1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMIE G. TAPIA, Case No.: 22cv283-LL-NLS

12 Petitioner,

ORDER DENYING FIRST

13 v.

AMENDED PETITION FOR WRIT

14 T. CISNEROS, Warden, OF HABEAS CORPUS AND Respondent. GRANTING A LIMITED 15

CERTIFICATE OF APPEALABILITY

16 17 Presently before the Court is a First Amended Petition for a Writ of Habeas Corpus 18 pursuant to 28 U.S.C. § 2254 by Jamie G. Tapia, a state prisoner proceeding pro se. ECF 19 No. 8. Respondent has filed an Answer and a Notice of Lodgment of the state court record. 20 ECF Nos. 15, 16. Petitioner has not filed a Traverse.1 21 I. BACKGROUND 22 A jury found Petitioner guilty of kidnapping, carjacking, kidnapping during a 23 carjacking, assault with a firearm, corporal injury to a spouse and/or a person with whom 24 he had a dating relationship, carrying a loaded firearm with intent to commit a felony, and 25

26 1 Although this case was referred to United States Magistrate Judge Nita L. Stormes 27 pursuant to 28 U.S.C. § 636(b)(1)(B), the Court has determined that neither a Report and Recommendation nor oral argument are necessary for the disposition of this matter. See 28 1 two counts of making a criminal threat. ECF No. 16-2 at 294-302. The jury also found true 2 allegations Petitioner personally and intentionally used a firearm. Id. He was sentenced to 3 an indeterminate term of seven years to life plus ten years and a determinate term of four 4 years and four months in prison. Id. at 309-10. 5 Petitioner appealed, raising three claims, two of which are presented here. ECF No. 6 16-19. The appellate court granted relief on a claim not raised here and vacated the 7 kidnapping and carjacking convictions as lesser-included offenses of the kidnapping during 8 a carjacking conviction, but denied relief on the merits of the claims brought here, that 9 Petitioner’s federal and state constitutional rights were violated by erroneous jury 10 instructions (claim one) and by prosecutorial misconduct and ineffective assistance of trial 11 counsel (claim two). ECF No. 16-22. A petition for review to the California Supreme Court 12 raising those claims was summarily denied. ECF Nos. 16-23; 16-24. 13 Respondent answers that federal habeas relief is unavailable because claim one is 14 not cognizable, claim two is procedurally defaulted, the state court adjudication of both 15 claims is objectively reasonable, and any errors are harmless. ECF No. 15. 16 II. TRIAL PROCEEDINGS 17 The following statement of facts is taken from the appellate court opinion on direct 18 appeal. The Court defers to state court findings of fact and presumes they are correct. 19 Sumner v. Mata, 449 U.S. 539, 545-47 (1981). 20 Tapia met I.A. in April 2018. [Footnote: Out of respect for her privacy, we refer to Tapia’s victim by the initials used by the Attorney General on 21 appeal.] After several months of friendship, the relationship became romantic. 22 The budding romance was immediately unstable, fraught with arguments, and later, violence. Tapia was jealous and repeatedly accused I.A. of cheating on 23 him and being promiscuous. Despite the verbal and physical abuse, I.A. 24 remained in the relationship because she wanted to help Tapia overcome his substance abuse. 25

26 Tapia owned two guns, a revolver and a gun I.A. described as an “Uzi.” On multiple occasions, Tapia would point the guns at I.A. or threaten to shoot 27 her. He would also hit and choke her. He twice slashed the tires on her car 28 with a knife. 1 In a particularly violent incident in early November 2018, Tapia accused I.A. of cheating on him and began to pull her hair and punch her in 2 the face. He put his “Uzi” against her stomach and pushed his revolver into 3 her mouth. He then took the revolver out of her mouth, spun the revolver’s cylinder, put the gun to her head, and pulled the trigger. Tapia continued to 4 play his game of Russian roulette with I.A. by alternately holding the gun to 5 his head and I.A.’s head. I.A. eventually escaped from the house barefoot and vowed to leave the relationship. 6

7 But Tapia continued to harass I.A. by sending her threatening text messages and stalking her. He called her a “disgusting whore” and threatened 8 that he was “going to tear (her) to pieces.” One morning, Tapia broke down 9 I.A.’s door and searched her house while pointing his revolver at her head. He told her that if he ever found a man there, he would shoot that man and her. 10 On another occasion, Tapia told I.A., “you will remember me when I fucking 11 shoot you.”

12 In subsequent days, I.A. allowed Tapia to borrow her car to go to a job 13 interview. When I.A. went to retrieve the car, Tapia was angry. He forcibly pushed I.A. and verbally abused her. I.A. left and drove home, to the mobile 14 home park where she was living with her younger brother. Tapia repeatedly 15 called I.A.; when she eventually answered, he told her that he was coming to her home to “make a scene where you live.” 16

17 I.A. feared Tapia may hurt her brother, so she left her home and drove to the entrance of the mobile home park to meet Tapia. When Tapia arrived, 18 he ran at her “mad” and started to punch her. Tapia pushed I.A. into the 19 passenger seat, sat in the driver’s seat, and began hitting her in the face and leg with his revolver. Tapia ordered I.A. to start the car and he began to drive 20 away, ignoring her pleas to get out. 21 Tapia warned I.A. that if she tried to escape, he would crash the car and 22 kill them both. As Tapia drove toward his house, I.A. heard a “big loud thing” 23 and Tapia yelled that he shot himself. Tapia’s leg began to bleed profusely and I.A. asked, “Can I call the ambulance for you?” Tapia pulled over and 24 allowed her to call 911. I.A. exited the car to call 911 and Tapia told her to 25 throw the gun into the bushes. As I.A. called 911, Tapia drove away toward his house, leaving her behind. 26

27 Tapia arrived at his house and fell onto the street, where a neighbor rushed over to help and called 911. Tapia told a responding officer that he was 28 1 driving with a gun on his lap and accidently shot himself. Meanwhile, I.A. walked to Tapia’s house and, when she arrived, told the officers about the 2 abuse she suffered and requested an emergency protective order. Later, I.A. 3 helped officers search for the gun, but they failed to locate it. I.A. returned the next day and found the gun. Officers took custody of the gun. It had three 4 unexpended rounds and one expended round. 5 6 ECF No. 16-22, People v. Tapia, D077113, slip op. at 3-5 (Cal. Ct. App. Mar. 1, 2021). 7 III. PETITIONER’S CLAIMS 8 (1) Because the evidence at trial established Petitioner accidentally fired his gun, the 9 failure of the trial court to modify a pattern jury instruction on the firearm use allegation 10 and to give a pinpoint instruction on accident violated his state and federal constitutional 11 rights to due process and trial by jury. ECF No. 8 at 6-11. 12 (2) The prosecutor committed misconduct by repeatedly referring to Petitioner as a 13 “monster” during closing argument and appealing to the jurors’ emotions by asking them 14 to place themselves in the victim’s position, and defense counsel was ineffective for failing 15 to object, in violation of his Fifth, Sixth and Fourteenth Amendment rights to a fair trial, 16 adequate representation and due process. Id. at 12-16. 17 IV. DISCUSSION 18 A. Claim One 19 Petitioner’s jury was instructed that within the meaning of the firearm use allegation, 20 “[s]omeone uses a firearm if he or she intentionally does any of the following: (1), displays 21 the weapon in a menacing manner; or (2), hits someone with the firearm; or (3) fires the 22 weapon.” Reporter’s Transcript (“RT”) at 1447; Lodgment No. 16-12. Petitioner argues 23 here, as he did in state court, that because evidence at trial established he accidentally rather 24 than intentionally fired the gun, the failure of the trial court to grant his request to modify 25 that instruction to remove the third option of finding the enhancement true based merely 26 on a finding that he “fire[d] the weapon,” or to instruct the jury that a defendant is not 27 guilty of a crime if he acted “without the intent required for that crime, but acted instead 28 accidentally,” violated his state and federal constitutional rights to due process and trial by 1 jury because it allowed the jury to find the enhancement true based on an accidental firing 2 of the weapon rather than an intentional discharge, and thereby relieved the prosecution of 3 its burden of proving beyond a reasonable doubt he intentionally fire the weapon. ECF No. 4 8 at 6-11. Respondent answers that: (1) the component of claim one which relies on an 5 error of state law is not cognizable on federal habeas because the alleged error did not 6 render the trial fundamentally unfair as necessary to constitute a federal constitutional 7 violation, and (2) even assuming a federal constitutional violation occurred habeas relief is 8 not warranted because the state court’s denial of the claim is neither contrary to, nor an 9 unreasonable application of, clearly established federal law, nor based on an unreasonable 10 determination of the facts, and the error is harmless. ECF No. 15-1 at 12-15. 11 In order to obtain federal habeas relief with respect to a claim which was adjudicated 12 on the merits in state court, a federal habeas petitioner must first demonstrate that the state 13 court adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved 14 an unreasonable application of, clearly established Federal law, as determined by the 15 Supreme Court of the United States; or (2) resulted in a decision that was based on an 16 unreasonable determination of the facts in light of the evidence presented in the State court 17 proceeding.” 28 U.S.C. § 2254(d). If Petitioner can satisfy either provision, or they do not 18 apply, a de novo review is required to determine whether a federal constitutional violation 19 has been established. Hardy v. Chappell, 849 F.3d 803, 820 (9th Cir. 2016); see also Fry 20 v. Pliler, 551 U.S. 112, 119-22 (2007) (holding that § 2254(d) “sets forth a precondition to 21 the grant of habeas relief . . . , not an entitlement to it.”). Even then, a federal habeas 22 petitioner is ordinarily not entitled to relief if the constitutional error is harmless. See Brecht 23 v. Abrahamson, 507 U.S. 619, 637 (1993) (holding that a federal constitutional error in a 24 state criminal trial is harmless unless it had a substantial and injurious effect or influence 25 in determining the jury’s verdict.). 26 A state court’s decision may be “contrary to” clearly established Supreme Court 27 precedent (1) “if the state court applies a rule that contradicts the governing law set forth 28 in [the Court’s] cases” or (2) “if the state court confronts a set of facts that are materially 1 indistinguishable from a decision of [the] Court and nevertheless arrives at a result different 2 from [the Court’s] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state 3 court decision may involve an “unreasonable application” of clearly established federal 4 law, “if the state court identifies the correct governing legal rule from this Court’s cases 5 but unreasonably applies it to the facts of the particular state prisoner’s case,” or 6 “unreasonably extends a legal principle from our precedent to a new context where it 7 should not apply or unreasonably refuses to extend that principle to a new context where it 8 should apply.” Id. at 407. Under § 2254(d)(2), “a decision adjudicated on the merits in a 9 state court and based on a factual determination will not be overturned on factual grounds 10 unless objectively unreasonable in light of the evidence presented in the state-court 11 proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). “If this standard is difficult 12 to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short 13 of imposing a complete bar on federal-court relitigation of claims already rejected in state 14 proceedings. It preserves authority to issue the writ in cases where there is no possibility 15 fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme] 16 Court’s precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). 17 The Court applies the provisions of 28 U.S.C. § 2254(d) to the last reasoned state 18 court decision. Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). In this case that 19 is the appellate court opinion on direct appeal, which stated: 20 Tapia contends the trial court failed to properly instruct the jury regarding the firearm use allegations under section 12022.5, subdivision (a) 21 and section 12022.53, subdivision (b). Tapia argues the evidence established 22 he accidentally, rather than intentionally, fired the gun and, thus, the trial court should have (1) modified the pattern instruction to remove the option of 23 finding the enhancement true based on the discharge of a firearm and (2) 24 granted his request for a pinpoint instruction on accident. We disagree.

25

A. CALCRIM No. 3146

26 Both sections 12022.5, subdivision (a), and 12022.53, subdivision (b), 27 apply when a person “personally uses a firearm” in the commission of a 28 felony. The trial court instructed the jury on both allegations with CALCRIM 1 No. 3146. The pattern instruction explains that “(s)omeone personally uses a firearm if he or she intentionally does any of the following: (¶) 1. Displays the 2 weapon in a menacing manner; (¶) 2. Hits someone with the weapon; OR (¶) 3 3. Fires the weapon.” (CALCRIM No. 3146.) (Second italics added.)

4 Defense counsel asked the trial court to remove the third possibility of 5 “fires the weapon” from the instruction because “(t)he evidence appears to be that when the defendant discharged the firearm he either did it accidentally or 6 he was trying to kill himself.” Defense counsel argued CALCRIM No. 3146, 7 unmodified, “allows the mere firing of a weapon, period, to be sufficient evidence.” (Italics added.) The prosecutor responded he would not be asking 8 the jury to find the allegations true based on the theory that Tapia intentionally 9 fired the weapon, but objected to removing that option because the prosecution’s focus on other circumstances to establish the allegations “does 10 not take away the possibility that the jury could believe that the discharge . . . 11 was intentional and not an accident.” The court denied the request to modify CALCRIM No. 3146. 12

13 “‘In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the 14 instruction given conveys. The test is whether there is a reasonable likelihood 15 that the jury understood the instruction in a manner that violated the defendant’s rights.’ (Citation.) We determine the correctness of the jury 16 instructions from the entire charge of the court, not from considering only 17 parts of an instruction or one particular instruction.” (People v. Smith (2008) 168 Cal.App.4th 7, 13.) 18

19 “It is error to instruct a jury on a theory of guilt without evidentiary support, but the trial court must instruct the jury on every theory that is 20 supported by substantial evidence. (Citations.) Substantial evidence is 21 evidence that would allow a reasonable jury to find the existence of the facts underlying the instruction, and to find the defendant guilty beyond a 22 reasonable doubt based on the theory of guilt set forth in the instruction. 23 (Citations.) In making this determination, we view the evidence most favorably to the judgment presuming the existence of every fact that 24 reasonably may be deduced from the record in support of the judgment. There 25 is no instructional error when the record contains substantial evidence in support of a guilty verdict on the basis of the challenged theory.” (People v. 26 Jantz (2006) 137 Cal.App.4th 1283, 1290.) “‘Errors in jury instructions are 27 questions of law, which we review de novo.’” (People v. Fenderson (2010) 188 Cal.App.4th 625, 642.) 28 1 Tapia makes two related, yet distinct, claims regarding the trial court’s alleged error in declining to modify CALCRIM No. 3146. First, he argues the 2 instruction “misled the jury by failing to explain that the element of intending 3 to discharge meant intentionally pulling the trigger in order to discharge or fire the weapon.” We do not agree. By its plain language, the instruction 4 required the jury to find Tapia “intentionally . . . (f)ire(d) the (weapon),” not 5 a “mere firing of a weapon.” (Italics added.) Moreover, the jury was instructed with CALCRIM No. 252 that to find the firearm use allegations true, Tapia 6 “must not only commit the prohibited act, but must do so with wrongful 7 intent.” CALCRIM No. 252 further explained that Tapia “acts with wrongful intent when he . . . intentionally does a prohibited act.” (Italics added.) 8

9 When considering the instructions given as a whole, we assume that jurors are “‘“‘intelligent persons and capable of understanding and correlating 10 all jury instructions which are given.’ (Citation.)”’ (Citations.)” (People v. 11 Guerra (2006) 37 Cal.4th 1067, 1148.) Here, the instructions adequately instructed the jury that it could find the firearm enhancement true only if (as 12 an alternative to the other manners of personal use of a firearm not at issue 13 here) it concluded that Tapia fired his weapon and did so intentionally. We conclude the jury was not misled. 14

15 Second, Tapia argues the instruction should have been modified because “(t)here was no evidence Tapia intentionally tried to shoot the victim 16 or himself, but shot himself instead.” The evidence at trial, however, suggests 17 otherwise. I.A. testified that after Tapia shot himself in the leg, “he wanted to shot (sic) himself again in the head.” In her 911 call, which was introduced at 18 trial, I.A. told the dispatcher that Tapia “wanted to shoot himself.” (Italics 19 added.) At trial, I.A. repeatedly confirmed that she made this statement. Additionally, an expert testified the gun is a single action revolver, which 20 requires a person to manually cock the hammer in order to fire the weapon. If 21 the trigger was accidently pulled, the gun would not fire unless the person first cocked the hammer. This expert opinion evidence supports an inference that 22 Tapia’s firing of the weapon was not the result of an accidental slip of the 23 finger. Although the jury could reasonably find that Tapia accidentally fired the gun, it could also find that he intended to fire the gun. 24

25 While not a major theory at trial, there was sufficient evidence to support the conclusion that Tapia intentionally fired the gun. Defense counsel 26 conceded this fact at trial, noting “the evidence appears to be that when the 27 defendant discharged the firearm he either did it accidentally or he was trying to kill himself.” (Italics added.) [Footnote: Tapia does not explain how “trying 28 1 to kill himself” would not be an intentional act.] The trial court correctly declined to modify CALCRIM No. 3146. 2

3 B. CALCRIM No. 3404

4 Tapia further contends the trial court erred when it denied his request 5 to instruct the jury on accident. CALCRIM No. 3404 explains that a defendant is not guilty of a charged crime if he acted “without the intent required for that 6 crime, but acted instead accidentally.” The instruction is derived from the 7 statutory defense in Penal Code section 26, that all persons are capable of committing crimes except, among other classes of persons, those “who 8 committed the act or made the omission charged through misfortune or by 9 accident, when it appears that there was no evil design, intention, or culpable negligence.” The California Supreme Court has noted the defenses codified at 10 section 26 “‘have historical significance, (but) are now unnecessary 11 restatements, in a defense format, of the requirements of the definitional elements of an offense.’” (People v. Anderson (2011) 51 Cal.4th 989, 997 12 (Anderson).) 13 In other words, accident is not an affirmative defense; it is a theory that 14 attempts to negate the element of criminal intent. (People v. Gonzalez (2018) 15 5 Cal.5th 186, 199, fn. 3.) Thus, “(a) trial court’s responsibility to instruct on accident . . . generally extends no further than the obligation to provide, upon 16 request, a pinpoint instruction relating the evidence to the mental element 17 required for the charged crime.” (Anderson, supra, 51 Cal.4th at p. 997.) However, “‘a trial court need not give a pinpoint instruction if it is 18 argumentative (citation), merely duplicates other instructions (citation), or is 19 not supported by substantial evidence (citation).’” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99.) 20

21 We conclude the trial court did not err in declining to give CALCRIM No. 3404 because the instruction merely duplicates the other jury instructions 22 that were properly given on the factual question posed. As we have already 23 explained, CALCRIM No. 3146 and CALCRIM No. 252 adequately instructed the jury that it could find the firearm enhancement true on the basis 24 of a discharge only if it concluded that Tapia fired his weapon and did so 25 intentionally.

26 For these same reasons, Tapia’s claim that the alleged error violated his 27 state and federal constitutional rights lacks merit. “Under established law, instructional error relieving the prosecution of the burden of proving beyond 28 1 a reasonable doubt each element of the charged offense violates the defendant’s rights under both the United States and California Constitutions.” 2 (People v. Flood (1998) 18 Cal.4th 470, 479-480.) Because CALCRIM No. 3 3404 was entirely duplicative of the other jury instructions, its absence did not deprive the jury of instructions on every essential element of the firearm 4 enhancement or otherwise lessen the prosecution’s burden at trial. 5 Thus, even if we assume that the trial court erred in denying the 6 requested pinpoint instruction, we review a trial court’s decision to not give a 7 requested pinpoint instruction under the standard of prejudice set forth in People v. Watson (1956) 46 Cal.2d 818. Tapia must show that it is “reasonably 8 probable that had the jury been given defendant’s proposed pinpoint 9 instruction, it would have come to a ( ) different conclusion in this case.” (People v. Earp (1999) 20 Cal.4th 826, 887; see also People v. Larsen (2012) 10 205 Cal.App.4th 810, 830-831.) Tapia has failed to make that showing. As we 11 have already explained, the jury was properly instructed on the requirement that the prosecution prove Tapia personally and intentionally fired the firearm. 12

13 Moreover, the theory that Tapia intentionally fired the firearm was not a central theory at trial such that any instructional error on that factual question 14 likely had no effect on the jury’s deliberations. Instead, during closing 15 argument, the prosecution focused on the alternative manners for establishing Tapia’s personal use of a firearm, based on evidence that Tapia intentionally 16 displayed the firearm in a menacing manner and repeatedly hit I.A. with the 17 firearm. I.A.’s testimony, when considered along with other evidence of Tapia’s guilt, established beyond a reasonable doubt that Tapia personally 18 used a firearm in those manners. Considering the record as a whole, we 19 conclude the effect of CALCRIM No. 3404 on the jury’s deliberations would have been insignificant such that it is not reasonably probable the jury would 20 have reached a different result if it had been instructed differently. Tapia 21 suffered no prejudice by the trial court’s refusal to give a duplicative pinpoint instruction. 22

23 ECF No. 16-22, People v. Tapia, D077113, slip op. at 5-11. 24 Respondent correctly observes that federal habeas corpus relief does not lie for errors 25 of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“We have stated many 26 times that ‘federal habeas corpus does not lie for errors of state law.’ . . . [And] that it is 27 not the province of a federal habeas court to reexamine state-court determinations on state- 28 law questions. In conducting habeas review, a federal court is limited to deciding whether 1 a conviction violated the Constitution, laws, or treaties of the United States.”) (citation 2 omitted). However, a claim of instructional error in a state criminal trial may raise to the 3 level of a cognizable federal habeas claim if the “ailing instruction by itself so infected the 4 entire trial that the resulting conviction violates due process,” or where “there is a 5 reasonable likelihood that the jury has applied the challenged instruction in a way that 6 violates the Constitution.” Id. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973); 7 Boyde v. California, 494 U.S. 370, 380 (1990)). 8 Because Petitioner’s federal constitutional claim was adjudicated on the merits in 9 state court, as a precondition to obtaining federal habeas relief he must show that the state 10 court adjudication: “(1) resulted in a decision that was contrary to, or involved an 11 unreasonable application of, clearly established Federal law, as determined by the Supreme 12 Court of the United States; or (2) resulted in a decision that was based on an unreasonable 13 determination of the facts in light of the evidence presented in the State court proceeding.” 14 28 U.S.C. § 2254(d). Clearly established federal law “refers to the holdings, as opposed to 15 the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court 16 decision.” Lockyer v. Andrade, 538 U.S. 63, 71 (2003). 17 Respondent argues that there is no clearly established federal law finding that a state 18 court’s refusal to modify a pattern jury instruction or give a duplicative pinpoint instruction 19 violated federal due process or the right to a jury trial as claimed by Petitioner. ECF No. 20 15-1 at 13, citing Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (holding that clearly 21 established law refers to those holdings that “squarely address[]” the issue presented.); see 22 also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (“[T]his Court has held on 23 numerous occasions that it is not an unreasonable application of clearly established Federal 24 law for a state court to decline to apply a specific legal rule that has not been squarely 25 established by this Court.”) (quotation omitted). 26 The Supreme Court, in addressing what constitutes clearly established federal law 27 in the context of review of a grant of habeas relief by a district court which found “ample 28 1 evidence that the jury was confused about what elements had to be established in order for 2 [petitioner] to be found guilty” beyond a reasonable doubt, stated: 3 Our habeas precedent places an “especially heavy” burden on a defendant who, like [petitioner], seeks to show constitutional error from a jury 4 instruction that quotes a state statute. Henderson v. Kibbe, 431 U.S. 145, 155 5 (1977). Even if there is some “ambiguity, inconsistency, or deficiency” in the instruction, such an error does not necessarily constitute a due process 6 violation. Middleton [v. McNeil, 541 U.S. 436, 437 (2004)]. Rather, the 7 defendant must show both that the instruction was ambiguous and that there was “‘a reasonable likelihood’” that the jury applied the instruction in a way 8 that relieved the State of its burden of proving every element of the crime 9 beyond a reasonable doubt. Estelle, supra, at 72 (quoting Boyde v. California, 494 U.S. 370, 380 (1990)). In making this determination, the jury instruction 10 “‘may not be judged in artificial isolation,’ but must be considered in the 11 context of the instructions as a whole and the trial record.” Estelle, supra, at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). Because it is not 12 enough that there is some “slight possibility” that the jury misapplied the 13 instruction, Weeks v. Angelone, 528 U.S. 225, 236 (2000), the pertinent question “is ‘whether the ailing instruction by itself so infected the entire trial 14 that the resulting conviction violates due process.’” Estelle, supra, at 72 15 (quoting Cupp, supra, at 147). 16 Waddington v. Sarausad, 555 U.S. 179, 190-91 (2009). 17 Here, the state appellate court found the refusal to give the requested accident 18 instruction or modify the pattern instruction did not rise to the level of a state or federal 19 constitutional error because the accident instruction was “entirely duplicative of the other 20 jury instructions” which, like the pattern instruction, accurately informed the jury they 21 could only find the firearm use allegation true if the prosecution proved beyond a 22 reasonable doubt that Petitioner fired his weapon intentionally. ECF No. 16-22, People v. 23 Tapia, D077113, slip op. at 9-10. Thus, consistent with, Sarausad, the appellate court 24 found Petitioner did not show the instructions were ambiguous or that when considered in 25 the context of the entire trial there was a reasonable likelihood the jury applied them in a 26 way that relieved the prosecution of the burden of proof that he discharged his weapon 27 intentionally. This Court need not determine whether the clearly established federal law 28 identified in Sarausad “squarely addresses” the issue presented here so as to constitute 1 clearly established federal law under 28 U.S.C. § 2254(d). Assuming it does, the state court 2 adjudication is objectively reasonable within the meaning of that law for two reasons. First, 3 as the state court correctly found, the instructions unambiguously informed the jury that 4 the prosecution has the burden of proof beyond a reasonable doubt that Petitioner 5 intentionally fired his weapon. Second, even assuming the instructions were ambiguous on 6 that point, a review of the record shows that the state court reasonably found there is no 7 reasonable likelihood the jury applied their instructions in a way that allowed them to find 8 the firearm use allegation true without requiring the prosecution to satisfy its burden of 9 proof that the discharge was intentional. 10 The jury was instructed that “[s]omeone uses a firearm if he or she intentionally does 11 any of the following: (1), displays the weapon in a menacing manner; or (2), hits someone 12 with the firearm; or (3) fires the weapon. [¶] The People have the burden of proving each 13 allegation beyond a reasonable doubt.” RT at 1447. The prosecutor argued in closing that 14 the firearm use allegation could be proven by the victim’s testimony that she saw the gun 15 when Petitioner hit her with it and Petitioner’s own statement to the police that he shot 16 himself while the gun was laying in his lap. RT at 1486-88. Defense counsel then replied 17 in closing: 18 We can conclude, I believe, that when Mr. Tapia approached her car he certainly did not brandish the firearm. Because if he had done that, why would 19 she let him in the car? I think we can reasonably conclude that. If he was 20 coming at her in the car, and he was brandishing a firearm, no matter what weaknesses or imperfections she might have, I’m pretty sure she would not 21 have invited him into the car. I think that’s the reasonable conclusion. 22 He has guns all the time, apparently. And we have an old revolver that 23 only requires two and a half pounds of trigger pull. It can be fired easily by 24 merely moving the hammer to the rear with no external safety. It is the kind of weapon, if a person is irresponsible, that can easily be discharged 25 accidentally. 26 No matter which version you believe may or may happen, or which 27 version you are trying to believe might have occurred, she did not allege that 28 he pointed the gun at her, stuck the gun at her. One of her stories she does say 1 he struck her with it, that’s true. And then another story she says she never saw it. So the jury has to resolve that in a presumption of innocence case, 2 reasonable doubt. 3 4 RT at 1500. The prosecutor did not address the gun use enhancement in rebuttal. 5 Even assuming there was evidence Petitioner accidently shot himself as argued by 6 defense counsel, there was also evidence from which the jury could draw a reasonable 7 inference he intentionally fired his weapon. This included testimony from a criminalist 8 with the firearm unit of the San Diego Sheriff’s Department that the gun was a single- 9 action revolver designed not to fire unless its hammer was manually cocked first and then 10 the trigger pulled with at least two and a quarter pounds of pressure. RT at 1326-29. 11 Evidence that Petitioner was suicidal allowed the jury to draw a reasonable inference he 12 intentionally fired the gun, including testimony of the victim that: “when we were on 13 freeway 5 he says, ‘If you move, wave your hand, or ask for help I’m going to crash this 14 car into another car we both are going to die’” RT at 970, and that she told the police 15 Petitioner “thought he was dying and he wanted to shot [sic] himself again in the head.” 16 RT at 973. There was testimony from a responding officer that: “Based on what [Petitioner] 17 was telling me it sounded like he wanted to harm himself.” RT at 1173. 18 Thus, because there was evidence from which the jury could reasonably infer 19 Petitioner intentionally fired his weapon, and because the jury was allowed to consider 20 defense counsel’s argument that the evidence showed the discharge was accidental and that 21 the victim gave inconsistent and unreliable testimony as to the other two elements of the 22 firearm use allegation, even assuming the instructions were ambiguous on the third 23 element, there is no “reasonable likelihood” the jury applied their instructions in a way that 24 rendered his trial fundamentally unfair. See Estelle, 502 U.S. at 72 (“[I]n reviewing an 25 ambiguous instruction [which allegedly allowed the jury to find guilt despite a lack of 26 proper evidence], we inquire ‘whether there is a reasonable likelihood that the jury has 27 applied the challenged instruction in a way’ that violates the Constitution.”), quoting 28 Boyde, 494 U.S. at 380 (“We think the proper inquiry in such a case is whether there is a 1 reasonable likelihood that the jury has applied [an ambiguous instruction subject to an 2 erroneous interpretation] in a way that prevents the consideration of constitutionally 3 relevant evidence.”) Petitioner has not carried his burden under the contrary to clause of 4 § 2254(d)(1) by proving that “there is no possibility fairminded jurists could disagree that 5 the state court’s decision conflicts with [the Supreme] Court’s precedents.” Richter, 562 6 U.S. at 102; see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“The petitioner carries 7 the burden of proof.”). Neither has he satisfied the unreasonable application clause of 8 § 2254(d)(1). See Williams, 529 U.S. at 407 (holding that a state court decision may involve 9 an “unreasonable application” of clearly established federal law, “if the state court 10 identifies the correct governing legal rule from this Court’s cases but unreasonably applies 11 it to the facts of the particular state prisoner’s case” or “unreasonably extends a legal 12 principle from our precedent to a new context where it should not apply or unreasonably 13 refuses to extend that principle to a new context where it should apply.”). And because the 14 state court adjudication finds support in the trial record, Petitioner has not shown it 15 involved an objectively unreasonable determination of the facts within the meaning of 16 § 2254(d)(2). Miller-El, 537 U.S. at 340. 17 Respondent also argues that even if § 2254(d) could be satisfied, any federal 18 constitutional error is harmless. State court jury instructional errors are subject to harmless 19 error analysis in federal habeas courts “so long as the error at issue does not categorically 20 vitiat(e) all the jury’s findings.” Hedgpeth v. Pulido, 555 U.S. 57, 60-61 (2008) (internal 21 quotation omitted). Such errors are harmless unless they can be shown to have had a 22 substantial and injurious effect or influence in determining the jury’s verdict. Brecht, 507 23 U.S. at 637. 24 As quoted above, the state appellate court found that no federal constitutional error 25 occurred because the alleged instructional error did not lessen the prosecution’s burden of 26 proof, but even assuming there was an instructional error it was harmless under the standard 27 of People v. Watson, 46 Cal. 2d 818 (1956), because it was not “reasonably probable” the 28 jury would have come to a different conclusion if they had been instructed in the manner 1 requested by the defense. The appellate court found that because the instructions correctly 2 stated that “(s)omeone personally uses a firearm if he or she intentionally does any of the 3 following: (¶) 1. Displays the weapon in a menacing manner; (¶) 2. Hits someone with the 4 weapon; OR (¶) 3. Fires the weapon,” and because the evidence at trial easily established 5 the first two elements beyond a reasonable doubt, any error giving rise to an ambiguity 6 with respect to the third element was harmless because any effect on the jury’s 7 deliberations “would have been insignificant” since whether he “intentionally fired the 8 firearm was not a central theory at trial,” and therefore “it is not reasonably probable the 9 jury would have reached a different result if it had been instructed differently.” ECF No. 10 16-22, People v. Tapia, D077113, slip op. at 10-11. 11 Although the state appellate court found no federal constitutional error, the 12 application of the Watson harmless error standard is an indication it applied harmless error 13 analysis to a hypothetical state law error and not to any possible federal error. See Hall v. 14 Haws, 861 F.3d 977, 989 n.7 (9th Cir. 2017) (“The Watson [reasonable probability] 15 standard is used to review non-constitutional, trial type errors,” while “[i]n contrast, the 16 more stringent [beyond a reasonable doubt] standard, under Chapman v. California, [386 17 U.S. 18 (1967)] is used to review errors of constitutional magnitude.”) As a result, this 18 Court independently applies the Brecht harmless error analysis to determine if any federal 19 constitutional error was harmless. See Fry, 551 U.S. at 117-20 (holding that a federal 20 habeas court applies Brecht where the state court failed to apply Chapman). 21 The evidence at trial easily established beyond a reasonable doubt the first two 22 elements of the firearm use allegation, that Petitioner intentionally displayed his weapon 23 in a menacing manner and intentionally hit the victim with it. That evidence included the 24 victim’s testimony that she did not see the gun when Petitioner approached her car but “he 25 pushed me and moved me inside of the car. And he start [sic] beating me up with his hands 26 and the gun inside.” RT at 954. She testified that he hit her in the face with the gun, [RT at 27 967], and that she “noticed that he was holding a gun” when he hit her in the thigh with it 28 which caused so much pain in her legs she could not sleep for days [RT at 969, 980]. The 1 victim identified at trial photographs taken of her body the next day which she testified 2 showed purple bruises “like Jell-o, like rotten meat” on her leg and hip where Petitioner hit 3 her with the gun, which got worse and lasted six months RT at 989-90), and showed an 4 open cut from being hit by the gun “so hard that he broke my skin though my clothes” 5 which left a mark still visible at the time of trial. RT at 991-92. As previously noted, 6 Petitioner admitted to a responding officer that he was driving with the gun in his lap. In 7 light of that evidence, any instructional ambiguity as to whether the jury was required to 8 find Petitioner accidentally or intentionally discharged his weapon did not have had a 9 substantial and injurious effect or influence in determining a verdict on the firearm use 10 enhancement. Brecht, 507 U.S. at 637. 11 The Court denies habeas relief with respect to claim one because the state court 12 adjudication is objectively reasonable under 28 U.S.C. § 2254(d), and even if that provision 13 could be satisfied any federal constitutional error is harmless. 14 B. Claim Two 15 Petitioner alleges in claim two that (1) the prosecutor committed misconduct during 16 closing argument by repeatedly referring to him as a “monster” and appealing to the jurors’ 17 emotions by asking them to place themselves in the victim’s position, and (2) defense 18 counsel was ineffective for failing to object. ECF No. 8 at 12-16. Respondent answers that 19 the prosecutorial misconduct aspect of the claim is procedurally defaulted by defense 20 counsel’s failure to object, the state court adjudication of that claim is objectively 21 reasonable within the meaning of § 2254(d), any error is harmless, and defense counsel 22 was not ineffective for failing to raise a meritless objection. ECF No. 15-1 at 16-20. 23 The Court applies § 2254(d) to the appellate court opinion, which stated: 24 Tapia faults the prosecutor with committing misconduct during closing argument. He contends that the prosecutor improperly referred to him 25 repeatedly as a “monster” and appealed to the jurors’ emotions by asking the 26 jurors to place themselves in the victim’s position. Considering the totality of the prosecutor’s closing argument and Tapia’s failure to object, we see no 27 error. 28 1 A. Prosecutor’s Closing Argument

2 The prosecutor began his argument by defining a “monster” as 3 “(s)omeone that knows a person’s weaknesses and uses those weaknesses against them, someone that causes harm, knows they’re causing harm, but 4 continues to cause that harm. Someone that’s angry, someone that’s physical. 5 Someone that’s violent. That’s what a monster is.” The prosecutor then applied that definition to Tapia and argued, “The defendant, Jaime Tapia, was 6 (I.A.)’s monster.” (Italics added.) On appeal, Tapia highlights five other times 7 the prosecutor used the word “monster” to describe Tapia.

8 Tapia’s counsel did not object to the prosecutor’s use of the term 9 “monster” in closing argument. “As a general rule, ‘“(a) defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, 10 and on the same ground, the defendant objected to the action and also 11 requested that the jury be admonished to disregard the perceived impropriety.”’” (People v. Centeno (2014) 60 Cal.4th 659, 674 (Centeno).) 12 However, “‘(a) defendant whose counsel did not object at trial to alleged 13 prosecutorial misconduct can argue on appeal that counsel’s inaction violated the defendant’s constitutional right to the effective assistance of counsel.’” 14 (Ibid.) Tapia makes that claim here. “He bears the burden of showing by a 15 preponderance of the evidence that (1) counsel’s performance was deficient because it fell below an objective standard of reasonableness under prevailing 16 professional norms, and (2) counsel’s deficiencies resulted in prejudice.” 17 (Ibid.)

18 Tapia fails to demonstrate any deficient performance by his counsel for 19 failing to object because the record does not disclose any misconduct warranting an objection. Although he cites several decisions in which a court 20 expresses disapproval of epithets or name-calling, each of those decisions 21 notes that the prosecutor’s conduct did not rise to the level of prejudicial misconduct. (See, e.g., Darden v. Wainwright (1986) 477 U.S. 168, 179 22 (prosecutor’s closing argument “deserves the condemnation it has received” 23 but did not deprive defendant of a fair trial); People v. McDermott (2002) 28 Cal.4th 946, 1002 (noting that the Supreme Court does not “condone the use 24 of opprobrious terms in argument, but such epithets are not necessarily 25 misconduct when they are reasonably warranted by the evidence”).)

26 Instead of liberally finding prosecutorial misconduct on the basis of 27 colorful or strong language in closing argument, the California Supreme Court has routinely held that prosecutors may permissibly use a “‘wide range of 28 1 descriptive comment and the use of epithets which are reasonably warranted by the evidence.’” (People v. Farnam (2002) 28 Cal.4th 107, 168 (Farnam); 2 People v. Harrison (2005) 35 Cal.4th 208, 245-246 (multiple uses of epithets 3 and referring to defendant as “evil” was within the permissible scope of closing argument).) In light of the evidence of Tapia’s violent conduct 4 targeted at I.A., the prosecutor’s use of the term “monster” to describe Tapia 5 fell within the permissible scope of closing argument.

6 In asserting otherwise, Tapia relies on a recent decision of this court, 7 People v. Arredondo (2018) 21 Cal.App.5th 493 (Arredondo), in which we held that the prosecutor’s misconduct during closing argument warranted 8 reversal of the defendants’ convictions. In Arredondo, the prosecutor 9 repeatedly referred to the defendants as “cockroaches,” which Tapia likens to the prosecutor’s use of the term “monster” in this proceeding. (Id. at pp. 502- 10 503.) Arredondo is entirely distinguishable. 11 First, we carefully noted in Arredondo that the “problem with the 12 prosecutor’s use of the cockroach epithet . . . is not that it plainly denigrated 13 and dehumanized defendants.” (Arredondo, supra, 21 Cal.App.5th at p. 504.) Instead, we held that the prosecutor committed misconduct by referring to the 14 defendants and other “cockroaches” like them as a “disgusting group which 15 poses an ongoing threat to the entire community” rather than individuals to be judged on their own actions. (Ibid.) It was this notion of guilt by association 16 that we held was improper, not the use of the dehumanizing epithet. (Ibid.) 17 Second, we held the misconduct was harmless in most respects and prejudicial only when applied to the allegation that the defendants committed murder for 18 the benefit of a street gang given the prosecutor’s improper theme of collective 19 guilt. (Id. at p. 506.) Collective guilt is not at issue in this case. Accordingly, our holding in Arredondo has no bearing on the issues raised in this appeal. 20

21 We conclude from our review of the record that the prosecutor’s use of the term “monster” to describe Tapia was within the permissible scope of 22 closing argument. Moreover, even if we assume the argument was improper 23 and Tapia’s counsel was ineffective for failing to object, we cannot conclude that if defense counsel had objected, it is reasonably probable the jury would 24 have reached a more favorable verdict. The evidence of Tapia’s guilt was 25 overwhelming. It is not likely that the jury reached its verdict due to inflamed passion or prejudice based on the prosecutor’s references to Tapia as a 26 “monster.” 27 28 / / / 1 B. Prosecutor’s Rebuttal Argument

2 Tapia also asserts the prosecutor erred in his rebuttal argument when he 3 responded to an argument of defense counsel by asking the jury to place themselves in the position of I.A. when deliberating. During his closing 4 argument, Tapia’s counsel asked the jury to consider if they would like being 5 “dragged into a court of law with a flag and a judge and a prosecutor and spectators and a jury, and how would you like it if you were alleged to have 6 done wrong, and they’re making the case against you with (I.A.)?” 7 In response, the prosecutor asked the jury to apply “that same line of 8 analysis” when considering I.A.’s credibility. The prosecutor asked the jury: 9 “How would you feel if someone dragged you into court and they asked you -- let’s just say it’s a sexual assault case and they asked you to describe the 10 last time you had sex with your partner. Or, like (I.A.), you’re put on the stand 11 and you’re asked can you tell us about that time that he shoved a gun in your mouth . . . . How would you feel if you had to do that? (¶) If you think (I.A.)’s 12 a liar, she sure had some interesting stories and made up a lot of stuff for you 13 to believe.” Tapia argues this statement improperly appealed to the jurors’ emotions by asking them to stand in I.A.’s place when deliberating. [Footnote: 14 Tapia’s counsel did not object to this line of argument at trial and the issue is 15 therefore forfeited. On appeal, however, Tapia asks this court to consider whether his trial counsel was ineffective for failing to object. We consider the 16 claim in that context.] 17 A prosecutor’s “appeal to the jury to view the crime through the eyes 18 of the victim is misconduct . . . .” (People v. Stansbury (1993) 4 Cal.4th 1017, 19 1057.) “‘(I)t is generally improper to ask jurors to step into the victim’s shoes and imagine his or her suffering.’” (Farnam, supra, 28 Cal.4th at p. 168.) 20 However, “(t)here are situations in which the prosecutor has been allowed to 21 make comments in rebuttal that would otherwise be improper, when such comments are fairly responsive to the argument of defense counsel.” (People 22 v. Sandoval (1992) 4 Cal.4th 155, 193.) Here, the prosecutor’s rebuttal 23 argument was in direct response to defense counsel’s argument. By asking the jury to step into Tapia’s shoes, defense counsel invited the rebuttal argument 24 from the prosecution to, likewise, consider I.A.’s circumstances. 25 The prosecutor’s argument, however, was distinct from arguments that 26 have been found to be an improper appeal to the jury’s emotions. We find the 27 Supreme Court’s decision in People v. Lopez (2008) 42 Cal.4th 960 (Lopez) particularly instructive. In Lopez, the defendant was a Catholic priest charged 28 1 with committing a range of sexual offenses on several teenage boys, who testified at trial regarding the defendant’s actions. (Id. at pp. 963-965.) During 2 closing argument, the prosecutor told the jury she expected defense counsel 3 to argue the victims were not credible because they could not remember certain details during their trial testimony. (Id. at p. 968.) To defend their 4 credibility, the prosecutor asked the jurors to “‘(p)ut yourself in that 5 situation’” and consider whether they would remember precise details four years later. (Id. at pp. 968-969.) Regarding another witness, the prosecutor 6 asked the jurors to consider whether the witness’s description of a room was 7 credible by imagining a hypothetical in which they visited a bedroom and had to describe it later. (Id. at p. 969.) 8

9 The Court of Appeal in Lopez concluded the prosecutor committed misconduct in the closing argument by “‘asking the jurors to stand in the shoes 10 of the victim witnesses.’” (Lopez, supra, 42 Cal.4th at p. 969.) The Supreme 11 Court, however, disagreed and reversed the appellate court. Although it recognized the general rule that a prosecutor may not invite the jury to view 12 the case through the victim’s eyes, the Supreme Court reasoned that the 13 prosecutor’s closing argument did not ask the jury to do so. “Rather, she gave two hypotheticals in which the victims did not at all figure.” (Id. at p. 970.) In 14 those hypotheticals, the prosecutor asked the jurors to place themselves in 15 situations similar to those experienced by the victims to consider how well they would remember details of an incident or the particular features of a room 16 if they were testifying years later. (Ibid.) The Supreme Court explained that 17 the prosecutor’s argument was not improper because “(i)n neither scenario did the prosecutor ask the jurors to stand in the shoes of the victims, so as to evoke 18 jury sympathy for the victims.” (Ibid.) 19 Although not precisely analogous, the closing argument at issue in 20 Lopez bears striking similarity to the prosecutor’s argument here. The 21 prosecutor asked the jury to consider how it would feel to be “dragged” into court to testify about a hypothetical traumatic incident when judging whether 22 I.A. was likely to have fabricated the incidents only to subject herself to the 23 difficult trial process. Like the argument in Lopez, the prosecutor was not attempting to evoke sympathy for the victim or asking the jurors to view the 24 crime from I.A.’s perspective, but rather asking the jury to judge I.A.’s 25 credibility based on their own understanding of reasonable human behavior in difficult circumstances like those experienced by I.A. As the Supreme Court 26 explained in Lopez, such argument is not misconduct. 27 28 / / / 1 But even assuming the prosecutor’s comment was improper and Tapia’s counsel was ineffective in failing to object, we find that any error was 2 harmless. Tapia must show that, but for his counsel’s alleged error in failing 3 to object, there is a reasonable probability the jury would have reached a different verdict. (Centeno, supra, 60 Cal.4th at p. 676.) The prosecutor’s 4 comment, suggesting that the jurors place themselves in a hypothetical 5 situation like I.A.’s situation, was brief and not a central theme of his rebuttal. Given the overwhelming evidence of Tapia’s guilt, it is unlikely this brief 6 comment led the jury to reach its guilty verdict. Accordingly, Tapia’s claim 7 of prejudicial error lacks merit. 8 ECF No. 16-22, People v. Tapia, D077113, slip op. at 11-17. 9 1. Procedural Default 10 Respondent first contends the prosecutorial misconduct aspect of claim two is 11 procedurally defaulted because it was denied by the state appellate court under California’s 12 contemporaneous objection rule which precludes raising claims on appeal which are 13 forfeited by lack of objection at trial. ECF No. 15-1 at 16-17. As quoted above, the state 14 appellate court found the prosecutorial misconduct aspect of claim two procedurally barred 15 by defense counsel’s failure to object at trial, but then denied the claim on the merits after 16 finding the prosecutor’s comments were within the permissible scope of closing argument. 17 As Respondent correctly points out, the fact that the state court addressed the merits of the 18 claim in addition to finding it procedurally barred does not prevent the claim from being 19 procedurally defaulted in this Court. Zapata v. Vasquez, 788 F.3d 1106, 1112 (9th Cir. 20 2015). The state court did not find the ineffective assistance of counsel aspect of the claim 21 to be procedurally barred but addressed its merits and found Petitioner had not established 22 ineffective assistance of trial counsel because there was no reasonable probability the jury 23 would have reached a more favorable verdict if counsel had objected. 24 In order to preclude federal habeas review based on a procedural default, a state 25 procedural bar must rest on a state ground which is “independent” of federal law and 26 “adequate” to bar federal review. Coleman v. Thompson, 501 U.S. 722, 735 (1991). To be 27 “independent” the state law basis for the decision must not be interwoven with federal law. 28 Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). To be “adequate,” the state procedural 1 bar must be “clear, consistently applied, and well-established at the time of the petitioner’s 2 purported default.” Calderon v. Bean, 96 F.3d 1126, 1129 (9th Cir. 1996). 3 Respondent has the initial burden of pleading as an affirmative defense that a failure 4 to satisfy a state procedural rule forecloses federal review. Bennett v. Mueller, 322 F.3d 5 573, 586 (9th Cir. 2003). If Respondent is successful, the burden shifts to Petitioner to 6 challenge the independence or adequacy of the procedural bar. Id. If Petitioner satisfies 7 that burden, the ultimate burden falls on Respondent. Id. 8 The Ninth Circuit has recognized California’s contemporaneous objection rule as an 9 adequate and independent state procedural rule. See Zapata, 788 F.3d at 1110-12 10 (California contemporaneous objection rule is an adequate and independent state ground 11 that barred federal habeas review of prosecutorial misconduct claim arising from the use 12 of “several despicable, inflammatory ethnic slurs” against defendant to which defense 13 counsel did not object). Respondent has therefore carried the initial burden which has 14 shifted to Petitioner, which he may satisfy “by asserting specific factual allegations that 15 demonstrate the inadequacy of the state procedure.” Bennett, 322 F.3d at 586. Because 16 Petitioner had made no effort to carry that burden, the Court finds the prosecutorial 17 misconduct aspect of claim two is procedurally defaulted. 18 The Court can address the merits of a procedurally defaulted claim if Petitioner can 19 demonstrate cause for his failure to satisfy the state procedural rule and prejudice arising 20 from the default, or if a fundamental miscarriage of justice would result from the Court not 21 reaching the merits of the defaulted claim. Coleman, 501 U.S. at 750; Schlup v. Delo, 513 22 U.S. 298, 316 (1995) (holding that a showing of fundamental unfairness needed to 23 overcome a procedural default requires a presentation of “evidence of innocence so strong 24 that a court cannot have confidence in the outcome of the trial.”). Petitioner argues that his 25 trial counsel’s failure to object to the prosecutor’s improper remarks should provide for 26 federal habeas relief if the prosecutorial misconduct claim itself is defaulted by the failure 27 to object. ECF No. 8 at 12. Respondent argues Petitioner has not shown cause and prejudice 28 to excuse the default, and that he cannot rely on a claim of ineffective assistance of trial 1 counsel to do so because such a claim must rise to the level of a constitutional violation 2 itself to excuse the default and his claim of ineffective assistance of trial counsel based on 3 a failure to object is without merit. ECF No. 15-1 at 17. 4 If Petitioner can establish that he received constitutionally ineffective assistance of 5 counsel by counsel’s failure to object at trial, he may be able to establish cause to excuse 6 the default. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (noting that although the 7 Supreme Court has “not identified with precision exactly what constitutes ‘cause’ to excuse 8 a procedural default, [it has] acknowledged that in certain circumstances counsel’s 9 ineffectiveness in failing properly to preserve the claim for review in state court will 10 suffice.”), citing Murray v. Carrier, 477 U.S. 478, 488-89 (1986). As set forth below in the 11 discussion of the merits of Petitioner’s ineffective assistance of counsel claim, he is unable 12 to show constitutionally inadequate representation by trial counsel in failing to object, and 13 therefore cannot overcome the cause requirement on that basis. However, because the 14 ineffective assistance claim is intertwined with the merits of the misconduct claim and they 15 both fail on the merits, the Court will address the merits of both claims and deny relief on 16 the merits without addressing whether Petitioner can establish cause and prejudice or a 17 fundamental miscarriage of justice. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 18 2002) (“Procedural bar issues are not infrequently more complex than the merits . . . , so it 19 may well make sense in some instances to proceed to the merits if the result will be the 20 same.”) 21 2. Merits 22 In order to prevail on a claim of prosecutorial misconduct, a federal habeas petitioner 23 must demonstrate that “the prosecutors’ comments ‘so infected the trial with unfairness as 24 to make the resulting conviction a denial of due process.’” Darden v. Wainwright, 477 U.S. 25 168, 181 (1986), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Alleged 26 instances of misconduct must be reviewed “in the context of the entire trial.” Donnelly, 416 27 U.S. at 639; see also Greer v. Miller, 483 U.S. 756, 765-66 (1987) (“To constitute a due 28 process violation, the prosecutorial misconduct must be of sufficient significance to result 1 in the denial of the defendant’s right to a fair trial.”) (quotation omitted). This is because 2 “the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the 3 fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 4 219 (1982). 5 Petitioner argues here, as in state court, that the prosecutor committed misconduct 6 by: (1) referring to him as a monster seven times during closing argument in a reprehensible 7 effort to dehumanize him to the jurors, and (2) asking the jurors how they would feel if 8 they were the victim to inflame their passions with an appeal for sympathy. ECF No. 8 at 9 12-16. As noted by the appellate court, the prosecutor in Darden referred to the defendant 10 as an “animal” and “made several offensive comments reflecting an emotional reaction to 11 the case.” Darden, 477 U.S. at 179-80. The Supreme Court found the trial was not rendered 12 fundamentally unfair by that improper argument because the jury was instructed their 13 decision was required to be based on the evidence and that argument of counsel was not 14 evidence, and because the heavy weight of the evidence against the defendant reduced any 15 likelihood of an influence on the jury’s decision. Id. at 181-82. 16 As in Darden, the jury here was instructed their decision must be based on the 17 evidence and that argument of counsel is not evidence. The trial judge told the jury during 18 their initial instructions that: “As I mentioned during voir dire -- and I will mention 19 probably on several occasions throughout the trial -- please remember at all times that the 20 attorneys are not witnesses. Since it is your duty to decide the case solely on the evidence 21 which you see or hear in this case, you cannot consider as evidence any statement of any 22 attorney made during trial.” RT at 664. The judge began the final instructions by stating: 23 “It is up to all of you and you alone to decide what happened based only on the evidence 24 as has been presented to you in this trial.” RT at 1424. Immediately before the attorneys 25 began their closing argument, the judge instructed the jury: “you have heard all the 26 evidence. Now time to hear the argument of counsel. Once again, perhaps the last time: 27 Remember that nothing the attorneys say is evidence. Each attorney will outline for you 28 his interpretation as to what the evidence has shown.” RT at 1456. 1 As the appellate court noted, the use of the term “monster” to describe Petitioner 2 constituted a description of Petitioner’s conduct toward the victim, which included, as 3 previously noted, hitting her with his gun so hard it cut her skin through her clothes and 4 left a mark still visible at trial as well as grotesque bruises which lasted for six months, and 5 terrorizing her by driving a car with a gun in his lap and threatening to kill them both by 6 steering into an oncoming car. The appellate court noted that, prior to the actions which 7 resulted in Petitioner’s conviction here, he had repaid the victim’s devoted efforts to help 8 him overcome his substance abuse by hitting and choking her, pointing guns at her and 9 threatening to shoot her, and slashed her tires twice. ECF No. 16-22, People v. Tapia, 10 D077113, slip op. at 3. The appellate court went one to describe Petitioner’s behavior: 11 In a particularly violent incident in early November 2018, Tapia accused I.A. of cheating on him and began to pull her hair and punch her in 12 the face. He put his “Uzi” against her stomach and pushed his revolver into 13 her mouth. He then took the revolver out of her mouth, spun the revolver’s cylinder, put the gun to her head, and pulled the trigger. Tapia continued to 14 play his game of Russian roulette with I.A. by alternately holding the gun to 15 his head and I.A.’s head. I.A. eventually escaped from the house barefoot and vowed to leave the relationship. [¶] But Tapia continued to harass I.A. by 16 sending her threatening text messages and stalking her. He called her a 17 “disgusting whore” and threatened that he was “going to tear (her) to pieces.” One morning, Tapia broke down I.A.’s door and searched her house while 18 pointing his revolver at her head. He told her that if he ever found a man there, 19 he would shoot that man and her. On another occasion, Tapia told I.A., “you will remember me when I fucking shoot you.” 20

21 Id. at 3-4. 22 The appellate court’s determination that “[i]n light of the evidence of Tapia’s violent 23 conduct targeted at I.A., the prosecutor’s use of the term ‘monster’ to describe Tapia fell 24 with the permissible scope of closing argument,” id. at 13, and that even if it was 25 misconduct it did not deprive Petitioner of a fair trial within the meaning of Darden because 26 the “evidence of Tapia’s guilt was overwhelming,” id. at 12, is neither contrary to, nor an 27 unreasonable application of, clearly established federal law. See Darden, 477 U.S. at 181 28 (requiring a showing that the prosecutorial misconduct “so infected the trial with unfairness 1 as to make the resulting conviction a denial of due process.”); Tan v. Runnels, 413 F.3d 2 1101, 1112 (9th Cir. 2005) (“[U]nder Darden, the first issue is whether the prosecutor’s 3 remarks were improper and, if so, whether they infected the trial with unfairness.”); Deck 4 v. Jenkins, 814 F.3d 954, 978 (9th Cir. 2016) (recognizing Darden is clearly established 5 federal law for AEDPA review purposes with respect to a prosecutor’s improper 6 comments). Neither is it based on an objectively unreasonable determination of the facts, 7 as the appellate court’s adjudication is supported by the record. 8 As to the second aspect of the misconduct claim, defense counsel argued in closing 9 that the testimony of the victim was not credible, and then stated, “how would you like it 10 if you were alleged to have done wrong, and they’re making the case against you with 11 [I.A.]?” RT at 1506. The prosecutor replied to that argument in rebuttal: 12 And again, its up to you to determine her credibility. [¶] The defense also asks you to be fair and an impartial jury and of course that’s your job. And they 13 talked about how would you feel if you were dragged into court like [I.A] and 14 everything relied on [I.A.]. Well, you can use that same line of analysis in determining [I.A.]’s credibility. [¶] How would you feel if someone dragged 15 you into court and they asked you - - let’s just say it’s a sexual assault case 16 and they asked you to describe the last time you had sex with your partner. Or, like [I.A.] you’re put on the stand and you’re asked can you tell us about 17 that time that he shoved a gun in your mouth and you vomited and lied to him 18 that you had to poop so you could leave; and then when you left you were running down the street using a jacket to shield yourself because you thought 19 he was chasing you? How would you feel if you had to do that? 20 21 RT at 1512-13. 22 Thus, the prosecutor was responding to a defense attack on the credibility of the 23 victim and to defense counsel asking the jurors whether they would feel comfortable being 24 found guilty solely on the evidence of her testimony. The appellate court reasonably found 25 that the prosecutor rebutted that argument by explaining to the jury it was understandable 26 that someone could be confused or have inconsistencies in their testimony if they had to 27 relive and reveal at trial what Petitioner had put them through and did not attempt to inflame 28 the passion of the jurors by asking them to decide guilt or innocence by placing themselves 1 in the shoes of the victim. The appellate court’s denial of this aspect of the prosecutorial 2 misconduct claim on that basis is neither contrary to, nor an unreasonable application of, 3 the clearly established federal law which provides that prosecutorial misconduct which, 4 viewed in the context of the entire trial, does not rise to the level of a federal constitutional 5 violation unless it results in a fundamentally unfair trial. Darden, 477 U.S. at 181; 6 Donnelly, 416 U.S. at 639. This is particularly true in light of the appellate court’s findings 7 that the evidence against Petitioner was “overwhelming,” the prosecutor’s comment “was 8 brief and not a central theme of his rebuttal,” and was in direct rebuttal to the defense attack 9 on the victim’s credibility. See Hein v. Sullivan, 601 F.3d 897, 914 (9th Cir. 2010) (listing 10 as Darden factors, “the weight of the evidence, the prominence of the comment in the 11 context of the entire trial, . . . [and] whether the comment was invited by defense counsel 12 in its summation.”) And because the appellate court’s reliance on the trial record is 13 accurate, Petitioner has not carried his burden of showing the state court adjudication of 14 the prosecutorial misconduct claim is objectively unreasonable within the meaning of 28 15 U.S.C. § 2254(d)(2). 16 Even assuming the misconduct rose to the level of a federal constitutional violation, 17 federal habeas relief is not available unless such error is shown to have had a “substantial 18 and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637; 19 see Fields v. Woodford, 309 F.3d 1095, 1109 (9th Cir. 2002) (“If prosecutorial misconduct 20 is established, and it was constitutional error, we then apply the Brecht harmless error 21 test.”) Given the overwhelming evidence of Petitioner’s extremely abusive conduct toward 22 the victim, calling him a “monster” as a comment on that evidence, and given defense 23 counsel’s attack on the credibility of the victim, briefly arguing in rebuttal that the jurors 24 should consider if their testimony under such conditions would be free of inconsistences, 25 did not have had a “substantial and injurious effect or influence in determining the jury’s 26 verdict.” Brecht, 507 U.S. at 637. 27 Finally, Petitioner claims he received ineffective assistance of counsel based on his 28 trial counsel’s failure to object to the prosecutor’s comments. To show constitutionally 1 ineffective assistance of counsel, counsel’s performance must have been deficient, which 2 “requires showing that counsel made errors so serious that counsel was not functioning as 3 the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. 4 Washington, 466 U.S. 668, 687 (1984). Counsel’s deficient performance must also have 5 prejudiced the defense, which requires showing that “counsel’s errors were so serious as 6 to deprive [Petitioner] of a fair trial, a trial whose result is reliable.” Id. To establish 7 prejudice, Petitioner must demonstrate a reasonable probability that the result of the 8 proceeding would have been different absent the error. Id. at 694. A reasonable probability 9 is “a probability sufficient to undermine confidence in the outcome.” Id. Petitioner must 10 establish both deficient performance and prejudice. Id. at 687. 11 The appellate court denied the ineffective assistance of counsel aspect of claim two 12 by finding, with respect to the “monster” comments, “we cannot conclude that if defense 13 counsel had objected, it is reasonably probable the jury would have reached a more 14 favorable verdict. The evidence of Tapia’s guilt was overwhelming. It is not likely that the 15 jury reached its verdict due to inflamed passion or prejudice based on the prosecutor’s 16 references to Tapia as a ‘monster.’” ECF No. 16-22, People v. Tapia, D077113, slip op. at 17 14. With respect to the rebuttal argument, the appellate court found there was no 18 “reasonable probability the jury would have reached a different verdict” because “the 19 prosecutor’s comment, suggesting that the jurors place themselves in a hypothetical 20 situation like I.A.’s situation, was brief and not a central theme of his rebuttal. Given the 21 overwhelming evidence of Tapia’s guilt, it is unlikely this brief comment led the jury to 22 reach its guilty verdict. Id. at 17. 23 Petitioner argues there could be no tactical reason for not objecting to the repeated 24 references to him as a monster or to the prosecutor’s urging the jurors to put themselves in 25 the victim’s place. ECF No. 8 at 14-15. Respondent answers that there can be no deficient 26 performance in failing to raise a meritless objection, and there was no prejudice from the 27 failure to object because there is no reasonable probability the jury would have reached a 28 different result had an objection been made. ECF No. 15-1 at 17, 20. 1 The state appellate court’s adjudication of the ineffective assistance of counsel 2 aspect of claim two, on the basis there is no reasonable probability that the failure to object 3 affected the jury’s verdict, is neither contrary to nor an unreasonable application of 4 Strickland because there is no reasonable probability the alleged misconduct affected the 5 jury’s verdict for the reasons discussed above. Id. at 694 (prejudice requires a showing of 6 a reasonable probability that the result of the proceeding would have been different absent 7 the error); Richter, 562 U.S. at 105 (“The standards created by Strickland and § 2254(d) 8 are both ‘highly deferential,” and when the two apply in tandem, review is ‘doubly’ so.”) 9 (citations omitted). 10 Even assuming Petitioner could satisfy § 2254(d), he has not shown constitutionally 11 ineffective assistance of counsel because the unobjected to misconduct did not result in an 12 unfair trial for the reasons discussed above. See Richter, 562 U.S. at 110 (“Representation 13 is constitutionally ineffective only if it ‘so undermined the proper functioning of the 14 adversarial process’ that the defendant was denied a fair trial.”), quoting Strickland, 466 15 U.S. at 686. In addition, the Strickland standard is higher than the Brecht standard. Kyles 16 v. Whitley, 514 U.S. 419, 436 (1995). Thus, for the reasons set forth above why the Brecht 17 standard was not satisfied by the misconduct, Petitioner is unable to satisfy the Strickland 18 standard. See Kipp v. Davis, 971 F.3d 866, 878 (9th Cir. 2020) (petitioner necessarily did 19 not satisfy Strickland standard where Brecht standard was not satisfied). 20 Habeas relief is denied with respect to the prosecutorial misconduct aspect of claim 21 two on the basis that: (1) it is procedurally defaulted, (2) assuming Petitioner could 22 overcome the default, the adjudication of the claim by the state court is objectively 23 reasonable within the meaning of 28 U.S.C. § 2254(d), and (3) any federal constitutional 24 error is harmless. Habeas relief is denied with respect to the ineffective assistance of 25 counsel aspect of claim two on the basis that the adjudication of the claim by the state court 26 is objectively reasonable within the meaning of 28 U.S.C. § 2254(d), and assuming that 27 standard could be met, the claim fails on its merits. 28 / / /

CERTIFICATE OF APPEALABILITY

2 The Court is required to grant or deny a Certificate of Appealability when entering 3 final order adjudicating a 28 U.S.C. § 2254 habeas petition. See Rule 11, rules foll. 28 4 ||U.S.C. § 2254. “[T]he only question [in determining whether to grant a Certificate of 5 || Appealability] is whether the applicant has shown that ‘jurists of reason could disagree 6 || with the district court’s resolution of his constitutional claims or that jurists could conclude 7 || the issues presented are adequate to deserve encouragement to proceed further.’” Buck v. 8 || Davis, 580 U.S. 100, 115 (2017), quoting Miller-El, 537 U.S. at 327. Under that standard, 9 || because defense counsel did not object to statements by the prosecutor of the type which 10 || courts have recognized as improper, the Court finds that the issues involved in claim two 11 adequate to deserve encouragement to proceed further, and that a Certificate of 12 || Appealability is appropriate limited to claim two. See Lambright v. Stewart, 220 F.3d 1022, 13 (9th Cir. 2000) (en banc) (the standard for granting a certificate of appealability is 14 ||lower than that for granting habeas relief, and a court must resolve doubts whether a 15 || certificate should issue in the petitioner’s favor). 16 || VI. CONCLUSION AND ORDER 17 Based on the foregoing, the First Amended Petition for a Writ of Habeas Corpus 18 || ECF No. 8 is DENIED and the Court ISSUES a Certificate of Appealability limited to 19 ||claim two of the First Amended Petition. The Clerk of Court shall enter judgment 20 || accordingly. 21 IT IS SO ORDERED. 22 Dated: May 19, 2023 NO 23 QF 24 Honorable Linda Lopez 35 United States District Judge 26 27 28 31