MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DISMISSING ACTION WITH PREJUDICE

JACQUELINE CHOOLJIAN, Magistrate Judge.

I. SUMMARY

On February 15, 2013, Joseph Ruben Macias ("petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 and an attached memorandum (the "Petition").1 Petitioner asserts that there was insufficient evidence to support certain of his conviction counts and a firearm enhancement and that the trial court gave a jury instruction which violated his constitutional rights. On June 27, 2013, respondent filed an Answer and a supporting memorandum ("Answer").2 On July 21, 2014, petitioner filed a Traverse.

For the reasons stated below, the Petition is denied, and this action is dismissed with prejudice.

II. PROCEDURAL HISTORY

On May 6, 2009, the Los Angeles County District Attorney filed an Information charging petitioner and co-defendant Jonathan Rodriguez ("Rodriguez") with multiple second degree robberies of individuals working at a lunch truck on or about December 21, 2008 (counts 1-3 against Rodriguez, counts 6-8 against petitioner), December 22, 2008 (count 9 against petitioner only), and December 30, 2008 (count 10 against petitioner only), and further alleged as to each such robbery that a principal personally used a firearm ("firearm enhancement(s)") and that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang ("gang enhancement(s)").3 (CT 88-93). On January 26, 2010, a Los Angeles County Superior Court jury found petitioner guilty of all five of the second degree robbery counts against him (counts 6-10) and found true all of the firearm enhancement and gang enhancement allegations relative to such counts. (CT 219-23).4 The trial court sentenced petitioner to a total of 26 years in state prison. (CT 299-300).

On November 17, 2011, the California Court of Appeal affirmed the judgment in a reasoned decision. (Lodged Doc. 8). On February 22, 2012, the California Supreme Court denied review without comment. (Lodged Doc. 11).

III. FACTS5

At all pertinent times, Jose Mojica ("Mojica") owned a "lunch" trailer which he towed to a location in Montebello, where he cooked and sold food from 6 p.m. through 11 p.m. daily. (RT 624-28, 636, 638). Mojica generally worked with his nephew, Jose Cervantes ("Cervantes"), and/or his brother in law, Oswaldo Velasquez ("Velasquez"). One person would cook while the other person would sell food. (RT 627, 716, 727, 928-29, 1030-31). Transactions would take place via the cashier through a window to the trailer. (RT 632).

A man robbed Mojica at gunpoint on December 22, 2008, while Mojica and Velasquez were working in the trailer. (See RT 638-42, 672-73, 705-07 [Mojica testifying that it was Cervantes who was working with him at the time]; but see RT 949-53 [Velasquez testifying that he was present for this robbery], RT 1050 [Cervantes testifying that he did not work on December 22, 2008]. The robber asked Mojica for money while pointing a gun at Mojica's chest through one of the trailer's windows. (RT 640-42, 671). Mojica gave the robber money from the cash register and the robber left. (RT 642, 676-78; but see RT 673 [Mojica testifying it was Cervantes who gave the money to the robber]). The robber was wearing a black hoodie with the hood up and loose black pants. (RT 642, 662, 669).

Mojica had seen this robber two or three times before — the robber had come to the trailer on prior occasions where Mojica was able to see the robber's face. (RT 643, 645, 650, 670, 693). Mojica identified petitioner in court as the man who robbed him on December 22, 2008, and testified that he recognized petitioner at the time he was robbed. (RT 643-45, 714-15).6 Mojica had no doubt that petitioner was the man who robbed him. (RT 665, 715, 726).7 Mojica had never seen Rodriguez before. (RT 665).

Mojica recalled petitioner returning to the trailer and demanding money some time about a week after the December 22, 2008 robbery. (RT 645-47, 705, 707, 724, 727). Petitioner again demanded money through one of the trailer's windows while pulling out a gun where Mojica could see it and pointing the gun down. (RT 647-48, 706-07, 724; but see RT 689 [Mojica testifying that he did not see the gun when petitioner demanded the money]). Mojica was scared and gave petitioner all the money Mojica had. (RT 648-49, 724). Petitioner left in a car but Mojica did not get a look at the car. (RT 648, 650; but see RT 688-89 [Mojica testifying that he saw petitioner get into a Mustang after this robbery]).8 Mojica once again recognized petitioner because petitioner had come several times to the trailer and Mojica could see petitioner's face and recognized his voice. (RT 649). Both times Mojica was robbed, petitioner was about three to four feet away from Mojica. (RT 649-50). Mojica reported each robbery to the police on the day it happened and police responded the same day. (RT 708-09).9

Mojica did not know whether petitioner was a gang member, but described petitioner as being dressed as a "cholo," or gang member, on the day of the robberies. (RT 663-64). He did not see petitioner make gang signs or use the words "El Sereno." (RT 694). Mojica said he was afraid that "they" would seek revenge for his reporting the robberies to the police. (RT 709).

Velasquez and Cervantes testified about a third robbery that took place on December 21, 2008, while they were working at the trailer with David Dominguez. (RT 930, 932-49, 1034-37, 1040-49; see also RT 1544-53 [Dominguez testifying re same]; but see RT 1587 [Dominguez stating on cross-examination that the date of the robbery was December 29]). Velasquez was preparing food and Cervantes was working the cash register, when a man came through the window of the trailer into the trailer behind Velasquez. (RT 932-33, 936-37, 1035, 1041-42, 1545, 1547, 1589). According to Velasquez, the man was bald with a shaven head and wearing a loose sweatshirt and baggy pants. (RT 946). Cervantes described the man as wearing a white shirt and baggy blue pants. (RT 1045-46). Dominguez described the man as bald and wearing a black jacket with blue or black oversized pants. (RT 1552, 1589). The man went to Cervantes and demanded money, then went to Velasquez and Dominguez and took their money and Dominguez's cell phone and left. (RT 937-40, 1042-44, 1051-52, 1546, 1548; but see RT 1594 [Dominguez testifying that his cell phone was not taken]). Velasquez thought the man in the trailer had a weapon; he felt something he thought was a gun that was heavy, hard, and dull, put against his back. (RT 938-39, 1000). Cervantes saw the man in the trailer with a black 9-millimeter gun in his hand. (RT 1042, 1044). Dominguez did not see whether the man had a weapon in his hand. (RT 1546).

Velasquez had a "little" opportunity to see the robber's face, which he said was "somewhat" familiar because Velasquez had seen the robber once before. (RT 941). Dominguez initially said he had not seen the robber before, but then said the robber looked familiar because he may have seen the robber near the trailer before. (RT 1555). Velasquez did not identify anyone in court as the robber. (RT 941). Cervantes and Dominguez also did not identify anyone in court as the robber. (RT 1053, 1558).

Velasquez, Cervantes, and Dominguez each saw another person outside the trailer who came with the robber. (RT 941, 1045, 1548-49). Velasquez described the second person as wearing a navy blue cap that said "Sereno," a sweatshirt with the hood on, and baggy pants. (RT 942-43). Cervantes described the second person as wearing black pants, a black sweatshirt, and a black cap with the words "El Sereno," but could not recall if the pants were oversized. (RT 1046-47). Dominguez described the second person as wearing a blue sweatshirt, but did not notice whether the sweatshirt had a hood, and did not see either robber wearing a cap with the word "Sereno" on it. (RT 1551-52, 1589). Dominguez said the person outside was bald. (RT 1589).

Velasquez saw the second person holding a black gun in his hand and said the person was staring at or "mad-dogging" the men in the trailer, while waving his hands like saying, "hurry up." (RT 942, 944, 1000). Cervantes saw the second person moving his hands and flashing signs from his neighborhood. (RT 1045). Dominguez could see the second person's face but did not see him doing anything with his hands. (RT 1550-51). To Dominguez, the second man appeared to be looking around. (RT 1551). Velasquez, Cervantes, and Dominguez were afraid. (RT 942, 1045, 1547).

Velasquez had seen the second person about two times before the robbery and had seen his face, which was familiar to Velasquez. (RT 944). Velasquez feared the second person because he had come yelling that "this was his hood," and Velasquez thought that the person would be collecting money from the trailer often. (RT 945). Dominguez had never seen the second person before the robbery. (RT 1555-56). Cervantes and Dominguez both thought that the people who robbed the trailer on December 21, 2008 were Cholos, or gang members. (RT 1047-48, 1555). Velasquez, Cervantes, and Dominguez did not identify anyone in court as the second person. (RT 945, 1053, 1558-59).

After the robbery, Velasquez saw the two men leave together in a Toyota Corolla. (RT 947, 1027; see also RT 1052 [Cervantes testifying that the two men left together in a car but he did not recall the type of car]; RT 1552-53 [Dominguez testifying that he saw the two men leave together in a "little old car"]).

Velasquez testified that the same two men returned the next day (December 22, 2008) and robbed the trailer. (RT 950). The man who entered the trailer during the first robbery was the same man who robbed the trailer the next day with a gun. (RT 950-53, 1000). The men drove away in the same Corolla. (RT 1013-14). Cervantes was not working that day and never saw the robbers from December 21, 2008 again. (RT 1050, 1056). Dominguez testified that he did work the next day, but did not testify about a robbery that day. (RT 1590).

Velasquez was in fear of retaliation when he testified. (RT 945-46). He said that the defendants in the courtroom had been to the truck on other occasions (i.e., often), but were not there on December 21 or 22, 2008. (RT 946, 954, 962, 985-86, 990-91, 1011).10 Petitioner and Rodriguez had been to the trailer on December 30, 2008. (RT 954). Velasquez said that petitioner and Rodriguez were used to being given food, but that day petitioner asked Mojica for food and money. (RT 955-56). Rodriguez approached and said to give petitioner what petitioner was asking for and nothing would happen to Velasquez and Mojica. (RT 959). Velasquez could not see whether petitioner or Rodriguez were armed. (RT 956, 960, 995, 998, 1011, 1018-19). Petitioner took the food and money and left with Rodriguez in a white Mustang. (RT 957, 960, 1014, 1019).

Velasquez identified a photograph from a lineup on December 31, 2008, and another photograph on January 13, 2009, as looking like the robbers. (RT 966-69, 974-79, 990-91, 995). Velasquez chose petitioner's photograph, noting, "At the time [petitioner] came asking for food, we gave them [sic] to him. But he came some other time he came asking for money, and he had a gun." (RT 978-79, 984-85, 996-98; see also RT 1620 [police officer identifying photograph number 3 as a photograph of petitioner]). Velasquez chose Rodriguez's photograph as the person with petitioner for the December 30, 2008 robbery. (RT 990-93). Velasquez feared retaliation when he chose the photographs. (RT 970-71). Velasquez had no doubt that petitioner and Rodriguez were the men who robbed the trailer on December 30, 2008. (RT 1021).

Cervantes testified that he had seen the men who robbed the trailer on December 21, 2008 before, about four times per week for three weeks prior. (RT 1036-37, 1040). Cervantes could see their faces and hear their voices. (RT 1040-41).11Dominguez identified photographs from two separate lineups on January 16, 2009, as looking familiar or similar to the robbers from December 21, 2008, but at trial said that the photograph of petitioner was not of the man who entered the trailer and robbed him. (RT 1567-74, 1578-80, 1585-87, 1596-97, 1601, 1603). Dominguez noted at the time of the identification of petitioner's photograph, "I recognize number 3 because I saw him 2 times in the trailer, and he demanded food. Two times, he didn't pay. He intimidated all of us. Sometimes he asked for money. I recognize him 100 percent." (RT 1575). Regarding Rodriguez's photograph, Dominguez noted, "I know him because he came with number 3. He also asked for money. He didn't pay. He frightened all of us. He intimidated all of us because of his gang. 100 percent." (RT 1579).

A gang expert testified about the El Sereno gang territory, membership, activities, identifiers and symbols, and detailed two cases where El Sereno gang members were convicted of predicate crimes. (RT 1265-76, 1280-82, 1289-91). The expert was familiar with petitioner from prior contacts and opined that petitioner was an active gang member with the moniker "Merit," based on a purported self-admission in July of 2008, the time of the expert's contact with petitioner, petitioner's contact with other active El Sereno gang members, and the area in which petitioner had been seen. (RT 1282-84, 1291-95, 1300-01, 1333-39). Petitioner did not have any tattoos. (RT 1295, 1341, 1877-78). The expert was also familiar with Rodriguez from research rather than personal contacts, but opined that Rodriguez was an active gang member with the moniker "Little Clumsy," based on Rodriguez's gang tattoos and Rodriguez's contact with other active El Sereno gang members. (RT 1295-96, 1302-04, 1344). The expert opined that the robberies charged were committed for the benefit of the gang based on the location of the trailer in an area controlled by El Sereno, the fact that neither robber attempted to cover his face and came to the trailer multiple times, and acts the expert described as efforts to instill fear and intimidation in the community and the victims. (RT 1306-14, 1346-50).

Responding police officers James Le and Richard Contreras testified for the defense about the robberies. (RT 1848-60). Officer Le spoke responded on the day of the December 21, 2008 robbery and spoke with Cervantes, Velasquez, and Dominguez, who provided descriptions of the suspects. (RT 1851). Officer Le noted that the suspect who came inside the trailer was described as having a tattoo on the back of his neck, and the suspect who was outside the trailer was wearing a hat with "El Sereno" on it. (RT 1851-52). Officer Contreras responded on the day of the December 22, 2008 robbery and spoke with Mojica. (RT 1856-57). Mojica reportedly told Officer Contreras that the suspects on December 22, 2008 were the same suspects from the robbery the day before. (RT 1858).

IV. STANDARD OF REVIEW

This Court may entertain a petition for writ of habeas corpus on "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). A federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal 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).12

In applying the foregoing standards, federal courts look to the last reasoned state court decision. See Smith v. Hedgpeth, 706 F.3d 1099, 1102 (9th Cir.), cert. denied, 133 S.Ct. 1831 (2013). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (cited with approval in Johnson v. Williams, 133 S.Ct. 1088, 1094 n.1 (2013)); Cannedy v. Adams, 706 F.3d 1148, 1158 (9th Cir. 2013) (it remains Ninth Circuit practice to "look through" summary denials of discretionary review to the last reasoned state-court decision — whether those denials are on the merits or denials of discretionary review), as amended on denial of rehearing, 733 F.3d 794 (9th Cir. 2013), cert. denied, 134 S.Ct. 1001 (2014).

V. DISCUSSION

A. Petitioner's Insufficiency of the Evidence Claim Does Not Merit Habeas Relief

Petitioner contends that there was insufficient evidence to establish his identity as one of the two perpetrators who committed the December 21 and 22, 2008 robberies (counts 6-9), and that the evidence was insufficient to establish that a principal was armed during the December 30, 2008 robbery (i.e., the firearm enhancement relative to count 10). (Petition at 31-40; Traverse at 3). Petitioner argues that the evidence adduced at trial "did nothing more than raise a strong suspicion of [petitioner's] guilt," which purportedly "is not enough to support a conviction." (Petition at 31) (citing People v. Kunkin, 9 Cal.3d 245, 250 (1973)).13 Petitioner does not dispute that he committed the December 30, 2008 robbery (count 10). (Traverse at 3).

The California Court of Appeal rejected petitioner's claim on its merits on direct appeal, noting that identification by even a single eyewitness can be sufficient to prove identity, and highlighting the in-court and extrajudicial identifications for the December 21 and 22, 2008 robberies, as well as Mojica's testimony that a gun was used during the December 30, 2008 robbery. (Lodged Doc. 8 at 8-10).

This Court agrees with the Court of Appeal's analysis. Petitioner is not entitled to federal habeas relief on this claim.

1. Pertinent Law

On habeas corpus, the court's inquiry into the sufficiency of evidence is limited in that it is subject to two layers of judicial deference. Coleman v. Johnson, 132 S.Ct. 2060, 2062 (2012) (per curiam).

First, on direct appeal, "it is the responsibility of the jury — not the court — to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury." Id. (quoting Cavazos v. Smith, 132 S.Ct. 2, 4 (2011) (per curiam)); see Jackson v. Virginia, 443 U.S. 307, 319 (1979) (standard of review on sufficiency of the evidence claim is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.") (emphasis in original). "[T]he only question under Jackson is whether [the jury's] finding was so insupportable as to fall below the threshold of bare rationality." Coleman, 132 S. Ct. at 2065.

Second, on habeas review, "a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was `objectively unreasonable.'" Coleman, 132 S. Ct. at 2062, 2065 (state court determination that jury's finding was not so insupportable as to fall below the threshold of bare rationality is entitled to considerable deference on habeas review) (citations omitted); see Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005) (as amended) (on federal habeas review, relief may be afforded on sufficiency of the evidence claim only if state court's adjudication of such claim involved unreasonable application of Jackson to the facts of the case), cert. denied, 546 U.S. 1137 (2006).14

Sufficiency of the evidence claims are judged by the elements defined by state law. Jackson, 443 U.S. at 324 n.16. In California, a robbery conviction requires proof of "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." Cal. Penal Code § 211; CALCRIM No. 1600; People v. Scott, 45 Cal.4th 743, 749 (2009). Petitioner does not claim that there was insufficient evidence to establish that Velasquez, Cervantes, Dominguez, and Mojica were robbed as charged (see Petition at 32-33; see also RT 1896-97 (trial court's summary for the jury the individual charges by date and victim)); rather, petitioner challenges only the sufficiency of the identity evidence to support his robbery convictions for December 21 and 22, 2008, and the evidence that a principal used a firearm during the December 30, 2008 robbery. See Petition at 31-40 (discussing the various inconsistencies in the victims' testimony).

2. Analysis

Petitioner essentially argues that the victims' identifications of him were too unreliable and insubstantial to support his conviction because: (1) none of the victims from December 21, 2008 (Velasquez, Cervantes, and Dominguez) identified petitioner in court as one of the robbers (Petition at 33-34); (2) Velasquez and Cervantes both testified that the robber who entered the trailer on December 21, 2008 had a tattoo on his neck (as reported to Officer Le), and petitioner did not have any tattoos (Petition at 33-35); (3) while Dominguez identified petitioner's photograph from a lineup prior to trial as one of the men who robbed him on December 21, 2008, Dominguez testified at trial, "This is not the person who robbed me." (Petition at 34 (citing RT 1570)); (4) as to the December 22, 2008 robbery, Velasquez testified that the robber was the same man who robbed the truck the day before, and again Velasquez did not identify petitioner in court as the December 21 or 22, 2008 robber, whereas he identified petitioner as committing the December 30, 2008 robbery (Petition at 35-36); (5) the only victim to testify that petitioner committed the December 22, 2008 robbery was Mojica, whose testimony was "confused," (e.g., Mojica did not correctly recall who was working with him that night) (Petition at 37-38). Petitioner also argues that Mojica's testimony, which provided the only evidence that a robber was armed on December 30, 2008, was conflicting because Mojica testified first that a gun was used, and later that he did not see a gun. (Petition at 39-40).

These arguments were already made to, and rejected by, the jury at trial. (See RT 1947-61 [petitioner's counsel's closing argument re same]; RT 1967-78 [Rodriguez's counsel making similar argument in closing]). In presenting these arguments again, petitioner essentially is asking this Court to reweigh the evidence. However, the Court may not do so on federal habeas review. See Cavazos, 132 S. Ct. at 7 n.* (reweighing facts precluded by Jackson); United States v. Nevils, 598 F.3d 1158, 1170 (9th Cir. 2010) (in assessing sufficiency of the evidence claim, it is not court's function to reweigh the evidence) (citation and quotation marks omitted). The only issue before this Court is whether it was objectively unreasonable for the California courts to determine that a rational trier of fact could have found beyond a reasonable doubt that petitioner committed the December 21 and 22 robberies, and that a principal used a firearm during the December 30 robbery. In this case, such question must be answered in the negative.

Once again, petitioner does not deny that he robbed Mojica on December 30, 2008. (Traverse at 3). Identity is not an issue for this robbery. As summarized above, Mojica positively identified petitioner as the man who robbed him on December 22 and 30, 2008, and testified that petitioner used a gun both times. Velasquez, the only victim present for all three robberies, testified that the same two men who robbed him on December 21, 2008, returned on December 22, 2008 and robbed the trailer again. Velasquez said the same man who entered the trailer on December 21 robbed the trailer on December 22 with a gun. While Velasquez, Cervantes, and Dominguez, each denied in court that petitioner was one of the robbers on December 21, 2008, Dominguez (who was only present for the December 21, 2008 robbery) had identified petitioner's photograph as looking similar to one of the robbers, noting he recognized the person "100 percent."

Based on this evidence, a rational trier of fact could agree with petitioner's jury that petitioner committed all three robberies and that a principal used a firearm during each one. As the Court of Appeal noted, "[i]dentification of the defendant by a single eyewitness may be sufficient to prove the defendant's identity as the perpetrator of a crime." People v. Boyer, 38 Cal.4th 412, 480 (2006) (citations omitted), cert. denied, 549 U.S. 1021 (2006); United States v. Larios, 640 F.2d 938, 940 (9th Cir. 1981) ("The testimony of one witness . . . is sufficient to uphold a conviction."); United States v. Jones, 425 F.2d 1048, 1055 (9th Cir.) ("[I]n this circuit, . . . the testimony of one witness, if believed, is sufficient to prove a fact.") (citation omitted), cert. denied, 400 U.S. 823 (1970); see also United States v. Foster, 243 Fed. Appx. 315, 316 (9th Cir. 2007) (even testimony of one witness, if believed, sufficient to support conviction; resolution of any question as to credibility properly entrusted to jury). Moreover, "testimony that a defendant resembles the robber, or looks like the same, has been held sufficient." People v. Jackson, 183 Cal.App.2d 562, 568 (1960) (internal citations omitted); see also United States v. Smith, 563 F.2d 1361, 1363 (9th Cir. 1977) (statement that defendant "look[ed] like" the perpetrator sufficient), cert. denied, 434 U.S. 1021 (1978).

Although petitioner points to discrepancies in the testimony and evidence, it was the province of the jury to credit the evidence showing that petitioner was the robber and that a principal used a firearm. See United States v. Ginn, 87 F.3d 367, 369 (9th Cir. 1996) ("The evidence is not rendered insufficient simply because there are discrepancies in the eyewitnesses' descriptions of the robber."); People v. Jackson, 183 Cal. App. 2d at 568 ("The uncertainty of recollection, qualification of identity and lack of positiveness in the testimony of the several witnesses complained of by appellant were matters going to the weight of the evidence and the credibility of witnesses and for the observation and consideration, and directed solely to the attention of, the jury in the first instance. . . ."). A jury's credibility determinations are "entitled to near-total deference under Jackson [v. Virginia]." Bruce v. Terhune, 376 F.3d 950, 957-58 (9th Cir. 2004) (citations omitted) (federal habeas court could not revisit jury's resolution of inconsistencies between victim's account and those of other witnesses, and victim's account was not "wholly incredible"). Notwithstanding petitioner's assertions to the contrary, this Court cannot say that the California courts' deference to the jury's findings was objectively unreasonable.

As the California courts reasonably determined that the evidence of identity and use of a firearm was constitutionally sufficient to support the challenged robbery convictions and true finding on the challenged firearm enhancement, petitioner is not entitled to federal habeas relief on this claim.

B. Petitioner's Jury Instruction Claim Does Not Merit Habeas Relief

Petitioner complains that the trial court improperly instructed the jury with CALJIC 4.71. The Court of Appeal issued the last reasoned decision addressing the merits of this claim, reasonably rejecting it on direct appeal. (Lodged Doc. 8 at 10-17). Accordingly, this claim does not merit federal habeas relief.

1. Background

The Information charged petitioner with committing robberies against the named victims "on or about" December 21, 22, and 30, 2008. (CT 88-92; see also RT 1896-97 [trial court instructing jury re same]). Prior to the close of the prosecution's case, the trial court indicated outside the presence of the jury its intent to instruct the jury with CALJIC 4.71, which provides that proof that a crime was committed need not show that it was on a precise date, because Mojica's testimony was not clear as to the exact day that the last robbery occurred. (RT 1531). The trial court proposed that it also give CALJIC 17.01, a unanimity instruction, which would require the jury to unanimously agree as to the offense that forms the basis for a specific count. (RT 1531, 1833).

Petitioner's counsel represented that he could clarify the dates and avoid any confusion by having the responding police officers testify about the dates they responded to the crimes, which were the same day the crimes occurred. (RT 1532-33). Counsel requested that the "on or about" evidence language be stricken from the instructions because it would be clear what dates the parties were referencing. (RT 1533). The trial court responded that it may be a solution to not instruct with CALJIC 4.71 and 17.01 if the evidence became clear as to the dates of the alleged crimes. (RT 1533; see also RT 1833-42 [further discussion regarding these jury instructions]).

As noted above, in petitioner's defense, his counsel presented officers who testified to responding to the December 21 and 22, 2008 robberies, but not to the December 30, 2008 robbery. When the subject of giving CALJIC 4.71 and 17.01 resumed after the close of petitioner's evidence, the trial court indicated it would give such instructions and a modified version of CALJIC 2.50, as addressing the state of the evidence. (RT 1864-65). Petitioner's counsel objected to the giving of CALJIC 4.71, but agreed with giving the modified CALJIC 2.50 instruction, and did not object to CALJIC 17.01. (RT 1866-67).

In accordance with its ruling, the trial court instructed the jury in pertinent part:

(RT 1898, 1902-03, 1925-26 (emphasis added); see also CT 193-94, 200 (written instructions)).

During deliberations, the jury made several requests. (CT 205-06, 216, and 218). They first requested the testimony of all the victims and an English translation of the photographic identification statements. (CT 205). Four hours later, the jury requested "the dates the witnesses/victims [Mojica, Velasquez, Dominguez, and Cervantes] saw the suspects at the Mojica taco trailer [12/21/09 [sic], 12/22/09 [sic], 12/30/09 [sic]]," asking "Did each of these witnesses see or not see Suspect 1 or Suspect 2 on 12/21, 12/22, or 12/30?" (CT 206). The trial court responded by advising the jury that it was "to decide the facts based upon all of the evidence. ¶ If you have any specific request for information and/or readback, please notify the Court." (CT 207; see also RT 2402-04 (discussing same)). On the next morning of deliberations, the jury asked, "What does `on or about' mean exactly regarding the counts/charges for these suspects?" (CT 216). The trial court responded, "The phrase `on or about' is defined in Instruction 4.71. You should review that instruction as well as Instruction 17.01." (CT 217; see also RT 2405-06 [discussing same]). The jury also asked for a reading of Cervantes' testimony. (CT 218). The jury reached its verdict within two hours of the last two requests. (See RT 2405-06 [showing timing of requests and verdict]). The verdict forms are worded, in relevant part: "We, the jury. . . find defendant, [name] guilty, of the crime of robbery in the second degree. . ., alleged victim [name], alleged date of [December 21, 2008 or December 22, 2008 or December 30, 2008], as charged in Count [number] of the Information." (CT 219-26 [forms]).

2. Pertinent Law

In a criminal trial, the State must prove every element of the offense. Middleton v. McNeil, 541 U.S. 433, 437 (2004). A jury instruction violates due process if it fails to give effect to that requirement. Id. (citing Sandstrom v. Montana, 442 U.S. 510, 520-21 (1979)).

Federal habeas relief based upon a claim of instructional error is available only when a petitioner demonstrates that "[an] ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72 (1991); see also Waddington v. Sarausad, 555 U.S. 179, 191 (2009) (same) (citations omitted). A challenged instruction must be evaluated in the context of other instructions and the trial record as a whole, not in artificial isolation. Waddington, 555 U.S. at 191 (citations omitted).

If a jury instruction is ambiguous, inconsistent or otherwise deficient, it will violate due process only when a reasonable likelihood exists that the jury has applied the challenged instruction in a manner that violates the Constitution. Waddington, 555 U.S. at 190-91; Estelle, 502 U.S. at 72. It is not enough that there is some "slight possibility" that the jury misapplied the instruction. Weeks v. Angelone, 528 U.S. 225, 236 (2000).

Errors in jury instructions are subject to harmless error analysis and do not merit habeas relief unless such error had a substantial and injurious effect or influence in determining the jury's verdict. Hedgpeth v. Pulido, 555 U.S. 57, 61-62 (2008) (per curiam) (citing Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). Similarly, where a state court has determined that a constitutional error is harmless, a federal habeas court may not grant relief unless the error had a substantial and injurious effect on the outcome. See Merolillo v. Yates, 663 F.3d 444, 454-55 (9th Cir. 2011), cert. denied, 133 S.Ct. 102 (2012).

3. Analysis

Petitioner contends that instructing with CALJIC 4.71 violated his due process and fair trial rights because the jury could have found him guilty of committing the December 30, 2008 robbery based on evidence of uncharged acts — specifically, Mojica's testimony that (1) petitioner had taken food from the trailer, without paying, close in time to the charged robberies, and (2) he observed a robbery the day before the last robbery (i.e., on December 29, 2008) from his car — acts which petitioner claims occurred on dates "other than those fixed by the prosecution and relied upon by counsel in preparing the defense case." (Petition at 41-43; see also RT 3006-10 [petitioner's counsel arguing same in new trial motion, suggesting prejudice from a lack of notice of the uncharged acts]; RT 3017-18 [trial court denying new trial motion]; CT 256-70 [new trial motion]).

The California Court of Appeal rejected this claim, finding that no prejudicial error occurred. (Lodged Doc. 8 at 13-17). This Court agrees. Petitioner has not shown any harm from instructing with CALJIC 4.71.

Any uncertainty from Mojica's testimony about the date of the last robbery was addressed by Officer Abarca's testimony (as part of the prosecution's case), that the officer responded to the trailer regarding a robbery report on December 30, 2008, and was provided a license plate number by Mojica. (RT 912-14). Given: (a) Officer Abarca's testimony, (b) the instructions to the jury as to the limited purpose to which they could consider other crimes evidence, (c) the jury's question about whether the witness victims saw the suspects specifically on the dates charged and argued (i.e., December 21, 22, and 30), and (d) the verdict forms which provided the crimes occurred on December 21, 22, and 30, 2008, as charged, it is not likely that the jury applied CALJIC 4.71 to find petitioner guilty of the December 30, 2008 robbery of Mojica based on finding that petitioner engaged in any other criminal activity between December 22 and 30, 2008.

Moreover, as the Court of Appeal noted, the other crimes evidence that petitioner claims could have been used to find he committed the December 30, 2008 robbery does not fit with the charge or verdict forms. (See Lodged Doc. 8 at 13-16). The December 30, 2008 charge involved robbing Mojica with the personal use of a firearm. (See RT 1897-98 [summary of charges]). There is no reasonable likelihood that the jury misapplied the instructions to Mojica's testimony that he was not working and sitting in his car the day before the last robbery (i.e., December 29), and observed a person who was not carrying a gun approach the emergency window then leave after robbing Cervantes (and not Mojica), to find petitioner guilty of robbing Mojica on December 30, 2008. Nor is there a reasonable likelihood that the jury misapplied the instructions to find petitioner guilty of robbing Mojica with personal use of a firearm from Mojica's testimony that petitioner had taken food without paying close in time to the charged robbery when, as petitioner acknowledges (Petition at 38), Mojica said petitioner was never armed when he simply took food.

In light of the foregoing, the California Court of Appeal's rejection of petitioner's jury instruction claim was not contrary to, or an unreasonable application of, any clearly established federal law, and did not constitute an unreasonable determination of the facts in light of the evidence presented.

Accordingly, petitioner is not entitled to federal habeas relief on this claim.

VI. CONCLUSION

IT IS THEREFORE ORDERED that: (1) the Petition is denied and this action is dismissed with prejudice; and (2) the Clerk shall enter judgment accordingly.

IT IS SO ORDERED.15