Opinion
CV 21-5064-VBF(E)
09-29-2021
LEWIS GENE DIVENS, Petitioner, v. GLEN E. PRATT, Warden, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable Valerie Baker Fairbank, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a “Petition for Writ of Habeas Corpus By a Person in State Custody” on June 16, 2021. Respondent filed an Answer on August 13, 2021. Petitioner did not file a Reply within the allotted time.
BACKGROUND
A jury found Petitioner guilty of assault with a deadly weapon, in violation of California Penal Code section 245(a)(1) (Reporter's Transcript [“R.T.”] 1220; Clerk's Transcript [“C.T.”) 125-26). The jury found Petitioner not guilty of attempted murder and attempted voluntary manslaughter (R.T. 1219-20; C.T. 125-26). The court found true the allegation that Petitioner had suffered a prior serious felony conviction within the meaning of the “one strike” provision of California's Three Strikes Law, California Penal Code sections 667(e)(1) and 1170.12(c)(1) (R.T. 1503-04; C.T. 145-46). The court denied Petitioner's motion for new trial and motion to strike prior conviction allegation under People v. Superior Court (Romero), 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 (1996) (R.T. 1510, 1522; C.T. 146-47). Petitioner received an eleven year sentence (R.T. 1529-30; C.T. 146-48).
The California Court of Appeal affirmed, ruling, inter alia, that the trial court had not erred by refusing to instruct on perfect self-defense with respect to the assault charge (Respondent's Lodgment 6; see People v. Divens, 2019 WL 6270685 (Cal.App. Nov. 25, 2019)). Petitioner did not file a petition for review in the California Supreme Court (Petition, p. 3).
On October 14, 2020, Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court, claiming instructional error (Respondent's Lodgment 7). On December 2, 2020, the Superior Court denied the petition on the ground that Petitioner unsuccessfully had raised the same claim on appeal (Respondent's Lodgment 8). On February 8, 2021, Petitioner filed a habeas corpus petition in the California Court of Appeal, which that court denied summarily on February 11, 2021 (Respondent's Lodgments 9, 10). On March 2, 2021, Petitioner filed a habeas corpus petition in the California Supreme Court, which that court denied summarily on May 12, 2021, with a citation to In re Waltreus, 62 Cal. 2d 218, 42 Cal.Rptr. 9, 397 P.2d 1001, cert. denied, 382 U.S. 853 (1965) (claim raised and rejected on appeal may not be asserted in a subsequent state court habeas petition) (Respondent's Lodgments 11, 12).
PETITIONER'S CLAIM
The Petition contains only one claim. Petitioner claims that the trial court violated due process by refusing to instruct on perfect self-defense with respect to the assault charge.
SUMMARY OF STATE COURT PROCEEDINGS
I. The Prosecution's Case
The prosecution presented the testimony of victim Tyrone Knox, Pasadena Police Officer Zachary Travnitz and Pasadena Police Officer Ryan Goetz:
A. Tyrone Knox
Knox, who was in custody, testified reluctantly pursuant to a subpoena (R.T. 608-09, 638-39). In August of 2017, Knox was living in a shelter for the homeless (R.T. 609). Knox's height was 6 feet 2 inches and he weighed “235, 220” (R.T. 645). Knox wore a boot on one leg because he had two cracked bones in his leg and walked with a “very painful” limp (R.T. 612-13, 616-17). The boot was made of plastic, had three velcro straps and was lined with a nylon padding (R.T. 620). It went up approximately to Knox's knee (R.T. 620).
On the morning of August 20, 2017, Knox, carrying a pillow and blankets, went to a building located at the south end of a nearby park (R.T. 609-11). Knox customarily placed his “stuff” on top of a fenced chain link enclosure next to the steps of the building (R.T. 611, 641). The fence was taller than Knox (R.T. 614).
Knox encountered Petitioner sitting on the steps of the building (R.T. 610-11). Knox had seen Petitioner there the previous day and had asked Petitioner if he, Knox, could put his belongings on top of the enclosure (R.T. 612-13). On that occasion, Petitioner had acted like he could not hear Knox but “got out of the way” so that Knox could put his belongings on top of the enclosure (R.T. 614, 641-42). On prior occasions, Knox had spoken to Petitioner, but Petitioner had acted like he had not heard Knox (R.T. 642). Knox did not know Petitioner and did not know Petitioner's name (R.T. 614).
On the day of the incident, Knox asked Petitioner, “can I put my things here?” (R.T. 612, 642-43). Knox did not speak in a disrespectful manner (R.T. 642). In a threatening voice, Petitioner responded, “go to the other side” (R.T. 612). Knox said, “why should I go to the other side?” (R.T. 612, 643). Knox could not go to the other side because he did not have the strength to put his things on top of the enclosure due to his injured leg; Knox needed the aid of the steps to do so (R.T. 613, 615).
Petitioner said something like “let's fight, ” indicating a desire to fight Knox (R.T. 618). Petitioner said he would “fuck [Knox] up” (R.T. 635). Petitioner was “very disrespectful” and spoke “kind of loud” and with “hostility” (R.T. 618, 635, 643). Knox, offended, felt the need to stand his ground (R.T. 646). Knox said something disrespectful to Petitioner in response (R.T. 643-44). Petitioner uttered “more fighting words” (R.T. 645).
Knox thought there would be a fight, and Knox was willing to fight Petitioner, thinking it would only be a fistfight (R.T. 618-19, 646). Knox did not think Petitioner would “pull a weapon” (R.T. 619). Knox did not carry weapons (R.T. 635). Knox bent down to unstrap the boot, taking his eyes off Petitioner (R.T. 620-23). Knox thought he would have better balance without the boot (R.T. 623-24). It took a “minute or two” for Knox to take the boot off (R.T. 622). Knox was not paying attention to Petitioner, who was sitting to the side (R.T. 622-23). Knox testified that it did not occur to him to use the boot as a weapon, saying “I fight good” (R.T. 651).
As soon as Knox had removed the boot, when Knox was moving to stand up and the boot was out of Knox's hands and on the ground, Petitioner lunged at Knox, catching Knox off guard and striking Knox in the face (R.T. 624-27, 655-56). At the time, Knox had nothing in his hands, which were at his sides (R.T. 625, 656). Knox did not see Petitioner's weapon (R.T. 657). At first, Knox thought he merely had received a punch in the face, but later Knox realized he had been cut (R.T. 624-27).
Immediately after striking Knox's face, Petitioner struck Knox from behind, in the back of Knox's head (R.T. 626-27). Knox touched the back of his head and then realized Petitioner had cut him with a knife (R.T. 627, 629). Knox had not seen any knife when he first approached Petitioner, and Petitioner had not told Knox that Petitioner had a knife (R.T. 629). Knox later saw Petitioner throw a small red kitchen knife on the grass after the attack (R.T. 629). Realizing that he was bleeding, Knox picked up a stick and broke it in half to use as a hand support, because Knox had arthritis and neuropathy, which caused numbness in his fingers (R.T. 636-37). Knox did not use the stick to hit Petitioner (R.T. 659). However, when asked at trial what Knox was going to do with the stick, Knox responded: “He just cut me with a knife. What do you think I'm going to do. I have to defend myself.” (R.T. 660). Knox did not recall telling the police officer at the scene, or the officer who came to the hospital, that Knox ever had a stick (R.T. 660).
Although at some point after the first or second strike Knox “probably” balled up a fist, Knox never swung at Petitioner (R.T. 635-36). Knox also did not do anything with the boot during the incident (R.T. 635).
Knox was “leaking blood everywhere, ” felt faint and dizzy, and feared for his life (R.T. 628-29). Knox phoned for paramedic assistance (R.T. 627-28). Petitioner was “somewhere close” as Knox made the phone call (R.T. 661).
Paramedics took Knox to the hospital, where he received staples in the back of his head and internal stitches inside his cheek (R.T. 633). At the time of trial, Knox had scarring from the two injuries and still suffered numbness in his cheek (R.T. 633).
Knox did not recall telling a police officer at the hospital that Petitioner first had struck Knox in the back of the head and then in the face (R.T. 657-58).
B. Pasadena Police Officer Zachary Travnitz
On the morning of August 20, 2017, Travnitz responded to a call for service at the park and saw Petitioner standing near a building (R.T. 668-69). Petitioner was in the process of being detained (R.T. 677). Travnitz had only minimal contact with Petitioner, who seemed calm and relaxed (R.T. 669-71). Travnitz did not see any blood or torn clothing on Petitioner (R.T. 672).
Travnitz spoke with Knox, who appeared “a little wobbly” and “possibly in shock” (R.T. 670, 672). Knox was bleeding from an injury to his cheek, and also had blood on the back of his head, on the front of his shirt and on the back of his shirt (R.T. 672). Travnitz saw a boot in a grassy area at the base of the steps to the building (R.T. 673-74). A four-inch knife was recovered at the scene (R.T. 674, 677-78).
The paramedics arrived and placed Knox on a gurney to take him to the hospital (R.T. 675). As the gurney bearing Knox passed Petitioner, Petitioner said something like “I got your ass” (R.T. 675). Travnitz asked Petitioner, “what did you say?” (R.T. 675). Petitioner faced Travnitz and said, “fuck you” (R.T. 675-76).
Travnitz accompanied Knox to the hospital and watched as doctors stapled the four-inch laceration in the back of Knox's head (R.T. 674-77). At the hospital, Knox told Travnitz that Knox had believed there was going to be some sort of physical altercation with Petitioner and that “due to the limitations of wearing his boot . . . he decided to take it off” (R.T. 680). Knox said that, as Knox was standing up after removing his boot, Petitioner struck Knox on the back of the head (R.T. 679). Knox said Petitioner then struck Knox on the left cheek (R.T. 679). Knox said that he did not get a chance to swing at Petitioner (R.T. 681). Knox did not mention a stick (R.T. 679).
C. Pasadena Police Officer Ryan Goetz
Goetz arrived at the location on August 20, 2017, and spoke with Petitioner, who was standing to the left of the building (R.T. 688-90). Petitioner was “pretty calm” (R.T. 692). Knox was on the phone, and Goetz noticed that Knox had a cut on his face and large pool of blood on his shirt and collar (R.T. 691). Knox told Goetz that Petitioner had stabbed Knox in the face (R.T. 703).
Goetz searched Petitioner and recovered a red sheath from the pocket of Petitioner's pants (R.T. 692-93). The red knife found at the scene, which appeared to have a ceramic blade, matched the red sheath found in Petitioner's pocket (R.T. 694-95).
At booking, Petitioner's height was recorded as six feet one inch and his weight as 225 (R.T. 697). As part of the booking process, Goetz noted that Petitioner had no injuries, no blood on his person and no signs of a physical conflict (R.T. 698-99).
II. Defense Case
Petitioner did not testify. The defense called one witness, Dr. Carl Osborne, a forensic psychologist. Dr. Osborne testified concerning his evaluation of Petitioner and Petitioner's medical records (R.T. 910-24). Dr. Osborne opined that Petitioner suffered from schizophrenia with paranoid delusions and auditory hallucinations (R.T. 913-26, 979-80). Dr. Osborne claimed that a person with such a diagnosis sees the world as dangerous, and filters everything through that person's fear and anticipation of attack and harm (R.T. 925, 933).
STANDARD OF REVIEW
Under the “Antiterrorism and Effective Death Penalty Act of 1996” (“AEDPA”), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the 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); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
“Clearly established Federal law” refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 565 U.S. 34, 38 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is “contrary to” clearly established federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it “confronts a set of facts . . . materially indistinguishable” from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the “unreasonable application” prong of section 2254(d)(1), a federal court may grant habeas relief “based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced.” Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision “involves an unreasonable application” of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). /// ///
“In order for a federal court to find a state court's application of [Supreme Court] precedent ‘unreasonable,' the state court's decision must have been more than incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). “The state court's application must have been ‘objectively unreasonable.'” Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). “Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, 562 U.S. 86, 101 (2011). This is “the only question that matters under § 2254(d)(1).” Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless “there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents.” Id. “As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.
In applying these standards, the Court looks to the last reasoned state court decision, here the decision of the California Court of Appeal. See Wilson v. Sellers, 138 S.Ct. 1188, 1193-97 (2018) (endorsing presumption that unexplained decision of state higher court adopted the reasoning of the last reasoned state court decision); see Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008).
The Court need not address the issue of whether Petitioner exhausted his claim of unconstitutional instructional error (see Answer, pp. 13-14). For the reasons discussed herein, the trial evidence plainly did not support the use of a perfect self-defense instruction on the assault charge. Hence, Petitioner's claim is not colorable. See Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005), cert. denied, 546 U.S. 1172 (2006) (federal habeas court may deny on the merits unexhausted claims that are not “colorable”).
I. Federal Legal Standards Governing Claims of Instructional Error by State Courts
“[I]nstructions that contain errors of state law may not form the basis for federal habeas relief.” Gilmore v. Taylor, 508 U.S. 333, 342 (1993); see also Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) (“the fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief”); Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988) (instructional error “does not alone raise a ground cognizable in a federal habeas corpus proceeding”); see also Menendez v. Terhune, 422 F.3d 1012, 1029 (9th Cir. 2005) (“Failure to give a jury instruction which might be proper as a matter of state law, by itself, does not merit federal habeas relief.”) (citation and quotations omitted). When a federal habeas petitioner challenges the validity of a state jury instruction, the issue is “whether 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;
Clark v. Brown, 450 F.3d 898, 904 (9th Cir.), cert. denied, 549 U.S. 1027 (2006). Unless an instructional error renders a petitioner's trial fundamentally unfair, the error does not violate due process. Karis v. Calderon, 283 F.3d 1117, 1132 (9th Cir. 2002), cert. denied, 539 U.S. 958 (2003). The court must evaluate the alleged instructional error in light of the overall charge to the jury. Middleton v. McNeil, 541 U.S. 433, 437 (2004); Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997), cert. denied, 522 U.S. 1079 (1998). “The relevant inquiry is ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction' in an unconstitutional manner.” Houston v. Roe, 177 F.3d 901, 909 (9th Cir. 1999), cert. denied, 528 U.S. 1159 (2000) (quoting Boyde v. California, 494 U.S. 370, 380 (1990)). In challenging a failure to give an instruction, a habeas petitioner faces an “especially heavy” burden. Henderson v. Kibbe, 431 U.S. at 155.
With respect to a trial court's failure to give a requested instruction concerning a defense, the United States Supreme Court has “long interpreted the standard of fairness [contained in the Due Process Clause] to require that criminal defendants be afforded a meaningful opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485 (1984). Under Mathews v. United States, 485 U.S. 58, 63 (1988) (“Mathews”), a defendant generally “is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” See also Murray v. Schriro, 882 F.3d 778, 812 (9th Cir.), cert. denied, 139 S.Ct. 414 (2018) (applying Mathews standard in habeas case governed by AEDPA for the proposition that a defendant is only entitled to an instruction on a defense theory supported by the evidence); Bradley v. Duncan, 315 F.3d 1091, 1099-1100 (9th Cir. 2002), cert. denied, 540 U.S. 963 (2003) (“the right to present a defense would be empty if it did not entail the further right to an instruction that allowed the jury to consider the defense”; holding that the California Court of Appeal's decision upholding the trial court's refusal to give an entrapment instruction was an “objectively unreasonable” application of federal law because the Court of Appeal “failed to recognize Bradley's right to present a complete and meaningful defense to the jury under the principles set out in Mathews and Trombetta”) (citation and internal quotations omitted).
Some Ninth Circuit unpublished opinions and some district court opinions have questioned whether the rule of Mathews constitutes clearly established Supreme Court law for purposes of the AEDPA standard of review, and/or whether Ninth Circuit law recognizing the constitutional right to a jury instruction regarding a defense satisfies the AEDPA standard of review. See, e.g., Marquez v. Gentry, 708 Fed.Appx. 924, 925 & n.2 (9th Cir.), cert. denied, 139 S.Ct. 228 (2018); Hicks v. Carey, 220 Fed.Appx. 467, 468 (9th Cir. 2007); Nijmeddin v. Lizarraga, 2021 WL 3810256, at *13 (N.D. Cal. Aug. 26, 2021); Bagley v. Ndoh, 2021 WL 2037975, at *8 (E.D. Cal. May 21, 2021), adopted, 2021 WL 3077304 (E.D. Cal. July 21, 2021); Jones v. Covello, 2021 WL 4222699, at *25 (C.D. Cal. May 6, 2021); Guerra v. McDowell, 2017 WL 4216977, at *8 (C.D. Cal. June 22, 2017), adopted, 2017 WL 4216558 (C.D. Cal. Sept. 18, 2017). In Gilmore v. Taylor, the United States Supreme Court stated that the constitutional guarantee of a “meaningful opportunity to present a complete defense” does not necessarily invalidate all “restrictions imposed on a defendant's ability to present an affirmative defense.” Gilmore v. Taylor, 508 U.S. at 343-44 (even where jury instructions “created a risk that the jury would fail to consider evidence that related to an affirmative defense, ” court ruled that upholding the state defendant's claim of instructional error would create a new rule that could not be the basis for federal habeas relief). Even so, the Ninth Circuit in Murray v. Schriro and Bradley v. Duncan did apply the Mathews rule in the AEDPA context. In any event, this Court need not decide whether the Mathews rule is “clearly established” because, for the reasons discussed herein, Petitioner would not be entitled to federal habeas relief, even under the Mathews rule.
However, “[f]ailure to instruct on a defense theory can be error only if the theory is legally sound and the evidence in the case makes the theory applicable.” Clark v. Brown, 450 F.3d at 904-05 (citations and quotations omitted); Britt v. Hedgpeth, 2013 WL 2154156, at *19 (C.D. Cal. May 15, 2013), aff'd, 616 Fed.Appx. 336 (9th Cir. 2015), cert. denied, 577 U.S. 1238 (2016); see also In re Christian S., 7 Cal.4th 768, 783, 30 Cal.Rptr.2d 33, 872 P.2d 574 (1994) (“a trial court need give a requested instruction concerning a defense only if there is substantial evidence to support the defense”) (citation, internal quotations and brackets omitted; original emphasis).
II. Relevant State Law
In California, “[a]ttempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” People v. Lee, 31 Cal.4th 613, 623, 3 Cal.Rptr.3d 402, 74 P.3d 176 (2003), cert. denied, 541 U.S. 947 (2004) (citations omitted); see People v. Smith, 37 Cal.4th 733, 739, 37 Cal.Rptr.3d 163, 124 P.3d 730 (2005) (attempted murder requires proof of express malice, i.e., specific intent to kill, and the commission of a direct but ineffectual act toward accomplishing the intended killing) (citations omitted).
In contrast, “a specific intent to injure is not an element of assault.” People v. Williams, 26 Cal.4th 779, 786, 148 Cal.Rptr.3d 901, 29 P.3d 197 (2001); see also People v. Perez, 4 Cal. 5th 1055, 1066, 232 Cal.Rptr.3d 51, 416 P.3d 42 (2018), cert. denied, 139 S.Ct. 335 (2018) (“assault with a deadly weapon is a general intent crime; the required mens rea is ‘an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another'”) (citation omitted); People v. Hoang, 145 Cal.App.4th 264, 274, 51 Cal.Rptr.3d 509 (2006) (instruction that attempted murder is a specific intent crime and assault with a deadly weapon is a general intent crime was “a correct statement of the law”).
“Self-defense is perfect or imperfect.” People v. Randle, 35 Cal.4th 987, 994, 28 Cal.Rptr.3d 725, 111 P.3d 987 (2005), disapproved on other grounds, People v. Chun, 45 Cal.4th 1172, 91 Cal.Rptr.3d 106, 203 P.3d 425 (2009). “Lawful [perfect] self-defense requires (1) that defendant reasonably believed he was in imminent danger; (2) that the immediate use of defensive force was necessary to defend against that danger; and (3) that defendant used no more force than necessary to defend against the danger.” People v. Dryden, 60 Cal.App. 5th 1007, 1025, 275 Cal.Rptr.3d 267 (2021) (citations omitted). “A bare fear is not enough; “the circumstances must be sufficient to excite the fears of a reasonable person, and the [defendant] must have acted under the influence of such fears alone.” People v. Flannel, 25 Cal.3d 668, 675, 160 Cal.Rptr. 84, 603 P.2d 1 (1979) (citation and quotations omitted).
“A killing committed in perfect self-defense is neither murder nor manslaughter; it is justifiable homicide.” People v. Randle, 35 Cal.4th at 994 (citations omitted); see also People v. Sotelo-Urena, 4 Cal.App. 5th 732, 744, 209 Cal.Rptr.3d 259 (2016) (“where the defendant actually and reasonably believed the use of deadly force was necessary to defend himself from imminent threat of death or great bodily injury, . . . the killing is not a crime”) (citations omitted). Perfect self-defense is a defense to assault, as well as a defense to murder. See People v. Minifie, 13 Cal.4th 1055, 1064-65, 56 Cal.Rptr.2d 133, 920 P.2d 1337 (1996) (“To justify an act of [perfect] self-defense for an assault charge under Penal Code section 245, the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him.”) (citation, quotations and brackets omitted; brackets added; original emphasis).
“Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter.” People v. Michaels, 28 Cal.4th 486, 529, 122 Cal.Rptr.2d 285, 49 P.3d 1032 (2002), cert. denied, 538 U.S. 1058 (2003); see also In re Christian S., 7 Cal.4th at 771; People v. Lopez, 199 Cal.App.4th 1297, 1305, 132 Cal.Rptr.3d 248 (2011) (“The element of malice is negated, and a killing reduced from murder to voluntary manslaughter, when a defendant kills in the actual but unreasonable belief that he or she is in imminent danger of death or great bodily injury.”) (citations omitted). Imperfect self-defense is not a true defense, but rather reduces the crime of murder to voluntary manslaughter. People v. Michaels, 28 Cal.4th at 529; People v. Valenzuela, 199 Cal.App.4th 1214, 1231, 133 Cal.Rptr.3d 196 (2011), cert. denied, 566 U.S. 999 (2012) (“Imperfect self-defense is not a true defense, but a shorthand description of one form of voluntary manslaughter.”) (citations and quotations omitted).
“The subjective elements of self-defense and imperfect self-defense are identical.” People v. Sotelo-Urena, 4 Cal.App. 5th at 744 (citation and quotations omitted). “Under each theory, the defendant must actually believe in the need to defend against imminent peril to life or great bodily injury.” Id. (citation, quotations, ellipses and brackets omitted). “To constitute perfect self-defense, i.e., to exonerate the person completely, the belief must also be objectively reasonable.” Id. (citation and quotations omitted). Reasonableness is judged “from the point of view of a reasonable person in the position of defendant . . ., ” in light of “all the facts and circumstances. . . .” People v. Humphrey, 13 Cal.4th 1073, 1082, 56 Cal.Rptr.2d 142 (1996) (citations and quotations omitted). “Fear of future harm - no matter how great the fear and no matter how great the likelihood of the harm - will not suffice.” Id.
Imperfect self defense is not a defense to assault. See People v. Minifie, 13 Cal.4th at 1064-65; Barrera v. Muniz, 2017 WL 2779155, at *8 (E.D. Cal. June 27, 2017) (“The reason for the absence of any such case is apparent - the doctrine of imperfect self-defense only negates the mental state of malice aforethought, and thus does not apply to crimes without that requirement.”) (citation omitted); Sotomayor v. Cavazos, 2013 WL 3934372, at *11 (C.D. Cal. July 30, 2013) (“imperfect self defense is inapplicable to the crime of assault”) (citations omitted).
III. Relevant Trial Court Proceedings
At the conclusion of the prosecution's case, Petitioner's counsel requested a “provisional ruling” on the propriety of a perfect self-defense instruction (R.T. 1202). Counsel based this request on: (1) Knox's alleged manifestation of antagonism toward the prosecutor and defense counsel during Knox's testimony; (2) alleged contradictions in Knox's testimony; (3) Knox's testimony concerning the stick; and (4) Knox's testimony concerning alleged prior contacts with Petitioner, which purportedly showed that Knox felt anger and resentment toward Petitioner (R.T. 1202-03). Counsel also argued that, although Knox had testified he did not use or intend to use the boot as a weapon, a trier of fact nevertheless could find such intent, from the “tenor of [Knox's] voice” and his “self-contradictory statements” (R.T. 1203). The court declined to give a perfect self-defense instruction because of the lack of any substantial evidence to support such an instruction (R.T. 1204-05).
Although this request apparently was made off the record (see R.T. 1203-04), Petitioner's counsel subsequently recounted the request in a recorded proceeding following the close of the evidence (id.).
Under California law, “just as with perfect self-defense or any defense, a trial court need give a requested instruction concerning a defense only if there is substantial evidence to support the defense.” In re Christian S., 7 Cal.4th at 783 (citation, quotations and brackets omitted; original emphasis).
After the close of the defense case, Petitioner's counsel unsuccessfully renewed the request for a perfect self-defense instruction (R.T. 1204). The court indicated that Dr. Osborne's testimony did not add anything material to counsel's prior request for such an instruction (R.T. 1204).
The record does not contain a transcript of the proceedings concerning this second request.
The trial court instructed the jury on imperfect self-defense with respect to the attempted murder count, but refused to give an imperfect self-defense instruction with respect to the assault charge (see R.T. 1000-02, 1207-16; C.T. 109-11). The court also refused to do so during deliberations (R.T. 1207-16) (see below). The court never gave a perfect self-defense instruction with respect to any of the charges. /// ///
The court used CALCRIM 604, which states, inter alia, that “[a]n attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill a person because he acted in imperfect self defense” (C.T. 109-110) (emphasis added). The instruction described the elements of imperfect self defense (C.T. 109-11). The court's instruction failed to state expressly that imperfect self-defense did not apply to the assault charge.
During deliberations, the jury sent the court this confusing question:
Does a perception of action in self defense mean that using a knife when the other party has no knife means assault has not occurred.(C.T. 115) (original emphasis).
In response, the court asked the jury to explain the use of the term “perception of action” (C.T. 115). The jury then sent a second question:
On the charge of assault with a deadly weapon, does an action in self defense excuse the use of a deadly weapon, if the other party has no deadly weapon?(C.T. 116).
Petitioner's counsel argued that the second question showed that the jury allegedly felt there was a factual basis for a defense of self-defense on the assault charge (R.T. 1204). The prosecutor reminded the court that it previously had determined that there was no substantial evidence supporting a perfect self-defense instruction (R.T. 1205). The prosecutor argued that Petitioner had advanced no “counter narrative” in the form of evidence suggesting that Knox had used a weapon against Petitioner (R.T. 1205).
The court attributed Knox's “short” and “upset” attitude during his testimony to the fact that Knox had been taken into custody as a material witness (R.T. 1207-08). The court said it did not find anything in Knox's testimony that would allow a reasonable jury to decide that Petitioner reasonably could have believed he needed to defend himself against Knox with the knife (R.T. 1208-09). The court noted that Knox had testified without contradiction that he reached down to take the boot off and “perhaps stepped out of it, ” but never had said that he raised the boot or used it in a threatening manner (id.). The court observed that there was no witness who testified that Knox had the boot in his hand such that a reasonable person might believe that he or she was being threatened (R.T. 1209). The court stated that Knox's alleged act of picking up the stick occurred after the assault (R.T. 1214). The court also observed that nothing in Dr. Osborne's testimony supported a perfect self-defense instruction as opposed to an imperfect self-defense instruction [on the murder charge only] (R.T. 1209-10).
Petitioner's counsel disclaimed any intent of arguing that the alleged use of the stick was a “determining factor to the self-defense theory” (R.T. 1215-16).
With respect to the jury's first question, the court stated that the court had not understood the question and that the jurors “were all sort of not understanding what they were talking about” (R.T. 1011). The court deemed the jury's second question to be “a little bit clearer, ” but added that “as far as count two is concerned, there is no self-defense instruction” (R.T. 1211). The court responded to the jury's second question as follows:
Under these circumstances the law does not provide for a “self defense” defense as to count two [the assault count] and you are not to consider it in reaching a verdict as to count two.(C.T. 116).
After the verdict, Petitioner's counsel argued at a hearing on a motion for new trial that the court had erred by failing to give a perfect self-defense instruction with respect to the assault charge (R.T. 1504-06). Petitioner's counsel based this argument on Knox's attitude and demeanor while testifying, Knox's allegedly inconsistent statements assertedly showing his animosity toward Petitioner and Knox's alleged evasiveness on the subject of the boot (id.). The court again ruled that the evidence did not support a perfect self-defense instruction, observing, inter alia, that there was “absolutely no evidence” that Knox ever used the boot as a weapon (R.T. 1509-10).
IV. The Court of Appeal's Decision
The Court of Appeal rejected Petitioner's argument that the evidence supported a perfect self-defense instruction with respect to the assault charge (Respondent's Lodgment 6, p. 6; see People v. Divens, 2019 WL 6270685, at *3). The Court of Appeal reasoned, inter alia, that there was no substantial evidence showing that a reasonable person in Petitioner's position would have believed that he was in “imminent danger of violence” from Knox (id.). The Court of Appeal also observed that there was uncontradicted testimony that it took Knox one to two minutes to unlatch the boot, which was more than enough time for Petitioner to retreat (Respondent's Lodgment 6, p. 6; see People v. Divens, 2019 WL 6270685, at *3) (“A reasonable person would have walked away.”). The Court of Appeal further reasoned that there was no substantial evidence to support a jury finding that a reasonable person in Petitioner's situation “would have believed that ‘the immediate use of force was necessary to defend himself' from Knox after Knox finished unlatching the boot” (Respondent's Lodgment 6, pp. 6-7; see People v. Divens, 2019 WL 6270685, at *3). The Court of Appeal relied on the uncontradicted testimony that Knox never verbally threatened to use the boot and never engaged in any threatening conduct with the boot that would have caused a reasonable person to believe that the boot would be used in any fight (id.). The Court of Appeal rejected Petitioner's arguments that Knox's allegedly inconsistent testimony and reluctance to testify sufficed to support a perfect self-defense instruction (Respondent's Lodgment 6, p. 7; see People v. Divens, 2019 WL 6270685, at *3).
The Court of Appeal further rejected Petitioner's reliance on Knox's testimony that Knox assertedly fought “good, ” because there was no evidence Knox ever communicated this subjective belief to Petitioner (Respondent's Lodgment 6, p. 7; see People v. Divens, 2019 WL 6270685, at *4).
V. Analysis
The Court of Appeal's decision was not unreasonable. As set forth above, the trial evidence was uncontradicted that, as Knox was removing or had just removed the boot, Petitioner suddenly lunged at Knox with a knife, cutting Knox in the face and in the back of the head. The evidence was uncontradicted that Knox was unarmed when Petitioner attacked, had not threatened Petitioner with the boot and had not swung at Petitioner prior to the attack. There plainly was no evidence from which a person in Petitioner's situation reasonably could have anticipated imminent danger from Knox, or could have believed that the immediate use of a knife was necessary to defend against any imminent danger from Knox. Similarly, there plainly was no evidence that could have supported a conclusion that Petitioner used no more force than necessary to defend against the supposed danger; Petitioner waited a minute or two while Knox unlatched the boot before knifing the unarmed Knox in the face and in the head.
Any argument that a perfect self-defense instruction with respect to the assault charge was warranted because of Knox's subsequent demeanor at trial, or because of Knox's subsequently expressed opinion that he was a “good” fighter, is unavailing. “[T]he law recognizes the justification of self-defense not because the victim deserved what he or she got, but because the defendant acted reasonably under the circumstances.” People v. Minifie, 13 Cal.4th 1055, 1068, 56 Cal.Rptr.2d 133, 920 P.2d 1337 (1996). “Reasonableness is judged by how the situation appeared to the defendant, not the victim.” Id.; see also People v. Humphrey, 13 Cal.4th 1073, 1083, 56 Cal.Rptr.2d 142 (1996). The situation as it appeared to Petitioner could not have included Knox's demeanor at trial or Knox's expression of opinion at trial.
In sum, because the evidence did not support the use of a perfect self-defense instruction with respect to the assault charge, it follows that the trial court's failure to give such an instruction did not render Petitioner's trial fundamentally unfair, deprive Petitioner of his constitutional right to present a defense or otherwise violate due process. See Menendez v. Terhune, 422 F.3d 1012, 1029 (9th Cir. 2005) (“Because we agree with the state court's finding that Petitioners failed to demonstrate that they believed they were in imminent peril, we conclude that there was no error [in failing to give an imperfect self-defense instruction] and thus that Petitioners' due process rights were not violated.”); see also Kopy v. Ryan, 319 Fed.Appx. 666, 669 (9th Cir.), cert. denied, 558 U.S. 973 (2009) (trial court's failure to instruct the jury sua sponte that killing in imperfect self-defense negates malice and that the prosecution was required to prove beyond a reasonable doubt that the petitioner was not acting in unreasonable self-defense when he killed the victim not error because petitioner “presented no evidence that would support a conclusion that he acted in self-defense”); Hernandez v. Pennywell, 2015 WL 5138666, at *5-6 (C.D. Cal. Aug. 4, 2015), adopted, 2015 WL 5145517 (C.D. Cal. Sept. 1, 2015) (failure to instruct on perfect and imperfect self-defense did not merit habeas relief where, some four to five hours after victim had attacked petitioner at a party, petitioner returned to the party and ran toward the victim, who threw a table at petitioner and then fell, after which petitioner stabbed the victim repeatedly as he lay on the ground); Abramyan v. Virga, 2014 WL 5093401, at *12 (E.D. Cal. Oct. 9, 2014), adopted, (C.D. Cal. Nov. 21, 2014), aff'd, 691 Fed.Appx. 893 (9th Cir. 2017), cert. denied, 138 S.Ct. 1174 (2018) (“Because the evidence in this case supported neither a defense of imperfect self-defense nor imperfect defense of others, the trial court did not violate petitioner's federal constitutional rights in failing to sua sponte instruct the jury on those defenses. Put another way, the trial court did not render petitioner's trial fundamentally unfair in failing to give a jury instruction on defenses that were not supported by the evidence introduced at trial.”).
For the foregoing reasons, the Court of Appeal's rejection of Petitioner's claim of instructional error was not contrary to, or an objectively unreasonable application of, any clearly established federal law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 (2011). Petitioner is not entitled to federal habeas relief.
RECOMMENDATION
For the reasons discussed herein, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) directing that judgment be entered denying and dismissing the Petition with prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No. notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.