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VARGAS v. RYAN

United States District Court, S.D. California


November 3, 2005.

ERNESTO VARGAS, Petitioner,
v.
STUART RYAN, Warden, Respondent.

The opinion of the court was delivered by: NITA STORMES, Magistrate Judge

REPORT AND RECOMMENDATION re PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Ernesto Vargas, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus challenging his state court conviction. Petitioner contends he was denied his constitutional right to due process and to present a meaningful defense. Respondent has lodged the state court record and has filed a Return to the Petition. Petitioner has also filed a Traverse. Respondent argues the Petition should be denied because petitioner has not established the underlying state court decisions are either contrary to, or based on an unreasonable application of, clearly established federal law. For the reasons outlined below, it is recommended the Petition be DENIED with prejudice.

Procedural History

  In a seven count amended information, petitioner was charged with attempted robbery, assault with a firearm, making a criminal threat, burglary, and false imprisonment by violence. These charges included allegations petitioner personally used and discharged a firearm. Petitioner was also charged with being a felon in possession of ammunition and a firearm, and with committing the above-listed offenses while released from custody on bail pending a final judgment on an earlier offense. In addition, the amended information alleged three prior felonies, with one, a robbery, which qualified as a serious felony prior and a strike under California's Three Strikes Law. (Lodgment No. 5, People v. Vargas, slip op. No. SCD175175 (Cal.Ct.App., 4th Dist. Div. 1, Sept. 28, 2004, at 1-2.) Prior to trial, petitioner pled guilty to being a felon in possession of ammunition and being a felon in possession of a firearm. Petitioner also admitted that he had been released on bail and that his prior robbery conviction qualified as a serious prior felony and a strike. (Lodgment No. 5, at 2-3.) A jury convicted petitioner of all remaining counts and found true the allegations petitioner personally and intentionally used and discharged a firearm. (Lodgment No. 5, at 3.) The trial court sentenced petitioner to an aggregate term of thirty-two years and four months in state prison. According to the California Court of Appeal's unpublished opinion, the sentence included "a consecutive 20-year term based on the jury's finding that he intentionally and personally discharged a firearm." (Lodgment No. 5, at 3.) Thus, a key issue at trial was whether petitioner intentionally discharged a firearm.

  Petitioner's direct appeal was denied by the California Court of Appeal on September 28, 2004 and by the California Supreme Court on December 15, 2004. (Lodgment Nos. 5 and 7.) Respondent does not contend that the Petition is untimely or that petitioner's claim is unexhausted or procedurally barred.

  Background

  The following facts are taken from the California Court of Appeal's unpublished opinion on direct appeal:*fn1

 

On the night of June 4, 2003, Refugio Renteria was working as the closing manager at the Acapulco Restaurant in Old Town, San Diego. He closed the restaurant around 9:00 p.m. and let his last employee out around 11:00 p.m. He then went to his office to complete his paperwork.
While inside his office, Renteria heard something hit the wall. He then opened the door and asked twice, `Is anybody there?' Hearing no answer, Renteria walked out toward the kitchen area continuing to ask if anyone was there. Renteria saw [petitioner] standing about 12 feet away holding a shotgun and wearing a black shirt, black jeans and a face mask. As soon as Renteria saw [petitioner] he said `Oh, God,' and began to run. [Petitioner] cocked his shotgun, shouted "stop motherfucker," and ran after Renteria. Renteria slipped on a doormat, hit his knee on a wall and fell to the floor. [Petitioner] approached from behind, pointed the shotgun at Renteria, and said, `Stop motherfucker. I'm gonna kill you.' At this time [petitioner] had his hand on the trigger of the shotgun and was standing three to four feet away from Renteria. [Petitioner] was wearing light tan gloves and a black homemade facemask, and was carrying a blue backpack.
Renteria replied, `Take it easy. Don't do anything crazy. I'll give you anything you want. Don't do anything crazy.' While holding the shotgun with two hands, [petitioner] dropped the backpack on the ground and ordered Renteria to get on his knees, go to the office, and give him the money.
Renteria got on his knees and began to crawl towards the office, but [petitioner] then ordered Renteria to stop, take everything out of his pockets and put it on the floor. Renteria obeyed, placing his wallet, daytimer, keys, and money on the floor. [Petitioner] then ordered Renteria to stay on his knees and go to the office and give him the money. Again [petitioner] warned, `don't do anything or I'm gonna kill you, you motherfucker.' Renteria proceeded on his knees to the office. When Renteria arrived at the office door, [petitioner] poked Renteria hard on the back with the barrel of the shotgun and told him, `Hurry up you motherfucker. I need my money. I don't have time.' Renteria then stated, `You know what? Don't do anything crazy. I'll give you the money. Take it easy.' [Petitioner] replied, `Well, hurry up, motherfucker, or you're gonna fucking die.'
With [petitioner] still immediately behind him, Renteria crawled across the office to the safe. As Renteria attempted to open the safe, [petitioner] kept the shotgun pressed against his shoulder and stated, `I know who you are. I know what kind of car that you drive. I'm gonna kill you, you motherfucker,' and told Renteria, `You know what? You're not coming out of this restaurant alive.' Renteria again asked [petitioner] to take it easy and assured him he would get his money.
In response, [petitioner] took his left hand off the shotgun and threw one of the office phones and a fax machine to the ground destroying them both. [Petitioner] continued to press the shotgun against Renteria's shoulder with his right hand. [Petitioner] then moved so he could destroy the second phone in the office. In doing so, [petitioner] went around to the front of Renteria, and moved the barrel of the shotgun from Renteria's shoulder to the left part of Renteria's chest, just above his heart. At this time [petitioner] was still holding the shotgun with only his right hand with his finger on the trigger. When [petitioner] reached to destroy the phone, Renteria grabbed the barrel of the shotgun with his left hand and pulled it from left to right across his chest. The shotgun immediately fired. The shot missed Renteria and hit a pile of garments.
Renteria kept his hand on the barrel of the shotgun and the two men struggled for control of the gun. During the struggle, [petitioner] again stated `I'm gonna kill you, motherfucker.' Renteria pinned [petitioner] against a wall, hit him three times in the face and head, and [petitioner] fell to the floor unconscious. Renteria then grabbed the shotgun and called the police who arrived five to six minutes later. When Renteria heard the police sirens, [petitioner] began to regain consciousness. [Petitioner] made a movement with his right hand, and Renteria believed [petitioner] was reaching for a gun in his back pocket. Renteria kicked [petitioner] in the stomach and said, `Don't move motherfucker. Stay there or I'm gonna kill you.' Shortly after this, two police officers entered the restaurant. . . .
(Lodgment No. 5, People v. Vargas, slip op. No. SCD175175 (Cal.Ct.App., 4th Dist. Div. 1, Sept. 28, 2004), at 4-6.)

  Discussion

  I. Scope of Review.

  The Petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Williams v. Taylor, 529 U.S. 420, 429 (2000); Lindh v. Murphy, 521 U.S. 320, 326-327 (1997). Under AEDPA, a federal habeas petition cannot be granted with respect to any claim adjudicated on the merits in state court unless the adjudication resulted in a decision that (1) was contrary to, or involved an unreasonable application of clearly established federal law; or (2) was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d) (West 2005).

  "A federal habeas court may issue the writ under the `contrary to' clause if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts." Bell v. Cone, 535 U.S. 685, 694 (2002), citing Williams v. Taylor, 529 U.S. at 405-406. "The court may grant relief under the `unreasonable application' clause if the state court correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case." Id. The Supreme Court has also held that "[t]he `unreasonable application' clause requires the state court decision to be more than incorrect or erroneous." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). See also Woodford v. Visciotti, 537 U.S. 19, 24-27 (2002); Bell v. Cone, 535 U.S. at 698-699. "The state court's application of clearly established law must be objectively unreasonable." Andrade, 538 U.S. at 75.

  According to the Supreme Court, "objectively unreasonable" is not the same as "clear error," because "[t]he gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness." Id. In other words, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 76. See also Chia v. Cambra, 360 F.3d 997, 1002-1008 (9th Cir. 2004) (finding the state court's application of clearly established federal law was "objectively unreasonable" pursuant to Andrade); Clark v. Murphy, 331 F.3d 1062, 1071 (9th Cir. 2003) (concluding the state court's application of federal law was not "objectively unreasonable" given "[t]he very fact that circuit courts have reached different results on similar facts").

  II. Petitioner's Claims.

  Petitioner attempted during trial to establish the shotgun fired unintentionally. According to petitioner, the victim "grabbed the barrel of the shotgun and pulled it not only away from him — but also pulled the shotgun in a downward direction" causing petitioner's finger to exert enough pressure on the trigger for it to fire. (Ps&As to Pet'n, at 12.) Petitioner does not dispute his finger was on the trigger when the victim grabbed the barrel of the shotgun and pulled it away. Petitioner claims the trial court violated his constitutional right to a fair trial and his right to present a defense because it precluded the jury from conducting an experiment with the shotgun during their deliberations. Petitioner believes the jurors should have been allowed to experiment with the shotgun to "see for themselves" it was possible the victim caused the shotgun to fire during the struggle between petitioner and the victim. (Ps&As to Pet'n, at 11.) According to petitioner, "the jury's ability to conduct the re-enactment with the firearm was crucial to its evaluation of the evidence." (P&As to Pet'n, at 15.)

  The trial transcript indicates the prosecutor objected when defense counsel suggested during his closing argument the jury experiment with the shotgun during deliberations. (Lodgment No. 2, Tr. at 143.) Later, during deliberations, the jury sent a note to the trial court asking whether they could "have two jurors act as the victim and perpetrator" to aid them in assessing the evidence. (Lodgment No. 2, Tr. at 181.) Defense counsel argued the jurors had a right to do so, but the prosecutor objected to any reenactment on fairness grounds, particularly if it included using the shotgun. After hearing from both sides, the trial court simply asked the jurors whether their proposed re-enactment included using the shotgun." (Lodgment No. 2, Tr. at 183.) In response, the jurors indicated use of the shotgun was not contemplated in any re-enactment. (Lodgment No. 2, Tr. at 183.) Thus, petitioner's argument the trial court precluded the jury from experimenting with the shotgun is a weak one. First, it does not appear the jury ever even contemplated using the shotgun to re-enact the crime. Second, the trial court did not expressly prohibit the juror from using the shotgun in their proposed re-enactment.

  Although it indicated "the issue is debatable," the California Court of Appeal assumed for the sake of analysis the trial court's rulings "could be interpreted as implied refusal to allow jury experimentation with the shotgun." (Lodgment No. 5, at 9.) Citing California case law, the California Court of Appeal concluded "the jury should have been permitted to experiment with the unloaded shotgun. . . ." (Lodgment No. 5, at 10.) The court's unpublished opinion states as follows: "To the extent we interpret the [trial] court's ruling as a prohibition against use of the shotgun, it was error." (Lodgment No. 5, at 10.) Assuming for the sake of analysis there was an error, the California Court of Appeal concluded the alleged error was not of a "constitutional dimension." (Lodgment No. 5, at 10.)

  Petitioner argues the California Court of Appeal's decision was objectively unreasonable because the trial court's alleged error was not trivial and "effectively prevented the jury in petitioner's case from considering and evaluating evidence of [the victim's] role in the accidental discharge of the weapon." (Ps&As to Pet'n, at 15.) A number of state and federal trial and appellate courts have considered cases where a jury attempted to re-enact part of a crime or otherwise tested or experimented with evidence during deliberations outside the courtroom. Carroll J. Miller, Annotation, Propriety of Juror's Test or Experiments in Jury Room, 31 A.L.R.4th 566 (2004). However, the typical case does not involve a criminal defendant arguing his trial was unfair because the jury should have been allowed to experiment with evidence outside the courtroom. Rather, in the typical case, the criminal defendant argues his right to confrontation, right of cross-examination, and/or right to counsel were violated because the jury should not have experimented with evidence during deliberations outside the courtroom. For example, in People v. Bogle, 41 Cal.App.4th 770 (1995), the defendant was charged with killing a married couple he had been living with and with setting their home on fire to cover up the murders. Id. at 774. In response to evidence presented by the prosecutor indicating the couple's safe was found in the defendant's room, the defendant offered his own testimony to suggest an exculpatory reason for the location of the safe. Id. at 775. "The prosecution also introduced into evidence the defendant's keys, and the defendant purported to identify each key but did not say any key opened the safe." Id. "During its deliberations, the jury found one of the defendant's keys opened the safe. This discovery showed the defendant had access to the inside of the safe and he lied about the key." Id. The jury sent a note to the trial court asking whether they could consider what they learned as evidence. Id. at 777. The defense moved for a mistrial arguing the relationship between the key and the safe "was beyond the evidence presented to the jurors" during trial, and the jury's use of the key and safe violated the trial court's instruction not to conduct experiments. Id. at 778. The prosecutor argued the jury's use of the key and the safe was not an outside experiment but a fair and logical examination of the evidence. Id. at 777. Although it admonished the jury to "use caution in evaluating the significance or value of this evidence," the trial court advised the jury it could consider its discovery about the key. Id. at 778. The appellate court agreed, finding the trial court had properly denied the defendant's motion for a mistrial. The appellate court concluded the jury had not conducted a prohibited experiment and had not considered new evidence but had merely scrutinized the evidence presented more carefully and in a slightly different context. Id. at 781.

  Courts have generally found a test or experiment by a jury is not improper if it merely involves a closer or more analytical examination of evidence which was properly presented during trial. Miller, Propriety, supra, at §§ 1-4. A test or experiment by a jury is improper if it has "the effect of introducing new evidence out of the presence of the court and parties" and if the new evidence in question is prejudicial and has a substantial effect on the jury's verdict. Id. In Higgins v. Los Angeles Gas and Electric Company, 159 Cal. 651 (1911), the California Supreme Court explained as follows:

The court may permit the jury to take with them and use in their deliberations any exhibit where the circumstances call for it, observing the proper precaution of instructing the jury in the nature of the use which they shall make of the exhibit. It is a fundamental rule that all evidence shall be taken in open court and that each party to a controversy shall have knowledge of, and thus be enabled to meet and answer, any evidence brought against him. It is this fundamental rule which is to govern the use of such exhibits by the jury. They may use the exhibit according to its nature to aid them in weighing the evidence which has been given and in reaching a conclusion upon a controverted matter. They may carry out experiments within the lines of offered evidence, but if their experiments shall invade new fields and they shall be influenced in their verdict by discoveries from such experiments which will not fall fairly within the scope and purview of the evidence, then, manifestly, the jury has been itself taking evidence without the knowledge of either party, evidence which it is not possible for the party injured to meet, answer, or explain.
Id. at 656-657. See also id. at 657-660 (comparing two criminal cases involving jury experiments to illustrate when such experiments are and are not appropriate). As the California Court of Appeal indicated in its opinion, jury experiments are permissible in California under some circumstances, including the circumstances at issue in this case.*fn2

  Petitioner did not cite, and this Court could not locate, any clearly established Supreme Court law which would have specifically required the trial court under the circumstances at issue in this case to allow the jurors to experiment with the shotgun during deliberations outside the courtroom. Under clearly established Supreme Court law, due process does require a jury's verdict to "be based upon the evidence developed at the trial." Turner v. State of Louisiana, 379 U.S. 466, 471-472 (1965). "In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the evidence developed against a defendant shall come from the witness stand in a public court room where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel." Id. at 472-473.*fn3 Due Process also "guarantees criminal defendants `a meaningful opportunity to present a complete defense.'" Crane v. Kentucky, 476 U.S. 683, 690 (1985), quoting California v. Trombetta, 467 U.S. 479, 485 (1984). "The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process." Washington v. State of Texas, 388 U.S. 14, 19 (1967). However, this does not mean a criminal defendant has an absolute right to present all relevant evidence. Rather, a criminal defendant's right to present relevant evidence at trial is subject to reasonable restrictions by the trial court. See, e.g., Montana v. Egelhoff, 518 U.S. 37, 42 (1996) (stating "the proposition that the Due Process Clause guarantees the right to introduce all relevant evidence is simply indefensible"); Taylor v. Illinois, 484 U.S. 400, 410 (1988) (indicating "[t]he accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence"); Rock v. Arkansas, 483 U.S. 44, 55 (1987), quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973) (stating "the right to present relevant testimony is not without limitation. The right `may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.'"). However, there is nothing to indicate the Supreme Court has expanded or is even likely to expand the right to due process or the right to present a complete defense to include a guarantee that jurors in a criminal case can freely experiment with evidence during deliberations outside the courtroom.

  Although his claim does not fit neatly into the category because the jury's experiment with the shotgun would have taken place outside the courtroom, petitioner's argument is somewhat analogous to a claim the trial court violated his right to due process and to present a complete defense by excluding material evidence pointing to his innocence on the charge he intentionally fired the shotgun. Such state court evidentiary rulings do not rise to the level of a constitutional violation unless they "offend . . . some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Patterson v. New York, 432 U.S. 197, 202 (1977) (citations omitted). Under clearly established Supreme Court law, fundamental fairness may be offended as a result of the exclusion of critical, highly exculpatory evidence. Chambers, 410 U.S. at 302. The Ninth Circuit has applied "a [five-part] balancing test to determine whether the exclusion of evidence in the trial court violated [a criminal defendant's] due process rights, weighing the importance of the evidence against the state's interest in exclusion." Chia v. Cambra, 360 F.3d at 1003.*fn4 According to the Ninth Circuit, the relevant factors are: "(1) the probative value of the excluded evidence on the central issue; (2) its reliability; (3) whether it is capable of evaluation by the trier of fact; (4) whether it is the sole evidence on the issue or merely cumulative; and (5) whether it constitutes a major part of the attempted defense." Id. at 1004.

  In this case, there is no dispute the central issue at petitioner's trial was whether he fired the shotgun intentionally or unintentionally. Nor is there any real dispute there would be some probative value to having the jurors actually pull the trigger on the shotgun. However, the trial transcript indicates a jury experiment with the trigger on the shotgun would have been cumulative of other evidence on the central issue. In other words, petitioner had an opportunity to present evidence supporting his version of the events to the jury inside the courtroom during cross-examination of the victim and during cross-examination of the prosecution's firearms expert.

  On direct examination, the prosecution presented testimony by the victim, as well as a firearms expert, to establish petitioner intentionally fired the shotgun during the struggle with the victim. The victim testified petitioner repeatedly uttered verbal threats to his life, pointed the shotgun at him, and pressed the barrel of the shotgun into his back and then his chest. (Lodgment No. 2, Tr. at 69-99.) The victim further testified petitioner had his finger on the trigger before and during the struggle over the shotgun. (Id.) With the help of the prosecutor, the victim was able to testify and demonstrate how he pulled the shotgun during the struggle. (Lodgment No. 2, Tr. at 83-88.) On direct examination, the victim testified he pulled the shotgun across and away from his body but did not pull the shotgun in a downward direction. (Id.) As petitioner contends, his counsel was able on cross-examination to obtain some testimony from the victim which could be interpreted to support petitioner's claim the victim pulled the shotgun hard in a downward direction causing petitioner to exert enough pressure on the trigger to make the shotgun fire unintentionally:

Q. . . . So you've indicated that [petitioner] had his finger inside the trigger guard, correct?
A. Yes.
Q. . . . And then when he was distracted, you then took your left hand — [petitioner] had the gun — and you pulled the shotgun hard, correct?
A. Away from me.
Q. Okay. You pulled it away and down —
A. Correct.
Q. — to get it away from [petitioner]?
A. I just took it away, yes.
Q. And it was at that point that the shotgun fired?
A. That is correct.
(Lodgment No. 2, Tr. at 103-104 (emphasis added).) However, on re-direct, the prosecutor was able to clarify through testimony and demonstration that the shotgun was facing in a downward direction because petitioner was standing and the victim was on his knees, but the victim did not pull the shotgun towards him or in a downward direction. Rather, the victim pulled the gun across to petitioner's left and away from his chest. (Lodgment No. 2, Tr. at 104-106.)

  Next, during direct examination, the prosecution's firearms expert testified about the type and amount of pressure necessary to fire the shotgun. (Lodgment No. 2, Tr. at 113-116.) According to the expert, the shotgun would fire with only 3.7 pounds of rearward pressure on the trigger. (Id.) In part by using a bag of candy weighing four pounds, petitioner's counsel on cross-examination emphasized the relatively small amount of rearward pressure needed on the trigger to cause the shotgun to fire. (Lodgment No. 2, Tr. at 116-118.) On re-direct, the prosecutor presented the expert with a simple hypothetical: "assuming there is no pressure on the trigger, i.e., there's no finger on the trigger, is there any amount of pressure on the gun itself going forward that could make it go off, assuming there's nothing inside the trigger guard?" (Lodgment No. 2, Tr. at 119.) The expert replied, "No, sir." (Id.) On re-cross, petitioner's counsel once again emphasized the relatively small amount of rearward pressure needed on the trigger to cause it to fire. The expert agreed with defense counsel's assessment the shotgun weighed more than four pounds so would fire when bearing its own weight:

Q. . . . [The shotgun] weighs more than four pounds, doesn't it.
A. I would say closer to about eight pounds, correct.
Q. Okay. So if I were to — if you were to hold that gun with the barrel down, if I was to hold out my finger and you were to place the — my finger inside the trigger guard and let go, if it weighs eight pounds, then the gun would discharge at that point in time, correct, if my finger were held solid?
A. Is your — I don't quite understand that hypothetical. Is your finger on the trigger or is it off the trigger?
Q. Yes. My finger is on the trigger through the trigger guard. You've got the barrel pointed downward, okay, and my finger's in front of the trigger guard. If I would place it like that, I would hold my finger rigid and you let go of the gun, when you let go of the gun, if my finger is rigid, the gun will discharge.
A. That's correct.
(Lodgment No. 2, Tr. at 120.)

  In short, even though petitioner did not actually testify as to his version of the events, his counsel was able to present enough evidence to suggest it was possible the shotgun fired unintentionally during the struggle between petitioner and the victim. In response, the prosecutor even conceded during his closing argument it was possible but argued in favor of the victim's version of the events:

Now, how are you going to figure out whether or not [petitioner] intentionally fired that gun? It's undisputed the gun went off. The only way a gun goes off is if there's rearward pressure applied to the trigger in excess of 3.7 pounds. [The expert] just told you about that. He said if it's sideways pressure or forward pressure, the gun won't go off. . . .
It's also undisputed that [the victim] at some time, to save his own life, put his hand on the barrel of that shotgun and he pushed it away. Now, I stood here in court this morning and I asked him, `How did you push that gun?' And when I held it I said, `Did you push it in the direction that made the gun go forward?' And he said, `No.' Now, presumably if [petitioner] kept his finger on that trigger and held onto the gun, and [the victim] pulled it back, that would be maybe four pounds of pressure, or at least 3.7 pounds of pressure exerted on the trigger rearward.
But [the victim] told you that he did not do that. He said he pushed the gun sideways, and you'll see from the photograph in People's Exhibit No. 1, Photograph L, where [the victim] told you that he was on his hands and knees in front of this safe, and that by the time that gun went off the bullets hit over here in the left-hand bottom corner of Photograph L. If he had pulled that gun towards him, the shotgun would have gone off much closer to that safe than it did. Obviously, it's clear from the evidence and the indication of where those shotgun pellets landed that the gun was, in fact, pushed away from him. So [the victim] did not exert the required rearward pressure on that trigger. [Petitioner] did.
(Lodgment No. 2, Tr. at 130-131 (emphasis added).) The prosecutor also acknowledged during his closing argument the jury would "find it difficult to decide whether or not [petitioner] intended for that gun to go off at the time it went off." (Lodgment No. 2, Tr. at 134.)

  During his closing argument, petitioner's counsel argued common sense indicated petitioner would not have pulled the trigger at the particular time in question because the victim had not yet opened the safe. (Lodgment No. 2, Tr. at 142.) Petitioner's counsel also suggested petitioner would have known there was only one round in the chamber of the shotgun and would have realized it would not be effective to use his only round at the moment in question. (Lodgment No. 2, Tr. at 142.) In addition, petitioner's counsel once again emphasized the relatively small amount of rearward pressure needed on the trigger to cause the shotgun to fire. In pertinent part, petitioner's counsel stated as follows:

So does common sense weigh in favor of an intentional pulling of the trigger? No, it really doesn't. . . . The prosecutor would suggest to you that it's just not possible that this gun — that there was backward motion on this trigger, and it's unfortunate there's a trigger guard because you could experiment with it, but I know that — but know that some of you have experience with firearms and will understand the concept if you've fired a firearm before. . . . I would like for you to take the gun back and look at it and weigh the evidence and consider — look at the gun and consider the — feel the weight of the gun and consider whether or not there is — beyond a reasonable doubt, that this gun could not have discharged. You will recall the — when [the victim] pulled it with [petitioner's] finger in the trigger pull. You'll recall that the government expert indicated that merely putting your finger in the trigger pull, that the weight of the gun itself would cause the gun to discharge. So it doesn't really take very much to discharge a gun, 3.7 pounds. This is about four pounds. It doesn't take very much. And you recall that [the victim] indicated in his testimony that he pulled hard, and why wouldn't he pull hard? Because he was excited, upset, so naturally he would.
(Lodgment No. 2, at 142-144.)

  Given the quantum and quality of the other evidence on the issue of petitioner's intent to pull the trigger, including testimony and related demonstrative evidence, it is simply incredulous the jury could not fairly and adequately evaluate the strength of petitioner's version of the events without actually experimenting with the shotgun during their deliberations outside the courtroom. Based on the record, this Court also questions whether the jurors could fairly, accurately, and reliably re-enact the shooting using the unloaded shotgun in the jury room and evenhandedly evaluate the results of their experiment without the judicial protections afforded when evidence is presented in open court. In addition, the relatively small amount of rearward pressure on the trigger was not the only component of the defense theory — during closing arguments, petitioner's counsel argued the circumstances (i.e., the unopened safe and petitioner's knowledge there was only one round in the chamber) suggested petitioner did not intentionally pull the trigger at the particular time in question. In other words, this Court rejects as unconvincing petitioner's argument it was critical for the jury to be allowed to experiment with the shotgun during deliberations outside the courtroom. As a result, there is nothing from which this Court could conclude it was objectively unreasonable or contrary to clearly established Supreme Court law for the California Court of Appeal to conclude there was no constitutional violation in petitioner's case.

  Even if petitioner could establish a constitutional violation based on the exclusion of critical, exculpatory evidence, petitioner would not be entitled to habeas relief because he would be unable to show prejudice. Assuming for the sake of analysis there was a constitutional violation, the California Court of Appeal concluded a reversal would not be justified because there was no harm or prejudice to the defense under the standard of review set forth by the United States Supreme Court in Chapman v. California, 386 U.S. 18, 23-24 (1967), or the standard of review set forth by the California Supreme Court in People v. Watson, 46 Cal.2d 818, 836 (1956). Essentially, the California Court of Appeal reasoned the jury's verdict would not have been altered because any experiment by the jury with the trigger would have been cumulative of other evidence on an undisputed point (i.e., the shotgun would fire with a mere 3.7 pounds of rearward pressure on the trigger) and because the weight of the evidence strongly favored the prosecution.

  This court "must defer to [the California Court of Appeal's] holding unless it was in `conflict with the reasoning or the holdings of [Supreme Court] precedent' or if it `applied harmless error review in an `objectively unreasonable' manner." Inthavong v. Lamarque, 420 F.3d 1055, 1058-1059 (9th Cir. 2005). Petitioner does not argue the California Court of Appeal's harmless error analysis is in conflict with Supreme Court precedent. Rather, petitioner argues the California Court of Appeal applied harmless error review in an objectively unreasonable manner because it relied on erroneous factual assumptions. To support his argument, petitioner cites two statements in the California Court of Appeal's prejudice analysis. First, the California Court of Appeal's opinion states defense counsel "chose to present no evidence whatsoever." (Lodgment No. 5, at 11.) As outlined above, the record indicates petitioner was able to present some evidence in his favor during cross-examination of the prosecution's witnesses. However, the record does indicate the defense elected not to present any of its own witnesses. (Lodgment No. 2, at 122-123.) Second, the California Court of Appeal's opinion states "all of the testimony received at trial" favored the prosecution. (Lodgment No. 5, at 11 (emphasis added).) As outlined more fully above, some testimony could be read to favor petitioner's contention he did not intentionally fire the shotgun.

  Petitioner also seems to be arguing a jury experiment with the shotgun was critical and would have altered the jury's verdict because the victim's testimony on cross-examination strongly supported his contention he did not intentionally fire the shotgun. It is true the victim's testimony on cross-examination, when read in isolation, could be interpreted to indicate the victim pulled the shotgun in a downward direction which could have caused it to fire. However, the record, when viewed as a whole, confirms the California Court of Appeal's conclusion "the overwhelming weight of the evidence produced at trial forecloses any possibility that the jury's finding would have been different had it been allowed to experiment with the gun." (Lodgment No. 5, at 12.). As outlined more fully above, the victim testified during direct examination he pulled the shotgun across and away from his body but did not pull the shotgun in a downward direction. In broken dialogue indicating the victim may not have listened carefully to the entire question before responding, the victim answered affirmatively when asked whether he pulled the shotgun "away and down." (Lodgment No. 2, Tr. at 103-104.) On re-direct examination, the prosecutor was able to elicit clarifying testimony from the victim which reconciles the victim's testimony on cross-examination with his prior testimony on direct examination. During redirect examination, the prosecutor was able to clarify through testimony and demonstration that the shotgun was facing in a downward direction because petitioner was standing and the victim was on his knees, but the victim did not pull the shotgun towards him or in a downward direction. Rather, the victim pulled the gun across to petitioner's left and away from his chest. In sum, petitioner was able to show there was a possibility he did not intend to fire the shotgun, but most of the evidence presented to the jury strongly supported the prosecution. The victim's testimony was both thorough and compelling and was supported and largely corroborated by testimony from other witnesses. In other words, the evidence presented by the prosecution at trial was quite strong, and the cross-examination testimony petitioner cites in support of his argument, together with the other trial evidence in his favor, was relatively weak. Under these circumstances, there is nothing from which this Court could conclude the California Court of Appeal applied harmless error review in an objectively unreasonable manner.

  Conclusion

  After a review of the record in this matter and for the reasons outlined above, the undersigned Magistrate Judge recommends that the Petition for Writ of Habeas Corpus be DENIED with prejudice. This report and recommendation of the undersigned Magistrate Judge is submitted to the United States District Judge assigned to this case, pursuant to the provision of Title 28, United States Code, section 636(b)(1).

  IT IS ORDERED that no later than December 2, 2005, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation." IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than December 16, 2005. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

  IT IS SO ORDERED.

20051103

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