Byron Chinchilla v. Greg Lewis ( 2018 )

FILED
UNITED STATES COURT OF APPEALS
AUG 03 2018
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BYRON CHRISTOPHER CHINCHILLA, No. 16-55954
Petitioner-Appellant, D.C. No.
8:14-cv-01298-JVS-JPR
v. Central District of California,
Santa Ana
GREG LEWIS, Warden,
Respondent-Appellee. ORDER
Before: BERZON and BYBEE, Circuit Judges, and WOODCOCK,* District
Judge.
The panel judges have voted to deny appellant’s petition for panel rehearing.
Appellant’s petition for panel rehearing, filed March 23, 2018, is DENIED. The
concurrence filed on March 9, 2018 is amended and filed concurrently with this
order.
*
The Honorable John A. Woodcock, Jr., United States District Judge
for the District of Maine, sitting by designation.
FILED
Chinchilla v. Lewis, No. 16-55954
AUG 03 2018
BERZON, Circuit Judge, concurring in the judgment: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the judgment, but for different reasons than those articulated in
the memorandum disposition.
First, I disagree as to the prejudice point, even under the deferential standard
mandated by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2254(d). The jury did not entirely reject Chinchilla’s
accomplice’s version of events, as it acquitted on one of the robbery charges that
was part of the alleged aggressive behavior.
Further, the state court’s reliance on the findings of premeditation and
deliberation as factually incompatible with imperfect self-defense is unreasonable,
as there is no such factual incompatibility. “[T]he unreasonable but good faith
belief in having to act in self-defense. . . . reduce[s] an intentional, unlawful killing
from murder to voluntary manslaughter by negating the element of malice that
otherwise inheres in such a homicide.” People v. Rios, 23 Cal. 4th 450, 460-61
(2000) (internal quotation marks and emphasis omitted). A defendant may
subjectively but unreasonably believe he is in immediate danger, thereby negating
malice, yet react deliberately and with premeditation in countering the perceived
attack. See People v. Mendoza, 52 Cal. 4th 1056, 1069 (2011) (“Premeditation and
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deliberation can occur in a brief interval. The test is not time, but reflection.
Thoughts may follow each other with great rapidity and cold, calculated judgment
may be arrived at quickly.”) (internal quotation marks omitted).1
Most importantly, an imperfect self-defense instruction would have given
the jury an option closely related to the self-defense instruction it was given, but
one in which the result was not acquittal but conviction of a lesser offense. A jury
that rejected the self-defense option might well accept the imperfect self-
defense—or, at least, there is a reasonable probability that it would. See Strickland
v. Washington, 466 U.S. 668, 694 (1984).
As to the question not decided by the state court, adequacy of representation,
however, I would hold that a competent lawyer might well have adopted the
strategy of keeping from the jury the attractive option of a lesser-included offense.
Although California sentencing law is complicated, on my rough calculation, four
counts of attempted voluntary manslaughter, based on imperfect self-defense and
committed for the benefit of a gang, could have carried a sentence of anywhere
from 6.5 years to 32 years, depending on how various sentencing provisions were
interpreted and applied—a far from insignificant sentencing range. See Cal. Penal
1
I would not address the appellee’s separate legal argument, as does the
majority, see Mem. Dispo. at n.1, as the state court of appeals did not rely on it.
2
Code §§ 193(a), 664(a), 669, 1170.1, 1170.16, 1192(c)(1), 1192(c)(39); see
generally Cal. Crim. Law Proc. & Prac. 1070-73 (2017). Moreover, even if
Chinchilla could have received a manslaughter sentence on the lower end of the
scale, the court could have instead imposed an indeterminate term of 15 years to
life for committing that act “in [a] different way[],” Cal. Penal Code § 654—that
is, by aiding and abetting the shooting of an occupied motor vehicle to benefit a
gang. See Cal. Penal Code §§ 246, 186.22(b)(4)(B); People v. Brookfield, 47 Cal.
4th 583, 591 (2009).
I do not agree that Chinchilla’s attorney embraced an all-or-nothing defense
in the sense that she did not embrace Sotelo’s self-defense theory in part; she did.
In her closing argument, for example, she told the jury, “Just ask yourself is it
reasonable for Mr. Sotelo and Mr. Chinchilla to be in fear that night? Ask yourself
that question. Is it reasonable? Because when you read the jury instructions and
you deal with the self-defense instructions, that’s what it comes down to.”
But, again, a finding of self-defense results in an acquittal. The accomplice
evidence, even on a natural and probable consequences theory, was weak. An
attorney could well have concluded that offering a lesser included offense with a
substantial sentence was too likely to provide an attractive option to a jury, and that
the better option was to seek an acquittal primarily on grounds that Sotelo’s
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shooting was not reasonably predictable to Chinchilla—but, if it was, it was self-
defense, and so neither defendant was culpable.
I note that I find the sentence in this case deeply unsettling. Chinchilla will
serve four life terms for the four shots his friend fired at a moving car without
injuring anyone. Chinchilla will do so either because he had earlier robbed one of
the car’s occupants of a baseball hat and it was reasonably foreseeable that a gun
would be shot in the aftermath of that offense, or because he somehow—and how
was never proven—encouraged his friend to shoot at that car.2
But finding a sentence unsettling is an insufficient reason to grant a habeas
petition under AEDPA. I therefore concur in the judgment.
2
Chinchilla brought no sufficiency of the evidence challenge as to his
accomplice liability in state court.
4