The opinion of the court was delivered by: George H. WU United States District Judge
ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all of the records and files herein, the Magistrate Judge's Report and Recommendation, and Petitioner's Objections. After having made a de novo determination of the portions of the Report and Recommendation to which Objections were directed, the Court concurs with and adopts the findings, conclusions and recommendations of the Magistrate Judge. However, the Court addresses Petitioner's Objections below.
In his Objections to the Report, Petitioner argues that the Magistrate Judge applied the wrong legal standard by focusing on Petitioner's conduct instead of the victim's to assess the "sufficiency of the evidence supportive of the objective component of voluntary manslaughter (provocation)." (Objections at 2; see also id. at 8-9). As noted by Petitioner, "the objective component of voluntary manslaughter (provocation) depends exclusively on the victim's behavior." (Id. at 2); see also People v. Manriquez, 37 Cal. 4th 547, 583, 36 Cal. Rptr. 3d 340 (2005) ("The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim.").
The Magistrate Judge clearly relied on the victim's behavior to conclude that the jury could have reasonably found that "the provocation, such as it was, was insufficient to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (Report and Recommendation ("R&R") at 17) (internal quotation marks omitted). As set forth in the Report, (see id. at 16-17), the victim suggested that Petitioner go to Texas alone, (see 1 RT 198-99), the victim offered to return the rings and necklace Petitioner had given her, (see 1 RT 201-02), and the victim removed her rings and necklace. (See 1 RT 201). Based on this conduct by the victim, the jury could have reasonably concluded that the evidence of provocation was insufficient. See, e.g., People v. Marshall, 13 Cal. 4th 799, 848, 55 Cal. Rptr. 2d 347 (1996) ("[The witness's] testimony, that at some point before the crimes defendant was concerned [the victim] was planning to leave him, fails to demonstrate defendant was under the heat of passion at the time of the offense. . . . We are directed to no authority that the existence of marital problems, without more, warrants a heat of passion instruction.").
Petitioner further argues that the Magistrate Judge improperly relied on transferred intent and Petitioner's conduct after shooting the victim to find sufficient evidence of malice. (See Objections at 3, 9-11). However, the Magistrate Judge clearly relied on the fact that Petitioner pointed the gun at the victim and fired to find sufficient evidence of malice. (See R&R at 17) ("This, alone, constitutes sufficient evidence of malice to sustain the verdict, especially given the deference required on habeas review."); (see also 1 RT 213-15). Indeed, "[t]he act of firing toward a victim at a close, but not point blank range in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill." People v. Chinchilla, 52 Cal. App. 4th 683, 690, 60 Cal. Rptr. 2d 761 (1997) (internal quotation marks omitted).
Next, Petitioner argues that the Magistrate Judge applied the wrong legal standard to determine the likelihood of great bodily injury required under California's child endangerment statute. (See Objections at 3-4, 11-14). As noted in the Report, (see R&R at 19), however, this Court is bound by the court of appeal's interpretation of the statute as requiring proof of less than fifty percent that great bodily injury would occur. In California, child endangerment is a felony if the acts or omissions constituting the endangerment involve "circumstances or conditions likely to produce great bodily harm or death" to the child. Penal Code § 273a(a); see also People v. Burton, 143 Cal. App. 4th 447, 454 n.4, 49 Cal. Rptr. 3d 334 (2006). In reviewing Petitioner's appeal, the court of appeal examined the quoted statutory language and held that it did not require proof that the chances of great bodily harm were greater than fifty percent. (Lodgment 9 at 12-15). Regardless, the Report sets forth ample evidence from which the jury could have reasonably found that Petitioner's actions were likely to result in great bodily injury, even under Petitioner's "more probable than not" standard (proof greater than fifty percent). (See R&R at 20).
Moreover, the trial court never quantified for the jury the likelihood of great bodily injury required to find Petitioner guilty of felony child endangerment. Rather, the trial court instructed the jury pursuant to CALJIC No. 9.37 that the crime of felony child endangerment required proof that Petitioner's "conduct occurred under circumstances likely to produce great bodily harm or death." (CT 140). The trial court did not further define the term "likely," except as provided in CALJIC No. 9.37:
If a child is placed in a situation likely to produce great bodily harm or death, it is not necessary that actual bodily injury occur in order to constitute the offense. However, if great bodily injury does occur, its nature and extent are to be considered in connection with all the evidence in determining whether the circumstances were likely to produce great bodily harm or death.
In the absence of a definition from the trial court, the jury would have understood the term "likely" consistent with its ordinary usage to mean "probable" or "more probable than not." People v. Savedra, 15 Cal. App. 4th 738, 744, 19 Cal. Rptr. 2d 115 (1993) ("[I]n ordinary usage and in many legal contexts 'likely' means 'probable' or . . . 'more probable than not.'"). Thus, if the jurors followed the instructions and applied ordinary usage to the term "likely", the jurors found that the likelihood of great bodily injury was greater than fifty percent. See Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed. 2d 727 (2000) ("A jury is presumed to follow its instructions."). Accordingly, any error in the standard of proof to determine the likelihood of great bodily injury was harmless under the Brecht standard. See People v. Chaffin, 173 Cal. App. 4th 1348, 1353, 93 Cal. Rptr. 3d 531 (2009) ("[T]he failure to give an instruction on the legal definition of 'likely' could not have been prejudicial to defendant since the factual question posed by the omitted definition was resolved adversely to defendant under the other, properly given, instruction."); see also Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed. 2d 353 (1993). Accordingly, the Objections do not cause this Court to reject or modify the findings in the Report and Recommendation.
1. The Petition is DENIED and Judgment shall be entered dismissing this action with prejudice; and
2. The Clerk shall serve copies of this Order and the Judgment herein by United States mail on counsel for ...