Jacobo v. Covello

Background

Vincent P. Jacobo sought federal relief under 28 U.S.C. § 2254 from his California state convictions. A San Francisco County Superior Court jury convicted him in 2022 of second-degree murder and illegal possession of a firearm. The jury also found true an allegation that he intentionally discharged a firearm, causing great bodily injury. Jacobo admitted at trial that he had two prior strike convictions, and the court imposed a sentence of 70 years to life. His efforts to overturn the convictions in state court were unsuccessful.

The case involved the shooting death of White in 2013. Jacobo and White had a history of arguments and physical altercations. About a month before the shooting, Jacobo punched White after an argument, White pushed Jacobo down stairs, and Jacobo said he would get a gun and shoot White. On the morning of the shooting, Jacobo exchanged text messages with White, met him, and was recorded chasing White as White ran away. Witnesses heard multiple gunshots. White was found unarmed, with five visible gunshot wounds, including wounds to his back and buttock. The evidence also showed that one shot was fired from an intermediate distance and traveled downward, indicating that White was not standing when he was shot. DNA from bloodstains on Jacobo’s shoes matched White’s DNA.

Claim and governing standard

Jacobo challenged the trial court’s use of California jury instruction CALCRIM 3471, which addresses the right to self-defense when a person starts a fight or engages in mutual combat. The instruction stated that a person who starts a fight or engages in mutual combat generally must try in good faith to stop, communicate that intention, and give the other person a chance to stop before claiming self-defense. It also described an exception when the person used only nondeadly force and the opponent suddenly responded with deadly force.

Jacobo argued that the instruction was not supported by substantial evidence, conflicted with his self-defense arguments, violated his due-process right to present a defense, and prejudiced him. Under the federal standard for reviewing a state conviction, relief was unavailable unless the state court’s decision contradicted or unreasonably applied clearly established federal law, or rested on an unreasonable determination of the facts. For a jury-instruction error, Jacobo also had to show that the instruction had a substantial and harmful effect on the verdict.

Court’s analysis

The court held that Jacobo’s argument that the instruction lacked evidentiary support did not state a federal claim. It explained that the Supreme Court has held that giving a jury an accurate legal theory lacking evidentiary support does not, by itself, violate due process. The court therefore concluded that federal habeas relief was unavailable on that theory.

The court further held that, even if Jacobo had stated a valid federal claim, substantial evidence supported the instruction. The evidence included the parties’ history of disputes and physical fights, Jacobo’s earlier threat to shoot White, the absence of evidence that White was armed, video showing Jacobo chasing White, and evidence that Jacobo shot White multiple times from behind without evidence that Jacobo was injured.

The court also rejected Jacobo’s claim of prejudice. CALCRIM 3471 did not prevent him from presenting self-defense; it explained circumstances in which self-defense would not be available. The jury was instructed not to assume that an instruction applied merely because the judge gave it and to follow only the instructions that matched its factual findings. The court found the evidence against self-defense and imperfect self-defense overwhelming because White was running away while Jacobo chased him with a gun, several shots struck White in the back or buttock, and one shot’s trajectory indicated that White was not standing.

The court rejected Jacobo’s reliance on the five days of jury deliberations and the jury’s questions. Jacobo acknowledged that the questions focused on the difference between first- and second-degree murder rather than self-defense. The court concluded that the state appellate court reasonably rejected his claim and that its decision was entitled to deference under the federal habeas statute.

Disposition

Judge Seeborg denied the petition for federal habeas relief. The court stated that the state court’s decision was not contrary to, and did not unreasonably apply, clearly established federal law, and was not based on an unreasonable determination of the facts. The court also stated that a certificate of appealability would not issue, directed the clerk to enter judgment for Patrick Covello, and ordered the file closed. Jacobo may seek a certificate of appealability from the U.S. Court of Appeals for the Ninth Circuit.