FILED

NOT FOR PUBLICATION

MAR 1 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAIME AYALA GALVEZ, No. 18-56303

Petitioner-Appellant, D.C. No. 2:16-cv-07626-AG-GJS v.

WILLIAM MUNIZ, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding

Argued and Submitted November 16, 2020 Pasadena, California

Before: RAWLINSON and HUNSAKER, Circuit Judges, and ENGLAND,** District Judge. Concurrence by Judge HUNSAKER

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Morrison C. England, Jr., United States District Judge for the Eastern District of California, sitting by designation. Petitioner–Appellant Jaime Ayala Galvez (Galvez) challenges the district

court’s denial of his petition for habeas relief pursuant to 28 U.S.C. § 2254.1

Under the Antiterrorism and Effective Death Penalty Relief Act of 1996,

habeas relief is available only if the state court decision being reviewed was

contrary to or an unreasonable application of Supreme Court precedent. See

Murray v. Schriro, 882 F.3d 778, 801 (9th Cir. 2018). Reviewing de novo, we

affirm. See id.

The California Court of Appeal assumed without deciding, that requiring

Galvez to testify before the prosecution completed the presentation of its case

violated various constitutional rights. The state court nevertheless concluded that

any error was harmless, as Galvez was unable to establish prejudice.

Galvez contends that the error here is structural error, and was not subject to

harmless error review. However, the United States Supreme Court has not ruled

that this type of trial error is structural in nature. See Knowles v. Mirzayance, 556

U.S. 111, 122 (2009) (“[T]his Court has held on numerous occasions that it is not

an unreasonable application of clearly established Federal law for a state court to

1 We decline to expand the certificate of appealability to include the uncertified ineffective assistance of counsel claim because Galvez failed to “make a substantial showing of the denial of a constitutional right.” Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999) (citation and internal quotation marks omitted). 2 decline to apply a specific legal rule that has not been squarely established by this

Court. . . .”) (citations and internal quotation marks omitted).

Galvez argues in the alternative that the California Court of Appeal’s

harmlessness determination was erroneous because Galvez was prejudiced by

being forced to testify before completion of the government’s case. We disagree.

The state court’s rejection of Galvez’s prejudice argument was not objectively

unreasonable in light of the overwhelming evidence of guilt. See Allen v.

Woodford, 395 F.3d 979, 992 (9th Cir. 2005), as amended (“[T]o the extent that

any claim of error . . . might be meritorious, we would reject that error as harmless

because the evidence of [the petitioner’s] guilt is overwhelming.”).

Finally, there is no clearly established federal law holding that the United

States Constitution bars a trial court from directing a verdict of sanity when a

defendant has not offered substantial evidence of insanity. See Kahler v. Kansas,

140 S. Ct. 1021, 1029 (2020) (reiterating that “[t]he takeaway [is] clear: [a] State’s

insanity rule is substantially open to state choice”) (citation, alteration, and internal

quotation marks omitted). In addition, California Penal Code § 29.8 barred

3 application of the insanity defense based on the use of drugs.2 Therefore, the state

court did not unreasonably apply Federal law in affirming the directed verdict of

sanity against Galvez. See White v. Woodall, 572 U.S. 415, 426 (2014) (discussing

unreasonable application of Supreme Court precedent).3

AFFIRMED.

2 “In any criminal proceeding in which a plea of not guilty by reason of insanity is entered, this defense shall not be found by the trier of fact solely on the basis of a personality or adjustment disorder, a seizure disorder, or an addiction to, or abuse of, intoxicating substances.” California Penal Code § 29.8. 3 Contrary to Galvez’s contention, the expert witness did not testify that he was insane. 4

FILED

MAR 1 2021

Galvez v. Muniz, 18-56303

MOLLY C. DWYER, CLERK

HUNSAKER, J., concurring: U.S. COURT OF APPEALS

I concur in the court’s decision because the Supreme Court has not held it is

structural error to require a criminal defendant to either testify or lose his right to

testify before the prosecution has completed its case. See Williams v. Taylor, 529

U.S. 362, 381 (2000) (“If t[he Supreme] Court has not broken sufficient legal ground

to establish an asked-for constitutional principle, the lower federal courts cannot

themselves establish such a principle with clarity sufficient to satisfy the AEDPA

bar.”). I write separately, however, to address the seriousness of the state court’s

seemingly cavalier error.

Petitioner Jaime Galvez was indicted on multiple California firearms charges.

At trial, one of the prosecution’s witnesses finished testifying well before its next

witness was available. To fill the one hour and fifteen minutes remaining before the

noon break, the trial court asked if a defense witness was available to fill the time.

Defense counsel replied that the only defense witness present was Galvez. The trial

court inquired whether Galvez had “definitely decided to offer testimony.” When

defense counsel answered in the affirmative, the trial court indicated that Galvez

should take the stand. Defense counsel did not object, and the trial court questioned

Galvez to ensure he understood and wanted to waive his right to remain silent.

During this colloquy, Galvez explained that he wanted to testify “but not

now.” The trial court stated that all it needed to hear was that Galvez planned to 1 testify. It then explained, “I’m going to give you a few minutes to discuss this with

your lawyer because I get the impression from you that you’re somewhat equivocal

in [waiving] your right to remain silent, that you feel should be conditional in some

respect, and that is not the case.” After Galvez conferred with his counsel, the trial

court again asked whether he wanted to testify. Defense counsel responded that

“[t]he defense wishes to proceed by having [Galvez] testify” but that Galvez was

still “concerned about testifying now. He prefers to testify at the close of the

case . . . .”

The trial court rebuffed Galvez’s objection, stating:

[A]gain . . . you can’t put conditions on your testimony. Either you want to testify or you don’t. And we have available time this morning, so if you wish to testify, now is your time. If not, then you certainly can exercise your right to remain silent and not testify, but I will not allow you to put conditions on your availability to testify.

The trial court asked a final time: “So, [Galvez], is it your desire to testify, yes or

no?” Galvez responded that he wanted to testify, and he took the stand before the

prosecution rested its case. Ultimately, Galvez was found guilty. 1

As the majority notes, it is uncontroversial that the state court erred—the state

appellate courts assumed error. At issue here is a criminal defendant’s right to

“remain inactive and secure, until the prosecution has taken up its burden and

1 The relevant factual summary is largely drawn from the California Court of Appeal’s factual summary, which is presumed to be correct. See, e.g., Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009). 2 produced evidence and effected persuasion.” Taylor v. Kentucky, 436 U.S. 478, 483

n.12 (1978) (quoting 9 John Henry Wigmore, Evidence § 2511 (3d ed. 1940)).

Embedded in the Due Process Clause, this right—often referred to inaccurately as

the presumption of innocence2—“is the undoubted law, axiomatic and elementary,

and its enforcement lies at the foundation of the administration of our criminal law.”

Id. at 483 (quoting Coffin v. United States, 156 U.S. 432, 453 (1895)).

2 The Supreme Court previously “held that the presumption of innocence and the equally fundamental principle that the prosecution carries the burden of proof beyond a reasonable doubt were logically separate and distinct.” Taylor, 436 U.S. at 483 (citing Coffin v. United States, 156 U.S. 432, 453 (1895)). It has since changed that view. Id. at 483 n.12 (“It is now generally recognized that the ‘presumption of innocence’ is an inaccurate, shorthand description of the right of the accused to ‘remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion; i.e., to say in this case, as in any other, that the opponent of a claim or charge is presumed not to be guilty is to say in another form that the proponent of the claim or charge must evidence it.’”) (citation omitted). The right to remain inactive and secure often is implicated when a trial court fails to instruct the jury on the presumption of innocence, see, e.g., id. at 485–86, which— depending on the particular facts of the case—can violate the Due Process Clause. See id. at 490; see also Kentucky v. Whorton, 441 U.S. 786, 789 (1979) (“In short, the failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution.”). But there is a difference between instructing the jury on the presumption of innocence and preserving this “axiomatic” right throughout the trial proceedings (i.e., ensuring that the defendant is allowed to remain inactive and secure until the prosecution completes its case and presents sufficient evidence to meet its burden). See Herrera v. Collins, 506 U.S. 390, 399 (1993) (“Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears.”); Delo v. Lashley, 507 U.S. 272, 278 (1993) (per curiam) (“Once the defendant has been convicted fairly in the guilt phase of the trial, the presumption of innocence disappears.”); Betterman v. Montana, 136 S. Ct. 1609, 1618 (explaining a conviction “terminates the presumption of innocence”). 3 The origin of this right extends well beyond our constitutional founding. See

Coffin, 156 U.S. at 454–56 (discussing ancient sources). One early American legal

scholar explained:

The operation and exact scope of [the presumption of innocence], both in civil and criminal cases, was very neatly expressed by the General Court (the Legislature) of Massachusetts so long ago as 1657, as follows: “Whereas, in all civil cases depending in suit, the plaintiff affirmeth that the defendant hath done him wrong and accordingly presents his case for judgment and satisfaction—it behoveth the court and jury to see that the affirmation be proved by sufficient evidence, else the case must be found for the defendant; and so it is also in a criminal case, for, in the eye of the law every man is honest and innocent, unless it be proved legally to the contrary.”

James Bradley Thayer, The Presumption of Innocence in Criminal Cases, 6 Yale L.J.

185, 189 (1897). By ensuring that the defendant remains inactive and secure until

after the prosecution rests its case, we “not only strengthen[] th[e] safeguard against

wrongful conviction, but [we also] ensure[] . . . that the government carry the central

burden of the litigation.” LaFave et al., Accusatorial burdens, 1 Criminal Procedure

§ 1.5(d) (4th ed. 2020).

In fact, if the prosecution fails to present the necessary evidence to meet the

elements of the crime charged, then the defendant is entitled to a judgment of

acquittal at the close of the prosecution’s case. See Fed. R. Crim. P. 29. Thus, only

if the prosecution carries its initial burden of proof must the defendant consider

4 whether to present any evidence—let alone whether to testify. 3 And the decision

whether to testify is a weighty one. As the Supreme Court has recognized, “[w]hether

the defendant is to testify is an important tactical decision as well as a matter of

constitutional right.” Brooks v. Tennessee, 406 U.S. 605, 612 (1972).

[A] defendant’s choice to take the stand carries with it serious risks of impeachment and cross-examination; it may open the door to otherwise inadmissible evidence which is damaging to his case, including, now, the use of some confessions for impeachment purposes that would be excluded from the State’s case in chief because of constitutional defects. Although it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify, none would deny that the choice itself may pose serious dangers to the success of an accused’s defense.

Id. at 609 (internal quotation marks and citations omitted). Considering the nature

of this decision, a defendant must be given the opportunity to “meticulously balance

the advantages and disadvantages of . . . becoming a witness in his own behalf.” Id.

3 By requiring a defendant to testify during the prosecution’s case in chief (or not at all), a trial court also undermines other constitutional rights. Specifically, the privilege against self-incrimination. However, the history does not address the temporal aspect of whether a defendant can be required to testify before the prosecution rests its case because “at the time of framing of the Fifth Amendment and for many years thereafter the accused in criminal cases was not allowed to testify in his own behalf” at all. McGautha v. California, 402 U.S. 183, 214 (1972). Nonetheless, the purpose underlying the privilege is undoubtedly implicated. See Couch v. United States, 409 U.S. 322, 327 (1973) (“Historically, the privilege sprang from an abhorrence of governmental assault against the single individual accused of crime and the temptation on the part of the State to resort to the expedient of compelling incriminating evidence from one’s own mouth.”); see also Miranda v. Arizona, 384 U.S. 436, 460 (1966) (explaining the rationales underlying the privilege). 5 at 608 (quoting United States v. Shipp, 359 F.2d 185, 190 (6th Cir. 1966)

(McAllister, J., dissenting)). A defendant is deprived of this opportunity when he is

forced to decide whether to testify before the prosecution has completed its case.

The state argues that the trial court properly exercised its discretion in

managing trial proceedings. That trial judges have broad power to control the

proceedings before them, including the order of proof, cannot reasonably be

questioned. See id. at 613 (“[N]othing we say here otherwise curtails in any way the

ordinary power of a trial judge to set the order of proof.”). But that power is not

limitless; it must be exercised within the bounds of the law. See generally United

States v. Goode, 814 F.2d 1353, 1355 (9th Cir. 1987) (explaining that trial courts

have “broad discretion in determining the conduct and order of the [criminal] trial”

but that such discretion is limited “when a party’s rights are somehow prejudiced”)

(citing Brookhart v. Janis, 384 U.S. 1 (1966)).

Specifically, “restrictions of a defendant’s right to testify may not be arbitrary

or disproportionate to the purposes [such restrictions] are designed to serve.” Rock

v. Arkansas, 483 U.S. 44, 55–56 (1987). Thus, even though a trial court may require

a defendant to testify or rest his case when the defendant has been inefficient in its

presentation of the defense’s case, see, e.g., Loher v. Thomas, 825 F.3d 1103, 1117

(9th Cir. 2016), that does not mean a trial court can require a defendant to testify

during the prosecution’s case in chief (or not at all) to fill a gap of time in the

6 prosecution’s case. Not only is the defendant not responsible for the prosecutor’s

inefficiency and lack of planning, but—more important—a myopic focus on

efficiency in this circumstance undermines the “axiomatic and elementary” legal

doctrine of our criminal justice system: a defendant’s right to remain inactive and

secure until the prosecution completes its case and meets its burden. See Estelle v.

Williams, 425 U.S. 501, 503 (1976) (“To implement the presumption, courts must

be alert to factors that may undermine the fairness of the fact-finding process. In the

administration of criminal justice, courts must carefully guard against dilution of the

principle that guilt is to be established . . . beyond a reasonable doubt.”). On balance,

the foundational requirement that the government independently carry its burden of

proof cannot be subverted for such a trivial reason as presented here. The trial court’s

insistence that Galvez take the stand or lose his right to do so to fill a gap of time in

the prosecution’s case smacks of judicial whim, not legitimate trial management, as

the state contends. See Brooks, 406 U.S. at 608.

However, because Galvez’s case comes to us under habeas review of a state

conviction, to prevail he must show not only that the trial court erred, but that the

error has been clearly established as structural error by the Supreme Court. 28 U.S.C.

§ 2254(d); Glebe v. Frost, 574 U.S. 21, 23 (2014) (per curiam). I agree with the

majority that Galvez cannot meet this burden.

Structural errors are those that “affect[] the framework within which the trial

7 proceeds, rather than being simply an error in the trial process itself.” Weaver v.

Massachusetts, 137 S. Ct. 1899, 1907 (2017) (internal quotation marks and citation

omitted). Such errors are found in a “very limited class of cases,” Johnson v. United

States, 520 U.S. 461, 468–69 (1997) (listing cases), and reversing decisions based

on these errors serves to “ensure insistence on certain basic, constitutional

guarantees that should define the framework of any criminal trial,” Weaver, 137 S.

Ct. at 1907. The Supreme Court has identified “three broad rationales” for deeming

an error structural. Id. at 1908. First, structural error has been found where the right

at issue is not designed to protect the accused from erroneous conviction but instead

protects some other interest. Id. Denying a defendant the right to conduct his own

defense is structural error because, although the defendant is more likely to receive

an unfavorable outcome, he “must be allowed to make his own choices about the

proper way to protect his own liberty.” Id. Second, structural error has been found

where the effects of the error cannot be measured. Id. Because it will be “almost

impossible” for the government to prove beyond a reasonable doubt the

harmlessness of this error, “the efficiency costs of letting the government try to make

the showing are unjustified.” Id. A defendant’s right to choose his own attorney falls

under this rationale. Id. (citing United States v. Gonzalez-Lopez, 548 U.S. 140, 149–

50 & n.4 (2006)). Finally, structural error has been found where the error is of a kind

that always results in fundamental unfairness. Id. “For example, if an indigent

8 defendant is denied an attorney or if the judge fails to give a reasonable-doubt

instruction, the resulting trial is always a fundamentally unfair one.” Id. (citing

Gideon v. Wainwright, 372 U.S. 335, 343–45 (1963); Sullivan v. Louisiana, 508

U.S. 275, 279 (1993)). These are not rigid categories, and “more than one of these

rationales may be part of the explanation for why an error is deemed to be structural.”

Id. But “one point is critical: An error can count as structural even if the error does

not lead to fundamental unfairness in every case.” Id.

Here, there are compelling arguments for treating the state court’s error as

structural. The right to “remain inactive and secure” has important purposes beyond

protecting against erroneous convictions. It upholds the fundamental structure of our

accusatorial system by ensuring that the government independently carries its burden

of proof. See In re Winship, 397 U.S. 358, 364 (1970) (“Due process commands that

no man shall lose his liberty unless the Government has borne the burden of

convincing the factfinder of his guilt.”) (quoting Speiser v. Randall, 357 U.S. 513,

526 (1958)); see also Fed. R. Crim. P. 29. Indeed, as discussed above, the

requirement that the “proponent of the . . . charge must evidence it,” Taylor, 436

U.S. at 483 n.12 (citation omitted), is the “foundation of the administration of our

criminal law,” id. at 483 (citation omitted). And the Supreme Court has long

recognized that this requirement arises from the common law’s “devotion to human

liberty and individual rights,” which is embodied in our constitutional order. Coffin,

9 156 U.S. at 460; see also Estelle, 425 U.S. at 503 (“The presumption of innocence,

although not articulated in the Constitution, is a basic component of a fair trial under

our system of criminal justice” that is protected by the Fourteenth Amendment.”).

There is also fundamental unfairness in allowing an error that undermines the most

basic structure of our criminal prosecution system to stand. Defendants make

strategic decisions about whether to go to trial and what to present at trial with the

assumption that their right not to have to present a defense unless and until the

prosecution makes a prima facie case is intact. It may be that in some cases forcing

the defendant to testify before the prosecution’s case is completed will make no

difference to the outcome. But that is not always true. See generally Estelle, 425 U.S.

at 504 (“The actual impact of a particular practice on the judgment of jurors cannot

always be fully determined. But this Court has left no doubt that the probability of

deleterious effects on fundamental rights calls for close judicial scrutiny.”). It is not

hard to imagine how disrupting the proper order of proof could infect the reliability

of an entire trial. But more to the point, the precise structure of criminal trials was

established intentionally—choices were made to protect the liberty of the individual

against the power of the state. Such important considerations should not be tossed

aside for minor efficiency objectives.

Nonetheless, based on the current state of Supreme Court precedent, I cannot

conclude that the state court’s decision to require Galvez to testify (or lose his right

10 to do so) before completion of the prosecution’s case “was contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Perhaps this means

that the foundational principles undergirding a defendant’s right to remain “inactive

and secure” are so well-established and ubiquitous that what happened here is an

outlier. One can hope.

I respectfully concur.

11