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Briscoe v. Scribner

April 15, 2010

KHYLE BRISCOE, PETITIONER,
v.
A.K. SCRIBNER, ET AL., RESPONDENT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 1999 conviction for murder, robbery, burglary and the finding that he personally used a firearm in the commission of all three counts. Petitioner was sentenced to life without the possibility of parole after the jury further found as a special circumstance that the murder was committed while petitioner engaged in the commission of robbery and burglary.

This action is proceeding on the amended petition filed September 15, 2006, as to claims 1-6, 8--11, and 13, 14 and 16 to the extent it is based on appellate counsel's failure to raise claims 13 and 14. Claims 12, 15 and 16, to the extent it concerns appellate counsel's failure to raise claim 12, were dismissed on grounds that they were barred by the statute of limitations. See order filed April 5, 2007. Claim 7 was dismissed as unexhausted. See order filed April 10, 2008. Several claims were denied evidentiary hearing.

For ease of reference, each claim heading is set forth herein, its procedural status, and the pages herein where the claim is discussed.

Claim 1 Insufficient Evidence No Previous Ruling 9

Claim 2 Jury Instruction Error No Previous Ruling 28

Claim 3 Jury Instruction Error (Unanimity) No Previous Ruling 34

Claim 4 Jury Instruction Error (Lesser Included)No Previous Ruling 36

Claim 5 Right to Present a Defense No Previous Ruling 40

Claim 6 Ineffective Assistance of Counsel Evidentiary Hearing (EH) Denied Part (d) Parovel/Rozadilla Impeachment (d)-- 55 Mental State Evidence-- 60

Claim 7 Miranda Violations Dismissed (No discussion herein)

Claim 8 Ineffective Assistance of Counsel (IAC) EH denied (d) in part Involuntary Confession 79 Incorrect Procedure (d) 89

Claim 9 Ineffective Assistance (Sentencing) No Previous Ruling 95

Claim 10 Cumulative Error (No Previous Ruling) 100

Claim 11 Impeachment-Memory Impairment (EH) denied 95

Claim 12 Jury Inst. Error-Self-defense and Causation-Dismissed, Limitations (No discussion herein)

Claim 13 IAC-Impeachment -Pistol Whipping No Previous Ruling 97

Claim 14 IAC-Criminal Investigation of Parovel No Previous Ruling 98

Claim 15 IAC Promises of Leniency to Parovel Dismissed, Limitations (No discussion herein)

Claim 16 IAC (appellate) re Claim 13 No Previous Ruling 99

This Findings and Recommendations will repeat portions of previous orders so that the reader will not have to flip between various items in the docket. Also, because the opinion of the California appellate court must be scrutinized in this AEDPA context, and provocative act murder is a complex theory, much of the explanations of the appellate court are set out herein. The number of complex issues resolved herein makes this Findings and recommendations necessarily lengthy.

After carefully considering the record, the court recommends that the petition be denied.

II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)

The Anti-Terrorism and Effective Death Penalty Act (AEDPA) "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).

In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.

"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[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. Rather, that application must also be unreasonable." Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002).

"Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 746 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76, 127 S.Ct. 649, 653-54 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection).

The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S.Ct. at 366.

However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

Petitioner raised claims 1-5 on direct appeal. The California Court of Appeal issued a reasoned opinion addressing affirming petitioner's conviction. Respondent's Exhibit 12. The California Supreme Court denied the petition without comment or citation. Respondent's Exhibit 16. The undersigned will below discuss the relevant AEDPA review standard for these claims. See Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000) (when reviewing a state court's summary denial of a claim, the court "looks through" the summary disposition to the last reasoned decision).

Petitioner raised claims 6, 8, 9, 10, 11, 13, 14 and 16 in two separate habeas petitions filed in the California Supreme Court. Respondent's Exhibits 17, 21. The California Supreme Court denied these petitions without comment or citation. Respondent's Exhibit 20, 22. Accordingly, the undersigned conducts an independent review of these claims. Brown v. Ornowski, 503 F.3d 1006, 1010 (9th Cir. 2007)(to the extent that a state court decision is unaccompanied by a rationale for its conclusion, we conduct an independent review of the record to determine whether the state court decision is objectively reasonable).

III. Factual Background

The opinion of the California Court of Appeal contains a factual summary.

After independently reviewing the record, the court finds this summary to be accurate and adopts it below:

On the night of April 2, 1998,*fn1 Alisha Rozadilla was alone at the Vacaville home of her boyfriend Ben Parovel. Shaun Pina and [petitioner] knocked on the door, asking for Parovel. Frightened, Rozadilla armed herself with Parovel's nine-millimeter Beretta while she waited for him to return. When Parovel came home, the two men-acquaintances of his-entered the living room of the house with him. They told Parovel that they wanted to purchase marijuana. They appeared to be unarmed. Parovel-his back to [petitioner] and Pina-took the Beretta from Rozadilla and hid it in his clothing.

Pina and [petitioner] followed Parovel into a bedroom to get the marijuana. As Parovel was weighing out marijuana, Pina pulled out a gun-a .10-millimeter Glock semiautomatic pistol with a red laser beam on it-and relieved Parovel of his Beretta. Pina demanded money. [Petitioner] returned to the living room where Rozadilla had remained, held a .38-caliber handgun to her neck and asked her " 'Where's the gun, Bitch?' " in a very loud tone of voice. When he satisfied himself that she was no longer armed, he asked where to find the money. She told him that she had no idea. He put her in a headlock-his arm underneath her chin-and walked her back to the bedroom where Parovel and Pina were. He had his gun pointed at her head.

In the bedroom, Pina and [petitioner] continued to demand money from Parovel. He handed over about $1,500, but Pina wanted more. Parovel had almost $15,000 in cash hidden in the house-money given him in the form of a cashier's check that he had recently cashed. He induced Pina out of the bedroom on the pretext that he would show him where the money was. Parovel tried to run, but Pina grabbed his hooded shirt and yanked him back. He grabbed at Pina's Glock and the two men struggled for it. The gun fell and flew across the floor. [Petitioner]-hearing the struggle-left Rozadilla in the bedroom and went to investigate. As Parovel struggled to get up and retrieve the Glock, [petitioner] entered the room holding the .38, then picked up the Glock and struck [Parovel] in the head repeatedly with it. The magazine of the Glock fell out while [petitioner] hit Parovel with it. Pina had Parovel's legs pinned and the three men struggled for several minutes.

Parovel was able to get free of Pina. The front door was open, so he ran outside with [petitioner] on his back. Parovel and [petitioner] continued to struggle over the Glock. [Petitioner] gained control of his .38. Parovel tripped, bringing [petitioner] down with him. He grabbed for the .38 and the gun went off, shooting at the side of the house. When Parovel gained control of the .38, he started shooting, afraid for his life. He believed that Pina still had his Beretta and he was angry that the two men took his money. [Petitioner] was two feet away from him; Pina was on the driveway 13 or 14 feet away from where Parovel lay on the lawn. Parovel shot Pina twice; the second shot made Pina drop.*fn2 As [petitioner] approached Pina, Parovel fled to a neighbor's house with the .38 to call the police. Parovel was bleeding from a cut on his head. He set down the .38 inside the neighbor's house. When he went outside again, [petitioner] and Pina were gone. Vacaville police responded to a report of a gunshot victim and found Pina lying on the ground, semi-conscious and with a failing pulse. A wad of money totaling almost $1,400 was removed from his clothing. No marijuana was found in his pockets and no weapon was seen near the body. Pina was declared dead at the scene.

Knowing the police were coming, Parovel threw the marijuana, a scale and a magazine for his Beretta out of the house. He did not touch the Glock. The .38 he had left at his neighbor's house was later recovered by police. It contained five empty casings and one live round of ammunition. Police searched Parovel's house and found a .10-millimeter Glock pistol without a gun magazine and a gun magazine fitting the Glock inside the house. Two bullets were found, one in the driveway and one on the garage floor. They also found a scale.

Parovel first told police that [petitioner] and Pina came to the house to play videotape games. Later, he told police the truth-that he was selling marijuana to them. He told police that he thought Nate Newman-who shared Pina's apartment-had set him up. Newman had sold him a quarter pound of marijuana for $1,300 earlier that day. Parovel had heard that Newman had a Glock handgun. On the night of April 2, [petitioner]-with multiple gunshot wounds-was taken to a hospital. While lying on a gurney, he told police that he stood on a Vacaville street when an unknown man pulled a gun on him. [Petitioner] said that he wrestled with the man until he broke away and ran from him. The man shot at [petitioner] while he was lying on the ground. [Petitioner] told police that he flagged down a passing vehicle and got a ride to the hospital. A police officer administered a gunshot residue test. After a five- to 10-minute interview, [petitioner] was taken into surgery. The police took his clothing as evidence. They found no weapons or marijuana on his person.

On the afternoon of April 4, [petitioner] gave a second statement to police while in the hospital. A nurse advised a police officer that [petitioner] was not under the influence of any medication that would cause him to be unable to answer questions. [Petitioner] seemed alert. They spoke for 20 to 25 minutes and the statement was tape-recorded.

In this statement, [petitioner] admitted that he and Pina went to the Vacaville house of a man named [Parovel] to purchase marijuana. He told police that [Parovel] tried to rob them and that he shot at them. He learned from police that Pina was dead. [Petitioner] admitted that he had been carrying a .38-caliber revolver and that Pina was also armed with a Glock. He tried to tackle [Parovel], who was armed and whom [petitioner] thought intended to kill him. [Parovel] also tried to wrestle Pina's gun from Pina and [petitioner] felt he had to stop [Parovel]. [Petitioner] tried to help Pina, who was hit and collapsed. After the police told [petitioner] that they knew that he and Pina intended to rob [Parovel], [petitioner] admitted that he knew [Parovel] had money. [Petitioner] also told police that on the night of the shooting, a car was waiting for him containing Newman and another person. These two people brought him to the hospital. Newman had given [petitioner] the .38 and had given Pina the Glock. [Petitioner] said that Newman wanted the robbery to occur that day. Newman was to get a third of whatever [petitioner] and Pina recovered.

[Petitioner] was arrested and ordered held without bail. At the preliminary hearing, he objected to the admission of the April 4 statement that he gave to police as taken in violation of his Miranda*fn3 rights and as an involuntary statement. The magistrate denied the motion after conducting a suppression hearing. (See § 1538.5.)

On June 1, [petitioner] was charged by information*fn4 with first degree murder of Pina, robbery of Parovel and Rozadilla, and burglary of Parovel's dwelling. The information alleged that the murder of Shaun Pina was committed in the commission of robbery and burglary and that [petitioner] personally used a firearm in the commission of all three offenses. (See §§ 187, subd. (a), 190.2, subd. (a)(17), 211, 459; see also former §§ 190.2, 12022.5, subd. (a)(1).) [Petitioner] pled not guilty and denied all the enhancement allegations. His motion to dismiss the information and its special circumstances allegations was heard and denied. (See § 995.)

At trial, a forensic pathologist testified that Pina suffered two gunshot wounds. One of the bullets struck vital organs and proved to be fatal. A bullet was recovered from Pina's chest during an autopsy. His blood revealed evidence of marijuana in his system, but no alcohol or other drugs. [Petitioner's] tape-recorded statement to police was played for the jury. A criminalist testified that the bullet found in Pina's chest cavity was fired from [petitioner's] .38-caliber revolver. None of the bullets found at the scene came from Pina's .10-millimeter Glock semiautomatic pistol. [Petitioner's] motion for acquittal of first degree murder based on insufficiency of evidence was denied. (See § 1118.1.) The parties stipulated that there was evidence of marijuana in his bloodstream. [Petitioner] put on expert evidence of his organic brain damage and argued that he lacked the capacity to form the mens rea required for either robbery or burglary. He also argued to the jury that Parovel's killing of Pina was not done in response to anything that he did. Ultimately, the jury found [petitioner] guilty of all three offenses and found all three firearm-use-enhancement allegations to be true. It also concluded that [petitioner] was engaged in the crimes of robbery and burglary during the commission of the murder. He moved for a new trial, arguing that the trial court misdirected the jury in a matter of law and that the verdict was contrary to the law and the evidence. He sought a judgment of acquittal notwithstanding the verdict on the murder charge. (See § 1181, subd. 5.) The trial court denied the motion for new trial and the related motion for judgment notwithstanding the verdict. [Petitioner] was sentenced to an indeterminate term of life imprisonment without possibility of parole for the murder. The trial court also imposed a four-year consecutive term for the firearm use enhancement related to the murder charge. Terms for first degree robbery and first degree burglary and the related firearm-use-enhancement findings were stayed on multiple punishment grounds.

(See § 654.)

Respondent's Lodged Document 12, pp. 2-6.

IV. Discussion

A. Claim 1: Insufficient Evidence

Petitioner argues that there was insufficient evidence to support his murder conviction. Amended Petition, p. 30. The California Court of Appeal denied this claim as follows:

II. PROVOCATIVE ACT MURDER

A. Legal Principles

First, Briscoe contends that he was improperly convicted of special-circumstances murder under the provocative act murder doctrine. Under this general claim of error, he raises several discrete issues-a challenge to the sufficiency of evidence; a claim that the trial court failed to properly respond to a jury inquiry; challenges to various instructions; a call for the abolition of the provocative act murder doctrine; and a claim that the statutory special circumstances found by the jury did not apply to the facts of his case. We consider each issue in turn, but first set forth the basic law that applies in cases such as this, when a crime victim shoots and kills an accomplice and the state seeks to hold a defendant responsible for the killing.

A provocative act murder case necessarily involves at least three people-in our case, the perpetrator of the underlying offense, an accomplice, and a victim of their crime. (See People v. Superior Court (Shamis) (1997) 58 Cal.App.4th 833, 845-846, 68 Cal.Rptr.2d 388 (Shamis).) Under the provocative act murder doctrine, the perpetrator of a crime is held vicariously liable for the killing of an accomplice committed by the third party. (See People v. Gilbert (1965) 63 Cal.2d 690, 705, 47 Cal.Rptr. 909, 408 P.2d 365, judg. vacated on other grounds (1967) 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; see also Pizano v. Superior Court (1978) 21 Cal.3d 128, 135, 145 Cal.Rptr. 524, 577 P.2d 659; Taylor v. Superior Court (1970) 3 Cal.3d 578, 582-583, 91 Cal.Rptr. 275, 477 P.2d 131, overruled on another ground in People v. Antick (1975) 15 Cal.3d 79, 92 fn. 12, 123 Cal.Rptr. 475, 539 P.2d 43.) By law, the felony-murder rule does not apply when an accomplice is killed at the hands of a crime victim rather than by the defendant. As such a killing does not occur in the perpetration of a felony, malice cannot be ascribed to the defendant under the felony-murder rule. (People v. Gilbert, supra, 63 Cal.2d at p. 703, 47 Cal.Rptr. 909, 408 P.2d 365; People v. Washington (1965) 62 Cal.2d 777, 781, 44 Cal.Rptr. 442, 402 P.2d 130; see People v. Caldwell (1984) 36 Cal.3d 210, 216, 203 Cal.Rptr. 433, 681 P.2d 274; In re Joe R. (1980) 27 Cal.3d 496, 503-504, 165 Cal.Rptr. 837, 612 P.2d 927; Pizano v. Superior Court, supra, 21 Cal.3d at p. 136, 145 Cal.Rptr. 524, 577 P.2d 659; Taylor v. Superior Court, supra, 3 Cal.3d at p. 582, 91 Cal.Rptr. 275, 477 P.2d 131; People v. White (1995) 35 Cal.App.4th 758, 763-764, 41 Cal.Rptr.2d 510; In re Aurelio R. (1985) 167 Cal.App.3d 52, 57 fn. 2, 58, 212 Cal.Rptr. 868.) However, when the perpetrator of a crime--with a conscious disregard for life--intentionally commits an act that is likely to result in death and the crime victim kills in reasonable response to that act, the perpetrator is guilty of murder. In this situation, the killing is attributable--not merely to the commission of a felony--but to the intentional act of the perpetrator committed with conscious disregard for life. The victim's killing in self-defense is not deemed to be an independent intervening cause relieving the perpetrator of liability because the killing is a reasonable response to the dilemma thrust on the victim by the perpetrator's intentional act. (People v. Gilbert, supra, 63 Cal.2d at pp. 704-705, 47 Cal.Rptr. 909, 408 P.2d 365; In re Aurelio R., supra, 167 Cal.App.3d at p. 58, 212 Cal.Rptr. 868; see People v. Caldwell, supra, 36 Cal.3d at pp. 216-217 fn. 2, 203 Cal.Rptr. 433, 681 P.2d 274; In re Joe R., supra, 27 Cal.3d at pp. 504-505, 165 Cal.Rptr. 837, 612 P.2d 927; Pizano v. Superior Court, supra, 21 Cal.3d at pp. 134-135, 145 Cal.Rptr. 524, 577 P.2d 659; Taylor v. Superior Court, supra, 3 Cal.3d at pp. 582-583, 91 Cal.Rptr. 275, 477 P.2d 131; People v. Gallegos (1997) 54 Cal.App.4th 453, 459, 63 Cal.Rptr.2d 382; People v. Gardner (1995) 37 Cal.App.4th 473, 478, 43 Cal.Rptr.2d 603.)

As with most criminal offenses, a provocative act murder has both a physical and a mental element that the prosecution must establish. (See § 20.) To constitute the actus reus of provocative act murder, the defendant must commit an act that provokes a third party to fire a fatal shot. The mens rea element is satisfied if the defendant knows that his or her provocative act has a high probability--not merely a foreseeable possibility--of eliciting a life-threatening response from the person who actually fires the fatal bullet. (In re Aurelio R., supra, 167 Cal.App.3d at p. 57, 212 Cal.Rptr. 868; see People v. Gallegos, supra, 54 Cal.App.4th at p. 460, 63 Cal.Rptr.2d 382; see also In re Joe R., supra, 27 Cal.3d at p. 505, 165 Cal.Rptr. 837, 612 P.2d 927.) Cases often discuss these two elements in terms of whether the defendant committed a provocative act which proximately caused the killing. (See, e.g., Shamis, supra, 58 Cal.App.4th at p. 846, 68 Cal.Rptr.2d 388; People v. Gallegos, supra, 54 Cal.App.4th at p. 457, 63 Cal.Rptr.2d 382.)

The prosecution must establish that the defendant FN5 committed a provocative act. (See People v. Garcia (1999) 69 Cal.App.4th 1324, 1329, 82 Cal.Rptr.2d 254.) In cases in which the underlying crime does not involve an intent to kill-offenses such as robbery FN6 and burglary, the underlying crimes that the jury in Briscoe's case found that he had committed--the mere participation in the underlying criminal offense is not sufficient to invoke the doctrine of provocative act murder. The provocative act must be something beyond that necessary to commit the underlying crime. (People v. Garcia, supra, 69 Cal.App.4th at p. 1329, fn. 3, 82 Cal.Rptr.2d 254; People v. Gallegos, supra, 54 Cal.App.4th at pp. 456-457, 63 Cal.Rptr.2d 382; In re Aurelio R., supra, 167 Cal.App.3d at pp. 59-60, 212 Cal.Rptr. 868; see In re Joe R., supra, 27 Cal.3d at p. 504, 165 Cal.Rptr. 837, 612 P.2d 927.) In every robbery, the possibility exists that a victim will resist and kill. The robber has little control over such a killing once the robbery is undertaken. To impose an additional penalty for the killing improperly discriminates between robbers, not on the basis of any difference in their conduct, but solely on the basis of a victim's response that the robber's conduct induced. (People v. Washington, supra, 62 Cal.2d at p. 781, 44 Cal.Rptr. 442, 402 P.2d 130; People v. Gallegos, supra, 54 Cal.App.4th at p. 457, 63 Cal.Rptr.2d 382.) However, circumstances set in motion by the defendant which are fraught with grave and inherent danger to life are sufficient to constitute a provocative act that allows a jury to raise an inference of malice. (People v. Garcia, supra, 69 Cal.App.4th at pp. 1329-1330, 82 Cal.Rptr.2d 254 [firing weapon into ceiling of occupied room].)

FN5. If a provocative act is committed by an accomplice who is later killed by a crime victim, that act cannot form the basis for a provocative act murder. As the accomplice cannot be guilty of murder in connection with his or her own death, so the defendant--who stands in the shoes of the accomplice--cannot be held vicariously responsible for such a killing. (People v. Garcia, supra, 69 Cal.App.4th at pp. 1330-1331, 82 Cal.Rptr.2d 254; see In re Joe R., supra, 27 Cal.3d at p. 506 fn. 5, 165 Cal.Rptr. 837, 612 P.2d 927; People v. White, supra, 35 Cal.App.4th at p. 765, 41 Cal.Rptr.2d 510; Shamis, supra, 58 Cal.App.4th at p. 845, 68 Cal.Rptr.2d 388; People v. Mai (1994) 22 Cal.App.4th 117, 120, 127-128, 27 Cal.Rptr.2d 141, disapproved on other grounds in People v. Nguyen (2000) 24 Cal.4th 756, 758, 102 Cal.Rptr.2d 548, 14 P.3d 221.)

The provocative act murder doctrine may also apply if the provocative act was committed by a surviving accomplice. (See In re Joe R., supra, 27 Cal.3d at p. 506 fn. 5, 165 Cal.Rptr. 837, 612 P.2d 927; People v. Garcia, supra, 69 Cal.App.4th at p. 1331, 82 Cal.Rptr.2d 254; Shamis, supra, 58 Cal.App.4th at p. 846, 68 Cal.Rptr.2d 388.) However, as Briscoe's sole accomplice in this case was the murder victim Pina, we need not consider such cases.

FN6. Much of the law of provocative act murder has evolved in robbery cases. (See People v. Gallegos, supra, 54 Cal.App.4th at p. 460, 63 Cal.Rptr.2d 382; see also In re Aurelio R., supra, 167 Cal.App.3d at pp. 59-60, 212 Cal.Rptr. 868.) In robbery cases, courts have consistently required the defendant to commit a provocative act beyond that necessary to commit the robbery in order to be held liable for a killing committed by a third party. (See, e.g., In re Joe R., supra, 27 Cal.3d at p. 506 fn. 6, 165 Cal.Rptr. 837, 612 P.2d 927; People v. Garcia, supra, 69 Cal.App.4th at p. 1331, 82 Cal.Rptr.2d 254.)

A prosecution for murder requires a finding of malice. (Shamis, supra, 58 Cal.App.4th at p. 844, 68 Cal.Rptr.2d 388; see Pizano v. Superior Court, supra, 21 Cal.3d at p. 134, 145 Cal.Rptr. 524, 577 P.2d 659.) The malice necessary for provocative act murder is implied malice. (People v. Cervantes (Aug. 27, 2001) 26 Cal.4th 860, 868, 111 Cal.Rptr.2d 148, 29 P.3d 225; People v. White, supra, 35 Cal.App.4th at p. 768, 41 Cal.Rptr.2d 510.) Malice may be implied if the defendant commits an act with a high probability that it will result in death and does so with a base antisocial motive or a wanton disregard for human life. (Pizano v. Superior Court, supra, 21 Cal.3d at p. 134, 145 Cal.Rptr. 524, 577 P.2d 659; Shamis, supra, 58 Cal.App.4th at p. 844, 68 Cal.Rptr.2d 388 [second degree murder].) Unless the defendant's conduct is sufficiently provocative of a lethal response, it cannot support the finding of implied malice necessary for a verdict of guilt on a charge of murder. (Taylor v. Superior Court, supra, 3 Cal.3d at pp. 582-584, 91 Cal.Rptr. 275, 477 P.2d 131; People v. Garcia, supra, 69 Cal.App.4th at p. 1329, 82 Cal.Rptr.2d 254; People v. Mai, supra, 22 Cal.App.4th at pp. 120, 125, 27 Cal.Rptr.2d 141; see In re Joe R., supra, 27 Cal.3d at p. 505, 165 Cal.Rptr. 837, 612 P.2d 927.) Thus, a central inquiry in determining a defendant's criminal liability for a killing committed by a resisting victim is whether the defendant's conduct was sufficiently provocative of lethal resistance to support a finding of implied malice. (See Taylor v. Superior Court, supra, 3 Cal.3d at pp. 583-584, 91 Cal.Rptr. 275, 477 P.2d 131; People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1078-1079, 53 Cal.Rptr.2d 207.)

The prosecutor must also establish that the defendant's conduct proximately caused the killing. Courts use traditional notions of concurrent and proximate cause in order to determine whether the killing was the result of the defendant's conduct. (See People v. Cervantes, supra, 26 Cal.4th at pp. 865, 874, 111 Cal.Rptr.2d 148, 29 P.3d 225; People v. White, supra, 35 Cal.App.4th at p. 765, 41 Cal.Rptr.2d 510.) To be considered the proximate cause of the victim's death, the defendant's act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical.FN7 (People v. Caldwell, supra, 36 Cal.3d at p. 220, 203 Cal.Rptr. 433, 681 P.2d 274; People v. White, supra, 35 Cal.App.4th at p. 765, 41 Cal.Rptr.2d 510; People v. Mai, supra, 22 Cal.App.4th at pp. 120, 123, 128, 27 Cal.Rptr.2d 141; see Shamis, supra, 58 Cal.App.4th at pp. 845-846, 68 Cal.Rptr.2d 388.) A defendant's provocative acts must actually provoke a victim response resulting in an accomplice's death. (See In re Joe R., supra, 27 Cal.3d at pp. 505-508, 165 Cal.Rptr. 837, 612 P.2d 927 [sufficiency of evidence case].)

FN7. As the California Supreme Court has held, the substantial factor test is an application of the general rule of de minimis non curat lex--that is, the law does not recognize trifles. (People v. Caldwell, supra, 36 Cal.3d at pp. 220-221, 203 Cal.Rptr. 433, 681 P.2d 274; see Black's Law Dict. (7th ed.1999) p. 443, col. 1; see also Civ.Code, § 3533.)

The timing of the events is critical. By necessity, the provocative act must occur before a victim may make a lethal response. (See, e.g., In re Joe R., supra, 27 Cal.3d at p. 507, 165 Cal.Rptr. 837, 612 P.2d 927 [ineffectual blows struck after victim initiated battle are not provocative acts].) There may be more than one act constituting the proximate cause of the killing. (See People v. Caldwell, supra, 36 Cal.3d at p. 219, 203 Cal.Rptr. 433, 681 P.2d 274; Shamis, supra, 58 Cal.App.4th at p. 846, 68 Cal.Rptr.2d 388.) If the defendant commits several acts but only one of them actually provoked a lethal response, only that act may constitute the provocative act on which culpability for provocative act murder can be based. (See In re Joe R., supra, 27 Cal.3d at pp. 507-508, 165 Cal.Rptr. 837, 612 P.2d 927; People v. Kainzrants, supra, 45 Cal.App.4th at pp. 1077-1078, 53 Cal.Rptr.2d 207.) When the chain of causation is somewhat attenuated, the jury decides whether murder liability attaches or not. (People v. Gardner, supra, 37 Cal.App.4th at p. 479, 43 Cal.Rptr.2d 603; see People v. Roberts (1992) 2 Cal.4th 271, 321, 6 Cal.Rptr.2d 276, 826 P.2d 274, cert. den. 506 U.S. 964, 113 S.Ct. 436, 121 L.Ed.2d 356; see also People v. Cervantes, supra, 26 Cal.4th at p. 871-872, 111 Cal.Rptr.2d 148, 29 P.3d 225 [proximate cause is typically jury question].)

B. Sufficiency of Evidence

In the first of his claims of error on appeal, Briscoe [petitioner]argues that there was insufficient evidence to prove beyond a reasonable doubt that he was liable for Pina's death at Parovel's hand under the provocative act murder doctrine. He argues that neither his handling of Rozadilla nor his pistol-whipping of Parovel constituted a provocative act beyond that necessary to commit the robbery itself. At trial, the court found that there was sufficient evidence to send the case to the jury when it denied his motion for an acquittal of first degree murder for insufficiency of evidence. (See § 1118.1.)

When reviewing a claim of insufficiency of evidence, we must view the evidence in the light most favorable to the verdict and presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from that evidence. The test is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. We must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proof beyond a reasonable doubt of each essential element of the offense. Substantial evidence must be of ponderable legal significance, reasonable in nature, credible and of solid value. (People v. Cervantes, supra, 26 Cal.4th at p. 868, 111 Cal.Rptr.2d 148, 29 P.3d 225; People v. Caldwell, supra, 36 Cal.3d at p. 217, 203 Cal.Rptr. 433, 681 P.2d 274; **415 People v. Kainzrants, supra, 45 Cal.App.4th at p. 1076, 53 Cal.Rptr.2d 207.) Briscoe argues that the only proper evidence we may consider on the issue of when Parovel was motivated to use lethal force is the direct evidence provided by Parovel's own testimony. The fact that the California Supreme Court needed only a robbery victim's testimony to establish the sequence of events for purposes of determining causation in a provocative act murder case does not compel the conclusion that this is the only evidence that a court may consider to make this determination. (See, e.g., In re Joe R., supra, 27 Cal.3d at pp. 506-508, 165 Cal.Rptr. 837, 612 P.2d 927.) We need not limit ourselves to Parovel's testimony alone when considering whether substantial evidence supports the jury's implied finding that Briscoe committed a provocative act that in turn prompted Parovel to kill Pina. We may, of course, consider circumstantial evidence and reasonable inferences that may be drawn from the evidence presented to the jury, as well as direct evidence. (See People v. Anderson (1940) 37 Cal.App.2d 615, 619, 100 P.2d 348 [circumstantial evidence]; see also People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139, 17 Cal.Rptr.2d 375, 847 P.2d 55.)

On appeal, Briscoe contends that his pistol-whipping of Parovel cannot constitute a provocative act because Parovel's fear for his life arose before the pistol-whipping occurred--when Pina took his weapon while the two men were still in the bedroom. He reasons that Pina's earlier act of relieving Parovel of his weapon while the two men were still inside Parovel's house was the act that provoked Parovel to commit the lethal act--not his subsequent pistol-whipping. The provocative act murder doctrine requires that the perpetrator of a crime intentionally commit an act that is likely to result in death and that prompts the crime victim to kill in response to that conduct. (People v. Gilbert, supra, 63 Cal.2d at pp. 704-705, 47 Cal.Rptr. 909, 408 P.2d 365; see People v. Cervantes, supra, 26 Cal.4th at p. 874, 111 Cal.Rptr.2d 148, 29 P.3d 225 .) Briscoe argues that there is insufficient evidence to support the conclusion that his conduct led Parovel to fear, prompting him to kill.

This argument is flawed, for several reasons. First, the record does not support Briscoe's claim that Parovel testified that "immediately after being stripped of his gun by Pina, he began to fear for his life." At trial, Parovel testified that he was fearful while he was in the bedroom. He told the jury that Pina took his weapon while they were in the bedroom. However, he did not offer specific testimony-as Briscoe seems to suggest-that the loss of his weapon caused him to immediately fear for his life. Parovel testified that when he opened the front door of his house, he was trying to get away from Pina and Briscoe because he feared them. Until this point, Parovel's fear is generalized. It is only after Briscoe pistol-whipped him that Parovel's fear rose to the level of a mortal fear. After being pistol-whipped and regaining control of a weapon, Parovel began to shoot because he was in fear for his life. Thus, the record supports the conclusion that the fear that prompted his lethal act arose as a result of Briscoe's pistol-whipping. These facts allow a jury to properly conclude that Briscoe's conduct was an intentional act that was likely to result in death and that prompted Parovel to kill in response. (See People v. Gilbert, supra, 63 Cal.2d at pp. 704-705, 47 Cal.Rptr. 909, 408 P.2d 365.) Even if Briscoe accurately summarized the factual sequence of events, his argument fails because it incorrectly assumes only one possible cause for Parovel's lethal act. Case law establishes that there may be more than one cause prompting an act of lethal resistance-that is, more than one provocative act. (See People v. Caldwell, supra, 36 Cal.3d at p. 219, 203 Cal.Rptr. 433, 681 P.2d 274; Shamis, supra, 58 Cal.App.4th at p. 846, 68 Cal.Rptr.2d 388; see also In re Joe R., supra, 27 Cal.3d at pp. 507-508, 165 Cal.Rptr. 837, 612 P.2d 927; People v. Kainzrants, supra, 45 Cal.App.4th at pp. 1077-1078, 53 Cal.Rptr.2d 207.) The fact that Pina's taking of Parovel's weapon could have been one cause of Parovel's ultimate act of shooting Pina does not preclude the possibility that the later pistol-whipping administered by Briscoe himself was yet another provocative act resulting in Parovel's shooting of Pina.

Briscoe's argument also defies common sense because it assumes that if a relatively minor provocative act occurs causing the victim to be placed in fear, a later and more egregious act may not be considered as a provocative act that caused the victim's subsequent lethal act. We find no support in the case law for such a proposition. Later acts that do not actually provoke lethal resistance are not properly considered provocative acts, but cases that hold this are not also authority for the different proposition that later acts escalating a victim's fear and increasing the desire to resist also cannot be a proximate cause of the lethal act. (See People v. White, supra, 35 Cal.App.4th at p. 766, 41 Cal.Rptr.2d 510 [second act provokes response although first act does not]; see also In re Joe R., supra, 27 Cal.3d at p. 507, 165 Cal.Rptr. 837, 612 P.2d 927 [victim testified that he barely noticed later punch].) Logic suggests that while losing one's weapon may make one uneasy about one's safety, being repeatedly beaten about the head with a pistol would likely escalate that uneasiness into a fear that might prompt a lethal response at the first available opportunity.

A pistol-whipping is also more likely than the simple act of relieving a victim of his or her own weapon to satisfy the requirement that a provocative act be a malicious act taken in conscious disregard for life. (See In re Joe R., supra, 27 Cal.3d at p. 507, 165 Cal.Rptr. 837, 612 P.2d 927 [life-threatening act required].) In our case, Briscoe's pistol-whipping was also closer in time to the lethal act than the initial loss of Parovel's weapon. The pistol-whipping occurred immediately before Parovel's shooting of Pina. This suggests that Briscoe's later act was more likely to have prompted the immediate response leading to Pina's death. Parovel himself testified that he feared for his life when he was on the front lawn of his house. Once he gained control of a weapon after being pistol-whipped, he started shooting because he was in fear of his life. This evidence satisfies us that there is substantial evidence to support the jury's implied conclusion that Briscoe's life-threatening conduct provoked Parovel to commit a lethal act.

Briscoe also argues that his act of pistol-whipping Parovel could not constitute a provocative act because it was not an act beyond that inherent in the underlying crime of robbery itself. A provocative act must be one that goes beyond conduct that is inherent in the underlying felony. (People v. White, supra, 35 Cal.App.4th at p. 765, 41 Cal.Rptr.2d 510.) In a provocative act murder case, we review whether the defendant committed an act in furtherance of the underlying crime that was life-threatening and that went beyond those acts necessary to accomplish the underlying offense. ( Ibid. [robbery case].) It has long been established in provocative act murder cases that when the underlying offense is robbery, any conduct beyond that essential to the commission of the robbery may be a provocative act. Typically, robbery involves an oral or visual demand for money. A physical assault on the victim or an actual discharge of a weapon is not an element of the offense, but is an act beyond that necessary to complete a robbery. The beating of a robbery victim with a deadly weapon can constitute a provocative act if it was a life-threatening act. (People v. White, supra, 35 Cal.App.4th at pp. 766, 768, 41 Cal.Rptr.2d 510 [beating with baseball bat]; see People v. Gallegos, supra, 54 Cal.App.4th at p. 461, 63 Cal.Rptr.2d 382.) We are convinced that Briscoe's act of pistol-whipping Parovel could likewise be a provocative act beyond that inherent in the crime of robbery alone. Thus, we are satisfied that substantial evidence supports the jury's finding of a provocative act sufficient to satisfy the provocative act murder doctrine.

Briscoe also contends that his handling of Rozadilla did not constitute a provocative act. He argues that there was no evidence that Briscoe verbally threatened Parovel or that Parovel was sufficiently aware of Briscoe's conduct toward Rozadilla such that those acts might provoke Parovel to a lethal response. We find to the contrary, that his actions were an implied threat to harm Rozadilla if Parovel did not cooperate with Briscoe and Pina. Briscoe placed Rozadilla in a headlock, pressed a gun to her head and took her into the bedroom where Parovel was. He held her in this manner while he and Pina demanded money of Parovel. Clearly, Briscoe used Rozadilla-then Parovel's girlfriend-as an implied hostage. A jury could properly find that he committed a provocative act when Briscoe pointed a weapon to Rozadilla's head and demanded that Parovel acquiesce to his demands. In so doing, he dramatically increased the risk to Rozadilla of injury or death by the manner in which he held her in a headlock and by the proximity of the weapon to her head. (See People v. Kainzrants, supra, 45 Cal.App.4th at p. 1077, 53 Cal.Rptr.2d 207.) Thus, the jury had substantial evidence to support a finding that Briscoe committed not one, but two provocative acts.

Respondent's Lodged Document 12, pp. 6-16.

While the California Court of Appeal did not recite the Supreme Court cases pertinent to this claim, it applied the elements of the constitutional standard when it analyzed the claim. As in Early v. Packer, supra, the state court analyzed the claim using state-law principles analogous to the constitutional standards. Accordingly, the undersigned must defer to that ruling unless it is objectively unreasonable.

When a challenge is brought alleging insufficient evidence, federal habeas corpus relief is available if it is found that upon the record evidence adduced at trial, viewed in the light most favorable to the prosecution, no rational trier of fact could have found "the essential elements of the crime" proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781 (1979). Jackson established a two-step inquiry for considering a challenge to a conviction based on sufficiency of the evidence. U.S. v. Nevils, No. 06-50458, 2010 WL 986790 at *3 (9th Cir. March 19, 2010) (en banc). First, the court considers the evidence at trial in the light most favorable to the prosecution. Id.,citing Jackson, 443 U.S. at 319, 99 S.Ct. 2781. "'[W]hen faced with a record of historical facts that supports conflicting inferences," a reviewing court 'must presume--even if it does not affirmatively appear in the record--that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Id., quoting Jackson, 443 U.S. at 326, 99 S.Ct. 2781.

"Second, after viewing the evidence in the light most favorable to the prosecution, a reviewing court must determine whether this evidence, so viewed is adequate to allow 'any rational trier of fact [to find] the essential elements of the crime beyond a reasonable doubt.'" Id. at * 4, quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781. "At this second step, we must reverse the verdict if the evidence of innocence, or lack of evidence of guilt, is such that all rational fact finders would have to conclude that the evidence of guilt fails to establish every element of the crime beyond a reasonable doubt." Id.

Superimposed on these already stringent insufficiency standards is the AEDPA requirement that even if a federal court were to initially find on its own that no reasonable jury should have arrived at its conclusion, the federal court must also determine that the state appellate court not have affirmed the verdict under the Jackson standard in the absence of an unreasonable determination. Juan H. v. Allen, 408 F.3d 1262 (9th Cir. 2005).

Petitioner argues that there was insufficient evidence of the three intentional provocative acts identified by the prosecution: his use of a firearm to commit the burglary, his holding a gun to Rozadilla in petitioner's presence, and his pistol whipping of Parovel. Amended Petition, p. 31.

Citing People v. Slaughter, 27 Cal.4th 1187, 120 Cal.Rptr.2d 477 (2002), petitioner argues that the mere use of a firearm to commit a burglary or robbery is not an intentional provocative act. Amended Petition, p. 32. Petitioner cites pages 461 and 474 of the reporter's transcript as evidence of the prosecutor's argument that his "mere" use of the firearm constituted a provocative act. Amended Petition, p. 31. The undersigned has reviewed the record and does not find that the prosecutor argued that the mere use of a firearm constituted a provocative act. Rather, the prosecutor argued only that petitioner's holding a gun to Rozadilla's head and pistol whipping Parovel constituted provocative acts:

And the law says, not because I say it's so, the law says that if Mr. Briscoe's provocative acts--and the People submit his conduct in leveraging Alisha Rozadilla when he brought her in before her boyfriend with that gun to her head and pistol-whipping Mr. Parovel are both provocative acts--if the death of Mr. Pina is as a result, was caused by that provocative act, then Mr. Briscoe is responsible for that conduct.

RT at 459.

The prosecutor later argued,

An intentional provocative act is defined as follows: The act was intentional. The natural consequences of the act were dangerous to human life, and the act was deliberately performed with knowledge of the danger to and with conscious disregard for human life.

And that's what I was talking to you earlier about how they came there armed, and the difference between committing that kind of conduct and why that went above and beyond the usual robbery, and how that evidence on Mr. Briscoe's part, knowledge of the danger, conscious disregard for the human lives of people inside there, and especially when he menaced Miss Rozadilla with that gun.

RT at 474.

The prosecutor again made clear that petitioner's provocative acts were his holding a gun to Rozadilla's head and pistol whipping of Parovel:

The conduct that he did was intentional provocative acts and those are the putting the gun to Miss Rozadilla's head and bringing her to where her boyfriend could see her. Ben saw that, bringing her to his presence, and then pistol-whipping Mr. Parovel. And only one act is required under law.

RT at 476.

Accordingly, petitioner's argument that the prosecutor argued that his mere use of a firearm to commit the burglary/robbery constituted a provocative act is without merit.

Petitioner argues that his holding of a gun to Rozadilla's head was insufficient to constitute an intentional provocative act because, assuming it was done, there was no evidence presented from which it could even be inferred that Parovel's decision to escape, resist and ultimately shoot was responsive to anything done to Rozadilla. Amended Petition, p. 32. Petitioner also contends that his handling of Rozadilla was "essentially" out of the view of Parovel. Amended Petition, p. 32; brief on appeal.

The undersigned first considers petitioner's argument that Pina did not see him hold a gun to Rozadilla. At trial, Parovel testified that when he was in the bedroom with Pina, petitioner entered the bedroom with Rozadilla. RT at 100. Parovel testified that at that time, petitioner had his gun pointed at Rozadilla. RT at 100. Parovel testified that when he and Pina left the bedroom, petitioner followed with his gun still pointed at Rozadilla. RT at 103. Parovel then walked to the front door and tried to take a step out because he was fearful for his life. RT at 104.

Parovel's testimony regarding when he saw petitioner with the gun to Rozadilla's head is consistent with Rozadilla's testimony regarding this matter. Rozadilla testified that petitioner put her in a headlock and put the gun to her head while they were in the living room and Parovel and Pina were in the bedroom. RT at 68-70. Petitioner then walked her into the bedroom with the gun still to her head. RT at 72. When Parovel and Pina left the bedroom, petitioner released her from the headlock but kept the gun pointed at her. RT at 75-76.

Parovel's testimony clearly demonstrates that he saw petitioner holding the gun to Rozadilla. Petitioner argues that Parovel did not testify that he saw petitioner holding Rozadilla in a headlock with a gun pointed at her head while they were all in the bedroom. While Parovel did not testify that he saw Rozadilla in a headlock with the gun pointed at her head, he did not testify that this did not occur. Rather, he was not specifically asked whether she was in a headlock with the gun pointed at her head. His testimony that he saw her in the bedroom and as they left the bedroom with the gun pointed at her is not inconsistent with her testimony. It was not unreasonable for the jury to infer that Parovel saw petitioner pointing the gun at Rozadilla's head.

In the reply, petitioner argues that in an interview with Detective Hamer, Parovel stated that he did not know what petitioner was doing to Rozadilla. A copy of the transcript from this interview is attached as exhibit C to the amended petition. In considering a claim for insufficiency of the evidence, a court considers only evidence that was presented to the jury. See McDaniel v. Brown, ___ U.S. ___, 130 S.Ct. 665, 671-672 (2010). The jury did not see this interview nor did they review the transcript. In any event, petitioner has taken Parovel's statements during the interview out of context. Parovel stated as follows:

Parovel: So, I said, the money's in here, I'll get it for you, you don't have to worry about it so we go back to the room, not the master bedroom but the on the left hand side and I go in the drawer and get him like $2000 in cash I just got a settlement from pop's death from asbestos. He died four years ago and I had inherited and I was running my mouth and, that's how it all started.

Detective: What was Chris doing when Sean did that?

Parovel: I don't know. I don't know what he was doing to my girl, I was just focused on the gun and I was in the living room and he was in the back room where the money's at, where's the money at. The gun is still on the bed Jason's, it's a 9mm Beretta, it's still on the bed at this point. I don't grab it or nothing. I'm in the back room and Chris brings my girlfriend in the room, we're all four in the room. He's like "Where's the rest of it? Where's the rest of it?" I said, "Oh, this way." I was going out the front door and he grabbed by my neck like this and pulled me back in, so I seen the gun, I grabbed it, we wrestled and I fall down the he's hitting me so many times with the gun that the clip falls out of the gun with the beam. The clip falls out.

Amended Petition, Exhibit C, p. 7.

Clearly, when Parovel stated that he did not know what petitioner was doing to Rozadilla he was referring to when he and Pina first went into the bedroom. Parovel went on to state that petitioner and Rozadilla went into the bedroom with him and Pina, which is consistent with his trial testimony. Later in this statement, Parovel stated that he saw petitioner holding the gun to Rozadilla's face. Amended Petition, Exhibit C, p. 29. Petitioner's reliance on this statement in support of his insufficient evidence claim is misplaced.

The undersigned next considers petitioner's argument that petitioner's handling of Rozadilla was not a sufficient provocative act because there was no evidence presented from which it could even be inferred that Parovel's decision to escape, resist and ultimately shoot was responsive to anything done to Rozadilla. Amended Petition, p. 33. The undersigned agrees with the California Court of Appeal regarding this issue. The state appellate court found that petitioner's actions were an implied threat to hurt Rozadilla if petitioner did not cooperate with him and Pina. "A jury could properly find that he committed a provocative act when [petitioner] pointed a weapon to Rozadilla's head and demanded that Parovel acquiesce to his demands. In doing so, he dramatically increased the risk to Rozadilla of injury or death by the manner in which he held her in a headlock and by the proximity of the weapon to her head." Respondent's Lodged Document 12, p. 16.

Petitioner's main argument seems to be that Parovel did not testify that he was afraid of what they would do to Rozadilla. Rather, Parovel's testimony was that he was afraid of what petitioner and Pina would do to him. Parovel testified that after he left the bedroom, he tried to walk out of his apartment because he was afraid. RT at 104. Parovel testified that he wanted to get out "[b]ecause they had guns, and I was just fearful for my life basically." RT at 104.

While petitioner did not directly testify that he was concerned for Rozadilla, a reasonable jury could have inferred from his testimony and the circumstances that he was afraid that petitioner and Pina would further injure or kill Rozadilla. In addition, although not discussed by the California Court of Appeal, the holding of the gun to Rozadilla obviously contributed to Parovel's fear for his own safety. A reasonable jury could have inferred that Parovel was afraid that petitioner would shoot him based on his pointing of the weapon at Rozadilla.

Petitioner next argues that the pistol-whipping conduct was insufficient to constitute a provocative act, assuming Parovel was subject to such conduct and that it was inflicted by petitioner and not Pina, because there was no link between that conduct and Parovel's decision to resist and kill. Amended Petition, p. 33. In his state appeal, petitioner further argued that the pistol-whipping incident was overblown as shown by Parovel's insignificant injuries. In his state appeal, petitioner also argued that the evidence demonstrated that Parovel shot at him and Pina out of anger and a desire to be rid of them rather than out of fear.

The undersigned first considers petitioner's argument that there was insufficient evidence that petitioner pistol-whipped Parovel. Parovel testified that as he tried to walk out, Pina grabbed him and they fell to the ground. RT at 104. As he and Pina struggled on the floor, petitioner came up and started pistol-whipping him. RT at 106. Parovel testified that petitioner hit him on the head four or five times. RT at 106. Based on this testimony, the undersigned finds that there was sufficient evidence on which a reasonable jury could base a finding that petitioner pistol-whipped Parovel.

Petitioner also suggests that petitioner actually pistol-whipped Pina because his head injuries were much more severe than Parovel's minor injuries. However, the doctor who performed Pina's autopsy testified that his facial injury was a "very discrete linear injury, and I would doubt that the butt of the gun would cause something like that." RT at 212. Based on this testimony, a reasonable jury could have rejected the argument that petitioner actually pistol whipped Pina and not Parovel. For these reasons, the undersigned rejects petitioner's argument that there was insufficient evidence of the pistol-whipping.

Petitioner argues that there was insufficient evidence that the pistol-whipping caused Parovel to shoot Pina. Petitioner argues that petitioner shot Pina because he was angry at them for stealing his money rather than because he was in fear for his life.

Parovel testified that when he got outside and got the gun, he began shooting because "I was in fear of my life." RT at 111. On cross-examination, Parovel testified that he was glad to "get rid of those guys" and that he was angry because they had tried to take his money. RT at 140-141. Based on this testimony, a reasonable jury could have found that Parovel shot Pina because he was in fear for his life. While it is not surprising that Pina felt anger toward petitioner and Pina, especially at the time of trial when time had passed to reflect on the incident, the testimony demonstrates that at the time he fired the shots at Pina, he felt in fear for his life.

Petitioner also argues that Parovel did not shoot in response to any act by petitioner because he testified that the decision to shoot was made "spur of the moment." Parovel testified that when he got the gun, he did not have a plan in his mind. RT at 148. He testified that when he got the gun, he just started shooting. Id. Petitioner's argument ignores the evidence that led Parovel to shoot in the first place, evidence which included petitioner's provocative acts, which could well have formed the basis for any spur of the moment decision. The argument that petitioner's provocative acts did not cause Parovel to shoot because he made the decision "spur of the moment" is without merit.

On appeal, petitioner also argued that Parovel's fear for his life arose before the pistol-whipping occurred, when Pina took his weapon while the two men were still in the bedroom. Petitioner argues that this act of taking his weapon was the act that provoked Parovel to shoot. The undersigned agrees with the California Court of Appeal regarding this issue. The state appellate court observed that there may be more than one provocative act. Respondent's Lodged Document 12, p. 14. "The fact that Pina's taking of Parovel's weapon could have been one cause of Parovel's ultimate act of shooting Pina does not preclude the possibility that the later pistol-whipping administered by Briscoe himself was yet another provocative act resulting in Parovel's shooting of Pina." Id. "Logic suggests that while losing one's weapon may make one uneasy about one's safety, being repeatedly beaten about the head with a pistol would likely escalate that uneasiness into a fear that might prompt a lethal response at the first available opportunity." Id.

On appeal, petitioner also argued that the act of pistol-whipping could not constitute a provocative act because it was not an act beyond that inherent in the underlying crime of robbery. For the reasons found by the California Court of Appeal, this argument is without merit:

A physical assault on the victim or an actual discharge of a weapon is not an element of the offense, but is an act beyond that necessary to complete a robbery. The beating of a robbery victim with a deadly weapon can constitute a provocative act if it was a life-threatening act. (People v. White, supra, 35 Cal.App.4th at pp. 766, 768, 41 Cal.Rptr.2d 510 [beating with baseball bat]; see People v. Gallegos, supra, 54 Cal.App.4th at p. 461, 63 Cal.Rptr.2d 382.) We are convinced that Briscoe's act of pistol-whipping Parovel could likewise be a provocative act beyond that inherent in the crime of robbery alone.

Respondent's Lodged Document 12, p. 15.

In the reply to the answer, petitioner argues that when Parovel was interviewed by Detective Hamers shortly after the shooting, he did not describe a desire to protect Rozadilla, rage over petitioner's handling of her, or a fear of his life that was tied to the pistol-whipping that motivated him to shoot Pina. Petitioner argues that during this interview, Parovel states that he shot Pina because he was angry about the robbery of his money. Petitioner cites pages 8 and 9 of his exhibit C attached to the amended petition in support of this argument which is the transcript from this interview. This argument is flawed because in reviewing a sufficiency of the evidence claim, the court reviews the evidence before the jury. As discussed above, the transcript from this interview was not admitted into evidence and nor was Parovel questioned about the specific statements cited by petitioner.

In any event, the undersigned has reviewed Parovel's statements during the interview and finds that they are consistent with his trial testimony. After describing the events leading up to the shooting, Parovel stated, "And I turned around and I just, I just started, I was in fear for my life and I just started shooting." Amended Petition, Exhibit C, p. 8. Later, in a response to a question regarding how his father died, Parovel stated, "Asbestos cancer. He died for that money so I figured I would do the same. I was going to die. It was stupid." Id., p. 20. The statement that he was going to die for the money does not undermine his statement in the interview and trial testimony that he fired the gun because he was scared for his life.

In the reply, petitioner also argues that the opinion of the California Court of Appeal is fatally flawed because it concedes that Pina's act of robbing Parovel at gun point was one of the acts that likely prompted Parovel to use deadly force. Citing the opinion at page 14, petitioner argues that the state appellate court thus incorrectly found that petitioner could be vicariously liable for Pina's murder even though the murder was provoked by Pina.

The undersigned has reviewed page 14 of the state appellate court opinion and finds that petitioner has taken the opinion out of context. The California Court of Appeal stated, "[t]he fact that Pina's taking of Parovel's weapon could have been one cause of Parovel's ultimate act of shooting Pina does not preclude the possibility that the later pistol whipping administered by Briscoe himself was yet another provocative act resulting in Parovel's shooting of Pina." Respondent's Lodged Document 12, p. 14 (emphasis in original). In this statement, the California Court of Appeal was clearly not suggesting that petitioner could be vicariously liable for Pinas's murder based on Pinas's taking of Parovel's weapon. Rather, the California Court of Appeal was stating that Pina's taking of the weapon did not preclude the possibility that petitioner's later acts prompted Parovel's shooting of Pina.

Petitioner next argues that there was insufficient evidence to support the special circumstance finding. Amended Petition, p. 32. In particular, petitioner argues that the special circumstances on which his sentence of life without parole are based do not apply in this case. The California Court of Appeal denied this claim for the following reasons:

F. Statutory Special Circumstances

1. Not Felony Murder

Briscoe also contends that two special circumstances set forth in former section 190.2 do not apply to his case. (See former § 190.2.) First, he argues that the felony-murder special circumstances codified in subdivision (a) (17) FN14 of former section 190.2 does not apply to a provocative act murder case as a matter of law. Noting that the United States and California Supreme Courts have referred to former section 190.2, subdivision (a)(17) as a "felony-murder statute" and that the felony-murder doctrine does not apply in a case of provocative act murder, Briscoe argues that felony-murder statutes such as former section 190.2, subdivisions (a)(17) and (d) FN15 cannot apply in his case. (See People v. Washington, supra, 62 Cal.2d at p. 781, 44 Cal.Rptr. 442, 402 P.2d 130 [no felony murder in provocative act murder case].)

FN14. This statute provided, in pertinent part, that the "penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found ... to be true: [¶] ... [¶] (17) The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit ...:[¶] (A) Robbery in violation of Section 211 or 212.5. [¶] ... [¶] (G) Burglary in the first or second degree in violation of Section 460." (Former § 190.2, subd. (a)(17)(A), (G), as amended by Stats.1995, ch. 478, § 2.)

FN15. At the time of the offenses committed in this matter, this provision stated in part that "every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true...." (See former § 190.2, subd. (d), as amended by Stats.1995, ch. 478, § 2.)

We disagree with Briscoe's argument. Regardless of how subdivisions (a)(17) and (d) of former section 190.2 have been characterized in cases arising in nonprovocative act murder cases, the purpose of these statutes is to impose criminal liability on a defendant who commits an enumerated felony that results in the death of another. The California Supreme Court has held that limitations placed on the felony-murder doctrine do not shield a defendant from criminal liability for murder when the elements of the crime-homicide and malicious conduct-can be established without resort to the felony-murder doctrine. When a defendant, with a conscious disregard for life, intentionally commits an act that is likely to cause death, and a victim kills in response to such act, the defendant is guilty of murder. (People v. Antick, supra, 15 Cal.3d at pp. 87-88, 123 Cal.Rptr. 475, 539 P.2d 43.) The reasoning in Antick is similar to section 190.2, subdivisions (a)(17) and (d), in that they seek to impose liability on a defendant who provoked a lethal response.

The language of the challenged statutes do not support this claim of error, either. Subdivision (a)(17) of former section 190.2 did not limit the special circumstances it described to homicides found to have been committed based on the theory of felony murder. It required only that the murder be committed while the defendant was committing a specified felony. (People v. Kainzrants, supra, 45 Cal.App.4th at p. 1081, 53 Cal.Rptr.2d 207; see fn. 14, ante.) The fact that the defendant is convicted of murder under the application of the provocative act murder doctrine rather than pursuant to the felony-murder doctrine is irrelevant to the question of whether the murder qualified as a special-circumstances murder under former section 190.2, subdivision (a)(17). ( Id. at p. 1081, 53 Cal.Rptr.2d 207 [death of accomplice].) The statute requires only that the murder be committed while the defendant was engaged in the commission of an enumerated felony. ( Ibid.) Similarly, the language of subdivision (d) of former section 190.2 was not limited to felony-murder cases. (See fn. 15, ante.) It required an act committed in reckless indifference to life during the commission of a felony. (See former § 190.2, subd. (d).)

2. Cooperative Relationship

Briscoe also asserts that former section 190.2, subdivision (d) does not apply because there was no cooperative relationship between the defendant and the actual killer. Former section 190.2, subdivision (d) punishes a major participant who acts with reckless disregard for life and who inter alia aids, abets, or assists in the commission of a statutorily enumerated felony when that felony results in death. (See fn. 15, ante.) A plain reading of the language of the statute shows that the cooperative relationship required by subdivision (d) must occur in the commission of the felony, not in the killing. As Briscoe assisted in the commission of the robbery and the burglary, former section 190.2, subdivision (d) applies to this case.

3. Causation

Briscoe also contends that subdivision (d) of former section 190.2 does not apply because that provision requires the killing to result from the felony and the provocative act murder doctrine requires the killing to result from an act beyond the underlying felony. This claim of error ignores the fact that there can be more than one proximate cause of a killing. (See People v. Caldwell, supra, 36 Cal.3d at pp. 219-220, 203 Cal.Rptr. 433, 681 P.2d 274; Shamis, supra, 58 Cal.App.4th at p. 846, 68 Cal.Rptr.2d 388.) The jury was instructed that there could be more than one cause of death and that it could not find the special circumstances allegation to be true unless it found that Briscoe's commission of a felony with reckless indifference to life resulted in Pina's death. (See CALJIC Nos. 3.41, 8.80.1 (1997 rev.).) On these facts, the jury could have concluded that Parovel shot Pina as a response to both the robbery and burglary and the provocative acts that Briscoe committed.

4. Taking of Innocent Life

Finally, Briscoe argues that subdivisions (a)(17) and (d) of former section 190.2 do not apply in his case because Pina's death did not result in the taking of an innocent life. He reasons that because the United States Supreme Court referred to innocent life twice in its Tison decision, that the murder victim's innocence is a required element for the constitutional application of felony-murder statutes. (See Tison v. Arizona (1987) 481 U.S. 137, 152, 154, 107 S.Ct. 1676, 95 L.Ed.2d 127.) We disagree with this reasoning. The high court did not use this term when it set out the issue in Tison, nor in its holding. Answering the question whether the Eighth Amendment prohibited the imposition of the death penalty on a major participant in a crime whose mental state was one of reckless indifference to the value of human life, the court held that these two elements established culpability sufficient to constitute a capital crime. (See id. at pp. 152, 158, 107 S.Ct. 1676.) We are satisfied that the United States Supreme Court's use of the term innocent life elsewhere in its decision was incidental and does not limit its holding. Thus, Briscoe's claim of error is meritless.

Respondent's Lodged Document 12, pp. 26-29.

Because the California Court of Appeal applied the relevant constitutional standards, the undersigned must defer to this ruling unless it is objectively unreasonable.

Respondent argues, and the undersigned agrees, that petitioner's claim alleging insufficient evidence of the special circumstance is really a claim arguing that the California Court of Appeal misinterpreted state law. Generally, issues of state law are not cognizable on federal habeas. Estelle v. McGuire, 502 U.S. 62, 67, (1991) ("We have stated many times that 'federal habeas corpus relief does not lie for errors of state law.' "), quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990).

Moreover, the California Court of Appeal ruled that the special circumstance allegation used in this case was entirely correct under state law. Federal courts are bound by state court rulings on questions of state law. Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir. 1989). State courts are "the ultimate expositors of state law," and this court is "bound by the state's construction except when it appears that its interpretation is an obvious subterfuge to evade the consideration of a federal issue." Peltier v. Wright, 15 F.3d 860, 862 (1994), quoting Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881 (1975) (construing state court judgment). There is no evidence of subterfuge here.

A "claim of error based upon a right not specifically guaranteed by the Constitution may nonetheless form a ground for federal habeas corpus relief where its impact so infects the entire trial that the resulting conviction violates the defendant's right to due process." Hines v. Enomoto, 658 F.2d 667, 673 (9th Cir.1981), citing Quigg v. Crist, 616 F.2d 1107 (9th Cir. 1980). In order to raise such a claim in a federal habeas corpus petition, the "error alleged must have resulted in a complete miscarriage of justice." Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468 (1962). The undesigned finds no such error here.

Petitioner also argues that pursuant to Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676 (1987), interpreting Cal. Penal Code § 190.2(a)(17) to permit death eligibility for a felon for the killing of his cofelon by a third party is unconstitutional. On appeal, petitioner argued that the death penalty may only be imposed where there is a loss of innocent life because the Supreme Court used that term twice in Tison. The undersigned finds that the denial of this claim by the California Court of Appeal was not an unreasonable application of clearly established Supreme Court authority. In any event, as noted by respondent, Tison does not apply because the district attorney did not seek the death penalty in petitioner's case.

The denial of these claims by the California Court of Appeal was not an unreasonable application of clearly established Supreme Court authority. Accordingly, these claims should be denied.

B. Claim 2: Jury Instruction Error

Legal Standard A challenge to jury instructions does not generally state a federal constitutional claim. See Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983); see also Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985). Habeas corpus is unavailable for alleged error in the interpretation or application of state law. Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475 (1981); see also Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987); Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir. 1986). The standard of review for a federal habeas court "is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States (citations omitted)." Estelle v. McGuire, 502 U.S. at 68, 112 S.Ct. at 480. In order for error in the state trial proceedings to reach the level of a due process violation, the error had to be one involving "fundamental fairness." Id. at 73, 112 S.Ct. at 482. The Supreme Court has defined the category of infractions that violate fundamental fairness very narrowly. Id. at 73, 112 S.Ct. at 482.

Where the issue is the failure to give an instruction, petitioner's burden is "especially heavy" because it has been held that "[a]n omission or an incomplete instruction is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155, 97 S.Ct. 1730, 1737 (1977). Moreover, a trial judge need not instruct on a defense which would be inconsistent with petitioner's theory of the case. Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir. 1984). Failure to give a jury instruction under these circumstances will not amount to a due process violation. Id.

Furthermore, the Supreme Court has recently held that there is no unreasonable application of federal law where a state appellate court decided that a jury instruction's single incorrect statement of the "imperfect self-defense" standard did not render the instruction reasonably likely to have misled the jury. Middleton v. McNeil, 541 U.S. 433, 124 S.Ct. 1830 (2004).

Supplemental Instruction

Petitioner first argues that the trial court did not properly respond to the jury's inquiry regarding whether robbery at gunpoint is a provocative act. Amended Petition, p. 35. The California Court of Appeal denied this claim for the following reasons:

C. Robbery at Gunpoint as Provocative Act

Next, Briscoe contends that the trial court erred by failing to properly respond to the jury's inquiry about whether robbery at gunpoint is-in and of itself-a provocative act. He argues that the answer is clearly "no," but that the trial court failed to instruct the jury so. As such, Briscoe reasons that the trial court abdicated its statutory duty to advise the deliberating jury on a point of law, violating his state and federal constitutional rights to due process and a fair trial when it refused to instruct the jury that robbery at gunpoint in and of itself did not constitute a provocative act. (See § 1138; see also U.S. Const., 6th Amend.)

During deliberations, the jury sought clarification from the trial court about whether a robbery at gunpoint constituted a provocative act in and of itself. The prosecutor argued that the jury should be told that robbery at gunpoint did constitute a provocative act in and of itself. Defense counsel argued that the jury's question was one of law to be answered in the negative, because the provocative act must be an act beyond the robbery itself. The trial court viewed the jury's inquiry as a factual question turning on the circumstances of each case. It noted that the underlying offense was robbery, not robbery at gunpoint. The trial court reasoned that if robbery could be committed without a gun, then the use of a gun might constitute the provocative act beyond that required to commit the underlying robbery in an appropriate case. Ultimately, the trial court told the jury that this was a factual determination for it to make and suggested that it review CALJIC No. 8.12 defining a provocative act.FN8 In his motion for new trial, Briscoe argued that the trial court's response to this jury question was erroneous and that its reference to CALJIC No. 8.12 FN9 exacerbated the error. The motion for new trial was denied.

FN8. The jury was instructed that in order to prove the killing was the result of Briscoe's provocative act, "each of the following elements must be proved: [¶] One, the crime of robbery and/or burglary or attempted robbery and/or burglary was committed; [¶] Two, during the commission of the crime, the defendant also committed an intentional provocative act; [¶] Three, the victim of the robbery and/or burglary in response to the provocative act killed a perpetrator of such crime; [and][¶] Four, the defendant's commission of the intentional provocative act was a cause of the death of Shaun Pina." (See CALJIC No. 8.12.)

FN9. We note that Briscoe originally requested that this jury instruction be given.

When the jury asks to be informed on any point of law arising out of the case, the trial court has a duty to help the jurors understand the legal principles that it is being asked to apply. (People v. Beardslee (1991) 53 Cal.3d 68, 97, 279 Cal.Rptr. 276, 806 P.2d 1311, cert. den. 502 U.S. 972, 112 S.Ct. 449, 116 L.Ed.2d 467; see § 1138.) The satisfaction of this obligation does not always require the trial court to elaborate on standard jury instructions already given. When the instructions were full and complete, the trial court has the discretion to determine what additional explanations are sufficient to satisfy the jury's request for information. Comments that diverge from the standard jury instruction are often risky to undertake. (People v. Beardslee, supra, 53 Cal.3d at p. 97, 279 Cal.Rptr. 276, 806 P.2d 1311.) In this case, we must determine whether the trial court abused its discretion by reiterating the standard jury instructions as it did. (See, e.g., People v. Noguera (1992) 4 Cal.4th 599, 643, 15 Cal.Rptr.2d 400, 842 P.2d 1160, cert. den. 512 U.S. 1253, 114 S.Ct. 2780, 129 L.Ed.2d 892.)

Briscoe argues that the trial court's response was inadequate because it did not treat the jury's inquiry as a simple question of law clearly warranting a negative response. We disagree first with his interpretation that the inquiry was a question of law. (See § 1138 [trial court must assist jury on point of law].) The crime of robbery is a felonious taking of personal property accomplished by means of force or fear. (See § 211.) This offense can be committed without necessarily using a gun. (See People v. White, supra, 35 Cal.App.4th at p. 766, 41 Cal.Rptr.2d 510 [robbery may consist of only oral or visual demands accompanied by a threat of force].) For example, a robber may use a different type of weapon or convey a sense of bodily intimidation in order to create a sense of fear or force. If anything, this analysis suggests-contrary to Briscoe's position--that the trial court could have responded to the jury's inquiry by telling the jurors that robbery at gunpoint is in and of itself a provocative act.

However, we think that the issue posed was properly characterized as a question of fact and that the trial court was prudent to respond to the jury's inquiry as it did. In the real world, robbery at gunpoint may or may not be a provocative act, depending on the degree to which the perpetrator uses the gun. One who robs another while doing no more than holding a weapon may not have committed a provocative act, while a perpetrator who brandishes a deadly weapon, puts it to the head of a robbery victim, cocks the gun or pistol-whips the victim with it may have. Thus, the inquiry was one that turned, at least in part, on the particular facts of the case. In this case, the trial court declined to decide the factual issue before the jury, advising it instead of its obligation to perform this task and reminding it of the guidance already set forth in CALJIC No. 8.12 defining a provocative act as an act beyond that necessarily involved in a robbery. We are satisfied that the trial court did not abuse its discretion in responding as it did. (See People v. Noguera, supra, 4 Cal.4th at p. 643, 15 Cal.Rptr.2d 400, 842 P.2d 1160.) Thus, the trial court acted within the authority granted to it by section 1138.FN10 FN10. In light of this conclusion, we need not address Briscoe's additional claim that the trial court violated his rights to due process and a fair trial by violating section 1138.

Respondent's Lodged Document 12, pp. 16-19.

While the California Court of Appeal did not recite the Supreme Court cases pertinent to this claim, it applied the elements of the constitutional standard when it analyzed the claim. As in Early v. Packer, supra, the state court analyzed the claim using state-law principles analogous to the constitutional standards. Accordingly, the undersigned must defer to that ruling unless it is objectively unreasonable.

Under federal law, supplemental jury instructions and responses to jury inquiries do not rise to the level of a constitutional violation unless those erroneous instructions "so infect [ ] the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475 (1991); Beardslee v. Woodford, 358 F.3d 560, 573-74 (9th Cir.2004). Although a trial judge is obligated to clear up any confusion the jury may have, the judge has broad discretion in determining how to do so. Arizona v. Johnson, 351 F.3d 988, 994 (9th Cir.2003). The judge must be cautious in balancing his interest in providing a clear response with his responsibility to avoid influencing the jury. Id.

The California Court of Appeal correctly found that the question posed by the jury raised an issue of fact. Whether robbery at gunpoint is a provocative act depends on the how the perpetrator uses the gun, i.e., the circumstances of the gun wielding. For that reason, the trial court's response to the jury's inquiry that this was a factual determination for it to make and suggested that it review CALJIC No. 8.12 defining a provocative act was appropriate. This response did not violate fundamental fairness. The denial of this claim by the California Court of Appeal was not an unreasonable application of clearly established Supreme Court authority. Accordingly, this claim should be denied.

Failure to Instruct Re: Use of Lethal Force

Petitioner argues that the trial court failed to properly instruct the jury concerning the requirement that the use of lethal force must be a reasonable response to the provocative conduct of the accused under the provocative act murder doctrine. Amended Petition, p. 36. The California Court of Appeal denied this claim for the following reasons:

Next, Briscoe argues that CALJIC No. 8.12 FN13--given by the trial court-- neglected to inform the jury that for the provocative act murder doctrine to apply, Parovel's killing of Pina had to be a reasonable response to Briscoe's provocative act. He contends that in cases other than those involving hostages and human shields, the provocative act murder doctrine requires that the responsive act resulting in death be a subjectively reasonable response to the provocative act. He also urges us to conclude that the trial court had a sua sponte duty to so instruct the jury. At trial, Briscoe himself requested that this standard jury instruction be given, arguing that this be read to the jury instead of CALJIC No. 8.21 on felony murder. The People sought both instructions. The trial court reviewed both instructions and concluded that only CALJIC No. 8.12 on provocative act murder should be given. Briscoe did not seek to modify the standard jury instruction in the trial court. The jury was instructed that the killing had to be in response to Briscoe's provocative act, but not that Parovel's response had to be reasonable. FN13. The jury was instructed that a "homicide committed during the commission of a crime by a person who is not a perpetrator of such crime, in response to an intentional provocative act by a perpetrator of the crime other than the deceased [perpetrator], is considered in law to be an unlawful killing by the surviving perpetrator[s] of the crime." (CALJIC No. 8.12, italics added.)

In essence, Briscoe argues that the trial court had a sua sponte duty to modify the standard jury instruction, which did not include the "reasonable response" language he now seeks. One of the seminal cases on the doctrine of provocative act murder included language suggesting that the victim's response to the defendant's conduct must be reasonable. (See People v. Gilbert, supra, 63 Cal.2d at p. 704, 47 Cal.Rptr. 909, 408 P.2d 365.) However, the California Supreme Court has since returned the focus to the objective facts surrounding the defendant's provocative act rather than centering the doctrine's applicability on the question of whether the victim's response to that act was subjectively reasonable. (See, e.g., Pizano v. Superior Court, supra, 21 Cal.3d at p. 136, 145 Cal.Rptr. 524, 577 P.2d 659; People v. Gardner, supra, 37 Cal.App.4th at pp. 478-479, 43 Cal.Rptr.2d 603.) Now, courts use the term "reasonable response" as a shorthand expression of the principle that the killing must-on an objective view of the facts-be proximately caused by the defendant's acts. (See People v. Gardner, supra, 37 Cal.App.4th at pp. 478-479, 43 Cal.Rptr.2d 603; see also Pizano v. Superior Court, supra, 21 Cal.3d at pp. 137-139, 145 Cal.Rptr. 524, 577 P.2d 659.) This objective approach allows the jury to find culpability-and to imply malice-based on the defendant's conduct, not on the crime victim's state of mind. (See Pizano v. Superior Court, supra, 21 Cal.3d at p. 137, 145 Cal.Rptr. 524, 577 P.2d 659.)

CALJIC No. 8.12 is the standard jury instruction on vicarious liability for a killing resulting from the acts of another. (See People v. Gardner, supra, 37 Cal.App.4th at pp. 480-481, 43 Cal.Rptr.2d 603.) At one time, this standard instruction included the "reasonable response" language that Briscoe contends that the trial court should have added back in. (See id. at p. 480, 43 Cal.Rptr.2d 603.) Since that time, the word "reasonable" has been deleted from CALJIC No. 8.12. (See id. at p. 481, 43 Cal.Rptr.2d 603 [urging this change].) The language of the ...


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