Juan Manuel Reyes v. Raymond Madden, Warden

• Court: District Court, C.D. California
• Decided: February 6, 2018
• Docket: 8:16-cv-02125
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JUAN MANUEL REYES, Case No. SA CV 16-02125 GW (AFM) 12 Petitioner, CORRECTED 13 v. REPORT AND RECOMMENDATION 14 OF UNITED STATES MAGISTRATE RAYMOND MADDEN, Warden, JUDGE 15 Respondent. 16 17 18 This Report and Recommendation is submitted to the Honorable George H. 19 Wu, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and 20 General Order 05-07 of the United States District Court for the Central District of 21 California. 22 23 INTRODUCTION 24 On November 29, 2016, petitioner filed, through counsel, a Petition for Writ 25 of Habeas Corpus by a Person in State Custody (28 U.S.C. § 2254). The Petition 26 raises three claims of instructional error directed to petitioner’s conviction of first- 27 degree murder and other crimes relating to his participation in a gang-related 28 shooting. 1 On January 4, 2017, respondent filed an Answer. On February 1, 2017, 2 petitioner filed a Reply. 3 Thus, this matter is ready for decision. For the reasons discussed below, the 4 Court recommends that the Petition be denied and that this action be dismissed with 5 prejudice. 6 7 PROCEDURAL HISTORY 8 On November 6, 2007, an Orange County Superior Court jury convicted 9 petitioner of first-degree murder, shooting at an occupied motor vehicle, 10 discharging a firearm in a school zone, street terrorism, and three counts of 11 attempted murder. The jury also found true allegations of gang affiliation and 12 firearm use. Petitioner’s co-defendant, Jesus Guerrero, also was convicted of 13 several crimes, and petitioner’s other co-defendant, Armando Solano, was 14 convicted of street terrorism. Petitioner was sentenced to state prison for life 15 without the possibility of parole. (11 Reporter’s Transcript [“RT”] 2099-126, 2136; 16 5 Clerk’s Transcript [“CT”] 1307-51; 6 CT 1607.) 17 Petitioner had three direct appeals in the state courts. In the first proceeding, 18 the California Court of Appeal rejected all of petitioner’s claims and affirmed his 19 judgment of conviction. (Respondent’s notice of lodging, Lodgments 3, 7.) 20 In the second state appeal, petitioner filed a motion to recall the remittitur on 21 the ground that his appellate attorney was ineffective for failing to raise particular 22 issues on appeal. (Lodgments 8-10.) The California Court of Appeal granted the 23 motion and reinstated the appeal. (Lodgment 11 at 3.) The Court of Appeal then 24 vacated petitioner’s sentence of life without the possibility of parole in light of the 25 fact that he was only 17 years old when he committed the crimes; in all other 26 respects, the judgment was affirmed. (Lodgment 14.) The California Supreme 27 Court then summarily denied a Petition for Review. (Lodgments 15 and 16.) 28 1 Petitioner was resentenced to 50 years to life in state prison. (Lodgment 18 2 at 13-15; Lodgment 19 at 55.) 3 In the third state appeal, petitioner claimed that his new sentence of 50 years 4 to life was cruel and unusual punishment in violation of the Eighth Amendment. 5 (Lodgment 20.) The Court of Appeal agreed and modified petitioner’s sentence to 6 ensure that he will receive a parole hearing after 25 years, but affirmed the 7 judgment in all other respects. (Lodgment 27.) The California Supreme Court then 8 summarily denied a Petition for Review. (Lodgments 28-29.) 9 Petitioner filed this Petition on November 29, 2016. 10 11 SUMMARY OF THE EVIDENCE 12 Petitioner was convicted of the murder of Abraham Ortega and the attempted 13 murder of three other people, under a theory that petitioner aided and abetted the 14 actual shooter, Jesus Guerrero. The California Court of Appeal set forth the 15 following summary of the evidence from petitioner’s trial. (Lodgment 14 at 2-4.)1 16 On December 1, 2005, [petitioner] and Guerrero were 17 and 20 17 years old, respectively. They were also members of Hard Times, a 18 criminal street gang that claims territory in Garden Grove, including 19 Santiago High School. That day, [petitioner] “hit up” 16-year-old 20 Abraham Ortega at the school by asking him what gang he was in. 21 When Ortega replied “Santa Nita,” a rival outfit, [petitioner] said, 22 “Fuck Santa Nita, this is Hard Times.” However, before anything 23 further transpired, campus security showed up and defused the 24

25 1 The Ninth Circuit has held that the factual summary set forth in a state appellate court opinion 26 is entitled to a presumption of correctness pursuant to 28 U.S.C. § 2254(e)(1), which a party may rebut only by clear and convincing evidence that the facts were otherwise. See Brown v. Horell, 27 644 F.3d 969, 972 (9th Cir. 2011); Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009); Tilcock v. Budge, 538 F.3d 1138, 1141 (9th Cir. 2008); Mejia v. Garcia, 534 F.3d 1036, 1039 n.1 28 (9th Cir. 2008). Petitioner has not attempted to rebut the Court of Appeal’s factual summary. 1 situation. 2 Five days later, shortly after school let out, the gangs crossed 3 paths again. Santos Gomez arrived at the rear of the school with 4 fellow Santa Nita members Alejandro Chavez and Danny Funes in 5 tow. Funes crossed out some Hard Times graffiti that was on a wall 6 and replaced it with “VSN,” which stands for Varrio Santa Nita, and 7 the words “now what?” It didn’t take long before the group, which 8 soon included Ortega, drew the attention of others. 9 Hard Times member Juan Manzanares spotted them first. He 10 talked to Baltazar Moreno about the situation, and the two of them 11 tracked down [petitioner], who was hanging out at the school quad 12 with several other Hard Times members. Manzanares told [petitioner] 13 about the Santa Nita members, whom he derogatorily referred to as 14 “chonklas,” and said, “[W]e are going to get them.” Manzanares, 15 [petitioner] and Moreno then set off to confront their rivals. 16 As they made their way to the back of the school, Manzanares 17 phoned Guerrero several times. He told him where the Santa Nita 18 members were and urged him to bring a gun to that location. But 19 Manzanares didn’t wait for Guerrero to arrive before instigating a 20 confrontation. With [petitioner] and Moreno at his side, he asked 21 Ortega where he was from. Ortega said Santa Nita, and one of his 22 companions made a gang sign with his fingers. Moreno then yelled 23 out, “Fuck Santa Nita, this is Hard Times,” and with that, the two 24 groups started fighting. 25 Santa Nita initially had a four-to-three advantage in terms of 26 manpower, but Hard Times supporter Rene Garcia soon joined in to 27 even the numbers. At one point during the fight, someone from Hard 28 Times said something like, “Where the fuck is Abel?” Then Guerrero, 1 whose nickname is “Evil,” and fellow Hard Times member Armando 2 Solano came running up to the scene. Guerrero was holding a gun, 3 and upon seeing him, the four Santa Nita members retreated to 4 Gomez’s nearby jeep. As they started to drive away, Solano told 5 Guerrero “not to do it here,” but someone else yelled “dump on them.” 6 At that point, Guerrero fired several shots at the jeep, one of which 7 struck and killed Ortega. 8 Gang expert Jonathan Wainwright testified to the rivalry 9 between Hard Times and Santa Nita, describing them as “turf- 10 orientated” Hispanic street gangs. He also described the criminal 11 activities of Hard Times, explaining that gang members often commit 12 acts of violence to induce fear and achieve respect in the community. 13 Based on the circumstances of this case, Wainwright believed 14 [petitioner] acted in association with, and for the benefit of, Hard 15 Times. In fact, he said [petitioner’s] actions were indicative of “a 16 classic gang hit-up which ultimately ended in a homicide.” 17 18 PETITIONER’S CLAIMS 19 1. The jury instruction on the gang-special-circumstance allegation 20 violated petitioner’s federal constitutional rights. (Petition at ¶ 7a; Petition 21 Memorandum [“Mem.”] at 13-16; Reply at 6-7.) 22 2. The jury instruction on homicide in the defense of others violated 23 petitioner’s federal constitutional rights. (Petition at ¶ 7a; Petition Mem. at 17-22; 24 Reply at 7.) 25 3. The jury instruction on the natural and probable consequences doctrine 26 violated petitioner’s federal constitutional rights. (Petition at ¶ 7a; Petition Mem. at 27 23-34; Reply at 7-9.) 28 1 STANDARD OF REVIEW 2 Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective 3 Death Penalty Act of 1996 (“AEDPA”): 4 “An application for a writ of habeas corpus on behalf of a person in 5 custody pursuant to the judgment of a State court shall not be granted 6 with respect to any claim that was adjudicated on the merits in State 7 court proceedings unless the adjudication of the claim--(1) resulted in 8 a decision that was contrary to, or involved an unreasonable 9 application of, clearly established Federal law, as determined by the 10 Supreme Court of the United States; or (2) resulted in a decision that 11 was based on an unreasonable determination of the facts in light of the 12 evidence presented in the State court proceeding.” 13 14 Under the AEDPA, the “clearly established Federal law” that controls federal 15 habeas review of state court decisions consists of holdings (as opposed to dicta) of 16 Supreme Court decisions “as of the time of the relevant state-court decision.” 17 Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Carey v. Musladin, 549 U.S. 18 70, 74 (2006). 19 Although a particular state court decision may be both “contrary to” and “an 20 unreasonable application of” controlling Supreme Court law, the two phrases have 21 distinct meanings. See Williams, 529 U.S. at 391, 413. A state court decision is 22 “contrary to” clearly established federal law if the decision either applies a rule that 23 contradicts the governing Supreme Court law, or reaches a result that differs from 24 the result the Supreme Court reached on “materially indistinguishable” facts. See 25 Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam); Williams, 529 U.S. at 405-06. 26 When a state court decision adjudicating a claim is contrary to controlling Supreme 27 Court law, the reviewing federal habeas court is “unconstrained by § 2254(d)(1).” 28 See Williams, 529 U.S. at 406. However, the state court need not cite or even be 1 aware of the controlling Supreme Court cases, “so long as neither the reasoning nor 2 the result of the state-court decision contradicts them.” See Early, 537 U.S. at 8. 3 State court decisions that are not “contrary to” Supreme Court law may be set 4 aside on federal habeas review only “if they are not merely erroneous, but ‘an 5 unreasonable application’ of clearly established federal law, or based on ‘an 6 unreasonable determination of the facts.’” See Early, 537 U.S. at 11 (citing 28 7 U.S.C. § 2254(d)) (emphasis added). A state-court decision that correctly identified 8 the governing legal rule may be rejected if it unreasonably applied the rule to the 9 facts of a particular case. See Williams, 529 U.S. at 406-10, 413 (e.g., the rejected 10 decision may state the Strickland standard correctly but apply it unreasonably); 11 Woodford v. Visciotti, 537 U.S. 19, 24-27 (2002) (per curiam). However, to obtain 12 federal habeas relief for such an “unreasonable application,” a petitioner must show 13 that the state court’s application of Supreme Court law was “objectively 14 unreasonable.” Visciotti, 537 U.S. at 24-27; Williams, 529 U.S. at 413. An 15 “unreasonable application” is different from an erroneous or incorrect one. See 16 Williams, 529 U.S. at 409-10; Visciotti, 537 U.S. at 25; Bell v. Cone, 535 U.S. 685, 17 699 (2002). Moreover, review of state court decisions under § 2254(d)(1) “is 18 limited to the record that was before the state court that adjudicated the claim on the 19 merits.” See Cullen v. Pinholster, 563 U.S. 170, 181 (2011). 20 As the Supreme Court explained in Harrington v. Richter, 562 U.S. 86, 102 21 (2011): 22 “Under § 2254(d), a habeas court must determine what arguments or 23 theories supported or, [where there was no reasoned state-court 24 decision], could have supported, the state court’s decision; and then it 25 must ask whether it is possible fairminded jurists could disagree that 26 those arguments or theories are inconsistent with the holding in a prior 27 decision of this Court.” 28 Furthermore, “[a]s a condition for obtaining habeas corpus from a federal court, a 1 state prisoner must show that the state court’s ruling on the claim being presented in 2 federal court was so lacking in justification that there was an error well understood 3 and comprehended in existing law beyond any possibility for fairminded 4 disagreement.” Richter, 562 U.S. at 103. 5 Petitioner’s claims were denied by the California Court of Appeal in 6 reasoned decisions on direct appeal. (Lodgments 14, 27.) The claims then were 7 presented in Petitions for Review, which the California Supreme Court summarily 8 denied. (Lodgments 16, 29.) Thus, the California Court of Appeal’s decisions on 9 direct appeal constitute the relevant state court adjudication on the merits for 10 purposes of the AEDPA standard of review. See Berghuis v. Thompkins, 560 U.S. 11 370, 380 (2010) (where state supreme court denied discretionary review of decision 12 on direct appeal, the decision on direct appeal is the relevant state-court decision for 13 purposes of the AEDPA standard of review). 14 15 DISCUSSION 16 In order to merit federal habeas relief on a claim that the trial court erred by 17 failing to properly instruct a jury, petitioner must allege and then show that the trial 18 court committed an error that so infected the entire trial that the resulting conviction 19 violated his federal constitutional right to due process. See Henderson v. Kibbe, 20 431 U.S. 145, 154 (1977); Cupp v. Naughten, 414 U.S. 141, 147 (1973); 21 Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). Claims of instructional 22 error may not be judged in artificial isolation, but must be considered in the context 23 of the trial record and the instructions as a whole. See Estelle v. McGuire, 502 U.S. 24 62, 72 (1991); Boyde v. California, 494 U.S. 370, 380 (1990); see also Cupp, 414 25 U.S. at 147; Ho v. Carey, 332 F.3d 587, 592 (9th Cir. 2003). In reviewing an 26 ambiguous instruction, the court inquires whether there is a “reasonable likelihood” 27 that the jury has applied the challenged instruction in a way that violates the 28 Constitution. See Estelle, 502 U.S. at 72 and n.4. 1 A claim of instructional error is subject to harmless-error analysis “so long as 2 the error at issue does not categorically ‘vitiat[e]’ all the jury’s findings.” See 3 Hedgpeth v. Pulido, 555 U.S. 57, 61 (2008) (alteration in original); Babb v. 4 Lozowsky, 719 F.3d 1019, 1033 (9th Cir. 2013) (“Instructional errors are generally 5 subject to harmless error review.”), overruled on other grounds as recognized by 6 Moore v. Helling, 763 F.3d 1011, 1021 (9th Cir. 2014). “When a jury instruction is 7 erroneous because it misdescribes the burden of proof, it ‘vitiates all the jury’s 8 findings,’ and no verdict within the meaning of the Sixth Amendment is rendered.” 9 Mendez v. Knowles, 556 F.3d 757, 768 (9th Cir. 2008) (citing Sullivan v. Louisiana, 10 508 U.S. 275, 281 (1993)); see also Byrd v. Lewis, 566 F.3d 855, 867 (9th Cir. 2009) (“The only instructional error recognized by Pulido as vitiating all the jury’s 11 findings is a defective overarching reasonable-doubt instruction as articulated in 12 Sullivan.”). Since none of petitioner’s claims implicate the overarching 13 reasonable-doubt instruction or the prosecutor’s burden of proof, harmless-error 14 analysis would apply to any instructional error in this case. 15

16 A. Instruction on the special circumstances allegation (Ground One). 17 In Ground One, petitioner claims that the jury instruction on the special 18 circumstances allegation violated his federal constitutional rights because it failed 19 to inform the jury that petitioner must have personally had the intent to kill. 20 (Petition at ¶ 7a; Petition Mem. at 13-16; Reply at 6-7.) 21 The special circumstances allegation was based on Cal. Penal Code 22 § 190.2(a)(22), which applies when the defendant “intentionally killed the victim 23 while the defendant was an active participant in a criminal street gang” and “the 24 murder was carried out to further the activities of the criminal street gang.” A 25 jury’s finding that this allegation is true generally requires a sentence of death or 26 life without the possibility of parole, but a trial court retains discretion to impose a 27 sentence of 25 years to life in cases where the defendant is 16 or 17 years old. See 28 1 Cal. Penal Code § 190.5(b). 2 The special circumstances allegation can apply to both the actual killer and 3 the aider and abettor, but only if they both possessed the intent to kill. Cal. Penal 4 Code § 190.2(c); People v. Ybarra, 166 Cal. App. 4th 1069, 1085-86 (2008). 5 Petitioner claims that CALCRIM No. 736 failed to convey this dual requirement for 6 both petitioner and the actual shooter, Guerrero, because the instruction referred 7 instead only to the intent of a generic defendant. CALCRIM No. 736 was read to 8 the jury as follows (10 RT 2056-57; 5 CT 1275) (emphasis in original): 9 To prove this special circumstance is true, the People must 10 prove that: 11 1. The defendant intentionally killed Abraham Ortega; 12 2. At the time of the killing, the defendant was an active 13 participant in a criminal street gang; 14 3. The defendant knew that members of the gang engage 15 in or have engaged in a pattern of criminal gang activity; 16 AND 17 4. The murder was carried out to further the activities of 18 the criminal street gang. 19 Active participation means involvement with a criminal 20 street gang in a way that is more than passive or in name only. 21 22 The California Court of Appeal rejected petitioner’s claim that the use of the 23 non-specific word “defendant” in the instruction likely confused the jury into 24 applying the intent requirement only to Guerrero and not to petitioner (Lodgment 25 14 at 6): 26 [T]he trial court instructed the jury, “The word defendant applies 27 to each defendant unless you are instructed otherwise.” The jury 28 was never told the word defendant in the special circumstances 1 instruction only applied to Guerrero. Therefore, it is not likely it 2 applied the instruction in such a narrow fashion. [Citation 3 omitted.] 4 The California Court of Appeal’s rejection of this claim was not objectively 5 unreasonable. It was not reasonably likely that the jury applied the word 6 “defendant” in CALCRIM No. 736 selectively only to Guerrero because the 7 instructions on the whole apprised the jury that, unless it was instructed otherwise, 8 the word “defendant” applied to each defendant at trial, and all of the instructions 9 applied to each defendant. (10 RT 1975, 1977; 5 CT 1199, 1202.) Nonetheless, 10 petitioner highlights the first requirement in the instruction — “The defendant 11 intentionally killed Abraham Ortega” — to argue that the jury understood the intent 12 requirement to apply only to Guerrero, who was the defendant who actually killed 13 Ortega. (Petition Mem. at 14.) To the contrary, the jury would have understood the 14 instruction to apply equally to petitioner as an aider and abettor to the killing, given 15 that the jury was instructed that an aider and abettor’s liability would have been 16 equal to that of a direct perpetrator. (10 RT 2003-04; 5 CT 1230.) It is presumed 17 that the jury followed the instructions given to them. See Weeks v. Angelone, 528 18 U.S. 225, 234 (2000). Nothing in the record suggested that the jury was instructed 19 to make an exception for the general applicability of the instructions to all 20 defendants by applying CALCRIM No. 736 in a limited way to find petitioner 21 liable for the special circumstance without making the requisite finding of intent. It 22 therefore was not reasonably likely that the jury applied the challenged instruction 23 in a way that violates the Constitution. See Estelle, 502 U.S. at 72 and n.4. 24 Petitioner further claims that this alleged error was compounded by the 25 prosecutor, who told the jury during closing argument that petitioner did not have to 26 share Guerrero’s intent for purposes of liability for murder under the natural and 27 probable consequence doctrine. In explaining that doctrine, the prosecutor argued 28 (9 RT 1783): 1 You don’t have to share the perpetrator’s intent. Mr. Guerrero 2 may have intended all along to go out there and kill. You step 3 into the shoes of the perpetrator. So if you know what — you 4 know he has an intent to go out and commit a battery or an 5 assault and you facilitate that, you step into the shoes of the 6 perpetrator and we get this extended liability. Natural and 7 probable consequences. 8 Although the prosecutor’s argument was a correct statement of the law (at 9 that time) regarding petitioner’s liability for first-degree murder as an aider and 10 abettor under the natural and probable consequences doctrine, see People v. 11 Nguyen, 21 Cal. App. 4th 518, 531 (1993), petitioner argues that the argument led 12 the jury to conflate the requirements of the natural and probable consequences 13 doctrine with those of the special circumstances allegation. The California Court of 14 Appeal disagreed (Lodgment 14 at 7): 15 [I]n making the above argument, the prosecutor was talking about 16 [petitioner’s] culpability on the substantive charges, more 17 specifically his culpability for the “aiding and abetting of a 18 murder.” The prosecutor did not start discussing the special 19 circumstances allegation until much later in his argument. 20 [Citation omitted.] 21 Moreover, the jury instruction on the natural and probable 22 consequences doctrine was properly limited to the substantive 23 charges. At no time was the jury ever told it could apply the 24 doctrine to the special circumstances allegation, and we do not 25 believe it is reasonably likely the jury did so. Considering the 26 instructions as a whole, we are convinced that, in finding the 27 special circumstances allegation true as to [petitioner], the jury 28 necessarily determined he possessed the requisite intent to kill. 1 There is no basis for disturbing the jury’s finding in that regard. 2 The California Court of Appeal’s rejection of this claim was not objectively 3 unreasonable. At the outset, petitioner’s claim is premised on the prosecutor’s 4 closing argument, which generally carries less weight with the jury than the trial 5 court’s instructions on the law. See Boyde v. California, 494 U.S. 370, 384 (1990). 6 Even so, the prosecutor’s argument was not misleading about the law regarding any 7 of the charges. The prosecutor clearly identified his argument as a discussion of the 8 natural and probable consequences doctrine as a theory of liability for the 9 substantive charges. Nothing was confusing or misleading about this part of the 10 prosecutor’s argument. Given the full context of the prosecutor’s argument in this 11 regard, he did not mislead the jury into thinking that it need not find petitioner had 12 an intent to kill under the special circumstances allegation. 13 Moreover, the actual instructions on the special circumstances allegation, 14 which carried more weight than the prosecutor’s argument, correctly stated that 15 each defendant, including petitioner, had to have the intent to kill. (10 RT 2051-53, 16 2056-57; 5 CT 1271, 1275.) It therefore was not reasonably likely that the jury 17 applied the challenged instruction in a way that violates the Constitution. See 18 Estelle, 502 U.S. at 72 and n.4. 19 In sum, the instructions on the whole correctly informed the jury that 20 petitioner must have personally had the intent to kill in order to meet the 21 requirements of the special circumstances allegation. Thus, the California Court of 22 Appeal’s rejection of this claim did not result in a decision that was contrary to, or 23 involved an unreasonable application of, clearly established federal law. 24 25 B. Instruction on homicide in the defense of others (Ground Two). 26 In Ground Two, petitioner claims that the jury instruction on homicide in the 27 defense of others was unduly restrictive because it failed to allow the jury to 28 consider evidence of prior threats by the murder victim’s compatriots in assessing 1 the reasonableness of the actions of the actual shooter, Guerrero. (Petition at ¶ 7a; 2 Petition Mem. at 17-22; Reply at 7.) 3 The applicable instruction on justifiable homicide based on self-defense or 4 defense of another, CALCRIM No. 505, explicitly mentioned prior threats by the 5 murder victim, Abraham Ortega. The instruction did not, however, mention threats 6 by any other specific people (10 RT 2065-66; 5 CT 1285): 7 If you find that Abraham Ortega threatened or harmed the 8 defendant or others in the past, you may consider that information 9 in deciding whether the defendant’s conduct and beliefs were 10 reasonable. If you find that the defendant knew that Abraham 11 Ortega had threatened or harmed others in the past, you may 12 consider that information in deciding whether the defendant’s 13 conducts and beliefs were reasonable. 14 For three independent reasons, the California Court of Appeal rejected 15 petitioner’s argument that this instruction did not go far enough because it did not 16 allow the jury to consider prior threats or harm by Ortega’s fellow gang members 17 (Lodgment 14 at 7-8): 18 First, there is no evidence Guerrero ever received any prior 19 threats from Ortega’s fellow gang members. 20 Second, the underlying legal premise of [petitioner’s] 21 argument is faulty. He assumes he was entitled to the benefit of 22 any defenses that were applicable to Guerrero, the shooter. 23 However, an aider and abettor does not get the benefit of defenses 24 that are pertinent only to the person who carries out the crime. 25 (People v. McCoy (2001) 25 Cal. 4th 1111, 1122 [aider and 26 abettor could properly be convicted of murder even if actual 27 perpetrator acted in unreasonable self-defense and was thus guilty 28 only of manslaughter].) Therefore, even if there had been 1 evidence that Guerrero had received prior threats from Ortega’s 2 fellow gang members, that evidence would not necessarily 3 mitigate [petitioner’s] culpability. 4 Third, the record belies [petitioner’s] claim the court’s 5 instructions on antecedent threats was limited to threats made by 6 Ortega. . . . Although Ortega was the only person specifically 7 identified in the above instructions, the court gave other 8 instructions that expanded on the antecedent threats doctrine. 9 Particularly, the court told the jury, “Someone who has been 10 threatened or harmed by a person in the past is justified in acting 11 more quickly or taking greater self-defense measures against that 12 person. [¶] If you find the defendant received a threat from 13 someone else that he reasonably associated with Abraham Ortega, 14 you may consider that threat in deciding whether the defendant 15 was justified in acting in self-defense or defense of another.” 16 These instructions clearly signaled to the jury that Ortega was 17 not the only person whose prior threats may have mattered in the 18 case. Rather, the jury could also consider the effect of any threats 19 the defendant may have received from anyone whom he 20 reasonably associated with Ortega, which would logically include 21 his fellow gang members. 22 [Petitioner] contends that, as worded, the instructions only 23 pertained to the situation where the defendant acted against the 24 particular person who had actually threatened him. But the final 25 sentence of the instruction was worded more broadly than that. 26 By its terms, it allowed the jury to consider threats the defendant 27 received from Ortega’s associates in determining whether his 28 actions against Ortega were justified. Therefore, the instructions 1 were not unduly restrictive. They did not violate [petitioner’s] 2 rights in any respect. 3 The Court of Appeal’s rejection of petitioner’s claim for these three reasons 4 was not objectively unreasonable. First, no evidence suggested that Guerrero ever 5 received any prior threats from Ortega’s fellow gang members. The evidence cited 6 by petitioner in this regard — trial testimony that Guerrero was summoned to the 7 crime scene and told to bring a gun in order to take part in a confrontation with a 8 rival gang — does not show that Guerrero ever knew of any prior threats from that 9 rival gang. (Petition Mem. at 19-20.) Nor does this evidence show that Guerrero 10 believed and relied on any prior threats as justification for his actions. See People 11 v. Pena, 151 Cal. App. 3d 462, 475 (1984) (instruction on antecedent threats 12 requires evidence of the defendant’s knowledge of the threat and of his belief and 13 reliance thereon). 14 Second, as a matter of California law, Guerrero’s possible entitlement to such 15 an instruction was irrelevant as to whether petitioner, an aider and abettor, also was 16 entitled to the instruction. The Court is bound by the California Court of Appeal’s 17 interpretation of state law in this regard. See Bradshaw v. Richey, 546 U.S. 74, 76 18 (2005) (state court’s interpretation of state law binds a federal court on habeas 19 review); Waddington v. Sarausad, 555 U.S. 179, 193 n.5 (2009) (state court’s 20 interpretation of instructional error claim as a matter of state law was beyond the 21 province of a federal habeas court to reexamine); see also Menendez v. Terhune, 22 422 F.3d 1012, 1029 (9th Cir. 2005) (rejecting instructional error claim on federal 23 habeas review where the state court applied state law principles to determine that 24 the proposed instruction was unwarranted). 25 Third, the instruction did apprise the jury that it could consider evidence of 26 antecedent threats by people other than Ortega, such as Ortega’s fellow gang 27 members. The final sentence CALCRIM No. 505 apprised the jury that it could 28 consider evidence of prior threats from “someone else that [the defendant] 1 reasonably associated with Abraham Ortega.” (5 CT 1286.) In light of the 2 instructions on the whole, it was not reasonably likely that the jury applied the 3 challenged instruction in a way that violates the Constitution. See Estelle, 502 U.S. 4 at 72 and n.4. 5 In sum, petitioner’s claim of entitlement to a broader instruction on homicide 6 in the defense of others is misplaced but, in any event, the jury was in fact allowed 7 to consider broad evidence of antecedent threats. Thus, the California Court of 8 Appeal’s rejection of this claim did not result in a decision that was contrary to, or 9 involved an unreasonable application of, clearly established federal law. 10 11 C. Instruction on the natural and probable consequences doctrine (Ground 12 Three). 13 In Ground Three, petitioner claims that an erroneous jury instruction on the 14 natural and probable consequences doctrine as a theory of liability violated his 15 federal constitutional rights. (Petition at ¶ 7a; Petition Mem. at 23-34; Reply at 7- 16 9.) 17 The jury was instructed on two theories of petitioner’s liability of first degree 18 premeditated murder: (1) Petitioner directly aided and abetted Guerrero in 19 committing murder; or (2) the murder was the natural and probable consequence of 20 a target offense that petitioner aided and abetted, specifically, assault, battery, or 21 disturbing the peace. (10 RT 2003-09; 5 CT 1230-33.) After petitioner’s trial 22 ended but before his conviction became final, the California Supreme Court held in 23 People v. Chiu, 59 Cal. 4th 155, 167 (2014), that the second theory of murder was 24 invalid: “[A] defendant cannot be convicted of first degree premeditated murder 25 under the natural and probable consequences doctrine.” 26 Based on the decision in Chiu, the California Court of Appeal held in this 27 case that the instruction on the natural and probable consequences doctrine as a 28 theory of first degree premeditated murder was erroneous. But the Court of Appeal 1 also held that the error was harmless because it was evident from the verdict that 2 the jury found petitioner guilty of murder under the alternative and valid theory of 3 direct aiding and abetting. (Lodgment 27 at 6-8.) 4 Likewise, the instructional error in this case is harmless on federal habeas 5 review because it did not have a substantial and injurious effect or influence in 6 determining the jury’s verdict as to petitioner’s conviction of murder. See Brecht v. 7 Abrahamson, 507 U.S. 619, 637 (1993). Any error under Chiu in instructing the 8 jury about the natural and probable consequences doctrine as a theory of murder 9 was harmless because that doctrine is inconsistent with the jury’s verdict, which 10 instead was based on a valid ground. See Chiu, 59 Cal. 4th at 167 (an erroneous 11 instruction about natural and probable consequences, or about an incorrect theory of 12 guilt, can be harmless if “there is a basis in the record to find that the verdict was 13 based on a valid ground”); see also Hedgpeth, 555 U.S. at 61 (where an 14 instructional error arises in the context of multiple theories of guilt, only one of 15 which is incorrect, the error does not vitiate all of the jury’s findings and is subject 16 to harmless error analysis). The jury necessarily found, as support for a valid 17 theory of direct aiding and abetting, that petitioner had the intent to kill (rather than 18 merely the intent to commit a lesser target crime such as assault, battery, or 19 disturbing the peace, under the doctrine of natural and probable consequences). 20 This was evidenced by the jury’s true finding, under the special circumstances 21 allegation of § 190.2(a)(22), that petitioner and the actual shooter each 22 “intentionally killed Abraham Ortega.” (10 RT 2056; 5 CT 1275.) Since the jury’s 23 finding in this regard was a basis in the record to conclude that the verdict was 24 based on a valid theory of murder, petitioner was not entitled to relief under Chiu 25 because the instructional error as to his murder conviction was harmless. 26 Petitioner further argues that even if the jury did find that he intentionally 27 killed Abraham Ortega, this does not mean that petitioner acted with premeditation 28 and deliberation under a theory of direct aiding and abetting. (Petition Mem. at 29.) 1 To the contrary, under California law, when the evidence establishes the 2 accomplice’s knowledge of the direct perpetrator’s intent to kill, the accomplice’s 3 premeditation can be reasonably inferred. See People v. Samaniego, 172 Cal. App. 4 4th 1148, 1166 (2009) (“It would be virtually impossible for a person to know of 5 another’s intent to murder and decide to aid in accomplishing the crimes without at 6 least a brief period of deliberation and premeditation, which is all that is required” 7 for first-degree murder). The evidence in this case established that petitioner 8 decided to assist in the killing with full awareness of the actual shooter’s murderous 9 purpose: Petitioner (also known as “Turtle”) decided to participate in the fight after 10 having been present earlier during a phone call in which the actual shooter was 11 summoned to bring a gun to the fight; and after the actual shooter arrived with a 12 gun, petitioner continued to fight. (2 RT 263-64, 282; 4 RT 858-61; 5 RT 910-11.) 13 From this evidence, the jury could have reasonably inferred premeditation and 14 deliberation by petitioner. 15 Finally, although Chiu addressed a conviction of murder, petitioner argues 16 that the reasoning of Chiu applies not just to his murder conviction, but also 17 extends to his convictions of premeditated attempted murder. (Petition Mem. at 29- 18 34.) The California Court of Appeal rejected this argument because it was bound 19 by People v. Favor, 54 Cal. 4th 868, 879-80 (2012), which holds that a petitioner 20 could be found guilty of premeditated attempted murder under the natural and 21 probable consequences doctrine. (Lodgment 27 at 8 n.4.) Petitioner concedes that 22 the Court of Appeal was bound by the California Supreme Court’s decision in 23 Favor, yet he somehow also argues that Chiu overruled Favor “sub silencio.” 24 (Petition Mem. at 29, 33.)2 25 26 2 After the California Court of Appeal issued its decision in this case, the California Supreme Court did grant review in a similar case to consider whether it should reconsider Favor, 27 and the issue is still pending. See People v. Mateo (Review granted May 11, 2016, S232674). Petitioner does not claim that his federal habeas claim of instructional error depends on the 28 outcome of the Mateo proceeding. 1 To the extent that petitioner is now asking the Court to second-guess the 2 || California Court of Appeal’s determination of the applicability of its own criminal 3 || laws in light of then-existing state precedent, it is not within the province of the 4 || Court to do so. See Bradshaw, 546 U.S. at 76; see also Mullaney v. Wilbur, 421 5 || U.S. 684, 691 (1975) (accepting as binding state court’s construction of state 6 || homicide law); see also Martin v. Ohio, 480 U.S. 228, 232 (1987) (noting the 7 || “preeminent role of the States in preventing and dealing with crime and the 8 || reluctance of the Court to disturb a State’s decision with respect to the definition of 9 || criminal conduct’); Powell v. State of Texas, 392 U.S. 514, 535-36 (1968) (noting 10 || that the definition of the elements of a crime and defenses “has always been thought 11 || to be the province of the States”). Accordingly, 1t was not objectively unreasonable 12 || for the California Court of Appeal to reject petitioner’s instructional-error claim 13 || with respect to his convictions of premeditated attempted murder. 14 15 RECOMMENDATION 16 IT THEREFORE IS RECOMMENDED that the District Court issue an 17 || Order: (1) accepting and adopting this Report and Recommendation; and 18 || (2) directing that Judgment be entered denying the Petition and dismissing this 19 |! action with prejudice. 20 21 || DATED: February 6, 2017 : Cty Woke — 23 ALEXANDER F.MacKINNON UNITED STATES MAGISTRATE JUDGE

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