(HC) Pereira v. Swarthout

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 RONALD JOSEPH PEREIRA, No. 2:14-cv-00530-KJM-AC P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 GARY SWARTHOUT, WARDEN, 15 Respondent. [16] 17 Petitioner is a California state prisoner proceeding pro se with an application for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254 . The action proceeds on ground four of the first 19 amended petition filed on November 30, 2015, ECF No. 24, which challenges petitioner’s 2012 20 conviction and sentence for robbery, attempted carjacking, being a felon in possession of a 21 firearm, and resisting an officer. See also ECF No. 40 (order dismissing grounds 1–3 and 5–8 as 22 unexhausted). Respondent filed an answer, ECF No. 41, and petitioner did not file a traverse. 23 BACKGROUND 24 I. Proceedings in the Trial Court 25 A. Preliminary Proceedings 26 Petitioner was charged with second degree robbery, attempted carjacking, being a felon in 27 //// 28 //// 1 possession of a firearm, and resisting an officer. RT 108–10.1 Petitioner’s co-defendants Eric 2 Chiprez (“Chiprez”) and Felicia Vasquez (“Vasquez”) were also charged with second degree 3 robbery, and Vasquez was charged with two additional firearms charges. RT 108–09; see also 4 CT 12–19.2 5 The Evidence Presented at Trial 6 The prosecution presented the following evidence at trial regarding the charges against 7 petitioner and his co-defendants. 8 On October 10, 2011, Broderick Crethers went to a Circle 7 store in his mom’s van to get 9 cigars and iced tea. RT 128–29. When Crethers was just outside the door of the store, he was 10 approached by a man from his right side with his hands outstretched and fists clenched. RT 131– 11 32. The man did not say anything and tried to swing at Crethers’ face. RT 133–34. Crethers 12 swung back at the man causing him to fall to the ground. RT 134. The man tried to grab and 13 push Crethers, so Crethers pushed him away and hit him again. RT 135. The altercation 14 continued with the man attempting again to grab Crethers and “rush” him. RT 136–37. The man 15 attempted to drag Crethers to the man’s parked car. RT 138. The assailant called out, “Help me 16 get this [expletive] [racial slur] off me!” RT 139. Crethers ended up on top of the man as he 17 again called out for assistance. RT 139. After the assailant had been calling for help for two or 18 three minutes, a second man came from the driver’s side of the parked car, hit Crethers in the 19 back of his head, and pulled him off the man and onto the ground. RT 140. 20 Crethers identified petitioner as the person who initiated the conflict. RT 141–42. He 21 identified Chiprez as the second man who came from the car to help petitioner during the conflict. 22 RT 142. After pulling Crethers off petitioner, Chiprez went and stood by the trunk of the car 23 while petitioner started kicking Crethers in the chest and ribcage. RT 143. The store clerk then 24 said he was going to call the police. RT 144. When asked what happened next, Crethers testified 25 as follows: “So after that, my stuff all over, he go back and grab it and take everything off of me, 26 my jacket, my hood, my phone, my keys, and my money I had in my pocket and left with it.” RT [27] 1 “RT” refers to the Reporter’s Transcript on Appeal, volumes 1 through 3. 28 2 “CT” refers to the Clerk’s Transcript on Appeal, volumes 1 through 2. 1 144. Crethers explained that petitioner pulled his sweatshirt off him while he was on the ground. 2 RT 145–46. 3 On cross-examination, Crethers testified that after petitioner kicked him, “He got all my 4 stuff over my -- over my head like this” as he was “balled up . . . in a knot.” RT 204–206. He 5 further testified that it happened while he was on the ground defending himself and “trying to just 6 not get assaulted anymore.” RT 206. A gun was pointed at him while his property was taken 7 from him. RT 209, 212–13. On redirect examination, when asked why he did not try to get his 8 sweatshirt back, Crethers testified, “Because there was a gun in the midst of me doing anything 9 that would harm myself to be in danger.” RT 219. As Crethers got up from the ground, he saw 10 the driver’s side door open and woman sitting in the passenger seat holding a gun. RT 147, 149. 11 Crethers identified the woman as Vasquez. RT 151. The woman did not say anything and 12 Crethers heard petitioner say, “Bitch, I should have slapped you, bitch, why you didn’t shoot him, 13 bitch? Bitch, why you didn’t shoot him, bitch? Bitch, you had a clear shot, bitch, why you didn’t 14 shoot him.” RT 149. Petitioner jumped into the back seat of the vehicle with Crethers’ property. 15 RT 149–50. Chiprez was already in the driver’s seat and they drove off once petitioner was back 16 in the vehicle. RT 150. 17 Crethers was later brought to a location and identified Chiprez as the second man who 18 participated in the conflict; Crethers described him as the “shaggy-haired guy.” RT 156. 19 Separately, Crethers was brought to a Wendy’s where he identified Vasquez as the woman 20 holding the gun during the altercation. RT 157. Finally, Crethers went to a Domino’s Pizza 21 where he identified petitioner as the man who was the initial aggressor in front of the Circle 7. 22 RT 157–58. 23 Deputy Alex Lopez testified that he went to the Circle 7 the day after the incident to 24 obtain a copy of the video surveillance footage. RT 226. He was allowed to view the video at the 25 store but was told there was no means of making a copy of the video. RT 226–27. Lopez 26 watched the video a few different times from a few different angles. RT 228. Lopez recounted 27 the incident he observed on video similarly to Crethers’ description. RT 229–35. Lopez recalled 28 seeing some items on the ground after the struggle that the male who assaulted Crethers reached 1 down to pick up. RT 233. Lopez also testified that on the same day, he received information that 2 Vasquez and a possible black male suspect were seen or currently at a nearby Wendy’s restaurant. 3 RT 244–45. As Lopez drove his patrol vehicle into the parking lot, he observed the black male 4 suspect facing his vehicle take off running. RT 246. Lopez observed a detective chase the 5 suspect, who was carrying a bag or backpack. RT 247. 6 Deputy Kyle Hoertsch testified that he assisted in apprehending Chiprez. Chiprez told 7 Hoertsch that he knew Crethers after Crethers recognized him while getting out of a patrol car for 8 an in-field identification. RT 303–04. 9 Barbara Epps testified that on October 11, 2011, she was sitting in her car looking at the 10 window of a second-hand store. RT 327–28. A man she later identified as petitioner opened her 11 car door and told her to get out. RT 329, 335. She looked at petitioner and observed that he was 12 sweating and panicky. RT 329. Petitioner kept yelling at her to get out of the car, and she asked 13 him what was the matter. RT 329. When Epps did not get out of the car, petitioner picked up a 14 black bag he had with him and started fumbling with it. RT 330. As petitioner was fumbling, the 15 police arrived, and he took off running. RT 332. 16 Antonio Amaya was working as a clerk at the Circle 7 on the day of the incident. RT 375. 17 Amaya helped petitioner and when he went out of the store he was met by another man and they 18 began to fight. RT 376. The fighting men went out of Amaya’s view. RT 377. When they came 19 back into view, Amaya observed the men “tumbling on the floor and rolling around, and just 20 beating the stuff out of each other.” RT 378. Amaya decided to run outside and tell them he was 21 calling the police. RT 378. He saw another man come out of a vehicle and help with the fight. 22 RT 379. Amaya yelled that he was calling the police and ran back into the store. RT 379. 23 Before returning to the store, Amaya observed the passenger side door of the vehicle open and a 24 female sitting inside. RT 381. When Amaya went back inside, he looked outside to see what was 25 going on and observed the men walking away from each other and one man pick up from the 26 ground a jacket or sweater. RT 382. 27 Detective Mike French testified regarding his pursuit of petitioner after petitioner was 28 spotted at a Wendy’s restaurant. RT 414–17, 421. French described the foot chase as “long”; he 1 had to stop during the chase for cars to go by. RT 417–18. French observed petitioner approach 2 a woman’s car and stand immediately next to her while they had “some kind of interaction.” RT 3 418–19. When petitioner saw French, he took off running again. RT 419. 4 Deputy Michael Baroni testified that he retrieved the backpack petitioner had at the time 5 he was handcuffed. RT 442. The bag contained a gun, cell phones, ammunition, keys, and some 6 money. RT 442. 7 Co-defendant Vasquez presented Carolyn Schmidt as a witness. Schmidt testified that she 8 knew Vasquez from living in the same apartment complex. RT 361. Schmidt saw Vasquez and 9 Crethers together “too many times to count.” RT 362. She witnessed Crethers say, “Whoa, 10 you’re looking good today” to Vasquez on one occasion. RT 365. Schmidt recalled that a man 11 Vasquez identified as Ron started living with her and she stopped dating another man named 12 Chris. RT 366–70. She later identified petitioner as Ron. RT 372–73. 13 Petitioner presented Marcelo Codog, an investigator for the Sacramento County District 14 Attorney’s office, as a witness. RT 499. On January 24, 2012, Codog spoke with Epps and took 15 a statement from her. RT 499. Codog confirmed that Epps told him she was not sure what was 16 happening as the man who approached her car stood in the doorway telling her to get out. RT 17 499. On cross-examination, Codog also confirmed that the statement he took was after he 18 reviewed the statement Epps gave to law enforcement and was intended to identify any 19 discrepancies in the report. RT 500. 20 B. Jury Instructions and Deliberations 21 On February 16, 2012, the trial court read the jury instructions. CT 56. The court 22 instructed the jury on the elements of robbery as follows: 23 The defendants, Eric Chiprez, Ron Pereira and Felicia Vasquez, are charged in Count One with robbery in violation of [California] Penal 24 Code section 211. 25 To prove the defendant is guilty of this crime, the people must prove that, one, the defendant took property that was not his or her own. [26] Two, the property was taken from another person’s possession and 27 immediate presence. Three, the property was taken against that person’s will. [28] 1 Four, the property - - excuse me, the defendant used force or fear to take the property or to prevent the person from resisting. [2] And five, when the defendant used force or fear to take the property, 3 he or she intended to deprive the owner of it permanently. 4 The defendant’s intent to take property must have been formed before or during the time he or she used force or fear. [5] If the defendant did not form this required intent until after using the 6 force or fear, then he or she did not commit robbery. 7 If you find the defendant guilty of robbery, it is robbery of the second degree. the property taken can be of any value, however slight. [8] Fear, as used here, means fear of injury to the person, himself or 9 herself. 10 Property is within a person’s immediate presence if it is sufficiently within his physical control, that he could keep possession of it if not 11 prevented by force or fear. 12 RT 675–76; see also CT 71. The jury was excused for the remainder of the day. CT 58. 13 Following a five-day break, the jury returned on February 21, 2012 to begin deliberations. 14 CT 80. The jury requested the court-reporter’s record of Crethers’ testimony, and the read back 15 commenced that afternoon. CT 80. At the end of the day, the court found good cause to excuse a 16 juror for personal reasons. RT 693–98; CT 80–81. 17 An alternate juror was sworn in the following morning, February 22, 2012, and the jurors 18 were directed to begin their deliberations anew and disregard the earlier deliberations as if they 19 had not taken place. RT 703. The jury reached their verdicts on five of the six counts and the 20 trial court directed the jury to place the signed verdict forms inside an envelope while it continued 21 deliberations on the remaining count. CT 83. The court then directed the clerk to read the 22 verdicts. Regarding petitioner, the jury found him guilty of count two (attempted carjacking), 23 count five (unlawful possession of a firearm by a convicted felon), and count six (resisting a 24 peace officer discharging his duty). CT 84. 25 In the afternoon of February 22, 2012, the jury sent the following communication: 26 We the jury in the above-entitled action, request the following: 27 Clarification on: 28 If we the jury cannot come to a unanimous decision regarding Ronald 1 Pereira and Count 1; are we required to deliberate on Eric Chiprez/Count 1 and Felicia Vasques [sic]/Count 1? We ask because 2 on Jury Instructions, page 10, Section 401, #1, it states “The perpetrator committed the crime.” Yet, the judge asked the Jury 3 Foreman if we had come to a decision for any of the three defendants. 4 CT 85. 5 The court notified counsel of the communication and directed them to respond by email 6 and return to court the following day, February 23, 2012. CT 85. The jury also requested the 7 testimony of Lopez and Amaya. CT 85. Counsel did not object to the requested readback and the 8 testimony was provided that day. CT 85–86. 9 On February 23, 2012, the court and counsel for all the defendants had an informal 10 discussion after which the following response was sent to the jury: 11 In response to your question: 12 Even if you are unable to reach a verdict as to Defendant Ronald Pereira, you must still deliberate fully and consider the evidence as 13 it relates to Defendants Eric Chiprez and Felicia Vasquez. 14 A defendant may be guilty of the crime charged in Count 1, Robbery, in one of two ways: [15] (Instruction 400) [16] 1. He or she may have directly committed the crime. That person is 17 called the “perpetrator”. If a defendant engages in conduct that constitutes one of the acts that is an element of the crime charged, he 18 or she may be a “perpetrator” and may be guilty of the crime charged if he or she has the specific intent required for Robbery and all of the 19 elements of the crime of Robbery have been proved. (see instruction 1600 for the elements of the crime of Robbery.) [20] 2. As an aider and abettor, a person may also be guilty of a crime if 21 they aided and abetted a perpetrator. See instruction 401 which sets forth the requirements for a person to be found guilty as an “aider 22 and abettor” 23 Please carefully review all of the instructions, including Instruction 400, 401, 1600, and 1603. [24] 25 CT 94–95. Later in the day, the jury sent the following communication: 26 We, the jury in the above-entitled action, request the following: 27 After further deliberation on the evidence presented for Count 1 for the three defendants, Eric Chiprez, Felicia Vasquez and Ronald 28 Pereira, this jury is unable to reach a verdict for any, as of 3:00 p.m. 1 on February 23, 2012. 2 CT 95. 3 The jury returned to the courtroom with all parties present, and the trial judge asked the 4 foreperson whether instructions on any legal topics would be of assistance. RT 719–26; CT 96. 5 The foreperson stated that the jury was deliberating on the five different elements of robbery, and 6 asked the court for an “interpretation of [elements] four and five” because the jury’s interpretation 7 might not be “100 percent correct.” RT 724. The trial judge asked the jury as a whole whether 8 that could be helpful, and one juror raised a hand. RT 725. The court asked if anyone thought 9 that there was a different area or something else the court could do to provide direction, and there 10 was no response. RT 725. The court directed the jury to resume deliberations and try to 11 articulate its area of confusion through a communication to the court. RT 725–26. 12 The jury later returned the following communication to the court: 13 We the jury, in the above-entitled action, request the following: 14 1.) A more clear definition for “force and fear,” as reference in number 4 of 1600, including, if possible, the time limit on when fear 15 is a factor to consider. Please also clarify what it means to use force and fear. Please also clarify as full as possible: (if the defendant did 16 not form this required intent until after using the force or fear, then he or she did not commit robbery.) [17] 2.) How far apart (time) does the deprivation of property have to be 18 from the use of force or fear. 19 3.) We are still unclear on whether we can decide on a verdict for potential aider and abetters if we cannot decide on a verdict for the 20 potential perpetrator. 21 CT 96. 22 On February 29, 2012, the trial court discussed this communication with counsel and 23 ultimately decided to allow counsel the opportunity to present additional arguments on the 24 specific points the jury raised in its question. RT 740. 25 The jury returned for deliberations on March 7, 2012. See CT 98–99 (continuing 26 deliberations due to a juror’s illness). The court addressed the jury on the questions raised on 27 February 23, 2012, and advised that counsel would present “brief and focused additional 28 argument to address the specific points that had been raised.” RT 742; CT 96. The court then 1 repeated the questions and restated and further clarified “the law on the topics that [the jury] 2 raised.” RT 743–44. Before the court gave its supplemental instruction, it reminded the jury to 3 “keep in mind the instructions that I have given you regarding the law.” RT 744. The court then 4 provided the following supplemental instruction: 5 Questions One and Two -- I’ve just reread those questions -- you’ve asked for clarification regarding the terms force and fear. Court’s 6 response: There is no formal legal definition of the term force and fear. You should rely on the common, ordinary meaning of those 7 terms. The element of fear means that the victim was afraid of injury to himself. [8] You have also asked about a time limit on which fear is a factor to 9 consider. And that’s in quote, time limit on which fear is a factor to consider. It is -- the Court’s response: It is for you to decide whether 10 the evidence has established that the victim was in fear, and if so, the time period for which that occurred. It is for you to decide whether 11 the evidence has established that force or fear was used, and if so, the time period in which that occurred. In order to prove the crime of 12 robbery, each of the following elements must be proved: One, a person had possession of property of some value, however slight; 13 two, the property was taken from that person or immediate presence; three, the property was taken against the will of that person; four, the 14 taking or carrying away was accomplished either by force or fear to gain possession of the property; five, the property was taken with the 15 specific intent permanently to deprive that person of the property. 16 To be guilty of robbery as a perpetrator, the defendant must have formed the required specific intent either before the use of force or 17 fear, or during the time such force or fear was being used. To be guilty of robbery as an aider and abettor, the defendant must have 18 formed the intent to aid and abet the commission of the robbery before or while a perpetrator carried away the property to a place of 19 temporary safety. 20 With respect to this -- the Court’s response, I am now going to permit counsel to -- I’m going to note, though, there was a third question: 21 We’re still unclear on whether we can decide on a verdict for potential aider and abettor if we cannot decide on a verdict for the 22 potential perpetrator, and that is contained within the Court’s response. [23] 24 RT 744–45 (emphasis added). Counsel then presented further arguments which focused on the 25 relationship between the specific intent to take the property and the use of force or fear. RT 745– 26 72. 27 Later that afternoon, the jury communicated to the court the following: 28 After more deliberation, and consideration of the Court’s answers to 1 our questions; additional instructions; and additional attorney argument, we remain divided over Count 1. Some would say 2 strongly divided. 3 CT 102. The trial court spoke with the jury and ordered it to continue deliberating. RT 778–83. 4 On March 8, 2012, the jury returned guilty verdicts on count one as to petitioner and co5 defendant Vasquez. RT 787–88. Petitioner was eventually sentenced to a term of six years and 6 six months. RT 820. 7 II. Post-Conviction Proceedings 8 Petitioner timely appealed, and the California Court of Appeal affirmed the judgment of 9 conviction on July 23, 2013. Lodged Doc. 1. The California Supreme Court denied review on 10 September 25, 2013. Lodged Doc. 3.3 11 By operation of the prison mailbox rule, the instant federal petition was filed February 8, 12 2014.4 ECF No. 1. Petitioner’s first amended petition was filed on November 30, 2015. ECF 13 No. 24. Respondent answered on April 20, 2017. ECF No. 41. Petitioner did not file a traverse. 14 STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA [15] 28 U.S.C. § 2254 , as amended by the Antiterrorism and Effective Death Penalty Act of 16 1996 (“AEDPA”), provides in relevant part as follows: 17 (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 18 granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – [19] (1) resulted in a decision that was contrary to, or involved an 20 unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or [21] (2) resulted in a decision that was based on an unreasonable 22 determination of the facts in light of the evidence presented in the State court proceeding. [23] 24 The statute applies whenever the state court has denied a federal claim on its merits, 25 whether or not the state court explained its reasons. Harrington v. Richter, 562 U.S. 86 , 99 [26] 27 3 The remaining state court records show petitioner’s efforts to exhaust additional claims. See Lodged Docs. 9–13; see also ECF Nos. 38, 40. 28 4 See supra n. 1. 1 (2011). State court rejection of a federal claim will be presumed to have been on the merits 2 absent any indication or state-law procedural principles to the contrary. Id. at 99 (citing Harris v. 3 Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear 4 whether a decision appearing to rest on federal grounds was decided on another basis)). “The 5 presumption may be overcome when there is reason to think some other explanation for the state 6 court’s decision is more likely.” Id. at 99. 7 The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing legal 8 principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade, 538 9 U.S. 63 , 71–72 (2003). Only Supreme Court precedent may constitute “clearly established 10 Federal law,” but courts may look to circuit law “to ascertain whether . . . the particular point in 11 issue is clearly established by Supreme Court precedent.” Marshall v. Rodgers, 569 U.S. 58 , 64 12 (2013). 13 A state court decision is “contrary to” clearly established federal law if the decision 14 “contradicts the governing law set forth in [the Supreme Court’s] cases.” Williams v. Taylor, 529 15 U.S. 362, 405 (2000). A state court decision “unreasonably applies” federal law “if the state 16 court identifies the correct rule from [the Supreme Court’s] cases but unreasonably applies it to 17 the facts of the particular state prisoner’s case.” Id. at 407–08. It is not enough that the state 18 court was incorrect in the view of the federal habeas court; the state court decision must be 19 objectively unreasonable. Wiggins v. Smith, 539 U.S. 510 , 520–21 (2003). 20 Review under § 2254(d) is limited to the record that was before the state court. Cullen v. 21 Pinholster, 563 U.S. 170, 181 (2011). The question at this stage is whether the state court 22 reasonably applied clearly established federal law to the facts before it. Id. at 181–82. In other 23 words, the focus of the § 2254(d) inquiry is “on what a state court knew and did.” Id. at 182. 24 Where the state court’s adjudication is set forth in a reasoned opinion, § 2254(d)(1) review is 25 confined to “the state court’s actual reasoning” and “actual analysis.” Frantz v. Hazey, 533 F.3d 26 724, 738 (9th Cir. 2008) (en banc). A different rule applies where the state court rejects claims 27 summarily, without a reasoned opinion. In Richter, supra, the Supreme Court held that when a 28 state court denies a claim on the merits but without a reasoned opinion, the federal habeas court 1 must determine what arguments or theories may have supported the state court’s decision, and 2 subject those arguments or theories to § 2254(d) scrutiny. Richter, 562 U.S. at 101 . 3 DISCUSSION 4 I. Petitioner’s Allegations and Pertinent State Court Record 5 Petitioner contends that the trial court omitted a key element of robbery when it reread the 6 elements to the jury after its reported deadlock. ECF No. 24 at 5. Specifically, petitioner alleges 7 that the trial court failed to instruct that “the required intent to take property must be formed 8 before or during the use of force or fear.” Id. Petitioner further alleges that the jury “did not 9 grasp the tools needed to provide petitioner with a fair deliberation and trial.” Id. at 22. 10 The federal habeas petition is supported by excerpts of petitioner’s brief on direct appeal. 11 Id. at 126–29; see also Lodged Doc. 8. In petitioner’s appellate argument, he contended that 12 “[t]he jury was able to reach a verdict for the robbery count only after it was given the misleading 13 instruction which omitted any reference to the taking of property.” ECF No. 1 at 127. The jury 14 deliberated February 21–23, 2012 without reaching a verdict and returned a verdict on March 8, 15 2012, one day after the trial court’s supplemental instruction was given. Id. In that regard, the 16 appellate brief argues, “[i]f the jury returns a verdict shortly after the delivery of an erroneous 17 supplemental instruction, the instructional error was likely to have been prejudicial.” Id. 18 In petitioner’s opening brief, he argued in part: 19 The evidence suggested the taking of the property occurred after the altercation was over. The taking of property appeared to be an 20 afterthought by appellant. The jury was deadlocked over the robbery count because it was unclear about the required timing between the 21 taking of the property and the use of force or fear. Under the law of robbery, the robber must form the specific intent to take property 22 either before, or during, the use force [sic] or fear. The trial court gave a supplemental instruction on this principle, but omitted the 23 crucial portion of the instruction dealing with the taking of property. Because this error was prejudicial, the judgment of guilt to count one 24 must be reversed. 25 Lodged Doc. 6 at 13; see also id. at 22 (arguing that “[t]he problem with this [supplemental] 26 instruction was that it omitted the words ‘to take property’ after the words, ‘specific intent’”). 27 Petitioner also argued in his reply brief that the problem with taking the jury instructions as a 28 whole is that “it ignores the fact that the jury was unable to reach a verdict with the correct 1 instructions and reached a verdict only after it had been given the misleading instruction which 2 omitted the required relationship between force and the taking of property.” Lodged Doc. 8 at 2. 3 II. The Clearly Established Federal Law 4 Federal habeas corpus relief does not lie for errors of state law; and a claim that a state 5 court failed to follow its own state law with regard to jury instructions given at trial does not 6 necessarily invoke a federal constitutional question. See Estelle v. McGuire, 502 U.S. 62 , 71–72 7 (1991). In order to warrant federal habeas relief, a challenged jury instruction must violate due 8 process to the extent that “‘the ailing instruction by itself so infected the entire trial that the 9 resulting conviction violates due process.’” Id. at 72 (quoting Cupp v. Naughten, 414 U.S. 141 , 10 147 (1973)). 11 “The burden of demonstrating that an erroneous instruction was so prejudicial that it will 12 support a collateral attack on the constitutional validity of a state court’s judgment is even greater 13 than the showing required to establish plain error on direct appeal.” Henderson v. Kibbe, 431 14 U.S. 145, 154 (1977); see also Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (noting 15 that it is the “rare case” in which an improper instruction will justify reversal of a criminal 16 conviction when no objection has been made in the trial court (quoting Henderson, 431 U.S. at 17 154)). A defendant is not entitled to a specific instruction provided that other instructions, in their 18 entirety, adequately inform the jury of the defense theory of a case. United States v. Del Muro, [19] 87 F.3d 1078, 1081 (9th Cir. 1996). 20 A “slight possibility” that the jury misapplied the instruction is not enough to warrant 21 habeas relief. Waddington v. Sarausad, 555 U.S. 179, 191 (2009). Rather, an ambiguous 22 instruction violates due process only when there is a “reasonable likelihood” that the jury has 23 applied the challenged instruction in a way that violates the Constitution. Id. at 190–91; Estelle, [24] 502 U.S. at 72 & n.4. In making this determination, the reviewing court must not view the 25 instruction in artificial isolation, but must consider it in the context of the trial record and the 26 instructions as a whole. Estelle, 502 U.S. at 72 ; Duckett v. Godinez, 67 F.3d 734, 746 (9th Cir. 27 1995) (explaining that courts essentially must determine “whether, under the instructions as a 28 whole and given the evidence in the case, the failure to give the [omitted] instruction rendered the 1 trial so fundamentally unfair as to violate federal due process” (citing Cupp, 414 U.S. at 147 )); 2 see also Waddington, 555 U.S. at 191 (explaining that a challenged instruction must be evaluated 3 in the context of other instructions and the trial record as a whole, not in artificial isolation). In 4 other words, the court must evaluate jury instructions in the context of the overall charge to the 5 jury as a component of the entire trial process. See Cupp, 414 U.S. at 146–47 (explaining that the 6 challenged instructional error must be assessed not by focusing on the alleged faulty instruction in 7 isolation, but by considering its effect in the context of the overall charge). 8 Even if omission of a particular instruction was constitutionally erroneous, federal habeas 9 relief is not available for such a trial-type error unless the error had a substantial and injurious 10 effect or influence in determining the jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619 , 11 622–23 (1993) (quotations omitted); see also Hedgpeth v. Pulido, 555 U.S. 57 , 61–62 (2008) (per 12 curiam) (applying Brecht prejudice standard to habeas claims of instructional error). 13 III. The State Court’s Ruling 14 Petitioner raised his improper jury instruction claim on direct appeal. The California 15 Court of Appeal decision, Lodged Doc. 1, constitutes the last reasoned decision on the merits 16 because the state supreme court denied discretionary review, Lodged Doc. 3. See Ylst v. 17 Nunnemaker, 501 U.S. 797 (1991); Ortiz v. Yates, 704 F.3d 1026, 1034 (9th Cir. 2012). 18 The California Court of Appeal ruled as follows: 19 Defendant contends the trial court’s supplemental instructions regarding the mental element for robbery constituted reversible error. [20] Since defendant did not object to the instruction, his contention is 21 forfeited unless the instruction affected his substantial rights. (§ 1259; People v. Christopher (2006) 137 Cal.App.4th 418 , 42622 427.) Substantial rights are equated with a miscarriage of justice, which results if it is reasonably probable the defendant would have 23 obtained a more favorable result had the correct instructions been given. (Christopher, at pp. 426-427; People v. Watson (1956) 46 24 Cal. 2d 818, 835-836 .) 25 “On review, we examine the jury instructions as a whole, in light of the trial record, to determine whether it is reasonably likely the jury 26 understood the challenged instruction in a way that undermined the presumption of innocence or tended to relieve the prosecution of the 27 burden to prove defendant’s guilt beyond a reasonable doubt. [Citation.]” (People v. Paysinger (2009) 174 Cal.App.4th 26, 30 .) 28 “It is well established that the instruction ‘may not be judged in 1 artificial isolation,’ but must be considered in the context of the instructions as a whole and the trial record. [Citation.]” (Estelle v. 2 McGuire (1991) 502 U.S. 62, 72 [ 116 L.Ed.2d 385, 399 ].) 3 Defendant’s contention focuses on one sentence of the fourparagraph instruction: “To be guilty of robbery as a perpetrator, the 4 defendant must have formed the required specific intent either before the use of force or fear, or during the time such force or fear was 5 being used.” One element of robbery is the intent to permanently deprive the owner of the property. (People v. Marshall (1997) 15 6 Cal.4th 1, 34 .) “[T]he evidence must show that the requisite intent to steal arose either before or during the commission of the act of 7 force. [Citation.]” (Ibid.) Defendant asserts that since the sentence in question omitted the term “to take property,” the instruction “did 8 not tell the jury anything about the required relationship between the taking of property and fear and force.” Noting the jury’s confusion 9 on the elements of robbery, defendant claims the supplemental instruction “increased the jury’s confusion by suggesting that a 10 specific intent to use force or fear was sufficient to establish the crime of robbery.” Given the jury’s difficulty with the robbery count and 11 the fact that defendant took the property after he finished assaulting the victim, defendant concludes that he was necessarily prejudiced 12 by the alleged error. 13 Defendant’s claim improperly isolates one sentence of the supplemental instruction from its context. As recounted above, the 14 sentence defendant attacks was preceded by this sentence, describing the mental element of robbery: “the property was taken with the 15 specific intent permanently to deprive that person of the property.” It is clear that the term “required specific intent” in the allegedly 16 erroneous sentence was referring to the prior sentence’s “specific intent permanently to deprive that person of the property.” The fact 17 that these two sentences contain the only references in the instruction to the term “required specific intent” reinforces our conclusion. [18] Read as a whole, the supplemental instruction informed the jury that 19 the intent to steal must be formed before or during the use of force or fear. This correctly stated the law. [20] 21 Lodged Doc. 1 at 7–8. 22 IV. Objective Reasonableness Under § 2254(d) 23 The state court determined that the trial court’s supplemental instruction on robbery 24 correctly stated the law. Lodged Doc. 1 at 8. Because the Court of Appeal determined that the 25 challenged instruction was not improper, petitioner’s challenge does not give rise to a federal 26 question cognizable on federal habeas review. Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We 27 have repeatedly held that a state court’s interpretation of state law, including one announced on 28 direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus”). Thus, 1 the claim is not cognizable on federal habeas and should be rejected. 2 Even if the court finds the claim cognizable, it is without merit. As explained above, to 3 obtain federal collateral relief from errors in a jury charge, a petitioner must show that the ailing 4 instruction by itself so infected the entire trial that the resulting conviction violates due process. 5 Estelle, 502 U.S. at 72 ; Cupp, 414 U.S. at 147 . Further, the instruction may not be judged in 6 artificial isolation, but must be considered in the context of the instructions as a whole and the 7 trial record. Estelle, 502 U.S. at 72 . In other words, the court must evaluate jury instructions in 8 the context of the overall charge to the jury as a component of the entire trial process. See United 9 States v. Frady, 456 U.S. 152, 169 (1982) (citing Henderson, 431 U.S. at 154). 10 Petitioner takes issue with the trial court’s supplemental instruction, which petitioner 11 characterizes as omitting reference to the necessary chronological relationship between the 12 formation of intent and the taking of property. See ECF No. 24 at 5. As the state court explained, 13 however, the entirety of the instruction made clear that the term “required specific intent” in the 14 allegedly erroneous sentence referred to the preceding sentence’s “specific intent permanently to 15 deprive that person of the property.” Lodged Doc. 1 at 8. The challenged instruction thus 16 adequately addressed the relationship between intent and act. 17 Moreover, petitioner has not shown prejudice. The trial court specifically referred the jury 18 to the prior instructions given, which included the entire instruction on robbery. See CT 94–95 19 (February 23, 2012 response from the trial court to the jury, referring the jury to “instruction 1600 20 for the elements of the crime of Robbery” and to “Please carefully review all of the instructions, 21 including Instruction . . . 1600”); RT 744 (March 7, 2012 direction from the court to the jury, 22 beginning with the reminder to “keep in mind the instructions that I have given you regarding the 23 law”). Petitioner has not shown that the trial court’s response to the jury’s questions about 24 elements four and five had a “substantial and injurious affect” on the jury’s verdict, in large part 25 because the supplemental instruction was not incorrect. Brecht, 507 U.S. at 637 ; Hedgpeth, 555 26 U.S. at 61–62. The court simply responded to the question posed and referred the jury back to the 27 entirety of the instructions already given. RT 744–45. And when responding to the question 28 posed, the trial court reiterated all of the elements of robbery, including: “the property was taken 1 with the specific intent permanently to deprive that person of the property. [¶] To be guilty of 2 robbery as a perpetrator, the defendant must have formed the required specific intent either before 3 the use of force or fear, or during the time such force or fear was being used.” RT 744–45. 4 Further, petitioner has not demonstrated that the jury’s verdict would have been different 5 if the court had again, or only, referred the jury specifically to CALCRIM No. 1600. That the 6 jury posed a question about elements four and five of the crime suggests that the jury was only 7 considering those two issues at that time. The jury’s communication further suggested that the 8 jury was aware of all the elements. See CT 96 (the jury also asked, “How far apart (time) does 9 the deprivation of property have to be from the use of force or fear” (emphasis added)). In any 10 event, the court repeated some of the language from CALCRIM No. 1600 in its supplemental 11 instruction. RT 744–45. Considering the context of the trial record and the jury instructions as a 12 whole, petitioner fails to establish a reasonable likelihood that the jury applied the challenged 13 instruction on robbery in a way that violates the Constitution. 14 The Court of Appeal’s rejection of this claim was not unreasonable. For these reasons, 15 petitioner is not entitled to relief on this claim. 16 CONCLUSION 17 For all the reasons explained above, the state courts’ denial of petitioner’s claims was not 18 objectively unreasonable within the meaning of 28 U.S.C. § 2254 (d). Even without reference to 19 AEDPA standards, petitioner has not established any violation of his constitutional rights. 20 Accordingly, IT IS HEREBY RECOMMENDED that the petition for writ of habeas corpus be 21 denied. It is FURTHER RECOMMENDED that a certificate of appealability, see 28 U.S.C. 22 § 2253(c), be DENIED. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. §636 (b)(l). Within twenty-one days 25 after being served with these findings and recommendations, any party may file written 26 objections with the court and serve a copy on all parties. Such a document should be captioned 27 “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, 28 he shall also address whether a certificate of appealability should issue and, if so, why and as to 1 || which issues. See 28 U.S.C. § 2253 (c)(2). Any reply to the objections shall be served and filed 2 | within fourteen days after service of the objections. The parties are advised that failure to file 3 || objections within the specified time may waive the right to appeal the District Court’s order. 4 | Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 5 | DATED: December 16, 2019 ~ 6 Attten— Lhor—e_ ALLISON CLAIRE 7 UNITED STATES MAGISTRATE JUDGE