United States District Court, C.D. California
MEMORANDUM OPINION AND ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS
PYM, United States Magistrate Judge
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
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.
reasons discussed below, petitioner’s claim does not
merit habeas relief. The Petition will therefore be denied.
The Crime and Trial Evidence
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.
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.
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.
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.
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.
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.
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
The Moore Instruction
Moore instruction was read as follows:
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.
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.
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.
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.
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.
and effective jury deliberations require a frank and
forthright exchange of views.
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.
the People and the defendant are entitled to the individual
judgment of each juror.
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 ...