ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
STEPHEN V. WILSON, District Judge.
Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner and counsel for Respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Stephen V. Wilson, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on January 11, 2018. The Petition challenges the sufficiency of the trial evidence to support enhancements for the personal use of a firearm during the commission of two store robberies.1 Respondent filed an Answer on March 9, 2018. Petitioner filed a Reply on April 16, 2018.
On April 23, 2018, the Magistrate Judge ordered Respondent to lodge with the Court surveillance videotapes and photographs admitted at Petitioner's trial. On April 30, 2018, Respondent filed a "Status Report" stating that the exhibits admitted at Petitioner's trial had been destroyed but that the prosecutor was searching through her file to determine whether the file contained the videotapes and photographs. On May 23, 2018, Respondent lodged two videotapes and several photographs (Respondent's Supplemental Lodgment, ECF Dkt. No. 19). At the same time, Respondent filed a declaration of the prosecutor stating that: (1) the prosecutor had located the photographs on her computer but had no way of confirming whether the photographs were those introduced at trial; and (2) the prosecutor had located the videotapes in her file and was "reasonably certain" that the videotapes were copies of those admitted at trial (see "Declaration of Meghan MacDonald," filed May 23, 2018).
BACKGROUND
A jury found Petitioner guilty of five counts of robbery in violation of California Penal Code section 211 and one count of receiving stolen property in violation of California Penal Code section 496 (Reporter's Transcript ["R.T."] 286-88; Clerk's Transcript ["C.T."] 167-71, 173). The jury found true the allegations that Petitioner personally used a firearm in the commission of the robberies within the meaning of California Penal Code section 12022.53(b) and section 1192.7(c) (R.T. 288-90; C.T. 172, 174-77).2 Petitioner received a prison term of seventeen years and four months (R.T. 295-96; C.T. 202-04).
The California Court of Appeal reversed the conviction for receiving stolen property but otherwise affirmed (Respondent's Lodgment 1; see People v. Washington, 2016 WL 4156692 (Cal. App. Aug. 5, 2016)). The Court of Appeal expressly rejected Petitioner's challenge to the sufficiency of the evidence to support the firearm enhancements. Id. The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 3).
SUMMARY OF TRIAL EVIDENCE
The Court has conducted an independent review of the Reporter's Transcript and has confirmed the accuracy of the following summary of the evidence in People v. Washington, 2016 WL 4156692 (Cal. App. Aug. 5, 2016). See Nasby v. McDaniel, 853 F.3d 1049, 1052-53 (9th Cir. 2017); see also Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state court decision).
A. The First Robbery
At around 9:30 p.m. on November 29, 2013, defendant and another man entered Goody's Food Store in Riverside wearing masks and gloves. One was wearing a "skeleton mask" and the other was wearing a black mask.3 Their faces were mostly covered. Two customers, Justin and James Foster,4 storeowner Kahlid Ramahi, and employee Jose Cruz were in the store at the time.
The black-masked robber pointed a gun at Justin and told him to get on the floor. Both Justin and James were scared and got on the floor. Justin gave the robber a money clip and James gave him his wallet. Justin only saw one robber, but James saw two.
The skeleton-masked robber then pushed Ramahi to the cash register and told Ramahi to give him all the money in it. Ramahi gave him approximately $300. He was scared. Although Ramahi did not see the skeleton-masked robber holding a gun at the time, when he later reviewed surveillance footage, he saw that the skeleton-masked robber had held a gun to him. James saw one of the robbers point a gun at Ramahi, but did not remember which one.
While Ramahi was being robbed, store employee Cruz walked into the store from a back room. Cruz saw the skeleton-masked robber holding a gun at Ramahi. While Cruz was watching Ramahi, the black-masked robber came up to Cruz and demanded his wallet. Cruz had not realized that there was a second robber until that moment. Cruz said that he did not have a wallet and the black-masked robber took a gun out of his waistband and put it to Cruz's temple. He frisked Cruz and found Cruz's wallet and cell phone, both of which he took. Cruz had $600 in his wallet. Cruz complied with the robber's demand for him to lie down on the floor because he "had no other option." Both robbers ran out of the store and Ramahi called the police.
The jury watched a surveillance video recording of the robbery. The responding officer testified as to his interpretation of the events recorded on the video. It appeared to the officer that the same robber who initially held a gun to Ramahi also forced Cruz to the ground. Cruz testified that in the surveillance video "you're unable to see everything very well."
B. The Second Robbery
At around 9:45 p.m. that same night, the two robbers entered Palm Liquor, approximately one mile away from the first location. The black-masked man held a gun to cashier Yadwinder Singh's head and ordered him to open the cash register, which he did. The second robber took approximately $250 in cash from the register and searched Singh's pockets. He found an ammunition magazine in Singh's pocket. The robbers told Singh that "they" would shoot him if he did not give "them" the gun to which the magazine belonged. The black-masked man took Singh's gun and handed it to the second robber, who, in turn, pocketed it. The robbers took some liquor bottles, including Patron tequila and Ciroc vodka, and left. The jury watched a surveillance video recording of the second robbery.
In the video recordings of the two robberies, and in still photographs captured from the videos, the top part of the black-masked man's face and complexion are visible (including his eyes and eyebrows and part of his nose and forehead). A bump is also visible in the back of the black-masked man's hoodie.5
C. Defendant's Arrest
On December 1, 2013, defendant led police on an extended chase in Long Beach during which he ran numerous stop signs and crashed into a parked car. Defendant fled on foot into an apartment complex and was found in a shed on the property. Police officers found marijuana, $454 in cash, and Cruz's cell phone in defendant's pockets. In a search of the cell phone, officers found a "selfie" of defendant and a second picture of a handgun, two magazines, a bottle of Patron tequila, a bottle of Ciroc vodka, and "a bunch of cash that was laid out almost like . . . a trophy picture." The second picture was taken at 1:56 a.m. on the morning after the robberies.
During the foot pursuit, defendant discarded a loaded handgun which was matched to the one reported stolen by Singh. In a search of defendant's car, officers found a half drunk bottle of Ciroc vodka whose serial number matched the one stolen from Palm Liquor. They also found the ammunition magazine for Singh's gun, gloves, a flashlight, and a screwdriver.
In a police interview the next day, defendant told detectives that he owned two cell phones and that he had bought Cruz's cell phone on November 28 or 29 from a man named "Da" in Pasadena. Defendant initially denied knowing about the ammunition magazine in the car or the gun, but later admitted that they were his and said that he had bought them from a man on November 27. Defendant said that the $454 in cash was his personal savings from "welfare checks." Defendant did not know how the photograph of the stolen property got on the cell phone. Defendant denied ever having been to Riverside and said that he lived with his grandmother in Pasadena.
Police officers searched the grandmother's apartment and found among defendant's belongings another bottle of Patron taken in the Palm Liquor robbery, a box of 40 nine-millimeter rounds, and a clown mask. The nine-millimeter rounds did not fit Singh's gun.
Defendant's mother showed up while the police were searching the grandmother's apartment. Based on suspicion that defendant had used his mother's phone during the robbery, the police confiscated her phone. The detectives discovered that on November 29, 2013, at 9:51 p.m., a call was made with the phone from Riverside. By 1:08 a.m., the phone was in Pasadena, where another call was made.
(Respondent's Lodgment 1, at pp. 3-7; see People v. Washington, 2016 WL 4156692, at *1-3) (footnotes renumbered).
STANDARD OF REVIEW
Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), 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); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 132 S.Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts . . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the "unreasonable application" prong of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. at 407 (citation omitted).
"In order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been `objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 562 U.S. 86, 101 (2011). This is "the only question that matters under § 2254(d)(1)." Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103.
In applying these standards, the federal habeas court usually looks to the last reasoned state court decision. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). Accordingly, this Court looks through the California Supreme Court's summary denial to the Court of Appeal's reasoned decision. See id.
DISCUSSION
I. Legal Standards Governing Challenges to the Sufficiency of the Evidence
On habeas corpus, the Court's inquiry into the sufficiency of evidence is limited. Evidence is sufficient unless the charge was "so totally devoid of evidentiary support as to render [Petitioner's] conviction unconstitutional under the Due Process Clause of the Fourteenth Amendment." Fish v. Cardwell, 523 F.2d 976, 978 (9th Cir. 1975), cert. denied, 423 U.S. 1062 (1976) (citations and quotations omitted). A conviction cannot be disturbed unless the Court determines that no "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 317 (1979). A verdict must stand unless it was "so unsupportable as to fall below the threshold of bare rationality." Coleman v. Johnson, 566 U.S. 650, 656 (2012). Under the AEDPA standard of review, the Court "owe[s] a `double dose of deference'" to the state court's judgment. Long v. Johnson, 736 F.3d 891, 896 (9th Cir. 2013), cert. denied, 134 S.Ct. 2843 (2014) (citation omitted); see Coleman v. Johnson, 566 U.S. at 651 ("Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference."); Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011), cert. denied, 566 U.S. 1039 (2012) (under Jackson and AEDPA, the "double dose of deference . . . can rarely be surmounted").
Jackson v. Virginia establishes a two-step analysis for a challenge to the sufficiency of the evidence. United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc). "First, a reviewing court must consider the evidence in the light most favorable to the prosecution." Id. (citation omitted); see also McDaniel v. Brown, 558 U.S. 120, 133 (2010).6 At this step, a court "may not usurp the role of the trier of fact by considering how it would have resolved the conflicts, made the inferences, or considered the evidence at trial." United States v. Nevils, 598 F.3d at 1164 (citation omitted). "Rather, when faced with a record of historical facts that supports conflicting inferences a reviewing court must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id. (citations and internal quotations omitted); see also Coleman v. Johnson, 566 U.S. at 655 ("Jackson leaves [the trier of fact] broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that [the trier of fact] draw reasonable inferences from basic facts to ultimate facts") (citation and internal quotations omitted); Cavazos v. Smith, 565 U.S. 1, 3-4 (2011) ("it is the responsibility of the jury — not the court — to decide what conclusions should be drawn from evidence admitted at trial"). The State need not rebut all reasonable interpretations of the evidence or "rule out every hypothesis except that of guilt beyond a reasonable doubt at the first step of Jackson [v. Virginia]." United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted). Circumstantial evidence and the inferences drawn therefrom can be sufficient to sustain a conviction. Ngo v. Giurbino, 651 F.3d 1112, 1114-15 (9th Cir. 2011).
At the second step, the court "must determine whether this evidence, so viewed, is adequate to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt." United States v. Nevils, 598 F.3d at 1164 (citation and internal quotations omitted; original emphasis). A reviewing court "may not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Id. (citations and internal quotations omitted; original emphasis).
In applying these principles, a court looks to state law for the substantive elements of the criminal offense, but the minimum amount of evidence that the Constitution requires to prove the offense "is purely a matter of federal law." Coleman v. Johnson, 566 U.S. at 654.
II. Petitioner's Challenge to the Sufficiency of the Evidence to Support the Personal Use Enhancement with Respect to the First (Goody's) Robberies does not Merit Federal Habeas Relief.
"Personal use of a firearm may be found where the defendant intentionally displayed a firearm in a menacing manner in order to facilitate the commission of an underlying crime." People v. Carrasco, 137 Cal.App.4th 1050, 1059, 40 Cal.Rptr.3d 768 (2006) (citations omitted). "[W]hen a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure." People v. Bryant, 191 Cal.App.4th 1457, 120 Cal.Rptr.3d 626 (2011) (citation and internal quotations omitted).
Petitioner does not contend there was insufficient evidence of "personal" use of a firearm during the first (Goody's) robberies. Rather, Petitioner contends the evidence failed to prove that he (as distinguished from the other robber) personally used a firearm in the robberies. Petitioner references Ramahi's testimony that Ramahi saw only one gun on the surveillance video and Officer Blevins' testimony that he also saw only one gun on the video (although Blevins indicated that the robbers were not always in the view of the video cameras during the robberies) (Pet., p. 5(b); R.T. 37, 76). The Court of Appeal rejected Petitioner's claim, citing California case authority applying the Jackson standard (Respondent's Lodgment 1, pp. 7-9).7
As the Court of Appeal aptly noted, notwithstanding the testimony of Ramahi and Blevins, Cruz testified that he saw both robbers with guns during the Goody's robberies (see Respondent's Lodgment 1, p. 8). Cruz said that he saw the first robber point a gun at the store owner and then saw the second robber point a gun at Cruz' head and demand Cruz' wallet (R.T. 54-55). A rational juror crediting Cruz' testimony could have concluded beyond a reasonable doubt that both robbers used guns during the Goody's robberies. See Boyer v. Chappell, 793 F.3d 1092, 1101 (9th Cir. 2015) (single witness' testimony constitutionally sufficient); People v. Young, 34 Cal.4th 1149, 1181, 24 Cal.Rptr.3d 112, 105 P.3d 487 (2005), cert. denied, 546 U.S. 833 (2005) (same); Cal. Evid. Code § 411.
Although Petitioner points to contrary evidence and suggests contrary inferences, this Court must presume that the jury resolved evidentiary conflicts in favor of the prosecution, and the Court cannot revisit the jury's credibility determinations. See Cavazos v. Smith, 565 U.S. at 7-9 (jury entitled to credit prosecution experts' testimony despite conflicting testimony by defense experts); McDaniel v. Brown, 538 U.S. at 131-34 (ruling that the lower federal court erroneously relied on inconsistencies in trial testimony to deem evidence legally insufficient; the reviewing federal court must presume that the trier of fact resolved all inconsistencies in favor of the prosecution, and must defer to that resolution); Bruce v. Terhune, 376 F.3d 950, 958 (9th Cir. 2004) (federal habeas court reviewing sufficiency of the evidence could not revisit the jury's resolution of inconsistencies between the victim's testimony and the testimony of other witnesses); United States v. Franklin, 321 F.3d 1231, 1239-40 (9th Cir.), cert. denied, 540 U.S. 858 (2003) (in reviewing the sufficiency of the evidence, a court does not "question a jury's assessment of witnesses' credibility" but rather presumes that the jury resolved conflicting inferences in favor of the prosecution).8
For the foregoing reasons, the Court of Appeal's rejection of Petitioner's challenge to the sufficiency of the evidence to support the personal use enhancement with respect to the Goody's robberies was not contrary to, or an objectively unreasonable application of, any clearly established Federal Law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 (2011). Petitioner is not entitled to federal habeas relief on this claim.
III. Petitioner's Challenge to the Sufficiency of the Evidence to Support the Personal Use Enhancement with Respect to the Second (Palm Liquor) Robbery Does Not Merit Federal Habeas Relief.
A. Background
Riverside police officer Ramon Espinoza testified that, while he was at the Goody's robbery location, he received a call to investigate a robbery at the Palm Liquor Deli, approximately one mile away (R.T. 90). Espinoza said he spoke to victim Singh and reviewed the surveillance videotape and photographs (R.T. 90-91). According to Espinoza, several photographs showed a masked robber holding a firearm, and one photograph showed the same robber holding a firearm to the victim's head (R.T. 92-93). Espinoza reportedly saw only one gun on the videotape prior to the point when the robbers took Singh's gun (R.T. 97-99).
Singh testified that the robber who pointed a gun at Singh's head wore a mask and a black jacket with a hood (R.T. 151-52). Reportedly, Singh did not see a gun in the possession of the other robber until the first robber took Singh's gun and handed it to the other robber, who then put that gun into his pocket (R.T. 153).
The record reflects only a few facts concerning the physical appearance of Petitioner at or near the time of trial. According to the testimony of police officer Oscar Morales, Petitioner appeared at trial wearing shoulder-length dreadlocks (R.T. 126). According to the testimony of police sergeant Joseph Starbird, Petitioner is a "male black gentleman" (R.T. 136). As indicated above, Cruz' cellphone, found in Petitioner's possession several hours after the robberies, bore a "selfie" photograph of Petitioner. This "selfie" photograph may well be the same "selfie" photograph which is in the present record ("Declaration of Meghan MacDonald," filed April 3, 2018). The "selfie" photograph in the present record depicts an African-American male wearing dreadlocks and making a sneering face (see Respondent's Supplemental Lodgment, ECF Dkt. No. 19-9). In closing, the prosecutor told the jury to examine a photograph taken from the surveillance video which "partially expos[ed]" the face of the armed robber and to "look at it closely and compare things like his eyes, eyebrows, his forehead, and . . . how his hair must have been pulled back in there, in his hoodie, you see the lump in the back of the sweatshirt" (R.T. 261-62).
Petitioner correctly points out that the evidence concerning the Palm Liquor robbery showed that only one robber used a gun during that robbery (Petition, pp. 5(b)-5(c)). Petitioner argues that there was no evidence the robber who used a gun was Petitioner (id.). The California Court of Appeal rejected this argument, indicating that a rational jury "permissibly could rely on the prosecutor's argument" that jurors could identify Petitioner from the surveillance video as the robber with the gun based on exposed facial characteristics and the lump in the back of the robber's hoodie (Respondent's Lodgment 1, p. 8). The Court of Appeal stated: "Although the record does not contain an explicit description of defendant's appearance and hair at trial, he was visible to the jury and the court" (id., p. 5 n.4).9 The Court of Appeal also stated: "Although this Court does not invade the province of the jury in venturing to identify defendant as the black-masked robber, the video does show the lump to which the prosecutor was referring" (id., p. 9).
B. Discussion
The Court of Appeal reasoned that the evidence sufficed to show Petitioner personally used a firearm in the Palm Liquor robbery because the jury could compare Petitioner's in-court appearance with the appearance in the surveillance video of the robber in the black mask who used a gun. As indicated above, the trial transcript's only references to Petitioner's in-court appearance are statements that Petitioner was an African-American male with shoulder-length dreadlocks. The person depicted in the "selfie" photograph of record is an African-American male with shoulder-length dreadlocks. This person made a sneering face while taking the "selfie," which caused some distortion of his facial features.
In California, a jury's observations of a defendant's physical appearance during the trial can constitute evidence. See Cal. Evid. Code § 140 ("`Evidence' means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact"); Law Revision Commission Comments, Cal. Penal Code § 140 ("`Evidence' is broadly defined to include . . . sights (such as a jury view or the appearance of a person exhibited to a jury)"); see also People v. Smith, 13 Cal.App.4th 1182, 1190 n.3, 16 Cal.Rptr.2d 820 (1993) (victim's "appearance before the jury [was], in fact, evidence") (citations omitted).
In various contexts, courts have endorsed a jury's assessment of a defendant's in-court appearance. For example, courts have held that, in appropriate circumstances, jurors may assess a defendant's age from the defendant's appearance. See, e.g., People v. Montalvo, 4 Cal.3d 328, 93 Cal.Rptr. 581, 482 P.2d 205 (1971) ("a view of the defendant by the trier of fact in an appropriate case may be sufficient to support a finding that the defendant is an adult") (footnote omitted); State v. Espinoza, 133 Idaho 618, 621, 990 P.2d 1229 (1999) ("a number of jurisdictions hold that the defendant's physical appearance alone, if brought to the fact-finder's attention, will be enough to allow the jury to make observations and draw inferences as to the defendant's age") (citing cases).10
Many courts also have endorsed a jury's assessment of a defendant's in-court appearance in determining issues of identification. See People v. Garcia, 160 Cal.App.3d 82, 91 n.7, 206 Cal.Rptr. 468 (1984) (deeming "routine" the "practice of a jury viewing the defendant's physical appearance to see if it comports with a physical description given by a witness or to determine if the physical appearance of the defendant supports a factual finding that must be made by the trier of fact"); see also United States v. Holmes, 229 F.3d 782, 788 (9th Cir. 2000), cert. denied, 531 U.S. 1175 (2001) (failure to give a specific jury instruction on the credibility of an informant harmless, where, among other things, "jury members had the opportunity to view the bank's surveillance photographs and determine for themselves whether the photographs depicted the defendant").
More specifically, many courts have approved a jury's comparison of a defendant's in-court appearance with that of a person depicted in a surveillance video or photograph. For example, courts have held that a jury may make such a comparison to assess the credibility of other identification testimony. In United States v. Domina, 784 F.2d 1361 (9th Cir. 1986), cert. denied, 479 U.S. 1038 (1987), the Ninth Circuit held that the trial court did not abuse its discretion in denying a defense motion for an in-court lineup where there existed a "great deal of other evidence linking Domina to the crimes," including the fact that "the jury had surveillance photos of the masked robber involved in three of the robberies to assist in evaluating the reliability of the identification testimony of the witnesses." Id. at 1369. The Ninth Circuit further ruled that the trial court did not abuse its discretion by requiring the defendant to put on a mask for an in-court identification procedure. Id. at 1371. The Ninth Circuit stated that, although the witness had said only that the defendant looked similar to the robber, "the jury was able to evaluate for itself how well an identification could be made and to compare his appearance to that of the person in the surveillance photos." Id.; see also United States v. Smith, 370 Fed. App'x 29, 36 (11th Cir. 2010) (evidence sufficient despite defendant's challenge to reliability of witness identifications; "the government presented the bank surveillance video that showed the person who robbed the bank, and the jury was free to view Smith in the courtroom and compare his appearance with the person shown in the video while evaluating the witnesses' credibility"); United States v. Pierce, 136 F.3d 770, 775 (11th Cir.), cert. denied, 525 U.S. 974 (1998) ("because the surveillance photograph was admitted into evidence, the jury was certainly able to compare Pierce's appearance at trial with the appearance of the individual depicted in the photograph"); State v. Everson, 199 Wn.App. 1047, 2017 WL 2929125 at *3 (2017) (unpublished) (in closing, prosecutor asked jury to make its own comparison of defendant's appearance with appearance of the person depicted in video and still photographs, and "the jury was free to disbelieve the detective's [identification] testimony and reach its own conclusion on the issue of identification"); State v. Spaw, 301 P.3d 788, 2013 WL 2321041, at *3 (Kan. App. 2013) (unpublished) (evidence sufficient where three loss prevention officers identified defendant as the person depicted on surveillance videotapes; adding that "here the jurors were able to view for themselves the surveillance videos of the thefts and determine if, beyond a reasonable doubt, Spaw was the man in the videos committing the crimes"); Miles v. State, 38 A.3d 1255, 2012 WL 589281, at *2 (Del. 2012) (unpublished) ("the jury was free to draw its own conclusion about the credibility of the victim's identification from its own review of the surveillance tape") (footnote omitted); Wilson v. State, 2010 WL 2650585, at *5 (Tex. App. July 1, 2010) (unpublished) (jury could judge credibility of identification witnesses by watching surveillance video of the robbery and comparing defendant's appearance at trial with the video and still photograph); State v. Hardy, 76 Wn.App. 188, 191-92, 884 P.2d 8 (1994), aff'd on other grounds, State v. Clark, 129 Wn.2d 211, 916 P.2d 384 (1996) (corroborating evidence supported witness' identification; jury could view videotape and reach its own conclusion concerning identity of person in video); Tobias v. State, 37 Md.App. 605, 616-17, 378 A.2d 698 (1977) ("The jury saw the tape, and could judge for itself what it showed and whether Detective Battle's identifications were accurate.").
In some cases, courts have held that the comparison between the in-court appearance of the defendant and the appearance of a person depicted in a video or photograph should be within the sole province of the jury, such that lay witness testimony regarding the comparison should be excluded from evidence. In United States v. LaPierre, 998 F.2d 1460, 1465 (9th Cir. 1993), the Ninth Circuit deemed lay witness testimony that the defendant was the person in surveillance photos to be "of dubious value" and "not to be encouraged," observing that "[t]he jury, after all, was able to view the surveillance photos of LaPierre and make an independent determination whether it believed that the individual pictured in the photos was in fact LaPierre."11 See also United States v. Fulton, 837 F.3d 281, 299-300 (3d Cir. 2016), pet. for cert. filed (No. 18-5083) May 9, 2018 (officers' testimony comparing defendants to person in surveillance video inadmissible where officers were not sufficiently familiar with the defendants to assist the jury and "were no better equipped than the jurors to compare the suspect's appearance with that of [defendants]"; "the jury was able to view the surveillance photographs and compare them to [defendants'] appearances . . ., [and] could rely on their own assessments of the photos"); United States v. Murray, 523 F.2d 489, 491-92 (8th Cir. 1975) (admission of lay testimony identifying defendant from surveillance photographs, if error, deemed harmless; jury "was free to determine, on the basis of the photographs, whether Murray was one of the men who had been photographed participating in the robbery," and other evidence supported the conviction); State v. Lazo, 209 N.J. 9, 24, 34 A.3d 1233 (2012) (detective's opinion that defendant's arrest photograph closely resembled police sketch of perpetrator inadmissible; detective had not witnessed the crime and did not know defendant, and there was no change in defendant's appearance; jurors "could have compared the photo and sketch on their own"); State v. Jamison, 93 Wn.2d 794, 799-800, 613 P.2d 776 (1980) (officer's testimony identifying defendant as the robber depicted in surveillance photographs inadmissible; defendant was "in the jury's presence" and "the jury was able to compare [defendant's] appearance with the photographs and decide whether the robber pictured therein was the defendant").
More to the point for purposes of the present case, numerous reviewing courts have rejected challenges to the sufficiency of the evidence in reliance on the jury's opportunity to compare the defendant's in-court appearance with the appearance of a person depicted in a video or photograph. See, e.g., United States v. Owens, 445 Fed. App'x 209, 216 (11th Cir. 2011), cert. denied, 568 U.S. 1214 (2013) (jury had opportunity to view videos and screen shots of robber and "to compare those images to Owens during the trial"); State v. Orr, 2016 WL 1403982, at *3 (Tenn. Crim. App. Apr. 8, 2016) (accomplice testimony sufficient to support conviction, where testimony was corroborated through jury's opportunity to compare appearance of person in video with another witness' description of the perpetrator, and with the in-court appearance of defendant); Commonwealth v. Durden, 2015 WL 7723039, at *4 n.6 (Pa. Super. Jan. 21, 2015) (unpublished) (sufficiency upheld where, in addition to other evidence, "the jury had an opportunity to compare the two surveillance videos to Appellant, who was present at trial"); State v. Percy, 137 So.3d 184, 188 (La. App. 2014) (evidence sufficient where the victim identified defendant as the person depicted in surveillance video, and "Defendant's presence at trial also afforded the jury the opportunity to compare the appearance of the person in [still photographs taken from video] to that of Defendant"); Johnson v. State, 2013 WL 4470179, *3 (Tex. App. Aug. 20, 2013) (unpublished) (evidence sufficient where, among other things, "the jury could see [from an unclear video surveillance recording] that the physical characteristics of the person . . . matched Johnson's appearance in court"); Johnson v. State, 354 S.W.3d 491, 496 (Tex. App. 2011), cert. denied, 568 U.S. 834 (2012) (where gunman's face, though partially covered by a bandanna, showed his eyes, nose, ears and facial structure, "[t]he jury was able to view the surveillance photographs and could conclude that Johnson committed the offense depicted"); Ferguson v. State, 308 Ga.App. 232, 233-34, 704 S.E.2d 470 (2010) (jury could compare video with defendant's appearance at trial); State v. Riggins, 13 So.3d 187, 190-91 (La. App. 2009) ("the jury saw both the defendant in person and the photographic lineup, showing that he had been identified by the victim on the day [the victim] was kidnapped"); People v. Grady, 67 A.D.3d 563, 891 N.Y.S.2d 15 (2009) (victims were unable to identify defendant, but there was some circumstantial evidence and "the jury was able to compare defendant's appearance with that of the person depicted on the tape"); State v. Minner, 256 S.W.3d 92, 96 (Mo. 2008) (evidence sufficient where "the jury watched the videotapes and concluded that it was Minner, the defendant in the courtroom, who delivered the crack cocaine to the informant"); State v. Bradford, 131 Wn.App. 1044, 2006 WL 401697 at *5 (2006) (unpublished) (jury properly could identify defendant "directly" from photographs of burglar); State v. Miller, 1994 WL 527905, at *3 (Ohio App. Sept. 28, 1994) (unpublished) (surveillance photographs and witness' identifications of defendant from photographs sufficient; "the jury had [the] opportunity to examine the photographs and identify Miller as well"); Conyers v. State, 864 S.W.2d 739, 740-41 (Tex. Crt. App. Oct. 14, 1993) (evidence sufficient although the only identification evidence consisted of surveillance videotape, still photos from the videotape, and employer's identification of defendant as the gunman in the photos; "the photos were admitted into evidence, and the jury could compare the photos with the physical appearance of Conyers"); Long v. State, 807 S.W.2d 350, 352 (Tex. App. 1991) (although witness could not identify defendant at trial, witness "positively identified [defendant's] photograph in the courtroom, and the jury had the benefit of being able to compare the photograph with [defendant's] person"); Erby v. State, 511 N.E.2d 302, 303 (Ind. 1987) ("Eyewitness identification and numerous photographs, the evidentiary value of which the jury may decide itself, are more than sufficient evidence from which the jury could reasonably infer that appellant was one of the perpetrators in each of the robberies.").
Indeed, some reviewing courts have upheld the sufficiency of the trial evidence where the jury's opportunity to compare the defendant's in-court appearance with that of a person in a video or photograph constituted the principal, if not the sole, evidence supporting the verdict. See Stenson v. Heath, 2012 WL 3599110, at 6-7 (S.D.N.Y. Aug. 22, 2012) (jury's opportunity to compare videotapes and still photos of burglaries, photo taken of the petitioner at the time of his arrest and the appearance of the petitioner at trial held sufficient); Arnold v. Lamarque, 2008 WL 80872, at *13-14 (E.D. Cal. Jan. 3, 2008), adopted, 2008 WL 659719 (E.D. Cal. Mar. 11, 2008) (although victim never identified defendant as the robber and actually identified other individuals as the robber during a photo lineup and a live lineup, "the jury was able to view security camera videotapes and make their own factual determination as to whether Petitioner was the perpetrator"); State v. Williams, 913 S.W.2d 462, 466 (Tenn. 1996) (witness' general description of robber and surveillance photographs sufficient; "[o]n the question of identity, the jurors had before them the photographs taken by the surveillance camera during the course of the robbery, from which they were able to draw a first-hand sense impression"); People v. Foster, 201 Cal.App.3d 20, 26, 246 Cal.Rptr. 855 (1988) ("The jury could satisfy itself by comparing the photo [contained in prison records] with appellant to determine if he was the same person. This was sufficient evidence to prove the prior [conviction].") (citation omitted); Yeager v. State, 737 S.W.2d 948, 951-52 (Tex. App. 1987) (in determining truth of prior conviction allegation, jury could make comparison between defendant's appearance in court and physical description and photographs in prison records); West v. State, 149 Ga.App. 191, 253 S.E.2d 854 (1979) (bank tellers could not identify defendant as the person who passed bad checks, but jury could "determine that the defendant on trial was one and the same person as the individual shown in said [surveillance] photographs"); see also United States v. Fernandez, 456 F.2d 638, 642 (2d Cir. 1972) (stating, in dictum, that jury could have found defendant guilty "solely on the basis of their own comparison of him with the surveillance photographs"); Wiggins v. State, 255 S.W.3d 766, 771 (Tex. App. 2008) (stating, in dictum, that the jury's comparison of defendant with the person depicted on the videotape alone would be sufficient evidence of defendant's guilt); but see United States v. Monsalvatge, 689 Fed. App'x 680, 684-85 & n.7 (2d Cir.), cert. denied, 138 S.Ct. 280 (2017) and 138 S.Ct. 284 (2017) (surveillance footage showed robber with hooded sweatshirt and bandanna over his face, making it "difficult to ascertain any particular attributes" of the robber; victim's descriptions of robber were inconsistent and cell phone evidence was inconclusive; on direct review, evidence held insufficient).
As the foregoing discussion demonstrates, courts across the country: (1) hold it to be a proper function of the jury to consider a defendant's in-court appearance while assessing issues of identification; and (2) further hold that the jury's comparison of a defendant's in-court appearance with visual surveillance evidence can support a verdict of guilt. Although contrary authority may exist, certainly no United States Supreme Court holding forbids a jury from comparing a defendant's in-court appearance with visual surveillance evidence in determining identification, and no Supreme Court holding deems such a comparison insufficient to support a verdict of guilt.
In Petitioner's case, although the videotape and still photographs made from the videotape show that the armed robber's face was partially concealed, the robber's eyes, eyebrows and forehead were visible. Given the authorities cited above and below, it was not unreasonable for the California Court of Appeal to conclude that rational jurors could have compared Petitioner's in-court appearance with the appearance of the armed robber depicted in the visual surveillance evidence and thereby have found beyond a reasonable doubt that Petitioner was that armed robber. See United States v. Domina, 784 F.2d 1361, 1370 (9th Cir. 1986), cert. denied, 479 U.S. 1038 (1987) (admission of in-court identification allegedly the product of a suggestive pretrial identification not an abuse of discretion where witness said she was able to identify masked robber because of his nose, the shape of his face, the portion of his face not covered by the mask, and general build and body features); Garcia v. Uribe, 2009 WL 1464398, at *7-8 (C.D. Cal. May 22, 2009) (evidence sufficient where victim identified defendant as robber although robber wore a hood and bandanna so that victim could only see robber's forehead down to the tip of his nose, and other circumstantial evidence corroborated identification); see also United States v. Bell, 812 F.2d 188, 192-93 (5th Cir. 1987) (evidence sufficient where, inter alia, victim identified defendant by his eyes although abductor wore ski mask); State v. Peterson, 2018 WL 1363501, at *7 (Tenn. Crim. App. Mar. 15, 2018) (unpublished) (evidence sufficient where there was inculpatory gun evidence and witness identified defendant by his eyes, although the perpetrator's face was covered during the attack); Little v. State, 233 So.3d 288, 290-92 (Miss. 2017) (evidence sufficient where witness testified he recognized defendant as masked robber by defendant's eyes and supposed "facial creases"); Jones v. State, 329 Ga.App. 478, 479-80, 765 S.E.2d 657 (2014) (witness' identification of defendant as the masked robber sufficiently reliable although witness only saw robber's eyes); Vallejo v. State, 2013 WL 2470783, *4 (Tex. App. June 6, 2013) (unpublished) (witness' identification of defendant as one of the masked assailants, coupled with other identification evidence, held sufficient; "[h]er inability to see her assailants' hair, mouth and ears does not deprive her positive identification of its probative power") (citations omitted); Johnson v. State, 354 S.W.3d 491, 494 (Tex. App. 2011) (where gunman's face, though masked, showed his "eyes, nose, ears and facial structure," jury was able to view photographs of gunman and compare them to defendant's appearance at trial); Horace v. State, 2010 WL 670129, at *4 (Tex. App. Feb. 26, 2010) (witness' identification of defendant as robber whose face was partially covered by a bandanna, based on defendant's eyes alone, would be sufficient to support conviction, although other evidence also supported conviction); State v. Armstrong, 2004 WL 1208871, at *5-6 (Tenn. Crim. App. Nov. 15, 2004) (evidence sufficient where single witness identified defendant as masked robber by his eyes and nose); Hooks v. State, 1995 WL 301866, at *1 (Tex. App. May 18, 1995) (witness' identification of defendant as robber sufficient to support conviction; although robber's face was covered except for the area around his eyes, witness said robber's eyes were "distinctive").
Petitioner relies in part on People v. Botello 183 Cal.App.4th 1014, 107 Cal.Rptr. 698 (2010), a case involving a drive-by shooting. In People v. Botello, the state conceded the insufficiency of the evidence to support firearm enhancements where the defendants were identical twins and the witness could not distinguish between the defendants or say which twin had pulled out a rifle and fired the shots. There was no video or photographic evidence in People v. Botello. By contrast, the video and photographic evidence in the present case permitted the jury to compare Petitioner's in-court appearance,12 (and his appearance in the "selfie"), with the appearance of the armed robber in the video and still photographs. Moreover, the two robbers at Palm Liquor were not identical twins. See R.T. 152-53 (victim contrasting the physical appearances of the two robbers).
For all of the foregoing reasons, and given the doubly deferential standard of review under Jackson and AEDPA, this Court cannot conclude that the California Court of Appeal's rejection of Petitioner's challenge to the sufficiency of the evidence to support the personal use enhancement with respect to the Palm Liquor robbery was contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. Harrington v. Richter, 562 U.S. 86, 101 (2011); 28 U.S.C. § 2254(d). Accordingly, Petitioner is not entitled to federal habeas relief on this claim.
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.
