Opinion
No. C 01-3957 SI (pr)
October 22, 2002
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
This matter is now before the court for consideration of the merits of Darryl Francis' pro se petition for writ of habeas corpus concerning his 1999 murder conviction. For the reasons discussed below, the petition will be denied.
BACKGROUND
A. Procedural History
Francis was convicted in a jury trial in the San Francisco County Superior Court of second degree murder, with use of a firearm, and of being a felon in possession of a firearm. See Cal. Penal Code §§ 187, 12021(a)(1), 12022(a)(1). The jury also found that Francis had two prior serious felony convictions. See Cal. Penal Code §§ 667(a), 1170.12. On August 2, 1999, the court sentenced Francis to prison for a term of 62 years to life in prison.
Francis appealed. His conviction was affirmed by the California Court of Appeal and his petition for review was denied by the California Supreme Court. He did not file any petition for writ of habeas corpus in state court.
First filed this action on October 2001, and alledged for grounds for relief in his habeas petition First, he contended that the jury instructions violated his right to due process by improperly requiring him to prove by a preponderance of the evidence that the victim of a crime committed prior acts of violence. Second, he contended that the trial court erroneously refused to give the CALJIC 3.37 jury instruction, thereby lessening the prosecution's burden of proof in violation of Francis' rights under the U.S. Constitution. Third, he claimed that the use of the CALJIC 17.41.1 jury instruction violated his rights to trial by jury and due process. Fourth, he apparently claimed that the use of a prior juvenile conviction was improper because his guilty plea was set aside and the cause dismissed pursuant to California Welfare and Institutions Code § 1772. The court dismissed the fourth claim. The parties have briefed the merits of the first three claims and the matter is ready for a decision.
B. The Crime
Francis shot and killed Paxton Robinson about 7:00 on Apri 9, 1997 on a street corner in San Francisco's Tenderloin district. He contended the shooting was self-defense.
Ray George witnessed the incident. When George raised the blinds of his apartment window, he noticed two men who appeared to be conversing at the corner of Taylor Street and Derby Alley. One of the men wore an orange street sweeper vest and held a broom. About five' seconds later, George heard four or five pops and saw the man in the orange vest run into Taylor Street, spin around, stumble and cross the street out of George's line of sight. George also saw the shooter standing on the curb with his arm outstretched, and later walking away very calmly. George did not hear any yelling or arguing between the two men before the shooting.
Michael Allaire also witnessed the incident, which occurred as he arrived at his office. Allaire heard a pop and saw Francis with both arms extended and shooting toward the middle of the street. Allaire heard 5-6 more pops, saw fire coming from Francis' gun muzzle, and saw Robinson get up and struggle toward the other side of the street, where he fell on the sidewalk. Allaire saw Francis walk slowly down the street; Allaire followed him until he was able to flag down a police officer and point out Francis as the shooter. Francis was caught; he had a plastic bag with a semi-automatic pistol in it.
Evidence was presented at trial that Robinson beat up Francis in late February (a couple of months before the killing) and that Francis bought his gun the day before the shooting. Evidence also was presented that people in the neighborhood cautioned Francis to be wary of Robinson because he was a thug, that Robinson had threatened Francis the day before the shooting, and that Robinson menaced many people in his Tenderloin area. And evidence was presented that Francis had a longstanding injury to a finger on his right hand for which he had had numerous surgeries and which was fractured when Robinson beat him up in late February.
The California Court of Appeal described the defense version of events on the morning of the shooting:
The morning of the shooting appellant left his apartment at the Dalt Hotel at about 5:30 a.m. to get coffee at 6th and Market Streets but did not take the gun with him. At about 6:30 a.m., he left the hotel a second time to get coffee at the Tenderloin Liquor Store, located a few doors from his a apartment. He did not take the gun even though he had previously fought with Robinson at the Tenderloin Liquor Store [in late February]. At about that time the people who sweep the streets "for welfare" were showing up to get their brooms from the toolbox, located near appellant's hotel. Appellant knew that Robinson was such a person. At about 6:45 a.m., appellant his apartment a third time to go to Boeddeker Park and took the gun with him, tucking it into his pants. On the way home appellant saw Robinson and tried to avoid him. However, Robinson said, "What's up?" and holding a broom, said, "You want some more of this?" Robinson then stepped toward appellant and struck him in the face. Afraid, appellant pulled out his run, aimed at Robinson's leg, intending to scare him, but the shot missed. Apse an hoped he would not drop the gun because he could "hardly hold it." Robinson called appellant a coward and swung the broom at him. Appellant then fired the remaining six shots until the gun was empty, aiming at Robinson's leg, trying to stop Robinson from hurting him again. After seeing Robinson cross the street and fall appellant walked toward his house, wrapped a handkerchief around the and put it in a plastic bag that he found on the ground.
Cal. Ct. App. Opinion, p. 4. Right after his arrest, Francis told police he did not know Robinson, denied responsibility and denied having a gun. He later told police that he fired all seven shots before Robinson finished swinging the broom at him and turned to run. Francis testified that his right hand was more sensitive and that he had lost range of motion in his finger, although he shot the gun with his right hand and used his right hand for basic tasks. Francis testified that at the time he shot Robinson he "was not necessarily afraid that Robinson would again injure his hand. Instead he was afraid `that harm would come . . . to [his] whole person, not just one spot on [his] body.'" Id at 5.
DISCUSSION
A. Standard of Review
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d); see Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000).
B. Exhaustion
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust states judicial remedies, either on direct appeal or through collateral proceedings, by presenting then highest state court available with a fair opportunity to rule on the merits of each and every' claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c). The parties do not dispute That state court remedies were exhausted for the three claims now before the court.
C. Claims
1. Jury Instruction Regarding Victim's Prior Violence
Evidence was introduced at trial that Paxton Robinson, the victim, was a bully who had menaced and harmed many different people in his Tenderloin neighborhood. Francis introduced evidence that, in the past, Robinson had assaulted two hotel security guards, assaulted a shopper in a grocery store, assaulted a person in the street, struggled with a police officer, and slapped his girlfriend during an argument. In addition to this evidence, stipulated evidence of other prior violent acts by Robinson was admitted after the court ordered the prosecution to stipulate to the six additional violent acts because the prosecution delayed production of numerous police reports. The stipulated evidence was that Robinson punched someone in a liquor store and later pled guilty to felony assault and intentional infliction of great bodily injury for the incident, Robinson hit a hotel resident in the face and was arrested therefor, Robinson threatened and assaulted a hotel desk clerk and the police were called to respond, Robinson influenced several neighborhood youths to sit on a woman's car while he verbally abused her and threatened to harm her and her car, Robinson broke the glass of a bus shelter but told police the admitted breakage was unintentional, and he chased and hit someone with a stick and was thereafter detained by police. The jury was instructed: "During this trial, you were given evidence of certain aggressive behavior and violent acts by Mr. Paxton Robinson. Such evidence may be considered by you to prove whether or not on April 9, 1997, Mr. Robinson acted in conformity with such behavior and acts. In order for you to consider any incident of aggressive behavior or violent act, however, it must be proven to you by a preponderance of the evidence that it occurred." RT 934.
Francis contends that the jury instruction unconstitutionally shifted to him the burden of proof regarding a component of his defense of self-defense and made it easier for the' prosecution to meet its burden of disproving self-defense. He also contends that the jury instructions conflicted in that the jury was instructed that stipulated facts were to be regarded as true and proven for all purposes at trial but also was instructed as noted above, i.e., that evidence of the victim's past aggressive behavior and violent acts had to be. proven by a preponderance of the evidence.
The state appellate court rejected Francis' claim, finding any error harmless. The court explained that the jury instructions had to be read together and understood in context as presented to the jury. The instruction was based on California Evidence Code § 1103(a), but neither § 1103 nor case law interpreting it explained what, if any, burden of proof is placed on the defendant to establish the reputation or act before the jury may take it into account. Cal. Ct. App. Opinion, pp. 8-9. But the absence of a specific allocation of the burden of proof was not necessary in Francis' case because the evidence of Robinson's prior violent acts and aggressive behavior was undisputed.
There was no reasonable basis for the jury to disbelieve such evidence, regardless of the burden of proof prescribed by the court. In addition, the trial court properly instructed the jury that the People had the burden of proving him guilty beyond a reasonable doubt (CALJIC 2.90), of is roving self-defense, and of p roving beyond a reasonable doubt that the homicide was unjustified (CALJIC No. 5.12, 5.13, 5.15). (See People v. Banks (1976) 67 Cal.App.3d 379, 383-384.) Neither the challenged instruction, nor any other instruction informed the jury that defendant bore the burden of proof on any element of the charged offenses or of establishing self-defense. Therefore, any error in placing the burden of proof was harmless.
Cal. Ct. App. Opinion, p. 9.
The California Court of Appeal also saw as harmless the other alleged problem with the instructions. The court agreed with Francis' contention that the instruction requiring proof of "any incident of aggressive behavior or violent act" by a preponderance of the evidence conflicted with the instruction that the stipulated facts (i.e., Robinson's violent acts) must be regarded as true and proven for all purposes at trial. However, the court concluded that any error on this front was harmless because the evidence of Robinson's prior violent acts and aggressive behavior was undisputed.
To obtain federal habeas relief for errors in the jury charge, the petitioner must show that "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process."Estelle v. McGuire, 502 U.S. 62, 72 (1991) (internal quotes omitted) The instruction may not be judged in artificial isolation, but must be considered in the context if the instructions as a whole and the trial record. Id. at 72. In reviewing an ambiguous instruction, the court must inquire whether there is a "reasonable likelihood" that the jury has applied the challenged instruction in a way that violates the Constitution. See id. at 72 n. 4. A determination that there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution establishes only that an error has occurred. See Calderon v. Coleman, 525 U.S. 141, 146-47 (1998). If an error is found, the court also must determine that the error had a substantial and injurious effect or influence in determining the jury's verdict, see Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), before granting relief in habeas proceedings. See Calderon v. Coleman, 525 U.S. at 146.
The state court's determination that any error was harmless was not contrary to or an unreasonable application of clearly established federal law. Regardless of whether the instruction misstated California law on the burden of proving prior bad acts — an issue the state court did not decide and that this court need not decide — it did not rise to the level of a constitutional violation.
The fact that an instruction is incorrect under state law is not alone enough to warrant federal habeas relief. See Estelle v. McGuire 502 U.S. at 71-72.
The jury was correctly instructed that the prosecution had the burden of proving beyond a reasonable doubt that a defendant did not act in justifiable self-defense. RT 946. The challenged instruction did not take away from that correct instruction. The success of Francis' defense of self-defense turned on the events that occurred on the day of the killing. Robinson's prior violence was introduced to make more believable Francis' story that Robinson acted violently toward Francis on the day he was killed. If the jury believed that Robinson had been violent in the past, it could use that to decide that Robinson acted in conformity with such prior violence, i.e., whether he acted violently on the day he was killed. However, Robinson's prior violence was not an element or a necessary part of the defense of self-defense.
In considering the effect of the challenged instruction, this court, like the state appellate court, is greatly influenced by the fact that the evidence of prior violent acts was not disputed. Six of the prior violent acts were introduced as stipulated facts and the remainder of the prior violent acts came in virtually undisputed. In fact, the prosecutor relied on the prior bad acts to make a significant point in his rebuttal closing argument. See RT 903-904 (prosecutor arguing that part of the pattern of Robinson's prior aggressive acts was that he was loud, but neither of the eyewitnesses heard any argument the morning Robinson was shot and killed). See also RT 870 (prosecutor mentioning earlier fight between Francis and Robinson); RT 896-898. (prosecutor acknowledging earlier fight between Francis and Robinson, but disputing Francis' version of it). Because no real question was raised as to whether Robinson actually had committed violent acts in the past, the instruction requiring proof of those acts by a preponderance of the evidence did not so infect the entire trial that the resulting conviction violated due process. A jury completely certain that Robinson frequently bullied and assaulted people in the neighborhood would not necessarily have found that Francis acted in self-defense on the day of the killing.
There is no reasonable likelihood that the jury confused its duty with regard to the stipulated facts even though an ambiguity may have existed in the instructions that told the jury that stipulated facts were to be regarded as true and proven for all purposes at trial while also telling the jury that evidence of the victim's prior violent acts had to be proven by a preponderance of the evidence. Even if the jury had understood the instructions to require proof of prior violent acts by a preponderance of the evidence, such an understanding would not have made any difference for the reasons discussed in the preceding paragraph.
No due process violation resulted from the instructions given and, even assuming there was error, such error did not have a substantial and injurious effect or influence in determining the jury's verdict. The state appellate court's rejection of Francis' claim was not contrary to or an unreasonable application of clearly established federal law. Francis is not entitled to the writ of habeas corpus on this claim.
2. Refusal To Given CALJIC 3.37
Francis next contends that his right to due process was violated when The trial court refused to include the CALJIC 3.37 instruction in the jury instructions. That instruction' provides: "The amount of knowledge a reasonable person with impaired physical faculties should possess under particular circumstances is the knowledge which a person of ordinary prudence with similarly impaired faculties would have under circumstances similar to those shown by the evidence." CALJIC 3.37. Francis argues the court should have given the CALJIC 3.37 instruction to account for his serious hand injuries and that failing to do so lessened the prosecution's burden of proof.
The California Court of Appeal rejected Francis' claim of instructional error. The court explained that "[i]nstructions requested by the defense are required only if the defendant presents substantial evidence, i.e., evidence from which a jury composed of reasonable persons could conclude that the particular facts underlying the instruction exist" and that the trial court correctly concluded that the instruction was unwarranted under the evidence. Cal. Ct. App. opinion, p. 10. The state appellate court also discussed the unusual case upon which the instruction was based, People v. Mathews, 25 Cal.App.4th 89 (1994). In Mathews, the defendant was charged with exhibiting a firearm in the presence of a peace officer, an element of which was that the defendant knew or reasonably should have known that the person was a peace officer. The defendant presented evidence that he was legally blind and hearing impaired and therefore did not know that he was pointing his weapon at a peace officer. The appellate court in Mathews reversed the conviction, concluding that the trial court erred in failing to instruct on sensory impairment as a theory of defense given the defendant's sensory disabilities. See Mathews, 25 Cal.App.4th at 98-100.
In Francis' case, the California Court of Appeal found that, unlike the situation in Mathews, no substantial evidence justified giving the physical impairment instruction in Francis' case. "Evidence was presented that appellant's right ring and small fingers had been injured several times in the course of appellant's altercations. As a result, he suffered residual crookedness of the tip of his right ring finger, and contractures and pain in his right ring and' small fingers. However, there was no evidence presented that such residual problems impaired. appellant's daily functioning or resulted in his shooting of Robinson." Cal. Ct. APP. Opinion 11. The state appellate court also noted that the "focus of CALJIC No. 3.37 is on the "amount of knowledge' a reasonable person with a physical disability should have under particular' circumstances," but knowledge was not an element of the offenses with which Francis was charged, and his knowledge or lack thereof was not argued as a theory of the defense, Cal. Ct. App. opinion, p. 11. Finally, the court noted that Francis' jury had been instructed with CALJIC 5.12 and CALJIC 5.50, which directed the jury to consider whether a reasonable person in a similar position and with similar knowledge would have believed it necessary to resort to forceful means in self-defense to avoid death or great bodily injury.
A state trial court's erroneous refusal to give an instruction does not alone raise a ground cognizable in a federal habeas corpus proceedings.See Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). The error must so infect the trial that the defendant was deprived of the fair trial guaranteed by the Fourteenth Amendment. See id. Whether a constitutional violation has occurred will depend upon the evidence in the case and the overall instructions given to the jury. See Duckett v. Godinez, 67 F.3d 734, 745 (9th Cir. 1995). A criminal defendant is entitled to adequate instructions on the defense theory of the case, as long as some evidence supports it. See Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 2000) (error to deny defendant's request for instruction on simple kidnaping where such instruction was supported by the evidence). However, the defendant is not entitled to have jury instructed in his or her precise terms where the given instructions adequately embody the defense theory. See United States v. Del Muro, 87 F.3d 1078, 1081 (9th Cir. 1996).
There was no due process violation in the state court's refusal to give the CALJIC 3.37 instruction. The state court's decision that CALJIC 3.37 was not warranted under the circumstances was clearly correct. Francis completely fails to explain how his injured fingers required the instruction. He does not show the injured fingers had any bearing on the "amount of knowledge" he or a reasonable person "should possess under particular circumstances." He also does not show how a reasonable person's or his "amount of knowledge" had any bearing' on the crimes charged or his defense thereto. CALJIC 3.37 appears to be an instruction that applies in a very limited set of cases, and Francis' was not one of them.
Francis argued in his appeal that there is a "marked difference between having to prove beyond a reasonable doubt that it was unjustified for a reasonable person with no physical impairments to believe himself to be in imminent danger from the victim, and having to prove beyond a reasonable doubt that it was not justified for a person with physical impairments to have felt that way." Petition For Review, pp. 10-11. The court does not accept Francis' ipse dixit assertion. Francis' physical impairments were injured fingers and he admitted that it was not just further finger injury he feared when he shot Robinson. On cross-examination, Francis was asked "but what you were really afraid of was he was going to hurt your hand again, right?" RT 808. Francis responded: "I don't know specifically whether my hand would have been injured, but I was afraid that harm would come to my person, yes, to my whole person, not just one spot on my body." RT 808. Francis never satisfactorily answers the question: "what difference does it make that the person asserting self-defense had injured fingers?" His failure to answer this key question isn't just because he proceeds pro se in federal court: the lack of a satisfactory answer also exists in the Petition For Review filed by an attorney on his behalf.
The evidence did not support giving CALJIC 3.37. Francis' self-defense theory was adequately embodied by the instructions given, especially CALJIC 5.12 and 5.50. See RT 947, 949. Those instructions directed the jury to consider the circumstances and the position in which the defendant found himself. Among other things, the jury was instructed: "To justify taking the life of another in self-defense, the circumstances must be such as would excite the fears of a reasonable person placed in a similar position" and that the person doing the killing actually and reasonably believe "[t]hat it is necessary under the circumstances for him to use in self defense force or means that might cause the death of the other person, for the purpose of avoiding death or great bodily injury to himself." RT 947. The jury also was instructed that a person may, in self-defense, "stand his ground and defend himself by the use of all force and means which would be justified and which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge." RT 949. In addition to adequately' instructing the jury about the principles of self-defense, the court correctly instructed the jury) about the burden of proof on self-defense. The jury was instructed that the prosecution bore the burden of proof and had to prove beyond a reasonable doubt that the killing was not justified The instructions given adequately covered the self-defense theory.
The trial court's refusal to include CALJIC 3.37 in the jury instructions did not violate Francis' right to due process. The state appellate court's rejection of Francis' due process claim was not contrary to, or an unreasonable application of, clearly established federal law. Francis is not entitled to the writ on this claim.
3. Use of CALJIC 17.41.1.
At Francis' trial, the court included in the jury instructions CALJIC 17.4 1.1, which provides: "The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment, or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation." Francis alleges that CALJIC No. 17.41.1 interfered with jurors' First Amendment rights and interfered with his Sixth Amendment right to trial by jury and Fourteenth Amendment rights to due process and a fair trial. He also claims that the instruction infringed upon the practice of jury nullification.
The California Court of Appeal determined that, in the context of all the instructions given, the instruction was not erroneous.
Here, the court also instructed the jurors that they must "accept and follow the law . . . regardless of whether [they] agree with the law" (CALJIC 1.00), they must decide the case based solely upon the evidence presented at trial (CALJIC Nos. 1.00, 1.03), and they must not be influenced by pity for or prejudice against the defendant or by sentiment, conjecture, sympathy, passion, prejudice, or public opinion (CALJIC No. 1.00). The jurors were also instructed to decide the case only after deliberating with other jurors and were given suggestions on how they might approach that task. (CALJIC Nos. 17.40, 17.41.)
We conclude that CALJIC No. 17.41.1 merely references these other instructions and then directs the jury to report any juror who has committed misconduct by refusing to deliberate, follow the law, or limit the decision to the evidence before it. Jurors have a duty to follow the court's instructions, and the court has a duty to investigate juror misconduct. [Citations] CALJIC No. 17.41.1 facilitates the performance of these separate duties. It does not invade or chill the deliberative process and has no coercive element. The instruction does not prescribe how the judge should respond if advised of misconduct. In particular, it does not set forth when or how a judge should discharge a juror. Instead, it simply reminds jurors to decide the case based on the evidence. presented and the law as instructed by the court, and targets only those jurors who intentionally disregard the law or refuse to deliberate. As we noted previously, jurors have no explicit right to nullify the law. Appellant's contention that CALJIC No. 17.41.1 infringes on jurors power of nullification, is at best, wholly speculative. We conclude that the trial court did not err in giving this instruction.
Cal. Ct. App. Opinion, p. 13. Even if the instruction was erroneous, the error was harmless. Id. at 14. The jury deliberated for slightly more than one day during which it requested a read-back of Francis' testimony regarding his activities on the morning of the shooting, and requested clarification of CALJIC No. 8.20. There was no evidence that the court was informed that any juror was refusing to follow the law or that the challenged instruction affected the verdict. The appellate court considered the argument that the instruction had a chilling effect to be no more than a "speculative assumption." Id.
The California Court of Appeal's rejection of Francis' claim was not contrary to, or an unreasonable application of, clearly established federal law as set forth by the U.S. Supreme Court. The U.S. Supreme Court and the Ninth Circuit Court of Appeals have not addressed the constitutionality of CALJIC 17.41.1, or an instruction like it, as suggested by the dearth of any authority from either court in Francis' habeas petition and California Supreme Court petition for review. The California Supreme Court has, however, addressed the constitutionality of CALJIC 17.41.1 recently in People v. Engelman, 28 Cal.4th 436 (Cal. 2002). The court determined that the instruction did not infringe on a defendant's federal or state right to trial by jury or his state right to a unanimous verdict. Id. at 439-440. Nonetheless, the court determined that the instruction should not be used in the future because it had "the potential to intrude unnecessarily on the deliberative process and affect it adversely — both with respect to the freedom of jurors to express their differing views during deliberations, and the proper receptivity they should accord the views of their fellow jurors." Id. at 440.
The instruction does not misstate the law: a juror may not refuse to deliberate, may not disregard the law, decide the case based on penalty or punishment or any other improper basis. The nub of Francis' argument is that it was wrong to remind the jurors to police each other's behavior and to promptly report to the court any violations of these basic rules. Francis fails to show a constitutional violation.
There is no clearly established federal law that a defendant has a right to raise a challenge to an alleged violation of a juror's First Amendment rights. The one federal case he cites in support of his argument that a criminal defendant has standing to assert the constitutional rights of the jurors, Powers v. Ohio, 499 U.S. 400, 415 (1991), was limited to asserting a violation of jurors' rights under the Equal Protection Clause. Powers does not give defendants carte blanche to raise any and all claims on behalf of jurors. Because there was no clearly established federal law that a defendant can assert a juror's First Amendment claim, the state court's rejection of Francis' First Amendment challenge cannot result in any relief in this habeas action.See 28 U.S.C. § 2254(d)(1). Moreover, the instruction does not appear to interfere with jurors' First Amendment rights any more than instructions requiring the jurors to deliberate do.
The next point in Francis' multi-pronged attack on CALJIC 17.41.1 is that it deprives him of his right of jury nullification. Jury nullification is a reality, but it is not a right under the Constitution, laws or treaties of the United States. See Crease v. McKune, 189 F.3d 1188, 1194 (10th Cir. 1999) (noting no right to jury nullification in the context of federal habeas review); cf. United States v. Powell, 955 F.2d 1206, 1213 (9th Cir. 1992) (federal defendants are not entitled to jury nullification instructions). Any instruction that arguably impeded the non-existent right did not violate the Constitution, laws or treaties of the United States and cannot warrant habeas relief.
Under California law, jurors have "the power to nullify or disregard the court's instructions and the evidence, and return a verdict contrary to the law and the evidence, [but] they have no right of nullification regarding the applicable legal principles which govern their role as factfinders." Cal. Ct. App. opinion, p. 12 (citing People v. Williams, 25 Cal.4th 441 (Cal. 2001)).
Francis also argues that CALJIC 17.41.1 violates his Sixth and Fourteenth Amendment rights to a jury trial and a fair trial. The California Court of Appeal's rejection of these constitutional claims was not contrary to or an unreasonable application of clearly established federal law. The instruction does not require that every word exchanged in deliberation be reported, or that a holdout juror be reported. Rather, the instruction attempts to ensure the proper functioning of the jury by enabling the trial court to investigate jury misconduct if necessary.
Even if instructing the jury with CALJIC No. 17.41.1 was erroneous, Francis is not entitled to federal habeas relief because he has not shown that the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. See Estelle v. McGuire, 502 U.S. at 72. As discussed earlier, in reviewing the faulty instruction, the court inquires whether there is a "reasonable likelihood" that the jury has applied the challenged instruction in a way that violates the Constitution. Id at 72 n. 4. If an error is found, the court must also determine that the error had "a substantial and injurious effect or influence in determining the jury's verdict before granting relief in habeas proceedings." Brecht v. Abrahamson, 507 U.S. at 637. It does not appear that the challenged instruction had "a substantial and injurious effect" on the jury's verdict. Cf. Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999) (applying Brecht standard to claim that jury was coerced by bailiff). The jury deliberated for only a day, did not send out any note reporting on any holdout or perceived misconduct by a juror, the jury only requested a read-back of Francis' testimony and a clarification of CALJIC 8.20 (i.e., the instruction on deliberate and premeditated murder), and there is no indication that the jury had any considerable difficulty in reaching the verdicts. Francis is not entitled to the writ on this claim.
CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus is DENIED. The clerk shall close the file.
JUDGMENT
The petition for writ of habeas corpus is denied on the merits.