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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11 WILLIAM POLLARD, No. 2:24-cv-1747 WBS AC (P)
12 Petitioner,
13 v. FINDINGS AND RECOMMENDATIONS
14 ROB ST. ANDRE, Warden,
15 Respondent.
16
17 Petitioner is a California state prisoner proceeding through counsel with an application for
18 a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The action proceeds on the petition filed
19 on June 20, 2024, ECF No. 1, which challenges petitioner’s 2020 conviction for multiple counts
20 of assault with a deadly weapon and related offenses. Respondent has answered, ECF No. 12,
21 and petitioner has filed a traverse, ECF No. 15.
22 BACKGROUND
23 I. Proceedings in the Trial Court
24 A. Preliminary Proceedings
25 Petitioner was charged in San Joaquin County with five counts of attempted murder and
26 related offenses arising from a drive-by shooting into a moving vehicle. I CT 97-118 (ECF No.
27 11-1 at 116-137) (Information).
28 ////
1 B. The Evidence Presented at Trial
2 1. Prosecution Case
3 One morning, Harvey Stenson was driving his girlfriend, Rayleen Armendariz, to her
4 daughter’s school. Their three year old son was in the backseat, along with Armendariz’s seven
5 year old daughter and Stenson’s two year old son. They drove past an intersection, where
6 Stenson and Armendariz saw petitioner in his car waiting at a red light in the left turn lane. At the
7 time, petitioner was dating Stenson’s ex-girlfriend, who is the mother of one of Stenson’s
8 children.
9 Upon seeing petitioner, Stenson said to Armendariz, “Look at that bitch ass [n-word].” As
10 Stenson continued driving, petitioner moved his car out of the turn lane and sped in their
11 direction. Petitioner tried to drive up beside Stenson’s car in the right lane, but Stenson pulled in
12 front of him. Petitioner moved his car left and pulled alongside Stenson’s car. Armendariz
13 looked to the left and saw a “flash” as petitioner began shooting through the passenger side
14 window of his car. She heard approximately five gunshots. Bullets struck Armendariz’s chin and
15 right middle finger. No one else in the vehicle was hit. No one in Stenson’s vehicle possessed a
16 gun at the time of the shooting. Police later found two other bullet holes in Stenson’s car; one in
17 the rear left passenger door and one in the left tail light.
18 Asad Shah witnessed the shooting as he drove behind both cars, and he called 911. Shah
19 told the dispatcher that he “believe[d]” that both cars were struck by bullets because he saw glass
20 on the ground. At trial, Shah testified that he did not see windows break or know where the glass
21 came from. Shah did not see anyone holding a gun and could not tell which car the shots came
22 from.
23 Stenson drove Armendariz to the hospital, where she was treated for serious injuries on
24 her face and finger, which required several subsequent surgeries.
25 2. Defense Case
26 At the close of the prosecution’s case, the defense moved for a directed verdict as to all
27 counts of attempted murder. The motion was granted as to Counts 5, 7 and 9, which related to the
28 three children who were passengers in Stenson’s vehicle.
1 The defense called no witnesses.
2 C. Outcome
3 The jury found petitioner guilty of five counts of assault likely to cause great
4 bodily injury (Cal. Pen. Code, § 245(a)(4)) and of being a felon in possession of a
5 firearm (Cal. Pen. Code, § 29800(a)(1)). With respect to petitioner’s assault on Armendariz, the
6 jury found true that petitioner personally inflicted great bodily injury (Cal. Pen. Code,
7 § 12022.7(a)). The jury further found that petitioner personally used a firearm in relation to all
8 the assault counts (Cal. Pen. Code, § 12022.5 (a)). Petitioner was found not guilty of attempting
9 to murder Armendariz. The jury deadlocked on the charge of attempted murder of Stenson, and
10 that count was dismissed.
11 Petitioner admitted he had a prior strike conviction (Cal. Pen. Code, §§ 667(d),
12 1170.12(b)), prior serious felony conviction (§ 667(a)(1)), and a prior prison term (§ 667.5(b)).
13 The trial court sentenced him to an aggregate term of 32 years eight months in prison.
14 II. Post-Conviction Proceedings
15 Petitioner timely appealed, and on May 24, 2022, the California Court of Appeal affirmed
16 the judgment of conviction but remanded for resentencing in accordance with new legislation.
17 ECF No. 11-38. The California Supreme Court denied review on August 17, 2022. ECF No. 11-
18 41.
19 Petitioner filed no applications for state collateral relief. He filed a § 2254 petition in this
20 court during the pendency of state appellate proceedings regarding resentencing on remand. See
21 Pollard v. St. Andre (“Pollard I”), Case No. 2:23-cv-0113 TLN DC (P). That case was dismissed
22 without prejudice in light of the ongoing state proceedings. Pollard I, ECF Nos. 23, 25. The
23 instant petition was initiated after the conclusion of sentencing review in the state courts.
24 STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA
25 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of
26 1996 (“AEDPA”), provides in relevant part as follows:
27 (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
28 granted with respect to any claim that was adjudicated on the merits
1 in State court proceedings unless the adjudication of the claim –
2 (1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
3 determined by the Supreme Court of the United States; or
4 (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
5 State court proceeding.
6 The statute applies whenever the state court has denied a federal claim on its merits,
7 whether or not the state court explained its reasons. Harrington v. Richter, 562 U.S. 86, 99
8 (2011). State court rejection of a federal claim will be presumed to have been on the merits
9 absent any indication or state-law procedural principles to the contrary. Id. (citing Harris v. Reed,
10 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a
11 decision appearing to rest on federal grounds was decided on another basis)). “The presumption
12 may be overcome when there is reason to think some other explanation for the state court’s
13 decision is more likely.” Id. at 99-100.
14 The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing legal
15 principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade, 538
16 U.S. 63, 71-72 (2003). Only Supreme Court precedent may constitute “clearly established
17 Federal law,” but courts may look to circuit law “to ascertain whether . . . the particular point in
18 issue is clearly established by Supreme Court precedent.” Marshall v. Rodgers, 569 U.S. 58, 64
19 (2013).
20 A state court decision is “contrary to” clearly established federal law if the decision
21 “contradicts the governing law set forth in [the Supreme Court’s] cases.” Williams v. Taylor, 529
22 U.S. 362, 405 (2000). A state court decision “unreasonably applies” federal law “if the state
23 court identifies the correct rule from [the Supreme Court’s] cases but unreasonably applies it to
24 the facts of the particular state prisoner’s case.” Id. at 407-08. It is not enough that the state court
25 was incorrect in the view of the federal habeas court; the state court decision must be objectively
26 unreasonable. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003).
27 Review under § 2254(d) is limited to the record that was before the state court. Cullen v.
28 Pinholster, 563 U.S. 170, 180-181 (2011). The question at this stage is whether the state court
1 reasonably applied clearly established federal law to the facts before it. Id. at 181-182. In other
2 words, the focus of the § 2254(d) inquiry is “on what a state court knew and did.” Id. at 182.
3 Where the state court’s adjudication is set forth in a reasoned opinion, §2254(d)(1) review is
4 confined to “the state court’s actual reasoning” and “actual analysis.” Frantz v. Hazey, 533 F.3d
5 724, 738 (9th Cir. 2008) (en banc). A different rule applies where the state court rejects claims
6 summarily, without a reasoned opinion. In Richter, supra, the Supreme Court held that when a
7 state court denies a claim on the merits but without a reasoned opinion, the federal habeas court
8 must determine what arguments or theories may have supported the state court’s decision, and
9 subject those arguments or theories to § 2254(d) scrutiny. Richter, 562 U.S. at 102.
10 DISCUSSION
11 I. Claim One: Batson Error
12 A. Petitioner’s Allegations and Pertinent State Court Record
13 Petitioner alleges that prospective juror Ms. S. was dismissed by the prosecution based on
14 her race, in violation of petitioner’s equal protection rights.
15 1. Relevant Voir Dire
16 The trial record does not reflect the racial composition of the jury pool or the race of
17 individual prospective jurors other than Ms. S. Petitioner alleges here and represented in state
18 court that Ms. S. was the sole African American prospective juror, with the exception of one other
19 individual who was excused for cause. Respondent has not affirmatively disputed that fact.
20 a. Ms. S.1
21 Juror No. 7, Ms. S., was African American. ART 414 (ECF No. 11-30 at 4). During voir
22 dire, Ms. S. stated that she was a widow and was previously employed as an accountant at Levi
23 Strauss. She was a mother, grandmother, and great-grandmother. Approximately four years
24 earlier, Ms. S. had served on a criminal jury that reached a verdict. When asked whether she was
25 a leader or a follower, Ms. S. said that she had “control issues” when she is “put in a corner or
26 something like that,” but that she would not pressure other jurors to change their minds. She said
27
28 1 Voir dire of Ms. S. is found at ART 322-354 (ECF No. 11-29 at 127-159).
1 she could work in a team environment.
2 Regarding the concept of circumstantial evidence, the prosecutor asked Ms. S. what she
3 would think if she went outside and the sidewalk and street were wet, there were puddles in the
4 street, and people had umbrellas up and raincoats on with raindrops on them. Ms. S. responded,
5 “Just because [a raincoat] has water on it doesn’t mean it rained.” The prosecutor then asked,
6 “[I]f there’s snow on the ground and the night before you went up to that cabin there’s no snow
7 on the ground, what does that tell you?” Ms. S. answered, “It doesn’t tell me anything.” The
8 prosecutor asked Ms. S. if she was driving down the street, and the car in front of her turned on its
9 brake lights and right turn blinker and moved into the righthand turn lane, what did Ms. S. think
10 the car would do. Ms. S. responded, “Turn right.” The prosecutor explained that Ms. S. drew
11 that conclusion using circumstantial evidence and asked if she was “suspicious of circumstantial
12 evidence.” Ms. S. replied, “No, just the example that you’ve given. But no.”
13 The prosecutor asked if Ms. S. was saying that she was “okay with the right turn” but “not
14 okay with it raining outside.” Ms. S. said, “Right now I don’t know what I’m saying because I’m
15 thinking in my head of the example of the car. You know, I’m always looking because that
16 person might decide to go left, although he gets the signal that he’s going right. [¶] . . . [¶] So
17 there’s always a possibility of something else happening. Does that make sense to you?” The
18 prosecutor answered in the affirmative, and then turned to another example, asking, “[I]f this
19 [microphone] is in my hand and I drop it because I really want to and it breaks, and I pick it up
20 and I say, ‘Oh, look,’ and you see that it’s broken, . . . what do you think about how it got
21 broken?” Ms. S. said, “That you dropped it.” The prosecutor explained that Ms. S.’s conclusion
22 was based on direct evidence because she “saw that break.” However, the prosecutor continued,
23 if she had dropped it behind a partition such that Ms. S. did not see it drop, but only saw the
24 resulting break, Ms. S. would say, “‘Oh, she just broke it.’” Ms. S. responded, “Okay.
25 All right.” The prosecutor said, “I think you’re still a little suspicious on that,” but Ms. S.
26 said, “No, no, no,” and that she was “okay” and agreed she could give circumstantial evidence
27 the same weight as direct evidence.
28 ////
1 The prosecutor then asked, “Can you use circumstantial evidence to figure out what’s in
2 someone’s head, what their intent is?” Ms. S. answered, “How would you know what someone is
3 thinking? I don’t have those skills. [¶] . . . [¶] I would have to see the whole picture and, you
4 know, like, all the evidence and how it fits and everything. [¶] . . . [¶] I just can’t look at a person
5 and think what they are thinking.” The prosecutor asked, “So you would look at maybe physical
6 evidence to conclude?” Ms. S. said, “I would look at all the evidence to conclude.”
7 The prosecutor returned to the microphone asking, hypothetically, “[I]f I take this
8 [microphone] and throw it on the ground, do you need me to say, ‘I wanted to break that
9 microphone thing’ in order for you to believe that I wanted to break it? Or if I was just walking
10 around and I slammed this thing on the ground, would that tell you something? Is there a
11 difference to you?” Ms. S. responded, “No.” The prosecutor said, “It feels like you’re guessing
12 what the right answer might be,” to which Ms. S. said, “I don’t know what you want me to say.”
13 The prosecutor said, “I want you to tell me what you think. That’s what I want you to say.” Ms.
14 S. said, “You really want me [to] tell you what . . . I think? [¶] . . . [¶] I just feel I have to see
15 everything. I have to see the whole puzzle. I can’t judge on just one thing just because you
16 dropped it and say, ‘Oh, that person’s thinking about this.’ Whatever. I just need more.”
17 b. Juror No. 102
18 Juror No. 10 was questioned about circumstantial evidence immediately after Ms. S.
19 Juror No. 10 was single, employed as a process engineer, had no children, and had never served
20 as a juror. Her stepfather was a retired officer from the Stockton Police Department. Juror No.
21 10 described herself as “independent,” and confirmed she would neither “push nor be pushed.”
22 In response to the prosecutor’s question about proof of intent, Juror No. 10 said, “I don’t
23 think you can judge what someone is thinking,” and that to know what someone is thinking, “you
24 have to look at everything that happened, what was leading up to it happening.” The prosecutor
25 said, “But you still are using that information to make a conclusion about what’s in someone’s
26 mind, what their intent is?” Juror No. 10 responded, “I suppose. Yes.” The prosecutor asked,
27
2 Voir dire of Juror No. 10 is at ART 317-318 (ECF No. 11-29 at 122-123), 331-341 (ECF No.
28 11-29 at 136-146) (passim), and 354-355 (ECF No. 11-29 at 159-160).
1 “And do you have a problem doing that? Like, do you feel like you would not be able to use
2 evidence in front of you to determine what’s in someone’s mind? Because, ultimately, like I
3 discussed with one of the other jurors, intent is always an issue in every criminal case, so you are
4 going to have to figure that out. So the question becomes how are you going to do that.” Juror
5 No. 10 answered, “I think you have to examine everything that’s in front of you in deciding what
6 happened.”
7 The prosecutor did not exercise a peremptory challenge against Juror No. 10.
8 2. Batson/Wheeler Motion and Trial Court’s Ruling3
9 The prosecutor exercised a peremptory challenge against Ms. S., and the defense made a
10 Batson/Wheeler motion.4 Defense counsel stated, “Ms. S[.] is African American and, for the
11 record, my client is African American. It did not seem to me that there was a race-neutral reason
12 for challenging Ms. S[.]” ART 414 (ECF No. 11-30 at 4). The trial court found that petitioner
13 had made out a prima facie case because Ms. S. “fit into the classification for which such a
14 motion can be made.”
15 In response, the prosecutor explained that Ms. S. had been excused because she had
16 “extreme difficulty understanding the concept” of using circumstantial evidence to prove intent,
17 while “none of the other jurors had that issue. They all readily understood the concept and agreed
18 with it. She did not.” The prosecutor continued, “I talked about if I dropped [the microphone]
19 and I picked it up and it was cracked. And she even had difficulty with that concept.” The
20 prosecutor also cited Ms. S.’s statement that she could not know what was in someone’s mind as
21 problematic regarding her understanding of circumstantial evidence. She argued that “the People
22 are concerned specifically because of her inability to comprehend and be willing to apply
23 circumstantial evidence to determine a person’s intent because that’s going to be extremely
24 important in this case,” where “the charges are premeditated, willful, and deliberate. There’s also
25
26
3 The motion hearing is transcribed at ART 414-420 (ECF No. 11-30 at 4-10).
4 Batson v. Kentucky, 476 U.S. 79 (1986); People v. Wheeler, 22 Cal.3d. 258 (1978). Wheeler is
27 the California procedural equivalent of Batson, which prohibits the use of racially motivated
peremptory challenges as a matter of federal law. Crittenden v. Ayers, 624 F.3d 943, 951 n.2 (9th
28 Cir. 2010). “[A] Wheeler motion serves as an implicit Batson objection.” Id.
1 a kill zone theory . . . .”5 Finally, the prosecutor expressed concern that Ms. S.’s statement, “‘I
2 don’t know what you want me to say,’” or, “‘I don’t know what you want me to tell you,’”
3 suggested that she is going to “say anything to, in essence, to appease me or to address whatever
4 my concern is.” Defense counsel responded that Ms. S. answered the questions intelligently and
5 showed she understood the concept of circumstantial evidence.6
6 The trial court denied the motion. It first acknowledged Ms. S. was not the only person
7 who questioned whether one could know what another person is thinking, observing that another
8 juror made a similar comment but was excused for hardship. However, the trial court referenced
9 the prosecutor’s microphone hypothetical, noting that the prosecutor asked Ms. S. to draw an
10 inference where she “threw [the microphone] down” behind the partition while acting it out. The
11 trial court concluded, “[T]hat example about [the microphone]—without the instruction of telling
12 them how to weigh circumstantial evidence as opposed to direct evidence is murky. But that
13 example of throwing down with force—and [the prosecutor] acted it out—and then [Ms. S.’s]
14 answers in response to that, and also that answer, ‘well, what do you want me to say,’ I do find
15 that that is a race-neutral basis for the exclusion and I am going to deny the Wheeler motion.”
16 B. The Clearly Established Federal Law
17 Purposeful discrimination on the basis of race in the exercise of peremptory challenges
18 violates the Equal Protection Clause of the United States Constitution. See Batson v. Kentucky,
19 476 U.S. 79 (1986); Johnson v. California, 545 U.S. 162 (2005). Batson claims are evaluated
20 under a three-step test:
21 First, the defendant must make out a prima facie case “by showing
that the totality of the relevant facts gives rise to an inference of
22 discriminatory purpose.” [Citations]. Second, once the defendant
has made out a prima facie case, the “burden shifts to the State to
23 explain adequately the racial exclusion” by offering permissible
24
5 Under California law, the intent element of attempted murder may be satisfied by evidence that
25
a defendant deliberately chose a method of killing that created a zone of fatal danger. A jury may
26 infer from such evidence that the defendant intended to kill persons in that zone. See People v.
Bland, 28 Cal.4th 329-331 (2002); CALCRIM 600.
27 6 Defense counsel did not argue in the trial court that comparison of Ms. S. and Juror No. 10
supported a conclusion that Ms. S.’s race was the actual (or a substantial motivating) reason for
28 the strike. That issue was first raised in the California Court of Appeal.
1 race-neutral justifications for the strikes. [Citations.] Third, “[i]f a
race-neutral explanation is tendered, the trial court must then decide
2 . . . whether the opponent of the strike has proved purposeful racial
discrimination.” [Citation.]
3
4 Johnson, 545 U.S. at 168 (footnote omitted).
5 At the third step of Batson, “the trial court determines whether the opponent of the strike
6 has carried his burden of proving purposeful discrimination.” Purkett v. Elem, 514 U.S. at 765,
7 768 (1995). Although the burden remains with the defendant to show purposeful discrimination,
8 the third step of Batson primarily involves a credibility determination made by the trier of fact.
9 After the prosecution puts forward a race-neutral reason, the court is required to evaluate “the
10 persuasiveness of the justification.” Id. To accept a prosecutor’s stated nonracial reasons, the
11 court need not agree with them. The question is not whether the stated reason represents a sound
12 strategic judgment, but “whether counsel’s race-neutral explanation for a peremptory challenge
13 should be believed.” Hernandez v. New York, 500 U.S. 352, 365 (1991) (plurality opinion). This
14 credibility determination must be made in light of the totality of the relevant facts about a
15 prosecutor’s conduct. Batson, 476 U.S. at 94; see also Hernandez, 500 U.S. at 363. Courts must
16 perform a “sensitive inquiry into such circumstantial and direct evidence of intent as may be
17 available.” Murray v. Schriro, 745 F.3d 984, 1004 (2014) (quoting Batson, 476 U.S. at 93).
18 Evidence of intent may include comparison of the jurors who were stricken with those who were
19 allowed to remain. See, e.g. Miller-El v. Dretke, 545 U.S. 231, 241 (2005). Disparate treatment
20 of similarly situated jurors may demonstrate that a prosecutor’s facially race-neutral reasons are a
21 pretext for discrimination. Id. (“If a prosecutor’s proffered reason for striking a black panelist
22 applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence
23 tending to prove purposeful discrimination to be considered at Batson’s third step” (citation
24 omitted)); see also Snyder v. Louisiana, 552 U.S. 472, 482-83 (2008).
25 On appeal, a trial court’s ruling on the ultimate issue of discriminatory intent must be
26 sustained unless it is clearly erroneous. Hernandez, 500 U.S. at 365. Because the trial court is in
27 a unique position to observe the demeanor of both the prosecutor and the juror, which weigh
28 heavily in the credibility determination, its ruling is entitled to deference absent exceptional
1 circumstances. Snyder, 552 U.S. at 477.
2 C. The State Court’s Ruling
3 This claim was exhausted on direct appeal. Because the California Supreme Court denied
4 discretionary review, the opinion of the California Court of Appeal constitutes the last reasoned
5 decision on the merits and is the subject of habeas review in this court. See Ylst v. Nunnemaker,
6 501 U.S. 797 (1991); Ortiz v. Yates, 704 F.3d 1026, 1034 (9th Cir. 2012).
7 Following recitation of the governing law, the appellate court ruled in pertinent part as
8 follows:
9 1. Substantial evidence review
10 Substantial evidence supports the trial court’s conclusion that the
prosecutor provided sufficient, race-neutral justifications for
11 exercising its preemptory challenge against Ms. S. During voir dire,
the prosecutor addressed whether the prospective jurors could use
12 circumstantial evidence to infer intent, as it was at the crux of the
case. Ms. S. resisted the concept despite multiple attempts by the
13 prosecutor to illustrate the concept. She first asserted that a wet
raincoat “doesn’t mean it rained,” while failing to consider the other
14 elements in the hypothetical, including umbrellas, a wet street, and
puddles. She further insisted in response to another hypothetical that
15 the presence of snow on the ground at a cabin at which there
previously was no snow did not “tell [her] anything.” And while Ms.
16 S. initially agreed that a car in the right turn lane with brake lights
and a right turn signal indicated that the car would turn right, she then
17 backtracked, saying “that person might decide to go left, although he
gets the signal that he’s going right. [¶] . . . So there’s always a
18 possibility of something else happening.” Moreover, Ms. S. asserted
she was not suspicious of circumstantial evidence, but that she was
19 suspicious of the examples the prosecutor had given. Finally, when
the prosecutor asked Ms. S. what she could infer from the prosecutor
20 slamming her microphone to the ground and the microphone
breaking, Ms. S. said she “need[ed] more” information before she
21 could reach a conclusion. And although Ms. S. confirmed that she
could give circumstantial evidence the same weight as direct
22 evidence, she then suggested she could not use circumstantial
evidence to determine a person’s intent, asking, “How would you
23 know what someone is thinking? I don’t have those skills.” Thus,
the record supports the prosecutor’s contention, and the trial court’s
24 finding, that Ms. S. was properly excluded for struggling to
understand, or otherwise resisting, the concept of circumstantial
25 evidence. [Footnote omitted.]
26 Additionally, the prosecutor’s related concern that Ms. S. might say
anything to appease her was supported by substantial evidence. After
27 some resistance, Ms. S. accepted the microphone hypothetical.
However, when the prosecutor told Ms. S. she felt like she was
28 “guessing” when she agreed there was no difference between direct
1 and circumstantial evidence in that context, Ms. S. responded, “I
don’t know what you want me to say.” The prosecutor assured Ms.
2 S. that she wanted Ms. S. to “tell me what you think,” yet Ms. S. still
expressed doubt that she should respond with candor, asking, “You
3 really want me [to] tell you what . . . I think?” When the prosecutor
confirmed again that she really wanted Ms. S. to tell her what she
4 thought, Ms. S. retracted her agreement with the microphone
hypothetical, saying, “I can’t judge on just one thing just because you
5 dropped it and say, ‘Oh, that person’s thinking about this.’
Whatever. I just need more.”
6
One could reasonably infer from these answers, as the prosecutor and
7 trial court did here, that Ms. S. might have shaded her responses in
an effort to satisfy the prosecutor rather than respond with full
8 transparency. Specifically, although Ms. S. eventually agreed with
the prosecutor that direct and circumstantial evidence had equal
9 value in the microphone hypothetical, when assured she should tell
the truth, Ms. S. seemingly withdrew her agreement. Based on the
10 foregoing, the trial court did not err in crediting the prosecutor’s
rationale as legitimate, race-neutral bases for exclusion. [Footnote
11 omitted.]
12 2. Comparative juror analysis
13 Defendant argues that the prosecutor’s explanations were not
genuine because Juror No. 10 gave similar responses to Ms. S.
14 regarding circumstantial evidence. As defendant insists that Juror
No. 10 and Ms. S. were virtually indistinguishable, but for their race,
15 he argues that the prosecutor’s rationale was therefore not credible
and her decision to exclude Ms. S. was racially motivated.
16
“When a court undertakes comparative juror analysis, it engages in a
17 comparison between, on the one hand, a challenged panelist, and on
the other hand, similarly situated but unchallenged panelists who are
18 not members of the challenged panelist’s protected group.
[Citation.]” (People v. Gutierrez (2017) 2 Cal.5th 1150, 1173.)
19 “[C]omparative juror analysis is but one form of circumstantial
evidence that is relevant, but not necessarily dispositive, on the issue
20 of intentional discrimination. . . . Thus, evidence of comparative
juror analysis must be considered in the trial court and even for the
21 first time on appeal if relied upon by the defendant and the record is
adequate to permit the urged comparisons.” (Lenix, supra, 44 Cal.4th
22 at p. 622.) However, “comparative juror evidence is most effectively
considered in the trial court where the defendant can make an
23 inclusive record, where the prosecutor can respond to the alleged
similarities, and where the trial court can evaluate those arguments
24 based on what it has seen and heard. . . . Defendants who wait until
appeal to argue comparative juror analysis must be mindful that such
25 evidence will be considered in view of the deference accorded the
trial court’s ultimate finding of no discriminatory intent.” (Id. at p.
26 624.)
27 Further, “comparative juror analysis on a cold appellate record has
inherent limitations.” (Lenix, supra, 44 Cal.4th at p. 622, citing
28 Snyder v. Louisiana, supra, 552 U.S. at p. 483.) “‘[T]he manner of
1 the juror while testifying is oftentimes more indicative of the real
character of his opinion than his words. That is seen below, but
2 cannot always be spread upon the record.’ [Citation.]” (Lenix, at p.
622.) Thus, “[t]wo panelists might give a similar answer on a given
3 point. Yet the risk posed by one panelist might be offset by other
answers, behavior, attitudes or experiences that make one juror, on
4 balance, more or less desirable. These realities, and the complexity
of human nature, make a formulaic comparison of isolated responses
5 an exceptionally poor medium to overturn a trial court’s factual
finding.” (Id. at p. 624.)
6
Defendant asserts for the first time on appeal that Juror No. 10’s
7 responses to the circumstantial evidence queries were effectively the
same as Ms. S.’s responses, raising doubts regarding the prosecutor’s
8 race-neutral rationale for exclusion. At the outset, we reiterate that a
comparative juror analysis may only be probative where the
9 unchallenged panelist is not a member of the same protected group
as the challenged panelist. (People v. Gutierrez, supra, 2 Cal.5th at
10 p. 1173.) While defendant represents that Juror No. 10 was not
African-American, and the Attorney General does not challenge this
11 characterization, defendant fails to support this assertion with a
record citation. “It is the duty of counsel to refer us to the portion of
12 the record supporting [defendant’s] contentions on appeal.
[Citations.]” (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th
13 728, 738; People v. Hyatt (1971) 18 Cal.App.3d 618, 624 [where
brief fails to specify portions of record supporting factual assertions,
14 record is presumed to support trial court’s rulings].) As defendant
failed to establish with record citations that Juror No. 10 is not in the
15 same protected category as Ms. S., a key threshold question, we
cannot fully assess the merit of any comparative juror analysis.
16
However, even assuming Juror No. 10 was not African-American,
17 the record reveals that they were distinct from each other in multiple
ways, diminishing the persuasive effect of any comparative analysis.
18 Ms. S. was a retired accountant, widow, and a mother, grandmother,
and great-grandmother who had previously served on a jury. Juror
19 No. 10 was single, employed as a process engineer, had no children,
her stepfather was a retired officer from the Stockton Police
20 Department, and she had never served as a juror. Thus, their
“training, employment, prior jury service, and experience” were
21 dissimilar. (People v. Johnson (1989) 47 Cal.3d 1194, 1220,
overruled on other grounds in People v. Gutierrez, supra, 2 Cal.5th
22 at p. 1174.) Moreover, their responses to questions regarding their
personalities and abilities to deliberate within a group differed. Ms.
23 S. admitted she could have “control issues” when “put in a corner or
something like that,” while Juror No. 10 stated she was
24 “independent,” and confirmed she would neither “push nor be
pushed.” And unlike Ms. S., Juror No. 10 did not ask the prosecutor
25 what she wanted her to say, or otherwise question whether she should
reveal her true thoughts, during voir dire.
26
Accordingly, the two candidates differed in numerous respects,
27 rendering any comparative analysis of limited use. (See People v.
Winbush (2017) 2 Cal.5th 402, 443 [pretext is established “when the
28 compared jurors have expressed ‘a substantially similar combination
1 of responses,’ in all material respects”], original italics.) This is
particularly true here, where there is a single discriminatory
2 challenge, the record reveals a “‘sound, objectively plausible basis’”
for the challenge, [footnote omitted] and we must credit “‘the
3 legitimate role that subjective factors may have in a prosecutor’s
decision’ to challenge or not challenge jurors peremptorily.” (People
4 v. Williams (2006) 40 Cal.4th 287, 313.) Thus, a comparison of the
two jurors is insufficient to support defendant’s claim that the trial
5 court erred in denying his Batson/Wheeler motion.
6 ECF No. 11-38 at 11-16.
7 D. Objective Reasonableness Under § 2254(d)
8 1. Overview
9 In considering whether a state court’s decision is “contrary to” or “an unreasonable
10 application of” Batson under § 2254(d)(1), the U.S. Supreme Court has recognized that Batson
11 clearly establishes the requirement that courts perform a “sensitive inquiry into such
12 circumstantial and direct evidence of intent as may be available.” Murray v. Schriro, 745 F.3d
13 984, 1004 (2014) (quoting Batson, 476 U.S. at 93). State courts disobey this clearly established
14 requirement if they “‘rubberstamp’ a prosecutor’s proffered race-neutral explanation for
15 exercising a disputed peremptory strike,” or “misstate[ ] the test,” or “impermissibly rel[y] on an
16 erroneous factor.” Id. at 1005.
17 Here, the California Court of Appeal did not misstate the test required under Batson and
18 progeny. Neither did the state court merely “rubberstamp” the prosecutor’s proffered race-neutral
19 explanation for striking Ms. S. or rely on any impermissible factor. The court laid out a reasoned
20 analysis that responded to petitioner’s arguments, addressed the pertinent portions of the voir dire
21 record, and considered the factors that are relevant to the ultimate question of prosecutorial
22 motive. Although petitioner has ably argued the case for inferring a discriminatory motive, he
23 has not identified anything objectively unreasonable about the state court’s reasoning or its
24 conclusion.
25 For the reasons explained below, the undersigned finds that the state court relied on no
26 objectively unreasonable factual findings or objectively unreasonable application of U.S.
27 Supreme Court precedent in concluding that the trial court’s credibility determination at step three
28 of Batson should not be disturbed.
1 2. The State Court Did Not Base Its Decision on Unreasonable Determinations of
2 Fact
3 Petitioner contends that the California Court of Appeal made eight specific errors of fact
4 that support habeas relief under § 2254(d)(2), which provides that federal relief is not barred
5 where a state court’s decision is “based on” an unreasonable determination of fact. Several of
6 these allegations of error focus on the appellate court’s characterizations of Ms. S.’s voir dire
7 statements, and some focus on the opinion’s choice of words. The undersigned is unpersuaded.
8 First, petitioner argues that the state court unreasonably determined that the statements
9 about circumstantial evidence made by Ms. S. and Juror No. 10 were substantially dissimilar.
10 ECF No. 1 at 26-28. Petitioner identifies discrete comments made by both jurors which,
11 extracted from their contexts, are indeed similar. But the ultimate question for the court of appeal
12 was whether the trial court had erred in finding that all relevant circumstances, taken together,
13 indicated that the prosecutor’s asserted reason for striking Ms. S. was the true reason. While both
14 Ms. S. and Juror No. 10 made some similar statements, Ms. S. also made statements which even
15 on a cold record appear to equivocate about her willingness to rely on circumstantial evidence and
16 to draw inferences about intent from such evidence. For example, in response to the hypothetical
17 about seeing snow on the ground in the morning, Ms. S. responded “It doesn’t tell me anything”
18 about whether it had snowed overnight. Juror No. 10 made no such statement.
19 Moreover, the transcript of voir dire—on which the California Court of Appeal, like this
20 court, had to rely—fails to convey the tone of voice, facial expressions, and body language which
21 accompanied those statements. It is easy to imagine phrases such as “Just because [a raincoat]
22 has water on it doesn’t mean it rained,” “How would you know what someone is thinking?” and
23 “I don’t know what you want me to say” conveying very different attitudes depending on
24 delivery. The significance of tone and demeanor in this context is the reason that the Supreme
25 Court requires deference to trial judges as a general rule. See Snyder, 552 U.S. at 477. In this
26 case the prosecutor stated that she thought Ms. S. remained suspicious of circumstantial evidence
27 even after affirming that she would consider it, which suggests that Ms. S. was communicating
28 skepticism in ways other than the words on which petitioner relies. That neither the defense nor
1 the prosecution made any record of non-verbal cues which may (or may not) have distinguished
2 Ms. S. from Juror No. 10 is a consequence of the fact that the defense did not rely on comparative
3 juror analysis in the trial court. In any event, the similarities between the statements made by Ms.
4 S. and Juror No. 10 do not so outweigh the differences identified by the state court as to make the
5 finding objectively unreasonable.
6 Second, petitioner alleges that the state court unreasonably determined that Ms. S.
7 indicated she “could not” use circumstantial evidence to determine a person’s intent. ECF No. 1
8 at 28-29. Petitioner points to Ms. S.’s further statement that in determining intent she would
9 consider “all the evidence,” urging this court to conclude that Ms. S. had clearly expressed
10 willingness to consider circumstantial evidence. The ultimate question here is whether it was
11 unreasonable for the state appellate court, on the record before it, to defer to the trial court’s
12 finding that the prosecutor had indeed excused Ms. S. because of concerns about her attitude
13 toward circumstantial evidence. The fact that Ms. S. made numerous inconsistent statements on
14 that point is sufficient to support the state court’s conclusion. That Ms. S. may have been
15 theoretically capable of reasoning inferentially is immaterial, and the California Court of Appeal
16 did not base its decision on a finding that she was categorially incapable of doing so.
17 Third, petitioner contends that “[t]he State court unreasonably determined that Ms. S.
18 withdrew her agreement that direct and circumstantial evidence had equal value.” ECF No. 1 at
19 30. The state court’s decision was not based on a finding that there had been a “withdrawal” of
20 agreement, and petitioner places entirely too much significance on this choice of words. Ms. S.’s
21 statements can reasonably be interpreted as backtracking or equivocating on the matter. The trial
22 court had found in essence that Ms. S.’s overall skepticism about circumstantial evidence
23 provided a permissible basis for the strike, and the court of appeal held that the record as a whole
24 supported this finding. There was no objectively unreasonable finding of fact.
25 Fourth, petitioner argues that it was unreasonable of the state appellate court “to omit the
26 fact from its analysis” that the trial court never mentioned Juror No. 10. ECF No. 1 at 30-31.
27 The trial court did not mention Juror No. 10 because defense counsel did not raise the issue of
28 Juror No. 10 at the Batson/Wheeler hearing. The California Court of Appeal did in fact note that
1 comparative analysis involving Juror No. 10 was argued for the first time on appeal. Petitioner
2 identifies no clearly established federal law requires a trial court to independently identify
3 theories in support of a Batson motion beyond those presented by the parties. To the contrary, it
4 is a clearly established rule that the defendant bears the burden of persuasion. See Purkett, 514
5 U.S. at 768. Accordingly, this purported factual error has no significance under § 2254(d)(2).
6 Fifth, petitioner alleges that the state court erred in finding that Ms. S. “struggle[ed] to
7 understand” the concept of circumstantial evidence. ECF No. 1 at 31. Petitioner suggests that the
8 state court was impugning Ms. S.’s intellectual capabilities. But the appellate court was merely
9 pointing out that Ms. S.’s shifting and often skeptical statements regarding circumstantial
10 evidence lent credence to the prosecutor’s explanation of the basis for the strike. Accordingly,
11 the appellate court’s holding was not based on any factual error regarding Ms. S.’s actual
12 understanding of circumstantial evidence.
13 Petitioner’s sixth and seventh points—that the California Court of Appeal failed to
14 consider the fact that the prosecutor spent far more time questioning Ms. S. than she did
15 questioning Juror No. 10, and that the state court’s comparative juror analysis cited irrelevant
16 factors and omitted “obvious factors that were contrary to its opinion,” ECF No. 1 at 32-33—
17 will be addressed below regarding the state court’s application of clearly established law in its
18 comparative juror analysis.
19 Eighth and finally, petitioner contends that it was objectively unreasonable for the state
20 court to hold that “[t]he prosecutor’s related concern that Ms. S. might say anything to appease
21 her was supported by substantial evidence.” ECF No. 1 at 33-35. The reference to appeasement
22 relates to the exchange in which Ms. S. said, among other things, “What do you want me to say?”
23 It is impossible to tell from the cold transcript whether Ms. S. was speaking in a way that
24 conveyed hostility, ingratiation, or a simple desire for the prosecutor to drop the issue. In any
25 event, the outcome of the Batson claim did not turn on the accuracy of the word “appease.” What
26 matters is that Ms. S.’s statements, taken as a whole, were not inconsistent with the prosecutor’s
27 asserted basis for the strike. Accordingly, there was no objectively unreasonable finding of fact.
28 ////
1 3. The Standard of Review Applied on Appeal Does Not Provide a Basis for
2 Federal Habeas Relief
3 Petitioner argues that the California Court of Appeal should have reviewed the
4 Batson/Wheeler issue de novo (rather than conducting substantial evidence review) because the
5 trial court’s ruling had been based on factual errors and omissions. ECF No. 1 at 35-37. This
6 argument is predicated on the theory that the trial court (1) mischaracterized Ms. S.’s statements,
7 and (2) failed to conduct comparative juror analysis sua sponte. Id. Both contentions are rejected
8 for the reasons explained above. The California Court of Appeal’s approach was not inconsistent
9 with the clearly established requirements that the trial court’s ruling on discriminatory intent be
10 affirmed unless clearly erroneous, Hernandez, 500 U.S. at 365, and is entitled to deference absent
11 exceptional circumstances, Snyder, 552 U.S. at 477. Moreover, in this case the standard of
12 appellate review does not implicate the application of clearly established federal law in any way
13 that is independent of the merits of the issue. Accordingly, to the extent petitioner relies on the
14 U.S. Supreme Court’s comparative juror analysis jurisprudence, his arguments are considered
15 below.
16 4. The State Court Did Not Unreasonably Apply Clearly Established Principles of
17 Comparative Juror Analysis
18 Petitioner first presents this court with his argument that a comparative juror analysis of
19 Ms. S. and Juror No. 10 establishes racial discrimination, ECF No. 1 at 38-47, as if de novo
20 review of the Batson issue was available here. Petitioner’s disagreement with the California
21 Court of Appeal, however, does not make its decision objectively unreasonable within the
22 meaning of § 2254(d).
23 To the extent petitioner argues that the Batson analysis was unreasonable in that it relied
24 on various alleged factual errors, most of those have been addressed above. In addition to the
25 points previously discussed, petitioner emphasizes that the prosecutor spent far more time
26 questioning Ms. S. than she did questioning Juror No. 10, a fact which was not considered by the
27 appellate court. ECF No. 1 at 32, 43-44. Disparate questioning of jurors who are similar but for
28 race can indeed support an inference of racial discrimination. Miller-El, 537 U.S. at 344.
1 Accordingly, it is a factor that may be relevant. Here, however, the time spent questioning Ms. S.
2 about circumstantial evidence and determination of intent was directly related to her own
3 skeptical comments about those matters. The transcript reflects reasonable follow-up, not racial
4 targeting. Whether characterized as an issue of fact or of law, the state court’s failure to address
5 this issue does not render its decision objectively unreasonable.
6 Petitioner also argues that it was either an unreasonable application of federal law or an
7 unreasonable factual determination for the state court to “opine[] that the trial court might have
8 credited the prosecution for preferring Juror #10 to Ms. S. for a variety of biographical or
9 personality reasons.” ECF No. 1 at 32. The cited portion of the appellate opinion merely noted
10 that Ms. S. and Juror No. 10 differed in demographic ways that undercut the probative value of
11 comparing them. It is clearly established in the Batson context that racial motivation may be
12 demonstrated where substantially similar jurors of different races are treated differently, and
13 inversely that differences other than race can undercut the comparison. See, e.g., Murray v.
14 Schriro, 745 F.3d 984, 1008 (9th Cir. 2014).7 There is nothing objectively unreasonable about
15 this observation. The appellate opinion cannot be fairly read as affirming the trial court on
16 grounds that biographical or personality considerations supported the strike. Petitioner here
17 attacks a straw man of his own devising.
18 Petitioner contends further that “it is possible that the prosecution’s argument that this
19 professional woman was not intelligent enough to ‘understand[] the concept of using . . .
20 circumstantial evidence to prove intent’ was based on subconscious stereotypes about African-
21 Americans that are still commonplace.” ECF No. 1 at 46. The undersigned does not doubt the
22 persistence and pernicious effects of unconscious racism, but here it is a red herring. The
23
24 7 Of course, there is no rule that comparisons are probative only if the situations of the jurors
compared are identical in all respects. Miller-El, 545 U.S. at 247 n.6. “A per se rule that a
25
defendant cannot win a Batson claim unless there is an exactly identical white juror would leave
26 Batson inoperable; potential jurors are not products of a set of cookie cutters.” Id. But here the
state court did not reject the Batson claim for lack of a non-Black juror identical to Ms. S.
27 Rather, it found that Juror No. 10 was not sufficiently similar to Ms. S. that the comparison
supported an inference of racial discrimination. While reasonable minds may differ on that
28 question, the state court’s analysis was not objectively unreasonable.
1 prosecutor did not remotely suggest that Ms. S. lacked the intelligence to comprehend principles
2 of evidence. Rather, she doubted whether Ms. S. would in this case be sufficiently receptive to a
3 case-in-chief that depended entirely on circumstantial evidence to establish essential elements of
4 the charges. That is a perfectly legitimate basis for a strike, especially in this case where intent
5 was central to the five attempted murder charges. See Batson, 476 U.S. at 98 (reasons cited for
6 strike must be “related to the particular case to be tried.”). Petitioner bears the burden of
7 demonstrating that the strike was motivated in substantial part by race. Cook v. LaMarque, 593
8 F.3d 810, 815 (9th Cir. 2010). The mere “possibility” that implicit bias played a role is
9 insufficient as a matter of law.
10 Finally, petitioner argues that the state appellate court unreasonably applied Batson
11 jurisprudence by focusing on points never raised by the prosecutor. ECF No. 1 at 47-49.
12 Petitioner quotes the Supreme Court’s statement in Miller-El that “if the [prosecution’s] stated
13 reason does not hold up, its pretextual significance does not fade because a trial judge, or an
14 appeals court, can imagine a reason that might not have been shown up as false.” Id. at 48
15 (quoting Miller-El, 545 U.S. at 252). The quoted language means that a strike motivated in
16 significant part by race cannot be immunized by a reviewing court’s determination that there were
17 other reasons, not actually relied on by the prosecutor, that could have supported a strike of the
18 juror. But there has been no showing here that the strike was motivated in significant part by
19 race. The state court did not affirm denial of the Batson motion because it identified legitimate
20 reasons other than skepticism regarding circumstantial evidence which could have supported a
21 strike of Ms. S. Its reference to factors not argued by the prosecutor as a basis for the strike—
22 different family and job situations—was made in the distinct context of explaining why
23 comparison of Ms. S. and Juror No. 10 did not support an inference of racial discrimination. The
24 court did not suggest that Ms. S.’s family circumstances or career history provided legitimate
25 reasons to strike her, which is what Miller-El forbids. Even if the state court erred by mentioning
26 irrelevant distinctions between Ms. S. and Juror No. 10, that was not the basis for its ruling and
27 § 2254(d) is therefore not implicated.
28 In sum, the state court rejected petitioner’s comparative juror theory on grounds that Ms.
1 S. expressed a unique degree of skepticism about circumstantial evidence and the inference of
2 intent from such evidence. For all the reasons explained above, that conclusion did not rest on
3 any objectively unreasonable factual findings or objectively unreasonable application of Supreme
4 Court precedent. Relief is therefore unavailable on this claim.
5 II. Claim Two: Failure to Instruct Jury on Self-Defense
6 A. Petitioner’s Allegations and Pertinent State Court Record
7 Petitioner alleges that his right to present a defense was violated by the trial court’s refusal
8 to instruct the jury on self-defense. At trial, petitioner sought a self-defense instruction based on
9 Asad’s testimony that gunfire might have come from both cars. After the trial court reviewed
10 Asad’s testimony, it found that there was no evidence that defendant had a “genuine and honest
11 belief that he was in imminent danger of death or great bodily injury from an unlawful attack”
12 such that his conduct was necessary to prevent such an injury. It accordingly denied petitioner’s
13 request for the instruction. RT 1365 (ECF No. 11-19 at 83).
14 B. The Clearly Established Federal Law
15 The Constitution guarantees to criminal defendants the right to present a defense.
16 Chambers v. Mississippi, 410 U.S. 284 (1973); Crane v. Kentucky, 476 U.S. 683, 690 (1986); .
17 “A defendant’s right to present relevant evidence is not unlimited, but rather is subject to
18 reasonable restrictions,” such as evidentiary and procedural rules. United States v. Scheffer, 523
19 U.S. 303 (1998); see also Chambers, 410 U.S. at 302 (in exercising the right to present a defense,
20 accused must “comply with established rules of procedure and evidence designed to assure both
21 fairness and reliability in the ascertainment of guilt and innocence.”). State rules limiting the
22 admissibility of defense evidence are constitutionally permissible as long as they are rationally
23 related to the legitimate purpose of excluding evidence that has only a weak logical connection to
24 the central issues at trial. Holmes v. South Carolina, 547 U.S. 319, 326-330 (2006) (regarding
25 third-party culpability evidence).
26 Errors in instructing the jury implicate a defendant’s constitutional rights only if they “so
27 infect[] the entire trial that the resulting conviction violates due process.” Estelle v. McGuire,
28 502 U.S. 62, 71 (1991). It is not enough that instructions are “undesirable, erroneous, or even
1 ‘universally condemned.’” Cupp v. Naughten, 414 U.S. 141, 147 (1973). Alleged instructional
2 error “must be considered in the context of the instructions as a whole and the trial record.”
3 Estelle, 502 U.S. at 72. In challenging the failure to give an instruction, a habeas petitioner faces
4 an “especially heavy” burden because “[a]n omission, or an incomplete instruction, is less likely
5 to be prejudicial than a misstatement of the law.” Henderson v. Kibbe, 431 U.S. 145, 155 (1977).
6 C. The State Court’s Ruling
7 The California Court of Appeal first set forth the state law principles that governed the
8 trial court’s ruling:
9 Upon a defendant’s request, the trial court must issue a jury
instruction where there is substantial evidence to support the
10 instruction. (People v. Stevenson (1978) 79 Cal.App.3d 976, 985;
see People v. Elize (1999) 71 Cal.App.4th 605, 615.) In this context,
11 to determine whether the evidence is sufficient to warrant a jury
instruction, the court does not assess credibility, but only whether the
12 evidence, if believed by a jury, would be sufficient to raise a
reasonable doubt. (People v. Mentch (2008) 45 Cal.4th 274, 288.)
13 The court resolves any doubts regarding the sufficiency of the
evidence to warrant an instruction in defendant’s favor. (People v.
14 Eid (2010) 187 Cal.App.4th 859, 879.) However, “[t]he trial court
need not give instructions based solely on conjecture and
15 speculation.” (People v. Young (2005) 34 Cal.4th 1149, 1200.)
16 “To justify an act of self-defense . . . . , the defendant must have an
honest and reasonable belief that bodily injury is about to be inflicted
17 on him. [Citation.]’ [Citation.] The threat of bodily injury must be
imminent [citation], and ‘. . . any right of self-defense is limited to
18 the use of such force as is reasonable under the circumstances.
[Citation.]’ [Citations.]” (People v. Minifie (1996) 13 Cal.4th 1055,
19 1064-1065, original italics; CALCRIM No. 3470.)
20 ECF No. 11-38 at 17-18.
21 The appellate court went on to analyze the issue as follows:
22 In this case, substantial evidence did not support an instruction on
self-defense. Defendant’s proposed self-defense theory was that
23 Rayleen or Harvey shot at defendant, causing defendant to shoot at
their car in self-defense. Crucially, however, there is no evidence
24 that any of the occupants of Harvey’s car had a firearm at the time of
the incident. Rayleen testified that no one in the car had a firearm
25 and that no one in their car shot at defendant. The police did not
recover any firearms from the vehicle nor book any firearms into
26 evidence. Moreover, a search of defendant’s vehicle revealed no
bullet holes, blood, or any other circumstantial evidence that might
27 indicate someone had fired a gun from the vehicle at defendant. And,
contrary to defendant’s contention, the fact that only three to four
28 bullets were accounted for, while Rayleen and Asad testified there
1 may have been five or six gunshots, does not constitute evidence that
unaccounted for gunshots, if any, came from both cars.
2
Next, although defendant argues that Asad’s testimony provided a
3 basis for the instruction, Asad admitted that his statements indicating
gunshots came from both cars were pure speculation. In Asad’s 911
4 call, the dispatcher asked whether there was “more than one car
shooting,” to which Asad responded, “Yes, um I’m not too sure it
5 just sounded like gun shots right in front of me. And it was right in
the middle of the street.” When the dispatcher asked if both cars
6 were struck by the bullets, Asad said, “I believe so, um that’s because
I saw glass on the floor. When I passed by.” However, Asad testified
7 that he did not see any windows break and did not know where the
glass came from or if it was in the street before the shooting. Asad
8 also testified that he did not see a gun and did not know which car
the gunshots came from. Further, although he testified that the
9 gunshots “sounded like return fire,” he then clarified that he did not
know how many cars were shooting, and that was “assuming” and
10 “speculating” that gunshots came from both cars. As a result of
Asad’s statements, the trial court granted the prosecutor’s motion to
11 strike all references to “return fire” from Asad’s testimony on the
grounds that it was speculation. On redirect examination, Asad
12 agreed he was speculating about gunshots from both cars and said, “I
speculated when I called [911,] too.” He explained he “was in a
13 panic” when he called 911, but that he has heard two different guns
firing before, and the gunshots he heard on that day “all sounded the
14 same.” Finally, the police officer who initially spoke to Asad
testified that Asad did not tell him that he heard or saw more than
15 one gun. Thus, Asad’s testimony did not constitute substantial
evidence of gunshots from Harvey’s car, and therefore did not supply
16 sufficient evidence to support a self-defense instruction.
17 Additionally, there was no substantial evidence that defendant had
an honest and reasonable belief of imminent bodily injury.
18 Defendant did not testify, and thus did not attest to his state of mind.
The fact that defendant was dating the mother of Harvey’s child did
19 not provide a basis for imminent fear of bodily injury, nor did
Harvey’s statement to Rayleen in the car, which defendant did not
20 hear, “‘Look at that bitch ass [N-word].’” [fn: Defendant also relies
on testimony regarding a confrontation between defendant and
21 Harvey, taken from an evidentiary hearing, to argue that Harvey had
motive to shoot at defendant. As the evidentiary hearing was held
22 outside the jury’s presence, the witness’s testimony at the hearing
cannot provide evidentiary support for a self-defense instruction.
23 Moreover, defendant’s confrontation with Harvey three months
prior, in which defendant pointed a gun at Harvey, does not provide
24 evidence that defendant was in reasonable, imminent fear of harm
while alone in his own car, weeks later, at the time of the shooting.
25 Especially when defendant was the one who pursued Harvey’s
vehicle.] And, even if the jury had been permitted to consider Asad’s
26 speculative testimony about return fire, Asad did not testify as to who
he believed fired first. Without substantial evidence that defendant
27 reasonably believed he was in imminent fear of bodily injury prior to
shooting, the trial court did not err in declining to issue the self-
28 defense instruction.
1 As substantial evidence did not support a self-defense instruction, the
trial court did not violate defendant’s due process right to present a
2 complete defense when it refused to give the instruction. (People v.
Eid, supra, 187 Cal.App.4th at p. 879 [a criminal defendant is
3 entitled to instructions on a defense theory only if the theory is
supported by the law and evidence].)
4
[fn: Defendant also argues that the trial court’s refusal to give the
5 self-defense instruction was “aggravated” by the trial court’s
statement to the jury during closing arguments that there was no
6 evidence of gunfire coming from the car. The trial court made no
such statement. Rather, it sustained two of the People’s objections
7 on the grounds that defense counsel misstated the evidence when he
said “it was [Asad’s] impression . . . that there was more than one
8 [gun] going off. That the cars were shooting at each other,” and “[i]t
was clear to [Asad] or he believed that there were shots that were
9 coming from two cars.” Defense counsel accordingly told jurors that
they could read the 911 transcript for themselves.]
10
11 ECF No. 11-38 at 18-20.
12 D. Objective Reasonableness Under § 2254(d)
13 1. Failure to Instruct
14 Petitioner contends that relief is available under AEDPA standards because the state
15 courts relied on the unreasonable factual finding that there was insufficient evidence to support
16 the self-defense instruction. ECF No. 1 at 56. Petitioner relies on Cage v. Louisiana, 498 U.S. 39
17 (1990) (per curiam) and Neder v. United States, 527 U.S. 1, 12 (1999), for the general proposition
18 that a criminal defendant has a right to have the jury correctly instructed as to his theory of
19 defense. Neither case is on point.8 Petitioner does not meaningfully address the due process
20 principles which govern the failure to give a requested defense instruction under Cupp,
21 Henderson and progeny.9
22 In any event, petitioner has not identified an unreasonable factual determination within the
23 meaning of § 2254(d)(2). The state court’s conclusion that the substantial evidence standard was
24 8 Cage is about the reasonable doubt standard. The Court held that a jury instruction defining
reasonable doubt in terms of “grave” or “substantial” uncertainty, and requiring “moral
25
certainty,” violated due process. Cage, 498 U.S. at 41. Neder presented the question whether
26 failure to instruct on materiality as an essential element of certain fraud offenses is subject to
harmless error review on appeal; the Supreme Court held that it is. Neder, 527 U.S. at 4. Neither
27 case addresses the circumstances under which a failure to instruct on a theory of defense, or give
an instruction requested by the defense, violates a defendant’s constitutional rights.
28 9 See supra, section II.B.
1 not satisfied is not itself a factual finding, it is the application of a legal standard to a factual
2 record. And there was no error in the state courts’ underlying recitation of Asad Shah’s testimony
3 or any other relevant evidence. In his traverse, petitioner argues that the Court of Appeal
4 erroneously stated that all references in Shah’s testimony to “return fire” had been stricken. Even
5 if the Court of Appeal had misstated the scope of the trial court’s ruling,10 its ruling on the
6 instructional issue did not turn on a “finding” that all references to “return fire” had been stricken.
7 Rather, the court quite clearly relied on the state of the trial evidence as a whole—including the
8 victims’ testimony, the absence of any firearm found in the victims’ car, and Shah’s testimony
9 walking back his reference to “return fire” and clarifying that he did not know whether there was
10 shooting from both cars. Where the state court’s decision was not “based on” the alleged factual
11 error, § 2254(d)(2) offers no avenue for relief.
12 Neither has petitioner demonstrated an unreasonable application of clearly established
13 federal law in the failure to give the instruction. The question whether a factual predicate exists
14 for the giving of a particular instruction is a question of state law; due process is offended only if
15 an erroneous failure to instruct rendered the trial fundamentally unfair. It was not objectively
16 unreasonable for the state court to identify no fundamental unfairness here. As the court noted in
17 affirming the failure to instruct in self-defense, there was a complete absence of evidence that
18 petitioner had an honest and reasonable belief that his own life was in danger. Even if there had
19 been unequivocal testimony that shots had been fired from both vehicles—which there was not—
20 the evidentiary predicate for self-defense would have been lacking. Accordingly, the trial cannot
21 have been rendered fundamentally unfair by the failure to instruct the jury on self-defense.
22
10 This court’s reading of the record accords with that of the California Court of Appeal. After
23 Shah testified that he had “assum[ed]” gunfire was coming from both cars, and then admitted this
was speculation on his part, the prosecutor moved to strike “all of that testimony as speculation.”
24 RT 273 (ECF No. 11-12 at 95). The court stated: “I don’t know what testimony you mean when
you say ‘all.’ But to the extent that he said return fire and has just indicated it is speculation, the
25
words ‘return fire’ will be stricken.” Id. The undersigned does not agree with petitioner that this
26 ruling left before the jury other instances of Shah’s use of the phrase “return fire.” See ECF No.
15 (traverse) at 28-29. But in any event, Shah’s highly equivocal testimony about his own initial
27 assumption that there had been an exchange of gunfire, and his acknowledgement that he did not
actually witness anyone shooting from the victim’s car, dooms petitioner’s theory that
28 fundamental fairness was violated by the failure to give a self-defense instruction.
1 2. Right to Present a Defense
2 Petitioner argues further that his right to present a defense was violated because the denial
3 of a self-defense instruction “forced [him] to resort to the much less tenable defense of identity.”
4 ECF No. 1 at 61. While it is undeniably true that contesting identity was an untenable strategy on
5 the facts of this case, in which the victims knew the shooter and had a clear view of him, that does
6 not entitle petitioner to instructions on a theory unsupported by evidence.
7 The clearly established federal law regarding the right to present a defense all deals with a
8 defendant’s right to present evidence and testimony on his own behalf. See Crane, 476 U.S. at
9 690 (exclusion of defense evidence); Chambers, 410 U.S. 284 (exclusion of defense evidence);
10 Webb v. Texas, 409 U.S. 95 (1972) (per curiam) (testimony of defense witnesses); Washington v.
11 Texas, 388 U.S. 14 (1967) (testimony of defense witnesses). In Nevada v. Jackson, 569 U.S. 505
12 (2013), the Supreme Court reversed the Ninth Circuit’s conclusion in a habeas case that these
13 principles had been unreasonably applied where a defendant in a rape case had been prevented
14 from introducing evidence of a prior, unsubstantiated allegation against him by the same woman.
15 If habeas relief is unavailable under § 2254(d) for the exclusion of obviously relevant evidence to
16 support a theory of defense, it cannot be available here.
17 Petitioner was not prevented from presenting affirmative evidence to support a self-
18 defense theory. Indeed, he proffered none. Neither has he argued that his cross-examination of
19 Shah or any other witness was impermissibly curtailed when he attempted to elicit testimony that
20 might have supported the giving of a self-defense instruction. The court’s independent review of
21 the trial transcript identifies no such limitations.11 In sum, petitioner was not prevented from
22 presenting a self-defense case. Rather, he was denied a requested jury instruction because he had
23 not presented such a case. That is an entirely different matter.
24 No clearly established federal law extends the right to present a defense to the asserted
25 right to jury instructions on an affirmative defense. Even before enactment of the AEDPA, the
26 Supreme Court had held that federal habeas relief is unavailable on a claim that the failure to give
27
11 In any event, limitations on cross-examination are subject to scrutiny under the Confrontation
28 Clause and do not implicate the right to present a defense. See Jackson, 569 U.S. at 511-512.
1 | ajury instruction on an affirmative defense violates the right to present a defense. See Gilmore v.
2 | Taylor, 508 U.S. 333, 343-44 (1993) (finding such a claim barred by Teague v. Lane, 489 U.S.
3 || 288 (1989) (habeas relief unavailable for violation of rule not previously established by Supreme
4 | Court)). Where relief is barred by Teague, it is necessarily unavailable under § 2254(d)(1). See
5 || Williams v. Taylor, 529 U.S. 362, 380-382 (2000) (recognizing that § 2254(d) codifies and
6 || extends Teague). Petitioner has identified no Supreme Court or Ninth Circuit case finding a
7 || constitutional violation on remotely similar facts, and the undersigned is aware of none.
8 || Accordingly, there has been no unreasonable application of clearly established federal law and
9 || relief is unavailable on this claim.
10 CONCLUSION
11 For all the reasons explained above, the state courts’ denial of petitioner’s claims was not
12 || objectively unreasonable within the meaning of 28 U.S.C. § 2254(d). Accordingly, IT IS
13 | HEREBY RECOMMENDED that the petition for writ of habeas corpus be denied.
14 These findings and recommendations are submitted to the United States District Judge
15 || assigned to the case, pursuant to the provisions of 28 U.S.C. §636(b)(1). Within twenty-one days
16 | after being served with these findings and recommendations, any party may file written
17 || objections with the court and serve a copy on all parties. Such a document should be captioned
18 | “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections,
19 || he shall also address whether a certificate of appealability should issue and, if so, why and as to
20 || which issues. See 28 U.S.C. § 2253(c)(2). Any reply to the objections shall be served and filed
21 || within fourteen days after service of the objections. The parties are advised that failure to file
22 || objections within the specified time may waive the right to appeal the District Court’s order.
23 || Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).
24 || DATED: May 20, 2025 ~
25 Hhthtin— Clare
ALLISON CLAIRE
26 UNITED STATES MAGISTRATE JUDGE
27
28
27 Case Information
- Court
- E.D. Cal.
- Decision Date
- May 21, 2025
- Status
- Precedential