Bathen v. Allison

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 BENJAMIN LEE BATHEN, Case No. 20-cv-2063-MMA (MSB)

13 Petitioner, ORDER DENYING PETITION 14 v. FOR WRIT OF HABEAS CORPUS; 15 KATHLEEN ALLISON, et al.,

16 Respondents. AND DENYING CERTIFICATE OF APPEALABILITY 17

18 19 Petitioner Benjamin Lee Bathen (“Petitioner”) is a state prisoner represented by 20 counsel and proceeding with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 21 § 2254. See ECF No. 1 (“Petition”). The Court has read and considered the Petition, the 22 Supplemental Briefing filed by Petitioner, see Doc. No. 11, the Answer and 23 Memorandum of Points and Authorities in Support of the Answer, see Doc. Nos. 16, 16- 24 1, the Traverse see Doc. No. 19, the lodgments and other documents filed in this case, 25 and the legal arguments presented by both parties. For the reasons discussed below, the 26 Court DENIES the Petition and DENIES a Certificate of Appealability. 27 28 1 I. FACTUAL BACKGROUND 2 This Court gives deference to state court findings of fact and presumes them to be 3 correct; Petitioner may rebut the presumption of correctness, but only by clear and 4 convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Parle v. Fraley, 5 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences 6 properly drawn from these facts, are entitled to statutory presumption of correctness). 7 The state appellate court recited the facts as follows: 8 9 C.J. is a psychologist in private practice in Chula Vista. She began treating Bathen in person from her office in 2004. Bathen eventually moved to Los 10 Angeles and continued his treatment with C.J. telephonically. C.J. is only 11 licensed to practice in the state of California. As a result, she was required to terminate her sessions with Bathen shortly after he moved to the east coast in 12 2008. After conducting a few more telephonic sessions with Bathen to ensure 13 his “continuity of care,” C.J. provided him referrals for psychologists in his area. Bathen “was not happy” and became “agitated” when he learned C.J. 14 was ending his therapy sessions. 15 A few months later, C.J. began receiving emails from Bathen stating he 16 was upset with her and asking her to apologize to him. He also threatened to 17 lodge a complaint with her professional organization if she refused to listen to his grievances or failed to provide him with a face-to-face apology. The 18 emails made C.J. feel “uneasy.” Accordingly, she requested Bathen’s new 19 address so she could send him a formal termination letter, but he declined and would only have contact via email. Except for this email correspondence in 20 early 2009, C.J. and Bathen did not speak telephonically or in person after his 21 last session took place in 2008.

22 Almost nine years later, C.J. was home alone when she received the 23 following message on her confidential office voicemail system:

24 “Hey Dr. [C.J.], I just want to let you know that I’m going to bust 25 your fucking skull open you worthless bitch. You don’t ever fucking talk to me like that you fucking whore. Fuck you. I’ll 26 bash your fucking skull. You’re fucking dead. I’m going to 27 carve you up you fucking whore. Shut the fuck up!”

28 1 heard the message. Not knowing if the person was nearby, she looked around the house and confirmed all the doors and windows were locked. She 2 immediately called her husband and left a voicemail asking him to come home 3 as soon as possible. C.J. sounded “concerned and nervous” when her husband returned the call and appeared “upset” when he arrived home. After C.J. 4 played the message for him, he accessed her voicemail system through the 5 telephone company’s website and ascertained the telephone number that made the call. He then performed an Internet search to determine the name 6 associated with the telephone number, revealing Bathen’s name. He shared 7 this information with C.J., who reported it to the Chula Vista Police Department. 8

9 Although C.J. did not initially recognize Bathen’s voice on the message, she later recognized it when her husband mentioned Bathen’s name. 10 She recognized Bathen’s inflection and high-pitched voice due to prior 11 therapy sessions where he had become agitated. C.J. testified Bathen’s voice sounded the same as when he was “anxious,” “angry,” or “stirred up” in his 12 therapy sessions. C.J. did not know Bathen’s location when she heard the 13 voicemail.

14 After reporting the incident to law enforcement, C.J. remained afraid 15 and on “pretty high alert.” She reexamined her home security system and had security doors installed at her office. At work, she walked to and from her car 16 in the office parking lot with coworkers and had her husband meet her at the 17 office and drive home with her when she worked late. She also installed a doorbell system at her office to restrict entrance into the building. At home, 18 she became more vigilant and focused on her safety and security. She kept 19 her doors and windows locked and avoided shopping centers with garages.

20 About a month later, C.J. received the following voicemail: 21 “Hey Dr. [C.J.], I just wanted to let you know what a fucking 22 bitch you are. You don’t talk to me about fucking dating you 23 asshole. You should start dating. You should start dating. I can hurt you too you mother fucker. I’m going to carve you up, I’m 24 going to rape you, I’m going to torture you, I’m going to fuck 25 you up. I’ll carve your fucking smile off your face you stupid bitch. I’m not going to start fucking dating! Fuck you!” 26

27 This time, C.J. immediately recognized Bathen’s voice. She had a visceral reaction to the message and vomited. She noticed more intensity in 28 1 her given its sexual content. She “thought [her] life was in danger” because Bathen’s threats had escalated, becoming more violent and explicit. At that 2 time, she still did not know Bathen’s location. She again reported the incident 3 to her husband and the police.

4 Two days later, C.J. received the following voicemail: 5 “Hey Dr. [C.J.], I just want to let you know that I’m still planning 6 on coming out there kidnapping you, torturing you, raping the 7 living shit out of you, and then I’ve come up with a great idea, I’m going to set you on fire. You dumb fucking bitch. Fuck you! 8 Maybe you think, maybe get laid. Your friends thing you need 9 to get laid. You thought that shit was funny. You’re going to fucking die. Then I’m going to find your daughter. I’m going to 10 rape and murder that bitch too. You’re fucking dead.” 11 C.J. recognized Bathen’s voice. This concerned C.J. as she did not 12 recall ever mentioning her daughter to Bathen. C.J. thought she and her 13 daughter were in danger. She called the police again to report the incident.

14 After receiving the third voicemail, C.J. applied for and received a civil 15 restraining order against Bathen. She relied on law enforcement to locate Bathen and serve him with a notice to appear at the restraining order hearing. 16 C.J. felt “really uncomfortable” during the hearing but “wanted to do what 17 [she] could to try to put everything [she] could in [her] life around [her] to stay safe.” According to her husband, C.J. became “very, very afraid” and 18 placed their home on “lockdown.” At trial, C.J. testified she still felt “upset” 19 and “shaky” after hearing the first voicemail again in court. She kept her doors locked at home and continued to be afraid of Bathen. She also suffered 20 from higher levels of anxiety and sleep issues due to her heightened vigilance 21 toward protecting herself, added privacy and security measures to her social media accounts, and deleted her professional social media account to decrease 22 her and her family’s online presence. 23 At trial, a district attorney investigator testified about the “call detail 24 records” for the telephone number associated with the threatening messages 25 and confirmed the telephone calls were placed near Bathen’s home and work addresses. Another district attorney investigator testified as an expert witness 26 about the technical details of cell phones connecting to cell towers and the cell 27 tower tracker mapping program.

28 1 person who made the threatening phone calls. Maintaining his innocence, Bathen presented expert witness testimony at trial challenging the accuracy of 2 cell tower tracking. 3 The jury returned guilty verdicts on all three criminal threat counts. The 4 court denied probation and sentenced Bathen to a total prison term of two 5 years.

6 7 Doc. No. 17-13 at 2–6. 8 II. PROCEDURAL BACKGROUND 9 On June 11, 2018, the San Diego District Attorney’s Office filed an Amended 10 Information charging Petitioner with three counts of making a criminal threat, a violation 11 of California Penal Code § 422. See Doc. No. 17-1 at 15–17. Following a jury trial, 12 Petitioner was convicted of all three counts. See id. at 264–66. 13 Petitioner appealed his conviction to the California Court of Appeal. See Doc. 14 Nos. 17-10–17-12. The state appellate court upheld his conviction in a written opinion. 15 See Doc. No. 17-13. Petitioner filed a petition for review in the California Supreme 16 Court, which summarily denied the petition. See Doc. Nos. 17-14–17-15. 17 Petitioner then filed a petition for writ of habeas corpus in the San Diego Superior 18 Court. See Doc. No. 17-16. The state appellate court denied the petition in a written 19 opinion. See Doc. No. 17-18. Petitioner next filed a petition for writ of habeas corpus in 20 the California Court of Appeal Court, which was denied in a written opinion. See Doc. 21 Nos. 17-19–17-20. Finally, he filed a petition for writ of habeas corpus in the California 22 Supreme Court, which was summarily denied. See Doc. Nos. 17-21–17-22. 23 Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 24 in this Court on October 20, 2020. See Petition. On February 10, 2021, the Court 25 granted Petitioner’s motion to stay. See Doc. No. 9. On May 24, 2021, Petitioner filed 26 Supplemental Briefing, and the stay was lifted on May 26, 2021. See Doc. Nos. 11–12. 27 Respondent filed an Answer and a Memorandum of Points and Authorities in Support of 28 the Answer on August 4, 2021. See Doc. Nos. 16, 16-1. Petitioner filed a Traverse on 1 August 24, 2021. See Doc. No. 19. 2 III. DISCUSSION 3 Petitioner raises three grounds in his Petition. In ground one, he contends that the 4 evidence was insufficient to support his convictions. See Petition at 6. In ground two, he 5 contends the trial judge erred when he failed to instruct the jury on a lesser included 6 offense. See id. at 7. In ground three, he claims his trial counsel was ineffective. See id. 7 at 8; see also Doc. No. 11. Respondent argues the state court’s denial of Petitioner’s 8 claims was neither contrary to, nor an unreasonable application of, clearly established 9 Supreme Court law. See Doc. No. 16-1 at 13–27. 10 A. Standard of Review 11 This Petition is governed by the provisions of the Antiterrorism and Effective 12 Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320 (1997). 13 Under AEDPA, a habeas petition will not be granted with respect to any claim 14 adjudicated on the merits by the state court unless that adjudication: (1) resulted in a 15 decision that was contrary to, or involved an unreasonable application of, clearly 16 established federal law; or (2) resulted in a decision that was based on an unreasonable 17 determination of the facts in light of the evidence presented at the state court proceeding. 18 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002). In deciding a state prisoner’s 19 habeas petition, a federal court is not called upon to decide whether it agrees with the 20 state court’s determination; rather, the court applies an extraordinarily deferential review, 21 inquiring only whether the state court’s decision was objectively unreasonable. See 22 Yarborough v. Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th 23 Cir. 2004). 24 A federal habeas court may grant relief under the “contrary to” clause if the state 25 court applied a rule different from the governing law set forth in Supreme Court cases, or 26 if it decided a case differently than the Supreme Court on a set of materially 27 indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant 28 relief under the “unreasonable application” clause if the state court correctly identified 1 the governing legal principle from Supreme Court decisions but unreasonably applied 2 those decisions to the facts of a particular case. Id. Additionally, the “unreasonable 3 application” clause requires that the state court decision be more than incorrect or 4 erroneous; to warrant habeas relief, the state court’s application of clearly established 5 federal law must be “objectively unreasonable.” See Lockyer v. Andrade, 538 U.S. 63, 75 6 (2003). The Court may also grant relief if the state court’s decision was based on an 7 unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2). 8 Where there is no reasoned decision from the state’s highest court, the Court 9 “looks through” to the last reasoned state court decision and presumes it provides the 10 basis for the higher court’s denial of a claim or claims. See Ylst, 501 U.S. 797, 805–06 11 (1991). If the dispositive state court order does not “furnish a basis for its reasoning,” 12 federal habeas courts must conduct an independent review of the record to determine 13 whether the state court’s decision is contrary to, or an unreasonable application of, clearly 14 established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 15 2000), overruled on other grounds by Andrade, 538 U.S. at 75–76; accord Himes v. 16 Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Clearly established federal law, for 17 purposes of § 2254(d), means “the governing principle or principles set forth by the 18 Supreme Court at the time the state court renders its decision.” Andrade, 538 U.S. at 72. 19 B. Sufficiency of the Evidence (Ground One) 20 In ground one, Petitioner argues there was insufficient evidence to support his 21 conviction for making criminal threats because the prosecution did not prove he had the 22 immediate ability to carry out the threats. See Petition at 6. Respondent contends the 23 state court denial of this claim was neither contrary to, nor an unreasonable application 24 of, clearly established Supreme Court law. See Doc. No. 16-1 at 15–19. 25 Petitioner raised this claim in the petition for review he filed in the California 26 Supreme Court on direct review. See Doc. No. 17-14. The state supreme court 27 summarily denied the petition. See Doc. No. 17-15. Accordingly, this Court must “look 28 through” to the state appellate court opinion to determine whether the denial of this claim 1 was contrary to, or an unreasonable application of, clearly established Supreme Court 2 law. Ylst, 501 U.S. at 805–06. That court wrote: 3 Bathen claims there was insufficient evidence to establish his threats 4 conveyed an “immediate prospect of execution” because there was no 5 evidence he was in Chula Vista when the calls were placed or that he ever appeared at C.J.’s residence or office after he moved to the east coast. He also 6 claims the threats were not immediate because C.J. knew he lived on the east 7 coast and had not been in contact with him since he moved. We are not persuaded. 8

9 Bathen essentially argues the geographic distance between him and C.J. prevented him from “immediately” executing his threats. However, the test 10 is not one of geographic distance. The test is whether, in light of the 11 surrounding circumstances, e.g., the prior relationship of the parties and the manner in which the statement was made, the communication was sufficiently 12 unequivocal, unconditional, immediate and specific as to convey to the victim 13 a gravity of purpose and immediate prospect of execution. (People v. Bolin (1998) 18 Cal.4th 297, 340.) Although the criminal threat statute requires an 14 immediate prospect of execution, it “does not require an immediate ability to 15 carry out the threat.” (People v. Lopez (1999) 74 Cal.App.4th 675, 679; see People v. Melhaldo (1998) 60 Cal.App.4th 1529, 1538 [the focus is the future 16 prospect of the threat being carried out]; see also In re David L. (1991) 234 17 Cal.App.3d 1655, 1658–1660 [parties need not be in physical proximity when the threat is made].) 18

19 Courts have routinely upheld criminal threat convictions absent the defendant’s immediate ability to act on the threat. (People v. Smith (2009) 20 178 Cal.App.4th 475, 480 [defendant was in Texas when he threatened the 21 victim who was in California]; People v. Gaut (2002) 95 Cal.App.4th 1425, 1431 [threats made from jail].) It is of no consequence that Bathen lived on 22 the east coast when he left the threatening messages because he specifically 23 stated he was “planning on coming out” to California to kidnap, torture, rape and murder C.J. and her daughter. Thus Bathen’s threats caused C.J. to 24 implement various security precautions at her home and office, even causing 25 her to avoid shopping centers with garages. A specific date or time was not required to establish the immediacy of execution. (See Wilson, 186 26 Cal.App.4th at p. 806.) 27 Bathen’s reliance on C.J.’s testimony she knew he had moved to the 28 1 That testimony in no way suggests that the threat was not immediate. To the 2 contrary, C.J. testified she did not know Bathen’s location when he left the 3 threatening messages. Although she knew Bathen had moved to the east coast, she did not know whether he had returned to Chula Vista when she 4 received the threatening messages nine years later. In fact, she relied on law 5 enforcement to locate Bathen and serve him with a notice of the civil restraining order hearing. It was thus reasonable for C.J. to believe Bathen 6 would carry out his threats against her and her daughter given the specific and 7 graphic nature of his messages.

8 In sum, we conclude there was ample evidence in the record to establish 9 the immediacy of Bathen’s criminal threats.

10 11 Doc. No. 17-13 at 7–9. 12 The Due Process Clause of the Constitution guarantees defendants the right to be 13 convicted only upon proof of every element of a crime beyond a reasonable doubt. Juan 14 H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005) (citing In re Winship, 397 U.S. 358, 364 15 (1970)). On federal habeas corpus review of a conviction on sufficiency of evidence 16 grounds, however, a petitioner “faces a heavy burden” to establish a due process 17 violation. Id. In assessing a sufficiency of the evidence claim, a state court must apply 18 the standard announced by the Supreme Court in Jackson v. Virginia, “whether, after 19 viewing the evidence in the light most favorable to the prosecution, any rational trier of 20 fact could have found the essential elements of the crime beyond a reasonable doubt.” 21 Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Moreover, under 22 AEDPA “the standards of Jackson are applied ‘with an additional layer of deference,’ 23 requiring the federal court to determine ‘whether the decision of the [state court] reflected 24 an “unreasonable application of” Jackson . . . to the facts of this case.’” Maquiz v. 25 Hedgpeth, 907 F.3d 1212, 1217 (9th Cir. 2018) (internal citations omitted). A federal 26 habeas court must “mindful of ‘the deference owed to the trier of fact and, 27 correspondingly, the sharply limited nature of constitutional sufficiency review.’” Juan 28 H., 408 F.3d at 1274 (quoting Wright v. West, 505 U.S. 277, 296–97 (1992).) Deference 1 under AEDPA, however, “does not imply abandonment or abdication of judicial review.” 2 Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). While circumstantial evidence can be 3 sufficient to support a conviction, “[s]peculation and conjecture cannot take the place of 4 reasonable inferences and evidence . . . .” Juan H., 408 F.3d at 1279; see also Maquiz, 5 907 F.3d 1212, 1217–18 (9th Cir. 2018); United States v. Lewis, 787 F.2d 1318, 1323 6 (9th Cir. 2000) (“mere suspicion or speculation cannot be the basis for logical 7 inferences”). 8 In determining whether sufficient evidence has been presented, the Court refers to 9 the elements of the crime as defined by state law. See Jackson, 443 U.S. at 324, n. 16; 10 Juan H., 408 F.3d at 1276. A conviction under California Penal Code § 422 requires 11 proof beyond a reasonable doubt of the following elements: 12 13 (1) that the defendant “willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,” (2) that the defendant 14 made the threat “with the specific intent that the statement . . . is to be taken 15 as a threat, even if there is no intent of actually carrying it out,” (3) that the threat – which may be “made verbally, in writing, or by means of an electronic 16 communication device” – was “on its face and under the circumstances in 17 which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an 18 immediate prospect of execution of the threat,” (4) that the threat actually 19 caused the person threatened “to be in sustained fear for his or her own safety or for his or her immediate family’s safety,” and (5) that the threatened 20 person’s fear was “reasonabl[e]” under the circumstances. 21 22 People v. Roles, 257 Cal. App. 5th 935, 941–42 (2020) (quoting People v. Toledo, 26 23 Cal. 4th 221, 227–28 (2001) (quotation marks omitted).) 24 Petitioner only challenges the sufficiency of the evidence to support the third 25 element. He claims that “[t]he evidence did not support a finding that petitioner had the 26 immediate ability to carry out the threats . . . [because he was] living across the country 27 from the victim.” (Pet., ECF No. 1 at 6.) As the state appellate court noted, however, 28 California law is clear that the prosecution does not need to prove a defendant had the 1 immediate ability to carry out the threats. Rather, the requirement that the threat be 2 “unequivocal, unconditional, immediate, and specific” has been described as follows: 3 “A threat is sufficiently specific where it threatens death or great bodily injury. 4 A threat is not insufficient simply because it does ‘not communicate a time or 5 precise manner of execution, section 422 does not require those details to be expressed.’ [Citation.]” (People v. Butler (2000) 85 Cal.App.4th 745, 752, 6 102 Cal.Rptr.2d 269 (Butler).) In addition, section 422 does not require an 7 intent to actually carry out the threatened crime. (People v. Martinez (1997) 53 Cal.App.4th 1212, 1220, 62 Cal.Rptr.2d 303.) Instead, the defendant must 8 intend for the victim to receive and understand the threat, and the threat must 9 be such that it would cause a reasonable person to fear for his or her safety or the safety of his or her immediate family. (People v. Thornton (1992) 3 10 Cal.App.4th 419, 424, 4 Cal.Rptr.2d 519.) “While the statute does not require 11 that the violator intend to cause death or serious bodily injury to the victim, not all serious injuries are suffered to the body. The knowing infliction of 12 mental terror is equally deserving of moral condemnation.” (Ibid.) 13 . . . . 14

15 While the third element of section 422 also requires the threat to convey “‘a gravity of purpose and an immediate prospect of execution of the threat,’” 16 it “does not require an immediate ability to carry out the threat. [Citation.]” 17 (People v. Lopez (1999) 74 Cal.App.4th 675, 679, 88 Cal.Rptr.2d 252; People v. Smith (2009) 178 Cal.App.4th 475, 480, 100 Cal.Rptr.3d 471.) 18

19 People v. Wilson, 186 Cal. App. 4th 789, 806–07 (2010). 20 Further, the threat must be examined “on its face and under the circumstances in 21 which it was made,” and “[t]he surrounding circumstances must be examined to 22 determine if the threat is real and genuine, a true threat, and such threats must be judged 23 in their context. Id. (quoting In re Ricky T., 87 Cal. App. 4th 1132, 1137 (2001) (internal 24 quotation marks omitted)). “[Section 422] . . . require[s] a victim: the listener. In 25 addition, it requires the listener suffer injury: sustained fear.” Ayala v. Superior Court of 26 San Mateo County, 67 Cal. App. 5th 296, __, 282 Cal. Rptr. 3d 108, 113 (2021) (quoting 27 People v. Solis, 90 Cal. App. 4th 1002, 1025 (2001) (internal quotation marks omitted)). 28 Petitioner left three voicemails for C.J., each increasingly violent and specific. In 1 the first voicemail he threatened to “bust [C.J.’s] fucking skull open,” to “bash [C.J.’s] 2 fucking skull,” and to “carve [her] up.” Doc. No. 17-1 at 51. In his second voicemail he 3 again threatened to “carve C.J. up” then escalated to threatening to rape and torture her. 4 Id. at 53. In the third voicemail, he told C.J. that he still planned on coming to Chula 5 Vista and again threatened to rape and torture her. He escalated his threats further by 6 threatening to “set [her] on fire,” and to “find [her] daughter [and] rape and murder that 7 bitch too.” Id. at 55. He told her twice, “You’re fucking dead.” Id. at 51, 55. Thus, a 8 rational jury could conclude that Petitioner’s threats were sufficiently “unequivocal, 9 unconditional, . . . and specific” because they threatened death or great bodily injury. 10 Jackson, 443 U.S. at 319; Wilson, 186 Cal. App. 4th at 806–07; Cal. Penal Code § 422. 11 Further, Petitioner’s threats were sufficiently “immediate” and conveyed “an

12 immediate prospect of execution of the threat” to satisfy Cal. Penal Code § 422. 13 “‘[I]mmediate’ . . . mean[s] that degree of seriousness and imminence which is 14 understood by the victim to be attached to the future prospect of the threat being carried 15 out, should the conditions not be met.” Wilson, 186 Cal. App. 4th at 816 (quoting People 16 v. Melhaldo, 60 Cal. App. 4th 1529, 1538 (1998) (internal quotation marks omitted)). In 17 Petitioner’s first threat, he stated he was “going to bust your fucking skull open,” that he 18 will “bash your fucking skull,” and “carve you up.” Doc. No. 17-1 at 51. In his second 19 threat, Petitioner stated he was “going to carve you up, I’m going to rape you, I’m going 20 to torture you, I’m going to fuck you up,” and that he would “carve your fucking smile 21 off your face.” Id. at 53. In his third threat, Petitioner said he was “still planning on 22 coming out there, kidnapping you, torturing you, raping the living shit out of you, and set 23 you on fire . . . . You’re going to fucking die. Then I’m going to find your daughter [and] 24 rape and murder that bitch too. You’re fucking dead.” Id. at 55. 25 C.J. testified that when she heard the first voicemail was “terrified” and began 26 “looking around the house to make sure my doors were locked” and that because she 27 “didn’t know . . . if somebody was nearby,” she had a “terrorized fear response when I 28 heard it.” Doc. No. 17-5 at 74. She increased her security at home and work was on 1 “high alert.” Id. at 78. After listening to the second voicemail, she felt “terrified” and 2 “humiliated” and had such a visceral reaction that she threw up. Id. at 81. She also 3 testified she believed her and her daughter’s lives were in danger. See id. at 83–84. 4 In addition, the circumstances surrounding Petitioner’s violent threats support the 5 jury’s conclusion verdict. See Wilson, 186 Cal. App. 4th at 806-07. The parties’ history 6 can . . . be considered as one of the relevant circumstances” used to determine whether 7 the words used by a defendant are sufficiently unequivocal, unconditional, immediate, 8 and specific. People v. Gaut, 95 Cal. App. 4th 1425, 1431 (2002) (internal quotation 9 marks and citations omitted). C.J. testified that when she stopped treating Petitioner in 10 2008 because he had moved to the east coast, Petitioner became “agitated.” Doc. No. 17- 11 5 at 67. A few months later, C.J. received emails from Petitioner in which he demanded 12 she sit face to face with him and listen without speaking and then apologize. Id. at 70. If 13 she did not do so, he threatened to report her to her professional organization. See id. 14 “Bathen’s behavior and demands for an apology made her ‘uneasy.’” Id. at 69. 15 Petitioner’s agitation when C.J. terminated their doctor-patient relationship in 2008, his 16 demands for an apology, and his prior threats to report C.J. to her professional 17 organization if she did not comply with his demands was evidence which could lead a 18 jury to rationally conclude that the threats Petitioner made in 2017 were “real and 19 genuine.” See Wilson, 186 Cal. App. 4th at 806–07. 20 Petitioner made repeated, specific, and graphic threats to rape, torture, and murder 21 C.J. and her daughter. He told C.J. he was “planning on coming out there” to execute his 22 threats. Petitioner had previously exhibited threatening behavior toward C.J. when he 23 became upset and agitated after C.J. ended their professional relationship, demanded she 24 apologize, and threatened to report her if she did not accede to his demands. A rational 25 jury could conclude from the substance of the voicemails, C.J.’s testimony, and the 26 circumstances of their relationship that Petitioner’s threats conveyed to C.J. an immediate 27 prospect of execution of the threat. Jackson, 443 U.S. at 319; Wilson, 186 Cal. App. 4th 28 at 806–07; Cal. Penal Code § 422. Given all of these facts, a rational jury could conclude 1 the threats were sufficiently immediate. Jackson, 443 U.S. at 319; Wilson, 186 Cal. App. 2 4th at 806–07. 3 Petitioner contends the evidence was not sufficient to show threats were 4 sufficiently immediate because he made them “while living across the country from the 5 victim.” Petition at 6. Although C.J. knew Petitioner had moved to the east coast in 6 2008, he could have moved back to Chula Vista without her knowledge. Indeed, C.J. 7 testified she did not know where Petitioner was at the time he made the threats. See Doc. 8 No. 17-5 at 82. Moreover, in his last threat, he told C.J. he was “still planning on coming 9 out there” to carry out his threats to kidnap, rape, murder, and torture her and her 10 daughter. Finally, as previously noted, California law is clear that the prosecution does 11 not need to prove a defendant had the immediate ability to carry out the threats. Wilson, 12 186 Cal. App. 4th at 807. 13 For the foregoing reasons, the state court’s denial of this claim was neither 14 contrary to, nor an unreasonable application of, clearly established Supreme Court law. 15 28 U.S.C. § 2254(d); Bell, 535 U.S. at 694. Nor was it based on an unreasonable 16 determination of the facts. 28 U.S.C. § 2254(d)(2). Accordingly, Petitioner is not 17 entitled to relief as to this claim. 18 C. Jury Instructions (Ground Two) 19 Petitioner argues in ground two that the trial court erred when it failed to instruct 20 the jury on the lesser included offense of attempted criminal threat. See Petition at 7. 21 Respondent contends the state court’s resolution of this claim was neither contrary to, nor 22 an unreasonable application of, clearly established Supreme Court law. See Doc. No. 16- 23 1 at 19–23. 24 Petitioner raised the claim in the petition for review he filed in the California 25 Supreme Court on direct review. See Doc. No. 17-14. The California Supreme Court 26 summarily denied the petition. See Doc. No. 17-15. This Court must therefore “look 27 through” to the state appellate court’s denial of the claim to determine whether it was 28 contrary to, or an unreasonable application of, clearly established Supreme Court law. 1 Ylst, 501 U.S. at 805–06. That court wrote: 2 Bathen argues the lesser included offense instruction should have been given 3 because the jury might have convicted him of the lesser offense if it had 4 lingering doubts about the immediacy element. Bathen points to a juror note requesting further clarification of the meaning of “immediate” and 5 “immediate prospect” in support of his argument that at least one juror could 6 have opted for the lesser offense of attempted criminal threat.

7 An attempted criminal threat is a lesser included offense of a criminal 8 threat. (Toledo, supra, 26 Cal.4th at p. 226.) “‘[I]f a defendant, . . . acting with the requisite intent, makes a sufficient threat that is received and 9 understood by the threatened person, but, for whatever reason, the threat does 10 not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could 11 have been placed in such fear, the defendant properly may be found to have 12 committed the offense of attempted criminal threat.’” (People v. Chandler (2014) 60 Cal.4th 508, 515.) 13

14 Here, C.J.’s and her husband’s testimony provided substantial evidence regarding the immediate prospect of execution of Bathen’s threats. C.J. called 15 her husband after receiving Bathen’s first threatening message. She expressed 16 her fear to her husband and the police when she ascertained the name and telephone number associated with the call. She also changed her lifestyle and 17 implemented security precautions at her home and workplace, which 18 continued after she received Bathen’s second threatening message. She worried enough about her safety that she locked all the doors and windows at 19 her home, had security doors installed at her office, warned her coworkers 20 about the threats, and required an escort to and from her car in the office parking lot. After receiving Bathen’s third threatening message, she applied 21 for and obtained a civil restraining order against him. At trial, C.J. testified 22 she thought she and her daughter were in danger and that Bathen was serious about carrying out the threats. Based on the foregoing, there was substantial 23 evidence that Bathen committed the greater offense. 24 We thus conclude the court did not err by failing to give a sua sponte 25 instruction on the lesser included offense of attempted criminal threat. 26 27 Doc. No. 17-13 at 11–13. 28 There is no clearly established Supreme Court law which requires a trial court to 1 instruct on a lesser included offense in non-capital cases. See Solis v. Garcia, 219 F.3d 2 922, 929 (9th Cir. 2000); see also Cortez v. Callahan, No. 18-cv-02969-LHK, 2021 WL 3 3773617, at *19 (N.D. Cal. Aug. 25, 2021) (stating that “[b]ecause there is no clearly 4 established United State Supreme Court authority that requires lesser include offense 5 instructions, the state appellate court’s decision was not contrary to or an unreasonable 6 application of clearly established United States Supreme Court law”); Gagnon v. Fisher, 7 No. 2:19-cv-0305-CKF-P, 2021 WL 2953157, at *2 (E.D. Cal. June 29, 2021) (stating 8 that “[the] U.S. Supreme Court has never found that a state court’s failure to instruct as to 9 a lesser included offense in a non-capital case provides a basis for federal habeas relief, 10 and the court declined to reach the question of whether such a failure can amount to a 11 violation of the Due Process Clause in Beck v. Alabama, 447 U.S. 625, 638 n. 14”). The 12 state court’s rejection of this claim, therefore, was neither contrary to, nor an 13 unreasonable application of, clearly established Supreme Court law. Carey v. Musladin, 14 549 U.S. 70, 77 (2006); 28 U.S.C. § 2254. 15 As a general proposition, however, “[a] criminal defendant is entitled to adequate 16 instructions on his or her theory of defense,” Bashor v. Risley, 730 F.2d 1228, 1240 (9th 17 Cir. 1984), and a trial court’s failure “to correctly instruct the jury on [a] defense may 18 deprive the defendant of his due process right to present a defense.” Bradley v. Duncan, 19 315 F.3d 1091, 1099 (9th Cir. 2002). In order to warrant an instruction on the defense 20 theory of the case, the theory must be “legally sound” and the evidence presented in the 21 case must “make[] it applicable.” Clark v. Brown, 450 F.3d 898, 904–05 (9th Cir. 2006) 22 (quoting Beardslee v. Woodford, 358 F.3d 560, 577 (9th Cir. 2004)); see Lopez v. 23 McDowell, No. CV 71-0833-JLS-JPR, 2019 WL 7708876, at *15 (C.D. Cal. Nov. 17, 24 2019).1 25

26 1 California law is consistent with this principal. A trial judge must instruct the jury on a lesser included 27 offense if it is supported by substantial evidence, including defenses that are not inconsistent with the 28 defendant's theory of the case. People v. Breverman, 19 Cal. 4th 142, 148–49 (1998); People v. 1 An attempt to commit a crime is defined as “a direct but ineffective step” toward 2 committing the crime coupled with an intent to commit that crime. CALCRIM No. 460. 3 The California Supreme Court has stated the crime of attempted criminal threat 4 “encompasses situations where a defendant intends to commit a criminal threat ‘but is 5 thwarted from completing the crime by some fortuity or unanticipated event.’” People v. 6 Chandler, 60 Cal. 4th 508, 515 (2014) (quoting Toledo, 26 Cal. 4th at 232). Examples 7 cited by the Chandler court include a written threat intercepted before the victim receives 8 it or an oral threat that is not understood as a threat by the victim. Id. “[W]hen a 9 defendant is charged with attempted criminal threat, the jury must be instructed that the 10 offense requires not only that the defendant have an intent to threaten but also that the 11 intended threat be sufficient under the circumstances to cause a reasonable person to be in 12 sustained fear.” Id. at 548–49. 13 The evidence presented at Petitioner’s trial did not support a defense theory that 14 Petitioner made a “direct but ineffectual step” toward making criminal threats to C.J. The 15 defense challenged C.J.’s identification of Petitioner as the individual who left the threats 16 on her voicemail and whether Petitioner’s lack of proximity to C.J. failed to establish the 17 necessary immediacy to convict him of the crime of making a criminal threat. See Doc. 18 No. 17-7 at 3–15. The defense did not argue that Petitioner made a “direct but ineffectual 19 step” towards threatening C.J. 20 Even if error did occur, jury instruction error is subject to harmless error analysis, 21 that is, if error is found, relief can only be granted if it had a substantial and injurious 22 effect on the jury’s verdict. See California v. Roy, 519 U.S. 2, 6 (1996); Brecht v. 23 Abrahamson, 507 U.S. 619, 637 (1993). When a lesser included offense instruction is 24 given to juries in California, they are instructed that the trial judge “can accept a verdict 25 of guilty of a lesser crime only if you have found the defendant not guilty of the 26 corresponding greater crime.” CALCRIM Nos. 3517–3519. As discussed above in 27 Section IV(B), there was more than sufficient evidence from which a rational jury could 28 conclude Petitioner was guilty of the greater offense of making a criminal threat. 1 Accordingly, the state court’s denial of this claims was neither contrary to, nor an 2 unreasonable application of, clearly established Supreme Court law. Bell, 535 U.S. at 3 694. Nor was it based on an unreasonable determination of the facts. 28 U.S.C. § 4 2254(d)(2). Therefore, Petitioner is not entitled to relief as to this claim. 5 D. Ineffective Assistance of Counsel (Ground Three) 6 Petitioner contends in Ground Three that his trial counsel was ineffective because 7 she did not investigate whether his use of Lexapro caused him to commit the crimes of 8 which he was convicted. See Doc. No. 11. He claims trial counsel could have presented 9 two defenses based on his use of Lexapro, namely voluntary intoxication, which he 10 argues could have negated the intent element of his crimes, or unconsciousness based on 11 involuntary intoxication. Id. at 11. He contends either defense would have been more 12 successful than those presented by trial counsel. Id. at 11–29. Respondent argues the 13 state court’s denial of this claim was neither contrary to, nor an unreasonable application 14 of, clearly established Supreme Court law. See Doc. No. 16-1 at 23–27. 15 Petitioner raised this claim in the habeas corpus petition he filed in the California 16 Supreme Court. See Doc. No. 17-21. The state supreme court denied the petition on the 17 merits, citing Harrington v. Richter, 562 U.S. 86 (2011) and Ylst v. Nunnemaker, 501 18 U.S. 797, 803 (1991). See Doc. No. 17-22. Accordingly, this Court must “look through” 19 to the last reasoned state court decision addressing the claim, which is the state appellate 20 court’s opinion. See Doc. No. 17-20. Concluding Petitioner had failed to state a prima 21 facie case for relief, that court wrote: 22 23 The record Bathen has provided does not show counsel knew or should have known an investigation of a “medication-based defense” was needed. In his 24 declaration, Bathen states he told trial counsel he “was on the medication on 25 the dates of the incidents,” but he “had no explanation as to why the incidents occurred.” Bathen states counsel asked him if he “had taken any illegal or 26 recreational drugs,” and he “responded no.” He did not tell counsel about the 27 increasingly severe adverse effects from Lexapro he now say he had been experiencing for six months before he left the threatening message on his 28 1 wished to deny the allegations in their entirety in that he never made the phone calls, and if he did, the issue went to the ‘immediacy’ aspect, as he was 2 physically located on the other side of the country during the time of the 3 alleged calls.” Counsel nevertheless referred Bathen to a psychologist for an evaluation. In his report, the psychologist wrote that Bathen stated, “‘I am 4 medicated with Lexapro by my general practitioner for depression. I think it 5 helps.’” Bathen told the psychologist he had no thoughts of suicide or homicide, had never been hospitalized for a psychiatric condition, and had 6 taken antidepressants that were not effective but “Lexapro has been helpful.” 7 Bathen also told the psychologist there was “no factual basis” for the criminal charges and “den[ied] that [he] made those voicemail messages.” The 8 psychologist diagnosed Bathen with “[m]ild depression related to current 9 legal circumstances,” but made no mention of adverse side effects from Lexapro. Based on what little Bathen told trial counsel about his experience 10 with Lexapro, the psychologist’s report that Bathen found the drug was 11 “helpful” and had not experienced homicidal thoughts (such as those expressed in the messages left on his former psychotherapist’s voicemail) 12 while taking it, and Bathen’s repeated denials of having made the threats, 13 counsel’s failure to pursue a defense attributing Bathen’s criminal conduct to Lexapro was not “inexcusabl[e]” and thus does not constitute ineffective 14 assistance. (People v. Williams, supra, 44 Cal.3d at p. 936; see People v. 15 Pinksy (1079) 95 Cal.App.3d 194, 200 [“Whether the attorney’s conduct falls within the range of a reasonably competent attorney is in this case a question 16 of law for this court to decide.”].) 17 The record also does not establish a reasonable probability of a better 18 outcome for Bathen had trial counsel investigated and presented a 19 “medication-based defense.” “In a habeas corpus petition alleging incompetent investigation or presentation of evidence by trial counsel, a 20 petitioner . . . must generally produce that evidence . . . [to] show us what the 21 trial would have been like, had he been competently represented, so we can compare that with the trial that actually occurred and determine whether it is 22 reasonably probable that the result would have been different.” (In re Fields 23 (1990) 51 Cal.3d 1063, 1071; accord, In re Hardy (2007) 41 Cal.4th 977, 1025.) The legal defense Bathen faults counsel for failing to investigate and 24 present is involuntary intoxication, a form of unconsciousness that relieves a 25 defendant of liability for criminal conduct. (Pen. Code § 26, subd. Four; People v. Velez (1985) 175 Cal.App.3d 785, 793.) “Involuntary intoxication 26 can be caused by the voluntary ingestion of prescription medication if the 27 person did not know or have reason to anticipate the drug’s intoxicating effects.” (People v. Mathson (2012) 210 Cal.App.4th 1297, 1313, italics 28 1 intoxication defense would not have been available to him. In his own declaration, Bathen states that in January 2017, he began experiencing adverse 2 effects of Lexapro, including “memory issues,” “periods of disorientation,” 3 and “mania,” which worsened over the next six months. He also states a “warning stapled to the outside of the bag the medication comes in” advised 4 him to call his healthcare provider if he had symptoms such as “acting 5 aggressive or violent,” or “agitation, hallucinations, coma or other changes in mental status.” Bathen admits his supervisors “reprimanded him in January 6 of 2017 for “compulsively pacing back and forth at work,” Other declarations 7 attached to the petition also undermine an involuntary intoxication defense. The declarants (whom Bathen calls “potential witnesses”) state that: (1) 8 Bathen engaged in “strange and sudden aggressive behavior” and had an 9 “abrupt change in mood” when he started taking antidepressants in 2004; (2) he had “uncharacteristic behavioral changes” and was “very agitated and 10 uneasy, at times, and unable to sleep well” when he was taking antidepressants 11 in 2006; (3) his “personality changed” and he engaged in “erratic behavior” in the beginning of 2017, when he started taking “new medication”; and (4) 12 he “g[o]t up from his desk, nearly every five minutes at time” and had 13 abnormal facial movements at work in January and February 2017, and told his supervisor a recent change in medications “may be causing some of the 14 abnormal behavior.” Bathen’s evidence thus shows he know or had reason to 15 know of the adverse effects of Lexapro and other antidepressants on his behavior and mental status before he made the criminal threats against his 16 former psychotherapist. Since the defense of involuntary intoxication 17 therefore was unavailable, (Mathson, at p. 1327; Velez, at p. 797), Bathen suffered no prejudice from his trial counsel’s failure to pursue it (In re Fields, 18 supra, at p. 1070). 19 20 Doc. No. 17-20 at 4–5. 21 To establish ineffective assistance of counsel, a petitioner must first show his 22 attorney’s representation fell below an objective standard of reasonableness. Strickland 23 v. Washington, 466 U.S. 668, 688 (1984). “This requires showing that counsel made 24 errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the 25 defendant by the Sixth Amendment.” Id. at 687. He must also show he was prejudiced 26 by counsel’s errors. Id. at 694. Prejudice can be demonstrated by showing “there is a 27 reasonable probability that, but for counsel’s unprofessional errors, the result of the 28 proceeding would have been different.” Id.; see also Fretwell v. Lockhart, 506 U.S. 364, 1 372 (1993). “The likelihood of a different result must be substantial, not just 2 conceivable.” Harrington, 562 U.S. at 112. 3 Further, Strickland requires “[j]udicial scrutiny of counsel’s performance . . . be 4 highly deferential.” Strickland, 466 U.S. at 689. There is a “strong presumption that 5 counsel’s conduct falls within a wide range of reasonable professional assistance.” Id. at 6 686-87. On federal habeas review, “[t]he question ‘is not whether a federal court 7 believes the state court’s determination’ under the Strickland standard ‘was incorrect but 8 whether that determination was unreasonable—a substantially higher threshold.’” 9 Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 10 U.S. 465, 473 (2007)). The Court need not address both the deficiency prong and the 11 prejudice prong if the defendant fails to make a sufficient showing of either one. Id. at 12 697. 13 In the declaration he submitted in support of the habeas corpus petition he filed in 14 the California Supreme Court, Petitioner states the general practitioner he was seeing in 15 Virginia, Dr. Barbano, prescribed Lexapro for him in November of 2016, but there is no 16 evidence in either Petitioner’s declaration or any of the other documents he has submitted 17 here or in state court about when he actually began taking Lexapro. See Petition; see also 18 Doc. Nos. 11, 17-21, 19, 21. Petitioner also states he began suffering various behavioral 19 changes, including akathisia, which, according to Petitioner, is a “medically induced 20 syndrome that makes it hard for you to stay still,” memory issues, disorientation, “facial 21 grimacing,” insomnia, mania, and agitation beginning in January of 2017 and lasting until 22 he made the threatening phone calls to C.J. Doc. No. 17-21 at 43. In addition, he claims 23 that “[o]n the dates of the incidents . . . [he] further experienced . . . disorientation, 24 profuse sweating, and violent verbal outbursts.” Id. Petitioner refers to several letters 25 from experts in the effects of Lexapro and potential witnesses which he submitted as part 26 of the habeas corpus petition he filed in the California Supreme Court as support for his 27 claims. See Doc. No. 17-21 at 57–72, 112–16, 138–39, 144–45. Petitioner argues trial 28 counsel should have investigated whether there was a link between the Lexapro he was 1 taking and the side effects he alleges he was suffering from at the time he made the 2 threats. See Doc. No. 11 at 10–28. Had she done so, Petitioner contends, she could have 3 presented voluntary or involuntary intoxication defense which would have negated the 4 intent element of the charges. See id. 5 Counsel has a “duty to make reasonable investigations or to make a reasonable 6 decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. 7 This duty, however, “‘is not limitless,’ and . . .‘it does not necessarily require that every 8 conceivable witness be interviewed or that counsel must pursue every path until it bears 9 fruit or until all conceivable hope withers.’” Hamilton v. Ayers, 583 F.3d 1100, 1129 (9th 10 Cir. 2009) (citation omitted); Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001). 11 “The reasonableness of counsel’s actions may be determined or substantially influenced 12 by the defendant’s own statements or actions.” Strickland, 466 U.S. at 691.

13 Here, despite experiencing disturbing symptoms for nearly six months, by his own 14 admission Petitioner never mentioned them to either his attorney or the psychologist who 15 examined him, Dr. Murphy. See Doc. No. 21; Doc. No. 17-21 at 41–47. In his 16 declaration, Petitioner states he told his trial attorney it was his voice on the recordings, 17 but did not tell her about the “disorientation, profuse sweating, and violent verbal 18 outbursts” he claims he was experiencing day of the phone calls in June and July. Id. at 19 43. During his psychological evaluation, he told Murphy he was “currently doing quite 20 well” physically but that he had “mild depression.” He said he was taking Lexapro for 21 the depression, which he stated was “helpful.” Id. at 74–82. In the section of Murphy’s 22 report entitled “Discussion of Present Circumstances,” Petitioner told Murphy he was 23 being charged with making criminal threats against C.J. but did not talk about the 24 symptoms he was having leading up to or while he was making the threats. See id. 25 According to Murphy, Petitioner presented in “an engaging, open, and conversational 26 manner,” and had no “homicidal ideation.” Id. Murphy administered three separate 27 assessments and found no indication Petitioner was suffering from feelings of aggression, 28 violence, anger, or psychopathy. See id. 1 “Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 2 559 U.S. 356, 371 (2010). Moreover, “[e]stablishing that a state court’s application of 3 Strickland was unreasonable under § 2254(d) is all the more difficult [because while] 4 [t]he standards created by Strickland and § 2254(d) are both “highly deferential,” . . . 5 when the two apply in tandem, review is ‘doubly’ so.” Harrington, 562 U.S. at 105 6 (citations omitted). “When § 2254(d) applies, the question is not whether counsel’s 7 actions were reasonable. The question is whether there is any reasonable argument that 8 counsel satisfied Strickland’s deferential standard.” Id. Here, the state appellate court’s 9 conclusion that trial counsel’s performance was not deficient was a reasonable 10 application of Strickland. Given Petitioner’s failure to tell counsel he had been suffering 11 from unusual symptoms of aggression in the six months prior to the threatening 12 voicemails, or that he was suffering from “disorientation, profuse sweating, and violent 13 verbal outbursts” on the dates he made the threats, that Petitioner also did not reveal the 14 symptoms of aggression and anger he now claims he was suffering from to Dr. Murphy, 15 and Murphy’s conclusion that there was “no evidence whatsoever of past indicators or 16 current functioning that would suggest he is likely to act out in an aggressive, assaultive 17 fashion,” there is a “reasonable argument” that counsel satisfied Strickland’s standard 18 despite not exploring an intoxication defense. Harrington, 562 U.S. at 105. See Doc. 19 No. 21; see also Doc. No. 17-21 at 41–47. 20 Moreover, Petitioner has also failed to satisfy the prejudice prong of Strickland. 21 Strickland, 466 U.S. at 694; Harrington, 562 U.S. at 112. Petitioner argues counsel could 22 have presented two defenses: voluntary intoxication, which would have negated the 23 required intent, unconsciousness due to involuntary intoxication. See Doc. No. 11 at 11. 24 “A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using 25 any intoxicating drug, drink, or other substance knowing that it could produce an 26 intoxicating effect, or willingly assuming the risk of that effect.” CALCRIM No. 3426. 27 A jury may consider evidence of voluntary intoxication when deciding whether a 28 defendant acted with the requisite intent. See id. The intent required for a conviction of 1 California Penal Code 422 is “the specific intent that the statement . . . is to be taken as a 2 threat, even if there is no intent of actually carrying it out . . . .” Cal. Penal Code § 422. 3 While Petitioner has provided a copy of the prescription for Lexapro he received from 4 Dr. Barbano, he does not state in his declaration that he actually took the medication, or, 5 if he did, when he began taking it. He has provided the Court with letters from doctors 6 who explain that Lexapro can cause side effects such as aggressive or violent behavior,

7 but there is no information in the letters regarding what dosage the side effects are 8 associated with and how that relates to the dosage Petitioner was allegedly taking. See 9 Doc. No. 21; see also Doc. No. 17-21 at 57–72, 112–16, 138–39, 144–45. Petitioner 10 states in his declaration that he called C.J. “because [he] had repeatedly been told to call 11 [his] healthcare practitioner in the event of an emergency.” Doc. No. 21; see also Doc. 12 No. 17-21 at 43. But this claim is difficult to credit as it was Petitioner’s Virginia 13 physician, Dr. Barbano, who had prescribed the Lexapro, not C.J., with whom he had not 14 had contact with for almost ten years. See id. at 42, 130. No evidence has been provided 15 that he had any similar outburst toward anyone but C.J., a person with whom he had a 16 history of conflict and aggressive behavior. The rational conclusion to be drawn from 17 these facts is that the feelings of agitation, anger, and aggression he claims he was 18 experiencing as a side effect of Lexapro would have helped explain why he made the 19 statements captured in the voicemails, but not whether he intended them to be taken as a 20 threat. 21 In order to establish prejudice, Petitioner must show “there is a reasonable 22 probability that, but for counsel’s unprofessional errors, the result of the proceeding 23 would have been different.” Strickland, 466 U.S. at 694. “The likelihood of a different 24 result must be substantial, not just conceivable.” Harrington, 562 U.S. at 112. Given 25 this standard, it is difficult to see how a jury would conclude that Petitioner did not intend 26 his statements to be taken as a threat. 27 Petitioner also argues counsel should have presented the defense of 28 “unconsciousness based on involuntary intoxication.” Doc. No. 11 at 11. 1 “Unconsciousness, if not induced by voluntary intoxication, is a complete defense to all 2 charges.” People v. Halvorsen, 42 Cal. 4th 379, 417 (2007). In order to warrant a jury 3 instruction on the defense of involuntary intoxication resulting in unconsciousness, 4 however, a defendant must present substantial evidence that while a defendant committed 5 an act “[he was] not, at the time, conscious of acting.” Id. Petitioner states in his 6 declaration that he called C.J. See Doc. No. 21; see also Doc. No. 17-21 at 43. The 7 letters from doctors Petitioner has submitted claim that the side effects of Lexapro caused 8 Petitioner to become agitated and aggressive not that they rendered him unconscious. See 9 id. at 57–72, 112–16, 138–39, 144–45. These feelings of agitation and aggression 10 allegedly caused him to call C.J. and leave the voicemails. Thus, the evidence before the 11 Court shows Petitioner was “conscious of acting” when he made the calls. Because it 12 does not appear Petitioner would have been able to present such a defense, he has not 13 established “there is a reasonable probability that, but for counsel’s unprofessional errors, 14 the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. 15 The state court’s denial of this claim was neither contrary to, nor an unreasonable 16 application of, clearly established Supreme Court law. 28 U.S.C. § 2254(d); Bell, 535 17 U.S. at 694. Nor was it based on an unreasonable determination of the facts. 28 U.S.C. 18 § 2254(d)(2). Accordingly, Petitioner is not entitled to relief as to this claim. 19 V. CONCLUSION 20 For the foregoing reasons, the Court DENIES the Petition. Rule 11 of the Rules 21 Following 28 U.S.C. § 2254 require the District Court to “issue or deny a certificate of 22 appealability when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. 23 foll. § 2254 (West 2019). A certificate of appealability will issue when the petitioner 24 makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253 25 (West 2019); Pham v. Terhune, 400 F.3d 740, 742 (9th Cir. 2005). A “substantial 26 showing” requires a demonstration that “‘reasonable jurists would find the district court’s 27 assessment of the constitutional claims debatable or wrong.’” Beaty v. Stewart, 303 F.3d 28 975, 984 (9th Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Here, 1 || the Court concludes that reasonable jurists could not find the constitutional claims 2 debatable, and therefore DENIES a certificate of appealability. The Court further 3 || DIRECTS the Clerk of Court to enter judgment accordingly and close this case. 4 IT IS SO ORDERED. 5 Dated: October 5, 2021 6 Baidu J Lliphlr 7 HON. MICHAEL M. ANELLO 8 United States District Judge 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28