REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, 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 March 15, 2016. The sole claim in the Petition asserts that the evidence was constitutionally insufficient to support Petitioner's conviction for felony child abuse. Respondent filed an Answer on April 13, 2016. Petitioner did not file a Reply within the allotted time.

BACKGROUND

A Superior Court jury found Petitioner guilty of the first degree murder of his wife, Rosalia Mendez ("Rosalia") (Count One), and found true the allegation that Petitioner personally used a deadly and dangerous weapon, a knife, in the commission of the murder (Reporter's Transcript ["R.T."] 512; Clerk's Transcript ["C.T."] 260-61). The jury also found Petitioner guilty of the felony child abuse of Rosalia's son Jose in violation of California Penal Code section 273a(a) (Count Two) (R.T. 512; C.T. 262). The jury found Petitioner not guilty of the felony child abuse of Rosalia's son Orlando, but found Petitioner guilty of the lesser offense of the misdemeanor child abuse of Orlando in violation of California Penal Code section 273a(b) (Count Three) (R.T. 512-13; C.T. 263-64). The court sentenced Petitioner to a term of twenty-six years to life on Count One, a consecutive term of four years on Count Two and a consecutive term of six months on Count Three (R.T. 524-26; C.T. 288-89).

The California Court of Appeal affirmed in a reasoned decision (Respondent's Lodgment 7; see People v. Mendez, 2014 WL 5237598 (Cal. App. Oct. 15, 2014)). The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 9).

SUMMARY OF TRIAL EVIDENCE

I. Prosecution Case

The prosecution introduced evidence demonstrating the following:

Petitioner and Rosalia lived in a small, one bedroom, one bathroom house with their three sons: Jose, aged fifteen, Orlando, aged thirteen, and Rosendo, approximately aged five (R.T. 137, 184-89; 205; 233-35). Petitioner regularly beat, punched, kicked and degraded Rosalia in front of the children, and Petitioner strictly controlled Rosalia's attire, appearance, money and interactions with others (R.T. 194-202, 237-41). When Rosalia attempted to defend the children, Petitioner would yell at Rosalia and hit her (R.T. 196). Petitioner told Rosalia that, if she ever left him, Petitioner would kill her (R.T. 202, 242-43).

Orlando lived in fear of Petitioner, and Orlando observed that Rosalia and Jose also appeared to fear Petitioner (R.T. 203). Jose wanted to stop Petitioner from hitting Rosalia (R.T. 242). Jose had tried to push Petitioner off Rosalia during at least one of the prior abusive incidents (R.T. 242).

Approximately one month before the crimes, Rosalia and her sons began packing to move out of the house (R.T. 203-04, 245). Jose was afraid to speak to Petitioner directly concerning the impending move (R.T. 250). Petitioner threw away precious personal items that belonged to Rosalia and the boys (R.T. 204-05, 244).

Approximately a week and a half before the crimes, when Rosalia, a male companion and the boys were at Walmart, Petitioner punched the male companion (R.T. 214-15, 247-48).

The night before the incident, Rosalia, Jose and Orlando were cleaning the bathroom in preparation for leaving the next day (R.T. 205, 248-49). Petitioner was watching them (R.T. 205-06). The boys went to bed after an argument between Petitioner and Rosalia began (R.T. 206, 250-51).

Later, Jose awoke to the sound of screaming (R.T. 251). Jose ran into the bathroom and saw Petitioner holding a knife lodged in Rosalia's back (R.T. 252). Jose began punching Petitioner (R.T. 252). Petitioner asked Jose, "Why are you doing this to your father?" (R.T. 252). Jose stopped punching Petitioner, Rosalia fell to the floor and Petitioner went into the living room (R.T. 252). Jose called 911 and went back to his mother, who was spitting blood (R.T. 253). Jose tried to check Rosalia's pulse and heartbeat (R.T. 254-56).

Jose then woke Orlando (R.T. 207). There was blood on Jose's hands and shirt (R.T. 208). Jose was "frightened," "scared," "frantic" and "panicking" (R.T. 208). Jose told Orlando to go to the bathroom (R.T. 208). Orlando saw his mother lying on the floor, covered in blood with a knife in her back (R.T. 209, 217-18). The blood was "everywhere," on the floor and the walls (R.T. 209).

Rosalia suffered twelve separate stab wounds, including wounds to the aorta, chest, lung, diaphragm, liver, back, arms and thumb, and a wound to the heart five inches deep (R.T. 270-85). She died as a result of these wounds (R.T. 280).

II. Defense Case

Petitioner testified that he had slapped Rosalia once before the killing, and Petitioner admitted to having had a fight at Walmart with a man whom Petitioner allegedly believed to have been Rosalia's lover (R.T. 332-34, 380). Petitioner conceded that he stabbed Rosalia to death (R.T. 333, 335). Petitioner claimed that, during an argument in the bathroom, Rosalia had attempted to grab the knife from a bathroom shelf and had spat into Petitioner's face (R.T. 329-32, 335). Petitioner said he then "exploded" with rage and began stabbing Rosalia (R.T. 332-33).

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).

"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 Court looks to the last reasoned state court decision, here the decision of the California Court of Appeal. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008).

DISCUSSION

I. Governing Legal Standards

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, 132 S.Ct. 2060, 2065 (2012).

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).1 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, 132 S. Ct. at 2064 ("Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors draw reasonable inferences from basic facts to ultimate facts") (citation and internal quotations omitted); Cavazos v. Smith, 132 S.Ct. 2, 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." 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, 132 S. Ct. at 2064.

II. Discussion

California Penal Code section 273a(a) provides that felony child abuse2 occurs, inter alia, when a person "who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering. . . ." Section 273a(b) makes it a misdemeanor to engage in the same conduct under circumstances or conditions other than those likely to produce great bodily injury. Petitioner's jury was so instructed (R.T. 432; C.T. 210-13).3 Petitioner contends the evidence was constitutionally insufficient to support the felony child abuse conviction because the evidence supposedly did not show "circumstances likely to produce great bodily harm or death."

"Felony child abuse does not require force likely to produce great bodily injury." People v. Clark, 201 Cal.App.4th 235, 243, 136 Cal.Rptr.3d 10, 17 (2011) (footnote omitted). "It requires the willful infliction of injury under circumstances and conditions likely to produce great bodily injury." Id. The word "likely" means "a substantial danger, i.e., a serious and well-founded risk, of great bodily harm or death." People v. Wilson, 138 Cal.App.4th 1197, 1204, 41 Cal.Rptr.3d 919 (2006) (internal quotations omitted). "While force may be one circumstance or condition, it is not the only circumstance or condition that may support a conviction for felony child abuse." People v. Clark, 201 Cal. App. 4th at 243. "[T]here is no requirement that the actual result be great bodily injury." People v. Cockburn, 109 Cal.App.4th 1151, 1160, 135 Cal.Rptr.2d 807, 814 (2003). "[C]ircumstances and conditions a reasonable jury could consider include, but are not limited to, (1) the characteristics of the victim and the defendant, (2) the characteristics of the location where the abuse took place, (3) the potential response or resistance by the victim to the abuse, (4) any injuries actually inflicted, (5) any pain sustained by the victim, and (6) the nature of and amount of force used by the defendant." People v. Clark, 201 Cal. App. 4th at 245 (footnote omitted).

The California Court of Appeal rejected Petitioner's challenge to the sufficiency of the evidence to satisfy Penal Code section 273a(a)'s requirement of "circumstances or conditions likely to produce great bodily harm." The Court of Appeal's decision relied in part on People v. Wilson, supra. In People v. Wilson, the Court of Appeal had held that the evidence sufficed to support convictions for two counts of violating section 273a(a): (1) one count based on the defendant's act of forcing her ten-year-old son to climb through a high window into the bathroom of a locked house to facilitate a burglary, which the court deemed a "highly dangerous undertaking that expose[d] the child to number of serious physical dangers"; (2) a second count based on an incident after the burglary where the defendant choked the child, threw him against a wall and hit the wall close to his head with a mop. People v. Wilson, 138 Cal. App. 4th at 1204-05. The Wilson Court reasoned that in both instances the evidence showed the existence of a substantial danger of great bodily harm or death, and that proof of actual physical injury was not required. Id.

In Petitioner's case, the Court of Appeal reasoned that the evidence showed Petitioner was "enraged" and "out of control," and "could well have struck out at Jose with his fist or his knife before realizing who the interfering person was," or could have "struck at Jose to defend himself against the latter's desperate attack" (Respondent's Lodgment 7, p. 4; see People v. Mendez, 2014 WL 5237598, at *2). The Court of Appeal concluded that "Petitioner's act of attacking his wife in the home created a situation of extreme violence and danger into which it was highly likely that his teenaged son would be drawn" (Respondent's Lodgment 7, p. 4; see People v. Mendez, 2014 WL 5237598, at *2) (footnote omitted).

The Court of Appeal's conclusion was not unreasonable. A rational juror could have found, beyond a reasonable doubt, that Petitioner willfully caused Jose to suffer unjustifiable mental suffering under circumstances or conditions highly likely to produce great bodily harm. Jose already feared Petitioner because of Petitioner's pervasive, abusive behavior. Petitioner chose to stab Rosalia in the bathroom of a very small house in which Petitioner knew Jose was present. These circumstances made it highly likely Jose would intervene. When Jose did intervene, the enraged Petitioner was still holding the knife he so recently had plunged into Rosalia's back. At that time, Jose's mother was still standing, riddled with stab wounds and covered in blood. A rational juror could have concluded that these circumstances posed a substantial and plainly foreseeable danger of great bodily harm to Jose. A rational juror could have concluded that, when Jose entered the bathroom, there was a substantial danger that Petitioner, who still held the knife, would redirect his rage toward Jose, particularly as Jose punched Petitioner in a futile attempt to save Rosalia. The fact that no physical injury to Jose actually occurred does not undermine the rational conclusion that Jose faced a substantial danger of great bodily injury from the enraged and heedless man who had just stabbed Jose's mother twelve times.

Accordingly, the Court of Appeal's determination that the evidence sufficed to support Petitioner's conviction for violation of California Penal Code section 273a(a) was not an unreasonable application of the standards set forth in Jackson v. Virginia. See Villalobos v. Cate, 2013 WL 1969879, at *1-2, 6-7 (S.D. Cal. Mar. 11, 2013), adopted, 2013 WL 1969877 (S.D. Cal. May 10, 2013) (evidence sufficient where the petitioner and his girlfriend engaged in a violent fight in front of two minor children, child saw the petitioner cut the girlfriend's arm with a knife, police discovered children hiding frightened under a bed and one child variously told police that the petitioner had hit her in the face, foot or backside with a mop); Renteria v. Subia, 2008 WL 2413998, at *14-15 (C.D. Cal. June 13, 2008), aff'd, 449 Fed. App'x 615 (9th Cir. 2011), cert. denied, 132 S.Ct. 1550 (2012) (evidence sufficient where the petitioner stabbed his wife to death so close to his five-year old daughter that the girl was splattered with blood; upholding Court of Appeal's conclusion that the assault put the daughter at risk of serious injury and that it was foreseeable that the daughter would attempt to intervene and become seriously injured). The Court of Appeal's ruling was not "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." See Harrington v. Richter, 562 U.S. 86, 103 (2011). Thus, Petitioner is not entitled to habeas relief. See id. at 100-03; 28 U.S.C. § 2254(d).4

RECOMMENDATION

For the reasons discussed above, 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.