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Tilbury v. Fox

United States District Court, N.D. California

August 1, 2016

DANIEL L. TILBURY, Petitioner,
ROBERT W. FOX, Warden, Respondent.



         Before the Court is the above-titled petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254 by petitioner Daniel L. Tilbury, challenging the validity of a judgment obtained against him in state court. Respondent filed an answer to the petition. Petitioner has filed a traverse. For the reasons set forth below, the petition is denied.[1]


         On December 8, 2010, a Santa Clara County jury found petitioner guilty of first degree murder (Cal. Penal Code § 187) and found true that he personally and intentionally discharged a firearm causing death (Cal. Penal Code § 12022.53(d)). Ex. 1 at 535, 541-42.[2] On January 21, 2011, the trial court sentenced petitioner to 50 years to life in state prison. Ex. 1 at 594, 596.

         Petitioner filed both a direct appeal and a habeas petition in the California Court of Appeal. Exs. 6 & 11. On September 10, 2013, the California Court of Appeal affirmed the judgment in an unpublished opinion and summarily denied petitioner’s habeas corpus petition. Exs. 12 & 13.

         On December 18, 2013, the California Supreme Court denied review of the direct appeal and of the denial of his petition for writ of habeas corpus. Exs. 16 & 17.

         On March 18, 2015, petitioner filed the instant petition for a writ of habeas corpus.


         The following background facts describing the crime and evidence presented at trial are from the September 10, 2013 opinion of the California Court of Appeal[3]:

         I. The Prosecution’s Case

Defendant and Kristine Ramos (Kristine) were the parents of three boys born in 2001, 2002, and 2004. They separated in 2005, and their divorce was final in July 2008. They shared custody of the boys equally pursuant to a March 2007 stipulated custody order. In 2008, defendant was offered a promotion that would require him to move to Washington state. Defendant accepted the promotion and moved into a three-bedroom apartment in Washington in early August 2008. He told his coworkers, who helped him move in, that his children would be living there with him. They moved bunk beds, toys, and children’s books into the apartment for the children. Kristine and the boys remained in San Jose. They shared a home with Kristine’s brother Michael Ramos, her fiancé Fabian Gonzales, her teenaged son Gilbert, Gonzales’s son, and her two very young children with Gonzales.
Defendant was familiar with firearms, and he had a gun safe in a closet of the apartment. He owned a .50 caliber Desert Eagle semi-automatic pistol with a seven-cartridge magazine that he had purchased in 1998. This pistol was defendant’s biggest gun, and the ammunition used by it is “one of the largest” and most “powerful” available. Larger bullets “can produce more damage.”
After he moved to Washington in August 2008, defendant drove down to California to visit the boys every month. In December 2008, defendant told a coworker that his children would [be] joining him “around Christmas.” On December 16, 2008, Kristine filed in court a request for full custody of the boys. On December 23, 2008, defendant arrived in San Jose for the holidays. He had driven down from Washington. With him, he had brought his .50 caliber Desert Eagle pistol. He had the pistol’s magazine in his glove compartment. When he picked up the boys from Kristine’s home that day, her brother Michael served him with the papers Kristine had filed seeking full custody of the boys. Defendant looked at the papers and became upset. He and Kristine went outside to talk about the papers. After they talked for 15 to 20 minutes, Kristine returned, and the boys left with defendant.
Defendant told his parents, with whom he and the boys were staying, that Kristine was seeking full custody of the boys. Defendant also told them that “he would have to come back down in January” and would not be able to take the boys to Washington due to Kristine’s request for full custody. Defendant appeared to be “[a]nnoyed, tense.” However, over the next few days, defendant appeared to be in a good mood as he and his family enjoyed the holidays with the boys.
On December 27, 2008, defendant called his coworker in Washington and told him that he needed to extend his vacation to consult with a lawyer. The next day, defendant told his coworker that “there was some problems with bringing his sons back up, ” and he needed more time to confer with a lawyer. Defendant said that “his wife had changed her mind on the custody and that she no longer wanted the kids to come up to Washington.”
On December 29, 2008, defendant spent the day with the boys, making their meals, playing with them, and taking them to the doctor. But “as the evening progressed, he became annoyed, agitated, and frustrated.” His change of mood seemed to be associated with his phone conversations with Kristine. Telephone records reflected that there were four telephone calls between them. Two calls were initiated by defendant just after 7:30 p.m., with one lasting just two seconds and the other, two minutes later, lasting just over two minutes. A third call, which was initiated by Kristine, was 81 seconds long and appeared to have occurred between the other two calls. These three calls occurred during dinner or just before they sat down to dinner. His parents overheard portions of his side of these phone conversations. Defendant said something about Kristine asking him for a favor, and there was also mention of a threat by Kristine to send the police over if he did not return the boys “right away.” Defendant seemed “frustrated and angry.” He said “[t]hat he had 50 percent custody of the boys and that he was in town visiting them and that-then he said ‘If you need to send the police, send the police, but I have, ’ you know, ‘custody of the boys, 50 percent custody of the boys.’” His father heard him say: “‘Kristine, you want me to bring the kids back home now?’” and “‘Go ahead and send the police over. I have a 50 percent custody agreement.’” His mother heard him say “‘You want me to bring the kids back?’” He then said that “we’re having dinner and, after we finish dinner, that he would see about bringing the kids back, that he would bring the kids back.”
After dinner, defendant told the boys that “he’d be right back to play with them.” Defendant had his phone in his hand, and he said he was going to “take a call outside.” He appeared to be “annoyed and agitated” and “definitely frustrated with the phone calls.” When he walked out, he was wearing jeans and a T-shirt. Defendant initiated another phone call to Kristine, which began at 8:16 p.m. and lasted about eight minutes. Defendant’s father returned from a trip to the store and saw defendant standing in the driveway talking on his cell phone. Defendant “seemed to be pretty upset” and was yelling. Defendant’s father went into the house.
After this last telephone conversation, Kristine was upset. Her brother Michael got the impression that defendant was going to be bringing the boys back that evening. Half an hour after that phone call, Michael heard a noise at the door, and he went and opened the door. Defendant was at the door. The drive from defendant’s parents’ house to Kristine’s home takes about 30 minutes. Michael was expecting to see the boys, but he did not see them. Defendant said “Hi, Mike” and walked into the house. Michael replied “Hi.” Defendant was wearing a long black jacket “that he normally had” that went down to his knees. Michael saw nothing in defendant’s hands.
Defendant passed by Michael, approached Kristine, and said “‘What’s up, Kristy?’” He pulled out his .50 caliber Desert Eagle pistol, pointed it at Kristine, and fired it repeatedly. Kristine fell to the ground, and defendant continued firing the gun at her on the ground. Defendant fired his gun a total of seven times, emptying the magazine. After the last shot, defendant turned around, walked out the door, and drove away in his car at a normal speed. Kristine suffered gunshot wounds to her neck, chest, shoulder, back, arm and hand, resulting in her death.
At 8:45 p.m., defendant’s father received a call from defendant. Defendant told his father: “‘She’s not going to bother us anymore.’” Defendant’s father asked him what he meant, and defendant said: “‘I shot her.’” Defendant asked his father “to please take care of the boys” and said “‘I did this to protect them from her.’” Defendant’s father told him to go to the police station and turn himself in. Defendant’s vehicle was stopped by the police at 9:10 p.m. in San Jose, and he was arrested. No weapon was found in his possession. He told the police that he had no guns with him and that all of his guns were in his gun safe in Washington. Defendant also told the police that he used to own a Desert Eagle, but he had sold it because it was “worthless” and did not shoot well.

         II. The Defense Case

Defendant testified on his own behalf at trial. He described the history of his relationship with Kristine. They had three children together before she began an affair with Fabian Gonzales. At the time, defendant suspected that Kristine was “cheating on me” and “using drugs.” Right after she and defendant bought a home together, she left defendant for Gonzales and moved into that home with Gonzales. This occurred in July 2005. When she left defendant, she took the boys, and defendant had no idea where they were for several days. Initially, defendant and Kristine shared custody of the boys pursuant to an informal oral agreement.
Their post-separation relationship was troubled. Defendant accused Kristine of taking money from his bank account. In August 2005, Kristine filed for divorce, but she withdrew her petition in October and suggested to defendant that they might reconcile. Yet she continued to live with Gonzales. When it appeared that the house would be foreclosed upon, Kristine convinced defendant to send money and letters to the lender by again suggesting that they might reconcile. These efforts were unsuccessful, and the house was foreclosed upon in late 2006. In 2006 and 2007, Kristine had two children by Gonzales. Defendant learned of the new children because Kristine was still on his insurance and he received statements for her prenatal care.
Their shared custody arrangement did not work well. Defendant repeatedly experienced conflicts with Kristine when he went to pick up the boys. She sometimes refused to let him see the children, and he several times called the police. He was concerned that Kristine was using methamphetamine while she had the boys in her custody and that she was sharing her home with other drug users. By April 2006, defendant was caring for the children “most of the time.” He believed that Kristine’s home was “dirty” and hazardous to the children. The child custody conflicts and difficulties continued into 2007. Because Kristine often would not show up when she had said she would, defendant frequently had to miss work. He was worried that he would lose his job and be unable to support the boys. And the boys, who would be expecting Kristine, would be upset when she did not arrive on time or at all.
At the beginning of 2007, defendant talked to Kristine about formalizing their custody agreement. He had gone to an attorney and had an agreement drafted. Her response to his bringing up this subject was to keep the boys and not return them as scheduled. She also did not take the eldest boy, the only one in school at that time, to school for a couple of days. Defendant had no idea where she was living at the time, so he did not know where the boys were. A week later, she brought the boys back. Defendant had to have his attorney file a motion with the court to obtain the return of the children. Defendant and Kristine subsequently went to family court and to mediation, and they ultimately committed to a formal “50/50” custody system.”
For a short while after theyagreement. Defendant’s experience in family court gave him “the impression ... that the men were not really being given a fair shake in the family court entered into the formal custody agreement, their relationship was smoother. But it soon deteriorated again. Their two-year-old son suffered a broken leg while in Kristine’s custody, and defendant felt that she had not provided a satisfactory explanation for how that had occurred. By late 2007, the boys were actually spending about 75 percent of their time in defendant’s custody. Defendant was devoted to the boys.
At the beginning of 2008, Kristine began spending more time with the boys. Defendant continued to be concerned about the children's safety at her home because “the place was kind of chronically dirty, chronically a mess, ” and “she had a bunch of people living there all the time.” When defendant picked up the kids, they would be “dirty.” The youngest boy would often have rashes “all over his body.” The children were not being physically well cared for. Defendant remained concerned about drug use in Kristine’s home, particularly because he believed that Gonzales was supplying drugs to Kristine. Defendant also was concerned that Kristine’s home was “very crowded” with too many people living there. Kristine told him that Gonzales had been in a fight on their front lawn with a tenant, and defendant thought there were “code violations” at the house. At the same time, there were fewer problems between defendant and Kristine in terms of the custody exchanges.
The possible prospect of moving to Washington state first came up in the summer of 2007. Defendant mentioned it to Kristine and told her “‘I wouldn’t take the offer if I wasn’t able to move up there with the children. I don’t want to be away from the children. I don’t want to take them away from you. So if you feel that you don’t want me to move them out of state, then we won't do this.’” By early 2008, the prospect had developed into an actual offer by defendant’s employer of a job in Washington. Defendant told Kristine of the offer and said: “‘And so I need to know, are you serious? Can I take the kids up there if I accept this?’” After thinking about it for a couple of days and asking him some questions, Kristine agreed to the plan.
Defendants’ parents testified that, in April 2008, Kristine told them that she would allow defendant to take the boys to Washington if he accepted the promotion. Defendant accepted the offer, and he began preparing for the move. He repeatedly asked Kristine if she was “‘sure, ’” and she assured him that she was. Defendant believed that Washington would be a better place to raise the boys: cleaner, safer, less crowded, and with better schools. Defendant originally planned to move the boys to Washington at the end of August 2008. He had already registered them at a school in Washington that was close to the apartment he had rented. He had not completely resolved child care issues, but his mother had offered to come up to Washington for a couple of months to watch the kids while he was at work until he secured childcare.
Before he left for Washington in August 2008, Kristine told him that she was not ready for him to take the kids away from her. She said that he could take the kids to Washington in December after she had had a chance to spend more time with them in the interim. Defendant was “upset, ” but he felt that waiting until December was “better than nothing.” He moved to Washington without the boys. In September, defendant drove down to San Jose to spend a week with the boys for their birthdays. He did not bring a gun with him on this journey. On his drive back to Washington, he stopped and slept at a rest stop. A “scary dude” knocked on his window in the middle of the night and startled him. The guy was “looking for change, ” and defendant gave him some. That experience changed his “threat assessment” for his trips between Washington and California. In October, defendant again drove down to visit the kids, and again in November he drove down to see the boys for Thanksgiving. He brought his .50 caliber Desert Eagle pistol with him on the drive. “[I]t seemed prudent to me to make sure that I was ready for contingencies, ready in case someone decided to....” He selected this pistol because it was his “biggest gun.”
Each time defendant had to drive back to Washington and leave the boys was “heart-wrenching.” It was “depressing” for him to be away from the kids. When he spoke to the boys on the phone, they asked when they were going to be coming to Washington, and he told them “‘I think it's going to be December, ’ ‘I hope we are going in December.’” Defendant felt “sad, ” and he compensated by working a lot and “drinking a lot.” He recognized that he was an alcoholic. He was “[i]ncredibly depressed.” Ten or 15 times, he “actually had the gun in my mouth, and I was ready to-to, you know, blow it. And I thought of my kids .... [¶] ... and, um, I would-I would stop and I would start drinking....” He talked to Kristine on the phone frequently. She never said anything about having changed her mind about letting him move the boys to Washington in December. In fact, in October, she asked him to take her 14-year-old son to Washington along with their three boys, and defendant immediately agreed to do so.
Defendant drove down to California again on December 22, 2008, arriving in California on December 23. He again brought his .50 caliber Desert Eagle pistol with him from Washington to California, storing it under the passenger seat. He drove through the night, but stopped at a rest stop to sleep on the way. Once he reached his parents’ house, he removed the pistol from the car and put it in his parents’ house, but he left the magazine in the glove compartment. When he went to Kristine’s house to pick up the boys, Kristine came outside to talk to him. She said that “she had filed something, ” but she “didn’t mean to do it” and would “withdraw the paperwork on Monday as soon as the courts opened.” Michael then served defendant with the papers in which she sought 100 percent custody of the boys. He was “shocked.” Defendant thought Kristine “wasn’t really serious about withdrawing” the papers. He thought “it was obvious she was using the move against me. That she had denied me for taking the kids up there in August in order to be able to establish what she called the status quo as having the children with her.”
He picked up the boys and took them back to his parents’ house. As they had been on previous occasions when defendant picked them up from Kristine, the boys were dirty, hungry, and did not have adequate clothing. The youngest boy, who was potty trained, was in a diaper that had not been recently changed, and he and one of his brothers both had a rash. Defendant expressed concern to his parents that the boys had “regressed academically” in his absence and had not been well cared for. The boys were seven, six, and four years old at this point. Because it was the holidays, defendant was “trying not to worry about things.” Yet he felt that he “had these things hanging over my head” because of Kristine’s request for full custody. He would need to return to San Jose in January to deal with that, but he was not sure he had any more time off available. He worried that he was bound to the lease for his Washington apartment and that he might lose his job due to the custody dispute. On December 27 or 28, 2008, defendant talked to Kristine on the phone about her request for full custody. He wanted to know if she was going to withdraw it. She told him that she was not going to withdraw her request.
Defendant testified that, on December 29, 2008, when he returned to the house with the boys that evening, before he started making dinner, he transferred his pistol from the house to the car so that it would not be in the house while the boys were there. During his first telephone conversation with Kristine that evening, she asked about using his insurance to cover her teenaged son’s dental expenses. Defendant “expressed some dismay that she was asking me for this favor after, you know, everything that she was doing.” He recalled that they had several additional phone conversations that evening. She wanted to know when he was leaving for Washington. He said he did not know. She “became very agitated and excited, ” “yelled” at him, and insisted that he provide a specific date. When he repeated that he did not know when he was leaving, she “threatened to call the police and have the police come and remove the kids from my custody.” Defendant found these conversations “frustrating, infuriating.” He told her that if she sent the police over it would just “make a scene” because he had “the necessary paperwork” and “things would work out.” Defendant testified that Kristine called him again and told himaround the corner.” He was not sure if she was “bluffing” as she had done before.
After that, defendant recalled that he lost touch with reality. He “didn’t have control of myself. I didn’t have control of the situation at that point. And so I was sc that she had “called the police, and the police were right ared.” He had no recollection of any further conversations with Kristine or any phone conversation while standing in the driveway. Defendant remembered thinking that he needed to go get some alcohol or some marijuana to “calm me down, ” but he did not remember leaving the house. The next thing he remembered was driving on the freeway. After that, he remembered a dog barking and an officer pointing a shotgun at him. Defendant testified that he had no recollection of going to Kristine’s house on December 29. He also testified that he did not remember what happened to the pistol or calling his father afterwards.
Defendant’s mother testified at trial that she recalled four phone calls, two of which occurred during dinner. She heard defendant saying into the phone before dinner “‘You served me with papers, and now you’re asking me for a favor.’” She testified that at least two calls were initiated by Kristine, and defendant immediately hung up on her one time. She also testified that Kristine called a second time during dinner when she recalled defendant’s cell phone rang.
The telephone records conflicted with defendant’s and his mother’s testimony about the number and originator of the telephone calls. At 7:34 p.m. on December 29, 2008, a call was made from defendant’s parents’ landline phone to Kristine’s home phone. This call lasted for three seconds. Also at 7:34 p.m., a call was made from Kristine’s home phone to defendant’s cell phone. This call lasted for 81 seconds (one minute and 21 seconds). At about 7:37 p.m., another call was made from defendant’s parents’ phone to Kristine’s home phone. This call was two minutes and two seconds long. At 8:16 p.m., a call was made from defendant’s cell phone to Kristine’s home phone. This call lasted for 490 seconds (eight minutes and 10 seconds).
Forensic psychiatrist John Chamberlain testified for the defense at trial. He explained that defendant had a history of problems coping with stress, and defendant used alcohol as a coping mechanism. Defendant’s troubled relationship with Kristine created a lot of stress. Defendant’s trial counsel asked Chamberlain an extended hypothetical question based on the facts of this case and inquired whether a person experiencing what defendant had experienced and doing what defendant did “could ... be described as acting impulsively?” Chamberlain responded affirmatively. He explained that such a person “would be vulnerable to acutely decompensating” and “could acutely decompensate.” Chamberlain also testified that a person who experienced a traumatic event might experience “dissociative amnesia, ” meaning that the person would be unable to access memories of that event. On cross, Chamberlain conceded that there were “questions about [defendant’s] reliability as a historian.” “[H]e gave information that is clearly, at least in some respects, inaccurate.” Chamberlain also admitted on cross that “we can’t say what his mental state was.”
Defendant’s boss testified that he told her that he “had a signed note from Kristine that said that he could move with the kids to Seattle, ” but defendant did not testify that he had such a note nor did the defense produce such a note.

         III. Procedural Background

Defendant was charged by amended information with murder (Pen.Code, § 187), and it was alleged that he had personally and intentionally discharged a firearm causing death (Pen.Code, § 12022.53, subd. (d)) and personally used a firearm (Pen.Code, § 12022.5, subd. (a)). At trial, the defense made clear in its opening statement that it sought a verdict of voluntary manslaughter. In her closing argument, defendant’s trial counsel argued to the jury: “So, we know that this is a case about heat of passion because the act that he committed on December 29th of 2008 is so extraordinarily inconsistent with who he is, that it has to be a heat of passion.”
After two days of deliberations, the jury returned a first degree murder verdict and found the Penal Code section 12022.53 allegation true. Defendant moved for a new trial based on prosecutorial misconduct and ineffective assistance of counsel. The motion was denied. Defendant was committed to state prison to serve a term of 50 years to life. He timely filed a notice of appeal.

People v. Tilbury, No. H036579, 2013 WL 4813164, at *1-7 (Cal.Ct.App. Sept. 10, 2013)(footnotes omitted).


         A. Standard of Review

         A petition for a writ of habeas corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA''). This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'' 28 U.S.C. § 2254(a).

         A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state courts 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); Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Additionally, habeas relief is warranted only if the constitutional error at issue “‘had substantial and injurious effect or influence in determining the jury’s verdict.’” Penry v. Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).

         A state court decision is “contrary to” clearly established Supreme Court precedent if it “applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases, ” or if it “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [its] precedent.” Williams, 529 U.S. at 405-06. “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.

         Section 2254(d)(1) restricts the source of clearly established law to the Supreme Court’s jurisprudence. “[C]learly established Federal law, as determined by the Supreme Court of the United States” refers to “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. “A federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme Court] is, at best, ambiguous.” Mitchell v. Esparza, 540 U.S. 12, 17 (2003).

         Here, as noted, the California Supreme Court summarily denied petitioner’s petition for review. The California Court of Appeal, in its opinion on direct review, addressed eight of the claims petitioner raises in the instant petition. The court of appeal thus was the highest court to have reviewed the claims in a reasoned decision, and, as to those claims, it is the court of appeal’s decision that this Court reviews herein. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). The remaining claims were presented only in petitioner’s state petition for writ of habeas corpus, which was summarily denied. When presented with a state court decision that is unaccompanied by a rationale for its conclusions, a federal court must conduct an independent review of the record to determine whether the state court decision is objectively reasonable. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). This “[i]ndependent review . . . is not de novo review of the constitutional issue, but rather, the only method by which [a federal court] can determine whether a silent state court decision is objectively unreasonable.” See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Where a state court’s decision is unaccompanied by an explanation, the habeas petitioner’s burden still must be met by showing there was no reasonable basis for the state court to deny relief.” See Harrington v. Richter, 562 U.S. 86, 98 (2011).

         B. Petitioner’s Claims

         Petitioner asserts the following grounds for relief: (1) his rights were violated by the trial court’s failure to define the term “provocation” in the manslaughter instruction; (2) the trial court erred by refusing to modify the jury instructions on murder and manslaughter as requested by trial counsel; (3) the trial court erred by using a murder instruction that did not include lack of provocation as an element of murder; (4) the trial court committed structural error by refusing in advance to answer questions from the jury; (5) the trial court deprived him of his right to present a defense by excluding evidence regarding petitioner’s concerns about his children’s welfare; (6) there was insufficient evidence to establish the malice element; (7) the trial court violated his rights by not permitting trial counsel to conduct voir dire on the jury’s predisposition regarding manslaughter; (8) cumulative error of the above claims; (9) ineffective assistance of counsel due to the failure to assert an unconsciousness defense; (10) ineffective assistance of counsel due to the failure to object to the admission of irrelevant and prejudicial evidence; (11) ineffective assistance of counsel due to the failure to object to the prosecutor’s misconduct in closing argument; and (12) cumulative error arising from trial counsel’s errors.

         1.Lack of Definition of Provocation

         Petitioner claims that he was deprived of his due process rights by the trial court’s failure to define the term “provocation” in the manslaughter instruction. Petition at 13.[4] The California Court of Appeal summarized and rejected this claim as follows:

The voluntary manslaughter instruction told the jury: “A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. [¶] The defendant killed someone because of a sudden quarrel or in the heat of passion if: [¶] The defendant was provoked; [¶] As a result of the provocation, the defendant acted rashly or under the influence of intense emotion that obscured his reasoning or judgment; [¶] And [¶] The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. [¶] Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. [¶] In order for heat of passion to reduce murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or a long period of time. [¶] It is not enough that the defendant simply was provoked.... In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment. [¶] If enough time passed between the provocation and the killing for a person of average disposition to cool off and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on that basis. [¶] The People have the burden of proving beyond a reasonable doubt the defendant did not kill as a result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder.” The words “provoked” and “provocation” were not defined in the jury instructions.
“A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning.” (People v. Estrada (1995) 11 Cal.4th 568, 574.) The “nonlegal meaning” or common meaning of “provoke” is “to incite to anger” or “to stir up purposely.” (Merriam-Webster's Collegiate Dict. (10th ed.1993) p. 940; People v. Hernandez (2010) 183 Cal.App.4th 1327, 1334.) Similarly, the common meaning of “provocation” is “incitement” or “something that provokes, arouses, or stimulates.” (Merriam-Webster's Collegiate Dict. (10th ed.1993) p. 940; Hernandez, at p. 1334.) “‘Provocation, as the term is used in law, means that treatment of one person by another which arouses passion and anger.’” (People v. Thomas (1945) 25 Cal.2d 880, 894, 903.)
Defendant argues that provocation, as it is used in the law in the voluntary manslaughter context, “has [a] more subtle meaning” which includes “purely verbal conduct.” Nothing in the common meaning of “provocation” excludes “purely verbal conduct.” And nothing in the court’s instructions suggested that “provocation, ” in the legal context, did not include “purely verbal conduct.” The jury was explicitly told that “no specific type of provocation is required.” Defendant claims that the court’s instruction did not provide the jury with a standard it could use to distinguish verbal conduct that does constitute provocation from that which does not. Not so. The court’s instruction provided precisely such standards. The jury was told both that “slight or remote provocation is not sufficient, ” and that, in determining whether the provocation was sufficient, it should look to whether the provocation would have caused “a person of average disposition” to “react [ ] from passion rather than from judgment.” We fail to see any relevance in defendant’s reference to the “maxim” that “‘sticks and stones may break my bones but words will never hurt me.’” Jurors are assumed to be intelligent adults who will follow the court’s instructions, and we may presume that they did not substitute an unreferenced “maxim” as their guide. (People v. Gonzales (2011) 51 Cal.4th 894, 940 [“It is fundamental that jurors are presumed to be intelligent and capable of understanding and applying the court’s instruction.”].) The trial court was not obligated to instruct the jury on the meaning of the word provocation as that word has no technical legal meaning that it is different than its common meaning.

People v. Tilbury, 2013 WL 4813164, at *18-19 (footnote omitted).

         A challenge to a jury instruction solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). To obtain federal collateral relief for errors in the jury charge, a petitioner must show that “‘the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.’” Id. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). The instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. Id. Petitioner also must show actual prejudice from the error, i.e., that the error had a substantial and injurious effect or influence in determining the jury’s verdict, before the court may grant federal habeas relief. Calderon v. Coleman, 525 U.S. 141, 146 (1998) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). The failure of a state trial court to instruct on lesser-included offenses in a noncapital case does not present a federal constitutional claim. Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000).

         Applying these legal principles to petitioner’s current allegations, the state court’s rejection of this claim was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent.

         Accordingly, petitioner is not entitled to habeas relief on this claim.

         2.Rejection of Pinpoint Instructions

         Petitioner claims that the trial court’s refusal to give two requested pinpoint instructions violated his right to due process. Petition at 14. The California Court of Appeal summarized and rejected this claim as follows:

The defense asked the court to instruct the jury that “[i]n deciding the sufficiency of the provocation for voluntary manslaughter, the average person need not be provoked to kill, just to act rashly and without deliberation.” The defense also asked the court to instruct the jury: “The quantity of wounds does not, in itself, support a finding that defenda[n]t acted with premeditation or deliberation.” (Capitalization omitted.) The prosecution opposed both requests. The court acknowledged that “the defendant is generally entitled to pinpoint instructions in certain circumstances, ” but such instructions were not required if “they are argumentative, ” “duplicative, ” or “confusing.” The court rejected the proposed provocation instruction as duplicative. It found that the proposed “quantity-of-wounds” instruction “does appear to be a correct statement of law, ” but it declined to give it because “to focus on this one specific piece of evidence and highlight it, it seemed inappropriate.”
“A trial court is not required to give pinpoint instructions that merely duplicate other instructions.” (People v. Panah (2005) 35 Cal.4th 395, 486.) The trial court’s instructions explicitly informed the jury that the “heat of passion” requirement was not limited to any “specific emotion” such as “anger” or “rage.” It could be “any violent or intense emotion.” These instructions also told the jury that the objective component required only that “[t]he provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.” By emphasizing that the emotion could be of any type that would cause an ordinary person to “act rashly” and “from passion rather than judgment, ” the court’s instructions adequately informed the jury that there was no requirement that an ordinary person would have been provoked to kill. Therefore, the trial court did not err in concluding that the requested instruction on this point would have been duplicative.
“Upon request, a trial court must give jury instructions ‘that “pinpoint [ ] the theory of the defense, ”’ but it can refuse instructions that highlight ‘“specific evidence as such.”’ [Citations.] Because the latter type of instruction ‘invite[s] the jury to draw inferences favorable to one of the parties from specified items of evidence, ’ it is considered ‘argumentative’ and therefore should not be given.” (People v. Earp (1999) 20 Cal.4th 826, 886.) “In a proper instruction, ‘[w]hat is pinpointed is not specific evidence as such, but the theory of the defendant’s case.’” (People v. Wright (1988) 45 Cal.3d 1126, 1137.) “[I]nstructions that attempt to relate particular facts to a legal issue are generally objectionable as argumentative [citation], and the effect of certain facts on identified theories ‘is best left to argument by counsel, cross-examination of the witnesses, and expert testimony where appropriate.’” (People v. Wharton (1991) 53 Cal.3d 522, 570.) The requested “quantity-of-wounds” instruction was an attempt to relate particular facts to a legal issue. The proposed instruction pinpointed specific evidence, the wounds to ...

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