1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 ROBERT LEWIS, JR., ) NO. CV 19-5942 AB (AS) ) 11 Petitioner, ) ) ORDER ACCEPTING FINDINGS, 12 v. ) ) CONCLUSIONS AND RECOMMENDATIONS OF 13 RONALD DAVIS, Warden, ) ) UNITED STATES MAGISTRATE JUDGE 14 Respondent. ) ) 15 ) 16 17 Pursuant to 28 U.S.C. section 636, the Court has reviewed the 18 Petition, all of the records herein, the attached Report and 19 Recommendation of a United States Magistrate Judge (“R&R”), and 20 Petitioner’s Objections to the R&R. After having made a de novo 21 determination of the portions of the R&R to which objections were 22 directed, the Court concurs with and accepts the findings and 23 conclusions of the Magistrate Judge. In so doing, the Court briefly 24 addresses certain arguments raised in Petitioner’s Objections. 25 26 Petitioner identifies several purported errors in the R&R. For 27 instance, while discussing jury instructions, Petitioner asserts that 28 1 “an instruction on second degree murder was not given.” (Objections at 2 30). He then argues: 3 4 The Magistrate Judge states that the trial court instructed 5 the jury on second degree murder. Report at 72, n. 24. 6 However, that is incorrect. The Magistrate Judge cites a 7 portion of the Reporter’s Transcript, 4RT 803-04, which 8 reports a chambers conference with both counsel regarding the 9 penalty phase instruction regarding the governor’s power to 10 grant a reprieve or pardon. Since that portion of the 11 transcript is clearly after the guilt verdict, it cannot 12 relate to a guilt phase instruction. 13 14 (Objections at 30). Petitioner’s objection is specious. The R&R 15 correctly cites the portion of the trial transcript in which the trial 16 court instructed the jury with CALJIC 8.30 (unpremeditated murder of the 17 second degree). (See R&R at 72 n.24; CT 119; RT 803-04).1 In any event, 18 it is hard to see where this objection gets Petitioner. Even if the R&R 19 had cited the wrong page, it would not change the underlying fact that 20 – as the record clearly demonstrates – the jury was instructed on second 21 degree murder. Habeas counsel is presumably familiar with the record, 22 and he has a duty of candor to the Court. Yet, despite this duty and 23 Fed. R. Civ. P. 11, habeas counsel chose to mischaracterize the record 24 and make a frivolous objection. See Hyp3r Inc. v. Mogimo Inc., 2017 WL 25 11515712, *3 n.2 (N.D. Cal. 2017) (“[K]nowingly making a frivolous 26 27 1 The Objections do not mention that the R&R footnote in question also cited the correct page of the Clerk’s Transcript setting forth 28 CALJIC 8.30. 2 1 argument runs afoul of Federal Rule of Civil Procedure 11 and 2 [counsel’s] duty of candor to the Court.”). 3 4 Nor is this an isolated instance. Habeas counsel also accuses the 5 R&R of “misquot[ing] the transcript” during the discussion of defense 6 counsel’s closing argument, asserting the R&R “states that [defense 7 counsel] said . . . ‘I think there is something else involved.’ [R&R] 8 at 97:18-19. Critically, the actual transcript says, ‘I think there is 9 somebody else involved.’ 4 RT 750.” (Objections at 47). But once 10 again, habeas counsel’s accusations are inaccurate. First, the page 11 habeas counsel cites is part of the prosecutor’s closing argument and 12 does not contain the quote habeas counsel discusses. (See RT 750). 13 Second, and more importantly, the R&R correctly quotes defense counsel’s 14 closing argument. (See R&R at 97). Defense counsel said “I think there 15 is something else involved” not “I think there is somebody else 16 involved.” (RT 777). Third, it is unclear what habeas counsel hopes to 17 gain by misquoting the record since the R&R also accurately quoted the 18 very next line of defense counsel’s closing argument, which said “Do you 19 think there is somebody else that could have been involved with Mr. 20 Lewis?” (RT 777; see R&R at 97). Whether defense counsel referenced 21 “somebody” once or twice does not alter the basis of Petitioner’s 22 ineffective assistance of counsel claim. However, “[l]egal arguments 23 depend on facts and so lawyers have a responsibility to recite the 24 record fairly and accurately.” Frunz v. City of Tacoma, 476 F.3d 661, 25 665 (9th Cir. 2007). Habeas counsel’s blatant mischaracterizations of 26 the record do not enhance the credibility of Petitioner’s Objections. 27 Cf. Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (“Lawyers are not 28 called ‘counsel’ for nothing. The judge is counseled by the lawyers as 3 1 to how he should proceed. The attentiveness with which the judge 2 listens to the lawyers’ advice is tempered by his judgment about the 3 credibility of the particular lawyer.”). 4 5 Nor is this all. In discussing Ground Five – Petitioner’s claim 6 that defense counsel provided ineffective assistance in failing to 7 determine whether a mental defense was available – the R&R provided a 8 brief background on the admissibility of certain mental health evidence, 9 accurately stating: 10 11 At the time of Petitioner’s trial – and currently – California 12 law precluded use of “[e]vidence of mental disease, mental 13 defect, or mental disorder” to negate the capacity to form any 14 mental state; rather, such evidence is admissible solely on 15 the issue of “whether or not the accused actually formed a 16 required specific intent, premeditated, deliberated, or 17 harbored malice aforethought, when a specific intent crime is 18 charged.” 19 20 (R&R at 88 (quoting P.C. § 28(a) (1983)). However, in his Objections, 21 habeas counsel asserts: 22 23 [W]e respectfully point out that the Report misstates the law 24 regarding the admissibility of expert testimony on mental 25 states. “While it is true that California Penal Code [“P.C.”] 26 [§] 28 prohibited expert testimony on the ultimate issue of 27 whether a person had the capacity to form a particular intent 28 or mental state, it did not preclude evidence as to the 4 1 defendant’s mental state at the time of the events. .. . 2 [T]lhen as now, the ultimate question of capacity to form 3 intent or mental state was reserved to the jury but evidence 4 of a defendant’s mental condition was admissible through 5 expert and lay testimony. [T] Having addressed that 6 fundamental misconception, the rest is evident. 7 (Objections at 41). Once again, habeas counsel has fundamentally misconstrued the record. As is clear from the language set forth above, 10 |} the R&R never stated that all expert testimony on mental states was inadmissible, it simply quoted P.C. § regarding the limits of 12 | certain mental health evidence.* In essence, habeas counsel has set up 13 ]/a “straw man” argument to deflect from the issues raised in the R&R.° 14 15 * Moreover, in addition to quoting P.C. § 28(a), the R&R also cited 16 Ben-Sholom v. Ayers, 674 F.3d 1095, 1100 (9th Cir. 2012), which states: 17 Under California law, evidence of “mental disease, mental defect, or mental disorder” cannot be used to show or negate 18 capacity to form intent but rather only to show “whether or not the accused actually formed a required specific 19 intent. . . .” Under this benchmark, the trier of fact makes 20 the determination, and experts may not offer opinions on the ultimate issue.” 21 Id. at 1100 (citing P.C. $§ 28(a), 29). Habeas counsel fails to discuss 22 this citation. 23 > To support his “straw man” argument, habeas counsel cites People Pearson, 56 Cal.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 ROBERT LEWIS, JR., ) NO. CV 19-5942 AB (AS) ) 11 Petitioner, ) ) ORDER ACCEPTING FINDINGS, 12 v. ) ) CONCLUSIONS AND RECOMMENDATIONS OF 13 RONALD DAVIS, Warden, ) ) UNITED STATES MAGISTRATE JUDGE 14 Respondent. ) ) 15 ) 16 17 Pursuant to 28 U.S.C. section 636, the Court has reviewed the 18 Petition, all of the records herein, the attached Report and 19 Recommendation of a United States Magistrate Judge (“R&R”), and 20 Petitioner’s Objections to the R&R. After having made a de novo 21 determination of the portions of the R&R to which objections were 22 directed, the Court concurs with and accepts the findings and 23 conclusions of the Magistrate Judge. In so doing, the Court briefly 24 addresses certain arguments raised in Petitioner’s Objections. 25 26 Petitioner identifies several purported errors in the R&R. For 27 instance, while discussing jury instructions, Petitioner asserts that 28 1 “an instruction on second degree murder was not given.” (Objections at 2 30). He then argues: 3 4 The Magistrate Judge states that the trial court instructed 5 the jury on second degree murder. Report at 72, n. 24. 6 However, that is incorrect. The Magistrate Judge cites a 7 portion of the Reporter’s Transcript, 4RT 803-04, which 8 reports a chambers conference with both counsel regarding the 9 penalty phase instruction regarding the governor’s power to 10 grant a reprieve or pardon. Since that portion of the 11 transcript is clearly after the guilt verdict, it cannot 12 relate to a guilt phase instruction. 13 14 (Objections at 30). Petitioner’s objection is specious. The R&R 15 correctly cites the portion of the trial transcript in which the trial 16 court instructed the jury with CALJIC 8.30 (unpremeditated murder of the 17 second degree). (See R&R at 72 n.24; CT 119; RT 803-04).1 In any event, 18 it is hard to see where this objection gets Petitioner. Even if the R&R 19 had cited the wrong page, it would not change the underlying fact that 20 – as the record clearly demonstrates – the jury was instructed on second 21 degree murder. Habeas counsel is presumably familiar with the record, 22 and he has a duty of candor to the Court. Yet, despite this duty and 23 Fed. R. Civ. P. 11, habeas counsel chose to mischaracterize the record 24 and make a frivolous objection. See Hyp3r Inc. v. Mogimo Inc., 2017 WL 25 11515712, *3 n.2 (N.D. Cal. 2017) (“[K]nowingly making a frivolous 26 27 1 The Objections do not mention that the R&R footnote in question also cited the correct page of the Clerk’s Transcript setting forth 28 CALJIC 8.30. 2 1 argument runs afoul of Federal Rule of Civil Procedure 11 and 2 [counsel’s] duty of candor to the Court.”). 3 4 Nor is this an isolated instance. Habeas counsel also accuses the 5 R&R of “misquot[ing] the transcript” during the discussion of defense 6 counsel’s closing argument, asserting the R&R “states that [defense 7 counsel] said . . . ‘I think there is something else involved.’ [R&R] 8 at 97:18-19. Critically, the actual transcript says, ‘I think there is 9 somebody else involved.’ 4 RT 750.” (Objections at 47). But once 10 again, habeas counsel’s accusations are inaccurate. First, the page 11 habeas counsel cites is part of the prosecutor’s closing argument and 12 does not contain the quote habeas counsel discusses. (See RT 750). 13 Second, and more importantly, the R&R correctly quotes defense counsel’s 14 closing argument. (See R&R at 97). Defense counsel said “I think there 15 is something else involved” not “I think there is somebody else 16 involved.” (RT 777). Third, it is unclear what habeas counsel hopes to 17 gain by misquoting the record since the R&R also accurately quoted the 18 very next line of defense counsel’s closing argument, which said “Do you 19 think there is somebody else that could have been involved with Mr. 20 Lewis?” (RT 777; see R&R at 97). Whether defense counsel referenced 21 “somebody” once or twice does not alter the basis of Petitioner’s 22 ineffective assistance of counsel claim. However, “[l]egal arguments 23 depend on facts and so lawyers have a responsibility to recite the 24 record fairly and accurately.” Frunz v. City of Tacoma, 476 F.3d 661, 25 665 (9th Cir. 2007). Habeas counsel’s blatant mischaracterizations of 26 the record do not enhance the credibility of Petitioner’s Objections. 27 Cf. Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (“Lawyers are not 28 called ‘counsel’ for nothing. The judge is counseled by the lawyers as 3 1 to how he should proceed. The attentiveness with which the judge 2 listens to the lawyers’ advice is tempered by his judgment about the 3 credibility of the particular lawyer.”). 4 5 Nor is this all. In discussing Ground Five – Petitioner’s claim 6 that defense counsel provided ineffective assistance in failing to 7 determine whether a mental defense was available – the R&R provided a 8 brief background on the admissibility of certain mental health evidence, 9 accurately stating: 10 11 At the time of Petitioner’s trial – and currently – California 12 law precluded use of “[e]vidence of mental disease, mental 13 defect, or mental disorder” to negate the capacity to form any 14 mental state; rather, such evidence is admissible solely on 15 the issue of “whether or not the accused actually formed a 16 required specific intent, premeditated, deliberated, or 17 harbored malice aforethought, when a specific intent crime is 18 charged.” 19 20 (R&R at 88 (quoting P.C. § 28(a) (1983)). However, in his Objections, 21 habeas counsel asserts: 22 23 [W]e respectfully point out that the Report misstates the law 24 regarding the admissibility of expert testimony on mental 25 states. “While it is true that California Penal Code [“P.C.”] 26 [§] 28 prohibited expert testimony on the ultimate issue of 27 whether a person had the capacity to form a particular intent 28 or mental state, it did not preclude evidence as to the 4 1 defendant’s mental state at the time of the events. .. . 2 [T]lhen as now, the ultimate question of capacity to form 3 intent or mental state was reserved to the jury but evidence 4 of a defendant’s mental condition was admissible through 5 expert and lay testimony. [T] Having addressed that 6 fundamental misconception, the rest is evident. 7 (Objections at 41). Once again, habeas counsel has fundamentally misconstrued the record. As is clear from the language set forth above, 10 |} the R&R never stated that all expert testimony on mental states was inadmissible, it simply quoted P.C. § regarding the limits of 12 | certain mental health evidence.* In essence, habeas counsel has set up 13 ]/a “straw man” argument to deflect from the issues raised in the R&R.° 14 15 * Moreover, in addition to quoting P.C. § 28(a), the R&R also cited 16 Ben-Sholom v. Ayers, 674 F.3d 1095, 1100 (9th Cir. 2012), which states: 17 Under California law, evidence of “mental disease, mental defect, or mental disorder” cannot be used to show or negate 18 capacity to form intent but rather only to show “whether or not the accused actually formed a required specific 19 intent. . . .” Under this benchmark, the trier of fact makes 20 the determination, and experts may not offer opinions on the ultimate issue.” 21 Id. at 1100 (citing P.C. $§ 28(a), 29). Habeas counsel fails to discuss 22 this citation. 23 > To support his “straw man” argument, habeas counsel cites People Pearson, 56 Cal. 4th 393 (2013), which stated, among other things, the undisputed proposition that P.C. §§ 28 and 29 “‘leave an expert 95 || considerable latitude to express an opinion on the defendant’s mental condition at the time of offense, within the confines, of course, of its 26 | twin prohibitions: no testimony on the defendant’s capacity to have, or actually having, the intent required to commit the charged crime.’” Id. 451. Although not cited by habeas counsel, Pearson also commented 58 that P.c. § 28(a) “precludes evidence showing diminished capacity, although it permits evidence of mental disease to be admitted ‘solely on
1 In particular, the R&R recommends rejecting Ground Five because it is 2 vague and conclusory, “defense counsel consulted with two mental health 3 experts and, based on their opinions, declined to pursue a mental health 4 defense[,]” and Petitioner cannot demonstrate prejudice. (R&R at 88- 5 94). Petitioner’s Objections provide no basis for rejecting these 6 conclusions. 7 8 Finally, the Objections argue the R&R erred in discussing Ground 9 Six, which asserted defense counsel was ineffective in failing to fully 10 prepare an alibi defense. In particular, as part of Ground Six, 11 Petitioner claimed that defense counsel was ineffective in failing to 12 “‘call Petitioner’s wife for the simple purpose of verifying 13 Petitioner’s prior use of the vehicle.’” (R&R at 95 (citing Petition at 14 44-47)). However, citing multiple cases such as United States v. Berry, 15 814 F.2d 1406 (9th Cir. 1987), the R&R recommended rejecting this 16 contention, stating “Petitioner has not provided the declaration of his 17 wife or any other competent evidence indicating she was available and 18 willing to testify on Petitioner’s behalf and providing the substance of 19 such testimony. Accordingly, Petitioner’s claim is without merit.” Id. 20 at 96 (footnote omitted). However, Petitioner contends the R&R’s 21 analysis is erroneous under Alcala v. Woodford, 334 F.3d 862 (9th Cir. 22 2003). 23 24 25 the issue of whether or not the accused actually formed a required 26 specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.’” Id. at 450 27 (quoting P.C. § 28(a)). In other words, the case habeas counsel relies upon to argue the R&R misconstrues the law supports the R&R’s completely 28 accurate recitation of California law as set forth in P.C. § 28(a). 6 1 In Alcala, the Ninth Circuit distinguished Berry and related cases 2 in a situation in which Alcala’s trial counsel failed to call a Knotts 3 Berry Farm employee as an alibi witness after the employee had been 4 interviewed by the police, provided a tape-recorded interview to a 5 defense investigator, and been subpoenaed for trial. Alcala, 334 F.3d 6 at 870-72. In so doing, the Ninth Circuit explained that “[t]he fact 7 that [the witness] was under subpoena to testify is sufficient to 8 establish, by a preponderance of the evidence, that she could have been 9 called to testify, and the [police and recorded] interviews submitted at 10 the evidentiary hearing were sufficient to establish what her testimony 11 would have been.” Id. at 872. Here, however, Petitioner has not shown 12 his wife – who he has not even identified by name – was subpoenaed for 13 trial or could have been called to testify. Moreover, Petitioner has 14 not presented any evidence comparable to the police report and recorded 15 interview establishing the substance of Petitioner’s wife’s testimony. 16 Instead, the only evidentiary support Petitioner presents is the 17 declaration of defense counsel’s investigator, Kristina Kleinbauer, who 18 stated “I also spoke with [Petitioner’s] father and wife who confirmed 19 that he had used the car before the prosecution said he stole it and 20 killed the owner.” (Kleinbauer Decl., ¶ 9). This single vague hearsay 21 statement is not akin to the police interview and tape-recorded 22 statement given in Alcala. Accordingly, Alcala is distinguishable and 23 the R&R appropriately cited Berry and related cases. Anyway, even if 24 this was not the case, Petitioner has not, and cannot, show prejudice. 25 26 Petitioner’s remaining objections are without merit for the reasons 27 set forth in the R&R. 28 7 1 IT IS ORDERED that Judgment be entered denying the Petition with 2 || prejudice. 3 4 IT IS FURTHER ORDERED that the Clerk serve copies of this Order, 5 || the Magistrate Judge’s Report and Recommendation and the Judgment herein 6 |} on counsel for Petitioner and counsel for Respondent. 7 8 LET JUDGMENT BE ENTERED ACCORDINGLY. 9 10 DATED: November 25, 2020. (nd 12 ANDRE BIROTTE, JR. 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28