Annamaria Magno Gana v. Molly Hill ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANNAMARIA MAGNO GANA, No. 17-55714
Petitioner-Appellant, D.C. No.
5:16-cv-01146-AB
v.
MOLLY HILL, Acting Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Andre Birotte Jr., District Judge, Presiding
Argued and Submitted February 8, 2019
Pasadena, California
Before: GOULD and NGUYEN, Circuit Judges, and MARBLEY,** District
Judge.
AnnaMaria Magno Gana appeals an order from the Central District of
California denying her 28 U.S.C. § 2254 petition for a writ of habeas corpus. On a
petition for a writ of habeas corpus under 28 U.S.C. § 2254, “[w]e review de novo
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
the district court’s application of AEDPA to [the last reasoned state court decision].”
Rademaker v. Paramo, 835 F.3d 1018, 1023 (9th Cir. 2016). To prevail under
AEDPA, Gana must show constitutional error and show that the error was actually
prejudicial. Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993). A federal
constitutional error is not harmless unless “it was harmless beyond a reasonable
doubt.” Chapman v. California, 386 U.S. 18, 24 (1967). And “[w]hen a Chapman
decision is reviewed under AEDPA, ‘a federal court may not award habeas relief
under § 2254 unless the harmlessness determination itself was unreasonable.’”
Davis v. Ayala, 135 S.Ct. 2187, 2199 (2015). A harmlessness determination “is not
unreasonable if ‘fairminded jurists could disagree on [its] correctness.’” Id. (quoting
Harrington v. Richter, 562 U.S. 86, 101 (2011)).
AEDPA applies because the California Court of Appeal decided that any
error at trial was harmless under Chapman. Gana argues that the California Court
of Appeal did not apply the Chapman standard and did not decide whether the
error was a federal constitutional error. But Gana has not overcome the
presumption that a claim is adjudicated on the merits. The California Court of
Appeal did not discuss whether it was applying a state or federal rule and cited the
state court decisions of People v. Wright, 146 P.3d 531 (2006) and People v.
Maury, 68 P.3d 1 (2003). Maury makes no mention of the Chapman standard, but
Wright concluded that the same type of error at issue here was harmless under both
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the state harmlessness standard and Chapman. Gana points to the dissenting
opinion that relied on a state-law harmless error standard. The dissent, however,
specifically noted that because the error was not harmless, “there is no need to
determine whether the [error] . . . is governed by a more stringent reversible error
standard.” Therefore, the California Court of Appeal’s decision that the error was
harmless under Wright and Maury constituted a determination that the error was
harmless under Chapman and meets the requirements for a merits determination
subject to AEDPA deference.
Gana cannot “show that the state court’s decision to reject [her] claim ‘was so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Davis, 135 S.Ct.
at 2199 (quoting Harrington, 562 U.S. at 103). A jury could confuse the lay and
legal definitions of unconscious, as even the prosecutor did, and the involuntary
intoxication instruction may have clarified that voluntarily taking prescription
medications did not necessarily mean that Gana was voluntarily intoxicated.
Additionally, the prosecutor told the jury in closing argument that “the possible side
effects of medication . . . . [are] not a defense.”.
But the trial court “told the jury it could consider the evidence of mental
disease, defect, or disorder in determining whether defendant ‘actually formed the
required specific intent or mental state[s],’” and Gana presented evidence of her
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altered mental state. The “hallucination” instruction told the jury that it could
consider whether Gana suffered from a hallucination or delusion in deciding whether
to find premeditation and deliberation and/or lying in wait. The voluntary
intoxication instruction told the jury that it “should consider [voluntary intoxication]
in deciding whether the defendant had the required specific intent and/or mental
state.” CALJIC 4.21. And the prosecutor’s argument in context suggests that he
may have simply been attempting to contest that Gana’s medication affected her
intent. The jury nevertheless convicted Gana of the special circumstance of lying in
wait and premeditation and deliberation.
Gana’s burden-shifting argument is unconvincing. Her argument rests on the
language in the given instructions that “If the evidence establishes that the
perpetrator of an unlawful killing suffered from a hallucination and/or delusion,”
CALJIC 8.73.1 (emphasis added), and “If the evidence shows that the defendant was
intoxicated at the time of the alleged crime,” CALJIC 4.21. (emphasis added). But
the requested instructions provide only that “evidence of involuntary intoxication
should be considered” in determining whether the mental state requirement was met.
CALJIC 4.23. The unconsciousness instruction directs that the defendant cannot be
convicted if the jury has “a reasonable doubt that the defendant was unconscious at
the time and place of the commission of the alleged crime.” CALJIC 4.30. Thus,
the requested instructions did not necessarily require the jury to find that Gana was
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in fact intoxicated or was in fact unconscious. We do not read jury instructions in
such a technical manner. See Boyde v. California, 494 U.S. 370, 380–81 (1990).
Gana cites cases in which the jury instructions included an express presumption
against the defendant. See, e.g., Sandstrom v. Montana, 442 U.S. 510 (1970);
Francis v. Franklin, 471 U.S. 307 (1985). That is not the case here. The state had
to prove that Gana had the required mental state beyond a reasonable doubt.
As the district court noted, there was “strong evidence in support of the jury’s
rejection of [Gana’s] mental state defense.” Gana told responding officers that she
shot her husband. She entertained friends at their home that morning, made several
entries in her planner in the days before the shooting, and sent notes to employees
on May 6 and 7, 2011, about business matters. While Gana argues that these factual
considerations are for the jury, it is one thing to review the evidence in the first
instance and quite another to conclude that there was enough evidence to support a
jury’s verdict. Reviewing courts routinely conduct the latter analysis on habeas
review. See, e.g., Dixon v. Williams, 750 F.3d 1027 (9th Cir. 2014); United States
v. Montalvo, 331 F.3d 1052 (9th Cir. 2003). The California Court of Appeal’s
harmlessness determination was not objectively unreasonable.
AFFIRMED.
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