NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT MAR 09 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS BYRON CHRISTOPHER CHINCHILLA, No. 16-55954
Petitioner-Appellant, D.C. No. 8:14-cv-01298-JVS-JPR v.
GREG LEWIS, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding
Argued and Submitted February 13, 2018 Pasadena, California
Before: BERZON and BYBEE, Circuit Judges, and WOODCOCK,** District Judge.
Byron Chinchilla, a California state prisoner, appeals the district court’s
denial of his federal habeas corpus petition. We review the district court’s decision
de novo, but the Antiterrorism and Effective Death Penalty Act (“AEDPA”)
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John A. Woodcock, Jr., United States District Judge for the district of Maine, sitting by designation. constrains our review of Chinchilla’s underlying ineffective assistance of counsel
claim. Atwood v. Ryan, 870 F.3d 1033, 1046 (9th Cir. 2017). Under AEDPA, we
may grant relief if the state-court decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States . . . .” 28 U.S.C. § 2254(d)(1). A decision is
contrary to clearly established precedent if it “applies a rule that contradicts the
governing law set forth in [the Supreme Court’s] cases.” Williams v. Taylor, 529
U.S. 362, 405 (2000). And a decision is an unreasonable application of such law if
it “identifies the correct governing legal principle from [the] Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413.
However, “[a] state court’s determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the
state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
To demonstrate ineffective assistance of counsel, a petitioner must establish
that his counsel’s performance was “deficient” and that this performance
prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687 (1984).
When AEDPA applies, this review is “doubly deferential,” Knowles v. Mirzayance,
556 U.S. 111, 123 (2009), as the inquiry “is whether there is any reasonable
2 argument that counsel satisfied Strickland’s deferential standard,” Richter, 562
U.S. at 105.
1. As an initial matter, there is no merit to Chinchilla’s contention that AEDPA
deference is inapplicable to the California Court of Appeal’s prejudice analysis.
While the court did apply a state-law prejudice standard, that standard, contrary to
Chinchilla’s assertion, is not a “more likely than not” test. People v. Wilkins, 295
P.3d 903, 914 (Cal. 2013) (“We have made clear that a ‘probability’ in this context
does not mean more likely than not, but merely a reasonable chance, more than an
abstract possibility.”). Nor would the application of a more likely than not test
necessarily be inconsistent with Strickland. Richter, 562 U.S. at 112. Chinchilla
has thus failed to demonstrate how the state court’s analysis would have differed
had it applied Strickland and has failed to establish that its conclusion was contrary
to clearly established law. See DeWeaver v. Runnels, 556 F.3d 995, 997 (9th Cir.
2009) (“The state court need not have cited Supreme Court precedent or been
aware of it, ‘so long as neither the reasoning nor the result of the state-court
decision contradicts it.’” (alteration omitted)).
Additionally, Chinchilla’s reliance on Crace v. Herzog, 798 F.3d 840, 846
(9th Cir. 2015) is misplaced. There, we applied de novo review because the state
court misapprehended Strickland, citing it in support of a faulty presumption that
3 the jury would have returned the same verdict even if it had received the
instruction for the lesser-included offense. Crace, 798 F.3d at 846–47. The state
court here did not rely on such a presumption, instead holding that the jury’s
verdicts and findings demonstrate that the jury necessarily rejected the version of
events that Chinchilla’s co-defendant testified to. Accordingly, AEDPA deference
applies to the court’s conclusion that trial counsel’s failure to ask for the imperfect
self-defense instruction was not prejudicial to Chinchilla.
2. “In assessing prejudice under Strickland, the question is not whether a court
can be certain counsel’s performance had no effect on the outcome or whether it is
possible a reasonable doubt might have been established if counsel acted
differently.” Richter, 562 U.S. at 111. “Instead, Strickland asks whether it is
‘reasonably likely’ the result would have been different.” Id. (quoting Strickland,
466 U.S. at 693)).
We cannot conclude that the state court was unreasonable in holding that the
trial’s outcome would not have been different if the jury had been given an
imperfect self-defense instruction. Chinchilla’s co-defendant denied intending to
rob or assault the victims, whom he portrayed as the aggressors. He testified that
the victims caused him to fear for his life by driving “pretty fast” after him and
Chinchilla. Had the jury credited this testimony, the defendants may have been
4 able to satisfy the elements of imperfect self-defense. But, as the state court
reasoned, the jury’s verdicts and findings demonstrate that it rejected this version
of events; the jury found the defendants guilty of robbery and assault and
concluded that they acted with premeditation in attempting to murder the victims.1
Because fairminded jurists could disagree over whether it was reasonably likely
that the jury could still have found that the defendants were entitled to imperfect
self-defense, we may not disturb this holding. Richter, 562 U.S. at 101.
3. Even if Chinchilla could satisfy the prejudice prong, he would still need to
demonstrate that his trial counsel’s performance was constitutionally deficient.
Because the state court “explicitly declined to reach this [prong], we review it de
novo.” Crace, 798 F.3d at 852. Nonetheless, this review is “‘highly deferential’
and incorporate[s] a ‘strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance which, under the circumstances,
1 Appellee agrees that the state court reasoned that the jury factually rejected the co-defendant’s version of events. However, appellee also argues that the defendants were legally barred from asserting imperfect self-defense due to the fact that they committed robbery and assault and acted with premeditation.
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT MAR 09 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS BYRON CHRISTOPHER CHINCHILLA, No. 16-55954
Petitioner-Appellant, D.C. No. 8:14-cv-01298-JVS-JPR v.
GREG LEWIS, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding
Argued and Submitted February 13, 2018 Pasadena, California
Before: BERZON and BYBEE, Circuit Judges, and WOODCOCK,** District Judge.
Byron Chinchilla, a California state prisoner, appeals the district court’s
denial of his federal habeas corpus petition. We review the district court’s decision
de novo, but the Antiterrorism and Effective Death Penalty Act (“AEDPA”)
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John A. Woodcock, Jr., United States District Judge for the district of Maine, sitting by designation. constrains our review of Chinchilla’s underlying ineffective assistance of counsel
claim. Atwood v. Ryan, 870 F.3d 1033, 1046 (9th Cir. 2017). Under AEDPA, we
may grant relief if the state-court decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States . . . .” 28 U.S.C. § 2254(d)(1). A decision is
contrary to clearly established precedent if it “applies a rule that contradicts the
governing law set forth in [the Supreme Court’s] cases.” Williams v. Taylor, 529
U.S. 362, 405 (2000). And a decision is an unreasonable application of such law if
it “identifies the correct governing legal principle from [the] Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413.
However, “[a] state court’s determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the
state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
To demonstrate ineffective assistance of counsel, a petitioner must establish
that his counsel’s performance was “deficient” and that this performance
prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687 (1984).
When AEDPA applies, this review is “doubly deferential,” Knowles v. Mirzayance,
556 U.S. 111, 123 (2009), as the inquiry “is whether there is any reasonable
2 argument that counsel satisfied Strickland’s deferential standard,” Richter, 562
U.S. at 105.
1. As an initial matter, there is no merit to Chinchilla’s contention that AEDPA
deference is inapplicable to the California Court of Appeal’s prejudice analysis.
While the court did apply a state-law prejudice standard, that standard, contrary to
Chinchilla’s assertion, is not a “more likely than not” test. People v. Wilkins, 295
P.3d 903, 914 (Cal. 2013) (“We have made clear that a ‘probability’ in this context
does not mean more likely than not, but merely a reasonable chance, more than an
abstract possibility.”). Nor would the application of a more likely than not test
necessarily be inconsistent with Strickland. Richter, 562 U.S. at 112. Chinchilla
has thus failed to demonstrate how the state court’s analysis would have differed
had it applied Strickland and has failed to establish that its conclusion was contrary
to clearly established law. See DeWeaver v. Runnels, 556 F.3d 995, 997 (9th Cir.
2009) (“The state court need not have cited Supreme Court precedent or been
aware of it, ‘so long as neither the reasoning nor the result of the state-court
decision contradicts it.’” (alteration omitted)).
Additionally, Chinchilla’s reliance on Crace v. Herzog, 798 F.3d 840, 846
(9th Cir. 2015) is misplaced. There, we applied de novo review because the state
court misapprehended Strickland, citing it in support of a faulty presumption that
3 the jury would have returned the same verdict even if it had received the
instruction for the lesser-included offense. Crace, 798 F.3d at 846–47. The state
court here did not rely on such a presumption, instead holding that the jury’s
verdicts and findings demonstrate that the jury necessarily rejected the version of
events that Chinchilla’s co-defendant testified to. Accordingly, AEDPA deference
applies to the court’s conclusion that trial counsel’s failure to ask for the imperfect
self-defense instruction was not prejudicial to Chinchilla.
2. “In assessing prejudice under Strickland, the question is not whether a court
can be certain counsel’s performance had no effect on the outcome or whether it is
possible a reasonable doubt might have been established if counsel acted
differently.” Richter, 562 U.S. at 111. “Instead, Strickland asks whether it is
‘reasonably likely’ the result would have been different.” Id. (quoting Strickland,
466 U.S. at 693)).
We cannot conclude that the state court was unreasonable in holding that the
trial’s outcome would not have been different if the jury had been given an
imperfect self-defense instruction. Chinchilla’s co-defendant denied intending to
rob or assault the victims, whom he portrayed as the aggressors. He testified that
the victims caused him to fear for his life by driving “pretty fast” after him and
Chinchilla. Had the jury credited this testimony, the defendants may have been
4 able to satisfy the elements of imperfect self-defense. But, as the state court
reasoned, the jury’s verdicts and findings demonstrate that it rejected this version
of events; the jury found the defendants guilty of robbery and assault and
concluded that they acted with premeditation in attempting to murder the victims.1
Because fairminded jurists could disagree over whether it was reasonably likely
that the jury could still have found that the defendants were entitled to imperfect
self-defense, we may not disturb this holding. Richter, 562 U.S. at 101.
3. Even if Chinchilla could satisfy the prejudice prong, he would still need to
demonstrate that his trial counsel’s performance was constitutionally deficient.
Because the state court “explicitly declined to reach this [prong], we review it de
novo.” Crace, 798 F.3d at 852. Nonetheless, this review is “‘highly deferential’
and incorporate[s] a ‘strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance which, under the circumstances,
1 Appellee agrees that the state court reasoned that the jury factually rejected the co-defendant’s version of events. However, appellee also argues that the defendants were legally barred from asserting imperfect self-defense due to the fact that they committed robbery and assault and acted with premeditation. Chinchilla partially counters that imperfect self-defense and premeditation are not legally incompatible under California law. But even if Chinchilla was correct and this reasoning was part of the state-court decision, we cannot grant federal habeas relief based on a state court’s application of its own state law (absent exceptions inapplicable to this case). See Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007) (“[A] federal court may not overturn a conviction simply because the state court misinterprets state law.”). 5 might be considered sound trial strategy.’” Id. (quoting United States v. Span, 75
F.3d 1383, 1387 (9th Cir. 1996)). “A trial attorney’s failure to request a jury
instruction receives no deference, however, when it is based on a misunderstanding
of the law rather than a strategic decision to forgo one defense in favor of another.”
Id. (quoting Span, 75 F.3d at 1390).
The record here demonstrates that trial counsel implemented an
“all-or-nothing” strategy by attempting to counter the allegation that Chinchilla
aided and abetted his co-defendant, the actual shooter. At the very onset of her
closing statement, trial counsel argued to the jury that, “most importantly,” they
had to decide what they thought the co-defendant “did independently and what Mr.
Chinchilla did.” She contended that “there are very different approaches as to who
did what and what they should be held responsible for.”
Chinchilla’s selective reading of this transcript is unpersuasive. While his
trial counsel did assert that the state “overcharged” him, her statements, read in
context, merely acknowledged indisputable facts: Chinchilla was a gang member
and committed at least one count of robbery by taking the baseball hat at gunpoint.
These reasonable concessions were clearly made to buttress counsel’s central
argument that Chinchilla, while certainly guilty of some relatively minor crimes,
should not be found guilty of attempted premeditated murder.
6 Trial counsel’s strategy was sound under the circumstances, as the state’s
only avenue for convicting Chinchilla of attempted murder was proving
accomplice liability. It was therefore reasonable for counsel to devote her trial
strategy to countering this theory and thus attempting to prevent Chinchilla from
receiving multiple life sentences. See Crace, 798 F.3d at 852 (“In certain
circumstances, it may be reasonable for a defense attorney to opt for an ‘all-or-
nothing’ strategy, forcing the jury to choose between convicting on a severe
offense and acquitting the defendant altogether.”). Relying on a tenuous self-
defense argument may very well have detracted from this strategy.
Accordingly, even under de novo review, Chinchilla cannot establish that his
trial counsel performed deficiently. We therefore AFFIRM the district court’s
denial of Chinchilla’s petition for a writ of habeas corpus.
7 FILED Chinchilla v. Lewis, No. 16-55954 MAR 09 2018 BERZON, Circuit Judge, concurring in the judgment: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
I concur in the judgment, but for different reasons than those articulated in
the memorandum disposition.
First, I disagree as to the prejudice point, even under the deferential standard
mandated by the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C.
§ 2254(d). The jury did not entirely reject Chinchilla’s accomplice’s version of
events, as it acquitted on one of the robbery charges that was part of the alleged
aggressive behavior.
Further, the state court’s reliance on the findings of premeditation and
deliberation as factually incompatible with imperfect self-defense is unreasonable,
as there is no such factual incompatibility. “[T]he unreasonable but good faith
belief in having to act in self-defense. . . . reduce[s] an intentional, unlawful killing
from murder to voluntary manslaughter by negating the element of malice that
otherwise inheres in such a homicide.” People v. Rios, 23 Cal. 4th 450, 460-61
(2000) (internal quotation marks and emphasis omitted). A defendant may
subjectively but unreasonably believe he is in immediate danger, thereby negating
malice, yet react deliberately and with premeditation in countering the perceived
attack. See People v. Mendoza, 52 Cal. 4th 1056, 1069 (2011) (“Premeditation and
1 deliberation can occur in a brief interval. The test is not time, but reflection.
Thoughts may follow each other with great rapidity and cold, calculated judgment
may be arrived at quickly.”) (internal quotation marks omitted).1
Most importantly, an imperfect self-defense instruction would have given
the jury an option closely related to the self-defense instruction it was given, but
one in which the result was not acquittal but conviction of a lesser offense. A jury
that rejected the self-defense option might well accept the imperfect self-
defense—or, at least, there is a reasonable probability that it would. See Strickland
v. Washington, 466 U.S. 668, 694 (1984).
As to the question not decided by the state court, adequacy of representation,
however, I would hold that a competent lawyer might well have adopted the
strategy of keeping from the jury the attractive option of a lesser-included offense.
Attempted voluntary manslaughter based on imperfect self-defense could have
carried a sentence of eleven years on each count, Cal. Pen. Code § 193(a), a far
from insignificant sentence, which could have been run consecutively for the four
counts rather than concurrently.
I do not agree that Chinchilla’s attorney embraced an all-or-nothing defense
1 I would not address the appellee’s separate legal argument, as does the majority, see Mem. Dispo. at n.1, as the state court of appeals did not rely on it.
2 in the sense that she did not embrace Sotelo’s self-defense theory in part; she did.
In her closing argument, for example, she told the jury, “Just ask yourself is it
reasonable for Mr. Sotelo and Mr. Chinchilla to be in fear that night? Ask yourself
that question. Is it reasonable? Because when you read the jury instructions and
you deal with the self-defense instructions, that’s what it comes down to.”
But, again, a finding of self-defense results in an acquittal. The accomplice
evidence was fairly weak. An attorney could well have concluded that offering a
lesser included offense with a substantial sentence was too likely to provide an
attractive option to a jury, and that the better option was to seek an acquittal
primarily on grounds that Sotelo’s shooting was not reasonably predictable—but, if
it was, it was self-defense, and so neither defendant was culpable.
I therefore concur in the judgment.