1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8

VINCENT P. JACOBO,

9 Case No. 24-cv-03271-RS (PR) Petitioner, 10 v. ORDER DENYING PETITION FOR 11 WRIT OF HABEAS CORPUS

PATRICK COVELLO,

12 Respondent. 13

14 15 INTRODUCTION 16 Petitioner seeks federal habeas relief under 28 U.S.C. § 2254 from his California 17 state conviction for murder. His claim that the trial court’s instruction on mutual combat 18 or being the initial aggressor (CALCRIM 3471) violated his due process right to a fair trial 19 and to present a defense lacks merit. His contention that the instruction was not supported 20 by substantial evidence fails to state a federal claim; even if it were a proper federal claim, 21 the instruction was supported by substantial evidence; because there was overwhelming 22 evidence against self-defense, his claim that his self-defense argument would have 23 succeeded had the instruction not been given fails; and there was no prejudice. 24 Accordingly, the petition for habeas relief is DENIED. 25 BACKGROUND 26 In 2022 a San Francisco County Superior Court jury convicted petitioner of 27 second-degree murder (Cal. Penal Code § 187(a)) and illegal possession of a firearm by a 1 Ct. App. Oct. 16, 2023); Ans., State Appellate Opinion, Dkt. No. 11-42 at 6-7. The jury 2 also found true the allegation that petitioner intentionally discharged a firearm, causing 3 great bodily injury (Cal. Penal Code § 12022.53(d)). (Ans., State Appellate Opinion, Dkt. 4 No. 11-42 at 7.) Petitioner admitted at trial that he had two prior strike convictions. (Id.) 5 A sentence of 70 years to life was imposed. (Id.) Petitioner’s attempts to overturn his 6 convictions in state court were unsuccessful. This federal habeas petition followed. 7 The facts, as determined by the state appellate court, are as follows. In 2013, the 8 victim, White, lived in San Francisco with his grandmother, Mary H., Mary’s son Isidor 9 H., petitioner, and several other persons, including her grandchildren. (Id. at 2.) Several 10 years earlier, petitioner’s friend, Isidor H., had invited petitioner to stay in his room at his 11 mother’s house because Jacobo was about to be “unhoused.” (Id.) 12 At the time of his death White was 28, six feet one inch tall, and 238 pounds. (Id. at 13 3.) He was a drug user and bore a tattoo on his neck (“Hood Certified, Turf Tested”). (Id.) 14 Witnesses testified that White never owned or used a gun. (Id.) Petitioner also used drugs, 15 drank a great deal, had a bad temper, and often got into arguments. (Id.) He had been 16 convicted of robbery and had a felony conviction for using a firearm. (Id.) Evidence 17 showed that petitioner sold guns and had ammunition. (Id.) 18 Petitioner and White often had arguments and had “a couple of physical 19 altercations.” (Id.) In one, they fought over petitioner’s actions toward one of the children 20 who had lived in the house a year or two before White’s death. (Id.) Punches were 21 exchanged, and petitioner’s face was bruised. (Id.) Roughly a month before his death, 22 White complained to petitioner about the quality of his work on Isidor H.’s car, and told 23 him to stop that work. (Id.) Petitioner punched White, who then pushed petitioner down 24 the stairs. (Id.) Petitioner said he would get a gun and shoot him. (Id.) 25 On the evening of October 13, 2013, White was fixing his bicycle in his room and 26 Jacobo was not at home. (Id.) White left the house the next day between 3 and 4am. 27 At roughly 3:47am, petitioner texted White to tell him that he was “[d]own by Folsom 1 Park. Still waiting.” (Id.) A bit later, petitioner texted White again, saying, “We can still 2 work dude for eight or a quarter.” (Id.) At 4:24am, he sent White a text that said, 3 “Coming up 21st Street and Mission, Bartlett.” (Id.) A minute later, petitioner sent White 4 a text which read “Dude got spooked.” (Id. at 3-4.) White read all of these texts. (Id. at 5 4.) 6 Video recordings show White bicycling north toward 21st Street early that morning. 7 After meeting petitioner at roughly 4:30am, they walked toward Bartlett Street. (Id.) 8 Video showed White dropping his bike and running, with petitioner chasing him into 9 Bartlett Street. (Id.) White fell, rose, and kept running away from petitioner, while 10 leaving a trail of blood behind him. (Id.) Gunshots awoke several neighbors at the time 11 White was shot. (Id.) James V., who lived on Bartlett Street, awoke to the sound of 12 gunshots at roughly 4:30am. (Id.) He heard about five shots, followed by a second-long 13 pause, and then heard two more shots. (Id.) He then heard someone “moan or scream 14 about being shot.” (Id.) From his window he saw a bicycle, but no people, and then called 15 911. (Id.) 16 At 4:37am, Jody B. and James M., who lived together on Bartlett Street, awoke to 17 the sound of gunshots. (Id.) Jody heard “two loud noises followed by a pause [of less than 18 minute] and then a couple more.” (Id.) She also heard “yelling” in what appeared to be an 19 argument. (Id.) James M. heard about seven gunshots with some “pauses in between.” 20 (Id.) 21 At 4:30am, Michelle V., who also lived on Bartlett Street, awoke to the sound of 22 two men arguing. (Id.) She then heard three or four gunshots and then someone talking. 23 (Id.) From her window, she saw a bicycle lying on the sidewalk. (Id.) 24 Police Officer Antonio Balingit arrived at the scene at roughly 4:41am. (Id. at 5.) 25 He saw White “lying face down on the ground in the middle of Bartlett Street.” (Id.) 26 White was declared dead at the scene at 4:48am, after the officers had tried CPR. (Id.) A 27 plastic bag containing white powder was found next to White’s foot; a .25 caliber shell 1 casing rolled out from underneath his body; and four more .25 caliber shell casings, along 2 with a 9mm simunition or blank. (Id.) The blank was found “partially buried in the 3 detritus of the gutter” on Bartlett Street. (Id.) It was determined that all five .25 caliber 4 shell casings came from the same gun. (Id.) The blank, which was rusted and worn and 5 appeared older than the .25 caliber shell casings, and had been fired from a different gun, 6 and appeared to have been in White’s body “for a long period of time.” (Id. at 5, 6.) 7 White’s bicycle and cell phone were found nearby, but no weapon was found.1 (Id. at 5.) 8 Five visible gunshot wounds were found on White’s body: one on the left side of 9 his neck; one on his upper right arm; two in his back; and one on his left buttock. (Id.) 10 The neck wound was caused from a shot from an “intermediate range,” that is, “some 11 inches or feet” away. (Id.) The trajectory of the bullet that caused this wound indicated 12 that the killer had stood above White when firing. (Id.) The remaining four shots were 13 “distant” shots, that is, from “many feet to yards or greater” away. (Id.) All the shots 14 appeared “fresh” and caused White’s death. (Id. at 5-6.) A total of six bullets were 15 removed from White’s body. (Id. at 6.) He also had some scrapes to his knees and right 16 hand, and a contusion to the right side of his scalp. (Id.) DNA from the bloodstains on 17 petitioner’s shoes matched DNA from White’s blood. (Id. at 6.) 18 As grounds for federal habeas relief, petitioner alleges the trial court erred by giving 19 an instruction on mutual combat, CALCRIM 3471 (“Right to Self-Defense: Mutual 20 Combat or Initial Aggressor”). (Pet., Dkt. No. 1 at 9.) 21 STANDARD OF REVIEW 22 Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), this 23 Court may entertain a petition for writ of habeas corpus “in behalf of a person in custody 24

25 1 Roughly a month after White’s death, Michelle V. found a .25 caliber shell casing near 26 her house and gave it to the police. (Id. at 6.) “The shell casing appeared to be potentially associated with the five .25 caliber shell casings previously discovered at the scene of 27 White’s death.” (Id.) 1 pursuant to the judgment of a State court only on the ground that he is in custody in 2 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 3 The petition may not be granted with respect to any claim that was adjudicated on the 4 merits in state court unless the state court’s adjudication of the claim: “(1) resulted in a 5 decision that was contrary to, or involved an unreasonable application of, clearly 6 established Federal law, as determined by the Supreme Court of the United States; or 7 (2) resulted in a decision that was based on an unreasonable determination of the facts in 8 light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). 9 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state 10 court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question 11 of law or if the state court decides a case differently than [the] Court has on a set of 12 materially indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412–13 13 (2000). 14 “Under the ‘unreasonable application’ clause, a federal habeas court may grant the 15 writ if the state court identifies the correct governing legal principle from [the] Court’s 16 decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 17 413. “[A] federal habeas court may not issue the writ simply because that court concludes 18 in its independent judgment that the relevant state court decision applied clearly 19 established federal law erroneously or incorrectly. Rather, that application must also be 20 unreasonable.” Id. at 411. A federal habeas court making the “unreasonable application” 21 inquiry should ask whether the state court’s application of clearly established federal law 22 was “objectively unreasonable.” Id. at 409. 23 DISCUSSION 24 Petitioner claims that the trial court violated due process when it gave an instruction 25 on a person’s right to self-defense if he started a fight or engaged in mutual combat 26 (CALCRIM 3471). (Pet., Dkt. No. 1 at 5, 16-49.) He contends that the instruction was not 27 supported by substantial evidence. (Id. at 23-24.) Also, because the instruction conflicted 1 with petitioner’s self-defense arguments, it violated his due process right to present a 2 defense and resulted in prejudice. (Id.) 3 The trial court instructed the jury on CALCRIM 3471, along with other instructions 4 on self-defense and imperfect self-defense:

5 A person who engages in mutual combat or who starts a fight has a right to 6 self-defense only if; one, he actually and in good faith tried to stop fighting; and two, he indicated by word or by conduct to his opponent in a way that a 7 reasonable person would understand that he wanted to stop fighting and that he had stopped fighting; and three, he gave his opponent a chance to stop 8 fighting. If the defendant meets these requirements, then he had a right to 9 self-defense if the opponent continued to fight;

10 [H]owever, if the defendant used only non-deadly force and the opponent 11 responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself 12 with deadly force and was not required to try to stop fighting or communicate the desire to stop to the opponent or give the opponent a chance to stop 13 fighting. 14 A fight is mutual combat when it began or continued by mutual consent or 15 agreement. That agreement may be expressly stated or implied and must 16 occur before the claim to self-defense arose. 17 (Ans., RT, Dkt. No. 11-32 at 31-32.) 18 The state appellate court rejected petitioner’s claims that the instruction was not 19 supported by substantial evidence and that the giving of the instruction was prejudicial. It 20 first found that “there was substantial evidence that [petitioner] started a fight with White.” 21 (Ans., State Appellate Opinion, Dkt. No. 11-42 at 9.) Petitioner “had a bad temper and 22 held grudges”; roughly a month before the killing, he had threatened to obtain a gun and 23 shoot White; there was no evidence that White had any weapons on the day of the killing; 24 video recordings showed petitioner chasing White as he ran away; petitioner shot White 25 multiple times from behind; and there was no evidence petitioner suffered any injuries 26 from his interaction with White. (Id. at 9.) 27 1 The state appellate court next found that there was “substantial evidence” that 2 petitioner and White engaged in mutual combat. (Id. at 10.) The two had a history of 3 conflict, which included “at least two verbal arguments in the recent past that led to 4 physical altercations”; one could infer from the threat petitioner made to White in their 5 fight a month before the killing that the two were “resuming that fight at the time of 6 White’s death.” (Id.) 7 Also, because “the evidence against self-defense or imperfect self-defense was 8 overwhelming,” there could not have been prejudice. (Id. at 12.) “[S]elf defense rules 9 require the defendant to stop using force when the danger of an attack or unlawful 10 touching no longer exists.” (Id.) Here, video recordings showed White running away 11 while petitioner chased him with a gun; White must have been bleeding during the chase; 12 petitioner shot him five times; three of the shots hit him in the buttocks or back, and one 13 was fired only inches or feet away and had a downward trajectory, which indicates that he 14 was not standing when he was shot; and there is nothing showing that White was armed. 15 (Id.) 16 The state appellate court rejected petitioner’s claim that the length of deliberations 17 and the jury’s questions to the court regarding first and second degree murder indicated 18 that this was a close case. “That the jury struggled in deciding between first-degree and 19 second-degree murder does not compel a contrary conclusion. Neither the jury’s notes or 20 questions nor the length of their deliberations suggests that the jury was wrestling with 21 [petitioner’s] claims of self-defense or imperfect self-defense.” (Id.) 22 To obtain federal collateral relief for errors in the jury charge, a petitioner must 23 show that the ailing instruction by itself so infected the entire trial that the resulting 24 conviction violates due process. See Estelle v. McGuire, 502 U.S. 62, 72 (1991); Cupp v. 25 Naughten, 414 U.S. 141, 147 (1973). The instruction may not be judged in artificial 26 isolation, but must be considered in the context of the instructions as a whole and the trial 27 record. See Estelle, 502 U.S. at 72. In other words, the court must evaluate jury 1 instructions in the context of the overall charge to the jury as a component of the entire 2 trial process. United States v. Frady, 456 U.S. 152, 169 (1982) (citing Henderson v. 3 Kibbe, 431 U.S. 145, 154 (1977)). 4 A habeas petitioner is not entitled to relief unless the instructional error “ ‘had 5 substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht v. 6 Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 7 776 (1946)). In other words, state prisoners seeking federal habeas relief may obtain 8 plenary review of constitutional claims of trial error, but are not entitled to habeas relief 9 unless the error resulted in “actual prejudice.” Id. 10 Habeas relief is not warranted on this claim. As an initial matter, the United States 11 Supreme Court has held that it does not violate due process to instruct a jury on a legal 12 theory that lacks evidentiary support “since jurors are well equipped to analyze the 13 evidence.” Griffin v. United States, 502 U.S. 46, 59-60 (1991). Consequently, there is no 14 “clearly established law that constitutionally prohibits a trial court from instructing a jury 15 with a factually inapplicable but accurate statement of state law.” Fernandez v. 16 Montgomery, 182 F. Supp. 3d 991, 1011 (N.D. Cal. 2016); see also Steele v. Holland, No. 17 15-CV-01084-BLF, 2017 WL 2021364, at *8 (N.D. Cal. May 12, 2017) (“giving an 18 instruction which is not supported by evidence is not a due process violation.”); Larrabee 19 v. Pollard, No. EDCV180049JGBPVC, 2020 WL 5665812, at *21 (C.D. Cal. Aug. 13, 20 2020) (finding factual challenge to trial court’s use of CALCRIM 3471 did not state a 21 cognizable federal claim). Because there is no clearly established right under these 22 circumstances, there is no federal habeas relief for such petitioner’s claim. 23 Also, even if there were a viable federal claim, it would fail because there was 24 substantial evidence to support the giving of the instruction. The state appellate court 25 reasonably determined that there was substantial evidence that petitioner started a fight 26 with White. The two men had had a history of disputes; about a month before White was 27 killed, petitioner threatened to obtain a gun and shoot him; White was unarmed on the day 1 he was shot; video recordings showed petitioner chasing White as he ran away; petitioner 2 shot White multiple times from behind; and there was no evidence petitioner suffered any 3 injuries from his interaction with White. 4 The state appellate court also reasonably determined that there was “substantial 5 evidence” that the two men engaged in mutual combat. Again, the two had a history of 6 conflict, which included at least two recent verbal arguments that turned into physical 7 altercations. Also, one could infer that the two were resuming the fight started a month 8 before when petitioner threatened to get a gun and shoot White. 9 Also, significantly, there has been no showing that the instruction had a substantial 10 or injurious effect on the verdict. First, any contention that the instruction interfered with 11 his ability to present a self-defense cannot succeed. CALCRIM 3471 did not prevent such 12 a defense; rather it stated that under certain specific circumstances, petitioner could not 13 claim it. Also, the jury was free to disregard CALCRIM 3471, according to the trial 14 court’s instructions: “Some of these instructions may not apply, depending on your 15 findings about the facts of the case. Do not assume that because I give a particular 16 instruction that I am suggesting anything about the facts. After you have decided what the 17 facts are, follow the instructions that do apply to the facts as you find them.” (Ans., RT, 18 Dkt. No. 11-32 at 11.) 19 Second, the state appellate court reasonably determined that there was no prejudice 20 because “the evidence against self-defense or imperfect self-defense was overwhelming.” 21 Video evidence revealed that White was running away while petitioner chased him with a 22 gun; physical evidence showed that petitioner shot White five times during this chase and 23 that three hit him in the back or buttocks; and one shot’s trajectory indicates that White 24 was not standing when he was shot. Under the rules of self-defense, a defendant must stop 25 using force when the danger of an attack no longer exists. The video evidence shows that 26 petitioner was not under threat of attack by White when the shooting occurred. 27 1 Petitioner claims that the length of deliberations (five days) and the jury’s questions 2 to the court during deliberations indicates that this was a “close” case. (Pet., Dkt. No. 1 at 3 44.) He concedes, however, that the jury’s questions “indicated a focus on the distinction 4 between first and second degree murder,” not a focus on self-defense. (Id. at 45.) The 5 state appellate court’s rejection of this claim was reasonable. Any hesitation related to 6 whether petitioner was guilty of first or second degree murder, not to questions about self- 7 defense. 8 The state court’s rejection of petitioner’s claim was reasonable and is therefore 9 entitled to AEDPA deference. This claim is DENIED. 10 CONCLUSION 11 The state court’s denial of petitioner’s claims did not result in a decision that was 12 contrary to, or involved an unreasonable application of, clearly established federal law, nor 13 did it result in a decision that was based on an unreasonable determination of the facts in 14 light of the evidence presented in the state court proceeding. Accordingly, the petition is 15 DENIED. 16 A certificate of appealability will not issue. Reasonable jurists would not “find the 17 district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 18 McDaniel, 529 U.S. 473, 484 (2000). Petitioner may seek a certificate of appealability 19 from the Ninth Circuit Court of Appeals. The Clerk shall enter judgment in favor of 20 respondent, and close the file. 21 IT IS SO ORDERED. 22 Dated: November _1_4_, 2025 _________________________ 23

RICHARD SEEBORG

24 Chief United States District Judge

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