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PEREZ v. PLILER

United States District Court, Northern District of California


May 14, 2003

SHAWN MICHAEL PEREZ, PETITIONER, VS. C. K. PLILER, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Charles R. Breyer, United States District Judge

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner, a state prisoner incarcerated at California State Prison, Sacramento, seeks a writ of habeas corpus under 28 U.S.C. § 2254 claiming instructional error and ineffective assistance of counsel.

STATEMENT OF THE CASE

On March 9, 1999, petitioner was convicted by a jury in the Superior Court of the State of California in and for the County of San Mateo of first degree murder and attempted robbery. The jury found true the special circumstance that the murder was committed while petitioner was engaged in an attempted robbery. As to both counts, the jury also found true the allegation of personal firearm use and on the count of attempted robbery found true the allegation of personal infliction of great bodily harm.*fn1 Petitioner was sentenced to life in prison without the possibility of parole.

On March 28, 2000, the California Court of Appeal affirmed the judgment and, on July 19, 2000, the Supreme Court of California denied review.

Petitioner sought collateral relief from the state courts. On February 1, 2001, the San Mateo County Superior Court denied his petition for a writ of habeas corpus and, on August 29, 2001, the Supreme Court of California denied his final petition for state habeas relief.

Petitioner then filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on February 12, 2002, the court found that the petition, when liberally construed, stated cognizable claims under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause and petitioner has filed a traverse.

FACTUAL BACKGROUND

The California Court of Appeal summarized the facts of the case as follows:

The killing occurred following a weekend of camping and partying in the vicinity of Half Moon Bay. It was uncontested that appellant shot and killed Michael Rodrigues and essentially uncontested that he did so while attempting, with friends Danny Watson, Linnea Adams, and Destiny Granger, to rob him.
A. The Prosecution Case

Adams was the main prosecution witness to the killing. She testified that she drove, with her three friends, from Sacramento to Half Moon Bay. The two women (Adams and Granger) had $100 between them; appellant had a .357 revolver and Watson a .22 rifle. Watson and Granger brought methamphetamine and marijuana. At the beach, the foursome met Crespin Romero (Romero) who, on the following day, invited them to a party. Before going to the p arty, Adams and Watson discussed finding someone at the party from whom they could get money. During the party, Romero and his friend, Rodrigues (the victim) joined the foursome to ingest methamphetamine provided by Rodrigues. The males "snorted" the drug through $50 bills provided by Rodrigues. On one occasion, appellant showed the group his gun.
The group spent the night together at the campsite. In the morning, as Adams was packing up, Watson told her, "We are going to get some money," which Adams understood to mean a robbery, and she a p proved. All squeezed into Adams' car and went to a gas station to buy cigarettes, where they were joined by two other young women, friends of Rodrigues. Rodrigues stayed with those two women while the others took Romero home. On the way, Watson asked Romero, "Can we rob you homeboy?" Romero said it was none of his business.
The foursome then drove around looking for Rodrigues so they could rob him. When they found him, Adams persuaded him to get into the car to show her the location of a cheap gas station. While Rodrigues pumped gas, the foursome in the car discussed how to rob him. Appellant told Adams to drive behind the alley by the nearby Lucky's. She did so after Rodrigues got back in the car.
Once there, Adams looked back and saw appellant with his gun at Rodrigues' head, perhaps six inches from it. Adams turned back to the front, heard the gun go off, and turned to see Rodrigues had been shot in the head. She heard no words and did not hear or see a struggle before the gun fired. When she looked back a second time, Rodrigues was out of the car and the rear door was being closed. She heard, "Go, go, go," and drove off quickly, almost striking another vehicle. Appellant was crying and said, "Oh, my God, I could have just murdered somebody." Appellant said he did not get Rodrigues' wallet. Shortly thereafter, the foursome was apprehended. Rodrigues died that evening from a gunshot to the head.
To the extent that they witnessed the events to which Adams testified, Romero and Rodrigues' girlfriends corroborated Adams' testimony. They testified that Rodrigues had just been paid and had a lot of money with him and that he spoke of opening a bank account that morning. The driver of the vehicle in the near collision with Adams and another eyewitness also testified.
Appellant save two statements to the police. In his first statement, he denied any revolver was in the car, denied firing a gun, denied meeting anyone named Mike (Rodrigues), and denied shooting anyone or even being present.
The second statement was given in the early morning hours following the shooting. Appellant first denied the .357 was his, then said it was. He admitted talking in the car about robbing Rodrigues. He first claimed that Rodrigues was holding the gun, "messing around with it," and that it went off accidentally. Then he said he and Rodrigues wrestled for control of the gun. Then he said that he told Rodrigues, "Give me your and shit," and that Rodrigues grabbed the gun and it went off. Appellant said he was pointing the gun, but not at Rodrigues' head. He knew the gun was loaded and that it was uncocked. At another point, appellant said the car hit a bump and the gun went off Appellant could not remember if his finger was on the trigger, but it might have been. Appellant said he intended to rob, but not shoot, Rodrigues. After the shooting, he opened the car door and Rodrigues fell out.
The defense presented no evidence.

B. Instructions

The trial court instructed on the felony-murder special circumstance in pertinent part as follows: "If you find the defendant in this case guilty of murder in the first degree, you must then determine if the following special circumstance is true: That the murder was committed while the defendant was engaged in the attempted commission of a felony, namely, attempted robbery. . . . [¶] If you are satisfied beyond a reasonable doubt that the defendant was the actual killer of the human being, you need not find that the defendant intended to kill in order to find the special circumstance to be true."
The court also instructed: "To find that the special circumstance referred to in these instructions as murder in the commission of attempted robbery is true, it must be proved that the murder was committed while the defendant was engaged in the attempted commission of a robbery. [¶] The special circumstance referred to in these instructions is not established if the attempted robbery was merely incidental to the commission of the murder."
People v. Perez, No. A086578, slip op. at 2-4 (Cal. Ct. App. Mar. 28, 2000) (footnote omitted) (Resp't Ex. H).

DISCUSSION

A. Standard of Review

This court may entertain a petition for a 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 writ 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." Id. § 2254(d).

"Under the `contrary to' clause, a federal habeas court may grant the writ 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] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `reasonable application clause' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.

"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.

The only definitive source of clearly established federal law under 28 U.S.C. § 2254 (d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id. at 412; Clark v. Murphy, 317 F.3d 1038, 1044 (9th Cir. 2003). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Id.

B. Claims

Petitioner claims that (1) he was denied due process when the trial court rejected his requested instructions on the felony-murder special circumstance allegation, and that (2) he was denied effective assistance of counsel because trial counsel did not advise him to plead not guilty by reason of insanity.

1. Instructional error

Petitioner claims that the trial court erred in failing to give the requested instructions that "the robbery felony-murder special circumstance requires proof the murder was committed to advance or further the attempted robbery because an accidental shooting does not fall within the scope of the felony-murder special circumstance." He argues that the felony-murder special circumstance is different from, and more narrow in scope than, the felony-murder rule itself, and, consequently, that an accidental killing, even by the actual killer, does not support a felony-murder special circumstance.

In support of his position, petitioner requested instructions that required proof that the murder was committed "in order to carry out or advance the commission of the crime of attempted robbery" and advised the jury that "[a]n act committed by accident is not committed in order to advance an independent felonious purpose, or, in this case, the crime of attempted robbery." The trial court rejected both proposed instructions and instead instructed the jury pursuant to CALJIC No. 8.80.1 and a slightly-modified CALJIC No. 8.81.17. Petitioner claims that this amounted to a denial of his constitutional right to due process.

To obtain federal habeas relief for error in the jury charge, petitioner must show that the error "so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72 (1991). The error may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. Id. Petitioner also must show actual prejudice from the error, i.e., that the error had a substantial and injurious effect or influence in determining the jury's verdict, before the court may grant federal habeas relief. Calderon v. Coleman, 525 U.S. 141, 146 (1998) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).

The California Court of Appeal properly noted that there are two components to petitioner's instructional error claim: "(1) whether an accidental killing suffices for a felony-murder special circumstance; and (2) whether a killing, accidental or intentional, must be "to advance" or "in furtherance of" the felony." People v. Perez, No. A086578, slip op. at 5 (Cal. Ct. App. Mar. 28, 2000). As to the first, the court held that California law "permits an actual, though accidental, killer to come within the felony-murder special circumstance" and, therefore, petitioner's requested instruction "was properly rejected insofar as it erroneously directed a verdict that the special circumstance was untrue if the jury found the killing was accidental." Id. at 7. And, as to the second, the court held that although the requested instruction correctly stated the law, the trial court did not err in instructing the jury as it did "and, because there was no evidence to support the instruction proposed by [petitioner], there could be no prejudice in failing to give it." Id. at 10.

The California Court of Appeal's rejection of both components of petitioner's instructional error claim was not contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254 (d). First, this court is bound by the California Court of Appeal's holding that California law permits an actual, though accidental, killer to come within the felony-murder special circumstance. See Bains v. Cambra, 204 F.3d 964, 972 (9th Cir. 2000) (federal courts bound by state court's interpretation of its own law); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997) (same); see also Jeffries v. Blodgett, 988 F.2d 923, 936 (9th Cir. 1993) ("it is the sole responsibility of the States to define the elements of their criminal offenses"). The trial court's refusal to give an instruction that would have misstated California law on this issue did not violate any clearly established Supreme Court precedent. Second, the California Court of Appeal's determination that petitioner was not prejudiced by the trial court's refusal to give his second requested instruction — that the murder was committed "in order to carry out or advance the commission of the crime of attempted robbery" — was a reasonable application of the prejudice standard announced in Brecht. See 507 U.S. at 637. As the state appellate court properly put it,

. . . there is absolutely no evidence of any other purpose than robbery for the shooting. By his own admission, [petitioner] intended to rob and the factual record is overwhelming that the killing occurred while he was attempting to do so. Thus, there was no evidence to which the requested clarifying language could properly relate. Put another way, no evidence was presented from which the jury could conceivably hypothesize that the killing was other than in the furtherance of the attempted robbery.
People v. Perez, slip op. at 9-10 (emphasis in original). Petitioner is not entitled to federal habeas relief on his instructional error claim. See 28 U.S.C. § 2254 (d).

2. Ineffective assistance of counsel

Petitioner claims that he was denied his constitutional right to effective assistance of counsel because trial counsel did not advise him to plead not guilty by reason of insanity. Petitioner argues that counsel should have advised him to plead not guilty by reason of insanity because counsel knew that it was unlikely he would prevail at trial and obtain a verdict of not guilty.

In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner must establish two things. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

Judicial scrutiny of counsel's performance must be highly deferential. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and the defendant must overcome the presumption that the challenged action might be considered sound trial strategy. Id. at 689.

Petitioner has the burden of "showing" that counsel's performance was deficient. Toomey v. Bunnell, 898 F.2d 741, 743 (9th Cir. 1990). Similarly, he must "affirmatively prove prejudice." Strickland, 466 U.S. at 693. Conclusory allegations of ineffective assistance do not warrant relief. See Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995).

Petitioner raised two claims of ineffective assistance of counsel in state court: (1) that trial counsel failed to investigate a defense of insanity; and, as he claims here, (2) that trial counsel failed to advise him to plead not guilty by reason of insanity. In support, petitioner alleged that he suffered a serious head injury involving a skull fracture at the age of two and another head injury in 1995, that he has a neurological impairment, and that he had been a patient at a mental institution prior to the offense. The San Mateo County Superior Court addressed and rejected both claims under Strickland. In re Perez, Nos. SC-422.21 A & HC-1271, slip op. at 2-4 (Cal. Super. Ct. Feb. 1, 2001) (Resp't Ex. K).

As to petitioner's failure to investigate claim, the court held that petitioner had not established that counsel's performance fell below an objective standard of reasonableness:

The Court has reviewed the file in this case. On October 14, 1998 Petitioner's trial counsel filed a motion to continue the jury trial. There Petitioner's trial counsel stated that he had learned of Petitioner's head injuries. Counsel also stated that he had been in contact with both a psychologist and a neuropsychologist who observed evidence of a neuropsychological impairment. Finally, counsel stated that he was awaiting a CT scan which was referenced in a report dated August 14, 1995. Apparently the CT scan showed an abnormality.
Clearly this shows that trial counsel investigated the issue of Petitioner's sanity. As a result, Petitioner has not met his burden of showing that his trial counsel's performance fell below an objective standard of reasonableness for failure to investigate an "insanity" defense.
Id. at 3-4.

As to petitioner's failure to advise claim, the court held that petitioner had not established prejudice:

Even assuming that [petitioner's] allegations constitute deficient performance on the part of his counsel, Petitioner has not demonstrated that he is entitled to relief. Petitioner has not shown a reasonable probability that but for counsel's failings the result would have been more favorable to him.
A person is considered legally insane if "he or she was incapable of knowing or understanding the nature and quality of his or her act [or] of distinguishing right from wrong at the time of the commission of the offense." Penal Code § 25(b); People v. Horn (1984) 158 Cal.App.3d 1014, 1027. A person may suffer from a mental disorder, and yet still be considered legally "sane" for purposes of a criminal proceeding. See, People v. Lizarraga (1930) 108 Cal.App. 152.
Petitioner makes no showing that he was legally insane at the time of the offense. Thus, Petitioner has not shown that he was entitled to an "insanity" defense. He has therefore not shown a reasonable probability that but for counsel's failings the result would have been more favorable to him.
Id. at 4 (emphasis in original).

The San Mateo County Superior Court reasonably concluded that petitioner did not establish prejudice on his claim that counsel was constitutionally ineffective because counsel failed to advise petitioner to plead not guilty by reason of insanity and proceed to argue insanity at trial. In California, a defendant who pleads not guilty by reason of insanity bears the burden of proving, by a preponderance of the evidence, that he was insane when he committed the charged act. Cal. Penal Code § 25(b). He must prove that "he or she was incapable of knowing or understanding the nature and quality of his or her act [or] of distinguishing right from wrong at the time of the commission of the offense." Id. Mental illness and mental abnormality, in whatever form either may appear, are not necessarily the same as legal insanity. A person may be mentally ill or mentally abnormal and yet not be legally insane. People v. Kelley, 1 Cal.4th 495, 535 (1992). A person is legally insane only "when by reason of mental disease or mental defect he was incapable of knowing or understanding the nature and quality of his act or incapable of distinguishing right from wrong at the time of the commission of the offense." Id. (citation omitted). Petitioner's assertions that he suffered "head injur[ies]," had a "neuropsychological impairment" and "had been a mental patient at a mental institution" do not, in of themselves, show that he was legally insane at the time he committed the murder and attempted robbery. The evidence in the record — including petitioner's exclamation after the shooting, "Oh, my God, I could have just murdered somebody," his taped statements to the police showing progressive signs of consciousness of guilt and an attempt to deceive investigators, and his entering of a plea of guilty before trial to counts of assault with a firearm and possession of a firearm by an ex-felon — in fact suggests that petitioner was legally sane. Petitioner has not "affirmatively prove[n]" that "there is a reasonable probability that, but for counsel's [failure to advise him to plead not guilty by reason of insanity and proceed to argue insanity at trial], the result of the proceeding would have been different." Strickland, 466 U.S. at 693, 694. It therefore cannot be said that the state courts' rejection of petitioner's ineffectiveness claim was an "objectively unreasonable" application of Strickland. Williams v. Taylor, 529 U.S. 362, 409 (2000). Petitioner is not entitled to federal habeas relief on his ineffective assistance of counsel claim. See 28 U.S.C. § 2254 (d).

CONCLUSION

For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.

The clerk shall enter judgment in respondent and close the file. SO ORDERED.


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