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California Court of Appeal Grants Habeas Relief Over Failure to Instruct Jury on ‘Heat of Passion’

Jonathan Hampton filed his appeals and at least two habeas corpus petitions in state court after his 2009 conviction for second-degree murder. He was found guilty by a jury of shooting and killing someone during a drug deal gone bad. While the facts of how the shooting happened were unclear, Hampton testified at his trial that he was trying to escape from a man holding a gun to his head who was robbing him. He said when the gun landed in his lap and the man lunged for him, he shot him “without thinking.” He feared for his life, he said.

Instead of first-degree murder, the jury found him guilty of second-degree murder. The issue in Hampton’s third habeas petition was whether his appellate lawyer was ineffective for failing to challenge that the trial court was required to give the jury a “heat of passion” instruction, which could have allowed a conviction for voluntary manslaughter, not murder.

First, Hampton had to get over some procedural hurdles the State raised. Claims that could have (and should have) been raised on direct appeal cannot be the basis for a habeas petition. Neither can claims that were raised and lost on appeal. But new facts arising after an appeal may allow a new claim in a habeas petition if the petitioner acts with “due diligence” in finding those facts. This, if adequately explained, can provide an exception to the rule against piecemeal habeas litigation.

But where a claim should have been raised on appeal but appellate counsel neglected to do so, ineffective assistance of appellate counsel (“IAAC”) can form the basis to at least avoid that first bar. Hampton, though, also needed a new factual basis to support that claim because his conviction had been “final” for so many years.

In People v. Thomas, 218 Cal.App.4th 630 (2013), the First Appellate District held that the trial court prejudicially erred in denying a jury instruction on heat of passion to allow voluntary manslaughter, not unlike Hampton’s case. The court there recognized that “heat of passion” is a “state of mind caused by legally sufficient provocation that causes a person to act, not out of rational thought but out of considered reactions to the provocation.” In Thomas, the court found the defendant “fired because he was afraid, nervous and not thinking clearly.” The court concluded that under CALCRIM No. 570, a killing that would otherwise be murder is reduced to voluntary manslaughter “if the defendant killed someone ... in the heat of passion.”

Hampton filed an affidavit swearing that he did not become aware of the Thomas case until a fellow prisoner handed him the written opinion in July 2014. He also said he lacked the skill needed to find it on his own in the law library and that he had no money to hire a lawyer to research it for him. The Court credited his assertions to help excuse his delayed filing.

Finding the Thomas case was not the new fact to allow a late filing, the Court did clarify that Hampton’s claim did not rely on Thomas. “The key fact underlying the IAAC claim is that Hampton’s appellate counsel unreasonably failed to raise the instructional error claim in his appeal,” the Court said. Hampton “remained unaware” that he had a valid IAAC claim until he saw the Thomas case in 2014. That was enough to excuse the procedural barriers for Hampton.

The question then became whether the appellate court would have found the trial court erred in not providing the instruction sua sponte to the jury about the heat of passion rule. If so, Hampton’s appellate counsel would have been ineffective. The Court found that there was “substantial evidence” that a “reasonable jury” could have found the instruction persuasive. Even if the jury would not have believed all of Hampton’s testimony, other evidence could have supported the instruction, the Court said.

The standard is whether Hampton’s firing of the gun was a rational thought or out of “considered reactions to the provocation of being robbed at gunpoint,” the Court said. “Heat of passion manslaughter is a lesser included offense of murder, facts permitting, because it negates the element of malice,” the Court explained.

The failure of the trial court to issue the heat of passion instruction violated Hampton’s federal constitutional rights. “Jury instructions relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violate the defendant’s due process rights under the federal Constitution,” the Court said.

“There is at least a reasonable probability the jury believed enough of Hampton’s testimony to conclude that while he did not kill [the person] in self-defense ... his judgment was so obscured by intense emotion that he fired the gun without thinking, acting from passion rather than judgment,” the Court concluded.

Related legal case

In re Hampton

 

 

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