1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ORLINDO ANTONIO MYLES, No. 2:15-cv-00591 TLN GGH 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 W.L. MONTGOMERY, 15 Respondent. 16 17 18 Introduction and Summary 19 Petitioner, a state prisoner proceeding through counsel, has filed an application for a writ 20 of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to the United States 21 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302(c). 22 After a lengthy exhaustion, and ultimately unproductive, hiatus, petitioner filed a Second 23 Amended Petition (“SAC”). ECF No. 38. This is one of the few cases where understanding what 24 are the precise issues in the case could be more difficult than their resolution. 25 No one contests that petitioner’s claim that the jury was erroneously instructed with an 26 accomplice instruction is an issue in this petition. The controversy surrounding identification of 27 the issues concerns the ineffective assistance of counsel claim: whether there is a singular 28 ineffective assistance claim—that petitioner’s trial counsel was ineffective for failing to ask for 1 excusal of petitioner’s jury when the co-defendant (who had a separate jury) was testifying—or 2 whether there is another issue concerning counsel’s not requesting severance of the trials in the 3 first place. The undersigned finds that no issue in this case exists with respect to a distinct claim 4 of ineffective assistance of counsel regarding failure to sever petitioner’s trial from his co- 5 defendant. 6 However, with respect to the issues actually brought herein and exhausted, the 7 undersigned finds that the ineffective assistance claim of—failing to object regarding the non- 8 exclusion of petitioner’s separate jury when the co-defendant testified—should be denied. 9 Likewise, petitioner’s claim that an accomplice jury instruction violated due process should be 10 denied as well. 11 Procedural History and Issues 12 The general background to this case is provided by the California Court of Appeal, Third 13 Appellate District, People v. Myles, No. C066505, 2013 WL 4613810, at *1 (Cal. Ct. App. Aug. 14 29, 2013): 15 Defendants Orlindo Antonio Myles and Kristopher Speight were tried together with separate juries. A jury convicted Myles of first 16 degree residential burglary; first degree robbery; assault with intent to commit rape, oral copulation, sexual penetration or sexual 17 penetration in concert; sexual penetration; and sexual penetration in concert. The jury also found true allegations that Myles committed 18 the sexual offenses during a first degree burglary and that he tied or bound the victim in the commission of the sexual offenses, 19 qualifying him for harsher punishment under the one strike law. 20 A different jury convicted Speight of first degree residential burglary; first degree robbery; sexual penetration; and sexual 21 penetration in concert. The jury also found true allegations that Speight committed the sexual offenses during a first degree 22 burglary and that he tied or bound the victim in the commission of the sexual offenses, qualifying him for harsher punishment under 23 the one strike law. 24 The trial court sentenced Myles to a determinate term of seven years four months in prison plus a consecutive indeterminate term 25 of 25 years to life. It sentenced Speight to a determinate term of three years in prison plus a consecutive indeterminate term of 25 26 years to life. 27 Because of the existence of the spurious ineffectiveness of counsel issue, the procedural 28 history needs to be set forth in detail. During the state court proceedings, petitioner made a 1 motion to sever his trial from that of his co-defendant, or in the alternative, to empanel separate 2 juries. ECF No. 46-8 at 263, et seq.1 The motion was made because the defense anticipated that 3 extra-judicial statements of the co-defendant would be introduced. In accordance with 4 petitioner’s alternative request, the trial court ordered separate juries to be empaneled. ECF No. 5 46-5 at 29. An anticipatory motion to exclude extra-judicial statements was also made. ECF No. 6 46-8 at 276. At no time did petitioner’s counsel express dissatisfaction that the alternative 7 separate jury paradigm was chosen by the trial court rather than a complete severance, i.e., two 8 separate trials entirely. It was also made clear at the inception of the trial that the co-defendant 9 would try to incriminate petitioner (and vice-versa). ECF No. 46-5 at 28. 10 At the time petitioner’s co-defendant was to testify, no objection was made by petitioner’s 11 counsel to his testimony taking place before both juries, nor did counsel otherwise ask to have 12 petitioner’s jury excused while the co-defendant’s testimony took place. See ECF No. 46-6 at 13 399-403. 14 On appeal, one claim of ineffective assistance counsel was made along with a jury 15 instruction issue regarding the “finding” of the co-defendant as an accomplice (discussed below). 16 The sole basis of the claim concerned counsel’s ineffectiveness for failing to ask that petitioner’s 17 jury be excused during the co-defendant’s testimony. ECF No. 46-1 at 2, 18-31. This precise 18 claim was repeated in the petition for review before the California Supreme Court. ECF No. 46-4 19 at 2, 13-24. 20 The first petition filed in federal court again raised only the non-excusal of the jury 21 ineffectiveness. ECF No. 1 at 4-5. So too, the first amended petition. The presently operative 22 second amended petition continued with the same issue, ECF Nos. 12 at 4-5; 38 at 2, 18-24, but 23 in arguing this sole issue, petitioner’s counsel posited that the state courts had missed the 24 “severance” issue. According to petitioner the “fact” that trials may be severed when multiple 25 defendants have antagonistic defenses “proves” that an antagonistic co-defendant’s testimony is 26 inadmissible as to the other defendant. Hence, it was all the more reason to ask that petitioner’s 27 1 In the index of the Court Transcript, ECF No. 46-8 at 10-11, the motion is erroneously described 28 as having been brought by the “People.” It was not. Petitioner’s trial counsel brought the motion. 1 jury be excused in this case. Petitioner argued that the Court of Appeal had missed this basis in 2 coming to its conclusion that petitioner had never explained why the co-defendant’s testimony 3 was inadmissible as to petitioner which would (and should) have triggered a request to excuse 4 petitioner’s jury. In the answer, respondent argued that this “new” severance issue was not 5 exhausted, but also opposed the claim as a direct assertion of ineffectiveness because trial counsel 6 had not sought to have the trials of petitioner and his co-defendant severed. 7 The undersigned does not fault respondent for being confused by petitioner’s argument in 8 thinking that petitioner was for the first time raising an issue that counsel was ineffective for not 9 having sought severance of petitioner’s trial from that of his co-defendant from the get-go, or 10 even midway through trial (if that is possible). Use of the term “severance” was somewhat 11 confusing at first glance.2 However, in fairness and in reality, petitioner was not raising a 12 separate ground for ineffectiveness based on failure to ask that the trial be severed, which in fact 13 was a request made by petitioner’s trial counsel in pretrial; counsel was merely using severance 14 cases in which to establish a reason why the co-defendant’s testimony was “inadmissible” thereby 15 “refuting” the Court of Appeal finding that petitioner had never established a basis for claiming 16 that petitioner’s jury had to be excused during the “inadmissible” testimony of the co-defendant. 17 Even petitioner agrees: “Petitioner has argued throughout the pendency of his case that he was 18 denied his right to effective assistance of counsel because trial counsel should have objected to 19 his jury hearing Speight’s testimony. The mere mention of the concept of antagonistic defenses 20 [i.e., a sometimes basis for ordering severed trials] does not change the substance of his claim.” 21 ECF No. 54-1 at 6. 22 Therefore, the undersigned finds that only one ineffective assistance of counsel claim has 23 been raised herein: that trial counsel’s asserted failure to ask that petitioner’s jury be excused 24 during the co-defendant’s testimony constituted ineffective assistance of counsel. Whether 25 petitioner’s arguments are meritorious remains to be seen. This one ineffectiveness issue 26

27 2 Generally, when one asks that a trial of a client be severed from that of a co-defendant, one is referencing a request for entirely separate trials. The only way to partly sever defendants in the same trial 28 is to use the dual jury approach, but the approach is seldom labeled a “partial severance.” 1 discussed above along with the jury instruction issue regarding the finding of the co-defendant as 2 an “accomplice” are the two issues presented in this habeas petition. 3 Discussion 4 Ineffective Assistance of Counsel 5 No party disputes that review of the petition here is governed by 28 U.S.C. § 2254, as 6 amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),. The 7 AEDPA standards for ineffective assistance of counsel were succinctly set forth in the United 8 States Supreme Court case Cullen v. Pinholster: 9 There is no dispute that the clearly established federal law here is Strickland v. Washington. In Strickland, this Court made clear that 10 “the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation ... 11 [but] simply to ensure that criminal defendants receive a fair trial.” 466 U.S., at 689, 104 S.Ct. 2052. Thus, “[t]he benchmark for 12 judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial 13 process that the trial cannot be relied on as having produced a just result.” Id., at 686, 104 S.Ct. 2052 (emphasis added). The Court 14 acknowledged that “[t]here are countless ways to provide effective assistance in any given case,” and that “[e]ven the best criminal 15 defense attorneys would not defend a particular client in the same way.” Id., at 689, 104 S.Ct. 2052. 16 Recognizing the “tempt[ation] for a defendant to second-guess 17 counsel's assistance after conviction or adverse sentence,” ibid., the Court established that counsel should be “strongly presumed to 18 have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment,” id., 19 at 690, 104 S.Ct. 2052. To overcome that presumption, a defendant must show that counsel failed to act “reasonabl[y] considering all 20 the circumstances.” Id., at 688, 104 S.Ct. 2052. The Court cautioned that “[t]he availability of intrusive post-trial inquiry into 21 attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges.” 22 Id., at 690, 104 S.Ct. 2052. 23 The Court also required that defendants prove prejudice. Id., at 691–692, 104 S.Ct. 2052. “The defendant must show that there is a 24 reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id., at 694, 25 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Ibid. That requires a 26 “substantial,” not just “conceivable,” likelihood of a different result. Richter, supra, at 112, 131 S.Ct., at 791. 27 Our review of the California Supreme Court's decision is thus 28 “doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123, 1 129 S.Ct. 1411, 1413, 173 L.Ed.2d 251 (2009) (citing Yarborough v. Gentry, 540 U.S. 1, 5–6, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (per 2 curiam) ). We take a “highly deferential” look at counsel's performance, Strickland, supra, at 689, 104 S.Ct. 2052, through the 3 “deferential lens of § 2254(d),” Mirzayance, supra, at 121, n. 2, 129 S.Ct., at 1419, n. 2. Pinholster must demonstrate that it was 4 necessarily unreasonable for the California Supreme Court to conclude: (1) that he had not overcome the strong presumption of 5 competence; and (2) that he had failed to undermine confidence in the jury's sentence of death. 6 7 Cullen v. Pinholster, 563 U.S. 170, 189-190 (2011). 8 Because the reasoning of the Court of Appeal on this issue is the touchstone of AEDPA 9 analysis, the undersigned repeats at length that analysis after giving an abbreviated backdrop of 10 the facts of the case.3 The evidence at trial was slanted heavily in favor of co-defendant’s 11 Speight’s version of events because he testified, and petitioner did not. According to the Court of 12 Appeal, characterizing Speight’s testimony/pretrial statements and other evidence, petitioner 13 came up with an idea to burglarize a specific residence for the taking of property. The burglary 14 soon morphed into sexual assaults perpetrated by petitioner on one of the female residents. The 15 co-defendant’s testimony of his actions could be described as reluctant assistance in allowing 16 petitioner to perform his sexual assaults, but ultimately reached the point of continually cajoling 17 petitioner to leave the victim alone and leave the premises. The co-defendant Speight was quite 18 specific and damning as to the sexual assault actions performed by petitioner during the burglary. 19 Petitioner’s DNA evidence was found on the victim (whereas the co-defendant’s was not). 20 The victim positively identified petitioner at two live lineups as the person who sexually assaulted 21 her, and she was able to identify the co-defendant’s presence at the scene as well. A bite mark, 22 fairly attributable to having been given by the victim was found on petitioner’s arm. An item 23 stolen from the victim was found at petitioner’s aunt’s house. 24 At various times during trial, there was evidence where petitioner’s jury was excused, e.g., 25 opening statement by codefendant’s counsel, ECF No. 46-6 at 398-99. With the exception of one 26 3 Of course, since the denial of the petition for review was without explanation, the last reasoned 27 decision of the state courts is presumed to be the reason why the state courts did not find ineffective assistance of counsel. Wilson v. Sellers, 138 S.Ct. 1188 (2018). 28 1 stipulation which demonstrated that petitioner was much smaller than the described size of the 2 attacker by the victim, petitioner’s counsel did not present any significant evidence; the defense 3 consisted of attempting to discredit evidence through cross-examination. See, e.g., ECF No. 46-6 4 at 520-577 (cross-examination of the co-defendant). As accurately characterized by the Court of 5 Appeal, the defense implied that either petitioner was not present at the scene, or strongly argued 6 that the victim had confused the roles played by petitioner and the co-defendant. See ECF No. 7 46-6 at 686-687. 8 A major portion of the trial consisted of the testimony by co-defendant, Speight. As 9 related above, petitioner’s counsel did not object that his testimony was inadmissible or otherwise 10 ask that the testimony be heard only by the Speight jury. With respect to whether petitioner’s 11 counsel rendered ineffective assistance, the Court of Appeal held: 12 Myles contends his trial counsel provided ineffective assistance by not moving to exclude Myles’s jury when Speight testified in his 13 own defense and implicated Myles. According to Myles, his primary defense was that he was not one of the intruders; his 14 alternate defense was that he was not the primary offender. But Speight’s defense was that Myles was the primary offender. Speight 15 testified accordingly in front of both juries. [footnote 3 omitted]. 16 Myles cites “general authorities” for the proposition that “the failure to object to damaging and inadmissible testimony or to make 17 appropriate motions can be the basis for a conclusion that counsel was incompetent.” But those general authorities are not dispositive 18 here because they do not involve a trial counsel’s failure to object to the testimony of a codefendant before the jury of a jointly tried 19 defendant. 20 Myles claims People v. Wardlow (1981) 118 Cal.App.3d 375 (Wardlow ) illustrates how a dual jury trial should be conducted. 21 But Myles concedes that the court in Wardlow did not consider the precise issue presented here; Myles has been unable to find a 22 published California case on point. Thus, Myles turns to cases from other states. He cites a Florida case, Watson v. State 23 (Fla.Dist.Ct.App.1994) 633 So.2d 525, which involved defendants who were tried together with separate juries (id. at pp. 525–526), 24 but that case does not assist him. Although the Florida appellate court determined, without explanation, that it was error to permit 25 defendant Watson’s jury to remain in the courtroom during eyewitness testimony exculpating codefendant Tomingo but 26 inculpating Watson (ibid.), the appellate court nonetheless affirmed the judgment against Watson because his trial counsel did not ask 27 that Watson’s jury be excused during Tomingo’s case, and, in any event, the eyewitness testimony against Watson did not render his 28 trial illegal. (Id. at p. 526.) 1 Myles also cites an Illinois case, People v. Rodriguez (Ill.Dist.Ct.App.1997) 680 N.E.2d 757, 767, but that case is 2 distinguishable. It involved the violation of a defendant’s Sixth Amendment rights where a jointly tried codefendant cross- 3 examined defendant in the presence of defendant’s jury. Here, Myles did not testify and there is no contention that Myles was 4 precluded from presenting evidence in his case. 5 Ultimately, Myles fails to specify why Speight’s testimony was inadmissible against Myles, and he fails to specify the particular 6 grounds upon which his trial counsel should have objected. This failure is fatal to his ineffective assistance claim. (People v. 7 Stankewitz (1990) 51 Cal.3d 72, 114 [no basis to conclude that counsel erred in failing to object to admission of evidence where 8 appellant offered no potential basis for objection that counsel might have overlooked]; People v. Beasley (2003) 105 Cal.App.4th 1078, 9 1092 [failure to specify the grounds for objection and show its merits on appeal defeats ineffective assistance claim].) 10 Accordingly, we need not consider his other contentions because he fails to demonstrate error by his trial counsel. (People v. Maury 11 (2003) 30 Cal.4th 342, 389 [ineffective assistance of counsel claim requires proof that trial counsel’s representation was deficient]; 12 Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] [same].) 13 14 People v. Myles, 2013 WL 4613810, at *5-6. 15 Petitioner attempts to show that the Court of Appeal got it AEDPA wrong, by arguing that 16 because severance was essentially mandatory in situations where one co-defendant will point the 17 finger at the defendant, i.e. present a defense antagonistic to the defendant’s defense, that 18 somehow makes the co-defendant’s testimony “inadmissible” against the defendant in a 19 consolidated trial. Petitioner is incorrect on all counts. 20 First, severance of petitioner’ trial from that of his co-defendant’s was not mandatory 21 either in federal or state law. 22 Nevertheless, petitioners urge us to adopt a bright-line rule, mandating severance whenever codefendants have conflicting 23 defenses. See Brief for Petitioners i. We decline to do so. Mutually antagonistic defenses are not prejudicial per se. Moreover, Rule 14 24 does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district 25 court's sound discretion. See, e.g., United States v. Lane, 474 U.S. 438, 449, n. 12, 106 S.Ct. 725, 732, n. 12, 88 L.Ed.2d 814 (1986); 26 Opper, supra, 348 U.S., at 95, 75 S.Ct., at 165. 27 We believe that, when defendants properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 28 only if there is a serious risk that a joint trial would compromise a 1 specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. Such a risk 2 might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were 3 tried alone is admitted against a codefendant. For example, evidence of a codefendant's wrongdoing in some circumstances 4 erroneously could lead a jury to conclude that a defendant was guilty. When many defendants are tried together in a complex case 5 and they have markedly different degrees of culpability, this risk of prejudice is heightened. See Kotteakos v. United States, 328 U.S. 6 750, 774-775, 66 S.Ct. 1239, 1252-1253, 90 L.Ed. 1557 (1946). Evidence that is probative of a defendant's guilt but technically 7 admissible only against a codefendant also might present a risk of prejudice. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 8 20 L.Ed.2d 476 (1968). Conversely, a defendant might suffer prejudice if essential exculpatory evidence that would be available 9 to a defendant tried alone were unavailable in a joint trial. See, e.g., Tifford v. Wainwright, 588 F.2d 954 (CA5 1979) (per curiam ). The 10 risk of prejudice will vary with the facts in each case, and district courts may find prejudice in situations not discussed here. When the 11 risk of prejudice is high, a district court is more likely to determine that separate trials are necessary, but, as we indicated in Richardson 12 v. Marsh, less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice. See 481 U.S., at 211, 107 13 S.Ct., at 1709. 14 Zafiro v. United States, 506 U.S. 534, 538-539 (1993); see also Collins v. Runnels, 603 F.3d 15 1127, 1131 (9th Cir. 2010) (no clearly established federal law which requires severance in the 16 presence of antagonistic defenses). 17 California law is even clearer that no severance would have been granted here. The court 18 held in People v. Coffman & Morrow, 34 Cal. 4th 1, 41 (2004), that there was no absolute 19 requirement of severance in the face of antagonistic defenses. Similarly, 20 “Severance is not required simply because one defendant in a joint trial points the finger of blame at another. ‘ “ ‘Rather, to obtain 21 severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses 22 are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.’ ” [Citation.] When, 23 however, there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his 24 or her guilt, and antagonistic defenses do not compel severance.' [Citation.]” (People v. Homick, supra, 55 Cal.4th at p. 850, 150 25 Cal.Rptr.3d 1, 289 P.3d 791; see Letner and Tobin, supra, 50 Cal.4th at p. 150, 112 Cal.Rptr.3d 746, 235 P.3d 62.) 26 27 People v. Hajek & Vo, 58 Cal 4th 1144, 1173 (2014) (emphasis added), abrogated on other 28 grounds, People v. Rangel, 62 Cal. 4th 1192 (2016). 1 Clearly, with evidence in this case that petitioner’s DNA was on the victim, the victim’s 2 stolen property was found with a relative of petitioner, the victim’s certain identification of 3 petitioner as the assaulter, and a bite mark attributable to having been made by the victim which 4 was found on petitioner, there was sufficient independent evidence to convict petitioner. A 5 complete severance was very doubtfully legally required in this case. Again, the issue here is not 6 severance per se, but petitioner’s theory that because severance was mandated, the resultant 7 testimony of the codefendant in petitioner’s trial before his jury was somehow inadmissible. The 8 theory does not legally even get to first base. 9 More importantly, even if severance should have been more or less a given result here, 10 petitioner does not cite any established authority for the proposition that, in the absence of 11 severance, hostile testimony by a co-defendant, subject to cross examination, is deemed 12 inadmissible. And the undersigned is aware of none. Petitioner simply clings to his post-trial 13 legal theory that because severance should have been permitted here, a codefendant’s in-court 14 testimony in a joint trial is inadmissible. Post-trial theories, however, are not established 15 authorities for which counsel ignores, purposefully or inadvertently, at her peril of being tarred 16 with an ineffective assistance label. Thus, the most likely scenario to a request to excuse 17 petitioner’s jury during Speight’s testimony, or an objection to proceeding with both juries, would 18 have been a question from the judge—on what grounds…? Trial counsel would have to have 19 said—well, I have this legal theory….not based on established authority…… We know the 20 probable continue-with-both-juries result. Dual juries are empaneled to keep inadmissible 21 evidence vis-à-vis an individual defendant from poisoning that individual defendant’s case, not to 22 prevent the submission of admissible, albeit harmful, evidence. The Court of Appeal was 23 unimpressed with petitioner’s not-based-on-authority theory. Trial counsel was not ineffective 24 for postulating the legal theory petitioner finds so compelling post-trial, and the Court of Appeal’s 25 rejection of the theory is accordingly not AEDPA unreasonable.4 26 4 The undersigned understands the logic of petitioner’s argument. In the case of complete 27 severance, in all probability, petitioner’s jury would not have heard the evidence-- although there is no rule which would have prevented Speight’s testimony against petitioner in a separate trial. Indeed, when a plea 28 arrangement is made with one defendant conditioned upon truthful testimony against the [Continued…] 1 Finally, the situation presented by Speight’s testimony was not one without any potential 2 benefit to petitioner. Reasonable counsel would have understood that petitioner’s complete 3 exoneration defense—I was not there—was in reality a pipe dream given the objective evidence 4 that he was at the scene of the crime. Trial on this theory was what is known in the defense 5 counsel trade as a “slow plea of guilty.” However, with respect to the serious sexual assault 6 charges, and who was the primary attacker, trial counsel was faced with a situation where the 7 objective evidence, with one exception as to the size of the primary attacker, pointed to her client 8 as the perpetrator. Counsel’s only reasonable opportunity was to seek to raise a reasonable doubt 9 in the jury’s mind as to the more serious sexual assault charges by building on the stipulation as 10 to the attacker’s size, and somehow make it look like the codefendant was to blame for the sexual 11 assaults. Perhaps this would raise a reasonable doubt, even if petitioner could potentially be held 12 liable for aiding and abetting. She needed to do this through cross-examination of Speight, a 13 cross examination which petitioner’s jury had to see and hear. 14 Accordingly, utilizing the above set forth legal standards for ineffective assistance 15 standards, the undersigned could not conclude that petitioner’s trial counsel was deficient in any 16 manner. More importantly, it cannot be found that the Court of Appeal was acting in any way but 17 as a fairminded appellate body in rejecting petitioner’s ineffective assistance of counsel theory. 18 Accordingly, the ineffective assistance claim should be denied. 19 Faulty Accomplice Instruction 20 Taken out of context, petitioner posits as a claim a part of an instruction given to 21 petitioner’s jury (the two juries were instructed separately) concerning the accomplice status of 22 codefendant Speight. The part of the instruction claimed as error is as follows: 23 If any of the crimes charged [against petitioner], or the lesser included crime, were committed, then Defendant Kristopher 24 Speight was an accomplice to those crimes. 25 ECF No. 46-6 at 359. 26 Petitioner claims that the instruction predisposed, or even instructed, the jury to believe 27 that petitioner was the primary defendant, and codefendant Speight a lesser involved person.

28 remaining defendant, such “antagonistic” testimony by a co-defendant occurs all the time. 1 Petitioner claims that the instruction torpedoed his partial defense that Speight was the primary 2 attacker. Petitioner had hoped to raise a reasonable doubt as to petitioner’s participation in the 3 sex crimes whatsoever. 4 However, prior to setting forth the appellate court’s decision regarding this claim, the 5 undersigned must place the instruction in its proper context. The instruction continued: 6 You may not convict the defendant of any of those crimes or the lesser included crime or any of the allegations based on the 7 statement or testimony of an accomplice alone. You may use the statement of an accomplice to convict the defendant only if:[giving 8 conditions for acceptance of an accomplice’s testimony]. 9 Id. at 359-360. 10 Thus, in reality, the instruction was of benefit to petitioner because it was instructing the 11 jury not to accept Speight’s “accomplice” testimony unless certain conditions were met. This 12 places the instruction in an entirely different light than the challenged part of the instruction taken 13 out of context. Accordingly, the undersigned would recommend denial of the claim on this basis 14 alone.5 15 Assuming that the instruction was given in a vacuum, as did the Court of Appeal, 16 the appellate court held: 17 Myles’s premise—that an accomplice is not a primary offender—is incorrect. For purposes of the CALCRIM No. 335 instruction, an 18 accomplice is “one who is liable to prosecution for the identical offense charged against the defendant.” (§ 1111; People v. Avila 19 (2006) 38 Cal.4th 491, 564; People v. Felton (2004) 122 Cal.App.4th 260, 268.) To be chargeable as an accomplice, a 20 witness must directly commit the act constituting the offense or aid and abet in its commission. (People v. Avila, supra, 38 Cal.4th at p. 21 564.) “Under Penal Code section 1111 ..., ‘accomplice’ is not synonymous with aider and abettor; a perpetrator can be an 22 accomplice.” (People v. Felton, supra, 122 Cal.App.4th at p. 269; see People v. Belton (1979) 23 Cal.3d 516, 523 [perpetrator of a 23 crime is an accomplice].) Therefore, the instruction that Speight was an accomplice did not require the jury to find that Myles was 24 the primary offender. In fact, the trial court instructed Myles’s jury on aiding and abetting, explaining that Myles may be guilty of a 25 crime as a direct perpetrator or an aider and abettor. 26 Myles concedes in his reply brief that defendants can both be accomplices. He nonetheless asserts that a reasonable jury would 27

28 5 It is no wonder petitioner’s trial counsel did not object. 1 have assumed that the CALCRIM No. 335 instruction meant that Myles was not an accomplice but was the primary offender in the 2 crimes. But this speculation finds no evidence in the record. 3 People v. Myles, 2013 WL 4613810, at *7. 4 Petitioner might have a point, again assuming that the instruction was given without its 5 proper context. While no one takes issue with the legal discussion of the Court of Appeal, the 6 point is that the jury, unlearned in the specifics of the law, would view the term “accomplice” 7 with its ordinary, everyday meaning. And that meaning connotes, at the very least, that an 8 accomplice is a helper, or subordinate to, the primary actor. An accomplice is: “a person who 9 knowingly helps another in a crime or wrongdoing, often as a subordinate.” “accomplice.” 10 Dictionary.com. 2019. https://www.dictionary.com/browse/accomplice (21 Nov. 2019). [A]n 11 accomplice is “ a person who helps someone else to commit a crime.” “accomplice.” Cambridge 12 Academic Content Dictionary. 2019. https://dictionary.cambridge.org/us/dictionary/english/ 13 accomplice (21 Nov. 2019). So, petitioner’s argument, in a vacuum, is not based purely on 14 speculation. However, when placed in its proper context, all of the force of petitioner’s point 15 regarding the asserted improper instruction is dispositively diminished. 16 In addition, in reviewing an ambiguous instruction such as the one at issue here, we inquire “whether there is a reasonable likelihood 17 that the jury has applied the challenged instruction in a way” that violates the Constitution. Boyde v. California, 494 U.S. 370, 380, 18 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). [footnote 4 omitted] And we also bear in mind our previous admonition that we “have 19 defined the category of infractions that violate ‘fundamental fairness' very narrowly.” Dowling v. United States, 493 U.S. 342, 20 352, 110 S.Ct. 668, 674, 107 L.Ed.2d 708 (1990). “Beyond the specific guarantees enumerated in the Bill of Rights, the Due 21 Process Clause has limited operation.” Ibid. 22 Estelle v. McGuire, 502 U.S. 62, 72-73 (1991). 23 As found by the Court of Appeal, albeit for different reasons, the instruction here, viewed 24 in its entirety, violated no constitutional right possessed by petitioner. Much less AEDPA error, 25 no error was committed at all. 26 Conclusion 27 Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must 28 issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A 1 certificate of appealability may issue only “if the applicant has made a substantial showing of the 2 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the reasons set forth in these findings 3 and recommendations, a substantial showing of the denial of a constitutional right has not been 4 made in this case. 5 Accordingly, IT IS HEREBY RECOMMENDED that: 6 1. The petition should be denied in its entirety on the merits and dismissed; and 7 2. The District Court decline to issue a certificate of appealability. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one 10 days after being served with these findings and recommendations, any party may file written 11 objections with the court and serve a copy on all parties. Such a document should be captioned 12 “Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections 13 shall be served and filed within fourteen days after service of the objections. The parties are 14 advised that failure to file objections within the specified time may waive the right to appeal the 15 District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 Dated: November 21, 2019 /s/ Gregory G. Hollows 17

UNITED STATES MAGISTRATE JUDGE

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