JESUS G. BERNAL, District Judge.
This Report and Recommendation is submitted to the Honorable Jesus G. Bernal, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
On October 20, 2014, Gabriel Adam Sanchez ("petitioner"), a state prisoner proceeding with counsel, filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") pursuant to 28 U.S.C. § 2254, with an attached addendum ("Petition Add.") and exhibits ("Petition Ex."), challenging a judgment in San Bernardino County Superior Court on multiple grounds.
On November 24, 2014, respondent filed an Answer and a supporting memorandum ("Answer").
For the reasons stated below, the Petition should be denied, and this action should be dismissed with prejudice.
On August 1, 2011, a San Bernardino County Superior Court jury found petitioner guilty of first degree murder (count 1), robbery (counts 2-6), and attempted premeditated murder (counts 7-10). (CT 1-12, 313-22). The jury also found true allegations that petitioner knew that a co-participant was armed in the commission of the foregoing offenses. (CT 323-32).
At a bifurcated bench trial on August 4, 2011, the court found beyond a reasonable doubt that petitioner had one prior conviction of a serious or violent felony which qualified as a "strike" under California's Three Strikes law (Cal. Penal Code §§ 667(b)-(i), 1170.12(a)-(d)) ("strike prior"). (CT 152, 387-88; RT 502-10). On October 7, 2011, the trial court sentenced petitioner to a total of 50 years to life in state prison plus an additional consecutive term of one year. (CT 409-13; RT 515-22).
On May 8, 2013, the California Court of Appeal affirmed the judgment in a reasoned decision. (Lodged Doc. 10). On July 24, 2013, the California Supreme Court denied review without comment. (Lodged Doc. 13).
The instant case stems from the prosecution of petitioner and his co-defendant, Erik Ibarra, for the robbery of Michael Edayan, Bryan Juarez, Michael Hilliard, Juan Monge, and Juan Nieto, the first degree murder of Edayan, and the attempted premeditated murder of Juarez, Hilliard, Monge, and Nieto shortly thereafter.
On the late evening of June 14, 2009, Edayan, Juarez, Hilliard, Monge, and Nieto went to Blair Park in San Bernardino to do some target practicing with their airsoft
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.
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) ("Section 2254"). 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.
Petitioner claims that (1) the trial court improperly admitted irrelevant and prejudicial gang-related evidence in violation of the Due Process Clause of the Fourteenth Amendment; and (2) his trial counsel rendered ineffective assistance at sentencing by failing to seek dismissal of the strike prior. (Petition at 5; Petition Add. at 11-14; Traverse at 3-11). Petitioner is not entitled to habeas relief on either claim.
Petitioner contends that the trial court admitted irrelevant and unduly prejudicial gang-related evidence which was improper under California rules of evidence and violated federal due process. (Petition at 5; Petition Add. at 10-11; Traverse at 3-11). The California Court of Appeal — the last state court to render a reasoned decision on the issue — rejected petitioner's evidentiary claim on the merits. (Lodged Doc. 10 at 11-15). Petitioner is not entitled to federal habeas relief on this claim.
Prior to trial on July 19, 2011, the People moved to admit gang-related evidence to show that petitioner and Ibarra were "both gang members from the same gang out of Monrovia," and that they had been convicted of a gang-related battery which they had committed in concert. The prosecutor argued the evidence was relevant to show (1) petitioner's knowledge that (a) violence was the "natural and probable consequence" of committing a crime with Ibarra, and (b) Ibarra was armed on the night in question; and (2) petitioner's "intent" and "plan" in committing the charged crimes with his fellow gang member. The prosecutor also argued the evidence was relevant to the underlying reason, or motive, for the fatal shooting, namely, that as a gang member accompanied by another gang member, Ibarra was bound by code and a desire for personal glory to react to Edayan's challenging comment with deadly force.
The court remarked that Ibarra's gang membership did not "necessarily go to premeditation" but agreed that it was relevant to motive. The prosecutor continued that the gang-related motive was not limited only to elevating the gang's and Ibarra's own status, but included instilling fear in the community and discouraging witnesses from cooperating with the police.
The court clarified: "So with respect to Ibarra, there's motive, increased status in the gang . . . [and] witness fear and intimidation? [¶] . . . [¶] . . . [And w]ith respect to [petitioner], it's — [¶] . . . [¶] . . . natural and probable cause — foreseeability that he has a gun, that he might use the gun, and the fact that they have previously committed a crime together, which shows or can show that they planned this robbery together?" The prosecutor responded affirmatively.
Ibarra's counsel objected that the evidence was irrelevant. He argued that the evidence would only have been relevant had there been a gang charge or allegation. He denied that the evidence tended to establish motive and characterized the prosecution's argument as an illogical leap that a gangster would have a special reason for pulling the trigger. The court clarified that the expert would simply testify to "how important not being . . . disrespected is to a gang member and that that sort of disrespect will be met with violence, especially when it's committed in front of another gang member." The court again remarked that it did not "buy the premeditation argument," but stated that the evidence was relevant to Ibarra's motive for shooting.
Ibarra's counsel countered that the evidence was "extremely prejudicial" and that it would permit the prosecutor to "present a picture to the jury of a violent gang member. . . ." He again asserted that the evidence would only have been admissible had petitioner and Ibarra been charged with a gang crime. The court stated: "It also becomes relevant . . . if some of th[e] witnesses are fearful about testifying because they suspect these people are gang members . . . so I think it's relevant for motive and witness reactions and fear." The prosecutor noted that "[w]ith respect to prejudice," the charged crimes, namely, that "Ibarra shot some kid point-blank in the face during a robbery," were far more egregious than the anticipated gang evidence, so the latter evidence was unlikely to emotionally sway jurors.
Petitioner's counsel argued that the evidence was inadmissible "character evidence" proscribed by California Evidence Code section 1101(a). He acknowledged the exceptions for "knowledge, intent, motive, plan, or scheme," but contended there was "no question about the motive for the robbery," or the "intent of the shooter." According to petitioner's interpretation of the case, the motive was obvious from the fact that "the victim made a statement, and that Ibarra responded to that statement." He also complained that the People were not required to prove motive, and they had "plenty of evidence as to the issues that they have to prove." Finally, he repeated the argument of Ibarra's counsel that only a gang crime charge or gang allegation would have made gang evidence relevant.
The court found it significant that petitioner and Ibarra had committed prior crimes together and pointed out that the People sought to introduce the gang evidence to show the motive not for the robbery but for the shooting. The court then took the matter under submission.
A few days later, on July 20, 2011, prior to the start of trial, the court ruled the gang evidence was:
The court also expressly found that "the probative value was not substantially outweighed by the danger of undue prejudice. . . ."
At trial, Officer Yolanda Gutierrez testified as a gang expert. She testified that victims of and witnesses to crimes committed by gang members tend not to cooperate with the investigation because they "fear . . . what might happen to them or their family." "Monrovia Nuevo Varrio" (MNV) is a Hispanic criminal street gang based in Monrovia. Members, including petitioner and Ibarra, display "MNV," "MNVR" (Monrovia Nuevo Varrio Rifa), and "X" with a number three tattoos. Ibarra was known as "Stomps" or "Stomper," and petitioner was known as "Lucky" and "Lil' Vago.
Based on the conduct and tattoos of petitioner and Ibarra, as well as information provided by other officers who had encountered petitioner and Ibarra on the street, Officer Gutierrez opined that petitioner and Ibarra were MNV gang members. She explained that when a gang member is challenged by someone, he must respond. A response to perceived disrespect would be even more important if another gang member were present to witness the confrontation. Gang members back one another up in the commission of crimes. They "communicate with one another. If one has a gun, the other is going to know." Officer Gutierrez opined that petitioner knew that Ibarra had a gun. The prosecutor asked whether it "matter[ed] to the gang" that petitioner and Ibarra were from Monrovia, but had allegedly committed crimes in San Bernardino. (RT 302). The gang expert opined that such conduct would inure to the benefit of MNV by raising its profile in the surrounding communities and increasing the gang's stature. The gang expert testified that the commission of the robbery at Blair Park enhanced Ibarra's reputation in the gang.
Regarding Edayan's statement about putting down the gun, Officer Gutierrez stated that Ibarra was "being called out," and that had he failed to respond to the challenge, the gang would have found out. The prosecutor then asked, "What would be the motive [of] . . . shooting at . . . the other young men?" Officer Gutierrez replied, "To eliminate any possible witnesses." Similarly, when petitioner was in the getaway car, he had told Ibarra's then girlfriend and another girl they had "better not say anything about what happened to anybody and that whatever happened stays with the people . . . in the car." Officer Gutierrez opined it was reasonable for the girls to take petitioner's statement as a threat.
Officer Gutierrez also testified that petitioner had been convicted in 2004 of robbery and assault, and both crimes were found to have been committed for the benefit of a criminal street gang. Petitioner was also convicted of being a felon in possession of a firearm, and that crime, too, was found to have been committed in association with a criminal street gang. Petitioner and Ibarra had previously committed a battery together, which was found to have been committed for the gang. (RT 292-94).
On cross-examination, Officer Gutierrez acknowledged that Blair Park is not in the territory claimed by MNV, and that the commission of a crime outside the gang territory could be either good or bad for the member depending on the gang's policy about off-territory crimes. She reiterated that gang members work to "instill fear" in the community.
The jury was instructed that it was not required to accept Officer Gutierrez's opinions as true or correct. The jurors were further instructed that gang evidence could only be considered for the limited purposes of (1) deciding defendants' identity or motive; or whether petitioner had a plan or scheme to commit robbery, knew that Ibarra was armed, or knew that murder or attempted murder was a natural and probable consequence of robbery committed in concert with Ibarra; and (2) evaluating witness credibility. The jury was admonished not to consider the evidence for any other purpose or to conclude therefrom that petitioner or Ibarra were of bad character or disposed to commit crime.
Petitioner essentially argues that the trial court violated California evidence laws and federal due process by admitting the gang-related testimony and opinions from Officer Gutierrez (collectively "gang evidence"), and also by admitting testimony that petitioner and Ibarra had previously committed a gang-related battery together ("prior gang crime"). (Petition at 5; Petition Add. at 11-12; Traverse at 3-9). Petitioner is not entitled to federal habeas relief on this claim.
First, to the extent petitioner contends that the trial court erred under state law, his claim is not cognizable on federal habeas review.
Second, to the extent petitioner argues that the trial court's admission of the gang evidence violated due process, his claim fails because the admission of such evidence did not violate any clearly established Supreme Court authority. As petitioner correctly notes (Traverse at 8-9), habeas may be granted "when constitutional errors have rendered the trial fundamentally unfair[.]"
Third, to the extent the Petition claims that admission of evidence regarding the prior gang crime constituted impermissible propensity evidence and violated federal law, such a claim likewise fails because the admission of such evidence is not contrary to any clearly established Supreme Court authority. Indeed, the United States Supreme Court has expressly declined to address whether admission of evidence of a defendant's past crimes — even if the evidence was irrelevant, prejudicial, or it showed that the defendant has a propensity for criminal activity — could ever violate due process.
Fourth, even if petitioner's due process claim could properly be considered here, it would still not merit habeas relief. "A habeas petitioner bears a heavy burden in showing a due process violation based on an evidentiary decision."
Here, the Court of Appeal reasonably concluded that testimony from the gang expert was probative on multiple relevant issues, including motive and intent. (Lodged Doc. 10 at 11-12). The Court of Appeal explained:
(Lodged Doc. 10 at 11-12). The Court of Appeal specifically concluded that evidence of the prior gang crime was properly admitted, in part, to show petitioner's knowledge that Ibarra had been armed, and "[petitioner's] willingness to commit violent crimes with his partner." (Lodged Doc. 10 at 12). In addition, the Court of Appeal reasonably found that the gang expert's testimony "also helped the jury evaluate witness credibility,"
As there were multiple permissible inferences the jury could draw from the gang-related evidence, and the admission of such evidence was not unduly prejudicial, the Court of Appeal's rejection of petitioner's due process claim was not an objectively unreasonable application of the governing Supreme Court authority.
In sum, the California Court of Appeal's rejection of this claim was not contrary to, or an unreasonable application of clearly established federal law. Nor was it based on an unreasonable determination of the facts in light of the evidence presented. Accordingly, petitioner is not entitled to federal habeas relief on this claim.
Petitioner contends that his trial counsel rendered ineffective assistance at sentencing by failing to file a motion to strike the strike prior pursuant to
The Sixth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, guarantees a criminal defendant the right to effective assistance of counsel at all "critical stages of a criminal proceeding," including during sentencing in noncapital cases.
Counsel's representation is "deficient" if it "fell below an objective standard of reasonableness."
Deficient performance is prejudicial if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Where there has been a state court decision rejecting a
California's Three Strikes law is specifically "designed to increase the prison terms of repeat felons," and thus significantly limits the circumstances in which a trial court may depart from the greatly enhanced sentencing requirements applicable to repeat offenders.
Pursuant to California Penal Code section 1385(a) ("Section 1385(a)"), a trial court may, sua sponte and in the interest of justice, "strike prior felony conviction allegations."
Here, the Court of Appeal presumed (as permitted by California law) that the trial court had been aware of its discretion under Section 1385(a) to strike petitioner's strike prior, and concluded that the trial court had not done so sua sponte because "it did not find [petitioner] or his circumstances to be so extraordinary as to take him outside the purview of the Three Strikes Law." (Lodged Doc. 10 at 17-18) (internal quotation marks omitted). Thus, in light of the foregoing, and given petitioner's serious criminal record noted below, petitioner's counsel could reasonably have concluded that filing a
Even so, the Court of Appeal reasonably concluded that, even assuming the failure to file a
(Lodged Doc. 10 at 18-19). The Court of Appeal's determination is well-supported by the facts and law, and its application of
In sum, the California courts' rejection of this claim was not contrary to, or an objectively unreasonable application of 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 federal habeas relief on this claim.
IT IS THEREFORE RECOMMENDED that the District Judge issue an Order: (1) approving and accepting this Report and Recommendation; and (2) directing that Judgment be entered denying the Petition and dismissing this action with prejudice.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition"), all of the records herein, and the attached Report and Recommendation of United States Magistrate Judge ("Report and Recommendation"). The Court approves and accepts the Report and Recommendation.
IT IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Report and Recommendation, and the Judgment herein on counsel for petitioner and respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Pursuant to this Court's Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge,
IT IS ADJUDGED that the Petition for Writ of Habeas Corpus is denied and this action is dismissed with prejudice.
(Lodged Doc. 10 at 14).
(Lodged Doc. 10 at 15) (emphasis and citation omitted).
