FINDINGS AND RECOMMENDATIONS
Petitioner Bright, a state prisoner, proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner stands convicted of offenses including felon in possession of a firearm, Sacramento County Superior Court, case number 06F11307, for which he is serving a five year prison sentence.
The following factual summary was taken from the unpublished opinion of the California Court of Appeal, Third District, on direct review of petitioner's conviction. These factual findings have not been rebutted with clear and convincing evidence and are therefore presumed correct. 28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004).
In December 2006, Folsom Police Officer Hector Alvarez observed a vehicle swerve into a ditch and then come back onto the road, making a series of erratic corrections or fishtails. There were no other vehicles on the road. Alvarez began to pursue the vehicle, a Ford Explorer, and followed it as it made a U-turn before turning into an apartment complex. The Explorer pulled into what Alvarez assumed was its assigned parking stall at the apartment complex. Alvarez activated the lights of his patrol car and pulled in behind the vehicle. The driver, later identified as defendant Jerry Bright, the sole occupant, started to get out of the Explorer. Alvarez ordered him to get back inside. Apparently understanding Alvarez's commands, defendant complied.
Alvarez approached the Explorer on the driver's side while his partner, Officer Steven Bailey, approached on the passenger side. The driver's side window was down. Alvarez noticed a smell of alcohol and that defendant's eyes were bloodshot. As Alvarez began talking with defendant, Bailey shined his flashlight into the passenger side of the Explorer and saw a handgun within arms reach of defendant on the front passenger seat. The gun, a .40-caliber Beretta, was in plain view, with the barrel of the gun pointed downward and the handle of the gun leaning next to, or in contact with, the back of the passenger seat nearest to the driver's seat. Bailey signaled to Alvarez that there was a gun in the vehicle. Defendant was arrested and placed in the officer's patrol car. Bailey recovered the gun, which had a magazine clip loaded with 10 bullets.
While defendant was being arrested, the officers noticed, in addition to defendant's bloodshot eyes and the strong smell of alcohol, that defendant's speech was slurred, although intelligible, and his gait was unsteady. His pants were unzipped and the crotch was wet, apparently from urine. Defendant did appear to understand what was happening and what was being asked of him. He complied fairly readily with the officer's commands, although his demeanor and language were increasingly defiant and aggressive. When Folsom Police Sergeant Andrea Chapman arrived at the scene, defendant called her by rank and complained of his treatment by Alvarez and Bailey.
The officers determined the Explorer was registered to Akisha Byrd, who lived at the apartment complex in an apartment right in front of where the Explorer was parked. Alvarez spoke with Byrd who confirmed her ownership of the Explorer. Bryd had given defendant, her boyfriend, permission to take the Explorer at about 8:00 p.m. the previous night. Byrd testified there was no gun in the Explorer when defendant borrowed it. Byrd testified she does not own a firearm and had never before seen the Beretta seized from her Explorer. She has never seen defendant with a gun in the 10 years she has known him.
Bryd testified that while she allows defendant to use her Explorer, she does not allow his friends to be in the Explorer. She knows defendant disregards her wishes, in part, because she has found items in the Explorer that do not belong to either her or defendant. Bryd testified defendant has a drinking problem and that he had been drinking heavily over the past year. He often does not recall later what happened when he was drinking.
No fingerprints were found on the Beretta, the magazine clip or the bullets. The fingerprint identification technician testified it is difficult to obtain fingerprints from the handle of a gun. Defendant's blood sample taken after his arrest showed he had a blood-alcohol level of 0.21 percent.
It was stipulated defendant was convicted of a felony in 1999 in Sacramento County.
Defendant testified on his own behalf and admitted being drunk and driving that night. He testified he drank two 40-ounce beers and multiple mixed drinks in the approximately four hours prior to his arrest. Defendant claimed he was asked by a friend to drive a friend of that friend back to Orangevale from the club in South Sacramento where they had been drinking. Defendant drove this person, whose name he could not remember, to a location in Orangevale which he could not remember. Defendant could not provide any description of the person to whom he gave a ride except that he was African-American.
Defendant denied the Beretta was his and testified he never touched the gun. He testified he did not know the gun was in the Explorer. Defendant said he did not notice it. He wasn't paying attention. He did not remember it. He did not know anything about the gun. He did not know it was there. He did not know if the friend of his friend that he gave a ride to left the gun, but it was possible. He admitted he did not tell the police officers that there had been someone else in the car. He did not recall interacting with the police because he was drunk. He remembered being in a holding tank somewhere. Defendant never tried to find the person he gave a ride to that evening.
People v. Bright, No. C057440, slip op. at 2-6 (Cal. App. 3rd Dist. 2009).
A jury convicted petitioner of being a felon in possession of a firearm, misdemeanor driving under the influence (DUI), and misdemeanor driving with an elevated blood-alcohol level over 0.15. In a bifurcated court trial, the court found he had two prior DUI convictions, one prior serious felony juvenile adjudication for attempted second degree murder with personal use of a firearm and personal infliction of great bodily injury, and that he had served a prior prison term or possession of a controlled substance. The trial court ruled petitioner's prior juvenile adjudication could be used as a "strike" for purposes of California's habitual criminals, or "three strikes" law. See Cal. Penal Code §§ 667(b)-(i), 1170.12, 1192.7(c).
For the misdemeanor convictions, petitioner was sentenced to time served. For the firearm offense, he received an aggregate term of five years in state prison, consisting of a two-year middle term, doubled pursuant to the three strikes law, plus one additional year for the prior prison term enhancement.
On direct review, the California Court of Appeal, Third District, affirmed the judgment and sentence. A petition for review to the California Supreme Court was denied. The parties agree that petitioner has exhausted state remedies with respect to the claims presented.
Each of petitioner's six grounds for relief will be separately set forth and discussed herein. Petitioner claims:
(A) his due process rights were violated when the trial court failed to instruct the jury on the defenses of mistake of fact and accident;
(B) the trial court erred in its instruction on the illegal firearm possession charge; in the alternative, trial counsel rendered ineffective assistance;
(C) the prosecutor committed misconduct during closing argument; (D) the trial court improperly gave an additional instruction aimed to help the jury break an impasse in deliberations;
(E) the trial court erred in its instruction on the reasonable doubt standard; (F) use of a prior juvenile adjudication for enhancement purposes at sentencing deprived him of his right to jury trial.
IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States.
28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).
A. Instructions on Mistake of Fact and Accident
Petitioner contends the trial court violated his due process rights by failing to instruct the jury, sua sponte, on mistake of fact*fn1 and accident*fn2 as affirmative defenses to the charge of illegal possession of a firearm.
On direct appeal, in the last reasoned state court decision applicable to this claim, the California Court of Appeal rejected the claim of error. The court of appeal noted "[a] trial court must instruct sua sponte on the general principles of law that are closely and openly associated with, and necessary to, the jury's understanding of the case." People v. Bright, supra, slip op. at 6. The state court explained that, under California law, a mistake of fact "refers to a defendant's erroneous belief in some fact or circumstance that disproves criminal intent," but that in this case, there was no evidence that petitioner held any such erroneous belief:
For example, defendant did not testify that he mistakenly believed the item on the passenger seat next to him was a wallet, a cell phone or a squirt gun. Instead, defendant's sole claim was that he did not know there was anything next to him. Essentially, he claimed he was unaware of its presence. He did not notice the gun; he did not see the gun or pay attention to what was on the seat next to him; he knew nothing about the gun. Defendant's evidence was sole[l]y a denial of the knowledge element of possession of a firearm by a felon in violation of section 12021, subdivision (a). (People v. Snyder (1982) 32 Cal.3d 590, 592.) Defendant's defense was not that he had made a mistake of fact.
People v. Bright, supra, slip. op. at 7-8.
If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for ______ insert crime[s], you must find (him/her) not guilty of (that crime/those crimes).
The state court likewise noted that under California law, the defense of accident negates criminal liability when a person commits a prohibited act "through misfortune or by accident, when it appears that there was no evil design, intention or culpable negligence." People v. Bright, supra, slip. op. at 8 (quoting Cal. Penal Code § 26). But again, that was not petitioner's defense:
Here defendant did not claim he committed the prohibited act through misfortune or accident. Instead, defendant testified that he never knowingly possessed the firearm, i.e., that he did not commit the prohibited act. Defendant denied seeing the gun next to him and never claimed.... that his temporary knowing control or right to control the gun was the result of misfortune or accident. He denied all knowledge of the gun. Defendant's defense was not "misfortune or accident."
People v. Bright, supra, slip. op. at 9 (citations omitted).
Under California law, "[t]he duty to instruct sua sponte arises only when the facts of the case support the particular instruction." People v. Bright, supra, slip. op. at 6 (citing People v. Montoya, 7 Cal.4th 1027, 1047 (1994)). Thus, the state court of appeal held, [t]he trial court had no duty to instruct here on mistake of fact or accident because no evidence supported such defenses." People v. Bright, supra, slip op. at 6-7.
The state court's decision in this regard was not contrary to, or an unreasonable application of clearly established federal law, as determined by the Supreme Court.
Applying federal common law and the federal rules of criminal procedure, the United States Supreme Court has held, "[a]s a general proposition, a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." Mathews v. United States, 485 U.S. 58, 63 (1998). No federal precedent requires, however, that a state trial court instruct, sua sponte, on affirmative defenses in a criminal trial where unsupported by the evidence.
The gravamen of this claim concerns the interpretation and application of state evidentiary law. See generally Gilmore v. Taylor, 508 U.S. 333, 343-44 (1993)(rejecting claim that an instruction that arguably prevented the jury from considering an affirmative defense violated due process, as such a conclusion "would make a nullity the rule reaffirmed in Estelle v. McGuire..."), see also, e.g., Tirado v. Warden, 576 F.Supp.2d 1104, 1111 (C.D. Cal. 2008) (no federal issue in claim that trial court erred in refusing to instruct jury on the affirmative defense of reasonable belief of consent to the offense of rape). Errors in the application of state law are not cognizable in a federal habeas corpus proceeding. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). The Supreme Court has repeatedly admonished federal courts reviewing habeas corpus petitions that they are bound by a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction. E.g., Bradshaw v. Richey, 546 U.S. 74 (2005).
Petitioner's claim of instructional error does not raise a cognizable federal claim unless the error, considered in context of all the instructions and the trial record as a whole, "so infected the entire trial that the resulting conviction violates due process." Estelle, 502 U.S. at 71-72; see also Henderson v. Kibbe, 431 U.S. 145, 152-55, n.10 (1977); Cupp v. Nauhten, 414 U.S. 141, 146-47 (1973). In addition, on federal habeas corpus review, no relief can be granted without a showing that the instructional error had a "substantial and injurious effect or influence in determining the jury's verdict." Calderon v. Coleman, 525 U.S. 141, 147 (1998) (citing Brecht, 507 U.S. at 637). An omitted instruction is less likely to be prejudicial than a misstatement of the law. Kibbe, 431 U.S. at 155. In addition, reversal will rarely be justified for failure to give an instruction when no objection was made in the trial court, as the case is here. See Id. at 154.
Even assuming for purposes of this opinion that petitioner's claim is cognizablei.e., that a criminal defendant in state court has a due process right to have the jury instructed on affirmative defenses- it is still clear that relief is not warranted. The alleged omission of instructions on the affirmative defense instructions on mistake of fact and accident did not implicate the fairness of petitioner's trial, and did not have substantial and injurious effect or influence in determining the jury's verdict.
Petitioner's jury was instructed that, in order to find him guilty of unlawfully possessing a firearm, the prosecution must prove, among other elements, that he knew he possessed a firearm. (Clerk's Transcript (hereinafter "CT") at 102; Reporter's Transcript (hereinafter "RT") at 309.) The trial court further instructed the jury that his unlawful act had to be accompanied by wrongful intent (CT at 95; RT at 306), and that evidence of voluntary intoxication could be considered as to the issue whether he had knowledge that he possessed a firearm (CT at 104-55; RT at 310-11).
The instructions given adequately embodied the defense's theory of the case: that petitioner was unaware of the presence of the gun. When a trial court's instructions adequately encompass the defense theory of the case, the failure to give specific instructions on that theory does not violate due process. See Duckett v. Godinez, 67 F.3d 734, 745-46 (9th Cir. 1995) (no constitutional error found on habeas corpus review in state court's failure to give alibi instruction); United States v. Mason, 902 F.2d 1434, 1438 (9th Cir. 1990) ("it is not reversible error to reject a defendant's proposed instruction on his theory of the case if other instructions, in their entirety, adequately cover that defense theory"). Due process does not require instruction on a defense theory when the evidence does not support such a theory as defined by state law. See Menendez v. Terhune, 422 F.3d 1012, 1029 (9th Cir. 2005) (because petitioners failed to demonstrate that they believed they were in imminent peril, their due process rights were not violated by trial court's refusal to ...