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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

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 follows:

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. Page 2


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 police.
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). Page 3

 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 Page 4 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 Page 5 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 Page 6 ideas among the jurors during deliberations. Accord Francis v. LaMarque, 2002 WL 31414310 (N.D.Cal. Oct. 22, 2002) (Illston, J.).

  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 verdict.

  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. Page 7 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 not warranted.


  In light of the foregoing, the petition for a writ of habeas corpus is DENIED.

  All pending motions are terminated.

  The Clerk shall close the file.




  Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

  Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

  IT IS ORDERED AND ADJUDGED the petition for a writ of habeas corpus is DENIED. All pending motions are terminated.

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