Opinion
No. C 00-4653 WHA (PR)
May 3, 2002
DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS
This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the writ should not be granted. Respondent has filed an answer and a memorandum of points and authorities in support of it, and has lodged exhibits with the court. The matter is submitted.
STATEMENT
Petitioner was convicted by a jury of three counts of assault with a deadly weapon (a vehicle) on a police officer see Cal. Pen. Code § 245(c), commercial burglary, see Cal. Pen Code § 459, and one count of driving in a reckless manner while evading police officers see Cal. Veh. Code § 2800.2. He was sentenced to prison for ten years. As grounds for habeas relief he asserts that the jury instruction regarding assault (CALJIC 9.000) incorrectly characterized the mens rea element for assault. Petitioner alleges that this violated his right to due process.
The petition purports to present five different claims, but these are all different arguments pertaining to the single claim regarding the assault jury instruction.
Petitioner does not dispute the facts of his offense, but instead challenges an instruction given by the trial court. For purposes of background, however, the court will briefly summarize the case.
Petitioner backed his 1979 Cadillac into the plate glass window of a video store in Hayward. He took a television set from the store and drove off, pursued by the police at high speed. After running several stop signs and a red light he turned into a cul-de-sac. Petitioner turned the car at the end of the cul-de-sac and sat still for a moment; in that time, a K-9 officer got out of his police car and approached the car with his gun drawn. Other police cars blocked the street. Petitioner suddenly accelerated, struck two civilian cars, and blasted through the police cars forming the road block. An officer who had been approaching the Cadillac jumped out of the way; and another officer who was behind two parked cars which were struck by the Cadillac fired two shots at petitioner. A fourth officer who had taken cover behind a patrol car was swept aside as the Cadillac burst through.
Petitioner's defense was that the police fired shots at him before the Cadillac accelerated, causing him to attempt to escape to avoid injury. That his, that he did not intend to assault the police officers, only to escape the gunfire.
After another high-speed chase, the Cadillac stopped with a flat tire and petitioner fled on foot; he was run down by a police dog and captured.
DISCUSSION
A. Standard of review
The petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), so the provisions of that act apply to it. See Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499-1500 (9th Cir.), cert. denied, 522 U.S. 93 (1997) ("justice and judicial economy are better sewed by applying the Act to cases filed after the enactment date."). Under the AEDPA a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed 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).
A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d), only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 120 S.Ct. 1495, 1518, 1523 (2000). A state court decision is an "unreasonable application of" Supreme Court authority, falls under the second clause of§ 2254(d), if it correctly identifies the governing legal principle from the Supreme Court's decisions but "unreasonably applies that principle to the facts of the prisoner's case." Id. The federal court on habeas review may not issue the writ "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 1522. Rather, the application must be "objectively unreasonable" to support granting the writ. See id. at 1521-22. The writ may be granted under the "unreasonable application of" clause only when the court's "independent review of the legal question does not merely allow [the court] ultimately to conclude that the petitioner has the better of two reasonable legal arguments, but rather leaves [the court] with a `firm conviction' that one answer, the one rejected by the [state] court, was correct and the other, the application of the federal law that the court adopted, was erroneous — in other words that clear error occurred."Tran v. Lindsey, 212 F.3d 1143, 1152-54 (9th Cir 2000).
A district court must presume correct any determination of a factual issue made by a state court unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). This presumption is not altered by the fact that the finding was made by a state court of appeals, rather than by a state trial court.Sumner v. Mata, 449 U.S. 539, 546-47 (1981); Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001). A petitioner must present clear and convincing evidence to overcome § 2254(e)(1)'s presumption of correctness; conclusory assertions will not do. Id.
B. Issue Presented
The trial court instructed the jury with the 1996 revision of CALJIC 9.00, relating to the crime of assault on a police officer. As to the definition of assault, the instruction given was:
In order to prove an assault, each of the following elements must be proved: A person willfully and unlawfully committed an act which, by its nature, would probably and directly result in the application of physical force on another person and at the time the act was committed, the person had the present ability to apply physical force to the person of another.
Ex. C at 1179. Petitioner asserts that this instruction imports an objective negligence standard into assault, wrongly defining the necessary subjective intent.
All references to "Ex." are to the exhibits lodged by the state.
1. Standard
A challenge to a jury instruction solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings.Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Nor does the fact that a jury instruction was inadequate by Ninth Circuit direct appeal standards mean that a petitioner who relies on such an inadequate will be entitled to habeas corpus relief from a state court conviction. Duckett v. Godinez, 67 F.3d 734, 744 (9th Cir. 1995) (citing Estelle, 502 U.S. at 71-72). To obtain federal collateral 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. at 72; Cupp v. Naughten, 414 U.S. 141, 147 (1973); see also Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) ("`[I]t must be established not merely that the instruction is undesirable, erroneous or even "universally condemned," but that it violated some [constitutional right].'").
The instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. See Estelle, 502 U.S. at 72. In other words, the court must evaluate jury instructions in the context of the overall charge to the jury as a component of the entire trial process. United States v. Frady, 456 U.S. 152, 169 (1982) (citing Henderson v. Kibbe, 431 U.S. 145, 154 (1977)); Prantil v. California, 843 F.2d 314, 317 (9th Cir. 1988).
In addition, in reviewing an ambiguous instruction, the inquiry is not how reasonable jurors could or would have understood the instruction as a whole; rather, 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 Estelle v. McGuire, 502 U.S. at 72 n. 4; Boyde v. California, 494 U.S. 370, 380 (1990); Ficklin v. Hatcher, 177 F.3d 1147, 1150-51 (9th Cir. 1999) ("harmless error" when certain that jury did not rely on constitutionally infirm instruction). Finally, the defined category of infractions that violate fundamental fairness is very narrow: "Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation."Estelle v. McGuire, 502 U.S. at 73.
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 (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, 525 U.S. at 146.
Petitioner's theory here is that the trial court misdescribed the intent element of assault. Harmless error analysis applies whether the error is characterized as a misdescription of an element of an offense in a jury instruction, or as an omission of the element. See California v. Roy, 519 U.S. 2, 5 (1996) (omission of "intent" element from aiding and abetting instruction subject to harmless error analysis where jury could have found intent based on evidence it considered); Arreguin v. Prunty, 208 F.3d 835, 837 (9th Cir. 2000) (violation of possible state-law-created qualified liberty interest by misdescription or omission of element in special circumstances instruction cured by state appellate court's harmless error analysis; § 2254 case); United States v. Lin, 139 F.3d 1303, 1309 (9th Cir. 1998) (omission of intent element from charge of making ransom demands harmless error). The omission will be found harmless unless it "`had substantial and injurious effect or influence in determining the jury's verdict.'" Roy, 519 U.S. at 4 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)); see Roy v. Gomez, 108 F.3d 242, 242 (9th Cir. 1997) (on remand after California v. Roy). 2. Analysis
Petitioner objects to the words "would probably and directly result in the application of physical force on another person" in CALJIC 9.00, which was given to the jury in this case. This language derived fromPeople v. Coluntuono, 7 Cal.4th 206 (1994), in which the court held that assault is a general intent crime id at 215-16, and that it requires a showing that the defendant "willfully committed an act that by its nature will probably and directly result in injury to another." Id. at 214. InPeople v. Smith, 57 Cal.App.4th 1470 (1997), the Court of Appeal of California stated that this language in CALJIC 9.00 "is a negligence standard," an objective standard, violation of which is not sufficient to establish an assault. Id. at 1479-80. Petitioner's objections to the instruction and his arguments on appeal were based on Smith. Most recently, in People v. Williams, 26 Cal.4th 779 (2001), the Supreme Court of California agreed that the 9.00 language "arguably implies an objective mental state consistent with a negligence standard." Id. at 787. In Williams the supreme court held that a defendant cannot have the intent necessary for assault unless he is "aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known." Id. at 788. TheWilliams court held that an earlier version of CALJIC 9.00, which differs only slightly from the version at issue here, was "potentially ambiguous" in that it might permit conviction on facts "the defendant should have known but did riot actually know." Id. at 790 (emphasis in original). The instruction here suffers from the same flaw.
In this case the Court of Appeal noted that Williams was then pending in the Supreme Court of California, and declined to decide whether the instruction as given was correct. Instead, the court held that any error was harmless. Ex. A at 9-10. The court recited the following evidence:
Appellant was trapped in a cul-de-sac after a high-speed police chase with sirens and multicolored lights alerting him. Several marked police vehicles blocked his exit. Uniformed police officers were in close proximity or in the immediate vicinity and in plain sight. Their patrol cars blocked his path. There is substantial evidence the area of the cul-de-sac was well-illuminated by a number of light sources. Knowing he had been cornered by pursuing police cars and having seen three officers in the area, appellant violently accelerated his large automobile, crashing through two parked cars, and then essentially `ran a roadblock,' crashing through two police vehicles blocking his path and racing by officers near their vehicles and his. Given the well-known practice of police officers using their parked vehicles for cover in such situations as these, and the clear proximity of several officers obviously intent on capturing appellant, there is overwhelming evidence that appellant either intended to harm the officers or that harm to the officers was substantially certain to result from appellant's intentional, violent act.
Furthermore, the jury rejected appellant's claim of self-defense. Having been instructed that self-defense was a defense to assault, the jury rejected appellant's testimony that appellant surged forward at them before he was fired upon. Appellant's claim that he accelerated out of the cul-de-sac in self-defense was inextricably linked to his denial of any intent to cause harm. No refinement of CALJIC No. 9.00 would have changed the jury's verdict. Appellant clearly acted with a knowledge that harm to the officers was substantially certain to result from his conduct in fleeing as he did. He could not have been unaware of striking someone [sic] as he charged the parked vehicles and waiting officers. The facts in this case cannot be stretched so that the jury would find that appellant was unaware of the consequences nor that the desired [sic] consequences were not substantially certain to result from his conduct.Id.
The California Court of Appeal properly applied the harmless error standard of Chapman v. California, 386 U.S. 18, 24 (1967) (harmless beyond a reasonable doubt). Id. at 11. In this federal collateral proceeding, however, the harmless error standard is whether the error "`had substantial and injurious effect or influence in determining the jury's verdict.'" California v. Roy, 519 U.S. 2, 4 (1996) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)); see Bains v. Cambra, 204 F.3d 964, 977 (9th Cir.), cert. denied, 531 U.S. 1037 (2000) (Brecht standard applies uniformly in all federal habeas corpus cases under § 2254); Roy v. Gomez, 108 F.3d 242, 242 (9th Cir. 1997) (on remand after California v. Roy). It may
be that the instruction was in error because it did not contain language requiring that the harm be "substantially certain to result," as added by the Court of Appeal of California in Smith, or because it did not include language that the facts giving rise to the probability of application of physical force had to be known to the defendant, as added by the Supreme Court of California in Williams after the conviction in this case was final, but on the facts as recited by the court of appeal and quoted above, this court concludes that the error did not have a "substantial and injurious effect or influence in determining the jury's verdict." Any error was harmless.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. The clerk shall close the file.