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Lewis v. Biter

United States District Court, C.D. California

July 20, 2016

TIMOTHY JERIOD LEWIS JR., Petitioner,
v.
M. BITER, Warden, Respondent.

          MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

          SHERI PYM, United States Magistrate Judge

         I.

         INTRODUCTION

         On March 17, 2014, petitioner Timothy Jeriod Lewis Jr. filed a Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”). Petitioner challenges his 2011 conviction for carjacking in the Los Angeles County Superior Court.

         Although presented as three grounds, the Petition effectively asserts one ground for relief: the trial court abused its discretion by prematurely giving the jury a supplemental instruction to break its deadlock that was unduly coercive and violated petitioner’s due process right to an impartial jury, resulting in a miscarriage of justice and requiring reversal of petitioner’s conviction.

         For the reasons discussed below, petitioner’s claim does not merit habeas relief. The Petition will therefore be denied.

         II.

         BACKGROUND[1]

         A. The Crime and Trial Evidence

         On October 17, 2010, Angel Guerrero stepped out of his truck after parking it. He left the engine running because he intended to make a short stop. Guerrero was aware that he had almost run into a white car while he was backing up to park. The white car stopped, and a group of five or six people including petitioner got out and approached Guerrero while armed with hammers and metal rods. Guerrero believed they were going to attack him. Petitioner, who Guerrero believed had a hammer, got in the driver’s seat of Guerrero’s truck and drove away.

         Guerrero, his brother, and a young friend named Adriana Castro pursued the truck in the brother’s car. Castro called 9-1-1. Castro’s testimony corroborated that of Guerrero.

         Guerrero’s truck, with petitioner at the wheel, was spotted by sheriff’s deputies in a patrol car. When the officers made a U-turn in order to follow petitioner, he drove away at a high rate of speed. The deputies did not pull out their weapons, although one deputy later testified he did not recall if he drew a gun. After a short chase, petitioner crashed the truck into a fire hydrant. Petitioner got out and ran but was eventually taken into custody.

         Petitioner testified that he alone approached Guerrero while unarmed after Guerrero hit the white car petitioner was traveling in. Guerrero got a machete from his truck and held it, causing petitioner to fear for his safety. Petitioner got in Guerrero’s truck and drove off in order to save himself. Petitioner did not stop for the deputies because one of them pulled a gun on him when the patrol car first passed him. Petitioner’s testimony was supported by a friend who was in the white car with him and said that Guerrero pulled a machete on petitioner. In November 2010, petitioner’s mother took photographs of the damage to the white car, and the photographs were shown to the jury.

         B. Jury Deliberations

         At trial, shortly before the noon recess on June 21, 2011, the jury was ordered to begin deliberations. The jury returned at 1:30 p.m. and deliberated until court adjourned at 4:00 p.m. that day. Before the jury left for the day, the trial court answered the jury’s query on the term “force or fear” in a manner agreed upon by all parties.

         Deliberations resumed at 9:00 a.m. on June 22, 2011. At approximately 9:30 a.m., the jury asked to listen to the 9-1-1 recording again as well as the testimony of Adriana Castro. The jury also asked, “Does his failure to substantiate ‘necesity’ [sic] imply guilt?” The parties agreed that the court would play the recording and provide the readback as soon as the court became available. With respect to necessity, the court referred the jury to the instructions on carjacking and necessity. Because defense counsel was engaged in a hearing for a different case, the readback and playback were delayed. Before the jury heard the readback, they buzzed the court again and issued a note saying, “we are not able to make a decision, nine to three.” The trial court announced that it intended to read the jury an instruction from People v. Moore, 96 Cal.App.4th 1105, 117 Cal.Rptr.2d 715 (2002), and it provided copies to the prosecutor and defense counsel. The trial court stated its decision was “based on the length of the evidence and the gaps and the fact that they requested readback and the 9-1-1 tape being played.” Later, the court stated for the record that it did not believe the jury had been deliberating long enough.

         Defense counsel objected to the reading of the instruction. She requested the trial court to poll the jurors as to how many votes had been taken, remind them of the length of their deliberations and that they had requested readback and the 9-1-1 call, and ask them whether they felt that further deliberations would change anything. Defense counsel commented that the language of the instruction was “a little bit overbearing.” The prosecutor had no objection. The trial court noted the objection by the defense and stated it would read the instruction and inform the jury that at 1:45 that afternoon they would have the readback they requested.

         C. The Moore Instruction[2]

         The Moore instruction was read as follows:

         Ladies and Gentlemen, what I am going to do right now is I have further instructions and directions to give you as to the count in this case.

         It has been my experience on more than one occasion that a jury which initially reported it was unable to reach a verdict was ultimately able to arrive at verdicts on one or more counts before it. To assist you in further deliberations, I’m going to further instruct you as follows.

         Your goal as jurors should be to reach a fair and impartial verdict if you are able to do so based solely on the evidence presented and without regard for the consequences of your verdict regardless of how long it takes to do so.

         It is your duty as jurors to carefully consider, weigh and evaluate all of the evidence presented at the trial, to discuss your views regarding the evidence and to listen to and consider the views of your fellow jurors.

         In the course of your further deliberations, you should not hesitate to re-examine your own views or to request your fellow jurors to re-examine theirs. You should not hesitate to change your view you once held if you are convinced it is wrong or to suggest other jurors change their views if you are convinced they are wrong.

         Fair and effective jury deliberations require a frank and forthright exchange of views.

         As I previously instructed you, each of you must decide the case for yourself and you should do so only after a full and complete consideration of all the evidence with your fellow jurors. It is your duty as jurors to deliberate with the goal of arriving at a verdict on the charge if you can do so without violence to your individual judgment.

         Both the People and the defendant are entitled to the individual judgment of each juror.

         As I previously instructed you, you have the absolute discretion to conduct your deliberations in any way you deem appropriate. May I suggest that since you have not been able to arrive at a verdict using the methods that you have chosen, that you consider to change ...


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