valdez told Valencia that they would need protection because "the people at the party were very big." Either Mendoza or Valdez suggested that they obtain "sticks" for their protection, so they drove to another location and obtained "sticks." Then they returned to the warehouse.
The bouncer was no longer at the party, and all of the doors to the warehouse had been locked. Some potential partygoers arrived after the doors were locked and banged on the warehouse's metal door for a few minutes to try to gain admittance. They did not kick the door too hard because the door seemed so thin that they were afraid of bending it. No one answered. Valdez arrived at the warehouse with a tire iron in his hand. Valencia had a wooden stick in his hand, and Mendoza had some type of metal object in his hand. Valdez was visibly mad. He and Mendoza went up to the large 16 feet by 10 feet metal rollup warehouse door and began banging on it with their metal weapons, kicking it, throwing their bodies against it and demanding to be let in. The banging was strong enough to cause the door to move and shake. Valdez said "Open the fucking door. Let us the fuck in. You'd better let us in. We're going to fucking kill you all. Come on out, you chickenshits." Valdez challenged the occupants of the building to fight and said "We're going to kill you white fuckers" and "We're going to smash all your fucking cars." Valdez was very angry, violent and "obviously intoxicated." He struck the door several more times, and he said "[w]e're going to come back and kill you all." Valdez continued to beat on the door with the tire iron. The door rattled a lot, and the music inside went off. Someone inside said "Go home." This angered Valdez even more, and he banged on the door some more and repeated his threats. In all, the banging on the door lasted for four minutes. Valdez also went over to a BMW parked in front of the warehouse and punctured its tires. Valdez struck another vehicle with his tire iron. Mendoza and Valencia urged Valdez to leave. Gonzalez's brother, who was watching these events suggested that Mendoza "ram your fucking car" into the warehouse door. Mendoza declined to do so, and the three men left.
After leaving the warehouse, Valdez was still mad and wanted to return to the warehouse. Valdez and Mendoza mentioned Valencia's rifle, and Valencia decided to get his rifle "for protection." Mendoza drove them to the house where the rifle was stored. Valencia and Valdez went into the house. Valencia took his loaded .22 caliber semiautomatic rifle from his bedroom and they returned to the car. Valencia placed the rifle in the trunk of the car. When they arrived back at the warehouse, Valencia removed his rifle from the trunk and placed it in the backseat of the car.
Two of the partygoers left the warehouse to check on the safety of their vehicles. They found their vehicles unscathed. One of them was holding a flashlight, and the other was holding a three-foot long piece of metal pipe in his left hand. The two men noticed that another vehicle had had its tires punctured. While the one holding the flashlight was kneeling beside this vehicle examining the punctured tires, the other man saw Valencia, Valdez and Mendoza returning. It was about 2:30 a.m. Valdez and Mendoza were wielding sticks or pipes. They approached the two partygoers and seemed to be trying to provoke a fight. They said to the two partygoers "you hurt my friend" and asked the two men to "come out in the street and fight with them." The two partygoers started to back away.
One of the partygoers was more than six feet tall, like the bouncer, and was holding a flashlight.
Valdez made a motion with his hand toward Valencia. It appeared that Valdez was pointing in the direction from which the three men had come. Valencia returned to the car and retrieved his rifle. He was gone for about 30 seconds and returned holding the rifle down by his side. Valdez was hitting his stick-like weapon against his hand. Mendoza remained near the road, about a car length behind Valdez. One of the partygoers told the three men that the bouncer had gone home, and he asked them to leave. Valencia approached the other partygoer and pointed the rifle at his chest. Valencia said nothing. Two or three times, he lowered the rifle and then raised it again. After doing this, he pointed the rifle at this partygoer steadily. This partygoer raised his hands "in a passive surrendering motion." Valdez poked his stick at the same man about a foot away from the man's face. This man backed away from Valdez, and, with the other partygoer, ran toward the back of the warehouse. Their entire confrontation with Valdez, Mendoza and Valencia had taken about a minute.
After the two partygoers had run about 10 to 15 feet, they heard about 10 shots being fired. Valencia fired his rifle at the large metal rollup door at least 11 times from a distance of between 15 and 30 feet. At least six shots penetrated the rollup door at heights between 21 inches and 68 inches. This rollup door was 24 thousandths of an inch thick. Two bullets struck the front wall of the building at about five and a half feet and six and a half feet off the ground. One bullet struck the back wall of the building. One person who was dancing inside the warehouse about ten feet from the door was struck by a bullet in the head and killed. Five others were struck by bullets and injured.
Valencia, Mendoza and Valdez ran to the car, and Mendoza drove away from town. Valdez took over the driving for a short distance, and then Valencia drove. At Valencia's direction, Valdez hid the rifle. Valdez's blood was drawn 18 hours after the shooting and found to contain no evidence of alcohol.
Valdez was charged by indictment with one count of murder (Pen. Code, § 187), five counts of attempted murder (Pen. Code, §§ 187, 664), five counts of discharging a firearm at an occupied building (Pen. Code § 246) and two counts of exhibiting a firearm (Pen. Code, § 417.2) and causing serious bodily injury (Pen. Code § 417.6). It was further alleged that he had been armed with a firearm (Pen. Code § 12022, subd. (a)(1)) in the commission of these offenses. Four of the five Penal Code section 246 counts were dismissed on a Penal Code section 995 motion, and the indictment was amended accordingly. After the prosecution rested, the trial court denied defendants' motions to dismiss but ordered the exhibiting a firearm counts reduced to misdemeanor violations of Penal Code section 417, subdivision (a)(2). In response, the prosecution dismissed these counts.
Valencia testified at trial that he got his rifle before they returned to the warehouse because he thought he could use it to prevent Valdez getting beat up. He retrieved his rifle from the car because he felt threatened by the two partygoers. He denied having had any intent to hurt anyone. He testified that he thought the door "was a hard door" and the bullets would "get stuck in the door" or bounce off.
Valdez presented evidence of his good character for non-violence, honesty, truthfulness and trustworthiness. Valdez also testified at trial. He admitted that he had become very mad because of the injury to Gonzalez and had wanted to fight the bouncer, but he denied making any verbal threats. Valdez claimed that he obtained Valencia's assistance as "a backup" because Valencia "knew how to fight" whereas he had never been in a fight before. He felt he needed such assistance in case other people at the party interfered with his desire for vengeance on the bouncer. Valdez testified that he believed that the rifle was being brought to the warehouse solely "for protection."
At trial, Valdez could recall only two visits to the warehouse; the first visit with Gonzalez, and a single visit with Valencia. In his version of the events, the two visits with Valencia were consolidated into a single visit. He contended that he had banged on the door merely to try to get the "bouncer" to come out and fight him. Valdez denied having done anything to the BMW's tires. He claimed that he had believed that one of the two partygoers was the "bouncer" when he encountered him in front of the warehouse. Consequently, he challenged this partygoer to fight. Valdez denied making any "signal" for Valencia to fetch his rifle, and he claimed that he was unaware that Valencia was even holding the rifle until he heard the shots. He explained his lack of awareness by placing Valencia behind him throughout the altercation with the two partygoers. Valdez expressly denied having intended for "the building to be shot" or for anyone to be hurt. He also denied having had any knowledge that Valencia was going to fire the rifle at the building or any person. He asserted that his sole purpose was to "fight the bouncer."
A defense expert on the effects of alcohol testified that alcohol can cause a human being to lose the "ability to divide attention" so that the person experiences a sort of "tunnel vision" where he or she is unaware of things that a sober person would be aware of. The intoxicated individual may become preoccupied with his or her own thoughts and "ignore everything else." The expert also explained that intoxication can cause memory lapses, and such memory losses are likely to be incomplete so that the person remembers fragments of the events. Such a memory loss might involve the blending of two events into one. However, a memory loss which is self-serving because it eliminates incriminating events is likely to be faked rather than a real memory loss induced by alcohol intoxication.
The trial court instructed the jury on aiding and abetting, using the state standard instruction, CALJIC 3.01:
A person aids and abets the commission or attempted commission of a crime when he or she with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging or facilitating the commission of the crime by act or advice aids, promotes, encourages or instigates the commission of a crime.
RT 10276. The trial court later instructed the jury on intoxication, using the standard instruction, CALJIC 4.21.1, modified to include the specific crimes alleged:
Under the law, it is the general rule that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of being in such condition.
Thus, the crime of shooting at an occupied building in Count 7, or a crime of accessory [and] grossly negligent discharge of a firearm, which are lesser thereto, the fact that the defendant was voluntarily intoxicated is not a defense and does not relieve defendant of responsibility for the crime. This rule applies in this case only to the crimes of shooting at an occupied building. And the lesser charge of accessory and grossly negligent discharge of a firearm.
However, there is an exception to this general rule, namely, where a specific intent or knowledge is an essential element of a crime. In such event, you should consider the defendant's voluntary intoxication in your determination of whether the defendant possessed the required specific intent or knowledge of at the time of the commission of the alleged offense.
Thus, in the crimes of murder and attempted murder charged in Counts 1 through 6, and the lesser crime of voluntary manslaughter, a necessary element is the existence in the mind of the defendant of a certain a specific intent or knowledge which is included in the definition of the crimes set forth elsewhere in these instructions.
If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider the fact in determining whether or not such defendant had such specific intent or knowledge.
. . . [I]f from all the evidence you have a reasonable doubt whether the defendant had such specific intent or knowledge, you must find that the defendant did not have such specific intent or knowledge.
RT 10279-10280.
B. Procedural History
On November 3, 1993, a jury in the Santa Cruz County Superior Court convicted Valdez of one count of second degree murder, five counts of attempted murder, and one count of shooting at an occupied building. These convictions were based on Valdez's role as an aider and abettor of Valencia, the person who actually shot the gun. On January 21, 1994, Valdez was sentenced to state prison for an indeterminate term of 15 years to life on the second degree murder count, the sentences on the other charges to run concurrently, with the exception of the one-year term for the arming enhancement, which was imposed consecutive to the indeterminate term.
Valdez appealed his convictions to the California Court of Appeal on several grounds, one of which was that the trial court prejudicially erred by refusing to instruct the jury that evidence of his intoxication was relevant to the intent element of aiding and abetting. The Court of Appeal affirmed Valdez's conviction on November 18, 1996, holding that former California Penal Code § 22(b) did not permit admission of evidence of voluntary intoxication to disprove the intent element of aiding and abetting. (See Petition For Writ Of Habeas Corpus ("Pet."), App. A, cone. maj. op. of Bamattre-Manoukian, J., at 1-5.) After granting rehearing, the Court of Appeal affirmed its prior ruling on May 23, 1997. (See Pet., App. C, cone. maj. op. of Bammatre-Manoukian, J., at 1-22.)
The California Supreme Court granted review and, on August 23, 1998, reversed the Court of Appeal, holding that former § 22(b) permitted the fact-finder to consider evidence of intoxication in determining the knowledge and intent elements of aiding and abetting. (See Pet., App. E. at 1, People v. Mendoza, 18 Cal.4th 1114 (1998)). The Court first noted that Valdez had been tried solely as an aider and abettor of Valencia, the direct perpetrator of the crimes, id. at 1123, and stated:
To convict Valdez as an aider and abettor of any 9f these crimes, the jury had to find that he acted with (1) knowledge of Valencia's criminal purpose, and (2) the intent to encourage or facilitate that purpose. Once the jury made these findings, it could convict Valdez of the intended crime and any other crime Valencia actually committed that was a natural and probable consequence of the intended crime. Thus, if the jury found Valdez knowingly and intentionally aided and abetted Valencia in shooting at an occupied building, it could also have convicted him of murder and attempted murder, if it found that Valencia committed those crimes and that they were natural and probable consequences of shooting at an occupied building.Id. The Court further explained:
Awareness of the direct perpetrator's purpose is critical for the alleged aider and abettor to be culpable for that perpetrator's act. A person may lack such awareness for many reasons, including intoxication. A person who is actually unaware that his or her noncriminal act might help another person commit a crime should not be deemed guilty of that crime and all of its reasonably foreseeable consequences even if intoxication contributes to, or is the sole reason for, that lack of awareness.
. . . Anyone, including a drunk person, who knowingly and intentionally aids and abets a criminal act is guilty. Intoxication is relevant only to show the person did not act knowingly and intentionally.Id. at 1129-30 (emphases in original). As the Court observed, [i]ntoxication may explain lack of knowledge that someone else intends to commit a criminal act; the lack of knowledge would excuse the person from liability for that act." id. at 1130. For these reasons, the Court concluded that evidence of voluntary intoxication is admissible under former Penal Code § 22(b), and that the jury may consider such evidence with respect to both the defendant's knowledge and intent as an aider and abettor of all crimes charged. See id. at 1131-32. The Court cautioned, however:
Our holding is very narrow. Defendants may present evidence of intoxication solely on the question whether they are liable for criminal acts as aiders and abettors. Once a jury finds a defendant did knowingly and intentionally aid and abet a criminal act, intoxication evidence is irrelevant to the extent of the criminal liability. A person who knowingly aids and abets criminal conduct is guilty of not only the intended crime but also of any other crime the perpetrator actually commits that is a natural and probable consequence of the intended crime. The latter question is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. In this case, if Valdez intended to aid and abet Valencia in shooting at the occupied building, Valdez will not be allowed to argue that his intoxication prevented him from foreseeing that Valencia might attempt to or actually commit murder. Intoxication evidence is admissible only to help decide whether the defendant is legally liable for a criminal act, not to show that the act is less criminal because of the intoxication.Id. at 1133 (citation omitted) (emphases in original). The Court "stressed" that although evidence of intoxication is admissible, a jury could still find an intoxicated person guilty of aiding and abetting. See id.
The Court remanded the case to the Court of Appeal to determine whether the intoxication instructions given were defective. See id. at 1134-35. In doing so, the Court ordered the Court of Appeal to use a two-step process to determine whether the trial court's instructions were prejudicially defective:
The appellate court should review the instructions as a whole to determine whether it is reasonably likely the jury misconstrued the instructions as precluding it from considering the intoxication evidence in deciding aiding and abetting liability. Any error would have the effect of excluding defense evidence and is thus subject to the usual standard for state law error: "the court must reverse only if it also finds a reasonable probability the error affected the verdict adversely to defendant."Id. at 1134-35 (quoting People v. Humphrey, 13 Cal.4th 1073, 1089 (1996)).
On remand, in an unpublished opinion filed January 29, 1999, the California Court of Appeal found that the jury instructions given were defective because there was a reasonable likelihood that the jury would have "misconstrued the instructions as precluding it from considering the intoxication evidence in deciding aiding and abetting liability." (See Pet., App. F. at 11). The Court of Appeal found the error harmless, however, based on its determination that "it is not reasonably probable that the jury's verdict was in any way affected by the defective intoxication instruction." (id.) As the Court of Appeal reasoned:
The only issues to which the intoxication evidence was relevant were Valdez's knowledge of Valencia's intent to shoot at the warehouse and Valdez's intent to further that purpose. The evidence of Valdez's knowledge and intent was extraordinarily strong. During their first visit to the warehouse, Valdez threatened the partygoers that he would "kill you motherfuckers" and repeatedly stated that he was "going to get a gun and come back here and fucking kill you." In Valdez's presence, Gonzalez and Mendoza also threatened to return "with a gun" and "kill you." The three men also threatened to kill "all" of the partygoers. On their second visit to the warehouse, Valdez again repeatedly stated that "[w]e're going to fucking kill you all" and "[w]e're going to come back and kill you all." Valdez admitted at trial that he knew that Valencia was bringing a rifle with him when they returned to the warehouse. The third visit was free of verbal threats by Valdez, but he was seen to make a signal to Valencia which was immediately followed by Valencia's retrieval of the rifle from the car. Valencia then pointed the rifle at one of the partygoers at the same time that Valdez was poking a stick at the same partygoer's face. When the partygoer retreated, Valencia began firing the rifle.
The evidence presented by Valdez in defense provided no reasonable basis for a rejection of the prosecution's strong evidence of Valdez's explicitly stated intent. . . .
. . . It is highly probable, on this record, that the jury based its evaluation of Valdez's mental state on Valdez's repeated express threats to return to the warehouse with a gun and kill "all" of the partygoers. This evidence was highly indicative of his knowledge of and intent to further Valencia's shooting at the warehouse upon their return with a gun. The only defense offered against this evidence was Valdez's testimony that he never made any threats. Since the threats were heard by numerous witnesses, his denial was not remotely credible. Moreover, the jury's resolution of the question as to whether Valdez made these threats could not have been influenced by the defective intoxication instructions. It is not reasonably probable that a rational juror would have doubted that Valdez's own repeated statements of his intent were an accurate relation of his mental state simply because there was evidence that he was intoxicated when he made the statements and when his explicitly stated purpose was later realized. We are therefore compelled to reach the conclusion that the trial court's defective intoxication instructions did not prejudice Valdez and do not require reversal.Id. at 11-13.
Valdez's request for review by the California Supreme Court was denied on May 12, 1999. On January 10, 2000, the United States Supreme Court denied Valdez's petition for a writ of certiorari.
On December 20, 2000, Valdez filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254.
DISCUSSION
A. Standard of Review
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A district court may not grant a petition on the basis of a claim that was reviewed on the merits in a 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); Price v. Vincent, 123 S.Ct. 1848, 1852 (2003). A federal court errs by reviewing a habeas claim de novo, rather than through the lens of § 2254(d).See id.
In determining whether the state court's decision is contrary to, or involved an unreasonable application of, clearly established federal law, a federal court looks to the decision of the highest state court to address the merits. LaJoie v. Thompson, 201 F.3d 1166, 1172 p. 9 (9th Cir. 2000). In this case, the highest court to address the merits of Valdez's claims is the California Court of Appeal. See Pet., Ex. F.
The United States Supreme Court has held that a decision by a state court is "`contrary to' our clearly established law if it `applies a rule that contradicts the governing law set forth in our cases' or if it `confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.'"Price, 123 S.Ct. at 1853 (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). "Clearly established" law refers to "the holdings, as opposed to the dicta, of [the United State Supreme] Court's decisions as of the time of the relevant state-court decision."Lockyer v. Andrade, 123 S.Ct. 1166, 1172 (2003) (quotingWilliams, 529 U.S. at 412). The state court need not cite the relevant United States Supreme Court cases or even be aware of them, as long as neither the reasoning nor the result of the state-court decision contradicts them. See Early v. Packer, 537 U.S. 3, 8 (2002).
In determining whether a state court engaged in an "unreasonable application" of federal law," a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied a Supreme Court case incorrectly."Price, 123 S.Ct. at 1853 (citations omitted): see also Mitchell v. Esparza, 124 S.Ct. 7, 11 (2003) ("A federal court may not overrule a state court for simply holding a view different from its own.") "Rather, it is the habeas applicant's burden to show that the state court applied that case to the facts of his case in an objectively unreasonable manner." Price, 123 S.Ct. at 1853 (citations omitted). "Objectively unreasonable" is not the same as "clear error," as "[t]he gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."Lockyer, 123 S.Ct. at 1175. Finally, even if the state trial court committed a constitutional error, habeas relief is warranted only if the constitutional error at issue had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 638 (1993): see also Penry v. Johnson, 532 U.S. 782, 796 (2001) (citing Brecht).
Valdez argues that the Brecht standard should not apply in the instant case, because the state court did not explicitly rule on his constitutional claim. As Valdez concedes, however, the Ninth Circuit has squarely held that the Brecht standard applies "uniformly in all federal habeas corpus cases under § 2254." Bains v. Cambra, 204 F.3d 964, 977 (9th Cir. 2000). "[F]ederal district courts always should apply the Brecht standard . . . regardless of what, if any, type of harmless error review was conducted by the state courts." id.
Constitutional errors are of two types: trial error and structural error. See Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991). Structural error is a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself."id. at 310. Where a criminal proceeding is undermined by a structural error, the "criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence," and the defendant's conviction must be reversed, id. Trial error, on the other hand, is error occurring "during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless." id. at 307-08. In the instant case, Valdez contends that the state court erroneously instructed the jury. Improper jury instructions are considered trial error to which harmless error analysis applies. See Conde v. Henry, 198 F.3d 734, 741 (9th Cir. 2000).
B. Valdez's Claims
Valdez argues that the state court's erroneous instructions on intoxication violated the Due Process Clause of the 14th Amendment to the United States Constitution by depriving him of his due process right to have the jury consider evidence of his intoxication in determining his liability as an aider and abettor, the sole theory of his guilt presented by the prosecution. Valdez also contends that the state court's erroneous instructions on intoxication were sufficiently prejudicial so as to warrant habeas relief.
1. Deprivation of Due Process
The California Court of Appeal held that the trial court's instruction on intoxication was erroneous under state law because it "unambiguously and erroneously told the jury that it could not consider Valdez's intoxication with respect to his liability for the shooting at an occupied building count." (Pet., App. F at 10.) The court explained:
Because the jury was also instructed that Valdez could be convicted of the other offenses if he aided and abetted the shooting at an occupied building offense (to which the jury had been told his intoxication was irrelevant) and the other offenses were the "natural and probable consequences" of that offense, it is reasonably likely that the jury would have misconstrued the trial court's erroneous instructions that Valdez's intoxication was irrelevant to his liability for aiding and abetting the shooting at an occupied building offense to preclude its consideration of his intoxication on any of the counts if it accepted the prosecution's natural and probable consequences theory. Therefore, based on "the instructions as a whole," we believe that "it is reasonably likely the jury misconstrued the instructions as precluding it from considering the intoxication evidence in deciding aiding and abetting liability."Id. at 10-11. The United States Supreme Court has held that "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). This Court, therefore, must accept the Court of Appeal's decision that the jury instructions violated state law.
The fact that a jury instruction was incorrect under state law "is not a basis for habeas relief," however, id. at 72. An erroneous jury instruction provides a basis for granting habeas relief only where the improper instruction "by itself so infected the entire trial that the resulting conviction violates due process." Id. (quotingCupp v. Naughten, 414 U.S. 141, 147(1973)).
Valdez contends that the erroneous instructions on intoxication deprived him of his due process right to have the jury consider relevant evidence to negate the required "knowledge" and "intent" elements of the charged crimes prosecuted under an aiding and abetting theory. The defendant's mental state — his knowledge of another person's criminal purpose and his intent to encourage or facilitate that purpose — is an element of the crime of aiding and abetting. See,e.g., People v. Mendoza, 18 Cal.4th at 1134. Intoxication is not an affirmative defense. See,e.g., People v. Reyes, 52 Cal.App.4th 975, 982 (1997). Rather, the jury is permitted to consider evidence of intoxication "in determining whether a defendant tried as an aider and abettor had the required mental state." People v. Mendoza, 18 Cal.4th at 1134.
Under the Fourteenth Amendment, due process requires that "every fact necessary to constitute the crime with which [the defendant] is charged" be proved beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). If a trial court fails "to properly instruct the jury regarding an element of the charged crime," the court commits "a constitutional error that deprives the defendant of due process."Conde, 198 F.3d at 740 (quoting Hennessy v. Goldsmith, 929 F.2d 511, 514 (9th Cir. 1991)). Here, by improperly instructing the jury in a manner that precluded it from considering evidence of Valdez's intoxication, the trial court in effect reduced the prosecution's burden of proving knowledge and intent beyond a reasonable doubt, thus making it easier for the jury to convict Valdez. As a result, the trial court failed to properly instruct the jury on an element of the charged crime, and violated Valdez's right to due process.
Valdez contends that the Due Process clause also requires that the jury be properly instructed on any defenses raised by the defendant that are supported by the evidence. The Supreme Court has stated that "[t]he right of an accused in a criminal trial to 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 (1973).
Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense.California v. Trombetta, 467 U.S. 479, 485 (1984). The Court also has held that "[a]s a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.Mathews v. United States, 485 U.S. 58, 63 (1988) (citingStevenson v. United States, 162 U.S. 313 (1896)).
Matthews was not a habeas case, but a direct appeal of a federal criminal conviction, as was Stevenson, upon which it relies. The Ninth Circuit has applied Mathews to habeas petitions arising from state convictions, however, holding that a "state court's failure to correctly instruct the jury on [a] defense may deprive the defendant of his due process rights to present a defense." See Bradley v. Duncan, 315 F.3d 1091, 1098-99 (9th Cir. 2002).
Quoting Gilmore v. Taylor, 508 U.S. 333 (1993), the government points out that the Supreme Court has also expressly rejected the proposition that "the right to present a defense includes the right to have the jury consider it, and that confusing instructions on state law which prevent a jury from considering an affirmative defense therefore violate due process." Id. at 344. As the government notes, the Court did hold that "such an expansive reading of our cases would make a nullity of the rule reaffirmed in Estelle v. McGuire, supra, that instructional errors of state law generally may not form the basis for federal habeas relief." id. By so holding, however, the Court did not mean to suggest that confusing jury instructions on an affirmative defense can never violate due process. Rather, the Court simply affirmed its prior holding in Estelle that an erroneous jury instruction only violates due process, and thereby provides a basis for granting habeas relief, where the improper instruction "by itself so infected the entire trial that the resulting conviction violates due process." Estelle, 502 U.S. at 72 (quoting CUPP v. Naughten, 414 U.S. 141, 147(1973)).
In the instant case, Valdez's primary defense was his lack of knowledge and intent. His evidence of his intoxication was part of that defense. Because the jury instructions erroneously precluded the jury from considering that evidence, they precluded the jury from fully considering Valdez's defense, thus denying Valdez a "meaningful opportunity to present a complete defense." California v. Trombetta, 467 U.S. at 485. When a voluntary intoxication defense is permitted by law, "the defendant is entitled to have the jury consider it in order to determine whether the government has proved all elements of the offense."United States v. Sayetsitty, 107 F.3d 1405, 1413 (9th Cir. 1997). "[A] defendant has a constitutional right to have the jury consider defenses permitted under applicable law to negate an element of the offense." Id. at 1414.
Accordingly, the Court finds that the state court violated Valdez's clearly established rights under the Due Process Clause of the United States Constitution by failing to properly instruct the jury on how to consider evidence of Valdez's intoxication.
2. Harmless Error
Even where an erroneous jury instruction results in a constitutional violation, however, the Court still must apply the harmless error analysis mandated by Brecht. See Calderon v. Coleman, 525 U.S. 141, 145-46 (1998). The Court may grant habeas relief only where the error "had substantial and injurious effect in determining the jury's verdict." Id. at 145 (quoting Brecht, 507 U.S. at 637). Habeas relief may not be granted "based on mere speculation that the defendant was prejudiced by trial error; the court must find that the defendant was actually prejudiced by the error." Id. at 146 (citing Brecht, 507 U.S. at 637.) If the Court is "in grave doubt about the likely effect of an error on the jury's verdict," however, "the uncertain judge should treat the error, not as if it were harmless, but as if it affected the verdict[.]" See O'Neal v. McAninch, 513 U.S. 432, 435 (1995).
In the instant case, the California Supreme Court remanded the case to the Court of Appeal to determine whether there was "a reasonable probability the error affected the verdict adversely to defendant."People v. Mendoza, 18 Cal.4th at 1134-35 (citing People v. Humphrey, 13 Cal.4th 1073, 1089 (1996)). This is the usual standard of review for state law error, based on the California Supreme Court's decision in People v. Watson, 46 Cal.2d 818 (1956)).See Humphrey, 13 Cal.4th at 1089 (citing Watson, 46 Cal.2d at 836)). The Ninth Circuit has held that "[t]his standard under California state law is the equivalent of the Brecht standard under federal law[.]" Bains, 204 F.3d at 971 n. 2.
The Court of Appeal applied that standard and found that it is not reasonably probable that the jury's verdict was affected by the defective intoxication instructions. (Pet., Ex. F at 11.) As the Court of Appeal applied the same legal test for harmless error that this Court must apply, habeas relief may be granted only if the Court of Appeal's application of the law to the facts was objectively unreasonable.See, e.g., Price, 123 S.Ct. at 1853. "[A] federal habeas court may not grant the writ simply because that court concludes in its independent judgment that the state-court decision applied a Supreme Court case incorrectly." Id.
The California Court of Appeal held that, given the "extraordinarily strong" evidence of Valdez's knowledge and intent, it was not reasonably probable that the jury's verdict was affected by the defective intoxication instructions. (Pet., Ex. F at 11-13.) The court correctly noted that the only issues to which the intoxication evidence was relevant were Valdez's knowledge of Valencia's intent to shoot at the warehouse, and Valdez's intent to further that purpose. On the defendants' first visit to the warehouse, as the Court of Appeal noted, Valdez threatened to kill the partygoers, and repeatedly stated that he was going to get a gun and come back to kill them. On the second visit to the warehouse, Valdez again repeatedly threatened to kill the partygoers and stated he was going to come back to kill them. Valdez admitted at trial that he knew Valencia was bringing a rifle with them when they returned to the warehouse for the third time. Although Valdez did not make any verbal threats during his third visit to the warehouse, he was seen to make a signal to Valencia, which was immediately followed by Valencia's retrieval of the rifle from the car. Valencia then pointed the rifle at one of the partygoers at the same time that Valdez was poking a stick at the partygoer's face, and when the partygoers retreated, Valencia fired the rifle.
The Court of Appeal found that the evidence presented in Valdez's defense provided no reasonable basis for rejecting the prosecution's evidence of Valdez's explicitly stated intent. (Pet Ex. F at 12.) The court noted that although Valdez presented evidence that he drank eight to ten beers between 10:30 p.m. and his first visit to the warehouse at 1:00 a.m., he did not present any expert evidence as to what effect that level of alcohol consumption would have produced at the time of the shooting or at any other point. Despite substantial evidence to the contrary from multiple witnesses, he denied making any threats during any of his visits to the warehouse and claimed not to recall whether Valencia had anything in his hands when they approached the warehouse for their third visit. Again contrary to credible testimony, he denied making any signal to Valencia to retrieve the gun, and further asserted he was not aware of any plan for Valencia to display or fire the gun, despite his own testimony that he believed the gun was being brought to the warehouse for "protection." He testified that he could not see what Valencia was doing just before the shooting because Valencia was behind him, not because he was intoxicated.
On this evidence, the Court of Appeal concluded that it was highly probable that the jury based its evaluation of Valdez's mental state on his repeated express threats to return to the warehouse with a gun and kill the partygoers. Since the threats were heard by numerous witnesses, the Court of Appeal believed that the jury could not have found his denial of those threats to be remotely credible. In particular, the Court of Appeal stated:
[T]he jury's resolution of the question as to whether Valdez made these threats could not have been influenced by the defective intoxication instructions. It is not reasonably probable that a rational juror would have doubted that Valdez's own repeated statements of his intent were an accurate reflection of his mental state simply because there was evidence that he was intoxicated when he made the statements and when his explicitly stated purpose was later realized. We are therefore compelled to reach the conclusion that the trial court's defective intoxication instructions did not prejudice Valdez and do not require reversal.
(Pet Ex. Fat 13.)
The Court of Appeal's conclusion that it is highly probable that the jury would not have acquitted Valdez even if it had been permitted to consider evidence of Valdez's intoxication in determining whether he had the requisite knowledge and intent is not objectively unreasonable. The jury heard substantial evidence that Valdez acted purposefully from the beginning by: (1) insisting that he and Mendoza leave the hospital to return to the warehouse to fight; (2) going to pick up Valencia and to get "protection"; (3) returning to the warehouse with a tire iron and threatening to kill the partygoers and smash their cars; (4) returning to Valencia's house and getting Valencia's rifle; (5) returning to the warehouse and threatening partygoers with a stick; and (6) then gesturing to Valencia to get the gun. Indeed, Valdez was the catalyst for the entire incident.
"Under California law, a person who aids and abets a confederate in the commission of a criminal act is liable not only for that crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a Natural and probable consequence' of the crime originally aided and abetted." People v. Prettyman, 14 Cal.4th 248, 254 (1996). This doctrine is based "on the recognition that `aiders and abettors should be responsible for the criminal harms they have naturally, probably and foreseeably put in motion.'" See id. at 260 (quoting People v. Luparello, 187 Cal.App.3d 410, 439 (1986)). The issue is "not whether the aider and abetter actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable." See People v. Mendoza, 18 Cal.4th at 1133 (emphases in original). "Intoxication is irrelevant in deciding what is reasonably foreseeable."Id.
In Prettyman, the California Supreme Court also held that the trial court must instruct the jury as to the elements of any uncharged target offenses that could form the basis of aiding and abetting liability under a natural and probable consequences theory.See People v. Prettyman, 14 Cal.4th at 266-67. Although the trial court here instructed the jury on aiding and abetting liability under a natural and probable consequences theory, it did not instruct the jury on the elements of any possible uncharged offenses, such as brandishing a deadly weapon (see Cal. Pen. Code § 417) or criminal assault (see Cal. Pen. Code § 240). The issue presented here, however, is whether the jury would have convicted Valdez had it been instructed correctly.
The Court notes that the Court of Appeal, in its initial opinion and its opinion on rehearing, rejected the argument made by Valdez and Mendoza that because they aided and abetted a brandishing or a challenge to fight, they were entitled to a voluntary manslaughter instruction.See Petition, App. A, People v. Mendoza, slip. op. at 19-20 (Cal.Ct.App. 1996); Petition, App. C, People v. Mendoza, slip op. at 18-19 (Cal.Ct.App. 1997). In both opinions, the court explained:
If Valdez and Mendoza were liable for the shooting as the reasonably foreseeable consequence of the brandishing or the challenge to fight, then they were guilty of second degree murder. This is true because, as we have already discussed with respect to Valencia's liability, a death which occurs in the commission of an inherently dangerous felony such as shooting at an occupied dwelling is second degree murder. Thus, if Valencia's death-causing act of shooting at the warehouse was the reasonably foreseeable consequence of the aided and abetted conduct of brandishing or challenging DeHaan to a fight, then the minimum liability level of Valdez and Mendoza, as aiders and abettors of one of those misdemeanor offenses, would be second degree murder. If Valencia's act of shooting at the warehouse was not a reasonably foreseeable consequence of the brandishing or the challenge to a fight, Valdez and Mendoza could not be held liable for the death at all, and there would still be no basis for involuntary manslaughter instructions.See Petition, App. A at 20; Petition, App. C at 19. Nothing in the California Supreme Court's later opinion in the case casts any doubt on this analysis.
Here, the uncontradicted evidence demonstrates a course of escalating violence in which Valdez was the prime instigator. Valdez admitted that it was his idea to pick up Valencia before returning to the warehouse, and that he wanted Valencia with him. (See RT 8074, 8117, 8118, 8141.) He admitted that he told Valencia he wanted to go back to the warehouse to fight. (See RT 8166.) He admitted that he saw Valencia come out of the house with a rifle, and that he saw Valencia put it in the trunk of the car. (See RT 8078, 8131-32.) He admitted that he did not tell Valencia not to bring the rifle, (see RT 8132, 8172), and that it was not "all Edgar's idea to get the rifle." (See RT 8170.) Thus, a reasonable jury could not find that Valdez returned to the warehouse without intending both to fight and to defend himself and his friends with the weapons they brought with them, including a loaded firearm. Having brought the gun with him, it was reasonably foreseeable that the gun would be used. Because it was reasonably foreseeable that the gun would be used, it was reasonably foreseeable that someone would be shot. Because it was reasonably foreseeable that someone would be shot, it was reasonably foreseeable that someone would be killed.
In short, the undisputed evidence is that Valdez deliberately brought Valencia back to the warehouse to assist in a violent encounter, and that Valdez knew Valencia was bringing a gun with him to be used therein. The undisputed evidence is such that there is no reasonable likelihood that the jury would have found the shooting to be unforeseeable. See e.g., People v. Hammond, 181 Cal.App.3d 463, 468-70 (1986) (stating, in affirming conviction of getaway car driver for murder and attempted murder under aiding and abetting theory, despite "flawed" instructions: "Having determined that defendant knew of [the co-defendant's] plan and intended to facilitate the armed robbery, the jury would in all likelihood have also found that the attempted murder of . . . a store clerk [ ] was a natural and probable consequence of the robbery itself.")
Finally, Valdez did not testify that he was merely engaging in drunken boasting when he made explicit threats to return with a gun to kill the partygoers, or that he could not recall making such threats; rather, he testified unequivocally that he never made any such threats at all. (See RT 8070, 8178-79, 8190-95.) Thus, his intoxication defense had no bearing on the evidence that he made such threats, that he actually did return to the warehouse with a gun, and that he had signaled to Valencia to retrieve the gun from the car.
The considerable quantity and strength of the evidence of Valdez's knowledge and intent supports the Court of Appeal's conclusion that it was highly probable that the jury would have come to the same verdict even if it had been properly instructed. This Court may not second guess the Court of Appeal's analysis, even if it is erroneous, unless it is also objectively unreasonable. See Price, 123 S.Ct. at 1853; see also Lockyer, 123 S.Ct. at 1175. As the Court of Appeal's analysis and conclusion were not objectively unreasonable, Valdez is not entitled to habeas relief.
CONCLUSION
For the reasons expressed above, the Court hereby DENIES Valdez's petition for a writ of habeas corpus.
The Clerk shall close the file and terminate all pending motions.