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8 UNITED STATES DISTRICT COURT

9 FOR THE CENTRAL DISTRICT OF CALIFORNIA

10 Case No. 2: 18-cv-00553-SSS-MAR 11 ARTHUR ANDREW ANDRADE,

12 Petitioner, ORDER ACCEPTING REPORT 13 AND RECOMMENDATION OF v. UNITED STATES 14

MAGISTRATE JUDGE

15 DEBBIE ASUNCION, et al.

16 Respondents. 17

18 19 Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended 20 Petition for a Writ of Habeas Corpus, the records on file, and the Report and 21 Recommendation of the United States Magistrate Judge (“Report”). The Court 22 has engaged in de novo review of those portions of the Report to which 23 Petitioner has objected. The Court accepts the findings and recommendation of 24 the Magistrate Judge. 25 The Report recommends that the First Amended Petition be denied and 26 that this action be dismissed with prejudice. [Dkt. 100]. Petitioner’s Objections 27 to the Report, [Dkt. 116], do not warrant a change to the Magistrate Judge’s 1 Petitioner objects that the Report erroneously summarizes the record 2 based on an inapplicable legal standard. [Dkt. 116 at 1]. More specifically, 3 Petitioner appears to object that the California Court of Appeal’s factual 4 summary is not entitled to a presumption of correctness. [Id. at 7-8]. But in the 5 Ninth Circuit, that summary “is afforded a presumption of correctness that may 6 be rebutted only be clear and convincing evidence.” Moses v. Payne, 555 F.3d 7 742, 746 n.1 (9th Cir. 2009) (citing 28 U.S.C. § 2254(e)(1)). Petitioner offers 8 no evidence, much less clear and convincing evidence, as rebuttal. See Murray 9 v. Schriro, 745 F.3d 984, 999 (9th Cir. 2014) (describing a challenge to a state 10 court’s factual determination under § 2254(e)(1) as an “extrinsic” challenge that 11 calls for evidence presented for the first time in federal court). 12 Petitioner objects that the Report fails to adjudicate his meritorious claim 13 that the trial court improperly removed a disputed fact from the jury. 14 [Dkt. 116]. The disputed fact involved whether Petitioner’s December 2012 15 driving incident, in which he tailgated the victim, amounted to an act of 16 domestic violence. [Dkt. 100 at 43; Dkt. 116 at 9]. Petitioner objects that the 17 trial court impermissibly created a mandatory presumption by instructing the 18 jury that the incident, if it occurred, amounted to an act of domestic violence. 19 [Dkt. 116 at 10-11]. To the contrary, as the California Court of Appeal 20 concluded, “the jury was not instructed that the driving incident constituted 21 domestic violence. A statement that the People have presented evidence of a 22 crime does not direct the jury to find that the crime existed. . . . [T]he trial court 23 did in fact leave it to the jury to determine whether the driving incident was true 24 and whether it constituted domestic violence.” [Dkt. 100 at 46]. The California 25 Court of Appeal’s conclusion was not objectively unreasonable. See Evans v. 26 Lewis, 855 F.2d 631, 635 (9th Cir. 1988) (holding that a jury instruction did not 27 create a mandatory presumption where it told the jury it “may” infer intent from 1 the defendant’s voluntary commission of an act, without mandating the 2 inference). 3 Petitioner objects that the Report applied inapplicable and erroneous legal 4 standards to justify inferring a reckless driver is prone to premeditated murder. 5 [Dkt. 116 at 11-16]. As an initial mater, Petitioner objects that this claim was 6 not adjudicated on the merits by the state courts. [Id. at 12]. To the contrary, 7 the California Court of Appeal rejected, on the merits, Petitioner’s claim that 8 there was a lack of a rational connection between a “relatively innocuous 9 driving incident” and premeditated murder. [Dkt. 100 at 50-51]. The California 10 Court of Appeal rejected Petitioner’s benign characterization of the driving 11 incident, finding that it involved “not merely reckless driving,” but rather 12 “intentionally dr[iving] in an aggressive and intimidating manner for 15 13 minutes, coming close to the car occupied by [the victim] and her friends, and 14 alternating between tailgating and blocking the car.” [Id. at 51]. As the Report 15 found, the California Court of Appeal’s conclusion was not objectively 16 unreasonable. [Id. at 55-56]. 17 Petitioner similarly objects that a jury instruction allowing a permissive 18 inference from the reckless driving incident was unconstitutional because it 19 cannot be said that murder is more likely to flow from a single incident of 20 reckless driving. [Dkt. 116 at 13-16]. This objection, however, relies on 21 characterizing the incident as a “single prior episode of reckless driving.” [Id. at 22 16]. According to the California Court of Appeal, in contrast, the incident 23 qualified as placing “another person in reasonable apprehension of imminent 24 serious bodily injury to himself or herself, or another,” even if it was only “a 25 single incident where no injury was attempted.” [Dkt. 100 at 49]. As the 26 Report found, it was not objectively unreasonable for the California Court of 27 Appeal to conclude that, under these circumstances, the permissive-inference 1 Petitioner objects that the trial court’s instructions omitted accurate 2 statements of law critical to the prosecution’s case and Petitioner’s defense. 3 [Dkt. 116 at 16-20]. Specifically, Petitioner objects to the omission of a 4 proffered pinpoint instruction about verbal provocation being sufficient to 5 generate heat of passion for the crime of voluntary manslaughter. [Id. at 16-17]. 6 As the Report found, however, the California Court of Appeal concluded that 7 the proffered instruction was, as a matter of state law, duplicative of the 8 provocation instruction that was given to the jury. [Dkt. 100 at 58]. That 9 conclusion is binding on federal courts. [Id. at 61]. And as the Report further 10 found, no clearly established law holds that the failure to give a proffered 11 pinpoint instruction violates a defendant’s due process right to present a 12 complete defense. [Id. at 62]. 13 Petitioner similarly objects that the omission of the proffered pinpoint 14 instruction on verbal provocation violated Petitioner’s right to present a defense 15 and, moreover, went to the prosecutor’s burden to disprove heat of passion 16 beyond a reasonable doubt. [Dkt. 116 at 18]. As to Petitioner’s right to present 17 a defense, the right did not entitle Petitioner to a pinpoint instruction. See 18 Larsen v. Paramo, 700 F. App’x 594, 596 (9th Cir. 2017) (no constitutional 19 right to a pinpoint jury instruction on a defense theory). As to the prosecutor’s 20 burden to disprove heat of passion beyond a reasonable doubt, Petitioner has not 21 shown how the omission of the pinpoint instruction violated his federal rights in 22 that regard. Petitioner was entitled to a jury instruction that stated “the 23 government bears the burden of proving beyond a reasonable doubt the absence 24 of heat of passion or sudden quarrel where that defense is raised.” United States 25 v. Lesina, 833 F.2d 156, 160 (9th Cir. 1987). The jury was given this 26 instruction. [Dkt. 30-7 at 39]. 27 Petitioner objects that the imbalance of factual information, known to the 1 [Dkt. 116 at 20-29]. This objection is based on Petitioner’s claim that the 2 prosecutor suppressed medical records showing that the victim had had a 3 miscarriage, which would have shown the victim had provoked Petitioner by 4 lying about having an abortion. [Dkt. 100 at 27]. As stated in the Report, 5 Petitioner failed to establish a violation of Brady v. Maryland, 373 U.S. 83 6 (1963), because the defense was aware of the existence of the victim’s medical 7 records. See Cunningham v. Wong, 704 F.3d 1143, 1154 (9th Cir. 2013) 8 (rejecting Brady claim based on the alleged suppression of the victim’s medical 9 records because the defense would have known the records existed) (citing 10 Raley v. Ylst, 470 F.3d 792, 802-03 (9th Cir. 2006) (rejecting Brady claim based 11 on the alleged suppression of medical records where the defense knew the 12 “salient facts regarding the existence of the records”)). Moreover, Petitioner’s 13 objections do not persuasively undermine the Report’s analysis of Petitioner’s 14 failure to establish prejudice. [Dkt. 100 at 34-39]. In particular, as the Report 15 states, evidence that the victim “intentionally lied to Petitioner about aborting 16 their baby did not have the significance that Petitioner now attributes to it” 17 because he “did not know that she lied about her pregnancy at the time he shot 18 her.” [Id. at 37]. 19 // 20 // 21 // 22 23 24 25 26 27 l Petitioner objects that the prosecutor committed misconduct by falsely || implying that Petitioner had coerced the victim into having an abortion. [Dkt. 3] 116 at 23]. As stated in the Report, however, the prosecutor was entitled to 4] impeach Petitioner’s direct testimony that he was supportive of the victim’s || pregnancy. [Dkt. 100 at 40]. IT IS THEREFORE ORDERED that Judgment 6 || be entered (1) denying the First Amended Petition for a Writ of Habeas Corpus; 7 || and (2) dismissing this action with prejudice. 8 IT IS SO ORDERED. DATED: August 28, 2023

SUNSHINE YKES

United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28