JACQUELINE CHOOLJIAN, Magistrate Judge.
On December 7, 2012, Javier Santamaria ("petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") pursuant to 28 U.S.C. § 2254. Construed liberally and in light of petitioner's state court briefing, the Petition challenges petitioner's conviction in Los Angeles Superior Court on the following remaining grounds:
On October 17, 2013, respondent filed an Answer and a supporting memorandum ("Answer").
The parties have consented to proceed before the undersigned United States Magistrate Judge.
For the reasons stated below, the Petition is denied, and this action is dismissed with prejudice.
On June 8, 2010, a Los Angeles County Superior Court jury convicted petitioner of the attempted second degree robbery of Jesus Estrada and the assault of Jose Garate with a deadly weapon. (CT 73-76, 150-51; RT 437-40). The jury also found true allegations that (1) petitioner committed both offenses for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by gang members ("gang enhancements"); and (2) petitioner personally used a deadly and dangerous weapon. (CT 150-51; RT 437-40). After petitioner waived his right to a jury trial on prior conviction allegations and the court heard evidence regarding the same, the court found that petitioner had suffered one prior serious felony conviction and had served three prior prison terms. (CT 229-30; RT 434-36, 457). On July 15, 2010, the court sentenced petitioner to a total of sixteen years in state prison. (CT 231-35; RT 466-67).
Petitioner thereafter appealed to the California Court of Appeal, raising two claims: (1) the evidence was insufficient to support petitioner's assault with a deadly weapon conviction (Claim 1 herein); and (2) the gang enhancements must be reversed because the gang expert usurped the jury's function by opining as to petitioner's purpose. (Lodged Doc. 10). On October 6, 2011, the Court of Appeal affirmed the judgment, rejecting both of petitioner's claims in a reasoned decision. (Lodged Doc. 1).
On November 14, 2011, petitioner filed a petition for review in the California Supreme Court, asserting the same two claims raised in the Court of Appeal. On December 21, 2011, the California Supreme Court denied review without comment. (Lodged Doc. 3).
On June 5, 2012, petitioner constructively filed a habeas petition in the Los Angeles County Superior Court, claiming ineffective assistance of trial counsel. (Lodged Doc. 13). On July 6, 2012, the court denied such petition based on petitioner's failure to establish a prima facie case for relief. (Lodged Doc 4 Attachments).
On August 15, 2012, petitioner constructively filed a habeas petition in the California Court of Appeal, claiming, among other things, that the evidence was insufficient to support his attempted robbery conviction and that his trial counsel was ineffective in failing to explain that petitioner was intoxicated and did not intend to rob anyone (Claim 4 herein). (Lodged Doc. 4). The Court of Appeal denied such petition without comment. (Lodged Doc. 5).
On September 7, 2012, petitioner constructively filed a habeas petition in the California Supreme Court, asserting the same claims raised in the habeas petition filed in the Court of Appeal. (Lodged Doc. 6). On February 13, 2013, the California Supreme Court denied such petition with citations to
Since petitioner challenges the sufficiency of the evidence to support his convictions, the Court has independently reviewed the state court record.
On September 19, 2009, between 6:00 p.m. and 6:30 p.m., Jesus Estrada, Jose Garate, Sergio Gomez, Sergio's little brother, and "Noe" were in the driveway of Estrada's house on the 1100 block of 45th Street in Los Angeles. Estrada and Garate were standing side-by-side next to a car in the driveway while Noe was hooking up a car stereo in a second car in the driveway. Gomez and his little brother were in the car with Noe.
Petitioner approached Estrada and Garate, and when he was approximately two to three feet away, he asked Estrada, "Where you from?" Estrada responded that he doesn't "gangbang." Petitioner said "This is 38" or "I'm from 38th Street," which Estrada understood as "claim[ing] his `hood." Petitioner then pulled up the sleeve of his long-sleeved shirt and exposed a knife that he was holding against the inside of his arm with the blade facing toward himself. The knife was approximately eight to nine inches long. Estrada was afraid petitioner was going to stab him. He began backing up the driveway away from petitioner. Petitioner also approached Garate and asked, "Where you from?" and exposed the knife to him. Garate responded, and petitioner said to Garate, "This is 38th Street gang." When petitioner exposed the knife, he "shoved it and flicked it out," so that the palm with which he held the knife was facing downward and the blade end was sticking out of his fisted palm.
Garate backed around a car in the driveway and petitioner followed him at a rapid pace. Petitioner got to within three or four feet of Garate, but Garate was able to run to his nearby car and get in. Petitioner knocked on the driver's side window of Garate's car and told him "everything is okay, it was just a joke." Garate drove away.
Petitioner then turned to Estrada, from whom he was separated by a car, and said, "Let me get your chain." Petitioner was still holding the exposed knife in the same hand. Estrada was wearing the gold chain around his neck. Estrada refused to hand over his chain, and petitioner walked away. Estrada went to his house and called the police, who arrived within approximately two minutes.
When petitioner chased after Garate, Gomez had grabbed his little brother and ran into the house. Gomez did not think petitioner's speech sounded slurred, but petitioner's eyes were red and droopy. Petitioner was apprehended in an alley nearby Estrada's house.
The prosecution's gang expert was Officer Manuel Gomez. The gang expert testified that when a gang member approaches someone and asks "Where are you from?," that person is asking whether the other is from a gang. Nongang members typically would not ask this sort of question. The question is seen as a challenge and is asked for purposes of intimidation. The gang expert was familiar with the 38th Street gang and had personally spoken to approximately 10 to 15 members and had investigated crimes the members had committed. He explained that gang members commit crimes in order to instill fear in the community, thereby enhancing the respect and reputation of the gang. The 38th Street gang's activities include possession of firearms, possession of narcotics, murders, attempted murders, felony vandalism, robberies, and shootings. The gang's symbols are "38," "thirty-eight" in Spanish, and "TEST" ("T" for thirty, "E" for eighth, and "ST" for street). It was the gang expert's opinion that petitioner is a member of the 38th Street gang whose moniker is "Stranger" or "Sepo," based on petitioner's having admitted membership to other officers in the gang unit. His opinion was also based on four of petitioner's tattoos. Petitioner has a tattoo that says "38 ST," one that says "TEST," one that says "SC LA" (standing for South Central Los Angeles, the area in which the gang's territory falls), and one that depicts a male with a shaved head and glasses holding a firearm, with a "38 ST" above his right eyebrow. The prosecutor posed a hypothetical to the gang expert using facts identical to those in the case and asked the expert's opinion regarding whether the hypothetical crime was committed for the benefit of the gang. The expert opined that the crime was committed for the benefit and in furtherance of the gang.
Petitioner's mother, Rita Reynoso, testified in petitioner's case-in-chief. On the date of the incident, she received a phone call from him at approximately 5:30 p.m. Petitioner asked that she take him to his girlfriend's house. Reynoso picked up petitioner at home approximately 10 to 15 minutes after receiving the call. Petitioner came out of the house staggering and walking like he was going to fall. He smelled like "he was very drunk," his eyes were bloodshot, and his speech was slurred. Reynoso drove approximately 15 minutes, and at the intersection of 45th Street and Central Avenue, she stopped with traffic. Petitioner opened the car door and exited the car. Reynoso yelled for petitioner to "come back," but he ignored her and walked away. Reynoso drove off because traffic started to move.
Officer Robert Deamer also testified in petitioner's case. Officer Deamer interviewed petitioner at 7:30 p.m. on September 19, 2009. He spoke to petitioner for 10 to 15 minutes. He thought petitioner smelled slightly of alcohol and he appeared very emotional and upset. Petitioner was crying and kept repeating that he wanted to go home.
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).
In applying the foregoing standards, federal courts look to the last reasoned state court decision.
However, to the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and consequently, whether the state court's decision was objectively unreasonable.
When it is unclear whether deference under the foregoing standards applies, federal habeas courts can deny writs of habeas corpus under Section 2254 by engaging in a de novo review.
When a claim presented in a federal habeas petition is unexhausted, a federal habeas court may deny relief when it is perfectly clear that the applicant does not raise even a colorable federal claim.
Petitioner contends that he is entitled to federal habeas relief because the evidence was insufficient to support his assault with a deadly weapon and attempted robbery convictions. These claims lack merit.
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.
First, on direct appeal, "it is the responsibility of the [trier of fact] — not the court — to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the [trier of fact's] verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the [trier of fact]."
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.'"
Sufficiency of the evidence claims are judged by the elements defined by state law.
Petitioner contends that the evidence was insufficient to support his conviction for assault of Garate with a deadly weapon. The California Court of Appeal — the last state court to issue a reasoned decision addressing the merits of this claim — rejected it. (Lodged Doc. 1 at 6-7). Petitioner is not entitled to federal habeas relief on this claim.
In California, the elements of assault with a deadly weapon are: (1) the defendant committed an assault upon the person of another; and (2) he committed the assault with a deadly weapon or instrument. Cal. Penal Code § 245(a)(1). An assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." Cal. Penal Code § 240. A "deadly weapon" is "any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury."
First, when viewed in the light most favorable to the prosecution, the evidence was sufficient to establish that petitioner attempted and had the present ability to commit a violent injury on Garate. As the Court of Appeal explained:
(Lodged Doc. 1 at 7). This Court agrees that the evidence summarized above was sufficient to enable a rational trier of fact to conclude that petitioner assaulted Garate.
Second, the evidence was sufficient to establish that petitioner assaulted Garate with a "deadly weapon." A knife qualifies as a "deadly weapon".
The California Court of Appeal's rejection of petitioner's challenge to the sufficiency of the evidence to support his assault with a deadly weapon conviction was not contrary to, or an objectively unreasonable application of, any clearly established federal law. Nor was it based upon an unreasonable determination of the facts in light of the evidence presented. Accordingly, petitioner is not entitled to relief on this claim.
Petitioner contends that the evidence was insufficient to support his attempted robbery conviction. Although it is not clear that this claim has been exhausted and although it may be procedurally defaulted (
"Robbery is `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.'"
Albeit not technically a "defense," a defendant's voluntary intoxication can negate the element of specific intent.
Here, the evidence was more than sufficient to support the jury's guilty verdict on the attempted robbery charge.
First, the record contains ample evidence from which the jury could reasonably have concluded that petitioner intended permanently to deprive Estrada of his chain. Petitioner spoke to Estrada in a threatening manner, displayed the knife to him, and commanded Estrada to give petitioner his chain with the knife still in his hand. While petitioner suggests that he did not have the specific intent to rob Estrada due to his intoxication, the jury, as detailed in Part VB, infra, was presented with this theory and reasonably rejected it. It is not for this Court to reweigh the evidence.
Second, the evidence is also sufficient to establish that petitioner went well beyond "mere preparation" and committed direct, albeit ineffectual acts toward accomplishing the intended robbery. More specifically, his acts of approaching Estrada, displaying a knife and commanding Estrada to give him Estrada's chain, constitute direct, albeit ultimately unsuccessful acts toward accomplishing his robbery of Estrada.
In short, there is ample evidence to support the jury's verdict that petitioner attempted to rob Estrada, and it is perfectly clear that this sufficiency of the evidence claim is not colorable. Accordingly, petitioner is not entitled to relief on this claim.
The Petition, construed liberally in light of petitioner's state court briefing, claims that petitioner's trial counsel was ineffective in failing adequately to explain to the jury that petitioner was intoxicated and did not intend to rob Estrada of the gold chain. Although it is not clear that this claim has been exhausted, this Court nonetheless exercises it discretion to address this claim on its merits under a de novo standard of review as it is perfectly clear that the claim is not colorable.
The Sixth Amendment of the United States Constitution as applied to the states through the Fourteenth Amendment guarantees a state criminal defendant the right to effective assistance of counsel at trial.
Petitioner's counsel was not ineffective in defending petitioner on the attempted robbery charge. To the contrary, the record demonstrates that petitioner's counsel vigorously, albeit unsuccessfully presented the jury with the defense theory that petitioner was intoxicated and did not intend to rob Estrada.
During her opening statement, petitioner's counsel explained that petitioner was very drunk at the time of the events. (RT 142, 144). She elicited or attempted to elicit from virtually every witness facts evidencing petitioner's intoxication (e.g., that he had bloodshot eyes, slurred speech, and smelled of alcohol). (RT 187 [cross-examination of Jesus Estrada]; RT 215-17 [cross-examination of Sergio Gomez]; RT 245 [cross-examination of Cinthia Hernandez]; 254-55, 258-59 [cross-examination/recross-examination of Mauricio Ruiz]; RT 322-26 [direct examination of Rita Reynoso]; RT 337 [direct examination of Robert Deamer]). Petitioner's counsel argued that the trial court should instruct the jury regarding voluntary intoxication and the court did so. (RT 354-59, 382-83; CT 124-25). Finally, in closing argument, petitioner's counsel focused on the issue of whether or not petitioner had the requisite specific intent given petitioner's intoxication. (RT 415-17).
In short, the record belies petitioner's assertion that his counsel failed adequately to explain to the jury that petitioner was intoxicated and did not intend to rob Estrada. Although counsel's efforts ultimately proved to be unsuccessful, this does not alter the fact that she ably defended petitioner. It is perfectly clear that petitioner's instant ineffective of counsel claim is not colorable. Accordingly, petitioner is not entitled to relief on this claim.
IT IS THEREFORE ORDERED: (1) the Petition is denied and this action is dismissed with prejudice; and (2) the Clerk shall enter judgment accordingly.
(c) Voluntary intoxication includes the voluntary ingestion, injection, or taking by any other means of any intoxicating liquor, drug, or other substance.
