KAREN L. STEVENSON, Magistrate Judge.
On December 7, 2018, Petitioner, a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) The operative pleading is the Second Amended Petition ("SAP"), which Petitioner filed on January 25, 2019. (Dkt. No. 8.) On June 12, 2019, Respondent filed an Answer to the SAP and lodged with the Court the relevant state court records. (Dkt. Nos. 20, 21.) On July 19, 2019, Petitioner filed a Reply. (Dkt. No. 28.) The parties have consented to the jurisdiction of the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 22.) Briefing in this action is now complete, and the matter is ready for decision.
On December 20, 2016, a Los Angeles County Superior Court jury convicted Petitioner, as relevant here, of three counts of first-degree residential robbery (Counts One to Three, CAL. PENAL CODE ("Penal Code") § 211), three counts of false imprisonment (Counts Four to Six, Penal Code § 236), and one count of carjacking (Count Seven, Penal Code § 215(a)).
Petitioner appealed her judgment of conviction. (Id. at 1050.) On June 20, 2018, the California Court of Appeal affirmed the judgment in a reasoned, unpublished opinion. (Lodg. No. 14.) Petitioner then filed a Petition for Review in the California Supreme Court (Lodg. No. 18), which summarily denied the petition without comment or citation of authority on October 10, 2018 (Lodg. No. 19).
On December 7, 2018, Petitioner filed a § 2254 Petition in this Court. (Dkt. No. 1.) On December 26, 2018, she filed a First Amended Petition. (Dkt. No. 4.) On January 4, 2019, the Court issued an order ordering Petitioner to show cause why this action should not be dismissed for failure to comply with the applicable pleading standards. (Dkt. No. 5.) On January 25, 2019, Petitioner filed a SAP, raising five grounds for federal habeas relief. (Dkt. No. 8.) On February 5, 2019, the Court issued an order stating that Petitioner's claims in Grounds One and Two appeared to be unexhausted. (Dkt. No. 11.) The Court gave Petitioner four options and ordered her to state how she wished to proceed. (Id.) On February 15, 2019, Petitioner filed a notice stating that she wished to voluntarily dismiss her claims in Grounds One and Two. (Dkt. No. 12.) On February 28, 2019, the Court ordered Respondent to file a response to the SAP. (Dkt. No. 13.) On June 12, 2019, Respondent filed an Answer. (Dkt. No. 20.) On July 19, 2018, Petitioner filed a Reply. (Dkt. No. 28.)
The following factual summary from the California Court of Appeal's unpublished decision on direct review is provided as background. See 28 U.S.C. § 2254(e)(1) ("[A] determination of a factual issue made by a State court shall be presumed to be correct" unless rebutted by the petitioner by clear and convincing evidence.).
(Lodg. No. 14 at 4-11.)
The Second Amended Petition, as amended by Petitioner's voluntary dismissal of Grounds One and Two, presents the following grounds for habeas relief.
Ground Three: The evidence at trial was insufficient to support the jury's finding on the firearm-use allegation. (SAP at 6.)
Ground Four: The evidence presented at trial was insufficient to support Petitioner's convictions on Counts One through Seven. (Id.)
Ground Five: Petitioner was denied due process and a fair trial in violation of the Fourteenth Amendment. (Id.)
Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a state prisoner whose claim has been "adjudicated on the merits" cannot obtain federal habeas relief unless that adjudication: (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.
For the purposes of Section 2254(d), "clearly established Federal law" refers to the Supreme Court holdings in existence at the time of the state court decision in issue. Cullen v. Pinholster, 563 U.S. 170, 182 (2011); see also Kernan v. Cuero, ___ U.S. ___, 138 S.Ct. 4, 9 (2017) (per curiam) (explaining that circuit precedent, state-court decisions, treatises, and law review articles do not constitute clearly established federal law). A Supreme Court precedent is not clearly established law under § 2254(d)(1) unless it "squarely addresses the issue" in the case before the state court or establishes a legal principle that "clearly extends" to the case before the state court. Moses v. Payne, 555 F.3d 742, 760 (9th Cir. 2009); see also Harrington v. Richter, 562 U.S. 86, 101 (2011) (explaining that it "is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by" the Supreme Court) (citation omitted).
A state court decision is "contrary to" clearly established federal law under § 2254(d)(1) only if there is "a direct and irreconcilable conflict," which occurs when the state court either (1) arrived at a conclusion opposite to the one reached by the Supreme Court on a question of law, or (2) confronted a set of facts materially indistinguishable from a relevant Supreme Court decision, but reached an opposite result. Murray v. Schriro, 745 F.3d 984, 997 (9th Cir. 2014) (citing Williams v. Taylor, 529 U.S. 362, 405 (2000)). A state court decision is an "unreasonable application" of clearly established federal law under § 2254(d)(1) if the application of Supreme Court precedent was "objectively unreasonable, not merely wrong." White v. Woodall, 572 U.S. 415, 419 (2014). Petitioner must establish that "there [can] be no `fairminded disagreement" that the clearly established rule at issue applies to the facts of the case. See id. at 1706-07 (citation omitted). Finally, a state court's decision is based on an unreasonable determination of the facts within the meaning of § 2254(d)(2) when the federal court is "convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record before the state court." Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir.) (internal quotation marks omitted), cert. denied, 135 S.Ct. 710 (2014). So long as "`[r]easonable minds reviewing the record might disagree,'" the state court's determination of the facts is not unreasonable. See Brumfield v. Cain, ___ U.S. ___, 135 S.Ct. 2269, 2277 (2015). Thus, AEDPA "erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." White v. Wheeler, ___ U.S. ___, 136 S.Ct. 456, 460 (2015) (per curiam) (internal quotation marks and citation omitted). Petitioner carries the burden of proof. See Pinholster, 563 U.S. at 181.
Petitioner raised her sufficiency of the evidence claims (Grounds Three and Four) on direct review in the California Court of Appeal. (Lodg. No. 5 at 27-34 & 35 (citing Lodg. No. 3 at 19-20).) The California Court of Appeal denied the claims in a reasoned decision on the merits. (Lodg. No. 14 at 22-27, 30-33.) Petitioner then presented the claims to the California Supreme Court in the Petition for Review (Lodg. No. 16 at 14-32), which the California Supreme Court denied summarily without comment or citation to authority (Lodg. No. 19). Thus, § 2254(d) applies, and the Court looks through the California Supreme Court's summary denial to the last reasoned decision — the decision of the California Court of Appeal on direct review — to determine whether the state court's adjudication of Grounds Three and Four is unreasonable or contrary to clearly established federal law. See Johnson v. Williams, 568 U.S. 289, 297 n.1 (2013) ("Consistent with our decision in Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991), the Ninth Circuit `look[ed] through' the California Supreme Court's summary denial of [the petitioner's] petition for review and examined the California Court of Appeal's opinion."); see also, e.g., Jones v. Harrington, 829 F.3d 1128, 1136 (9th Cir. 2016) (looking through California Supreme Court's summary denial of a petition for review to the California Court of Appeal's decision on direct review).
Petitioner claims that the evidence was insufficient to support the jury's true finding on the firearm-use allegation, the evidence was insufficient to support the jury's verdict on Counts One through Seven, and she was denied due process and a fair trial as a result of her improperly obtained convictions. (SAP at 6.) Petitioner's claims do not warrant habeas relief and are discussed in turn.
"[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). When a habeas petitioner challenges the sufficiency of the evidence supporting the jury's verdict, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Coleman v. Johnson, 566 U.S. 650, 656 (2012) (per curiam) ("question under Jackson is whether [the jury's] finding was so insupportable as to fall below the threshold of bare rationality."). Jackson does not require that the prosecutor affirmatively "`rule out every hypothesis except that of guilt.'" Wright v. West, 505 U.S. 277, 296 (1992) (citation omitted). "Circumstantial evidence and inferences drawn from it may [also] be sufficient to sustain a conviction." Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (citation omitted). When the factual record supports conflicting inferences, the federal court must presume, even if it does not affirmatively appear on the record, that the trier of fact resolved any such conflicts in favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326; McDaniel v. Brown, 558 U.S. 120, 133 (2010). Ultimately, for Petitioner's claim to be successful, the jury's finding must be "so insupportable as to fall below the threshold of bare rationality." Coleman, 132 S. Ct. at 2065. The Jackson standard applies equally to sentencing enhancements where, as here, the State requires the prosecution to prove the enhancement beyond a reasonable doubt. See Garcia v. Carey, 395 F.3d 1099, 1102-04 (9th Cir. 2005). The same standard is used by California courts in determining the sufficiency of the evidence. People v. Johnson, 26 Cal.3d 557, 575-78 (1980) (applying Jackson).
When, as here, both Jackson and AEDPA apply to the same claims, the claims are reviewed under a "twice-deferential standard." Parker v. Matthews, 567 U.S. 37, 43 (2012) (per curiam). Accordingly, this Court's inquiry is limited to whether the California courts' rejection of Petitioner's insufficiency of the evidence claims was an objectively unreasonable application of Jackson. See Emery v. Clark, 643 F.3d 1210, 1213-14 (9th Cir. 2011); Juan H. v. Allen, 408 F.3d 1262, 1275 n.13 (9th Cir. 2005).
Petitioner first argues that the evidence at trial was insufficient as to the firearm-use allegation; she avers that she never had a firearm in her possession and was not present at the crime scene. (SAP at 6.) In state court, Petitioner joined in her co-defendants' argument that there was no substantial evidence that the object her co-defendant possessed was a real handgun and, therefore, the finding of the firearm enhancement must be reversed. (Lodg. No. 5 at 35 (referring to Lodg. No. 3 at 19-20).) The California Court of Appeal disagreed with the co-defendant's argument:
(Lodg. No. 14 at 32 (citations omitted).)
To prove a firearm-use allegation under California law, there must be evidence of a firearm designed to shoot and which gives the appearance of shooting capability. See People v. Nelums, 31 Cal.3d 355, 358-59 (1982). "The character of the weapon may be shown by circumstantial evidence. From testimonial descriptions of the weapon and its role in the commission of the crime, a jury may draw a reasonable inference of guilt. [The r]easonableness of the inference depends upon [the] adequacy of the descriptions." People v. Hayden, 30 Cal.App.3d 446, 451-52 (1973), overruled on other grounds by People v. Rist, 16 Cal.3d 211 (1976) (citation omitted). A "defendant's own words and conduct in the course of an offense may [also] support a rational fact finder's determination that he used a loaded weapon." People v. Rodriguez, 20 Cal.4th 1, 13 (1999). A threat to shoot someone can reasonably be interpreted "as an admission by [the defendant] of his present ability" to do so. Id. at 7, 12. A firearm-use allegation can be proven even where the defendant does not personally wield the firearm. See, e.g., People v. Garcia, 28 Cal.4th 1166, 1177 (2002) ("There is no dispute that an aider and abettor need not personally use or discharge a firearm to be liable.").
The California Court of Appeal's rejection of Petitioner's claim was not objectively unreasonable. As detailed by the Court of Appeal, the evidence demonstrated that Fernando held a hard metal object to Normandia's back when he went to his truck, Normandia described it as a black semiautomatic handgun, and Fernando grabbed Normandia by the back of his shoulder and ordered him to return to the house. (Lodg. No. 3 at 1313, 1315, 1329-30.) Normandia and Michael both testified that Fernando pointed a gun at Normandia's head. (Id. at 981, 1315, 1318.) Michael then testified that Fernando pointed the gun at Michael's face and told him to "[g]et into the house." (Id. at 925-26, 982.) Alvaro testified that Fernando kicked down the door to his room, pointed a gun at his head, and ordered him to go into the kitchen. (Id. at 912-14, 926, 985-86.) Alvaro described the gun as black, and as looking like a handgun that was adjusted to be a submachine gun. (Id. at 913.) Jorge also threatened Alvaro by saying that he could "spray the house."
The victims' testimony overwhelmingly supported the inference that Fernando used a real firearm and the jury's true finding on the firearm-use allegation. See Hayden, 30 Cal. App. 3d at 452-53 (when robbery victims "testified that the robber pointed and threatened them with a weapon which they variously described as a gun," and that he ordered them to do various tasks, the evidence is sufficient to sustain a finding that the robber used a firearm). And though Petitioner was not present at the crime scene and did not personally use a firearm, she may still be found subject to the firearm enhancement based on her participation in the offense. See Garcia, 28 Cal. 4th at 1177. Therefore, the record supports the determination of the California Court of Appeals that sufficient evidence supported the firearm-use allegation. Accordingly, the court's application of the Jackson test was not wrong beyond any possibility of fair-minded disagreement. See Harrington, 562 U.S. at 103. To the extent Petitioner asks the Court to draw inferences different from those drawn by the jury and reweigh the evidence, that is impermissible. See Cavazos v. Smith, 565 U.S. 1, 7 n.* (2011). Accordingly, Petitioner is not entitled to relief based on Ground Three.
Petitioner next argues that the evidence at trial was insufficient to support her convictions on Counts One through Seven (three counts of first-degree residential robbery, three counts of false imprisonment, and one count of carjacking); she avers that she was not present at the crime scene and was not involved in any way with the crime. (SAP at 6.) The California Court of Appeal disagreed with Petitioner's argument:
(Lodg. No. 14 at 24-27 (citations omitted).)
Under California law, a defendant who assists another to commit a crime is guilty as an aider and abettor. See People v. Perez, 25 Cal.4th 1219, 1225 (2005). An aider and abettor need not be present during the commission of the offense. People v. Beeman, 35 Cal.3d 547, 554-55 (1984). "The actual perpetrator must have whatever mental state is required for each crime charged," while an aider and abettor must "act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." People v. Mendoza, 18 Cal.4th 1114, 1123 (1998) (citation omitted). "[A]n aider and abettor will `share' the perpetrator's specific intent when he or she knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime." Beeman, 35 Cal. 3d at 560.
A conspiracy requires an agreement between two or more persons with the specific intent to agree and to commit an offense, followed by an overt act committed by one or more of the parties for the purpose of accomplishing the object of the agreement. People v. Morante, 20 Cal.4th 403, 416 (1999). An "overt act" means any step taken or committed by one or more of the conspirators which goes beyond mere planning or agreement to accomplish the conspiracy's objective. People v. Jurado, 38 Cal.4th 72, 120 (2006). A conspiracy may be proved by direct or indirect evidence. People v. Cantu, 216 Cal.App.2d 839, 845 (1963). "It is not necessary to prove that the parties met and actually agreed to jointly undertake the criminal action charged." Id. "[E]ach member of a conspiracy is criminally responsible for the acts of fellow conspirators committed in furtherance of, and which follow as a natural and probable consequence of, the conspiracy, even though such acts were not intended by the conspirators as a part of their common unlawful design." People v. Zielesch, 179 Cal.App.4th 731, 739 (2009) (citing People v. Medina, 46 Cal.4th 913, 920 (2009)).
The California Court of Appeal's rejection of Petitioner's claim was not objectively unreasonable, and the record supports the determination that the evidence was sufficient to sustain Petitioner's convictions on Counts One through Seven, either under an aiding and abetting or conspiracy theory of liability. The evidence showed that Fernando, the gunman, was Petitioner's boyfriend; Michael testified that the day after the crimes, he looked at Petitioner's Facebook page and saw that Petitioner was with "Fernandez Hernandez." (Lodg. No. 3 at 1000-01, 1279, 1593-94.) "Fernandez Hernandez" was Fernando's Facebook page. (Id. at 1000-02, 1280.) Michael also saw a man he believed to be Fernando in the background of one of Petitioner's Facebook photos. (Id. at 1002.) At one point, when Petitioner was staying with Michael, Petitioner said "Fernando" was coming over, and asked Michael to stay inside the house. (Id. at 1287-88.) Fernando's Facebook friends included Petitioner and Jorge, (id. at 1595), and Jorge's Facebook friends included Petitioner and "Fernandez Hernandez" (id. at 1596).
Cell phone evidence showed that Petitioner, Bojorquez, and Jorge were near the crime scene between 4:00 a.m. and 6:00 a.m. (Id. at 1561, 1563, 1577, 1605.) Shortly thereafter, Bojorquez, Jorge, and Castanon were apprehended nearby with Normandia's truck. (Id. at 1507-13.) Additionally, the evidence showed that Fernando and Castanon demanded a $4,000 check during the robbery, which corresponded with Alvaro's monthly paycheck and the amount Alvaro had discussed with Michael while Petitioner stayed at their home. (Id. at 916-18, 986, 989, 1288-89, 1320, 1331.) During the robbery, Fernando asked for and took bags of Petitioner's belongings that had been in Michael's room for months. (Id. at 991, 1252-53, 1322.) The bags were later recovered from Normandia's truck. (Id. at 1341-42.)
Finally, Petitioner's text to Michael before the crime that she knew "the whole plan" and that "someone's about to jack you guys" (id. at 972), and her threats against Michael after the crimes (id. at 1854-55), were compelling circumstantial evidence connecting her to the crimes as either an aider and abettor or a coconspirator. As the California Court of Appeal found, the evidence supported Petitioner's convictions because "[a] rational trier of fact could find the other defendants falsely imprisoned the victims [Counts Four through Six] and stole Normandia's car [Count Seven] in order to facilitate the successful completion of the robbery, which was all part of the plan as [Petitioner] well knew. Substantial evidence also permitted the jury to find the false imprisonment and carjacking offenses were natural and probable consequences of the robbery." (Lodg. No. 14 at 26.) Accordingly, the California Court of Appeal's rejection of Petitioner's sufficiency of the evidence claim was not contrary to, nor an unreasonable application of, Jackson. Therefore, relief is not warranted on Ground Four of the Petition.
Petitioner's final argument is that she was denied due process and a fair trial. It is well-settled that "[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief." James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). Petitioner does not expand on this argument or provide specific facts to support it. She makes the argument in a single line without reference to the record or any document. Therefore, Petitioner is not entitled to relief on Ground Five of the Petition. See Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995) (holding that district court properly rejected conclusory claim that was argued in a single page without reference to the record or any other documents).
To the extent Petitioner argues that she was deprived due process and a fair trial because the evidence was insufficient to sustain the firearm-use allegation and her conviction on Counts One through Seven, her claim fails. For the reasons discussed above, evidence adduced at trial was sufficient to support the firearm enhancement and Petitioner's conviction on Counts One through Seven.
For all of the foregoing reasons, IT IS ORDERED that (1) the Second Amended Petition is denied; and (2) Judgment shall be entered dismissing this action with prejudice.
