United States District Court, N.D. California
February 10, 2004.
JEROME BRYANT, Petitioner,
TOM CAREY, Respondent
The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER DENYING THE PETITION FOR A WRIT OF
Petitioner is a California prisoner who filed this pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
After an initial review, the Court ordered respondent to show cause why
the petition should not be granted. Respondent has filed an answer
accompanied by a memorandum and exhibits contending that the petition
should be denied. Petitioner has not filed a traverse.
The California Court of Appeal summarized the facts of the case as
For present purposes, it is sufficient to state
that the victim, 15-year-old Christina, passed out
in petitioner's car after consuming alcoholic
beverages purchased by petitioner. She had met
petitioner that evening at a party in a motel.
When she awoke, the car was parked; the car seat
had been reclined; her clothes had been removed,
except for her bra and panties; and petitioner was
on top of her. He was wearing only his boxer
shorts and his penis was touching the outside of
her vagina. Christina thought that petitioner's
penis entered her vagina "[a] little bit"
Christina screamed and tried to push petitioner
off of her. At some point, petitioner ripped off
her underwear. He put his hand on Christina's
throat and told her to "shut the fuck up."
Petitioner eventually got off Christina. He told
her that he would give her money if she did not
report him to the police. Christina did not accept
any money from petitioner.
Petitioner drove Christina back to the motel
where she was staying with her 18-year-old
girlfriend Come. Christina told Come that
petitioner had raped her and Come called the
See People v. Bryant, No. A096649, slip op. at 1-2
(Cal. Ct. App. Aug. 30, 2002) (Respt. Exh. 4) (hereinafter "Slip Op.").
A jury convicted petitioner of attempted rape by intoxication and
misdemeanor battery, and found that petitioner had a prior conviction.
The trial court sentenced petitioner to five years in state prison. The
California Court of Appeal affirmed on appeal, denying the two claims
discussed herein. The Supreme Court of California denied the petition for
review in a one-line opinion.
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);
Rose v. Hodges, 423 U.S. 19, 21 (1975).
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); Williams v. Taylor, 120 S.Ct. 1495, 1523
(2000). Habeas relief is warranted only if the constitutional error at
issue had a "`substantial and injurious effect or influence in
determining the jury's verdict.'" Penry v. Johnson,
121 S.Ct. 1910, 1920 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619,
638 (1993)). A federal court must presume the correctness of the state
court's factual findings. 28 U.S.C. § 2254(e)(1).
B. Legal Claims
1. CALJIC No. 2.71.5
Petitioner claims that the trial court violated his right to due
process by issuing the following California model jury instruction
regarding evidence of a defendant's adoptive admissions:
If you should find from the evidence that there
was an occasion when the defendant, one, under
conditions which reasonably afforded him an
opportunity to reply, two, made false, evasive or
contradictory statements in the face or an
accusation expressed directly to him, charging
him with the crimes for which this defendant
is now on trial or tending to connect him with its
commission, and three, that he heard the
accusation and understood its nature, then the
circumstance of his conduct on that occasion may
be considered against him as indicating and
admission that the accusation thus made was true.
Evidence of an accusatory statement is not
received for the purpose of proving its truth, but
only as it supplies meaning to the conduct of the
accused in the face of it. Unless you find that
the defendant's conduct at the time indicated an
admission that the accusatory statement was true,
you must entirely disregard that statement.
CALJIC No. 2.71.5. The day after the rape, petitioner was interviewed
by Detective Eubanks. Petitioner initially denied having sex with the
victim. Eubanks continued the interview, and he lied to petitioner about
the existence of DNA evidence on the victim's body, about having spoken
to friends of petitioner, about petitioner's pubic hairs being found on
the victim's underpants, and about petitioner receiving better treatment
if he admitted his crime. Petitioner subsequently admitted to sexual
contact with the victim. At trial, Eubanks admitted that he lied to
petitioner during the interview. Eubanks explained that this was an
interrogation technique designed to test the truth of petitioner's
initial statement that he did not have sex with the victim.
Petitioner argues that CALJIC 2.71.5 should not have allowed the jury
to consider his adoptive admissions in response to the lies Eubanks told
during the interrogation. Petitioner states that the jury should not have
been allowed to use petitioner's adoptive admissions to evaluate
petitioner's credibility "while treating [Eubanks's] falsehoods with
impunity." Petitioner cites no Supreme Court or precedent, or any other
authority, and this Court is aware of none, which prohibits as a matter
of due process the use of adoptive admissions made in response to false
statements by a police officer. Supreme Court
precedents is required for habeas relief to be granted pursuant to
28 U.S.C. § 2254(d)(1). Williams (Terry) v. Taylor,
529 U.S. 362, 412 (2000) (holding that federal habeas relief must be based
on the decisions of United States Supreme Court).
In any event, the general rule regarding jury instructions is that to
obtain federal collateral relief for errors in the jury charge, a
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, 71-72 (1991). 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.
Id. In the context of this case, the instruction did not render
the trial unfair. As the California Court of Appeal correctly stated, the
truth of Eubanks's statements was not relevant. The only relevance of
Eubanks's statements was that petitioner believed them to be true and
responded to those statements by changing his initial story, and
admitting that he had sex with the victim Because petitioner believed
Eubanks was telling the truth, the jury could reasonably infer from his
responses to Eubanks's statements that petitioner's initial claims of
innocence were untrue. Petitioner argues that the jury could have been
"confused" by the instruction, but the instruction itself specifically
informed the jury that it could not consider Eubanks's statements for
their truth. In any case, even if the jury had considered whether
Eubanks's statements were true, they would have known that they were
false because Eubanks himself clearly testified to the jury that he was
lying. Under these circumstances, the use of CALJIC 2.71.5 did not render
petitioner's trial fundamentally unfair so as to violate due process.
Accordingly, habeas relief is not available on this claim.
2. CALJIC No. 17.41.1*fn1
Petitioner also claims that his right to due process was violated by
the use of the model jury instruction CALJIC 17.41.1, 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.
Petitioner claims that CALJIC No. 17.41.1 interfered with his Sixth
Amendment right to trial by jury and his Fourteenth Amendment right to
due process by inhibiting open and free deliberations among the jury and
by violating his right to a unanimous jury.
Petitioner argues that the instruction impedes on the jury's free and
open exchange of ideas during deliberation because it authorizes the jury
to report if another jury is refusing to deliberate or follow
instructions.*fn2 The rights to a jury trial and to due process require
that jury deliberations remain private and protected from intrusive
inquiry. See Tanner v. United States, 483 U.S. 107,
127 (1987). Under this principle, there may be no inquiry into the
subjective reasoning or mental processes of jurors. See
id. at 121; United States v. Symington, 195 F.3d 1080
(9th Cir. 1999). In evaluating whether an ailing instruction is
unconstitutional, the court inquires 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. There is not a reasonable
likelihood that this instruction would cause jurors to report the
internal mental processes or subjective reasoning of a juror. The
instruction merely authorizes the jurors to report either a juror's
refusal to deliberate, which is their conduct and not their
mental reasoning, or their expressed intention not to follow
instructions or to disregard the law, which is also not their internal
subjective reasoning. Moreover, the instruction does not authorize
reporting of every word or idea exchanged by the jury, only those which
violate the instructions or the law. As such, the instruction helps the
proper functioning of the jury by enabling the trial court to investigate
jury misconduct if necessary. There is not a reasonable likelihood that
CALJIC 17.41.1 interfered with the private exchange of
ideas among the jurors during deliberations. Accord
Francis v. LaMarque, 2002 WL 31414310 (N.D.Cal. Oct. 22, 2002)
Petitioner also argues that the instruction violates his right to a
jury by a unanimous verdict by dissuading jurors from dissenting because
the instruction allows a majority of jurors who may be frustrated with a
dissenting juror to report him or her to the court for misconduct.
Criminal defendants in state court have no federal constitutional right
to a unanimous jury verdict. See Apodaca v. Oregon,
406 U.S. 404, 410-12 (1972) (rejecting 6th Amendment right to jury trial
challenge to 10-2 state jury verdict). However, as California guarantees
a unanimous verdict under the state constitution, an instruction which
interferes with that right could conceivably raise a ground cognizable in
federal habeas corpus if the instruction so infects the trial that the
defendant was thereby deprived of a fair trial guaranteed by the
Fourteenth Amendment. See Dunckhurst v. Deeds,
859 F.2d 110, 114 (9th Cir. 1988). Petitioner's argument is without merit.
The instruction only authorizes the jury to report a juror who is
refusing to deliberate or to follow the instructions, not a juror who is
simply dissenting from the majority. If the jurors were to report a juror
to the court on the basis of dissenting, the jury would not be following
the jury instruction as written, as they are presumed to do.
See Aguilar v. Alexander, 125 F.3d 815, 820 (9th Cir.
1997) (holding that juries are presumed to follow a court's instructions
as they are written). Because the instruction does not authorize a jury
to report, or a court to admonish or remove, a juror on the basis of
dissent, it cannot be said to interfere with the unanimity of a jury
Even if the instruction was erroneous, the error in this case was
harmless. 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 in this case. As the California Court of Appeal
explained, the jury reached a verdict quickly, and with no report of a
juror refusing to follow the law or otherwise engaging in misconduct.
There is also no indication in the record of any holdout or
deadlock among the jurors. As there is no indication that CALJIC 17.41.1
had any bearing on the jury's deliberations in this case, there is not a
reasonable likelihood that it had a substantial and injurious effect on
the verdict. Accord Francis, 2002 WL 31414310
(finding no prejudice under Brecht from use of CALJIC 17.41.1
where deliberations were short and there was no indication that the jury
perceived there to be a holdout, deadlock or misconduct). Accordingly,
even if there was error in the use of CALJIC 17.41.1, habeas relief is
In light of the foregoing, the petition for a writ of habeas corpus is
All pending motions are terminated.
The Clerk shall close the file.
IT IS SO ORDERED.
[EDITORS NOTE: THIS PAGE CONTAINED "CERTIFICATE OF SERVICES".]
JUDGMENT IN A CIVIL CASE
Jury Verdict. This action came before the Court for a trial
by jury. The issues have been tried and the jury has rendered its
Decision by Court. This action came to trial or hearing
before the Court. The issues have been tried or heard and a decision has
IT IS ORDERED AND ADJUDGED the petition for a writ of habeas
corpus is DENIED. All pending motions are terminated.