Dontrell Collins v. Martin Gamboa

• Court: District Court, E.D. California
• Decided: November 5, 2025
• Docket: 1:25-cv-00206
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DONTRELL COLLINS, No. 1:25-cv-00206-KES-SKO (HC) 12 Petitioner, FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF 13 v. HABEAS CORPUS 14 MARTIN GAMBOA, [TWENTY-ONE DAY OBJECTION DEADLINE] 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. He filed a first amended petition on April 14, 2025, challenging a 19 2017 conviction for second degree murder and related charges. (Doc. 8.) Respondent filed an 20 answer to the petition on June 25, 2025. (Doc. 17.) Petitioner did not file a traverse. Upon review 21 of the pleadings, the Court finds that the petition is without merit and will recommend it be 22 DENIED. 23 I. STATE COURT PROCEDURAL HISTORY 24 Petitioner was convicted in the Kern County Superior Court on November 16, 2017, of 25 two counts of second degree murder (Cal. Penal Code § 187); two counts of gross vehicular 26 manslaughter while intoxicated (Cal. Penal Code § 191.5); two counts of driving while 27 intoxicated and causing injury (Cal. Vehicle Code § 23153(a) & (b)); one count of resisting an 28 executive officer (Cal. Penal Code § 69); and one count of committing a crime while in custody 1 (Cal. Penal Code § 653.75). (Doc. 14-20 at 175-78.1) On January 17, 2018, he was sentenced to 2 serve an indeterminate prison term of 73 years and four months to life. (Doc. 14-20 at 175-78.) 3 Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth 4 DCA”). On February 2, 2021, the Fifth DCA denied Petitioner’s claims of ineffective assistance 5 of counsel and insufficiency of the evidence. People v. Collins, 60 Cal. App. 5th 540, 546, 274 6 Cal. Rptr. 3d 775, 779 (2021). The court agreed with Petitioner that the trial court had erred in 7 applying the wrong standard to his Batson/Wheeler2 motion. Id. The court conditionally reversed 8 the judgment and remanded the case to the Kern County Superior Court to conduct the second 9 and third stages the Batson/Wheeler inquiry to determine whether the prosecutor violated 10 Petitioner’s due process rights in excusing a prospective Black juror. Id. On March 21, 2021, 11 Petitioner filed a petition for review in the California Supreme Court with respect to the appellate 12 court’s denial of his claims of ineffective assistance of counsel and insufficiency of the evidence. 13 (Doc. 14-26.) The California Supreme Court summarily denied the petition for review on April 14 21, 2021. (Doc. 14-27.) 15 On remand to the Kern County Superior Court, the trial court conducted steps two and 16 three of the Batson/Wheeler inquiry and found Petitioner had failed to prove purposeful 17 discrimination. (Doc. 14-33 at 108-15.) The trial court reinstated the judgment. (Doc. 14-33 at 18 115.) Petitioner appealed to the Fifth DCA. On November 1, 2023, the appellate court affirmed 19 the judgment. (Doc. 14-41.) Petitioner petitioned for review in the California Supreme Court. On 20 January 10, 2024, the California Supreme Court summarily denied the petition. (Doc. 14-43.) 21 II. FACTUAL BACKGROUND3 22 The evidence established Petitioner drove his vehicle at an extremely fast speed on a 23 highway with multiple stoplights. California Highway Patrol Officer Boshers first noticed 24 Petitioner’s vehicle and registered it on his radar at 95 miles per hour. Boshers made a “U-turn” 25

26 1 Citations are to ECF pagination. 2 Batson v. Kentucky, 476 U.S. 79 (1986); People v. Wheeler, 22 Cal.3d 258 (1978). 27 3 The Fifth DCA’s summary of facts in its unpublished opinion is presumed correct. 28 U.S.C. §§ 2254(d)(2), (e)(1). Therefore, the Court will rely on the Fifth DCA’s summary of the facts as set forth in 28 Collins, 60 Cal. App. 5th 540, 545–46. See Moses v. Payne, 555 F.3d 742, 746 (9th Cir. 2009). 1 to follow the vehicle but was unable to catch up. Multiple other people witnessed the incident. 2 One witness described Petitioner’s vehicle “driving really, really fast,” and saw Petitioner swerve 3 and almost lose control. He believed Petitioner drove through a red light at over 90 miles per 4 hour. 5 Another witness estimated Petitioner’s vehicle was traveling about 120 miles per 6 hour. The car was moving so fast it was “wobbl[ing] . . . .” The car drove straight through 7 a red light with other vehicles at the intersection. Another person witnessed Petitioner’s 8 vehicle speeding at “about a hundred miles an hour, jump[ ] up on the center divider, and 9 then c[o]me down off the divider and r[u]n into the back of another car” that was slowing 10 for a red light. The collision “caus[ed] both vehicles to explode,” engulfing the rear-ended 11 vehicle in flames. Two young women died in the fire and a third survived with serious, 12 long-term injuries and anguish. 13 A roadside investigation near the collision concluded with Petitioner’s arrest. 14 During the investigation, Petitioner described driving along the road, trying to slow down, 15 engaging the brakes, and colliding with another vehicle from behind. The law 16 enforcement officer conducting the investigation believed Petitioner had driven under the 17 influence of alcohol (DUI). A preliminary breath test registered at “.11 percent” “breath 18 alcohol content.” A later blood test registered a “.071 percent . . . blood alcohol content” 19 positive for PCP. 20 Petitioner was then booked into the local jail. A few hours later, he was involved 21 in a physical altercation with a guard at the jail. A few days later he was interviewed by a 22 law enforcement officer. In response to a question about how “often he drank and drove,” 23 he responded, “[T]oo many times.” 24 Petitioner’s girlfriend testified at the trial. She stated she had warned him not to 25 drive “high” on a near daily basis. An investigator from the Department of Motor 26 Vehicles also testified. The investigator produced four forms Petitioner had signed in the 27 five years preceding this collision. Each form included a warning about the dangers of 28 drinking and driving. His signature acknowledged he read each warning. 1 Dr. Michael Musacco, a psychologist, testified about Petitioner’s mental health. 2 He testified Petitioner suffered from “a persisting substance-induced mental illness.” He 3 opined Petitioner was capable of understanding the nature and quality of his actions and 4 the difference between right and wrong. In response to the prosecutor's questioning, Dr. 5 Musacco agreed Petitioner knew the nature and quality of his actions and the difference 6 between right and wrong when the collision occurred. 7 III. DISCUSSION 8 A. Jurisdiction 9 Relief by way of a petition for writ of habeas corpus extends to a person in custody 10 pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or 11 treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 12 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as 13 guaranteed by the United States Constitution. The challenged conviction arises out of the Kern 14 County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 15 2254(a); 28 U.S.C.§ 2241(d). 16 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 17 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its 18 enactment. Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases 19 filed after statute’s enactment). The instant petition was filed after the enactment of the AEDPA 20 and is therefore governed by its provisions. 21 B. Legal Standard of Review 22 A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless 23 the petitioner can show that the state court’s adjudication of his claim: (1) resulted in a decision 24 that was contrary to, or involved an unreasonable application of, clearly established Federal law, 25 as determined by the Supreme Court of the United States; or (2) resulted in a decision that “was 26 based on an unreasonable determination of the facts in light of the evidence presented in the State 27 court proceeding.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); 28 Williams, 529 U.S. at 412-413. 1 Under Section 2254(d)(1), a state court decision is “contrary to” clearly established 2 federal law “if it applies a rule that contradicts the governing law set forth in [the Supreme 3 Court’s] cases, or “if it confronts a set of facts that is materially indistinguishable from a 4 [Supreme Court] decision but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 5 (2005) (citing Williams, 529 U.S. at 405-406). This court looks to “Supreme Court holdings at 6 the time of the state court’s last reasoned decision” as “the source of clearly established Federal 7 law for the purposes of AEDPA.” Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005). A 8 Supreme Court precedent is not clearly established law under section 2254(d)(1) unless the Court 9 “squarely addresses the issue” in the case before the state court. Wright v. Van Patten, 552 U.S. 10 120, 125–26 (2008) (per curiam) (concluding that a state court had not unreasonably applied 11 federal law to a claim of prejudice under Strickland where the logic of petitioner’s argument 12 would have required the extension of the Supreme Court’s inherent prejudice doctrine to a new 13 context); Carey v. Musladin, 549 U.S. 70, 76–77 (2006) (same). While “[c]ertain principles are 14 fundamental enough that when new factual permutations arise, the necessity to apply the earlier 15 rule will be beyond doubt,” Yarborough v. Alvarado, 541 U.S. 652, 666 (2004), “when a state 16 court may draw a principled distinction between the case before it and Supreme Court caselaw, 17 the law is not clearly established for the state-court case.” Murdoch v. Castro, 609 F.3d 983, 991 18 (9th Cir. 2010). “‘[I]f a habeas court must extend a rationale before it can apply to the facts at 19 hand,’ then by definition the rationale was not ‘clearly established at the time of the state court 20 decision.’” White v. Woodall, 572 U.S. 415, 426 (2014) (quoting Yarborough, 541 U.S. at 666). 21 In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that 22 an “unreasonable application” of federal law is an objective test that turns on “whether it is 23 possible that fairminded jurists could disagree” that the state court decision meets the standards 24 set forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable 25 application of federal law is different from an incorrect application of federal law.’” Cullen v. 26 Pinholster, 563 U.S. 170, 203 (2011). The petitioner “must show far more than that the state 27 court’s decision was ‘merely wrong’ or ‘even clear error.’” Shinn v. Kayer, 592 U.S. 111, 118 28 (2020) (quoting Virginia v. LeBlanc, 582 U. S. 91, 93 (2017) (per curiam)). Rather, a state 1 prisoner seeking a writ of habeas corpus from a federal court “must show that the state court’s 2 ruling on the claim being presented in federal court was so lacking in justification that there was 3 an error well understood and comprehended in existing law beyond any possibility of fairminded 4 disagreement.” Richter, 562 U.S. at 103 (emphasis added); see also Kayer, 592 U.S. at 118. In 5 other words, so long as fairminded jurists could disagree with each other as to whether the state 6 court was correct, the state court decision is not unreasonable under AEDPA. Congress “meant” 7 this standard to be “difficult to meet.” Richter, 562 U.S. at 102. 8 Section 2254(d)(2) pertains to state court decisions based on factual findings. Davis v. 9 Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). 10 Under § 2254(d)(2), a federal court may grant habeas relief if a state court’s adjudication of the 11 petitioner’s claims “resulted in a decision that was based on an unreasonable determination of the 12 facts in light of the evidence presented in the State court proceeding.” Wiggins v. Smith, 539 13 U.S. 510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). The federal habeas 14 court must give “substantial deference” to the state court. Brumfield v. Cain, 576 U.S. 305, 314 15 (2015). “Factual determinations by state courts are presumed correct” and the petitioner bears the 16 burden of overcoming the presumption with “clear and convincing evidence to the contrary.” 17 Miller-El, 537 U.S. at 340; 28 U.S.C. § 2254(e)(1). A state court’s factual finding is unreasonable 18 when it is “so clearly incorrect that it would not be debatable among reasonable jurists.” Jeffries, 19 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, 20 Maddox v. Taylor, 543 U.S. 1038 (2004). If “‘[r]easonable minds reviewing the record might 21 disagree’ about the finding in question, ‘. . . that does not suffice’” to prove the lower court’s 22 factual determination was unreasonable. Wood v. Allen, 558 U.S. 290, 301 (2010) (alteration in 23 original) (quoting Williams v. Taylor, 529 U.S. 362, 410 (2000)). 24 To determine whether habeas relief is available under § 2254(d), the federal court looks to 25 the last reasoned state court decision as the basis of the state court’s decision. See Ylst v. 26 Nunnemaker, 501 U.S. 979, 803 (1991); Andrews v. Davis, 994 F.3d 1042, 1107 (9th Cir. 2019) 27 (en banc). “[A]lthough we independently review the record, we still defer to the state court’s 28 ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). 1 The prejudicial impact of any constitutional error is assessed by asking whether the error 2 had “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. 3 Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007) 4 (holding that the Brecht standard applies whether or not the state court recognized the error and 5 reviewed it for harmlessness). 6 C. Review of Claims 7 Petitioner claims: 1) The state court unreasonably determined that Petitioner had failed to 8 prove purposeful discrimination in the prosecutor’s exercise of a peremptory challenge; 2) The 9 state court unreasonably found that sufficient evidence supported the finding that Petitioner acted 10 with implied malice; and 3) The state court unreasonably determined that counsel did not render 11 ineffective assistance by failing to object to the cross-examination testimony of Dr. Musacco and 12 the prosecutor’s closing remarks concerning Dr. Musacco’s opinion. 13 1. Ground One - Batson Challenge 14 a. Procedural Background 15 Petitioner contends the prosecutor purposefully discriminated against him by exercising a 16 peremptory challenge in violation of his constitutional rights pursuant to Batson v. Kentucky, 476 17 U.S. 79 (1986). Petitioner claims the state court erred in denying his Batson challenge concerning 18 prospective juror Margo S. The claim was first presented on direct appeal. The appellate court 19 determined that although the trial court had conducted a Batson hearing, it erred in conducting the 20 first step. (Doc. 14-25.) The appellate court remanded the case to conduct the second and third 21 steps, if it were still possible to do so. On remand, the trial court concluded it could do so and 22 conducted a Batson hearing. (Doc. 14-41.) Ultimately, the trial court found Petitioner had failed 23 to prove purposeful discrimination. The Fifth DCA affirmed in a reasoned decision. (Doc. 14-41.) 24 The California Supreme Court summarily denied review. 25 b. Factual Background of Peremptory Challenge 26 The appellate court summarized the facts underlying the peremptory challenge as follows:

27 Jury selection in this case began with direct questioning to 17 prospective jurors. The remaining prospective jurors from the venire were asked to pay attention to 28 each question and answer so they would be “ready to respond with answers 1 applicable to [the] questions.”

2 ….

3 The court asked each of the 17 jurors several questions, including whether they personally or a close friend or family member was “charged with or accused of 4 committing a crime ....” Juror 4237967's brother was arrested for a crime. The juror formed an opinion about whether the brother was treated fairly or unfairly 5 and could set aside the brother's experience in serving as a juror in this case.

6 Juror Michael B. himself was involved with a crime. He answered he was convicted and the case was dismissed. Those answers were not clarified. He never 7 formed an opinion about whether he was treated fairly and could set aside his experience. 8 Juror Betty B. had two sons with cases involving DUI charges. One of her sons 9 was twice imprisoned. She believed she could set aside their experiences and serve fairly as a juror. 10 Juror 4301270's stepson was arrested once. Her own son was convicted of a DUI 11 by plea. She formed no opinion on whether they were treated fairly and could set their experiences aside and serve impartially. She would not hold against Collins 12 his exercising his right to a trial instead of pleading guilty.

13 Juror 4552487 was previously convicted of a DUI. The juror formed an opinion about whether he or she was treated fairly and could set aside his or her own 14 experience in serving as a juror. The juror would not hold against Collins his exercising his right to a trial. 15 Juror John V. himself was convicted of DUI by plea. He believed he was treated 16 fairly. His experience would not influence his role as a juror. He would not hold against Collins his exercising his right to a trial. 17 Juror 4462349's parents were involved with a crime. The juror did not form an 18 opinion about whether his or her parents were treated fairly and could set aside his or her experience and serve fairly as a juror. 19 The jurors introduced themselves after answering the court's initial inquiries. Juror 20 Brad D. worked for Kern County Behavioral Health and Recovery Services. He had training or experience with detecting or recognizing mental illness. He thought 21 he could set aside his training and rely solely on the evidence in this case.

22 The prosecutor collectively asked the same 17 jurors if “anybody ... had a negative experience with law enforcement?” Only Betty B. replied affirmatively. 23 The prosecutor then stated he believed “that if you've been charged with a crime or 24 you've been convicted or something that everyone has an opinion whether they've been treated fairly or not ....” He followed up by directly asking Juror 4552487 if 25 he or she was treated fairly. The juror responded, “Yes.”

26 After this initial questioning concluded, the parties began exercising peremptory challenges against the jurors seated in the 12-person jury box. The potential 27 alternates, seated outside the box, would take the place of each excused juror so that there were always 12 jurors in the jury box. 28 1 Each party exercised three peremptory challenges, reducing the prospective jurors in the box to 11. Each of the above identified and discussed jurors remained 2 among the 11. Seven more jurors were then seated to fill the prospective panel with 18 total jurors, including Margo S. 3 Margo S. introduced herself as “a psych tech at the Department of Corrections.” 4 The court followed up by asking if she “[w]ould ... be able to set aside [her] [professional] training and experience” while serving as a juror in this case. She 5 twice answered, “Yes.”

6 The court then asked the seven new jurors if they or someone close to them had “ever been charged with or accused of committing a crime ....” Margo S. replied 7 she was “charged with a petty theft when [she] was younger, and [had] a couple of cousins who [were] in prison ....” She explained one of her cousins “attacked his 8 mom” during “a mental breakdown” and the other “had assault charges.” She was not close to her cousins and could set aside her own as well as their experiences in 9 serving as a juror.

10 In response to Collins's attorney, Margo S. divulged her familiarity with mental health medications. She added that she would like to correct any evidence during 11 the trial that conflicted with her training but would not do so if that was disallowed. 12 When the prosecutor resumed questioning, he directly asked two of the seven new 13 jurors if they were treated fairly by law enforcement. [Fn.5] He then collectively asked the others if they had any negative experiences with law enforcement. 14 Margo S. did not respond.

15 [Fn.5] Those two jurors had described experiences with law enforcement that are not otherwise relevant. 16 After the parties concluded their questioning, the prosecutor “accept[ed] the panel 17 as presently constituted.” At that point, the panel consisted of every juror identified above. Margo S. was in seat 14. 18 Collins did not accept the panel and instead excused one juror, followed by the 19 prosecutor responding in kind. Margo S. then moved into seat two. After Collins excused another juror, the prosecutor excused Margo S., prompting the present 20 motion.

21 ….

22 Outside the jury's presence, Collins's attorney explained Margo S. was “obviously an African American woman ... which is ... Mr. Collins' racial group.” The 23 challenge was premised on the fact counsel “didn't hear anything in her comments that would indicate a race-neutral reason for excusing her ....” 24 The court responded it must determine if “the excusal led to a reasonable inference 25 of a discriminatory nature and, by virtue of deduction, there was no other reason under which the prospective juror should have been excused or released.” The 26 court subsequently denied the motion, finding Collins “failed to demonstrate a prima facie case that would lead one to reasonably believe that the only reason Ms. 27 [S.] was released from this panel is for a discriminatory purpose ....”

28 The court added, “[B]ased on the direct observations that the Court had in having 1 the opportunity to question Ms. [S.], it did appear to the Court that not only based on her profession does she have some understanding of potential evidence that 2 might be presented in this case, even though she can set it aside, but just as importantly, if not more importantly, she herself was prosecuted for petty theft, as 3 she put it, when she was younger, and she also has cousins that have been incarcerated, two in particular, that she shared with us, one being a result of 4 assaulting his or her mother and another for assaultive allegations.” “Those ... circumstances ... certainly would lend itself to excusing Ms. [S.] for reasons other 5 than” discrimination.

6 The prosecutor agreed with the court and added, “[S]he indicated that one of her relatives ... was convicted of charges as a result of an assault that resulted from 7 what she termed a mental breakdown, which is psychologically similar, but not the same situation as the defense is arguing in this case.” He also noted that 8 “prospective juror number one [was] also African-American and the People accepted the panel with her on it.” 9 People v. Collins, 60 Cal. App. 5th 540, 547-50 (2021). 10 c. Appellate Court’s Review of First Batson Hearing 11 The appellate court first noted that the trial court had applied the wrong standard by 12 applying a “no other reason” or “only reason” standard to the first-stage review. Collins, 60 13 Cal.App.5th at 552. The appellate court then conducted a review of the record to determine the 14 legal question whether Petitioner’s showing supported an inference that the prosecutor excused a 15 juror for an improper reason. Id. Upon review, the appellate court concluded that the trial court’s 16 three race-neutral reasons for striking Margo S. were unsupported and contradicted by the record. 17 Id. at 552-555. The court found that the facts were sufficient to raise a reasonable inference of 18 discrimination and determined that the trial court erred in concluding Petitioner had failed to 19 show a prima facie case. Id. at 555. The court remanded the matter to the trial court to proceed 20 with steps two and three of the Batson test, if feasible. Id. at 555-556. 21 d. Remand to Trial Court 22 The appellate court summarized the remand to the trial court as follows: 23 On remand, the prosecutor filled approximately 300 pages [Fn.3] in the record 24 explaining his thought process during jury selection. He also introduced into evidence his contemporaneous notes on each juror. [Fn.4] At the outset, the 25 prosecutor noted the juror-at-issue's “excusal ... was intricately linked to the facts of [the] case” and mentioned “jury selection happens very fast” so his “notes” did 26 not encapsulate “exactly what [he] was thinking .....”

27 [Fn.3] Our background summarizes the prosecutor's remarks for context. It is not a verbatim recitation of every individual point or word. 28 1 [Fn.4] For the prospective juror at issue, the prosecutor's notes verbatim read: “Psyc Tech At CDC. Single 7yrold daughter. Cartoon te-shirt. 2 Responds with noods. Deales with mental health inmates[.]” (Multiple errors in original.) 3 The prosecutor emphasized that the biggest “issue in this case” was mental 4 health—“was it PCP or was it ... schizophrenia?” The prosecutor believed Collins's mental health defense—if presented—was based on “document[ation] by ... mental 5 health workers in [a] correctional facility.” These workers, he explained, were “like” the prospective juror who worked as a “psych tech” at the California 6 Department of Corrections and Rehabilitation.

7 The prosecutor was “very, very concerned about the fact that [he would] have to,” to undermine a probable defense, “attack [the prospective juror's] profession ... 8 indirectly ....” He found it challenging to discredit “mental health workers in correctional facilities” with the prospective juror sitting on the jury. He believed 9 she was “more inclined to accept” a mental health defense because the evidence “line[d] up with the world she [knew].” The fact her “own cousin [was] 10 incarcerated” for a crime “result[ing] from ... a mental breakdown ... reinforc[ed]” that concern. 11 The reason the prosecutor did not specifically question the prospective juror, he 12 said, was because he neither wanted to lend credence to the mental health defense nor did he wish to ask an objectionable question relating to “her perspectives ....” 13 He also stated, “[T]hat field had sort of been plowed,” [Fn.5] meaning he felt he “had enough information ... to make an informed decision and ... additional 14 follow-up” would not help. [Fn.6]

15 [Fn.5] The “field” presumably refers to the prospective juror's answer she could set her profession and experience aside by relying solely on the 16 evidence presented in court.

17 [Fn.6] The prosecutor explained he had “the luxury ... of being able to [ask questions] after the Court's questions and the defense questions ....” 18 Another issue for the prosecutor was the prospective juror's ambiguity about her 19 ability to follow the court's instructions. For example, while she answered she could rely solely on the evidence in the case, she also said “if it wasn't correct, 20 [she] would show proof of what they said wasn't correct, like if [she] could pull it up on the Internet or something [and] say look, this was wrong ....” Also troubling 21 was the fact “the rest of the jurors” knew about her profession because they might seek her opinion notwithstanding the court's instructions. 22 Last, the prosecutor explored the differences he discerned between the prospective 23 juror at issue and other jurors. One juror with experience in mental health was not objectionable because he did not work in a “correctional” setting, like the 24 prospective juror. Another's relative's crime was neither violent nor “stemm[ed] from mental illness,” unlike the prospective juror's cousin. 25 Finally, another juror comparable to the prospective juror was strategically deemed 26 acceptable because “it was extremely unlikely that the defense was going to keep [that] juror.” The prosecutor noted numerous other “offsetting characteristics” 27 between various jurors throughout the hearing. [Fn.7]

28 [Fn.7] The prosecutor explained he had “the luxury ... of being able to [ask 1 questions] after the Court's questions and the defense questions ....”

2 A juror with a prior “first-degree burglary” conviction deemed acceptable, for example, “[took] the cake” “if ... measur[ed] ... against” the prospective juror's 3 “petty theft prior ....” Admittedly, the prosecutor “ha[d] a hard time explaining why” petty theft in particular “resona[ted]” as a concern. 4 In sum, the prosecutor stated he “evaluat[ed a potential juror's] risk” “ in totality.” 5 Relative to the prospective juror, neither the “prior petty theft” nor “the cousin who was incarcerated” was “determinative.” Her “position as a psych tech, 6 combined with other things ... related to [her] profession,” however, were a dealbreaker. 7 Arguments 8 Collins's attorney first argued he was at “a disadvantage” because he “wasn't 9 present at the trial.” [Fn.8] He lamented the prosecutor's ability “to comment ... on ... demeanor,” because he himself did not “have the ability to do that.” Multiple 10 times, he highlighted inconsistencies and pointed out flaws in the prosecutor's logic. 11 [Fn.8] The prosecutor explained he had “the luxury ... of being able to [ask 12 questions] after the Court's questions and the defense questions ....”

13 For example, Collins's attorney noted the prosecutor believed a juror whose parents “were [both] arrested” was more favorable than the prospective juror 14 whose “cousins were arrested ....” He also argued a “first-degree burglary” conviction was a “much greater concern” than “petty theft ....” 15 Ultimately, Collins's attorney reemphasized his “disadvantage” from not being “in 16 the courtroom” during the trial. [Fn.9] He concluded by claiming “the Court [was] in the position of assessing the credibility of reasons that originated with the 17 Court.”

18 [Fn.9] This comment specifically related to the prosecutor's written note the prospective juror was wearing a cartoon-type “T-shirt.” The prosecutor, 19 for his part, disavowed relying on the T-shirt to justify the strike because he had no “independent recollection of that fact ....”. The court likewise 20 “set[ ] aside the T-shirt observation ....”

21 The prosecutor directly rebutted some of Collins's counsel's criticisms. He added that the original trial counsel “could have [been] called ... as a witness” if 22 necessary.

23 Ruling

24 The court began by finding there was “a sufficient record ... to adequately” rule on the issues, partly because the prospective juror's “demeanor while in court [was] 25 not ... an issue.” In other words, the written record was sufficient, and courtroom observations of the prospective juror were immaterial. It acknowledged it “must 26 determine the genuineness of the [prosecutor's] proffered explanations” and explained it had “observed the demeanor and sincerity of the prosecutor” 27 “throughout [the] hearing ....”

28 In answering that inquiry, the court credited the prosecutor's concern about “the ... 1 anticipated defense involving mental illness.” The credited concern was buttressed by the fact the prosecutor filed “in limine motions,” prior to jury selection, seeking 2 to limit “mental illness” evidence. The court also accepted the prosecutor's “explanation ... as to why he did not ask certain questions” of the prospective 3 juror.

4 Finally, the court agreed with the prosecutor “the differences” between the prospective juror at issue and the other juror with a “similar profession[ ]” “were 5 significant,” i.e., working in “a custodial setting” versus “a non-custodial setting.” The court subsequently concluded the prosecutor “appear[ed] credible” in 6 explaining “his reasons for accepting and excusing jurors in this case.” It then reinstated the judgment as directed. [Fn.10] 7 [Fn.10] This comment specifically related to the prosecutor's written note the 8 prospective juror was wearing a cartoon-type “T-shirt.” The prosecutor, for his part, disavowed relying on the T-shirt to justify the strike because he had no 9 “independent recollection of that fact ....”. The court likewise “set[ ] aside the T- shirt observation ....” 10 11 People v. Collins, 2023 WL 7177555, at *2-4 (Cal.Ct.App. 2023), review denied (Jan. 10, 2024). 12 e. Appellate Court Decision 13 The California Court of Appeal determined that the trial court did not err in finding it 14 could proceed with a full Batson inquiry or in concluding there was no discrimination. In the last 15 reasoned decision, the appellate court stated as follows:

16 I. Motion Properly Concluded

17 Collins argues the trial court erred in denying, after remand, a motion for new trial. The People contend “[t]he trial court did not abuse its broad discretion” in denying 18 the motion. We agree with the People.

19 A. Additional Background

20 After remand, and prior to the hearing summarized above, Collins's attorney filed a nonstatutory motion for new trial. The motion asserted a new trial was warranted 21 “due to the passage of time,” because “an accurate credibility assessment [could not] be conducted,” and because “the prosecutor [was] not credible ....” 22 The trial court denied the motion, reasoning it was not “impossible for [it] to judge 23 the sincerity of any explanation the prosecutor” might provide and a sufficient record existed to allow counsel on remand “to participate in” the Batson/Wheeler 24 motion. It later repeated a similar ruling during the full hearing, as described above, because counsel renewed the argument. 25 B. Analysis 26 The decision to grant or deny a new trial due to an inability to conclude a 27 Batson/Wheeler motion after remand presents a mixed question of law and fact. A reviewing court independently answers the question. (See People v. Tran (2022) 28 13 Cal.5th 1169, 1231; People v. Ault (2004) 33 Cal.4th 1250, 1261-1262 1 [“protect[ing a] party's right to a fully impartial jury” requires “independent review of the trial court's reasons for denying a new trial motion”].) 2 Here, we do not find a new trial was justified due to the passage of time or an 3 inability to assess the prosecutor's credibility. The only piece missing from jury selection was Collins's trial counsel. The judge was present, the prosecutor was 4 present, Collins was present, a complete transcript existed, and the prosecutor's notes were available. Apparently, Collins's original trial counsel was also available 5 if needed for investigation or testimony. [Fn.11]

6 [Fn.11] When, after remand, the prosecutor suggested Collins's trial counsel was available “as a witness,” there was no objection or refutation. 7 It is true that Collins's counsel after remand was new to the case. That does not 8 mean, however, it was impossible to investigate the matter through Collins himself, the original trial attorney, any other person present during jury selection, 9 and the record itself. (Cf. People v. Johnson (2006) 38 Cal.4th 1096, 1102 [unavailability of original trial judge “does not make a limited remand 10 impossible.”].)

11 Collins's last point—that the prosecutor was not credible—is simply irrelevant to whether the record is sufficient to proceed with concluding a Batson/Wheeler 12 motion after remand. [Fn.12] Credibility is the ultimate issue at step three, which we turn to next. [Fn.13] 13 [Fn.12] Collins also asserts “[t]he [trial] court [originally] provided the 14 prosecutor with a roadmap of reasons it thought acceptable, so the court [was] now in a position to evaluate itself, which is an impossible task.” We 15 disagree. Even if we assume the prosecutor simply parroted the trial court, that does not mean the prosecutor's credibility was neither not at issue nor 16 impossible to discern, as discussed post.

17 [Fn.13] It does not appear Collins challenges the step two inquiry, i.e., that the prosecutor provided a race-neutral rationale. Were we to address the 18 issue, we would readily find the prosecutor's rationale was race-neutral.

19 II. No Error in Finding Prosecutor Credible

20 “At the third step of the Batson/Wheeler analysis, the trial court evaluates the credibility of the prosecutor's ... explanation. Credibility may be gauged by 21 examining factors including but not limited to ‘“the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the 22 proffered rationale has some basis in accepted trial strategy.”’” [Fn.14] (People v. Gutierrez (2017) 2 Cal.5th 1150, 1168 (Gutierrez).) 23 [Fn.14] “The Constitution forbids discriminatory strikes against jurors in 24 all cases, civil and criminal, and applies equally to defendants, plaintiffs, and prosecutors alike.” (Collins, supra, 60 Cal.App.5th at p. 551, fn.7.) We 25 use language referring to prosecutors simply because that is the situation in this case. 26 “‘“[T]he decisive question”’” is whether the prosecutor “‘“should be believed. 27 There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the [prosecutor.]”’ [Citation.] ‘A trial court is best 28 situated to evaluate ... the credibility of the prosecutor ....’” (People v. Baker 1 (2021) 10 Cal.5th 1044, 1077 (Baker).) “‘[W]hen the trial court makes a sincere and reasoned effort to evaluate [credibility], the reviewing court defers to its 2 conclusions on appeal, and examines only whether substantial evidence supports them.’” (Ibid.; Miller-El, supra, 537 U.S. at p. 340 [“‘[T]he trial court's decision 3 on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal’ and will not be overturned unless clearly 4 erroneous.”].)

5 The trial court in this case did not err in finding the prosecutor credible. The prosecutor's explanations, at the time the original objection was made, and after 6 remand, remain consistent. Importantly, they are consistent with the prosecutor's contemporaneous notes about the prospective juror, suggesting strongly they were 7 not the product of afterthought.

8 The prosecutor's concerns about mental health evidence and the prospective juror's reluctance or willingness to follow the court's instructions are legitimate. Although 9 in the prior appeal we found logic lacking on these points, especially when compared to other jurors, we did not assess the prosecutor's genuineness or 10 sincerity.

11 Indeed, we explicitly acknowledged “the validity of the prosecutor's justification is not relevant to defeating a prima facie case” at step one. (Collins, supra, 60 12 Cal.App.5th at p. 554, fn. 11.) We also noted “‘“[a] reason that makes no sense is nonetheless”’ a valid reason as long as it is genuine and nondiscriminatory.” 13 (Ibid.) That applies well to the prosecutor's most questionable rationale: the prospective juror's prior petty theft. [Fn.15] 14 [Fn.15] Again, it is unclear if the petty theft was indeed a prior. How the 15 case resolved, or if there even was a case, is not disclosed in the record.

16 The prosecutor himself acknowledged explaining why petty theft was more concerning than first degree burglary was difficult to articulate. We find it hard to 17 understand. Were this the only rationale, it might not withstand scrutiny. The prosecutor, however, disavowed ascribing determinative weight to any singular 18 concern, focusing instead on a juror's potential “in totality.”

19 The judge credited the prosecutor's total explanation, particularly the prospective juror's experience with mental health in a custodial setting. Having reviewed the 20 entire record, we find substantial evidence supports that conclusion. [Fn.16] (Baker, supra, 10 Cal.5th at p. 1077.) 21 [Fn.16] We previously engaged in comparative juror analysis in the prior 22 appeal. (E.g., Collins, supra, 60 Cal.App.5th at pp. 548-555.) That analysis, in our view, does not and cannot conclusively answer whether the 23 prosecutor in this case was credible. (Cf. Gutierrez, supra, 2 Cal.5th at p. 1174 [“Court of Appeal erred in refusing to undertake comparative juror 24 analysis.”].)

25 Beyond substantial evidence, we find no occasion to conclude the prosecutor was less than truthful. Although the prosecutor's repeated 26 references to “prior petty theft” lack a certain logic, in our view that is not fatal to his credibility on this record. (See Collins, supra, at 60 Cal.App.5th 27 at p. 553 [prospective juror “‘charged with a petty theft when [she] was younger,’ [but] ... never asked how the charges were resolved” nor did 28 record “otherwise disclose the answer[ ]”]; People v. Stanley (2006) 39 1 Cal.4th 913, 936 [“ ‘[a] reason that makes no sense is nonetheless’ ” a valid reason as long as it is genuine and nondiscriminatory.].) 2 3 Collins, 2023 WL 7177555, at *4-5. 4 f. Federal Standard 5 Racial discrimination by the state in jury selection offends the Equal Protection Clause. 6 Miller–El v. Dretke, 545 U.S. 231, 238 (2005). A criminal defendant is denied equal protection 7 of the law if he is indicted by a grand jury or tried by a petit jury from which members of his race 8 have been excluded because of their race. Eubanks v. Louisiana, 356 U.S. 584, 585 (1958). 9 Purposeful discrimination on the basis of race or gender in the exercise of peremptory challenges 10 violates the Equal Protection Clause of the United States Constitution. See Batson v. Kentucky, 11 476 U.S. 79, 85 (1986); Johnson v. California, 545 U.S. 162 (2005). A defendant, however, has 12 no right to a “petit jury composed in whole or in part of persons of his own race.” Batson, 476 13 U.S. at 85 (quoting Strauder v. West Virginia, 100 U.S. 303, 305 (1879)). Rather, a defendant 14 has the right to be tried by a jury whose members are selected pursuant to nondiscriminatory 15 criteria. Id. at 85–86 (citing Martin v. Texas, 200 U.S. 316, 321 (1906)). 16 A Batson challenge involves a three-step analysis:

17 First, the movant must make a prima facie showing that the prosecution has engaged in racially discriminatory use of a peremptory challenge. Second, once the trial 18 court decides a prima facie case has been established, the burden shifts to the prosecutor to articulate a race-neutral explanation for the challenges. Third, the trial 19 court must determine whether the defendant has established purposeful discrimination. If the defendant fails to establish a prima facie case, the burden does 20 not shift to the prosecution, and the prosecutor is not required to offer an explanation for the challenge. 21 22 Tolbert v. Gomez, 190 F.3d 985, 987-88 (9th Cir.1999) (internal citations omitted). 23 Here, the state courts determined that Petitioner had established a prima facie case. Thus, 24 the court proceeds to the second and third steps of the Batson analysis. 25 At the second step, “the burden of production shifts to the proponent of the strike to come 26 forward with a race-neutral explanation” for it. Purkett v. Elem, 514 U.S. 765, 767 (1995) (per 27 curiam). The prosecutor need not give one that is “persuasive, or even plausible,” but it must not 28 offend equal protection. Id. at 768; see also Rice v. Collins, 546 U.S. 333, 338 (2006) (“[S]o long 1 as the reason is not inherently discriminatory, it suffices.”). “Unless a discriminatory intent is 2 inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.” Purkett, 3 514 U.S. at 768 (citation omitted). 4 At the third step, the court has “the duty to determine if the defendant has established 5 purposeful discrimination.” Batson, 476 U.S. at 98. In making that determination, the trial court 6 must evaluate the “persuasiveness” of the prosecutor's articulated reasons. Miller-El v. Cockrell, 7 537 U.S. 322, 338 (2003); Purkett, 514 U.S. at 768. The court “must undertake ‘a sensitive 8 inquiry into such circumstantial and direct evidence of intent as may be available.’” Batson, 476 9 U.S. at 93 (quoting Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977)). It 10 has a duty to “decide not only whether the reasons stated are race-neutral, but whether they are 11 relevant to the case, and whether those stated reasons were the prosecutor's genuine reasons for 12 exercising a peremptory strike, rather than pretexts invented to hide purposeful discrimination.” 13 Green v. LaMarque, 532 F.3d 1028, 1030 (9th Cir. 2008). 14 The critical issue at the third step is the prosecutor’s credibility. See Hernandez v. New 15 York, 500 U.S. 352, 365 (1991); Batson, 476 U.S. at 98 n.21. Factors by which credibility can be 16 measured include, among others, “the prosecutor's demeanor; ... how reasonable, or how 17 improbable, the explanations are; and ... whether the proffered rationale has some basis in 18 accepted trial strategy.” Miller-El, 537 U.S. at 339. The “evaluation of the prosecutor's state of 19 mind based on demeanor and credibility lies ‘peculiarly within a trial judge's province.’” Id. 20 (quoting Wainwright v. Witt, 469 U.S. 412, 428 (1985)). Accordingly, considerable deference is 21 due that determination. See Rice, 546 U.S. at 341-42 (that “[r]easonable minds” might disagree 22 about prosecutor's credibility “does not suffice to supersede the trial court's credibility 23 determination”); Miller-El, 537 U.S. at 340. 24 A comparative analysis of the challenged jurors and those who went unchallenged may 25 show that race-neutral reasons are a pretext for discrimination. See Miller-El v. Dretke, 545 U.S. 26 231, 241 (2005); Kesser v. Cambra, 465 F.3d 351, 358 (9th Cir. 2006) (en banc). “Peremptory 27 challenges cannot be lawfully exercised against potential jurors of one race unless potential jurors 28 of another race with comparable characteristics are also challenged.” McClain v. Prunty, 217 F.3d 1 1209, 1221 (9th Cir. 2000). Comparative-juror analysis is the “centerpiece” of the Batson inquiry. 2 Boyd, 467 F.3d at 1150. Batson and its progeny don’t “require trial courts to conduct a 3 comparative juror analysis,” however. Murray, 745 F.3d at 1005; see also Sifuentes v. Brazelton, 4 825 F.3d 506, 522 (9th Cir. 2016) (as amended) (reviewing Batson claim under AEDPA 5 deference even though state court did not conduct comparative-juror analysis). Rather, such 6 analysis “is an important means for federal courts to review a trial court's ruling in a Batson 7 challenge.” Murray, 745 F.3d at 1005. 8 In reviewing a state court’s Batson determination, a federal habeas court “review[s] the 9 relevant portions of the record and use[s] ordinary analytic tools to evaluate the prosecutor’s race- 10 neutral explanations” to determine whether the state court’s decision was “based on an 11 unreasonable determination of the facts in light of the evidence.” Sifuentes, 825 F.3d at 517-18. It 12 considers the following factors:

13 • statistical evidence about the prosecutor's use of peremptory strikes against [minority] prospective jurors as compared to white prospective jurors in the case; 14 • evidence of a prosecutor's disparate questioning and investigation of [minority] and 15 white prospective jurors in the case;

16 • side-by-side comparisons of [minority] prospective jurors who were struck and white prospective jurors who were not struck in the case; 17 • a prosecutor's misrepresentations of the record when defending the strikes during the 18 Batson hearing;

19 • relevant history of the State's peremptory strikes in past cases; or

20 • other relevant circumstances that bear upon the issue of racial discrimination. 21 Flowers v. Mississippi, 588 U.S. 284, 302 (2019); see Ervin v. Davis, 12 F.4th 1102, 1106-08 22 (9th Cir. 2021) (explaining that federal habeas courts should consider Flowers factors when 23 record contains evidence applicable to them). The court “must conduct a comparative juror 24 analysis in the first instance if the state reviewing court has not done so.” Sifuentes, 825 F.3d at 25 518 n.4 (citing Jamerson v. Runnels, 713 F.3d 1218, 1225 (9th Cir. 2013)). And when a state 26 court fails to perform its “affirmative duty” under step three, a habeas court “must conduct that 27 analysis de novo, rather than remanding for the state courts to do so.” Green, 532 F.3d at 1031. 28 A habeas court considers whether the state court's decision was “not merely wrong, but 1 actually unreasonable.” Sifuentes, 825 F.3d at 517 (citation omitted).

2 The pertinent question is not whether the prosecutor was credible, or even whether the trial court's conclusion to that effect was clearly erroneous. Rather, the pertinent question 3 is whether the state appellate court was objectively unreasonable in upholding the trial court's determination. 4 Id. at 518. This review is “doubly deferential.” Id. (citation omitted). 5 g. Analysis – Time Delay 6 Petitioner’s first claim concerns the four-year delay between jury selection and the Batson 7 evidentiary hearing. He contends the length of time deprived him of his constitutional rights 8 because the delay was itself constitutionally defective. Petitioner, however, fails to point to any 9 constitutional authority establishing that a long delay, by itself, renders the evidentiary hearing 10 ineffective. As noted by Respondent, in both Batson, 476 U.S. at 100, and Johnson, 545 U.S. at 11 173, the Supreme Court remanded the matter to the trial court for evidentiary hearings on steps 12 two and three. Indeed, the four-year delay was well within the duration of time deemed 13 permissible by other courts. See Hooper v. Ryan, 729 F.3d 782, 787 (7th Cir. 2013) (32-year 14 delay); Crittenden v. Ayers, 624 F.3d 943, 952 (9th Cir. 2010) (14-year delay); Johnson v. Finn, 15 665 F.3d 1063, 1066 (9th Cir. 2011) (10-year delay). Thus, the appellate court’s decision to 16 remand the matter for evidentiary hearing was consistent with clearly established federal law. 17 Petitioner also fails to show the state court’s determination that the hearing was feasible 18 was unreasonable. The record shows the trial court had more than adequate records with which to 19 conduct the Batson inquiry, including voir dire transcripts; testimony from the prosecutor; the 20 prosecutor’s jury selection notes; trial transcripts; and recollections of the trial court. Petitioner 21 fails to show that the trial court could not properly assess the prosecutor’s credibility in 22 determining whether his stated reasons were discriminatory. See, e.g., Paulino v. Harrison, 542 23 F.3d 692, 701 n.8 (9th Cir. 2008) (Batson inquiry was properly conducted where “the transcript of 24 jury voir dire itself illuminate[d] the prosecutor’s actual reasons”); Turner v. Marshall, 121 F.3d 25 1248, 1251 (9th Cir. 1997) (holding that voir dire transcripts and evidentiary hearing provided 26 sufficient basis for review, notwithstanding prosecutor’s limited recollection). Thus, the claim is 27 without merit and should be denied. 28 1 h. Analysis – Peremptory Challenge 2 As previously noted, the prosecutor exercised a peremptory challenge against Margo S., a 3 prospective Black juror. Petitioner immediately raised a Batson challenge. Ultimately, the state 4 courts determined that the challenge was not discriminatory. The Court finds the state court’s 5 determination was not unreasonable. 6 1. Prosecutor’s Reasons for Challenge 7 During the Batson hearing on remand, the prosecutor discussed the reasons for excusing 8 Margo S. He described the various factors he stated were risks that could contribute to an uneven 9 playing field favoring the defense theory. 10 Foremost in the prosecutor’s mind was Margo S.’s background in mental health. The 11 prosecutor noted that Petitioner was a user of PCP, which is a drug that mimics the effects of 12 psychosis. (Doc. 14-30 at 16.) During the aftermath of the collision, Petitioner displayed many of 13 the psychotic behaviors one would expect from a user under the influence of PCP. (Doc. 14-30 at 14 17.) But after he had a phone call with his girlfriend who advised him to plead insanity, the 15 prosecutor believed Petitioner began to fashion his responses to jail personnel in an attempt to 16 establish a defense based on insanity. (Doc. 14-30 at 18.) 17 The prosecutor stated one of the hurdles he would have to overcome is the treating 18 doctor’s diagnosis of schizophrenia versus the effects of PCP. (Doc. 14-30 at 24-25.) He noted he 19 would have to convince the jurors that Petitioner’s actions were not the result of a mental illness 20 but because he was under the influence of PCP. (Doc. 14-30 at 38.) The prosecutor noted he 21 would have to convince the jurors to disagree with the expert, and this expert had based his report 22 on evaluations conducted by mental health workers who were employed in correctional facilities, 23 such as Margo S. (Doc. 14-30 at 25-26.) The prosecutor’s primary concern was that he would 24 have to challenge the opinions of mental health workers in correctional facilities such as Margo S. 25 (Doc. 14-30 at 39.) The prosecutor stated he was worried Margo S.’s background would provide a 26 “very uneven playing field for [the prosecution].” (Doc. 14-30 at 43.) He was concerned that the 27 facts of the case would line up with her own experiences that in general, “people who commit 28 crimes often do so as a result of mental illness.” (Doc. 14-30 at 43.) Thus, he was concerned 1 Margo S.’s background would cause herself, as well as influence fellow jurors, to find Petitioner 2 committed the acts due to mental illness, thus negating the required mens rea. 3 With respect to the contention that he did not delve further into these concerns with Margo 4 S., the prosecutor noted his methodology in conducting voir dire is a “very surgical approach to 5 asking questions of jurors.” (Doc. 14-30 at 8, 57.) His norm is not to ask a lot of questions but 6 rather to ask pointed and direct questions. (Doc. 14-30 at 57.) He noted that he only asked 7 questions of 13 out of 37 potential jurors. (Doc. 14-30 at 91.) In addition, he was concerned that 8 asking questions regarding mental health issues would lend credence to the defense theory. (Doc. 9 14-30 at 54-56.) He noted that the subject had already been adequately explored by the defense, 10 and further questioning would only sponsor the defense theory by suggesting that the prosecutor 11 also believed mental illness may have contributed to the crime. 12 Second, the prosecutor noted that Margo S. had a prior petty theft and a cousin who had 13 been incarcerated. (Doc. 14-30 at 66, 127.) While neither factor was determinative to him, he 14 found they presented additional risk factors. (Doc. 14-30 at 66.) Of great significance was the fact 15 the cousin had been incarcerated because of a mental breakdown. (Doc. 14-30 at 66.) The 16 prosecutor stated it was concerning that Margo S. made a point in qualifying her cousin’s 17 incarceration as due to a mental breakdown. (Doc. 14-30 at 127.) This fact, in light of her 18 background, was significant to the prosecutor because it signaled she may be more inclined to 19 follow the defense’s theory that Petitioner committed the crime due to mental illness. (Doc. 14-30 20 at 127-128.) 21 A third concern for the prosecutor was Margo S.’s position as a caretaker of inmates. 22 (Doc. 14-30 at 70.) Margo S. had stated her day-to-day activities involved checking on inmates 23 and making sure they were eating, sleeping, taking care of themselves, and making sure they were 24 not suicidal. (Doc. 14-30 at 70.) The prosecutor was concerned that the duty of care she owed to 25 inmates might influence her view of Petitioner causing her to be more sympathetic to his 26 situation. (Doc. 14-30 at 71.) Again, the prosecutor determined her caretaker background would 27 cause her to find he acted because of a mental illness. 28 The fourth concern described by the prosecutor was Margo S.’s response to defense 1 counsel concerning mental health evidence. (Doc. 14-30 at 74-75.) When initially questioned on 2 what she would do if evidence was put forth that conflicted with her own knowledge, Margo S. 3 stated she would advise fellow jurors that the information was wrong and prove it by searching it 4 on the internet. (Doc. 14-30 at 75.) Although she stated she would not do so if advised she could 5 not, the prosecutor viewed this as another risk. While she stated she would not do so on further 6 questioning, her first inclination was to do so, and the prosecutor had no guarantee she would not 7 act according to her first inclination. (Doc. 14-30 at 77.) This factor was especially concerning 8 because Margo S. had stated she would voice her disagreement with the rest of the panel and look 9 up the information to prove her point, despite the Court’s many prior admonitions not to consult 10 outside evidence to the potential jury as a whole, and to individual jurors’ responses. (Doc. 14-30 11 at 77-82.) 12 Upon review of the record, the Court finds that the prosecutor’s stated reasons for 13 dismissal were “permissible and plausible.” Sifuentes, 825 F.3d at 518. The state court 14 reasonably concluded that the prosecutor’s explanations for striking Margo S. were credible and 15 did not evince a race-based motivation. Indeed, while the prosecutor challenged Margo S., he 16 accepted two other Black jurors who served as primary jurors. The prosecutor’s reasons were 17 supported by the record and without misrepresentation. 18 2. Comparative Analysis 19 In addition, a comparative analysis between Margo S. and other venire members the 20 prosecutor did not challenge does not demonstrate pretext or discrimination. As the parties and 21 state courts acknowledge, prospective juror Brad D. was closest to Margo S. in comparison. They 22 had similar backgrounds in mental health. The prosecutor distinguished the two by pointing out 23 Margo S. was a psych tech in a correctional facility whereas Brad D. was not. (Doc. 14-30 at 38, 24 98.) Brad D. had no connection to correctional facilities which the prosecutor found advantageous 25 to his position. (Doc. 14-30 at 98.) Whereas the prosecutor believed Margo S. would be defensive 26 to any criticism of mental health work performed in correctional facilities, he believed Brad D. 27 would not be so inclined. (Doc. 14-30 at 100-101.) Brad D. did not share the same connection 28 between crime and mental illness. (Doc. 14-30 at 101.) The prosecutor was also impressed by 1 Brad D.’s emphatic response that he could set aside his background in performing his duties as a 2 juror. (Doc. 14-30 at 101.) Brad D. also did not have any prior convictions or family members 3 who had priors, as compared to Margo S. (Doc. 14-30 at 102.) In addition, the prosecutor 4 believed the fact that Brad D. was married was beneficial for a juror, because he believed married 5 persons are generally adept at working through issues together; he noted that Margo S. was 6 single. (Doc. 14-30 at 103-04.) Brad D.’s position as a supervisor also demonstrated that he could 7 manage and cooperate with others, which was a good skill to have during jury deliberations. 8 (Doc. 14-30 at 104.) 9 In addition, Margo S. shared some attributes with other prospective jurors that also caused 10 the prosecutor to challenge them. Peggy B. stated she had a nephew who had faced criminal 11 charges due to his bipolar mental illness. (Doc. 14-30 at 67.) Peggy B. was the prosecutor’s first 12 challenge. (Doc. 14-30 at 67.) 13 Finally, it again bears noting that of the four potential jurors who were Black including 14 Margo S., one was excused for hardship, but the two remaining were not challenged by the 15 prosecutor and became primary jurors who decided the case. While not determinative, this fact 16 did lend credibility to the prosecutor’s disavowal of race having any bearing on his challenges. 17 i. Conclusion 18 In summary, the prosecutor’s reasons were founded in the record and displayed no 19 indication of race-based motivation. The state court reasonably determined the prosecutor was 20 credible and his reasons were plausible and permissible. In addition, a comparative analysis of the 21 jury showed the prosecutor did not treat potential White jurors differently from minorities. The 22 state court identified valid non-pretextual reasons distinguishing Margo S. from other non- 23 challenged jurors. Thus, Petitioner fails to show that the state court’s decision was contrary to, or 24 an unreasonable application of, Supreme Court precedent, nor does he show that the state court’s 25 decision was based on an unreasonable determination of the facts in this case. The claim should 26 be denied. 27 28 1 2. Ground Two - Insufficiency of the Evidence 2 Petitioner next claims the evidence was insufficient to support the jury’s finding of 3 implied malice. Petitioner raised this claim on direct review. In the last reasoned decision, the 4 Fifth DCA rejected the claim as follows:

5 Collins was convicted of two counts of second degree murder. He now argues the evidence did not prove murder because implied malice was not proven. We disagree. 6 “In reviewing a claim for sufficiency of the evidence, we must determine whether, 7 after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or special 8 circumstance beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient 9 evidence—that is, evidence that is reasonable, credible, and of solid value— supporting the decision, and not whether the evidence proves guilt beyond a 10 reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the 11 existence of every fact the jury reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of 12 fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.” (People v. Jennings 13 (2010) 50 Cal.4th 616, 638-639.)

14 Second degree murder requires proof of an act, committed with malice aforethought, resulting in death. (§ 187; People v. Cravens (2012) 53 Cal.4th 500, 507 (Cravens).) 15 Malice aforethought may be express or implied. (Ibid.) Implied malice exists when a person performs an act, the natural and probable consequences of which are 16 dangerous to human life, and acts with conscious disregard to that danger. (People v. Chun (2009) 45 Cal.4th 1172, 1181.) “‘[I]mplied malice [involves] “both a 17 physical and a mental component. The physical component is satisfied by the performance of ‘an act, the natural consequences of which are dangerous to life.’ 18 [Citation.] The mental component is the requirement that the defendant ‘knows that his conduct endangers the life of another and ... acts with conscious disregard for 19 life.’” (People v. Soto (2018) 4 Cal.5th 968, 974 (Soto).)

20 Murder based on the act of driving while intoxicated does not require proof “of a ‘predicate act,’ i.e., a prior DUI or an alcohol-related accident necessary to establish 21 implied malice.” (People v. Johnigan (2011) 196 Cal.App.4th 1084, 1091 (Johnigan).) “‘[L]ike all other elements of a crime, implied malice may be proven 22 by circumstantial evidence.’” (People v. Jimenez (2015) 242 Cal.App.4th 1337, 1358.) 23 The record here sufficiently proved implied malice. [Fn.15] The physical 24 component of implied malice is not at issue. Suffice it to say, driving a car at speeds near or in excess of 100 miles per hour is dangerous to life. The evidence proving 25 the mental component was compelling and sufficient.

26 [Fn.15] The act, causation, and death elements of murder are not disputed.

27 Perhaps most importantly, Collins admitted he drove after consuming alcohol “too many times.” The jury could reasonably interpret his admission as a confession 28 regarding the dangers of intoxicated driving. “A confession is like no other evidence. 1 Indeed, ‘the defendant's own confession is probably the most probative and damaging evidence that can be admitted against him .... [T]he admissions of a 2 defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct.’” (Arizona v. Fulminante (1991) 499 3 U.S. 279, 296.)

4 Beyond Collins's admission, his driving itself exhibited an “actual awareness of the great risk of harm which he had created.” (People v. Watson (1981) 30 Cal.3d 290, 5 301 (Watson).) Specifically, he drove down the road at extremely high speeds and nearly hit multiple vehicles but swerved to avoid collisions. The jury could 6 reasonably infer his knowledge of dangerous conduct from the fact Collins actively avoided colliding with other vehicles multiple times before striking the victims' 7 vehicle. (Ibid.)

8 Moreover, Collins's girlfriend testified she warned him about the dangers of driving “high” almost every day before the collision. He also signed four DMV forms 9 indicating he had read the attendant warnings regarding intoxicated driving. [Fn.16] (See People v. Wolfe (2018) 20 Cal.App.5th 673, 683 [signed DMV form relevant 10 to subjective knowledge].)

11 [Fn.16] Collins further argues “the truth is that people do not read the reverse sides of such applications, any more than people read the ‘terms and 12 conditions’ of car rental agreements.” But his signature undoubtedly is evidence he read the warnings and it is the jury's exclusive prerogative to 13 resolve the facts. The warnings read as follows: “I am advised that being under the influence of alcohol or drugs, or both, impairs the ability to safely 14 operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If I drive 15 while under the influence of alcohol or drugs, or both, and as a result, a person is killed, I can be charged with murder.” 16 The jury could also readily infer Collins knew he would need to drive after 17 consuming alcohol because he was sober when he drove to the store to purchase the alcohol. (See Watson, supra, 30 Cal.3d at p. 300.) “It also may be presumed that 18 [Collins] was aware of the hazards of driving while intoxicated. ... ‘One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he 19 thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, 20 reasonably may be held to exhibit a conscious disregard for the safety of others.’” (Id. at pp. 300-301; Johnigan, supra, 196 Cal.App.4th at p. 1091 [the danger of 21 intoxicated driving is “‘“a very commonly understood risk”’”].)

22 We need not, however, indulge in presumptions. Collins consciously disregarded the danger to other lives by traveling at nearly 100 miles per hour while making no 23 attempt to stop at red lights with multiple vehicles along his path. Immediately before crashing, with multiple vehicles either slowing or stopped for a red light in 24 front of him, Collins made no apparent attempt to slow his vehicle. Instead, he swerved onto the center divider attempting to pass the vehicles—as if they were 25 obstacles in his path—and blow through yet another red light. Unfortunately, his attempt failed and he instead struck another vehicle with enough force to ignite it, 26 killing two of its occupants and severely burning the third.

27 In sum, “Whether [Collins] was subjectively aware of the risk is best answered by the question: how could he not be? It takes no leap of logic for the jury to conclude 28 that because anyone would be aware of the risk, [Collins] was aware of the risk.” 1 (People v. Moore (2010) 187 Cal.App.4th 937, 941; see Cravens, supra, 53 Cal.4th at p. 511 [jury may justifiably infer “defendant's subjective awareness” of dangerous 2 conduct from “the circumstances ... alone”].) His conduct in swerving to avoid collisions and still subsequently failing to stop—or even slow down—at red lights 3 while driving nearly or more than 100 miles per hour exhibits a clear conscious disregard for human life. His claim the evidence insufficiently proved murder is 4 meritless.

5 Collins, 60 Cal. App. 5th at 556. 6 a. Federal Standard 7 The law on sufficiency of the evidence is clearly established by the United States Supreme 8 Court. Pursuant to the United States Supreme Court’s holding in Jackson v. Virginia, 443 U.S. 9 307, the test on habeas review to determine whether a factual finding is fairly supported by the 10 record is as follows: “[W]hether, after viewing the evidence in the light most favorable to the 11 prosecution, any rational trier of fact could have found the essential elements of the crime beyond 12 a reasonable doubt.” Jackson, 443 U.S. at 319; see also Lewis v. Jeffers, 497 U.S. 764, 781 13 (1990). Thus, only if “no rational trier of fact” could have found proof of guilt beyond a 14 reasonable doubt will a petitioner be entitled to habeas relief. Jackson, 443 U.S. at 324. 15 Sufficiency claims are judged by the elements defined by state law. Id. at 324, n. 16. 16 If confronted by a record that supports conflicting inferences, a federal habeas court “must 17 presume–even if it does not affirmatively appear in the record–that the trier of fact resolved any 18 such conflicts in favor of the prosecution, and must defer to that resolution.” Id. at 326. 19 Circumstantial evidence and inferences drawn from that evidence may be sufficient to sustain a 20 conviction. Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). 21 After the enactment of the AEDPA, a federal habeas court must apply the standards of 22 Jackson with an additional layer of deference. Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 23 2005). In applying the AEDPA’s deferential standard of review, this Court must presume the 24 correctness of the state court’s factual findings. 28 U.S.C. § 2254(e)(1); Kuhlmann v. Wilson, 25 477 U.S. 436, 459 (1986). 26 In Cavazos v. Smith, 565 U.S. 1, 2 (2011), the United States Supreme Court further 27 explained the highly deferential standard of review in habeas proceedings, by noting that Jackson,

28 makes clear that it is the responsibility of the jury - not the court - to decide what 1 conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational 2 trier of fact could have agreed with the jury. What is more, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge 3 simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was “objectively unreasonable.” 4 Because rational people can sometimes disagree, the inevitable consequence of this 5 settled law is that judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold. 6

7 c. Analysis 8 Here, the state court applied the correct standard in finding the evidence supported the 9 jury’s finding. Thus, the only question before this Court is whether that determination was 10 unreasonable. The Court finds that it was not. 11 The appellate court found that the evidence supporting the finding that Petitioner was 12 subjectively aware of the risk was overwhelming. As the appellate court stated, “how could he not 13 be?” Collins, 60 Cal.App.5th 540. First, Petitioner admitted to the risk, stating he drove after 14 consuming alcohol “too many times.” Id. This confession alone is fatal to his claim that he was 15 unaware of the risk. In addition, his actions while driving showed he was conscious of the danger 16 he created. While driving at a high rate of speed, he braked, slowed down, and swerved to avoid 17 collisions multiple times. His actions in trying to avoid collisions demonstrate his knowledge of 18 impending harm. Petitioner’s girlfriend also testified that she had personally warned Petitioner on 19 many occasions of the dangers of driving “high.” Indeed, she stated she warned him almost every 20 day, which he acknowledged in his conversations with her:

21 [Petitioner’s girlfriend]: . . . And I keep tellin’ you to stop drivin’ that car, high. Go get some help. Let’s go figure this out. And you don’t want to do that. You 22 learned the hard way.

23 . . . .

24 [Petitioner’s girlfriend]: I know. But, you know, there’s – it’s decisions that you make so there’s one you just gonna have ta – you know with this stuff there are 25 consequences. You gonna have ta pay for what you did. I mean I taught us that y- I told you stop doin’ that stuff. You wouldn’t listen to me. 26 . . . . 27 [Petitioner’s girlfriend]: I try to tell you every day about this stuff and you just 28 didn’t believe me. You wouldn’t stop – even kept doin’ it. You try to say I’m the 1 problem. Lik e you was sayin’ it’s me goin’ make you act like that. And that’s messed up. ‘Cause I was the one that was there for you when I look you ass to the 2 hospital it was me. It wasn’t nobody else.

3 [Petitioner]: Yup. Dang babe. 4 (Doc. 14-19 at 253-254.) In addition, Petitioner himself signed four DMV forms on prior 5 occasions indicating he had read the warnings concerning impaired driving. His signature 6 constitutes evidence he was made aware of the risks. Finally, Petitioner’s persistent actions in 7 driving at exceedingly high rates of speed while attempting to avoid collisions shows he had a 8 clear conscious disregard for human life. 9 Given the foregoing, this Court agrees that the evidence supporting implied malice was 10 overwhelming. Certainly, Petitioner fails to show that no fairminded jurist would agree with the 11 state court’s conclusion. The claim should be denied. 12 3. Ground Three – Ineffective Assistance of Counsel 13 In his third claim for relief, Petitioner alleges defense counsel was ineffective in failing to 14 object to the cross-examination testimony of psychologist Dr. Musacco, who stated that Petitioner 15 understood the nature and quality of his actions and appreciated the difference between right and 16 wrong. He further faults counsel for failing to object to the prosecutor’s closing remarks referring 17 to Dr. Musacco’s opinions. Petitioner raised this claim on direct review. The Fifth DCA rejected 18 the claim, as follows:

19 At trial, Dr. Musacco testified Collins understood the nature and quality of his actions and knew the difference between right and wrong at the time of the 20 collision. The prosecutor referenced this testimony multiple times in closing argument. 21 Collins now faults his attorney for failing to object to the testimony and the 22 prosecutor's corresponding argument. The question squarely presented is whether Dr. Musacco's testimony is equivalent to an opinion Collins possessed the requisite 23 “mental component” of implied malice. (See Soto, supra, 4 Cal.5th at p. 974.) We need not, however, answer the question because we conclude a different outcome 24 at trial was not reasonably probable even absent the specific testimony and argument at issue. 25 A. Additional Background 26 A large portion of the trial focused on Collins's mental state while he drove the 27 vehicle that ultimately killed two victims. To that end, Collins sought to introduce evidence he suffered from a mental disease impairing his ability to appreciate or 28 understand the dangerousness of his conduct, and inhibiting his ability to 1 consciously disregard that danger.

2 To accomplish the goal, Collins introduced portions of his interviews with law enforcement relating he did not remember driving at all. His lack of recollection 3 was attributed to believing he was Jesus which caused tunnel vision, or because something entered his body, forcing him to “gun it” and otherwise black out. The 4 prosecutor introduced other portions of those interviews, including that Collins remembered “put[ting] the pedal to the metal,” “trying to make the car fly,” and 5 swerving and trying to slow down before crashing.

6 Collins also introduced evidence of his mental health issues through Dr. Musacco's testimony. Dr. Musacco believed Collins legitimately suffered from a mental 7 illness especially because the illness was well documented both before and after the collision. For example, Collins was once hospitalized during an episode in 8 which he experienced supernatural visions.

9 To undercut the force of Dr. Musacco's testimony, the prosecutor pointed out medical doctors had previously advised Collins to quit consuming PCP. The 10 prosecutor also emphasized Dr. Musacco was originally appointed by the court to evaluate Collins's sanity but concluded Collins was sane at the time of the 11 collision. Specifically, Dr. Musacco agreed with the prosecutor that Collins understood the nature and quality of his actions and knew the difference between 12 right and wrong.

13 In closing argument, the prosecutor argued Collins “appreciated the difference between right and wrong. When he's out there, he knows that it's wrong to drive 95 14 to 110 miles an hour down a busy street. Oh, he knows it, absolutely. [Dr. Musacco] told you that he appreciated the difference between right and wrong.” 15 He continued, “But not just that. He understood the nature and quality of his actions. Another way to put that is he knows the difference between driving 110 16 miles an hour ... and throwing a piece of bubble gum out his window ... which is one of the reasons that I think you will find that the mental evidence in this case 17 doesn't really have applicability.” The prosecutor then explained mental health evidence was relevant to implied malice but voluntary intoxication was not. 18 Later, the prosecutor stated any mental health defense was limited by Dr. 19 Musacco's opinion that Collins knew “the difference between right and wrong and ... probably more important than that, he understands the nature and quality of his 20 actions. He's aware of that. And there's a whole lot of evidence that suggests that.”

21 The prosecutor then listed the evidence supporting his argument including that Collins's girlfriend, family, and prior doctors had all in various ways advised him 22 to quit using drugs. That “[h]e [had previously] signed four” DMV forms explaining the dangers of intoxicated driving. That he admitted to drinking and 23 driving “[t]oo many” times. And that “one of the single best pieces of evidence” was his recorded interview minutes after the collision in which, to quote the 24 prosecutor, Collins remembered “swerving out of the way of a car” and trying “to slow down or ... to apply his brakes ....” 25 B. Analysis 26 The Sixth Amendment guarantees the “‘right to the effective assistance of 27 counsel.’” (Strickland v. Washington (1984) 466 U.S. 668, 685-686.) “‘[T]o establish a claim of ineffective assistance of counsel, [Collins] bears the burden of 28 demonstrating, first, that counsel's performance was deficient because it “fell 1 below an objective standard of reasonableness [¶] ... under prevailing professional norms.” [Citations.] Unless a defendant establishes the contrary, we shall presume 2 that “counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial 3 strategy.” [Citation.] If the record “sheds no light on why counsel acted or failed to act in the manner challenged,” an appellate claim of ineffective assistance of 4 counsel must be rejected “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” 5 [Citations.] If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies 6 resulted in prejudice, that is, a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”’” 7 (People v. Bell (2019) 7 Cal.5th 70, 125.) “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” (In re Gay (2020) 8 8 Cal.5th 1059, 1086.)

9 “The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient 10 prejudice ... that course should be followed.” (In re Cox (2003) 30 Cal.4th 974, 1019-1020; People v. Carrasco (2014) 59 Cal.4th 924, 982.) We follow that 11 course here.

12 There are two distinct but related issues we must resolve. First, was Dr. Musacco's testimony admissible and, if not, was defense counsel ineffective for not 13 objecting? Second, did the prosecutor urge the jury to find implied malice based on Dr. Musacco's testimony and, if so, was defense counsel ineffective for not 14 objecting? We conclude any error is harmless on both accounts.

15 At the outset we note our Supreme Court, in People v. DeHoyos concluded an expert's opinion the defendant knew the difference between right and wrong at the 16 time of a murder was irrelevant and inadmissible during a trial's guilt phase. (People v. DeHoyos (2013) 57 Cal.4th 79, 118 (DeHoyos).) The Court also 17 concluded the testimony was not otherwise inadmissible under sections 28 and 29 [Fn.17] because it was not “tantamount to stating an opinion that defendant did or 18 did not have the mental state required for the crime charged ....” (DeHoyos, at p. 121.) 19 [Fn.17] Sections 28 and 29, provide as relevant: “Evidence of mental 20 disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, 21 premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.” (§ 28, subd. (a).) And, “In the guilt phase of a 22 criminal action, any expert testifying about a defendant's mental illness, mental disorder, or mental defect shall not testify as to whether the 23 defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, 24 for the crimes charged.” (§ 29.)

25 The testimony here is more than that Collins knew the difference between right and wrong—it included the opinion he understood the nature and quality of his 26 actions, i.e., driving a car at a high rate of speed. But the testimony itself, even if inadmissible under sections 28 and 29, was not prejudicial. Collins readily 27 acknowledged he knew he was driving a car at a high rate of speed. Dr. Musacco's opinion added nothing to Collins's admission. 28 1 The prosecutor's argument poses a different question. Undoubtedly, the prosecutor referenced Dr. Musacco's irrelevant sanity opinion multiple times in closing 2 argument and obviously linked it to the implied malice mental state element. But the prosecutor also closely tied the argument to the actual facts which were highly 3 relevant to proving implied malice, i.e., prior warnings about intoxicated driving and Collins's driving itself exhibiting subjective knowledge regarding dangerous 4 driving.

5 Significantly, the prosecutor bridged the gap between Dr. Musacco's irrelevant opinion and the evidence by referencing Collins's various admissions including 6 “put[ting] the pedal to the metal,” “trying to make the car fly,” and trying to avoid a collision by swerving and engaging the brakes. Granted, Collins also made 7 statements he did not remember driving, did not remember any traffic, and did not remember the collision either because he was Jesus or something entered his body 8 and, presumably, took control of the vehicle. But those statements were inconsistent with prior contemporaneous admissions about remembering driving 9 and swerving, and were largely “‘unpersuasive in view of the other evidence, because [they were] “conclusory, self-serving, and not subject to cross- 10 examination.”’” (People v. Suarez (2020) 10 Cal.5th 116, 166.)

11 Critically, there was little to differentiate whether Collins's self-serving statements about Jesus and not remembering driving—if true—were due to a mental illness or 12 instead voluntary intoxication. For these reasons, whether or not the prosecutor's argument was objectionable, Collins has not discharged his burden to show 13 prejudice and our confidence in the outcome is not undermined. The ineffective assistance of counsel claim fails. 14 15 Collins, 60 Cal. App. 5th at 556. 16 a. Federal Standard 17 Effective assistance of counsel is guaranteed by the Due Process Clause of the Fourteenth 18 Amendment. Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of 19 counsel are reviewed according to Strickland's two-pronged test. Strickland v. Washington, 466 20 U.S. 668, 687-88 (1984); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989); United States v. 21 Birtle, 792 F.2d 846, 847 (9th Cir.1986); see also Penson v. Ohio, 488 U.S. 75 (1988) (holding 22 that where a defendant has been actually or constructively denied the assistance of counsel 23 altogether, the Strickland standard does not apply and prejudice is presumed; the implication is 24 that Strickland does apply where counsel is present but ineffective). 25 To prevail, Petitioner must show two things. First, he must establish that counsel’s 26 deficient performance fell below an objective standard of reasonableness under prevailing 27 professional norms. Strickland, 466 U.S. at 687-88. Second, Petitioner must establish that he 28 suffered prejudice in that there was a reasonable probability that, but for counsel’s unprofessional 1 errors, he would have prevailed at trial. Id. at 694. A “reasonable probability” is a probability 2 sufficient to undermine confidence in the outcome of the trial. Id. The relevant inquiry is not what 3 counsel could have done; rather, it is whether the choices made by counsel were reasonable. 4 Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). 5 With the passage of the AEDPA, habeas relief may only be granted if the state-court 6 decision unreasonably applied this general Strickland standard for ineffective assistance. 7 Knowles v. Mirzayance, 556 U.S. 111, 122 (2009). Accordingly, the question “is not whether a 8 federal court believes the state court’s determination under the Strickland standard “was incorrect 9 but whether that determination was unreasonable–a substantially higher threshold.” Schriro v. 10 Landrigan, 550 U.S. 465, 473 (2007); Knowles, 556 U.S. at 123. In effect, the AEDPA standard 11 is “doubly deferential” because it requires that it be shown not only that the state court 12 determination was erroneous, but also that it was objectively unreasonable. Yarborough v. 13 Gentry, 540 U.S. 1, 5 (2003). Moreover, because the Strickland standard is a general standard, a 14 state court has even more latitude to reasonably determine that a defendant has not satisfied that 15 standard. See Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“[E]valuating whether a rule 16 application was unreasonable requires considering the rule’s specificity. The more general the 17 rule, the more leeway courts have in reaching outcomes in case-by-case determinations.”) 18 b. Analysis 19 The state court applied the correct Strickland standard and determined that Petitioner had 20 failed to demonstrate any prejudice resulting from counsel’s failures to object. Thus, the only 21 question before the Court is whether that determination was unreasonable. Upon review of the 22 record, the Court agrees with the state courts. 23 As noted by the appellate court, Dr. Musacco’s opinion that Petitioner knew the nature 24 and quality of his actions was already before the jury. Dr. Musacco had testified that Petitioner’s 25 actions during the collision did not evince mentally “insane” behavior. (Doc. 14-10 at 134-35.) 26 Petitioner also admitted he knew he was driving a vehicle at a very high rate of speed. Thus, Dr. 27 Musacco’s opinion added nothing. Even if defense counsel would have objected to prosecutor’s 28 question, the result would not have been different. 1 As to the prosecutor’s references to Dr. Musacco’s opinion, it is true the prosecutor linked 2 the opinion to the element of implied malice. However, the prosecutor focused on the facts of the 3 case which were highly relevant and compelling. The prosecutor pointed out that Petitioner had 4 been warned numerous times by family not to drive under the influence. He reminded the jury 5 Petitioner had signed multiple DMV forms acknowledging the dangers of driving under the 6 influence of drugs and alcohol. Moreover, Petitioner’s attempts to swerve and avoid collisions 7 demonstrated he knew the nature and quality of his actions. Finally, Petitioner’s contemporaneous 8 admissions that he was “put[ting] the pedal to the metal,” “trying to make the car fly,” had driven 9 impaired “too many times,” along with his recollections of driving and attempting to avoid 10 collisions overwhelmingly showed Petitioner harbored the requisite mental state. The Court finds 11 that a fairminded jurist could conclude that even if defense counsel had objected to the 12 prosecutor’s remarks on Dr. Musacco’s opinion, the outcome would not have been different given 13 the overwhelming and compelling evidence of Petitioner’s mental state. Petitioner fails to 14 demonstrate that the state court rejection of his claim was an unreasonable application of 15 Strickland. The claim should be denied. 16 IV. RECOMMENDATION 17 Based on the foregoing, the Court RECOMMENDS that the First Amended Petition for 18 Writ of Habeas Corpus (Doc. 8) be DENIED with prejudice on the merits. 19 This Findings and Recommendation is submitted to the United States District Court Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the 21 Local Rules of Practice for the United States District Court, Eastern District of California. Within 22 twenty-one (21) days after being served with a copy of this Findings and Recommendation, a 23 party may file written objections with the Court and serve a copy on all parties. Id. The document 24 should be captioned, “Objections to Magistrate Judge’s Findings and Recommendation” and shall 25 not exceed fifteen (15) pages, except by leave of court with good cause shown. The Court will not 26 consider exhibits attached to the Objections. To the extent a party wishes to refer to any 27 exhibit(s), the party should reference the exhibit in the record by its CM/ECF document and page 28 number, when possible, or otherwise reference the exhibit with specificity. Any pages filed in 1 excess of the fifteen (15) page limitation may be disregarded by the District Judge when 2 reviewing these Findings and Recommendations pursuant to 28 U.S.C. § 636 (b)(1)(C). The 3 parties are advised that failure to file objections within the specified time may result in the waiver 4 of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014). This 5 recommendation is not an order that is immediately appealable to the Ninth Circuit Court of 6 Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, 7 should not be filed until entry of the District Court's judgment. 8 IT IS SO ORDERED. 9

10 Dated: November 5, 2025 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 11

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