ORDER

ALLISON CLAIRE, Magistrate Judge.

Petitioner is a state prisoner proceeding through counsel on an amended application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 2007 felony conviction for robbery. ECF No. 25. The parties have consented to the jurisdiction of the magistrate judge. ECF Nos. 7, 8. Respondent has filed an answer to the single claim remaining in this case. ECF No. 39. Petitioner has not filed a reply, and the time for doing so has long since expired.

For the reasons that follow, the petition will be denied on the merits without an evidentiary hearing.

I. Procedural and Factual Background

a. Procedural Background

Petitioner Ernesto Becerra Espinoza was convicted following a jury trial in the Superior Court for the County of Shasta of second degree robbery under California Penal Code § 211. Lodged Doc. 1. The jury found true the enhancement allegations that petitioner committed the crime in association with a criminal street gang, and that petitioner had a firearm on his person or in the vehicle. Id.; Cal. Penal Code §§ 186.22 (b)(1), 12022 (a)(1). He was sentenced to an aggregate term of fourteen years in state prison: two years for robbery, ten years for the gang enhancement, and two years for the firearm enhancement. Lodged Doc. 1, 6.

Petitioner appealed his conviction to the California Court of Appeal for the Third Appellate District in case no. C056767, raising the following issues: (1) insufficiency of the evidence that the robbery was accomplished by force or fear; and (2) insufficiency of the evidence as related to the gang enhancement. Lodged Doc. 1, 1-2. On December 3, 2009, the appellate court affirmed his conviction and the sentence. Id.

Petitioner then filed a Petition for Review with the California Supreme Court in case no. S179410, claiming only that his second degree robbery conviction should be reversed for insufficient evidence that the taking was accomplished by force or fear. ECF No. 25. On February 18, 2010, the California Supreme Court denied the petition for review. Id.

Petitioner filed the instant mixed federal habeas petition on February 18, 2011 alleging his conviction should be reversed for: (1) insufficient evidence that the taking was accomplished by force or fear to support the robbery conviction; (2) insufficient evidence that the robbery was committed with the intent to promote, further, or assist criminal conduct by gang members; and (3) insufficient evidence supports the finding of the gang's primary activities. ECF No. 1. Respondent then sought dismissal of the petition since it contained two unexhausted grounds for relief. ECF No. 17. This Court granted respondent's motion to dismiss to the extent that the unexhausted grounds two and three were stricken from the petition without prejudice to refiling. ECF No. 24. Petitioner was then directed to file a petition in the California Supreme Court and thereafter file an amended petition in this Court containing all exhausted claims within thirty days of the California Supreme Court's decision. Id.

Petitioner filed a state habeas petition in the California Supreme Court on December 19, 2011 which was denied on April 18, 2012. ECF No. 25 at 52. Petitioner filed an amended § 2254 petition in this court on May 16, 2012 which contained three claims for relief: a sufficiency challenge to the robbery conviction, as well as the two newly exhausted sufficiency challenges to the gang enhancement. ECF No. 25. Respondent moved to dismiss, arguing that the newly exhausted claims were untimely filed because they did not relate back to any timely filed claim in the original habeas petition. ECF No. 30. Petitioner opposed the motion, which was heard before Magistrate Judge Gregory Hollows on October 18, 2012. ECF No. 34. The motion to dismiss was subsequently granted by order filed November 19, 2012, leaving a single claim: petitioner's original challenge to the sufficiency of the evidence supporting his robbery conviction. ECF No. 35. Respondent was directed to file an answer to this claim, which he did on February 4, 2013. ECF Nos. 35, 39.

b. Factual Background

Petitioner was convicted of robbery for stealing a black shirt and a couple of pairs of Dickies jeans, by force or fear, from a Target store in Redding, California, on the morning of May 19, 2005. Lodged Doc. 1. At the time of the robbery, Daniel Burrell ("Burrell"), Regina Anderson ("Anderson"), and Steve O'Neill ("O'Neill") were on duty at the Target store. R.T. 2 at 367.1 Burrell and Anderson both testified at petitioner's trial. Id. at 343, 450.

Burrell was an asset protection manager for Target.2 R.T. 2 at 343-44. On May 19, 2005, he arrived at work at approximately 8:05 a.m. Id. at 345. Shortly after he arrived, three separate Target employees approached him to inform him that four Hispanic male individuals who "just didn't look right" had been waiting outside the store prior to its opening and had entered the store just as it opened. Id. at 345. One of these men was petitioner. Id. at 351.

After being approached by the three employees, Burrell went to the closed-circuit television ("CC-TV") room in the back of the store to observe the described individuals on the store's security cameras. R.T. 2 at 346-47. The security system included video feeds from various cameras inside and outside of the store, which enabled Burrell to monitor the men as they moved about the store. Id. On the video feed, he located the four men in the men's department looking at merchandise near a T-shirt area. Id. at 347. Burrell became concerned that the men might try to steal something after they selected Dickies jeans, which are high-theft merchandise for Target stores in their district. Id. at 357. Burrell's suspicions were further aroused after the group split up, with two individuals heading towards the front of the store and the other two— including petitioner—instead heading towards the garden center. Id. at 356-57. Burrell thought that the two who went towards the front of the store might go and wait in a car in the parking lot or near the store's entrance, so he went towards the front of the store to "try to deter anybody from thinking about leaving the store with merchandise." Id. at 358. Burrell was joined by Anderson at the front of the store. Id. at 357. Burrell observed that while petitioner and his friend (and subsequent co-defendant) Isaac Gonzalez ("Gonzalez") were picking up merchandise, they appeared to be paying more attention to the activity in the store than to the merchandise, which further spurred Burrell's suspicions. Id. at 358.

Burrell was concerned because he was the only security officer on duty, so if anything were to happen he did not like his odds. R.T. 2 at 359. Accordingly, he went back to the CC-TV room to pick up live surveillance of the men again. Id. at 357. On the video feed, he saw that the fourth individual had left the store and entered a white vehicle, had driven through the parking lot in a "somewhat circuitous route," and then stopped in front of the garden center. Id. at 363. He also saw that petitioner and Gonzalez, who had gone towards the garden center, had re-entered the main store and met up with "one of the people that they had separated from earlier." Id. at 357. Then this third individual walked towards the front of the store, while petitioner and Gonzales walked back towards the men's department, then towards the shoe department, and ultimately back towards the garden center. Id. at 361. While they were in the shoe department and headed towards the garden center, the third individual exited the building and entered the vehicle in front of the garden shop. Id. at 361-62.

Burrell then left the CC-TV room and headed towards the garden center, where he was again joined by Anderson as well as O'Neill. R.T. vol. 2, 366. Anderson and O'Neill were each standing next to a checkout stand at the front of the garden center. Id. at 367. The petitioner and Gonzalez then walked towards the front of the garden center. Id. at 368. Anderson testified that as petitioner and Gonzales approached the checkout counter she said to them, "I'll help you at this register." Id. at 459. She stated that they then looked at each other, one of them (she could not remember who) smiled at the other, and then they both ran out the front doors of the store. Id. Anderson yelled "hey real loud and followed them out the door." Id. Burrell, who was nearby, also ran out of the store to get his employees back in the store, to see whether the men got into the white vehicle, and to determine if he could recover any merchandise. Id. at 368. Burrell hopped over a railing to pursue the individuals at a fast walking pace and told the other employees not to pursue the men. Id. at 368-69, 448. Anderson stopped her pursuit when she reached the railing because employees were not supposed to pursue shoplifters any further than the railing. Id. at 465.

Petitioner and Gonzalez were a good distance ahead of Burrell; about forty to sixty feet. R.T. 2 at 390, 396. The white vehicle then drove by Burrell while he was in pursuit and he did not try to stop it. Id. at 369. He testified that as the car was coming into the driveway, he was walking down the driveway and at that moment he decided to discontinue his pursuit of the two individuals because he saw they were headed towards the white vehicle and he would not be able to catch up with them before they reached the vehicle. Id. at 371. Burrell said that if the men had walked out of the store and he was able to catch up with them that he probably would have confronted them and tried to recover the merchandise, but if they had run and pushed past him he would not try to detain them. Id.

After Burrell turned around to walk back towards the store and tell the police details about the men's vehicle, he heard a "pop-pop" so he started running because "the sound came from the vehicle and it sounded like a gun to me. And at that point I decided I best get back in." R.T. 2 at 371-73. He said that he was "a little bit concerned for [his] safety." Id. at 372. However, Burrell also testified that he did not know if the two individuals were in the car at this point and that he had turned away from the vehicle before hearing the "pop-pop" sound. Id. He specifically stated that he had discontinued chasing the men and was headed back towards the store when he heard the "pop pop." Id. at 416. The last he saw of the men, the two car doors were open and petitioner and Gonzalez were entering the vehicle. Id. To Burrell's knowledge, there were no other employees pursuing the men when the "pop pop" sound occurred. Id. at 448. Anderson testified that at some point she heard the "pop pop" sound, which caused her concern. At first she thought it was firecrackers, but Burrell said it could be a gun and she should call the police. Id. at 460.

Later on, after the car left and before the police arrived, Burrell went out to where the car had been located when he heard the "pop pop" sounds because "if that was a gun, if those were gunshots, we'll see if there was any evidence of any gunfire left in that general vicinity." R.T. 2 at 374-75. He found two shell casings at the location where the car had been, which he pointed out to the police. Id. at 375. He was able to give a description of the vehicle as a white Toyota Camry and obtained the license plate number from the surveillance videos to provide for the police. Id.

Burrell testified that the fact that there were four individuals together caused him concern over his personal safety because he was the only security officer on duty that morning. R.T. 2 at 359. He stated that he was also concerned because petitioner and Gonzales were both bigger than him. Id. at 359, 367. Redding Police Officer Rob Peterson testified that in 2005, petitioner was 5'8" tall and approximately 180 lbs., Gonzalez was also 5'6" tall and 175 lbs., and the other two men were approximately 5'8" and 150 lbs., and 5'5" and approximately 170 lbs. R.T. 3 at 606. Burrell was approximately 5'8" or 5'9" and 160 to 180 lbs. Id. at 388. On cross-examination, Burrell testified that neither petitioner nor any of the individuals in question ever approached Burrell or any other Target employees or customers, never touched them in any way, and never spoke with them. Id. at 386-87.

Carolyn Martinez ("Martinez"), a Target customer, had parked outside the garden center that morning and heard the gunshots as she was exiting her car. R.T. 2 at 480-81. She testified that she immediately knew the sounds were gunshots and that as she heard them she simultaneously saw petitioner and another man "back pedaling" away from Target and towards the white car. Id. at 483-84. Because of the sounds she heard, she initially thought the man closest to her, who had clothes draped over his arm, had fired a gun from underneath the garments he was carrying. Id. at 483. She identified petitioner as standing next to the man she thought was the shooter because he had the clothes draped over his arm. Id. at 485. She testified that she heard both the sounds of three gunshots and the sounds of the shell casings hitting the ground. Id. at 486. She was "petrified," so she ran towards the entrance of the Target store in a big hurry and only saw the individuals for a couple of seconds. Id. at 486-87.

Redding Police Officer Bart Langley put out a "be on the lookout" ("BOLO") for a white Camry with the license plate number supplied by Burrell and the car was spotted by California Highway Patrol around the Sacramento area. R.T. 2 at 470. Sacramento Police Officers Robert Hamm and Roger Dillon received a call about a vehicle involved in a robbery being pursued by California Highway Patrol in Sacramento. Id. at 506, 522. Both officers joined in the chase. Id.

The car eventually stopped in a Fry's electronics store parking lot in Sacramento. R.T. 2 at 509. When the car stopped, all four occupants jumped out and ran. Id. Officer Hamm chased and eventually caught Gonzalez. Id. at 509-10, 513. Officer Dillon looked in the car and on the floorboard near the pedals found a .22 caliber Ruger semi-automatic pistol, which he turned over to the crime scene investigator. Id. at 523. Sergeant Anthony Taylor was the first supervisor to arrive on scene at the vehicle and started giving directions to the other officers. Id. at 527. Sergeant Taylor discovered a pair of Dickies jeans and a handgun that had a magazine with rounds in it but no rounds in the chamber on the front passenger seat. Id. at 527-28. He also found a third gun wrapped in a blue bag lying on the floor that had one round in the chamber. Id. at 529. The blue bag also contained two other magazines and a silencer that could be attached to the barrel of the Ruger. Id. at 529-31.

Crime scene technician Michael Darling determined that the shell casings found by Burrell around the location in the Target parking lot where the white Camry had been waiting were .9 millimeter casings. R.T. 2 at 498. Criminalist Ronald Nies processed the .9 millimeter Ruger handgun found in the white Camry and compared the .9 millimeter shell casings found in the Target parking lot with test casings he fired from the .9 millimeter Ruger handgun. R.T. 3 at 570. He found that the markings on the shell casings discovered at the scene matched the markings on the shell casings from test fired from the .9 millimeter Ruger handgun. Id. at 575-76. Barbara Philips, a latent print analyst, testified that she found no fingerprints whatsoever on the .9 millimeter Ruger handgun, the cartridges, or the Smith & Wesson magazine found with the gun. Id. at 563.

II. Standards Governing Habeas Relief Under the AEDPA

28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides in relevant part as follows:

The statute applies whenever the state court has denied a federal claim on its merits, whether or not the state court explained its reasons. Harrington v. Richter, 131 S.Ct. 770, 785 (2011). State court rejection of a federal claim will be presumed to have been on the merits absent any indication or state-law procedural principles to the contrary. Id. at 784-785 (citing Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis)). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785.

The phrase "clearly established Federal law" in § 2254(d)(1) refers to the "governing legal principle or principles" previously articulated by the Supreme Court. Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Clearly established federal law also includes "the legal principles and standards flowing from precedent." Bradley v. Duncan, 315 F.3d 1091, 1101 (9th Cir. 2002) (quoting Taylor v. Withrow, 288 F.3d 846, 852 (6th Cir. 2002)). Only Supreme Court precedent may constitute "clearly established Federal law," but circuit law has persuasive value regarding what law is "clearly established" and what constitutes "unreasonable application" of that law. Duchaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000); Robinson v. Ignacio, 360 F.3d 1044, 1057 (9th Cir. 2004).

A state court decision is "contrary to" clearly established federal law if the decision "contradicts the governing law set forth in [the Supreme Court's] cases." Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision "unreasonably applies" federal law "if the state court identifies the correct rule from [the Supreme Court's] cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407-08. It is not enough that the state court was incorrect in the view of the federal habeas court; the state court decision must be objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003).

Review under § 2254(d) is limited to the record that was before the state court. Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). The question at this stage is whether the state court reasonably applied clearly established federal law to the facts before it. Id. In other words, the focus of the § 2254(d) inquiry is "on what a state court knew and dId." Id. at 1399. Where the state court's adjudication is set forth in a reasoned opinion, §2254(d)(1) review is confined to "the state court's actual reasoning" and "actual analysis." Frantz v. Hazey, 533 F.3d 724, 738 (9th Cir. 2008) (en banc). A different rule applies where the state court rejects claims summarily, without a reasoned opinion. In Richter, supra, the Supreme Court held that when a state court denies a claim on the merits but without a reasoned opinion, the federal habeas court must determine what arguments or theories may have supported the state court's decision, and subject those arguments or theories to § 2254(d) scrutiny. Richter, 131 S. Ct. at 786.

III. Petitioner's Claim for Relief

Petitioner alleges that the evidence presented at trial was insufficient to support his robbery conviction because no force or fear was used in the taking of the property.3 ECF No. 25 at 20. In this vein, petitioner raises two main arguments as grounds for federal habeas relief: (1) that prior to the use of any force or fear, no store employee had any intentions of trying to re-take the property from the petitioner or any of the other suspects; and (2) that the fleeing of petitioner and Gonzales, coupled with the presence of the two suspects in the car, did not demonstrate a willful creation of fear as an obstacle to the retaking of the property. ECF No. 25 at 23-24. Petitioner contends in essence that the facts of the crime establish nothing more than petty theft. ECF No. 25 at 26.

This is the same claim that petitioner raised on direct appeal. The California Court of Appeal, the last state court to issue a reasoned decision addressing petitioner's claim, rejected the claim on the merits. Lodged Doc. 1, 13. Accordingly, this court reviews the California Court of Appeal decision to determine whether it was contrary to or an unreasonable application of clearly established federal law. See Ylst v. Nunnamaker, 501 U.S. 797 (1991); Ortiz v. Yates, 704 F.3d 1026, 1034 (9th Cir. 2012). Because the state court denied relief in a reasoned opinion, review under § 2254(d) is confined to "the state court's actual reasoning" and "actual analysis." Frantz, 533 F.3d at 738.

A. State Court Opinion

The state court ruled as follows:

Lodged Doc. No. 1 (internal citations omitted).

B. Clearly Established Federal Law

Due process requires that each essential element of a criminal offense be proven beyond a reasonable doubt. United States v. Winship, 397 U.S. 358, 364 (1970). In reviewing the sufficiency of evidence to support a conviction, the question is "whether, 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 (1974). If the evidence supports conflicting inferences, the reviewing court must presume "that the trier of fact resolved any such conflicts in favor of the prosecution," and the court must "defer to that resolution." Id. at 326

C. Analysis

The California Court of Appeal's decision is not an unreasonable application of clearly established federal law.4 The state court reasonably rejected petitioner's first argument challenging the force or fear element, because petitioner was still in the process of carrying away the goods and had not yet reached a place of safety. The Court of Appeal's conclusion that "[t]he men fired the shots to prevent Burrell from continuing to follow them, either to reclaim the property or to better identify them" is amply supported by the record evidence. Viewing the evidence in the light most favorable to the prosecution, a rational juror could have found that the gun was fired to aid in petitioner's getaway with the merchandise. Accordingly, the Court of Appeal's rejection of this basis for petitioner's claim is reasonable.

Petitioner's second argument — that his flight from the store coupled with the presence of his two cohorts in the car was not sufficient to create fear in the victims — is defeated by the testimony from two store employees that they subjectively experienced fear. R.T. 2 at 372, 460. There is also evidence that Burrell turned and ran after the "pop pop" sound and then saw Anderson crouched near the ground after the sounds occurred, from which a trier of fact could reasonably infer that the men were frightened by the gunfire. Id. There is no requirement that the perpetrator intend to cause fear in the victim. See Cal. Penal Code § 211. Therefore, the Court of Appeal reasonably rejected this basis for petitioner's claim.

It simply cannot be said that no fairminded jurist could agree with the California Court of Appeal's decision finding sufficient evidence to support the force or fear element of robbery. See Bobby v. Dixon, 132 S.Ct. 26, 27 (2011) (per curiam); Harrington v. Richter, 131 S.Ct. 770, 786 (2011). Petitioner's argument would be more convincing if he had merely run out of the store in a different direction than the getaway vehicle in which his cohorts and numerous weapons were later found. Had petitioner simply fled Target grounds without re-uniting with his fellow cohorts who were armed gang members, then the evidence would establish no more than a petty theft. However, those are not the facts this court is reviewing. After viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime of robbery beyond a reasonable doubt. Therefore, the Court of Appeal reasonably rejected petitioner's claim for relief.

Because § 2254(d) bars relief on the one claim remaining in this case, the amended petition for writ of habeas corpus is denied.

IV. Certificate of Appealability

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts, "[t]he district court must issue or a deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11, 28 U.S.C. foll. § 2254. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b). For the reasons set forth herein, petitioner has not made a substantial showing of the denial of a constitutional right. Therefore, no certificate of appealability should issue.

Accordingly, IT IS HEREBY ORDERED that:

1. The amended petition for writ of habeas corpus (ECF No. 25) is denied; and

2. This court declines to issue a certificate of appealability.