JAMES K. SINGLETON, Jr., Senior District Judge.
Michael Sanudo, a state prisoner represented by counsel, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Sanudo is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at California State Prison, Solano. Respondent has answered, and Sanudo has replied.
On February 9, 2010, Sanudo was charged, along with co-defendant Aaron Richard Ouellette, with first-degree special circumstance murder (Count 1), second-degree robbery (Count 2), active participation in a criminal street gang (Count 3), and assault with a deadly weapon (Count 4). The information alleged as to Counts 1, 2, and 4 that the offenses were committed for the benefit of and in association with a criminal street gang, and that the defendants inflicted great bodily injury in the commission of Counts 2 and 4. The information further alleged that the defendants each served a prior prison term. On direct appeal of his conviction, the California Court of Appeal laid out the following facts underlying this case and the evidence presented at trial:
People v. Ouellette et al., No. C065374, 2012 WL 3244047, at *1-3 (Cal. Ct. App. Aug. 10, 2012).
Through counsel, Sanudo appealed his conviction, arguing that: 1) there was insufficient evidence that Sanudo intended to rob the victim such that the murder, robbery, and robbery special circumstance counts should be reversed; 2) Sanudo lacked the intent to kill the victim such that the special circumstance allegation should be reversed; 3) the trial court erred in failing to instruct the jury on assault as a lesser-included offense of robbery; 4) there was insufficient evidence that Sanudo aided and abetted the robbery with the intent to promote gang activity; 5) the trial court erred with respect to CALCRIM No. 370, which reduced the prosecution's burden of proving guilt beyond a reasonable doubt in Count 3 (active participation in a criminal street gang); and 6) insufficient evidence supported the jury's finding that Sanudo was a major participant in the robbery and acted with reckless indifference to human life with respect to the special circumstance murder finding. In a reasoned, unpublished opinion issued on August 10, 2012, the Court of Appeal affirmed the judgment against Sanudo in its entirety. Ouellette, 2012 WL 3244047, at *12.
Again proceeding through counsel, Sanudo filed a petition for habeas relief in the California Superior Court. In that petition, Sanudo argued that trial counsel was ineffective for: a) failing to focus on Sanudo's lack of intent to kill; b) failing to have Daisy Chavez testify regarding a call Ouellette made to her after the incident; and c) not arguing at sentencing that Sanudo's punishment should be reduced under People v. Dillon.
Sanudo timely filed a counseled Petition for a Writ of Habeas Corpus to this Court on January 10, 2014. See 28 U.S.C. § 2244(d)(1)(A). While the instant Petition was pending, counsel raised his ineffective assistance claims in a habeas petition in the California Court of Appeal. Sanudo moved for a stay and abeyance in the instant case to allow him to pursue his claims in state court. Docket No. 3.
A previously-assigned magistrate judge recommended that the stay be granted, Docket No. 16, but Sanudo's habeas petitions in the state appellate courts were denied without comment on January 9, 2014, and April 9, 2014, respectively. Counsel then moved to life the stay and proceed on an Amended Petition. Docket Nos. 17, 18. The magistrate judge denied the motion to lift the stay as moot because the stay had not been entered, and ordered Respondent to respond to the Amended Petition. Docket No. 20. Briefing in this case is now complete, and the case is before the undersigned judge for adjudication.
In his counseled Petition before this Court, Sanudo argues that: 1) there was insufficient evidence that he intended to rob the victim; 2) there was insufficient evidence to support the jury's finding that the murder was committed in the course of a robbery; 3) the trial court erred by failing to instruct the jury on the lesser-included offense of assault; 4) the evidence was insufficient to sustain his conviction for active participation in a criminal street gang; 5) the trial court erroneously instructed the jury on the crime of active participation in a criminal street gang; 6) trial counsel was ineffective in his closing argument because he failed to focus on Sanudo's lack of intent to kill; 7) counsel was ineffective for failing to have Daisy Chavez testify as to Ouellette's phone call after the incident; and 8) counsel was ineffective for not arguing at sentencing that Sanudo's punishment should be reduced under Dillon.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000 ).
The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision." Id. at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court `unreasonabl[y] appli[ed] clearly established Federal law.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the "last reasoned decision" by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Sanudo first argues that the evidence against him was insufficient to sustain a number of his convictions. As articulated by the Supreme Court in Jackson, the federal constitutional standard for sufficiency of the evidence 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 the original); see McDaniel v. Brown, 558 U.S. 120, 132-33 (2010) (reaffirming this standard). This Court must therefore determine whether the California court unreasonably applied Jackson. In making this determination, this Court may not usurp the role of the finder of fact by considering how it would have resolved any conflicts in the evidence, made the inferences, or considered the evidence at trial. Jackson, 443 U.S. at 318-19. Rather, when "faced with a record of historical facts that supports conflicting inferences," this 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 defer to that resolution." Id. at 326.
It is a fundamental precept of dual federalism that the States possess primary authority for defining and enforcing the criminal law. See Engle v. Isaac, 456 U.S. 107, 128 (1982). Consequently, although the sufficiency of the evidence review by this Court is grounded in the Fourteenth Amendment, it must take its inquiry by reference to the elements of the crime as set forth in state law. Jackson, 443 U.S. at 324 n.16. A fundamental principle of our federal system is "that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus." Bradshaw v. Richey, 546 U.S. 74, 76 (2005); see West v. AT&T, 311 U.S. 223, 236 (1940) ("[T]he highest court of the state is the final arbiter of what is state law. When it has spoken, its pronouncement is to be accepted by federal courts as defining state law . . . ."). "Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension." Sanchez-Llamas v. Oregon, 548 U.S. 331, 345 (2006) (quoting Smith v. Philips, 455 U.S. 209, 221 (1982)) (internal quotation marks omitted). It is through this lens that this Court must view insufficiency of the evidence claims.
Sanudo contends that there was insufficient evidence that Sanudo intended to rob the victim. The Court of Appeal described and rejected this argument on direct appeal as follows:
Ouellette, 2012 WL 3244047, at *11-12.
In support of his claim, Sanudo again points to inconsistencies and weaknesses in the testimony against him. But, like the Court of Appeal, this Court is precluded from either re-weighing the evidence or assessing the credibility of witnesses. Schlup v. Delo, 513 U.S. 298, 330 (1995); Bruce v. Terhune, 376 F.3d 950, 957-58 (9th Cir. 2004). Under Jackson, this Court's role is simply to determine whether there is any evidence, if accepted as credible by the trier of fact, sufficient to sustain conviction. Schlup, 513 U.S. at 330. Here, the testimony provided, as thoroughly recounted by the Court of Appeal, was more than sufficient to sustain Sanudo's conviction. Contrary to Sanudo's arguments, the fact that the jury's credibility assessments were not in his favor does not amount to a constitutional violation. Although it might have been possible to draw a different inference from the evidence, this Court is required to resolve that conflict in favor of the prosecution. See Jackson, 443 U.S. at 326. Sanudo bears the burden of establishing by clear and convincing evidence that these factual findings were erroneous. 28 U.S.C. § 2254(e)(1). He has failed to carry such burden. As thoroughly and persuasively explained by the Court of Appeal, the record does not compel the conclusion that no rational trier of fact could have found proof that Sanudo had an intent to steal, especially considering the double deference owed under Jackson and AEDPA. Sanudo is therefore not entitled to relief on this claim.
Sanudo similarly argues that there was insufficient evidence establishing that Sanudo, as an aider and abettor, had the intent to kill or acted with reckless indifference to human life while acting as a major participant in the robbery to sustain the special circumstance robbery allegations. The Court of Appeal rejected this claim on direct appeal as well:
Ouellette, 2012 WL 3244047, at *12-13.
Sanudo again futilely attacks the credibility of the witnesses against him. And again, viewing the evidence in the light most favorable to the prosecution, the Court of Appeal concluded the evidence was sufficient to support Sanudo's conviction of special circumstance murder. This conclusion is both reasonable and fully supported by the record. Habeas relief is therefore not warranted on this claim.
Finally, Sanudo alleges that his conviction for actively participating in a criminal street gang must be reversed because there was insufficient evidence that he had the intent to promote felonious conduct by a gang (Ground 4) and insufficient evidence that he had knowledge of the gang's primary activities (Ground 6).
"The elements of [the street terrorism] offense in [California Penal Code §] 186.22(a) are: First, active participation in a criminal street gang . . .; second, knowledge that the gang's members engage in or have engaged in a pattern of criminal activity; and third, the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang." People v. Rodriguez, 290 P.3d 1143, 1146 (Cal. 2012). The person's involvement with a criminal street gang must be more than nominal or passive. Id.; People v. Castaneda, 3 P.3d 278, 23 Cal.4th 743, 752 (Cal. 2000); People v. Ngoun, 105 Cal.Rptr.2d 837, 839 (Cal. Ct. App. 2001) ("Hence, under section 186.22, subdivision (a) the defendant must necessarily have the intent and object to actively participate in a criminal street gang."). "[T]o satisfy the third element, a defendant must willfully advance, encourage, contribute to, or help members of his gang commit felonious criminal conduct. The plain meaning of section 186.22(a) requires that felonious criminal conduct be committed by at least two gang members, one of whom can include the defendant if he is a gang member." Rodriguez, 290 P.3d at 1148 (italics in original). A person can willfully promote, further, or assist in any felonious criminal conduct by gang members if he or she is the "perpetrator of felonious gang-related criminal conduct [or the] aider and abettor." Ngoun, 105 Cal. Rptr. 2d at 839; see also People v. Johnson, 176 Cal.Rptr.3d 917, 920-21 (Cal. Ct. App. 2014).
In this case, as the Court of Appeal explained, Sanudo's claim that he lacked the intent to promote felonious conduct by a gang is based on a misconception of California state law. The California Supreme Court has held that "[a]ll three elements [of the street terrorism offense] can be satisfied without proof the felonious criminal conduct promoted, furthered or assisted was gang related." People v. Albillar, 244 P.3d 1062, 1072 (Cal. 2010). The Court of Appeal in this case explained:
Ouellette, 2012 WL 3244047, at *9-10.
To the extent Sanudo challenges the Supreme Court's holding in Albillar before this Court, this Court is bound by the state court's determination. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (noting that the Supreme Court has repeatedly held that "a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."); see also Williams v. Calderon, 52 F.3d 1465, 1480-81 (9th Cir. 1995). Importantly, Sanudo cites to no Supreme Court authority challenging the California Supreme Court's holding, and the Court is unaware of any. Sanudo thus fails to demonstrate that the state courts' rejection of his claim "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," 28 U.S.C. § 2254(d), and federal habeas relief is not warranted on this claim.
Sanudo's claim that there was insufficient evidence to support the three elements of the crime of active participation in a criminal street gang similarly fails. As the Court of Appeal reasonably determined:
Ouellette, 2012 WL 3244047, at *9-11.
In this case, much of the evidence that Sanudo had knowledge that the gang's members engaged in a pattern of criminal gang activity was provided by a gang expert. This testimony falls within the recognized scope of permissible expert testimony as to gang culture, habits, and motivation. In re Frank S., 46 Cal.Rptr.3d 839, 842 (Cal. Ct. App. 2006) ("It is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang allegation."). Moreover, as the Court of Appeal explained, the third element simply required evidence that Sanudo aided and abetted by willfully assisting, furthering, or promoting felonious criminal conduct by another member of the gang. Ouellette, 2012 WL 3244047, at *11. The record amply supports the Court of Appeal's conclusion that Sanudo acted with the intent of promoting, furthering, or assisting Ouellette's criminal conduct. Sanudo is therefore not entitled to relief on this claim.
Sanudo next claims that the trial court made two instructional errors that warrant reversal of his conviction. Because jury instructions in state trial are typically matters of state law, federal courts are bound by a state appellate court's determination that a jury instruction was not warranted under state law. See Bradshaw, 546 U.S. at 76 (2005) (noting that the Supreme Court has repeatedly held that "a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."); see also Williams v. Calderon, 52 F.3d 1465, 1480-81 (9th Cir. 1995). An instructional error, therefore, "does not alone raise a ground cognizable in a federal habeas proceeding." Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1986) (citation omitted).
A challenged instruction violates the federal constitution if there is a "reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde v. California, 494 U.S. 370, 380 (1990). The question is whether the instruction, when read in the context of the jury charges as a whole, is sufficiently erroneous to violate the Fourteenth Amendment. Francis v. Franklin, 471 U.S. 307, 309 (1985). This Court must also assume in the absence of evidence to the contrary that the jury followed those instructions. Weeks v. Angelone, 528 U.S. 225, 234 (2000); Richardson v. Marsh, 481 U.S. 200, 206 (1987) (noting the "almost invariable assumption of the law that jurors follow their instructions"); see Francis, 471 U.S. at 323-24 & n.9 (discussing the subject in depth).
It is well-established that not only must the challenged instruction be erroneous but it must violate some constitutional right, and it may not be judged in artificial isolation but must be considered in the context of the instructions as a whole and the trial record. Estelle, 502 U.S. at 72. This Court must also bear in mind that the Supreme Court has admonished that the inquiry is whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that violates the constitution and that the category of infractions that violate "fundamental fairness" is very narrowly drawn. Id. at 72-73. "Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process clause has limited operation." Id. Where the defect is the failure to give an instruction, the burden is even heavier because an omitted or incomplete instruction is less likely to be prejudicial than an instruction that misstates the law. See Henderson, 431 U.S. at 155. In those cases, the inquiry is whether the trial court's refusal to give the requested instruction "so infected the entire trial that the resulting conviction violates due process." See id. at 156-57; Estelle, 502 U.S. at 72. Moreover, even if the trial court's failure to give the instruction violated due process, habeas relief would still not be available unless the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); California v. Roy, 519 U.S. 2, 5 (1996).
Sanudo contends that the trial court erred by failing to instruct the jury that assault was a lesser included offense to robbery. The United States Supreme Court has held that the failure to instruct on a lesser included offense in a capital case is constitutional error if there was evidence to support the instruction. Beck v. Alabama, 447 U.S. 625, 638 (1980). The Supreme Court, however, has not decided whether to extend this rationale to non-capital cases. The Ninth Circuit, like several other federal circuits, has declined to extend Beck to find constitutional error arising from the failure to instruct on a lesser included offense in a non-capital case. See Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000); Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998) ("[T]he failure of a state trial court to instruct on lesser included offenses in a non-capital case does not present a federal constitutional question."); James v. Reese, 546 F.2d 325, 327 (9th Cir. 1976) ("Failure of a state court to instruct on a lesser offense fails to present a federal constitutional question and will not be considered in a federal habeas corpus proceeding."). Accordingly, the decisions of the California courts denying Sanudo relief as to this claim are not contrary to United States Supreme Court authority as set forth in Beck.
Nevertheless, the Ninth Circuit has stated that "the refusal by a court to instruct a jury on lesser included offenses, when those offenses are consistent with defendant's theory of the case, may constitute a cognizable habeas claim" under clearly established United States Supreme Court precedent. Solis, 219 F.3d at 929. But Sanudo has not established any basis for the giving of the instruction. His argument that Apprendi v. New Jersey, 530 U.S. 466 (2000), required the trial court to treat the great bodily injury enhancement as an element of the crime of robbery is without merit. In Apprendi, the U.S. Supreme Court considered whether the Due Process Clause "requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt." Id. at 468. The Supreme Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the proscribed maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. Apprendi did not address whether a sentence enhancement should be considered an element of an offense in determining whether, under state law, a lesser offense is necessarily a lesser included offense.
Sanudo cites no federal authority for such a proposition. Indeed, no Supreme Court case adopts the Apprendi line of reasoning with respect to the specific elements of proof necessary for a murder conviction. Instead, the California legislature's decision on how to define the elements of a crime is usually dispositive. See, e.g., Patterson v. New York, 432 U.S. 197, 206-08 (1977). As noted by the Court of Appeal, Ouellette, 2012 WL 3244047, at *3-5, the California Supreme Court has repeatedly stated that sentencing enhancements should not be considered elements of the offense, see People v. Anderson, 211 P.3d 584 (Cal. 2009); People v. Sloan, 164 P.3d 568 (Cal. 2007); People v. Wolcott, 665 P.2d 250 (Cal. 1983). In Sloan and Anderson, the California Supreme Court explicitly rejected the argument that Apprendi requires that sentencing enhancements be treated as elements of the offense. The California Court of Appeal's denial of Sanudo's claim that Apprendi requires trial courts to treat enhancements as elements of the offense for purposes of determining lesser included offenses was not an unreasonable application of clearly-established Supreme Court authority, and Sanudo's claim must also fail here.
Sanudo additionally argues that the trial court erroneously instructed the jury on the crime of active participation in a criminal street gang. The Court of Appeal considered and rejected this claim as follows:
Ouellette, 2012 WL 3244047, at *6-7.
The California Court of Appeal's conclusion is both reasonable and fully supported by the record. Again, Sanudo cites no federal law disapproving of the use of such instruction under these circumstances. Even if he could show state law error, which does not appear from the record, again, "the fact that [an] instruction was allegedly incorrect under state law is not a basis for habeas relief." Estelle, 502 U.S. at 71-72 (citing Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983) ("[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned review of the state evidentiary rules.")); Horton v. Mayle, 408 F.3d 570, 576 (9th Cir. 2005) ("If a state law issue must be decided in order to decide a federal habeas claim, the state's construction of its own law is binding on the federal court."). Likewise, this Court is bound by the state appellate court's determination that the trial court was not required under California law to give a different instruction, in the absence of any due process violation. Sanudo fails to establish a due process violation here because he may not transform his state instructional error claim into a federal claim by simply asserting a violation of his constitutional rights. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (a petitioner cannot transform a state-law issue into a federal one by simply asserting a due process violation); see also Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988) (an instructional error "does not alone raise a ground cognizable in a federal habeas corpus proceeding") (citation omitted). Thus, Sanudo is not entitled to relief on this instructional error claim either.
Finally, Sanudo alleges that his trial counsel rendered ineffective assistance in a number of ways. To demonstrate ineffective assistance of counsel under Strickland v. Washington, a defendant must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense. 466 U.S. 668, 687 (1984). A deficient performance is one in which "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id.
The Supreme Court has explained that, if there is a reasonable probability that the outcome might have been different as a result of a legal error, the defendant has established prejudice and is entitled to relief. Lafler v. Cooper, 132 S.Ct. 1376, 1385-86 (2012); Glover v. United States, 531 U.S. 198, 203-04 (2001); Williams, 529 U.S. at 393-95. Where a habeas petition governed by AEDPA alleges ineffective assistance of counsel, the Strickland prejudice standard is applied and federal courts do not engage in a separate analysis applying the Brecht harmlessness standard. Avila v. Galaza, 297 F.3d 911, 918, n.7 (9th Cir. 2002); see also Musalin v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009). Under this rubric, in reviewing ineffective assistance of counsel claims in a federal habeas proceeding:
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted); see also Runningeagle v. Ryan, 686 F.3d 758, 775 (9th Cir. 2012).
Thus, Sanudo must show that defense counsel's representation was not within the range of competence demanded of attorneys in criminal cases, and there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been different. See Hill v. Lockhart, 474 U.S. 52, 57 (1985). An ineffective assistance of counsel claim should be denied if the petitioner fails to make a sufficient showing under either of the Strickland prongs. See Strickland, 466 U.S. at 697 (courts may consider either prong of the test first and need not address both prongs if the defendant fails on one).
Sanudo first contends that counsel was ineffective for failing to argue during summation that Sanudo lacked an intent to kill and that he took no action that involved a grave risk of death to the victim. A review of the record, however, reveals that counsel made a tactical decision not to argue lack of intent based on the prosecution's theory of the case and, contrary to Sanudo's assertion, argued that Sanudo took no action that involved a grave risk of death to the victim.
The record indicates that the prosecution explained that Sanudo could be guilty of first-degree murder under either a felony murder theory or under a theory of torture murder. With respect to felony murder, the prosecutor explained that Sanudo must have had an intent to commit robbery but did not need to have the intent to kill. With respect to torture murder, the prosecutor similarly explained that there was no need for Sanudo to intend to kill the victim; he must only have intended to aid and abet Ouellette in torturing the victim. The prosecutor did not allege with respect to either theory that Sanudo had the intent to kill the victim, nor did he argue that the facts demonstrated Sanudo's intent to kill. A tactical decision exercised by counsel deserves deference when counsel makes an informed decision based on strategic trial considerations and the decision appears reasonable under the circumstances. See Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). In light of the prosecution's argument, counsel made a reasonable tactical decision not to argue intent to kill because the prosecutor had not put intent to kill at issue. For the same reason, Sanudo cannot show that he was prejudiced by counsel's omission; such argument would not have led to a more favorable outcome because the issue of intent to kill was irrelevant.
Moreover, the record reflects that counsel argued that Sanudo took no action that involved a grave risk of death to the victim. In summation, counsel argued that evidence that showed Sanudo's involvement was lacking. Counsel argued that the evidence did not support a finding that Sanudo kicked the victim because there was no blood found on Sanudo's shoes, the shoes were not tested for DNA, witnesses did not initially report seeing Sanudo kicking the victim and thus later statements to the contrary could not be believed, and there was no blood on the driveway. Counsel likewise argued that there was no evidence that Sanudo was involved in the robbery because there was no evidence anything was taken from the victim and the evidence showed that Sanudo "stood there and did nothing." The totality of defense counsel's argument, in context, reveals that counsel argued that Sanudo was not involved in the robbery and killing and thus took no action that involved a grave risk of death. Accordingly, Sanudo cannot show that defense counsel's summation evinced deficient performance.
Sanudo next claims that defense counsel was ineffective because he failed to have witness Daisy Chavez testify regarding a call Ouellette made to her after the incident. According to Sanudo, Chavez would testify that Ouellette told her that everything was his fault and that Sanudo was not involved. Sanudo recognizes that the testimony involves hearsay, but he argues that it would have nonetheless been admissible as a prior consistent statement or excited utterance. Sanudo thus contends that the admission would have bolstered Ouellette's credibility.
Sanudo, however, fails to show that the hearsay testimony was admissible. For Ouellette's statement to be admissible as an excited utterance, it must be considered reliable; that is, offered "without the opportunity to reflect on the consequences of one's exclamation." White v. Illinois, 502 U.S. 346, 356 (1992). Sanudo does not show the absence of an opportunity for Ouellette to have paused or reflected, and thus the possibility that Ouellette's statement was fabricated cannot be eliminated, thus rendering it inadmissible. And although Sanudo argues that the statement was also admissible as a prior consistent statement, such argument is meritless as the record shows that Ouellette vigorously denied responsibility.
Moreover, even assuming that the testimony would have been admissible, Sanudo cannot show that he was prejudiced by its omission. In light of the overwhelming evidence showing Sanudo's involvement (as discussed with regard to the sufficiency of the evidence claims above), Sanudo cannot show that Chavez's testimony would have altered the outcome of the trial.
Finally, Sanudo alleges that counsel's failure to raise at sentencing a cruel and unusual punishment claim under Dillon constituted ineffective assistance of counsel. However, Sanudo fails to show that such a claim would have been meritorious. Appellate counsel raised a cruel and unusual punishment claim on collateral review, which was incorporated and rejected on direct appeal:
Ouellette, 2012 WL 3244047, at *13.
As an initial matter, in Strickland, the Supreme Court expressly declined to consider the role of counsel in a noncapital sentencing proceeding, stating: "We need not consider the role of counsel in an ordinary sentencing, which may involve informal proceedings and standardless discretion in the sentencer, and hence may require a different approach to the definition of constitutionally effective assistance." Strickland, 466 U.S. at 686. The Ninth Circuit has subsequently concluded that the Supreme Court "has not delineated a standard which should apply to ineffective assistance of counsel claims in noncapital sentencing cases[,][and][t]herefore, [. . .] there is no clearly established federal law as determined by the Supreme Court in this context." Davis v. Grigas, 443 F.3d 1155, 1158 (9th Cir. 2006) (citing Cooper-Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir. 2005)). Respondent urges that this Court is thus barred from considering Sanudo's claim.
Despite the Ninth Circuit's holdings, however, it appears that the Supreme Court has applied the Strickland standard to noncapital sentencing proceedings. For example, in Lafler v. Cooper, the Supreme Court stated that its "precedents . . . establish that there exists a right to counsel during sentencing in both noncapital, and capital cases." 555 U.S. 156, 132 S.Ct. 1376, 1385-86 (2012). Likewise, the Supreme Court has applied Strickland where a petitioner alleged that, due to trial counsel's error in a noncapital sentencing proceeding, his sentence was increased anywhere between 6 and 21 months. See Glover v. United States, 531 U.S. 198, 200 (2001). The Ninth Circuit has concluded that courts within this Circuit are nonetheless bound by the holdings of Davis and Cooper-Smith that it is not clearly established that Strickland applies to noncapital sentencing. See Daire v. Lattimore, 780 F.3d 1215, 1221-22 (9th Cir. 2015). This Court is therefore similarly bound.
In an abundance of caution, however, this Court will also consider the merits of Sanudo's claim. To determine whether counsel should have argued at sentencing that Sanudo's punishment was cruel and unusual, the Court must consider such claim here. The Eighth Amendment, applicable to the States through the Fourteenth Amendment, proscribes the infliction of "cruel and unusual punishments." U.S. CONST. amend. VIII; Kennedy v. Louisiana, 554 U.S. 407, 419 (2008). In determining whether to infer gross disproportionality, a federal court should examine whether a petitioner's sentence is justified by the gravity of his triggering offense and his criminal history, a process similar to the three-pronged approach employed by California state courts. See Ramirez v. Castro, 365 F.3d 755, 768 (9th Cir. 2004). Where the crime is murder, even a life sentence without parole is not grossly disproportionate. See Harris v. Wright, 93 F.3d 581, 584 (9th Cir. 1996) (life imprisonment without possibility of parole for aggravated first-degree murder raises no inference of gross disproportionality); United States v. LaFleur, 971 F.2d 200, 211 (9th Cir. 1991) ("Under Harmelin [v. Michigan, 501 U.S. 957 (1991)], it is clear that a mandatory life sentence for murder does not constitute cruel and unusual punishment."). Furthermore, while the contours of the "gross disproportionality principle" have been called "unclear," the principle is applicable only in the "exceedingly rare" and "extreme" case. Lockyer v. Andrade, 538 U.S. 63, 72-73 (2003); see also Rummel v. Estelle, 445 U.S. 263, 272 (1980) ("Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.").
Sanudo cannot demonstrate that his is one of the exceedingly rare cases in which the sentence imposed raises an inference of gross disproportionality when compared to the crime committed. See, e.g., Ewing v. California, 538 U.S. 11, 29-30 (2003) (sentence of 25 years to life for grand theft of $1,200 of golf clubs was not cruel and unusual); Lockyer, 538 U.S. at 77 (two consecutive sentences of 25 years to life for petty theft was not cruel and unusual). The California Supreme Court's affirmance of his sentence was therefore not "contrary to, or . . . an unreasonable application of," the gross disproportionality principle, the contours of which are unclear. Lockyer, 538 U.S. at 72-73. Nor can Sanudo show that the result would have been different had counsel raised his meritless cruel and unusual punishment claim at sentencing. Sanudo is therefore not entitled to relief on this claim in any event.
Sanudo is not entitled to relief on any ground raised in his Petition.
The Clerk of the Court is to enter judgment accordingly.
