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Elkins v. Foulkes

United States District Court, C.D. California

June 12, 2014

David Elkins, Petitioner,
Fred Foulkes (Warden), Respondent



PROCEEDINGS (IN CHAMBERS): ORDER (1) Overruling the Petitioner's Objections; (2) Adopting the R&R in Part; (3) Declining to Adopt the R&R in Part; (4) Denying Habeas Petition for Lack of Merit; (5) Denying a Certificate of Appealability

This is a state prisoner's action for habeas corpus relief pursuant to 28 U.S.C. § 2254. The Honorable Davit T. Bristow, United States Magistrate Judge, has issued a Report and Recommendation ("R&R") recommending the denial of the habeas petition for lack of merit and denial of a certificate of appealability ("COA"). As recommended by the R&R, the Court will deny all three claims in the habeas petition for lack of merit. The Court will decline to adopt several portions of the R&R, either because the Court does not agree with all of its rationale (such as reliance on Ninth Circuit precedent) or because the Report addresses an issue which does not need to be decided in the posture of this case.[1] The Court will then decline to issue a COA. Finally, the Court will enter judgment in favor of the respondent and against the petitioner by separate document.


In 2008 a state-court jury convicted petitioner of second-degree murder and found that he had personally used a knife during the murder. The trial court found that petitioner had a prior strike conviction and sentenced him to a term of 31 years to life in state prison. On direct appeal, petitioner raised claims corresponding to grounds one and two herein, contending that the trial court erred by failing to instruct the jury about the lesser included offense of involuntary manslaughter, and that his trial counsel rendered constitutionally ineffective assistance by failing to request such an instruction. Defendant admitted that he slashed the throat of one Fisher, who died from that injury, and defendant did not claim that he acted in defense of himself or others. The California Court of Appeal affirmed, recounting the evidence in part as follows:

One afternoon, defendant, a female acquaintance, and another person went for a ride in a car driven by the victim John Fisher. At one point, the group stopped and smoked methamphetamine. Later, while seated in the car behind Fisher, defendant reached forward and slashed Fisher's throat, killing him.
Defendant testified in his own defense. He gave the following account of the events leading to Fisher's death.
He met Fisher two months before the killing and learned Fisher was an "enforcer" for a gang. Fisher told defendant his work as an enforcer involved killing people. Defendant also claimed that, for six weeks before the killing, he used drugs, including "smoking meth[amphetamine] every day...." His drug use caused him to hallucinate, hear voices, cry constantly, and lose sleep.
On the day of the homicide, Fisher took the group for a ride. After they smoked methamphetamine, Fisher continued driving the group around, eventually stopping at a liquor store. Both he and defendant got out of the car. Defendant claimed Fisher then said he thought defendant and the car's other two occupants were informants and he would kill the three of them if they did anything. Later, the woman handed defendant a knife. Shortly thereafter, Fisher made a sudden turn and hit the brakes. Defendant claimed he saw flashing lights. The woman began to leave the car, but Fisher tried to grab her and demanded to know where she was going. At that point, defendant claimed, he "snapped" and slit Fisher's throat.

People v. David Elkins, 2010 WL 1918689, *1 (Cal.App. 4th Dist. May 13, 2010). As the Court of Appeal recounted, the defense called a psychiatrist, who testified based on his review of police reports, the coroner's report, photographs, and his three interviews of petitioner, see id. The defense psychiatrist testified generally that methamphetamine use can cause paranoia, hallucinations, and delusional thinking, id. He testified more that based on what petitioner had told him, petitioner engaged in a pattern of chronic meth usage in the months before killing Fisher, id. Given a hypothetical based on petitioner's version of events, the psychiatrist opined that at the time he killed Fisher, petitioner's behavior was consistent with being under the influence of meth, id.

As the Court of Appeal noted, the trial court had instructed the jury on first- and second-degree murder (CALCRIM 520, 521, and 522); voluntary manslaughter based on the heat of passion (CALCRIM 570), voluntary manslaughter based on imperfect defense of self or others (CALCRIM 571), and in voluntary manslaughter resulting from voluntary intoxication causing unconsciousness (CALCRIM 526). See Elkins, 2010 WL 1918689 at *2. The court also instructed the jury that they could consider evidence of petitioner's hallucinations in determining whether he had killed Fisher with premeditation and deliberation (CALCRIM 627). Finally, the court instructed the jury that they could consider petitioner's voluntary intoxication in determining whether he acted with the intent to kill and with premeditation and deliberation (CALCRIM 625).

On appeal, petitioner argued that there was substantial evidence that he suffered from a mental defect due to his prolonged meth use, and that the trial court therefore had a duty to sua sponte instruct the jury that it could convict him of involuntary manslaughter if it found that that mental defect prevented him from harboring express or implied malice, see Elkins, 2010 WL 1918689 at *2. Rejecting this argument, the Court of Appeal reasoned as follows:

[Petitioner] did request instructions on [petitioner]'s voluntary intoxication with respect to the degree of murder and whether it reduced Fisher's killing to involuntary manslaughter. The court further instructed the jury on the effect of [petitioner]'s purported hallucinations in considering his criminal liability for murder.
To have the jury instructed concerning the effect of a mental defect or disorder on his criminal liability, [petitioner] needed to request it and show substantial evidence supported giving the instruction. [California citation] The Attorney General contends neither requirement was met here.
Even assuming [the defense psychiatrist]'s testimony supported a conclusion [that] the [petitioner] suffered from a mental disorder or defect caused by his methamphetamine use, since the trial court did not have [a] sua sponte duty [sic] to give such an instruction, defendant's failure to request it results in a waiver of this claim on appeal. [California citation omitted]
For the reasons expressed in Saille [54 Cal.3d 1103, 820 P.2d 588, 2 Cal.Rptr.3d 364 (Cal. 1991) (unanimous)] and Ervin [22 Cal.4th 48, 990 P.2d 506, 91 Cal.Rptr.2d 623 (Cal. 2000)] , we also reject the [petitioner]'s claim that failure to instruct, sua sponte, on the effect of a drug-induced mental defect or disorder violated his federal constitutional rights.

Elkins, 2010 WL 1918689 at *4. In People v. Saille, the California Supreme Court considered a case where the trial court had instructed the jury that it could consider the defendant's voluntary intoxication in determining whether he acted with the intent to kill. See Elkins, 2010 WL 1918689 at *3. On appeal from his conviction for first-degree murder, defendant Saille argued that the trial court had erred in failing to further instruct the jury sua sponte that it could consider his intoxication in determining whether he had acted with premeditation and deliberation. See id. After noting that the California Legislature abolished the diminished-capacity defense in 1981, id. at *2, the Court of Appeal summarized Saille as follows:

The [California] Supreme Court rejected this argument. "The withdrawal of diminished capacity as a defense removes intoxication from the realm of defenses to crimes. Intoxication is now relevant only to the extent that it bears on the question of whether the defendant actually had the requisite specific mental state. Thus it is now more like pinpoint instructions..., to which a defendant is entitled upon request... when there is evidence supportive of the theory, but they are not required to be given sua sponte. "
Therefore, while a defendant "may seek a pinpoint instruction... Such a pinpoint instruction does not involve a general principle of law as that term is used in the cases that have imposed a sua sponte duty of instruction on the trial court.

Elkins, 2010 WL 1918689 at *4 (internal citations to Saille and other California cases omitted) (¶ break added). Finally, the Court of Appeal rested its rejection of petitioner's instructional-error claim on the decision in state-court decision in Ervin. There, the California Supreme Court

followed Saille in rejecting a claim that the trial court failed to sua sponte instruct regarding the effect of a mental disease, defect, or disorder on his ability to deliberate or premeditate, where a defense psychiatrist opined that the defendant's past heavy cocaine and heroin use amounted to a substance use disorder that could have impaired his ability to reason and make sound judgments, and thus he could not use the kind of judgment that he might have been able to use if he was not so heavily involved in the cocaine and heroin.
Citing Saille, the Supreme Court [in Ervin ] held "by similar reasoning, sua sponte instructions on the actual effect of the defendant's mental disease or disorder on his relevant mental state became unnecessary with the abolition of the mental disease/diminished[-]capacity doctrine."

Elkins, 2010 WL 1918689 at *3 (state-law citations, internal quotation marks, and ellipses omitted).

After the California Supreme Court summarily denied petitioner's petition for review, petitioner filed original habeas petitions in the Superior Court, California Court of Appeal, and California Supreme Court. The Superior Court petition (filed March 2011 and denied in a reasoned opinion in April 2011), raised claims corresponding to grounds 1 and 2. The Court of Appeal petition (filed May 2011 and summarily denied June 2011) asserted claims corresponding to all the grounds in our petition. The Supreme Court petition (filed July 2011 and summarily denied in November 2011) asserted claims mostly corresponding to the claims herein.


Petitioner claims that the trial court violated his Sixth Amendment right to due process of law by failing to sua sponte deliver an additional jury instruction on in voluntary manslaughter - this time CALCRIM 580, involuntary manslaughter as a lesser included offense of the charged murder - despite evidence at trial which supported such an instruction. The Magistrate is right to conclude (R&R at 17-20) that this claim lacks merit.

As the Magistrate notes (R&R at 18), the trial court did deliver three instructions to the jury, requested by petitioner's counsel, about the possible legal significance of petitioner's alleged methamphetamine intoxication at the time he admittedly fatally slashed the throat of the victim, Fisher: CALCRIM 625 to consider evidence of voluntary intoxication in determining whether he acted with the intent to kill; CALCRIM 626 to authorize the jury to find that he committed only involuntary manslaughter resulting from voluntary intoxication causing unconsciousness; and CALCRIM 627 to consider evidence of petitioner's alleged hallucinations in determining whether he acted with premeditation and deliberation. The Magistrate cogently reasons (R&R at 18-19) that the trial court did instruct the jury on involuntary manslaughter, merely on the theory of unconsciousness through voluntary intoxication, and "[t]he fact that the jury found petitioner guilty of second[-] degree murder demonstrates [that] the jurors rejected the defense theory of involuntary manslaughter."

In its analysis of this instructional-error claim, however, the Report sometimes relies on Ninth Circuit precedent to supply the legal standard (i.e., the interpretation of the U.S. Constitution) with which the ...

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