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United States District Court

For the Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JOSE LENIN ROMERO,

Petitioner,

v.

JAMES A. YATES, Warden,

Respondent. /

No. C 08-1385 MHP (PR)

ORDER DENYING PETITION FOR

WRIT OF HABEAS CORPUS

INTRODUCTION

This is a federal habeas corpus action filed by a state prisoner pursuant to 28 U.S.C. 

§ 2254. For the reasons set forth below, the petition is DENIED. 

BACKGROUND

In 2005, a San Francisco County Superior Court jury found Petitioner guilty of second

degree murder, and found true an allegation that Petitioner personally used a deadly weapon.1

The trial court sentenced Petitioner to fifteen years to life, plus a consecutive one-year term

for the deadly weapon enhancement. The California Court of Appeal for the First Appellate

District affirmed the judgment, see Ans., Ex. 3 at 1, and the California Supreme Court denied

his petition for review, see id., Ex. 6. It appears Petitioner did not seek state habeas relief. 

Evidence presented at trial showed that in 2003 Petitioner beat a female prostitute to

death with a baseball bat. The state appellate court summarized the facts as follows:

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In February 2003, [Petitioner] was living in an apartment in the Mission

District of San Francisco with his grandmother and his uncle. During the

weekend that began on Friday, February 14, [Petitioner’s] grandmother went

away overnight for a family birthday. Before leaving, she repeated an earlier

admonishment she had given [Petitioner] to the effect that she did not want him

to bring women to the apartment while she was away.

On Saturday, February 15, [Petitioner] and his uncle each left the apartment

separately to go out for the evening. [Petitioner] spent the evening drinking at

two local bars, where he consumed a total of about 18 beers. As he returned to

the apartment, he was accosted by a woman who asked if he had any drugs. 

When he told her he had none, she responded by offering him her services as a

prostitute for $20. After verifying that no one was home, [Petitioner] took the

woman into his apartment, where they ingested some cocaine (both in crack

and powder form) that she provided, and then had sex.

After these activities concluded, the woman asked [Petitioner] for a cigarette,

and he went out to buy some. When [Petitioner] returned, he noticed that the

$140 in cash that he had left on a table was missing. The woman denied taking

the money. [Petitioner] became angry, and choked the woman with his hands,

breaking one of her necklaces.

[Petitioner] then asked the woman to leave the apartment, because he was

afraid his uncle would return and find that he had violated his grandmother’s

rules. The woman refused to do so, saying that she wanted to spend the night

because it was raining. When she persisted in refusing to leave despite

[Petitioner]’s repeated demands, he picked up a metal baseball bat and hit her

in the head twice, knocking her unconscious. He then half-carried, halfdragged her down the stairs leading from the back of his apartment to the rear

yard, dropping her and bumping her head in the process.

[Petitioner] left the woman, still breathing but unconscious, in a basement level

passageway that ran under his apartment building from the rear yard to the

street. When he went back to check on her an hour later, she was dead.

[Petitioner] moved the woman’s body farther toward the street end of the

passageway, used a hose to wash the blood from the passageway floor, and

then returned to his apartment.

The woman’s body remained in the passageway until the early morning hours

of Monday, February 17. At that time, [Petitioner] dragged it through the door

leading from the passageway to the street in front of his building, and left it on

the sidewalk.

The presence of the body was reported to the police early in the morning on

February 17. During the police officers’ investigation of the scene,

[Petitioner]’s uncle gave them permission to come through the apartment to

gain access to the rear yard. One of the investigating officers saw a broken

bead from the victim’s necklace near the door leading to the rear stairs. At that

point, [Petitioner] and his uncle were detained and questioned regarding the

homicide, and then released.

[Petitioner] initially denied any knowledge of the crime. After going to church

the next day, however, he contacted the police, through his cousin, and asked to

talk to them. He made an initial audiotaped statement in his apartment, with

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his cousin assisting as his interpreter, and then made an additional videotaped

statement at the police station, interpreted by a bilingual police officer.

Transcripts of both statements, with translations by a certified court interpreter,

were introduced in evidence at [Petitioner]’s trial.

The only genuinely disputed factual issue at trial was [Petitioner]’s state of

mind at the time of the killing. In [Petitioner]’s confessions, he said he became

very angry at the victim after she took his money, denied having taken it, and

then refused his repeated requests that she leave his apartment. [Petitioner]

disavowed any intent to kill the victim, explaining that he assaulted her only

because he was angry and wanted her to leave. According to [Petitioner], he

hit the victim harder than he intended because he was confused by the alcohol

and drugs he had ingested.

[Petitioner]’s mother testified to the severe physical and psychological abuse

that [Petitioner] suffered at the hands of his stepfather when he was a child.

[Petitioner] also introduced expert testimony that he suffered from mild mental

retardation, impaired impulse control, brain damage, depression, and posttraumatic stress disorder. A prosecution expert disputed these diagnoses, but

acknowledged that [Petitioner] was an emotional and impulsive person who

had a need for immediate gratification and arrived at decisions without much

thought. 

(Ans., Ex. 3 at 2–4) (footnotes removed). 

As grounds for federal habeas relief, Petitioner alleges that (1) the trial court violated

his right to due process by refusing to instruct the jury on the lesser-included offense of

voluntary manslaughter; (2) the jury instructions on second degree felony murder permitted

the jury to return a guilty verdict on the murder charge based on a legally impermissible

theory, in violation of his Sixth and Fourteenth Amendment rights to a jury trial and to due

process; and (3) the trial court’s use of CALJIC No. 2.03 violated his Sixth and Fourteenth

Amendment rights to a jury trial and to due process. 

STANDARD OF REVIEW

This court may entertain a petition for writ of habeas corpus “in behalf of a person in

custody pursuant to the judgment of a State court only on the ground that he is in custody in

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 

The petition may not be granted with respect to any claim that was adjudicated on the merits

in state court unless the state court’s adjudication of the claim: “(1) resulted in a decision

that was contrary to, or involved an unreasonable application of, clearly established Federal

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law, as determined by the Supreme Court of the United States; or (2) resulted in a decision

that was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d).

“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state

court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of

law or if the state court decides a case differently than [the] Court has on a set of materially

indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412–13 (2000).

“Under the ‘unreasonable application’ clause, a federal habeas court may grant the

writ if the state court identifies the correct governing legal principle from [the] Court’s

decision but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at

413. “[A] federal habeas court may not issue the writ simply because that court concludes in

its independent judgment that the relevant state-court decision applied clearly established

federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” 

Id. at 411. A federal habeas court making the “unreasonable application” inquiry should ask

whether the state court’s application of clearly established federal law was “objectively

unreasonable.” Id. at 409. 

DISCUSSION

1. Instruction on Lesser-Included Offense

Petitioner claims that the trial court violated his right to due process by refusing to

instruct the jury on the lesser-included offense of voluntary manslaughter. (Pet. at 6.) At

trial, defense counsel asked the trial court to instruct the jury on voluntary manslaughter. 

(Ans., Ex. 2HH at 969–71.) The trial court denied this request on grounds that there was

insufficient evidence to warrant the giving of such an instruction. (Id. at 976–77.) The trial

court did, however, instruct the jury on first and second degree murder, and involuntary

manslaughter. (Id., Ex. 2II at 1006–18.) 

The state appellate court rejected Petitioner’s claim, finding that “there is no

reasonable probability that the jury would have convicted [Petitioner] of voluntary

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manslaughter.” (Id., Ex. 3 at 8.) Though “[t]he victim’s conduct here was provocative to

some degree, but we do not believe a reasonable jury would have found that the provocation

rose to such a level as to cause an ordinary person of average disposition to act rashly or

without due deliberation and reflection.” (Id.) 

In California, voluntary manslaughter is “the unlawful killing upon a sudden quarrel

or heat of passion.” People v. Steele, 27 Cal 4th. 1230, 1252 (citation removed). For

voluntary manslaughter to apply, both “provocation and heat of passion must be

affirmatively demonstrated by the evidence.” (Id.) 

The failure of a state trial court to instruct on lesser-included offenses in a non-capital

case does not present a federal constitutional claim. See Solis v. Garcia, 219 F.3d 922, 929

(9th Cir. 2000). However, “the defendant’s right to adequate jury instructions on his or her

theory of the case might, in some cases, constitute an exception to the general rule.” Id., 219

F.3d at 929 (citing Bashor v. Risley, 730 F.2d at 1240). Solis suggests that there must be

substantial evidence to warrant the instruction on the lesser-included offense. Id., 219 F.3d

929–30 (no duty to instruct on voluntary manslaughter as lesser-included offense to murder

because evidence presented at trial precluded a heat of passion or imperfect self-defense

instruction; no duty to instruct on involuntary manslaughter because evidence presented at

trial implied malice). 

Petitioner’s claim is foreclosed by the above-cited authorities. Firstly, Petitioner has

no federal constitutional right to instruction on a lesser-included offense. See Solis, 219 at

929. Secondly, Petitioner has not shown that his case is an exception to the general rule

announced in Solis. Specifically, there was no substantial evidence to support the giving of a

voluntary manslaughter instruction. While the victim’s refusal to leave Petitioner’s

apartment and her (possible) theft of money could have been provocative, this Court cannot

say that the provocation rose to such a level as to cause an ordinary person of average

disposition to act rashly or without due deliberation and reflection. On this record, the state

appellate court’s adjudication was not constitutionally erroneous. Accordingly, Petitioner’s

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claim is DENIED.

2. Jury Instruction on Second Degree Felony Murder

Petitioner claims that the trial court violated his rights to due process and a fair trial

when it gave improper instructions on second degree felony murder. (Pet. at 14.) These

instructions, according to Petitioner, improperly permitted the jury to return a guilty verdict

on the murder charge based on a theory of felony-murder. (Id.)

The state appellate court summarized the relevant facts and its holding as follows:

It is undisputed that [Petitioner] could not properly have been convicted of

felony murder in this case. Nonetheless, both the trial court’s jury instructions

and the prosecutor’s closing argument mentioned the concept of felony murder,

in the context of distinguishing between murder and the lesser included offense

of involuntary manslaughter.

The instructions on involuntary manslaughter made clear that the elements of

this crime include the requirement that the killing have resulted from a

misdemeanor — in this case, a battery — rather than a felony. After defining

battery, however, the instructions went on to explain, in language taken from

CALJIC No. 8.51, that “If the person causes another[’s] death while

committing a felony which is dangerous to human life, the crime is murder. If

a person causes another[’s] death while committing a misdemeanor which is

dangerous to human life under the circumstances of its commission, the crime

is involuntary manslaughter.” [Petitioner] contends that this instruction should

have been omitted.

[Petitioner] further contends that the error was compounded by portions of the

prosecutor’s closing argument. Specifically, in arguing that [Petitioner]’s

crime could not be characterized as involuntary manslaughter because

[Petitioner]’s assault was a felony rather than a misdemeanor, the prosecutor

repeated the sentence from CALJIC No. 8.51 quoted ante, and added that,

“When the force used rises to the level of felony force, malice is implied. And

when you imply malice because of the level of the force, you get impliedmalice second-degree [sic] murder.” Then, after arguing that the jury should

return a true finding on the deadly weapon enhancement, the prosecutor

reiterated that “because the use of the bat is true, I would suggest to you that

this is, at a minimum, at the very least, a second-degree [sic] murder under

implied malice.” Finally, in her rebuttal, the prosecutor again argued that the

crime had to be murder rather than involuntary manslaughter because “There is

not doubt that he knew that this was lethal force. This is a felony act. Malice

is implied. That’s murder.”

[Petitioner] argues that these references to felony murder may have misled the

jury into convicting him of second degree murder on a felony murder theory

rather than on the basis of implied malice. [Petitioner] further contends . . . that

the error requires reversal because the record does not affirmatively

demonstrate that the jury did not rely on a felony murder theory. . . . . 

. . . This is not a case in which the jury was expressly instructed that it could

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find [Petitioner] guilty on a legally inapplicable theory, or in which the jury

was not instructed on an essential element of the crime. Rather, this is a case in

which the jury was properly instructed on all of the elements of first or second

degree murder, but in addition, the trial court made an erroneous passing

reference to felony murder. This is akin to the type of confusion or conflict in

the instructions which has been held to be subject to the . . . harmless error

analysis. 

. . . . 

We further agree with respondent that the error was harmless . . . The

instructions expressly informed the jury that, in order to find [Petitioner] guilty

of second degree murder, it had to find either that [Petitioner] had the intent to

kill or, in the absence of such an intent, that “one, the killing resulted [from] an

intentional act; two, the natural consequences of the act are dangerous to

human life; and three, the act was deliberately performed with knowledge of

the danger to and with conscious disregard for human life.” [Petitioner] does

not challenge the correctness or completeness of this instruction in and of itself,

but relies only on the trial court’s having made a passing reference to felony

murder, in an isolated sentence and in a different context. In addition, even in

this context, the court defined battery as a misdemeanor, not a felony, and did

not mention any other crime [Petitioner] might have committed that the jury

could have interpreted as the predicate for felony murder.

Nonetheless, [Petitioner] speculates that because “[a]ssault with a deadly

weapon is a commonly-known felony,” and the prosecutor’s argument

characterized [Petitioner]’s use of the baseball bat as a felonious assault, the

jury might have supplied it as the predicate felony for a felony murder

conviction, and thus convicted [Petitioner] without finding the requisite malice.

This argument overlooks the fact that, with the exception of the isolated

reference of which [Petitioner] complains, the jury was never even told of the

existence of the felony-murder rule, much less instructed that it could convict

[Petitioner] on that basis. Thus, in order to find the error harmful, we would

have to assume that the jury not only found that [Petitioner] had committed a

predicate felony, in the absence of any instructions on that subject, but that it

also disregarded the trial court’s explicit instructions regarding the requisite

intent for second degree murder, choosing instead to base its verdict on

erroneous references to felony murder embedded in the prosecutor’s closing

argument.

This is not the law. In analyzing a claim of error based on misstatements of

law by the prosecutor during closing argument, “we presume that the jury

relied on the instructions, not the arguments, in convicting defendant. ‘[I]t

should be noted that the jury, of course, could totally disregard all the

arguments of counsel’ . . . [O]ur presumption [is] that ‘the jury treated the

court’s instructions as statements of law, and the prosecutor’s comments as

words spoken by an advocate in an attempt to persuade.’ [Citation removed.]

Moreover, there is ample evidence in the record supporting [Petitioner]’s

conviction of second degree murder on an implied malice theory, based on the

conscious disregard for life that is evident from [Petitioner]’s course of conduct

in hitting the victim’s head twice with a metal baseball bat, and then

abandoning her in a bleeding and unconscious state. For all of the foregoing

reasons, we can only conclude that the erroneous references to felony murder

in the instructions and the closing argument were harmless beyond a reasonable

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doubt. 

(Ans., Ex. 3 at 8–12) (footnotes and italics removed) (emphasis added). 

To obtain federal collateral relief for errors in the jury charge, a petitioner must show

that the ailing instruction by itself so infected the entire trial that the resulting conviction

violates due process. See Estelle v. McGuire, 502 U.S. 62, 72 (1991); Cupp v. Naughten,

414 U.S. 141, 147 (1973); see also Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)

(“‘[I]t must be established not merely that the instruction is undesirable, erroneous or even

“universally condemned,” but that it violated some [constitutional right].’”). The instruction

may not be judged in artificial isolation, but must be considered in the context of the

instructions as a whole and the trial record. See Estelle, 502 U.S. at 72. In other words, the

court must evaluate jury instructions in the context of the overall charge to the jury as a

component of the entire trial process. U.S. v. Frady, 456 U.S. 152, 169 (1982) (citing

Henderson v. Kibbe, 431 U.S. 145, 154 (1977)). 

Petitioner is not entitled to habeas relief on this claim. Firstly, the misstatements of

the law are not as damaging as Petitioner asserts. The erroneous instruction, significantly,

did not allow the jury to find murder on the facts of the case. While the instruction allowed

the jury to find murder if the predicate act was a felony, it was not allowed to so find if the

predicate act was a misdemeanor. The trial court specifically described Petitioner’s predicate

act as a misdemeanor, not as a felony. Also, the erroneous instruction was given once, and

was, in the words of the state appellate court, a “passing reference.” Finally, as to the

prosecutor’s alleged compounding of the error, the trial court specifically instructed the jury

that it “must accept and follow the law as I state it to you.” (Ans., Ex. 1C at 566.) “If

anything concerning the law said by the attorneys in their arguments or at any other time

during the trial conflicts with my instructions on the law, you must follow my instructions.” 

(Id.) This Court must presume that the jurors followed their instructions. See Richardson v.

Marsh, 481 U.S. 200, 206 (1987). 

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Secondly, there was sufficient evidence on which a reasonable juror could have found

Petitioner guilty of second degree murder beyond a reasonable doubt. As stated above, the

jury received correct instructions on murder. Murder, whether first or second degree, “is the

unlawful killing of a human being . . . with malice aforethought.” See Cal. Pen. Code § 187. 

Petitioner beat the victim in the head with a baseball bat, knocking her unconscious. He

dragged the victim’s body to the back yard, and, when he checked on her an hour later, she

was dead, indicating that the blows were severe enough to cause death within a fairly short

time. He moved the body, and then washed away the blood before returning to his

apartment. Petitioner moved the body again the next day, depositing it on the sidewalk. 

From these facts — Petitioner attacking the victim in a vulnerable area of her body with a

powerful weapon and with great force, his failure to check on the victim for nearly an hour

after the brutal beating, his failure to seek medical attention for her when she was still alive,

his abandonment of her to let her die, his cleaning up the crime scene and disposing of the

body — a reasonable juror could infer that Petitioner killed the victim with the intention of

causing the victim’s death. Accordingly, this claim is DENIED. 

3. CALJIC No. 2.03

Petitioner claims that the trial court’s use of CALJIC No. 2.03 violated his Sixth and

Fourteenth Amendment rights to a jury trial and to due process. (Pet. at 15.) 

The state appellate court summarized the relevant facts and its holding as follows:

Over [Petitioner]’s objection, the trial court instructed the jury that “If you find

that before this trial the defendant made a willfully false or deliberately

misleading statement concerning the crime for which he is now being tried, you

may consider that statement as a circumstance tending to prove consciousness

of guilt. However, that conduct by itself is not sufficient to prove guilt. And

its weight and significance, if any, are for you to decide.” (CALJIC No. 2.03.)

[Petitioner] contends that giving this instruction was error, because it

improperly pinpointed one piece of evidence in the prosecution’s case, and

tended to lighten the prosecution's burden of proof. He acknowledges,

however, that the California Supreme Court has rejected his position . . .We

are, of course, bound by the high court’s decision. [Citation removed.]

In any event, even if the instruction had been given in error, any such error was

harmless beyond a reasonable doubt. Given the admission into evidence of

[Petitioner]’s unequivocal confessions, coupled with the forensic evidence

corroborating [Petitioner]’s guilt, there is simply no possibility that the jury’s

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decision to convict him of second degree murder was based on, or even

influenced by, an inference of guilty conscience based on his initial false

statements.

 (Ans., Ex. 3 at 12–13.) 

“In California, this instruction is proper in cases in which there is testimony indicating

that before trial the defendant had made several statements, relating to the crime, which were

inconsistent with each other.” Turner v. Marshall, 63 F.3d 807, 819–20 (9th Cir. 1995)

(citations removed) (overruled on other grounds by Tolbert v. Page, 182 F.3d 677 (9th Cir.

1999) (en banc)). 

Petitioner is not entitled to habeas relief on this claim. Firstly, there was a proper

factual basis for the instruction. Specifically, Petitioner did at first deny having any

knowledge of the crime, as the state appellate court found. Secondly, the Ninth Circuit has

held that the use of CALJIC No. 2.03 does not violate a defendant’s constitutional rights. 

Turner, 63 F.3d at 820. This Court is bound by the Ninth Circuit’s holding in Turner. 

Accordingly, Petitioner’s claim is DENIED. 

CONCLUSION

The state court’s adjudication of the claim did not result in a decision that was

contrary to, or involved an unreasonable application of, clearly established federal law, nor

did it result in a decision that was based on an unreasonable determination of the facts in

light of the evidence presented in the state court proceeding. Accordingly, the petition is

DENIED. 

//

//

//

//

//

//

//

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A certificate of appealability will not issue. Reasonable jurists would not “find the

district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Petitioner may seek a certificate of appealability from

the Court of Appeals. 

The Clerk shall enter judgment in favor of Respondent, and close the file. 

IT IS SO ORDERED.

DATED: April 21, 2010 MARILYN HALL PATEL

United States District Judge

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1. See Cal. Pen. Code §§ 187 & 12022(b)(1). 

NOTES

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