1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 KEYLEN M. DUNN, Case No. 21-cv-9036-PCP

7 Petitioner, ORDER DENYING PETITION

FOR WRIT OF HABEAS CORPUS

v. 8

9 PATRICK COVELLO, Respondent. 10

11 12 Keylen Dunn filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. 13 § 2254. The Court ordered respondent to show cause why the writ should not be granted. 14 Respondent filed an answer and a memorandum of points and authorities in support thereof and 15 lodged exhibits with the Court. Mr. Dunn filed a reply. For the reasons discussed below, the Court 16 denies the petition. 17 BACKGROUND 18 Mr. Dunn was charged with a February 2016 robbery and a July 2016 murder. People v. 19 Dunn, A155981, 2021 WL 973386, at *1 (Cal. Ct. App. Mar. 16, 2021). A jury found Mr. Dunn 20 guilty of robbery, found him not guilty of first-degree murder, and deadlocked as to second-degree 21 murder. Id. At retrial, the jury found Mr. Dunn guilty of second-degree murder. Id. He was 22 sentenced to a prison term of 17 years to life. Id. The California Court of Appeal affirmed the 23 conviction. Id. The California Supreme Court denied review. Answer, Ex. E. 24 The following background on Mr. Dunn’s trial is taken from the California Court of 25 Appeal opinion:1

26 27 A. The Prosecution Case 1 On July 8, 2016, around 6:45 p.m., Bryan Abernathy was sitting in 2 his truck at Kennedy Park in Richmond. In his rearview mirror, he saw that about 50 feet away from him, defendant was chasing Eaen 3 Hale. Abernathy knew both defendant and Hale and considered them friends. He also knew defendant and Hale hung out together. 4 Abernathy turned and watched defendant chase Hale around a car, then return to the park. During this initial chase, defendant got within 5 about five feet of Hale, but Abernathy did not see defendant catch up 6 to him or see anything in either of their hands.

7 Several minutes later, Abernathy saw defendant chase Hale across the street, then they went down to the ground, disappearing from 8 Abernathy’s view in front of another car. After about a minute or two, defendant “popped up” and ran in front of Abernathy’s truck holding 9 what appeared to be a bloody knife. 10 At this point, Abernathy exited his truck and found Hale on his 11 stomach in a pool of blood. Abernathy did not see any weapons near Hale. When Officer Alexis Bartley arrived at the scene, she found the 12 victim lifeless. Abernathy told Bartley he saw a knife only when defendant was running away. Abernathy later told another officer that 13 defendant was “5150,” by which he meant crazy. 14 The prosecution introduced evidence of a 911 call Hale made at 6:47 15 p.m. the day of his death. The phone call begins with Hale telling the dispatcher that defendant popped his tires with a knife, hit him in the 16 mouth, and would have stabbed him if he had not run away. Hale then said that defendant, who had gone to the other side of the park, was 17 coming back with “a long ass knife” and he had to get away. At this 18 point in the call, Hale repeatedly yells things like, “I don’t know what to do” and “Oh no.” 19 Hale’s autopsy revealed he died from a single stab wound to the chest, 20 where the knife pierced his lung and aorta and was stopped by a vertebra. Hale also had small abrasions to his forehead and cheek that 21 occurred around the same time as the stabbing. A police officer 22 observed a fresh abrasion on defendant’s left middle finger knuckle after his arrest. 23 The prosecution also introduced evidence of two uncharged prior acts 24 under Evidence Code section 1101, subdivision (b), i.e., a robbery 25 defendant committed in February 2016 and an incident at a bar where he fought with and threatened the bouncer. 26 B. The Defense Case 27 Defendant took the stand and testified about his past and the breakdown because he believed his mother was incorrectly preparing 1 his food. He would barricade himself in his bedroom, and he was 2 paranoid. He began taking psychiatric medications at around 13 or 14 years old and currently takes medications for schizophrenia and 3 bipolar disorder. He fears being shot and killed because in his late teenage years, he was shot in the leg by someone who robbed him, 4 and he also had friends die from being shot. He was homeless since 2014. A few weeks before Hale’s death, defendant admitted himself 5 to a psychiatric ward because he was out of medications, he thought 6 he smoked “laced” marijuana, and he did not feel normal. He obtained medications during that hospitalization, but ran out at least a week 7 before Hale’s death and could not obtain a refill. On the day Hale died, the car that defendant had been sleeping in was towed away 8 along with his belongings.

9 Defendant testified that he and Hale had been friends since defendant 10 was a teenager and that he never wanted Hale dead. Hale was also homeless and slept around Kennedy Park in cars. The day Hale died, 11 defendant was smoking marijuana in a restroom at the park when Hale came inside to smoke methamphetamine. After defendant lent Hale 12 his lighter, Hale burned defendant’s hand with his pipe while offering him methamphetamine. Defendant reacted by shoving Hale’s hand 13 away. Hale got upset and left. Defendant followed to get his lighter 14 back, but Hale said he was angry and pulled out a knife. Hale then turned and ran away, and defendant gave chase because he wanted to 15 know why Hale pulled out the knife and because he was concerned that Hale was going to retrieve a gun. Defendant testified that Hale 16 had previously told defendant he had guns, and defendant also heard “through the grapevine” that Hale had engaged in a shooting. 17 Defendant chased Hale across the street, then Hale tripped and fell 18 onto his own knife, which “planted into his chest.”

19 Afterwards, defendant retrieved his shopping cart, which contained his belongings, and left the area. He never called for help or tried to 20 help Hale. The police arrested defendant two days later. When asked at trial about three knives found in his shopping cart, defendant 21 testified he did not know they were there, he had never seen them 22 before, and he never carried knives.

23 The defense also presented evidence regarding defendant’s mental and cognitive functioning. One witness testified that, during the six 24 weeks preceding Hale’s death, he had observed and heard defendant 25 acting erratically, including being nonresponsive to questions or making animal noises, and frequently screaming gibberish at the top 26 of his lungs at night.

27 A licensed social worker working at the jail saw defendant in mid- questions), with apparent borderline intellectual functioning and an 1 irrational, disorganized manner of speech. A jail psychiatrist testified 2 that defendant has schizophrenia and that she treated him for psychosis in September 2016. Further, two experts testified about 3 elevated levels of violence that homeless people face and how this impacts them, such as their reactions to perceived threats. 4 Additionally, the defense presented Dr. Jodi Couick, a school 5 psychologist who assessed defendant in 2006 and determined he 6 qualified for special education as a teenager. Her testing indicated that defendant scored in the range of 67–78 for cognitive ability, where 7 the range for “intellectual disability” is around 70; that defendant had limited problem solving skills; and that he had faulty reasoning and 8 poor “reality testing.” Defendant’s reality testing became weaker when dealing with emotional stimuli, and so “he might misperceive 9 situations and not anticipate consequences” to his actions. 10 An expert in neuropsychology, Dr. Dale Watson, assessed defendant 11 cognitively and found him mildly intellectually disabled with an IQ of 72. Among other things, Dr. Watson testified that defendant has 12 frontal lobe dysfunction, which is generally associated with impulsivity and perseveration, and that he has schizophrenia and poor 13 “reality testing” which is associated with poor judgment. Defendant 14 also “elevated another index called the ‘vigilance composite’” and “people who elevate this tend to be . . . hyper sensitive to threat, 15 they’re paranoid.” Dr. Watson did not ask defendant anything about what happened on the day of or during the alleged murder or the prior 16 robbery. 17 Dunn, 2021 WL 973386, at *1-3 (footnotes omitted). 18 Mr. Dunn timely filed this habeas petition and argues that: (1) the trial court erred by not 19 instructing the jury on the lesser included offense of involuntary manslaughter; (2) the trial court 20 issued an erroneous instruction on the defense of accident and should have issued a separate 21 pinpoint instruction; and (3) the trial court erred by admitting evidence of his prior bad acts. 22 STANDARD OF REVIEW 23 If a claim has been adjudicated on the merits in state court, a federal habeas court may not 24 grant relief to a person in custody pursuant to a state court judgment unless the state court’s 25 adjudication of the claim (1) resulted in a decision that was contrary to, or involved an 26 unreasonable application of, clearly established federal law, as determined by the Supreme Court 27 of the United States; or (2) resulted in a decision that was based on an unreasonable determination 1 “[F]or a state court’s decision to be an unreasonable application of [the Supreme] Court’s case 2 law, the ruling must be objectively unreasonable, not merely wrong; even clear error will not 3 suffice.” Virginia v. LeBlanc, 582 U.S. 91, 94 (2017). “[A] state-court factual determination is not 4 unreasonable merely because the federal habeas court would have reached a different conclusion 5 in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). 6 The state court decision to which § 2254(d) applies is the “last reasoned decision” of the 7 state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d 8 1085, 1091-92 (9th Cir. 2005). When there is no reasoned opinion from the highest state court to 9 consider the petitioner’s claims, the Court looks to the last reasoned opinion. See Nunnemaker at 10 801-06; Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). In this case, the Court 11 looks to the opinion from the California Court of Appeal for the first two claims. For the reasons 12 discussed below, the third claim will be reviewed de novo. 13 ANALYSIS 14 I. Involuntary Manslaughter Instruction 15 Mr. Dunn argues that the trial court violated his constitutional rights by failing to instruct 16 the jury on the lesser included offense of involuntary manslaughter. 17 Legal Standard 18 The Supreme Court has held that a defendant has a constitutional right to have the jury 19 instructed on lesser included offenses only in capital cases. Beck v. Alabama, 447 U.S. 625, 638 20 (1980). In so holding, the Supreme Court expressly declined to state whether that right extended to 21 non-capital cases. Id. at 638 n.14. “Under the law of [the Ninth Circuit], the failure of a state trial 22 court to instruct on lesser included offenses in a non-capital case does not present a federal 23 constitutional question.” Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998); Solis v. 24 Garcia, 219 F.3d 922, 929 (9th Cir. 2000). 25 Nonetheless, “the defendant’s right to adequate jury instructions on his or her theory of the 26 case might, in some cases, constitute an exception to the general rule.” Solis, 219 F.3d at 929 27 (citing Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir. 1984)). Solis suggests that there must be 1 929–30 (finding no duty to instruct on voluntary manslaughter as lesser included offense to 2 murder because evidence presented at trial precluded a heat of passion or imperfect self-defense 3 instruction, and finding no duty to instruct on involuntary manslaughter because evidence 4 presented at trial implied malice). 5 Discussion 6 The California Court of Appeal denied this claim:

7 During trial, defense counsel requested an instruction on involuntary 8 manslaughter, arguing the evidence supported the theory that defendant brandished a knife—a misdemeanor—with criminal 9 negligence. Defendant contends the trial court’s refusal to give the requested instruction was error. FN. 4. We do not agree. 10 FN. 4. The trial court did instruct the jury as to second degree 11 murder, and the lesser included offense of voluntary 12 manslaughter under the theories of heat of passion and imperfect self-defense. 13 . . . .

14 Defendant claims he was entitled to an involuntary manslaughter instruction on two grounds. First, the jury could have believed that he 15 killed the victim without malice while committing the misdemeanor 16 brandishing of a knife. Based on a combination of Abernathy’s testimony, the 911 call, and his own testimony, he suggests the jury 17 could have believed that: defendant had a knife; he “chased after Hale while holding the knife, but without pointing the knife at Hale,” so he 18 was “merely brandishing the knife”; and “[w]hen [defendant and Hale] went behind a parked car, and disappeared from Abernathy’s 19 view, Hale slipped and fell on the knife.” 20 The problem with this is that defendant’s proposed scenario lacks 21 evidentiary support. While highlighting Abernathy’s testimony as indicating that he had a knife when he chased Hale, defendant points 22 to no evidence showing that he chased Hale “without pointing the knife at Hale.” Furthermore, there was no evidence indicating Hale 23 slipped and fell on defendant’s knife. Defendant specifically denied 24 ever having a knife and testified Hale tripped and fell on Hale’s own knife, so defendant’s testimony does not support his proposed 25 scenario. Neither did the prosecution’s evidence, which showed that defendant had a knife and intentionally stabbed Hale. In short, the 26 evidence did not support a theory that Hale was accidentally stabbed in the course of defendant merely brandishing a knife, as he suggests. 27 Alternatively, defendant claims he was entitled to an involuntary 1 manslaughter instruction because the mental health evidence 2 supported the theory that “a person with [his] mental impairments could have acted without implied malice because he lacked the 3 subjective awareness that his conduct carried a high degree of probability that it will result in death. [Citation.] A person with 4 schizophrenia and with [his] other mental impairments could have brandished or wielded a knife without the intent to kill, because he 5 lacked the ability to think things through to the end.” 6 Here, the evidence showed that, during the first chase, defendant 7 popped Hale’s car tire with a knife, threatened him, and “definitely” would have stabbed him had he not run away. Minutes after the first 8 chase, defendant returned from across the park and chased Hale again, ending with Hale fatally wounded and defendant holding a bloody 9 knife. Considering this evidence and the record as a whole, there was 10 nothing to indicate that defendant did these actions without intending to kill Hale or with a failure to grasp the risk of his actions. Indeed, 11 defendant testified that he knows stabbing someone in the chest is dangerous to life. And Dr. Watson offered testimony that someone 12 with defendant’s IQ is generally smart enough to know that stabbing someone is dangerous to human life. 13

14 Defendant additionally asserts that a person with his conditions “could have acted without the intent to kill, because homeless people 15 have hair-trigger tempers and respond quicky and inappropriately to anything they see as a threat.” Further, he claims, he “could have 16 lacked the intent to kill, because Hale was his friend.” This is unpersuasive. Whether a hypothetical person could have acted 17 without intent to kill for these reasons is not substantial evidence that 18 defendant personally lacked express or implied malice.

19 In sum, the trial court did not err in refusing to instruct on involuntary manslaughter. 20 Dunn, 2021 WL 973386, at *3-5 (footnote omitted). 21 Although the Ninth Circuit has recognized the potential viability of such a theory, there is 22 no clearly established United States Supreme Court authority requiring a state trial court to 23 instruct on a lesser included offense in a non-capital case. For that reason alone, the state court’s 24 rejection of this claim was not an unreasonable application of clearly established Supreme Court 25 law, and Mr. Dunn is not entitled to habeas relief. See Wright v. Van Patten, 552 U.S. 120, 126 26 (2008). 27 1 Appeal reviewed the evidence at trial and Mr. Dunn’s arguments and found that there was no 2 evidence to warrant an involuntary manslaughter instruction, because the evidence did not support 3 a theory that Mr. Dunn lacked the intent to kill. A review of the evidence demonstrates that the 4 state court’s conclusion was not unreasonable. Due process does not require that an instruction be 5 given unless the evidence supports it. See Hopper v. Evans, 456 U.S. 605, 611 (1982); Menendez 6 v. Terhune, 422 F.3d 1012, 1029 (9th Cir. 2005). Nor is the defendant entitled to have jury 7 instructions raised in his precise terms where the given instructions adequately embody the 8 defense theory. United States v. Del Muro, 87 F.3d 1078, 1081 (9th Cir. 1996). The state court’s 9 decision that the evidence did not support an involuntary manslaughter instruction was not 10 unreasonable, so Mr. Dunn would not be entitled to habeas relief even if the Supreme Court’s 11 precedents supported his legal theory. 12 II. Defense of Accident Instruction 13 Mr. Dunn next argues that the trial court issued an erroneous jury instruction concerning 14 the defense of accident and should have issued a different instruction. 15 Legal Standard 16 A challenge to a jury instruction solely as an error under state law does not state a claim 17 cognizable in federal habeas corpus proceedings. See Estelle v. McGuire, 502 U.S. 62, 71-72 18 (1991). See, e.g., Reno v. Davis, 46 F.4th 821, 841 (9th Cir. 2022) (concluding that state high 19 court’s interpretation of state death penalty statute and finding that unanimity instruction was 20 consistent with state law bounds federal court on habeas review); Stanton v. Benzler, 146 F.3d 21 726, 728 (9th Cir. 1998) (holding that state law determination that arsenic trioxide is a poison as a 22 matter of law, not an element of the crime for the jury’s determination, was not open to challenge 23 on federal habeas review). Nor does the fact that a jury instruction was inadequate by Ninth 24 Circuit direct appeal standards mean that a petitioner who relies on such an inadequacy will be 25 entitled to habeas corpus relief from a state court conviction. See Duckett v. Godinez, 67 F.3d 734, 26 744 (9th Cir. 1995) (citing Estelle, 502 U.S. at 71-72). 27 To obtain federal collateral relief for errors in the jury charge, a petitioner must show that 1 process. See Estelle, 502 U.S. at 72; see also Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) 2 (“‘[I]t must be established not merely that the instruction is undesirable, erroneous or even 3 “universally condemned,” but that it violated some [constitutional right].’”). 4 Discussion 5 The California Court of Appeal summarized the factual background and denied this claim:

6 To have misinstructed on the defense of accident, the trial court must 7 have instructed on it. Here, the court never instructed on it. Defendant, however, highlights the following verbal statement that the court 8 made to the jury prior to instructing on murder: “There is no claim in this case that there’s a legally permissible excuse for the second 9 degree murder charge except to the extent that there is a claim that the defendant did not have and the proof does not show beyond a 10 reasonable doubt that he had the specific intent to commit the crime 11 itself. Alternatively, that the event that happened was an accident, that he took no participation in or caused the death of the victim, Mr. Hale. 12 So there is testimony from the defendant that the stabbing injury took place without his involvement in it.” On appeal, defendant contends 13 this oral statement amounted to an erroneous instruction on the defense of accident. 14

15 This statement cannot reasonably be viewed as an instruction on the defense of accident. The trial court was telling the jury there was no 16 defense other than defendant’s claims that (1) the evidence failed to prove the mens rea of the offense, or (2) the evidence failed to prove 17 the necessary actus reus because the victim accidentally stabbed himself causing his own death. The court never indicated defendant 18 had a possible defense on the ground that defendant accidentally 19 stabbed the victim. Because the court never instructed on the defense of accident, it cannot be said the court misinstructed on that defense. 20 As for defendant’s claim that the trial court had a duty to instruct on 21 accident, we reject the claim. A court has no sua sponte duty to instruct on the defense of accident; such an instruction generally must 22 be requested. (People v. Anderson (2011) 51 Cal.4th 989, 996–997.) 23 Here, defendant concedes his trial counsel did not request an instruction on accident at the second trial. 24 Defendant raises two arguments for why he believes the trial court 25 had a sua sponte duty to instruct on accident. First, relying on the same alleged verbal misinstruction quoted above, defendant argues 26 the court “acquired the sua sponte duty to give a correct instruction 27 on accident” when it gave the alleged misinstruction. Having already concluded that the quoted statement was not an instruction on the 1 Second, defendant contends the trial court refused his request to give 2 an accident instruction at the first trial and, before the second trial, the court indicated its rulings at the first trial would stand. As such, he 3 “did not have to repeat at the second trial his request for an instruction on accident in order to preserve this issue.” We are unpersuaded. 4 The portions of the record that defendant cites to support this 5 argument disclose that the trial court indicated its prior rulings on 6 motions in limine and concerning the admission of evidence from the first trial would stand unless the parties asked for reconsideration. 7 Defendant’s motions in limine from the first trial did not include a request for an accident instruction. Moreover, at the jury instruction 8 conference during the second trial, defense counsel had every opportunity to ask for an accident instruction if she felt the evidence 9 warranted it. She did not do so. 10 Finally, and in any case, defendant fails to show he was entitled to an 11 accident instruction. Defendant suggests that such an instruction was required because a combination of prosecution and defense evidence 12 tended to show that he “did not brandish the knife. He merely held it down by his side. Then Hale stumbled and accidently fell on the 13 knife.” As already discussed, there was no evidence supporting the 14 theory that Hale was accidentally stabbed as defendant was merely brandishing a knife. Similarly, there was no evidence that defendant 15 merely held a knife that the victim fell onto.

16 In sum, we reject defendant’s claims of instructional error concerning the defense of accident. 17 Dunn, 2021 WL 973386, at *5-6 (footnote omitted). 18 The California Court of Appeal found that the trial court did not commit any error in 19 instructing the jury on the defense of accident because the trial court never issued an instruction 20 regarding the defense of accident. The appellate court’s holding that the trial court’s statement to 21 the jury was not a jury instruction was not an unreasonable determination of the facts. Nor is Mr. 22 Dunn entitled to relief for his argument that the trial court had a sua sponte duty to issue the 23 instruction or was required to issue it due to Mr. Dunn requesting the instruction at the first trial. 24 The California Court of Appeal reasonably found that the trial court had no duty to issue the 25 instruction when it was neither requested by counsel nor supported by the evidence and that Mr. 26 Dunn never requested the instruction at the first trial. 27 1 Even if there was an error, any error of state law does not warrant federal habeas relief. See 2 Estelle, 502 U.S. at 71–72. To the extent that the trial court’s statement could be construed as a 3 jury instruction, Mr. Dunn has not shown that the erroneous instruction by itself so infected the 4 entire trial that the resulting conviction violates due process. A review of the record supports the 5 California Court of Appeal’s finding that there was insufficient evidence to support the theory that 6 the victim accidentally fell on the knife. 7 Nor is Mr. Dunn entitled to habeas relief to the extent he argues that the trial court had a 8 duty to sua sponte issue the instruction. The California Court of Appeal found that there was little 9 evidence to support the theory that the victim accidentally fell on the knife. Similar to the claim 10 above, due process does not require that an instruction be given unless the evidence supports it. 11 See Hopper, 456 U.S. at 611; Menendez, 422 F.3d at 1029. The state court’s denial of this claim 12 was not unreasonable; therefore, the claim is denied. 13 III. Prior Bad Acts 14 Mr. Dunn next contends that the admission of his prior bad acts of robbery and criminal 15 threats violated his constitutional due process rights. Respondent argues that this claim is 16 unexhausted, procedurally defaulted, and fails on the merits. 17 Legal Standard 18 A federal habeas petitioner may not challenge an evidentiary ruling on the grounds that it 19 violated the state’s evidence code. Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991). 20 Rather, an evidentiary ruling may be challenged only if it rendered the trial so fundamentally 21 unfair as to violate due process. Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). “A 22 habeas petitioner bears a heavy burden in showing a due process violation based on an evidentiary 23 decision.” Williams v. Stewart, 441 F.3d 1030, 1040 (9th Cir. 2006) (quoting Boyde v. Brown, 404 24 F.3d 1159, 1172 (9th Cir. 2005)). “The Supreme Court has made very few rulings regarding the 25 admission of evidence as a violation of due process” and “has not yet made a clear ruling that 26 admission of irrelevant or overtly prejudicial evidence constitutes a due process violation 27 sufficient to warrant issuance of the writ.” Holley, 568 F.3d at 1101. Only if there are no 1 process. See Jammal, 926 F.2d at 920. 2 Discussion 3 The California Court of Appeal summarized the factual background and denied this claim:

4 During trial, the court permitted the prosecution to introduce evidence 5 of prior acts under Evidence Code section 1101(b) to prove that defendant, despite his cognitive and mental health issues, could and 6 did engage in goal-oriented behavior and form the intent necessary for murder. That evidence was [as] follows. 7 First, in February 2016, defendant attacked a man, Dorotheo S., in 8 front of a liquor store next to Kennedy Park and took his bicycle. 9 Dorotheo S. testified defendant took him by surprise, pushing him off of his bicycle which fell on top of him, then hit him repeatedly even 10 as he tried crawling under a car to stop the attack. Defendant also kicked Dorotheo S. after obtaining the bicycle. Later, when Officer 11 Marshal Pagaling and another officer located defendant in the park with the bicycle and called to him, defendant responded, “are you here 12 for the bike,” then walked away. Eventually defendant started running 13 and ignored orders to stop. When Pagaling was about 18 feet from defendant, defendant stopped and turned with his fists clenched, 14 refusing to comply with orders to get on the ground. Pagaling forced him to the ground and handcuffed him. 15 Second, in 2013, a bouncer at a bar, William S., asked defendant to 16 leave the bar after a woman complained defendant was drinking her 17 beverages while she was on the dance floor. After William S. escorted defendant to the door, defendant insulted and cursed at him, and 18 threatened to “kick [his] butt.” In front of the bar, defendant took a swing at William S. and missed, then William S. hit him. Defendant 19 fell to the ground, then went to a garbage can and threw garbage at William S. The incident ended when an officer arrived at the scene. 20 A week later, defendant stood across the street from the bar with his 21 hand behind his back and told William S. he was going to shoot him. William S. took a step toward the defendant, a sort of lunge, but 22 defendant stayed put. At that point, William S. thought that if defendant had a gun he would use it, so William S. “challenged” 23 defendant and went after him. Defendant ran, throwing a rolled-up magazine and a bottle at William S. in the process. William S. 24 testified defendant “didn’t have a gun on him that I saw. Just acted 25 like he appeared to have one.”.

26 . . . .

27 Evidence of the 2016 Robbery charged homicide and the robbery evidence for the latter to be 1 admissible under Evidence Code section 1101(b). He also argues the 2 robbery evidence should have been excluded under Evidence Code section 352. We see no abuse of discretion. 3 As discussed, defendant presented evidence at trial concerning his 4 mental and cognitive disabilities. (See ante, pp. 5–6.) For example, Dr. Couick determined from one test that defendant had limited 5 problem solving skills, which could affect a person’s ability to 6 anticipate consequences. Dr. Couick also determined, based on the Rorschach Ink Blot Test, that defendant had poor reality testing and 7 that when dealing with emotional stimuli, defendant “might misperceive situations and not anticipate consequences” to his 8 actions. Dr. Watson testified that defendant has, among other things, an intellectual disability, frontal lobe dysfunction, and schizophrenia. 9 Hypothetically, Dr. Watson opined, a person with defendant's 10 psychiatric and cognitive disabilities could overreact or react impulsively to a stressful situation. Also, hypothetically, defendant’s 11 psychiatric and cognitive disabilities could and likely would impair a person’s appreciation of the risk of his own actions, and his mental 12 illness could affect someone’s perception of the need to defend themselves. 13

14 During closing argument, defense counsel relied on the mental health evidence to argue that (1) defendant could not or did not act with 15 intent to kill or subjectively appreciate the risks of his actions as required for implied malice; (2) defendant acted rashly in the heat of 16 passion, after being provoked; and (3) he subjectively believed he was in danger and had to defend himself with deadly force, and thus acted 17 in imperfect self-defense. 18 We see no abuse of discretion in the trial court’s admission of the 19 robbery evidence. The evidence that defendant took the bicycle from the victim and that he later avoided the police reasonably supported 20 the inference that defendant was capable both of acting with intention and toward a goal, and of understanding action and consequence. As 21 the evidence was plainly probative on the issue of whether defendant 22 could and did form the mental state necessary for murder, it was admissible under Evidence Code section 1101(b). 23 . . . . 24

25 In sum, the trial court did not err or abuse its discretion in admitting the evidence of the robbery. 26 Evidence of the Incidents involving William S. 27 Defendant contends the trial court erred in admitting the evidence of of criminal threats. Relatedly, he claims the court erred in giving its 1 CALCRIM No. 375 instruction with regard to the evidence that he 2 threatened to shoot William S. He also contends that the incidents were insufficiently similar to the charged murder to be admissible to 3 prove malice under Evidence Code section 1101(b), and that the court should have excluded them under Evidence Code section 352. 4 . . . . 5

6 “Under the Evidence Code, the truth of the prior uncharged act and defendant’s connection to it are preliminary factual issues.” (People 7 v. Garelick (2008) 161 Cal.App.4th 1107, 1115.) “‘[O]rdinarily, determining the relevance of proffered “other act” evidence presents 8 solely a question of law for the court because the defendant does not dispute the fact of the prior act but merely argues its legal 9 inadmissibility.’ [Citation.] But if a defendant claims he did not 10 commit the other acts at issue, this ultimately presents a question of fact ‘which must be resolved by the jury before it can draw any 11 inference regarding defendant’s commission of the charged offense.’” (People v. Lucas (2014) 60 Cal.4th 153, 219.) 12 Here, defense counsel objected to the instruction on the ground that 13 defendant did not commit the crime of making a criminal threat. But 14 by that point, the evidence had already been admitted, and whether defendant committed the prior crime was a question of fact for the 15 jurors to resolve. Accordingly, after instructing on the elements of the crime of making a criminal threat, the trial court properly instructed 16 the jurors to consider the criminal threats evidence only if they determined that the People proved, by a preponderance of the 17 evidence, that defendant in fact committed that offense. 18 . . . . 19 In sum, we reject defendant’s claims that the evidence pertaining to 20 the 2016 robbery and the threats against William S. was improperly admitted. 21 Dunn, 2021 WL 973386, at *6-9 (footnotes omitted). 22 Respondent first argues that this claim is procedurally defaulted and unexhausted. A 23 review of the record reflects that Mr. Dunn’s appeal to the California Court of Appeal did not raise 24 a constitutional due process argument regarding the admission of the prior bad acts. He only 25 presented a state law claim. Respondent also contends that the claim is procedurally defaulted 26 because Mr. Dunn did not properly object at trial to preserve the issue for appeal. 27 1 complex than the merits issues presented by the appeal, so it may well make sense in some 2 instances to proceed to the merits if the result will be the same.” Franklin v. Johnson, 290 F.3d 3 1223, 1232 (9th Cir. 2002) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). The Court 4 may also deny an unexhausted claim on the merits. See 28 U.S.C. § 2254(b)(2); Cassett v. 5 Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (“a federal court may deny an unexhausted petition on 6 the merits only when it is perfectly clear that the applicant does not raise even a colorable federal 7 claim”). The Court will not address the exhaustion or procedural default argument and instead 8 review the merits of the claim. Because the claim was not properly exhausted, the Court will 9 review it de novo. See Taylor v. Beard, 811 F.3d 326, 331 n.3 (9th Cir. 2016) (conducting de novo 10 review where state courts rejected claim on procedural grounds and did not consider merits). 11 To the extent Mr. Dunn argues that the state court erred in its analysis of state law, he is 12 not entitled to federal habeas relief. Whether the evidence was properly admitted under the state 13 evidentiary rules, is purely a question of state law. See Estelle, 502 U.S. at 67–68 (explaining that 14 “it is not the province of a federal habeas court to reexamine state-court determinations on state- 15 law questions”). 16 Nor has he met his heavy burden in showing that the admission of the prior bad acts 17 rendered the trial fundamentally unfair. Here, because there were permissible inferences which 18 could be drawn from the evidence, it cannot be said that the admission of the prior bad acts 19 rendered the trial so “fundamentally unfair” as to violate due process. See Jammal, 926 F.2d at 20 920. The prior bad acts were relevant to demonstrate Mr. Dunn’s intent to stab the victim and 21 respond to Mr. Dunn’s mental health experts who testified that he had disabilities that could have 22 caused him to misunderstand situations and not anticipate consequences to his actions. As the 23 California Court of Appeal found, the prior bad acts demonstrated that Mr. Dunn was capable of 24 acting with the intent to achieve a goal and that he understood actions and consequences. Dunn, 25 2021 WL 973386, at *8. A review of the records demonstrates that there were permissible 26 inferences from this evidence and that its admission did not render the trial so unfair that it 27 violated due process. This claim is denied. 1 2 CERTIFICATE OF APPEALABILITY 3 The federal rules governing habeas cases brought by state prisoners require a district court 4 || that issues an order denying a habeas petition to either grant or deny therein a certificate of 5 appealability. See Rules Governing § 2254 Cases, Rule 11(a). 6 A judge may grant a certificate of appealability “only if the applicant has made a 7 || substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and the 8 certificate must indicate which issues satisfy this standard. /d. § 2253(c)(3). “Where a district 9 || court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) 10 || is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find the district 11 court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 USS. 12 || 473, 484 (2000). Here, Mr. Dunn has made no showing warranting a certificate. 13 CONCLUSION 14 For the foregoing reasons, the Court denies Mr. Dunn’s petition for a writ of habeas 3 15 corpus. A Certificate of Appealability is denied. See Rule 11(a) of the Rules Governing Section a 16 2254 Cases. 2 17 IT IS SO ORDERED. Z 18 || Dated: September 4, 2024 Ze 19 Mag lo P. Casey Pit 20 United States District Judge 21 22 23 24 25 26 27 28