SHEILA K. OBERTO, Magistrate Judge.
Petitioner, Hilario Aguero, is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges four grounds for habeas relief: (1) the trial court erred by failing to sua sponte instruct on the "escape rule"; (2) insufficient evidence;
Petitioner and three co-defendants, Emmanuel Toscano ("Toscano"), Gabriel Gonzales ("Gonzales"), and Fernando Garcia-Santos ("Garcia-Santos") were charged and tried together before a jury for crimes that were committed over the course of two days, August 28, 2010 and April 30, 2011.
Ramzee Johnson ("Johnson"), an African American man in his mid-thirties, lived with his family in a predominately Hispanic neighborhood in northeast Bakersfield, California. At approximately 3:00 a.m. on August 28, 2010, Johnson left his apartment to walk to the market.
Shortly after leaving his apartment, Johnson saw Petitioner and Francisco Castro ("Castro") standing about a block and a half away from him. When Petitioner and Castro started walking towards him, Johnson became nervous and turned around to walk back to his apartment.
Petitioner and Castro caught up to Johnson, stood in front of him, and asked him "gang questions" like "where are you from?" and "where you at?" Johnson replied that he was "not from anywhere" and stated he lived on the street where they were standing and that they were in front of his residence.
Castro pulled out a .25-caliber, semiautomatic firearm and Johnson heard a clicking sound, indicating the gun had been cocked. Believing he was about to be killed, Johnson grabbed for the gun. The gun fired as soon as he grabbed it, but the shot missed him. Johnson twisted the gun out of Castro's hand and fired back at Castro. Petitioner and Castro fell to the ground and then quickly got up and ran away. Johnson fired the gun in their direction several times until he heard a click and the gun appeared to be empty. Johnson called 911.
When police officers arrived, individuals in front of a nearby residence yelled at the officers that their friends were inside, shot and bleeding. Officers found Petitioner and Castro inside the residence, both with gunshot wounds.
Petitioner and Castro were transported to the hospital for treatment. When a police officer returned to the hospital two days later to transport Petitioner to jail for booking, the officer discovered that nursing staff had accidentally released him from custody. The police could not locate Petitioner prior to the events of April 30, 2011.
On April 30, 2011, Gerardo V. ("Gerardo") was fatally shot in a church parking lot in west Bakersfield, California. The parking lot was located next to a restaurant where Gerardo and some of his high school friends were attending a quinceañera.
At trial, the prosecutor argued that the shooting was an act of gang-related retaliation for a shooting that occurred six days earlier on April 24, 2011. On that day, the perpetrators shouted either "Westside" or "Southside" and shot at one of Petitioner's co-defendants, Toscano, and his brother, Jacob Toscano ("Jacob"). Jacob was injured.
Toscano told a deputy responding to the scene that he and his brother were walking home from a 7-Eleven when a car pulled up next to them. Several African American males exited the car and shot at Toscano and his brother. When the assailants shouted "Southside," Toscano responded by "gangbanging back at them" and yelling "Hillside."
In the days after the April 24, 2011 shooting, Melina M. ("Melina"), a 16-year-old who knew Toscano overheard Toscano talking about Jacob being shot. Toscano appeared very angry and she heard him say "something about the Westside."
On the afternoon of April 30, 2011, Melina saw Toscano and invited him to attend her friend's quinceañera. Petitioner was standing with Toscano when Melina invited Toscano. Toscano, Petitioner, and the other co-defendants showed up at the restaurant where the quinceañera was being held, and Melina went out to meet the men.
Melina became upset with Toscano when he started leading the others in his group in "pretending" to be members of the Westside Bakers gang. Melina knew Toscano was actually an "Eastsider" and member of the rival Loma Bakers gang. Toscano and his friends were shouting "Westside" and directing Westside hand signals towards other men at the quinceañera, who were socializing around the restaurant and in an adjacent minimarket. Toscano warned Melina in front of the others not to tell anyone that his group was from "the East." He also showed her that he was armed by lifting his shirt and exposing the handle of a firearm tucked inside his waistband.
Melina asked Toscano to leave and went back inside the restaurant. From inside the restaurant, she saw Petitioner and his three co-defendants leave. The men crossed in front of the restaurant and then headed towards the church parking lot. The murder victim, Gerardo, and three of his friends were in the church parking lot waiting to get into a car. Petitioner and his co-defendants surrounded Gerardo and his friends.
Led by Toscano, the group asked Gerardo and his friends where they were from. Gerardo's friends responded that "we don't bang." Maintaining the pretense that they were West Side Bakers, Toscano and his group started making derogatory comments about Eastsiders and asked Gerardo's group where they could find some Eastsiders.
Eventually, both groups shook hands and Petitioner's group appeared to be preparing to leave. Gerardo and his friends got into their car, with Gerardo in the front passenger's seat. The front passenger-side door was still open, when Toscano said "Keep it Westside," to which Gerardo replied, "I'm Westside, too."
When Gerardo stated he was Westside, Gonzales went up to the car and asked Gerardo what he had said. Gerardo repeated that he was from the Westside too, Petitioner replied, "You're not from my hood," and challenged Gerardo to get out of the car and fight him.
Petitioner and his co-defendants were saying things to "pump up" Gonzales, including: "Just fight him. Just fight him." Gerardo's friends told him to just be quiet and started the car up to leave; however, they could not drive away without hitting someone in Petitioner's group, who had all surrounded the car.
While recollections differed as to the details of events, Gerardo's group all remembered seeing Gonzales reach into the car and grab Gerardo's cell phone from his hands or from his lap. As Gonzales grabbed the cell phone, someone heard him call Gerardo a "bitch" and say, "give me your fucking phone."
Gerardo begged Gonzales to return his phone. Gonzales responded by saying something to the effect that he would return Gerardo's phone, but first Gerardo would have to get out of the car and fight him. Petitioner's group continued to challenge Gerardo to get out of the car and fight with Gonzales.
Remaining inside the car, Gerardo continued imploring Gonzales to return his cell phone and repeating that he did not want to fight Gonzales. Gerardo also expressed some confusion, asking Gonzales why they were supposed to be fighting when they were from the "same hood."
Gonzales reached into the car again and grabbed Gerardo's hat from his head. Gerardo told Gonzales to keep the hat, but give him back his phone. Gerardo finally closed his door and said, "I'm going to call the big [homeys]."
Toscano walked back up to the car and opened Gerardo's door. Toscano then pulled out the gun and shot Gerardo. Petitioner and his group then ran away together towards a nearby alley, shouting something as they ran. Meanwhile, Gerardo got out of the car and started running towards the restaurant. Gerardo collapsed outside the restaurant and died shortly thereafter from the gunshot wound to his left shoulder.
The pathologist who performed the autopsy explained that Gerardo suffered extensive blood loss due to the laceration of vital organs, including a major vein in his heart and the upper lobes of both his lungs.
At trial, Kern County Sheriff's Deputy Richard Hudson ("Hudson") testified as a gang expert for the prosecution. Hudson opined that, at the time of their offenses, Petitioner and his co-defendants were all members of, and active participants in, the Loma Bakers criminal street gang.
Presented with hypotheticals based on the August 2010 and April 2011 incidents underlying the charged offenses, Hudson opined the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang. With respect to the gang-benefit of the April 2011 offenses, Hudson opined that the scenario presented was an act of retaliation and explained:
Regarding his opinion that the offenses were committed in association with a criminal street gang, Hudson specifically testified:
Harlan Hunter ("Hunter"), a private investigator, testified as a gang expert on behalf of co-defendant Gonzales. Assuming the same hypothetical facts based on the April 2011 incident, as those addressed by the prosecution's gang expert, Hunter opined that the shooting was a "personal incident" and was
At trial, the court gave a jury instruction about aiding and abetting relevant to the case at bar. As read to the jury, CALCRIM No. 400 stated:
On August 8, 2012, Petitioner was convicted of first degree premeditated murder, with robbery and gang special circumstance findings (Cal. Penal Code §§ 187, 189, 190.2(a)(17), (22)); second degree robbery (Cal. Penal Code § 211); shooting at an occupied motor vehicle (Cal. Penal Code § 246); active participation in a criminal street gang (Cal. Penal Code § 186.22(a)); and assault with a firearm (former Cal. Penal Code § 245(b)). With regard to the murder, robbery, and shooting into an occupied vehicle counts, the jury found true the allegations that a principal discharged a firearm during the crime causing death. (Cal. Penal Code §§ 12022.53(d), (e)(1)). Petitioner was sentenced to life without the possibility of parole, plus twenty-five years to life, plus eleven years.
On August 27, 2015, the Court of Appeal for the Fifth Appellate District ("Court of Appeal") affirmed Petitioner's conviction.
On January 23, 2017, Petitioner filed his petition for writ of habeas corpus before this Court. Respondent filed a response on May 23, 2017.
A person in custody as a result of the judgment of a state court may secure relief through a petition for habeas corpus if the custody violates the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 (2000). On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed thereafter. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Under the statutory terms, the petition in this case is governed by AEDPA's provisions because it was filed April 24, 1996.
Habeas corpus is neither a substitute for a direct appeal nor a device for federal review of the merits of a guilty verdict rendered in state court. Jackson v. Virginia, 443 U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring). Habeas corpus relief is intended to address only "extreme malfunctions" in state criminal justice proceedings. Id. Under AEDPA, a petitioner can obtain habeas corpus relief only if he can show that the state court's adjudication of his claim:
28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 413.
"By its terms, § 2254(d) bars relitigation of any claim `adjudicated on the merits' in state court, subject only to the exceptions set forth in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011).
As a threshold matter, a federal court must first determine what constitutes "clearly established Federal law, as determined by the Supreme Court of the United States." Lockyer, 538 U.S. at 71. In doing so, the Court must look to the holdings, as opposed to the dicta, of the Supreme Court's decisions at the time of the relevant state-court decision. Id. The court must then consider whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." Id. at 72. The state court need not have cited clearly established Supreme Court precedent; it is sufficient that neither the reasoning nor the result of the state court contradicts it. Early v. Packer, 537 U.S. 3, 8 (2002). The federal court must apply the presumption that state courts know and follow the law. Woodford v. Visciotti, 537 U.S. 19, 24 (2002). The petitioner has the burden of establishing that the decision of the state court is contrary to, or involved an unreasonable application of, United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).
"A federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, 538 U.S. at 75-76. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, the AEDPA standard is difficult to satisfy since even a strong case for relief does not demonstrate that the state court's determination was unreasonable. Harrington, 562 U.S. at 102.
In his first ground for habeas relief, Petitioner contends the trial court erred by failing to sua sponte instruct the jury with CALCRIM No. 3261, the "escape rule."
Generally, claims of instructional error are questions of state law and are not cognizable on federal habeas review. "It is not the province of a federal court to reexamine state court determinations of state law questions." Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). "The fact that a jury instruction violates state law is not, by itself, a basis for federal habeas corpus relief." Clark v. Brown, 450 F.3d 898, 904 (9th Cir. 2006). "[A] petitioner may not "transform a state-law issue into a federal one merely by asserting a violation of due process." Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997).
A trial court's refusal to give an instruction does not, by itself, raise a cognizable claim under federal habeas review. Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). To prevail in a collateral attack on state court jury instructions, a petitioner must do more than prove that the instruction was erroneous. Henderson v. Kibbe, 431 U.S. 145, 154 (1977). Instead, the petitioner must prove that the error "by itself so infected the entire trial that the resulting conviction violated due process." Estelle, 502 U.S. at 72. Even if there were constitutional error, habeas relief cannot be granted absent a "substantial and injurious effect" on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
Due process requires "criminal defendants be afforded a meaningful opportunity to present a complete defense." Clark, 450 F.3d at 904 (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)) (internal quotation marks omitted). Criminal defendants are entitled to adequate instructions on the defense theory of the case; however, Due Process only requires instructions be given when the evidence supports the instruction. Conde v. Henry, 198; F.3d 734, 739 (9th Cir. 2000); Hopper v. Evans, 456 U.S. 605, 611 (1982); Menendez v. Terhune, 422 F.3d 1012, 1029 (9th Cir. 2005).
Omitting an instruction is less likely to be prejudicial than misstating the law. Walker v. Endell, 850 F.2d 470, 475-76 (9th Cir. 1987) (citing Henderson, 431 U.S. at 155.)
The Court of Appeal rejected Petitioner's assertion that the trial court should have sua sponte instructed on CALCRIM No. 3261:
(Lodged Doc. 13 at 33-35.)
Petitioner maintains the trial court should have instructed on the "escape rule," because the "jury could have harbored a reasonable doubt whether my companions and I had already reached a place of temporary safety when the murder occurred." (Doc. 1 at 5.)
The state court determined this instruction was not warranted under California law. This Court is bound by the state court's ruling on a question of state law. Estelle, 502 U.S. at 71-72. To obtain relief, Petitioner must show the alleged instructional error "had a substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). "A `substantial and injurious effect' means a `reasonable probability' that the jury would have arrived at a different verdict had the instruction been given." Byrd v. Lewis, 566 F.3d 855, 860 (9th Cir. 2009) (quoting Clark, 450 F.3d at 916). To determine if Petitioner was prejudiced, the Court will consider: "(1) the weight of evidence that contradicts the defense; and (2) whether the defense could have completely absolved the defendant of the charge." Id. (citing Beardslee v. Woodford, 358 F.3d 560, 578 (9th Cir. 2004). The burden on Petitioner "is especially heavy where . . . the alleged error involves the failure to give an instruction." Id. (quoting Clark, 450 F.3d at 904) (internal citations omitted).
Here, Petitioner and his co-defendants were within feet of Gerardo's car when co-defendant Toscano shot Gerardo. Therefore, the evidence establishes that the co-defendants were still at the scene of the robbery at the time of the murder.
Under the felony murder rule, "`[a] robbery is not complete until the perpetrator reaches a place of temporary safety,' which is not the scene of the robbery." People v. Wilson, 43 Cal.4th 1, 17 (2008) (quoting People v. Young, 34 Cal.4th 1149, 1177 (2005)). A "robbery remains in progrees until the perpetrator has reached a place of temporary safety. The scene of the crime is not such a location, at least as long as the victim remains at hand." People v. Flynn, 77 Cal.App.4th 766, 772 (2000) (internal citations omitted).
It was reasonable for the Court of Appeal to conclude that because Petitioner and his co-defendants were at the scene of the robbery when co-defendant Toscano shot and killed Gerardo, they had not reached a place of temporary safety. Thus, there was no evidence adduced at trial to support the giving of the "escape rule" instruction, CALCRIM No. 3261.
Further, even assuming the trial court should have given the instruction, the error was harmless. If the jury had been given the "escape rule" instruction, no reasonable juror could have concluded that Petitioner and his co-defendants had reached a place of safety given they were still at the place where the robbery took place when Gerardo was killed. Because Petitioner cannot show "a substantial and injurious effect," it was not unreasonable for the Court of Appeal's to reject Petitioner's claim. For these reasons, the Court recommends rejecting Petitioner's claim.
In his second ground for habeas relief, Petitioner alleges there was insufficient evidence to convict him of second degree robbery and first degree murder. Specifically, Petitioner contends there was insufficient evidence to support: (1) the force and fear element of the robbery conviction and robbery-murder special circumstance finding; (2) that Petitioner had an independent felonious purpose; (3) the jury's finding of guilt on the substantive gang crimes and true finding on the gang special circumstance and gang enhancement; and (4) the first degree murder conviction. (Doc. 1 at 5-6, 8.) Respondent counters that the Court of Appeal's rejection of Petitioner's claims was reasonable because there was substantial evidence to support the jury's findings.
To determine whether the evidence supporting a conviction is so insufficient that it violates the constitutional guarantee of due process of law, a court evaluating a habeas petition must carefully review the record to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Windham v. Merkle, 163 F.3d 1092, 1101 (9th Cir. 1998). It must consider the evidence in the light most favorable to the prosecution, assuming that the trier of fact weighed the evidence, resolved conflicting evidence, and drew reasonable inferences from the facts in the manner that most supports the verdict. Jackson, 443 U.S. at 319; Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997).
After AEDPA, a federal habeas court must apply the standards of Jackson with an additional layer of deference. Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). The United States Supreme Court has explained the highly deferential standard of review in habeas proceedings, noting that Jackson
Cavazos v. Smith, 565 U.S. 1, 3-4 (2011).
In Petitioner's first insufficient evidence claim, he contends there was insufficient evidence to convict him of second degree robbery and the robbery-murder special circumstance. (Lodged Doc. 1 at 5.) Specifically, he alleges there was insufficient evidence that Gerardo's hat and phone were taken by force or fear or that it was done with the intent to permanently deprive Gerardo of his property. Id.
The Court of Appeal rejected Petitioner's claim:
(Lodged Doc. 13 at 17-18.)
Petitioner is asking this Court to reweigh the evidence in his favor. However, on habeas review, this Court does not reweigh the evidence presented at trial. Instead, the Court must review the record to determine whether a rational trier of fact could have found co-defendant Gonzales took Gerardo's hat and phone with force or fear and that it was done with the intent to permanently deprive him of his property.
The Court of Appeal set forth the statutory definition of robbery and determined that the evidence satisfied each element, principally the third and fourth elements: (3) by means of force of fear, (4) with the intent to permanently deprive the person of the property. (Lodged Doc. 13 at 17.)
The force or fear needed to commit a robbery does not have to occur only at the time of the taking. People v. McKinnon, 52 Cal.4th 610, 686 (2011). The force or fear used to retain the property also qualifies. People v. Gomez, 43 Cal.4th 249, 256 (2008). Consequently, a theft becomes a robbery "if [a] perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot." Id. at 257.
The "force" required "is such force as is actually sufficient to overcome the victim's resistance. . . ." People v. Anderson, 51 Cal.4th 989, 995 (2009). However, it must be more than the force that is "necessary to accomplish the mere seizing of the property." Id. For "fear," an express threat is not required; instead, mere intimidation is sufficient. People v. Morehead, 191 Cal.App.4th 765, 775 (2011). "So long as the perpetrator uses the victim's fear to accomplish the retention of the property, it makes no difference whether the fear is generated by the perpetrator's specific words or actions designed to frighten, or by circumstances surrounding the taking itself." Flynn, 77 Cal. App. 4th at 772.
Here, Petitioner and his co-defendants shouted gang slogans and made gang hand signals at Gerardo and his friends. Petitioner's group harassed and intimidated Gerardo and his three friends, who were younger and smaller, throughout the night. When Gerardo's group tried to leave the parking lot in their car, Petitioner's group, composed of six men, surrounded the car and continued to harass and intimidate Gerardo's group.
Co-defendant Toscano challenged Gerardo to fight, but Gerardo refused. Toscano continued to pressure Gerardo to fight, and Petitioner and his co-defendants encouraged the behavior. When the driver of the car attempted to back his car up, Petitioner's group blocked his path.
After harassing Gerardo's group and pressuring Gerardo to fight, co-defendant Gonzales called Gerardo "a bitch," and grabbed Gerardo's phone from his lap. Gerardo begged for Gonzales to give his phone back, but Toscano stated he would only get it back if Gerardo fought Gonzales. Gonzales then took Gerardo's hat off his head. As Gerardo tried to shut the car door and leave, Toscano shot him.
Considering these facts, force was used to take and retain the property. Gonzales said "[g]ive me your fucking phone," before grabbing Gerardo's phone off his lap. Gonzales also used force to retain both the phone and the hat. Petitioner's group intimidated and harassed Gerardo and ultimately challenged him to a fight if he wanted to get his property back. There is also evidence that Gonzales used fear to take and retain Gerardo's property. The group surrounded the car, and taunted and challenged Gerardo.
The Court of Appeal's decision was not an objectively unreasonable application of clearly established federal law, nor did it result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented. For these reasons, the Court recommends denying Petitioner's claim that there was insufficient evidence to support the robbery conviction and robbery special circumstance.
In Petitioner's second insufficient evidence claim, he alleges the evidence adduced at trial was insufficient to prove he had an independent felonious purpose to support the robbery special circumstance finding. (Doc. 1 at 6.) Specifically, Petitioner states the "purpose of the [robbery] was to facilitate an assault or murder, not obtain any valuables. Thus, the robbery was committed to advance the murder, not vice versa." Id.
In his petition before the Court of Appeal, Petitioner challenged the robbery special circumstance findings:
(Lodged Doc. 13 at 16, 20-21.)
Petitioner challenges the jury's robbery special circumstance finding. The robbery-murder special circumstance applies when a murder is "committed while the defendant was engaged in . . . the commission of, [or] attempted commission of" robbery. (Cal. Penal Code § 1902.2(a)(17(A)). "[T]o prove a felony-murder special-circumstance allegation, the prosecution must show that the defendant had an independent purpose for the commission of the felony, that is, the commission of the felony was not merely incidental to an intended murder." People v. Lindberg, 45 Cal.4th 1, 27 (2008) (internal citations and quotation marks omitted). The prosecutor must show "the defendant intended to commit the [robbery] separately from forming an intent to kill the victim." People v. Lewis, 46 Cal.4th 1255, 1300 (2009) (internal citations and quotation marks omitted). The robbery cannot be "merely an afterthought to the murder, as when for example, the defendant intends to murder the victim and after doing so takes his or her wallet for the purpose of making identification of the body more difficult." Id. (internal citations and quotation marks omitted).
the People must prove that the defendant intended to commit Robbery independent of the killing. If you find that the defendant only intended to commit murder and the commission of the Robbery was merely part of or incidental to the commission of that murder, then the special circumstance has not been proved.
(Reporter's Transcript 30 at 5869.)
Petitioner states the purpose of the robbery "was to facilitate an assault or murder"; therefore, Petitioner and his co-defendants did not have the independent felonious intent to rob Gerardo. (Doc. 1 at 6.) The evidence shows that when co-defendant Gonzales approached Gerardo's car, he said "[g]ive me your fucking phone," and grabbed the cell phone off Gerardo's lap. Petitioner's group urged Gerardo to fight Gonzales and when Gerardo refused to get out of the car, Gonzales took Gerardo's hat off his head.
While reasonable minds could differ as to the reasons Gonzales took Gerardo's cell phone and hat, this Court must consider the evidence in the light most favorable to the prosecution, assuming that the trier of fact weighed the evidence, resolved conflicting evidence, and drew reasonable inferences from the facts in the manner that most supports the verdict. Jackson, 443 U.S. at 319; Jones, 114 F.3d at 1008. Considering the foregoing, the Court cannot say "no rational trier of fact could have agreed with the" jury's finding that Petitioner had an independent felonious intent to rob Gerardo. Cavazos, 565 U.S. at 4.
Further, as the Court of Appeal noted, Petitioner's claim still fails if he and his co-defendants intended to kill Gerardo at the time they robbed him. Indeed, "`[c]oncurrent intent to kill and to commit an independent felony will support a felony-murder special circumstance.'" People v. Bolden, 29 Cal.4th 515, 554 (2002) (quoting People v. Raley, 2 Cal.4th 870, 903 (1992)). Therefore, even if Petitioner and his co-defendants intended to kill Gerardo at the same time as they robbed him, based on the evidence, fair-minded jurists could reasonably find the intent to rob and kill were concurrent.
The Court of Appeal's decision was not an objectively unreasonable application of clearly established federal law nor did it result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented. For these reasons, the Court recommends denying Petitioner's claim that there was insufficient evidence to support the felony-murder special circumstance.
In Petitioner's third insufficient evidence claim, he contends there was insufficient evidence to support the jury's finding of guilt on the substantive gang crimes and true findings on the gang special circumstance allegations and the gang enhancements. (Doc. 1 at 8.) Petitioner maintains there was insufficient evidence to prove the "primary activities" element of the statutory definition of a criminal street gang, because the gang expert, Hudson, used the phrase "primary criminal activities" rather than "primary activities" in describing the activities of the Loma Bakers gang. Id.
Petitioner was alleged to be a member of the Loma Bakers gang and convicted of being an active participant in a criminal street gang (Cal. Penal Code § 186.22(a)). Further, the jury found true the allegation that the murder was committed while Petitioner was an active member of the gang (Cal. Penal Code § 190.2(a)(22)). As to the murder, robbery, and shooting into an occupied vehicle counts, the jury found true the allegations that the crimes were committed for the benefit of, at the direction of, or in association with a criminal street gang (Cal. Penal Code § 186.22(b)(1)).
Pursuant to California Penal Code § 186.22(f), "`criminal street gang' means any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated . . . ." As the Court of Appeal stated, to establish that a group is a "criminal street gang," one element the prosecutor must prove is that the group's "primary activities" is the commission of enumerated crimes. See Cal. Penal Code § 187.22(e).
The Court of Appeal denied Petitioner's claim that there was insufficient evidence to establish the primary activities of the Loma Bakers gang:
(Lodged Doc. 13 at 22-27.)
Petitioner argues the prosecutor did not present sufficient evidence to prove the "primary activities" element for the definition of a criminal street gang. Pursuant to California Penal Code § 186.22(f), a requirement for a criminal street gang is that the group has, as one of its primary activities, one or more of the crimes specified in subdivision (e). "Sufficient proof of the gang's primary activities might consist of evidence that the group's members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony." People v. Sengpadychith, 26 Cal.4th 316, 324 (2001).
The California Supreme Court has found that an expert witness's opinion, based on conversations with gang members, personal investigation of crimes committed by gang members, and information from colleagues, is sufficient evidence of the "primary activity" element to proving an association was a "criminal street gang." People v. Gardeley, 14 Cal.4th 605, 620 (1996).
Here, Hudson, the gang expert, testified that the primary activities of the Loma Bakers gang members included "murders, robberies, assault with deadly weapons, sales of controlled substances, methamphetamine, heroin, cocaine, marijuana. They're also going to include weapons and other violations." (Reporter's Transcript 24 at 4377.) The prosecutor asked, "the primary criminal activities that you listed, murder, robbery, narcotic sales, those crimes, were those the primary activities of the Loma Bakers gang members in 2011?" Id. at 4380. Hudson responded, "Yes, ma'am, they have been consistent that way since I've been in law enforcement here." Id. After the prosecutor asked, "From August 1st of 2010 through May 15th of 2011, in your opinion, . . . was the gang involved in primary criminal activities that you mentioned?"; Hudson again confirmed that they were involved in those primary activities. Id. at 4489.
In addition to Hudson's testimony about the primary activities of the Loma Bakers gang, co-defendant Gonzales' gang expert, Hunter, testified about the gang. Hunter testified that he had known the Loma Bakers gang since the 1980's, and had interviewed members, listened to testimony, and reviewed police reports, probation reports, court transcripts, and other documents about them. (Reporter's Transcript 26 at 4864.) Hunter testified that "[a]t the present time it is my opinion that [the Loma Bakers gang is] a criminal street gang." Id. at 4866. Based on Hunter's testimony that the Loma Bakers gang is a "criminal street gang," the "primary activities" of the gang are the ones enumerated in § 186.22(e).
Petitioner contends Hudson's use of the phrase "primary criminal activities" rather than the phrase "primary activities" established, for the jury, that the gang only engaged in criminal activities, whereas Petitioner states there "was evidence that the gang . . . devoted much of it's time to social activities, not crimes." Id.
Petitioner's argument is unavailing. Based on the transcript, it appears Hudson used the phrases "primary criminal activities" and "primary activities," interchangeably. To clear up any confusion, the prosecutor asked, "the primary criminal activities that you listed, murder, robbery, narcotic sales, those crimes, were those the primary activities of the Loma Baker gang members in 2011?" (Reporter's Transcript 24 at 4380.) Hudson answered, "Yes ma'am, they have been consistent that way since I've been in law enforcement here." Id.
Further, the prosecutor only had to show that one of the primary activities of the Loma Bakers gang was the commission of crimes. Sengpadychith, 26 Cal. 4th at 324-25 (citing People v. Gamez, 235 Cal.App.3d 957, 970-71 (1991)). Therefore, evidence that the gang devoted time to "social activities" does not diminish the evidence that one of the gang's primary activities was the commission of crimes.
(Reporter's Transcript 26 at 4764-67.)
Petitioner contends this one exchange during cross-examination supports his argument that Hudson improperly based his definition of "primary activities" on one single incident. However, Hudson testified extensively that he knows of the activities of the Loma Bakers gang based on "[n]umerous investigations. I've testified against them. I've had numerous contacts with them. I've been at the scene of crimes involving them. I've made numerous arrests of Loma Baker gang members." (Reporter's Transcript 24 at 4367.) Therefore, the evidence does not suggest that Hudson based his opinion about the Loma Bakers' primary activities on one member of the Loma Bakers gang committing one crime.
Considering the foregoing, there was sufficient evidence of the Loma Bakers' "primary activities" to sustain the substantive gang crimes and true findings on the gang special circumstance allegations and the gang enhancements. The Court of Appeal's decision was not an objectively unreasonable application of clearly established federal law, nor did it result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented. For these reasons, the Court recommends denying Petitioner's claim that there was insufficient evidence to support the gang convictions.
In Petitioner's fourth insufficient evidence claim, he alleges there was insufficient evidence to prove he personally intended to kill Gerardo. (Doc. 1 at 6.) Petitioner maintains the evidence of a conspiracy to commit murder relied on text messages, which he did not participate in. Id.
The Court of Appeal found Petitioner's claim that there was insufficient evidence to support the first degree murder charge was unavailing:
(Lodged Doc. 13 at 21-22.)
The Court of Appeal found there was sufficient evidence to convict Petitioner of first degree murder under an aiding and abetting theory. An individual is guilty of first degree murder under an aiding and abetting theory,
People v. Cooper, 53 Cal.3d 1158, 1164 (1991) (citing People v. Beeman, 35 Cal.3d 547, 561(1984)). "Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense." In re Lynette G., 54 Cal.App.3d 1087, 1094 (1976).
Petitioner contends the "sole arguable basis for finding that [he] was part of a conspiracy and premeditated to commit murder relied on a series of text messages" of which he was not a part. (Doc. 1 at 6.) Although Petitioner was not part of the text message exchange, the messages between members of the gang showed the gang's intent to retaliate for the shooting of Jacob, co-defendant Toscano's brother, which occurred six days before Gerardo was killed. Albarran
(Reporter's Transcript 23 at 4256-57.)
Id. at 4258
In a text message exchange between co-defendant Garcia-Santos and his girlfriend on the day of the murder, Garcia-Santos told his girlfriend he could not attend an event with her because, "I got things to handle to by tonight." Id. at 4239. Later, when his girlfriend asked if he was ok, Garcia-Santos replied, "Yeah, but we're going to the west side in a bit." Id. at 4239-40. At 6:00 p.m., Garcia-Santos texted Jacob that he was with Joseph Gonzales, a Loma Bakers gang member, Albarran, and Petitioner. Id. at 4242. At 8:16 p.m., when he was at the restaurant where the quinceañera was being held, Garcia-Santos texted his girlfriend that he did not know what time he would be home and "We're waiting." Id. at 4243. Gerardo was killed at 9:03 p.m. Id.
Based on these text messages, it would be reasonable to conclude that Petitioner and his co-defendants went to the quinceañera to retaliate for the shooting of Jacob. The evidence at trial revealed that when they arrived at the quinceañera, Petitioner's group tried to identify members of their rival gang, the Westside gang, by pretending to be Westside gang members. One of the co-defendants, believed to be Toscano, asked a quinceañera attendee where the "Westies" were. The attendee pointed to the table where Gerardo and his friends were sitting, even though he was not sure that they were Westside gang members. Petitioner's group acted together to find potential victims.
Before the shooting and while the co-defendants were standing in a circle near each other, Toscano lifted his shirt to show Melina, the woman who had invited him to the quinceañera, a gun tucked into the waist band of his shorts. Therefore, it was reasonable to infer that all the co-defendants knew that Toscano was carrying a gun.
Once Gerardo and his friends walked to their car, Petitioner's group followed them. Toscano's hand was underneath his sweatshirt as he followed Gerardo. When Petitioner's group surrounded Gerardo's car, as a group, they continued to pretend they were part of the Westside gang. When Gerardo told Petitioner's group, "I'm from the West Side, too," co-defendant Gonzales responded, "You not from my hood." At that point, Petitioner's group began to harass and intimidate Gerardo and, as a group, blocked the car so that Gerardo could not get away from them. Gonzales stole Gerardo's phone and hat and the co-defendants taunted Gerardo and his friends, calling them "little bitches."
Further, Hudson testified that a gang would retaliate if one of their gang members was shot, with an equal or greater use of violence. (Reporter's Transcript 24 at 4430-32.) He also testified that the retaliation would be led by a family member who was also in the gang, which is how the shooting unfolded in this case. Id. at 4432-33. After Jacob was shot, his brother, co-defendant Toscano, brought his gun to the quinceañera and killed Gerardo.
Based on this evidence, the co-defendants appear to have acted together to find a victim, knowing that they wanted to seek revenge for Jacob's death and knowing that Toscano was carrying a gun, and while harassing and taunting Gerardo, encouraged the crimes of robbery and then shot Gerardo. In view of these facts, it was reasonable for the Court of Appeal to find that Petitioner knew of Toscano's unlawful purpose, and intended to commit, facilitate, or encourage the commission of the crime by acting, aiding, promoting, encouraging, or instigating the commission of the crime.
Therefore, the Court of Appeal's decision was not an objectively unreasonable application of clearly established federal law, nor did it result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented. For these reasons, the Court recommends denying Petitioner's claim that there was insufficient evidence to support the first degree murder conviction.
In his third ground for habeas relief, Petitioner alleges that CALCRIM No. 400,
Generally, claims of instructional error are questions of state law and are not cognizable on federal habeas review. "[T]he fact that [an] instruction was allegedly incorrect under state law is not a basis for habeas relief." Estelle, 502 U.S. at 71-72 (1991) (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 wisdom of state evidentiary rules")). A petitioner may not "transform a state-law issue into a federal one merely by asserting a violation of due process." Langford, 110 F.3d at 1389 (citing Melugin v. Hames, 38 F.3d 1478, 1482 (9th Cir. 1994)).
To prevail on a collateral attack of state court jury instructions, a petitioner must do more that prove that the instruction was erroneous. Henderson v. Kibbe, 431 U.S. 145, 154 (1977). Instead, the petitioner must prove that the improper instruction "by itself so infected the entire trial that the resulting conviction violated due process." Estelle, 502 U.S. at 72 (internal citations omitted). Even if there were constitutional error, habeas relief cannot be granted absent a "substantial and injurious effect" on the verdict. Brecht, 507 U.S. at 637 (quoting Kotteakos, 328 U.S. at 776).
A federal court's review of a claim of instructional error is highly deferential. Masoner v. Thurman, 996 F.2d 1003, 1006 (9th Cir. 1993). A reviewing court may not judge the instruction in isolation but must consider the context of the entire record and of the instructions as a whole. Id. The mere possibility of a different verdict is too speculative to justify a finding of constitutional error. Henderson, 431 U.S. at 157. "Where the jury verdict is complete, but based upon ambiguous instructions, the federal court, in a habeas petition, will not disturb the verdict unless there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution." Solis v. Garcia, 219 F.3d 922, 927 (9th Cir. 2000) (quoting Estelle, 502 U.S. at 72) (internal quotation marks omitted).
If a trial court has made an error in an instruction, a habeas petitioner is only entitled to relief if the error "had a substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637 (quoting Kotteakos, 328 U.S. at 776) (internal quotation marks omitted). A state prisoner is not entitled to federal habeas relief unless the instructional error resulted in "actual prejudice." Id. A violation of due process occurs only when the instructional error results in the trial being fundamentally unfair. Estelle, 502 U.S. at 72-73; Duckett v. Godinez, 67 F.3d 734, 746 (9th Cir. 1995). If the court is convinced that the error did not influence the jury, or had little effect, the judgment should stand. O'Neal v. McAninch, 513 U.S. 432, 437 (1995).
The Court of Appeal denied Petitioner's claim, holding that he forfeited the claim because he failed to object to the instruction at trial. In the alternative, the Court of Appeal found any mistake in the instruction harmless.
(Lodged Doc. 13 at 35-39.)
Petitioner's claim is procedurally defaulted. A federal court cannot review claims in a petition for writ of habeas corpus if a state court denied relief on the claims based on state law procedural grounds that are independent of federal law and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 750 (1991). "A district court properly refuses to reach the merits of a habeas petition if the petitioner has defaulted on the particular state's procedural requirements." Park v. California, 202 F.3d 1146, 1150 (2000).
A petitioner procedurally defaults his claim if he fails to comply with a state procedural rule or fails to raise his claim at the state level. Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (citing O'Sullivan v. Boerckel, 562 U.S. 838, 844-45 (1999)). The procedural default doctrine applies when a state court determination of default is based in state law that is both adequate to support he judgment and independent of federal law. Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991). An adequate rule is one that is "firmly established and regularly followed." Id. (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)); Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003). An independent rule is one that is not "interwoven with federal law." Park, 202 F.3d 1146 at 1152 (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)).
When a state prisoner has defaulted on his federal claim in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claim is barred, unless the prisoner can demonstrate cause for the default and actual prejudice as a result of an alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.
In California, "an appellate court will not consider a claim of error if an objection could have been, but was not, made in the lower court." People v. French, 43 Cal.4th 36, 46 (2008) (citing People v. Saunders, 5 Cal.4th 580, 589-90 (1993)). The rule is in place because "[i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided." Id. (quoting People v. Vera, 15 Cal.4th 269, 276 (1997) (internal quotation marks omitted)). This forfeiture rule applies to a petitioner who fails to object to a jury instruction. People v. Virgil, 51 Cal.4th 1210, 1260 (2011) "Defendant's failure to object to the instruction below . . . forfeits the claim on appeal."). Indeed, in this case, the Court of Appeal noted published opinions that held "a challenge to the `equally guilty' language in former versions of CALCRIM No. 400 is forfeited by a failure to object and/or request clarifying language at the time of trial." (Lodged Doc. 13 at 36) (internal citations omitted).
The Ninth Circuit has held that California's contemporaneous objections doctrine is clear-well-established, and has been consistently applied. Melendez v. Pliler, 288 F.3d 1120, 1125 (9th Cir. 2002.) This bar is independent and adequate, and applied consistently by California courts; therefore, Petitioner's claim is procedurally barred. Vansickel v. White, 166 F.3d 953 (9th Cir. 1999).
The Court of Appeal found an independent and adequate state procedural ground. Therefore, "federal habeas review is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice, or demonstrate that the failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
Petitioner does not argue "cause for the procedural default," but instead argues that he was prejudiced by the instruction. (Doc. 1 at 8.) To show prejudice, a petitioner "must show `not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Murray v. Carrier, 477 U.S. 478, 494 (1986) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)) (emphasis in original).
Here, the Court of Appeal determined that Petitioner was not prejudiced by the "equally guilty" language in CALCRIM No. 400, because "[t]he challenged version of CALCRIM No. 400 did not contain an incorrect statement of law." (Lodged Doc. 13 at 36.) The California Supreme Court has found the "equally guilty" phrase to be accurate "in all but the most exceptional circumstances." See, e.g., People v. Samaniego, 172 Cal.App.4th 1148, 1164-65 (2009) ("[A]n aider and abettor could be guilty of a greater offense than the direct perpetrator, . . . [thus] an aider and abettor's guilt may also be less than the perpetrator's, if the aider and abettor has a less culpable mental state. Consequently CALCRIM No. 400's direction that `a person is equally guilty of the crime . . .," while generally correct in all but the most exceptional circumstances, [can be] misleading.") (internal citations and quotation marks omitted) (emphasis in original); People v. Nero, 181 Cal.App.4th 504, 517-18 (2010).
The Court of Appeal noted that "reversible error stemming from" this language has only been found where "jurors informed the trial court that they were confused by the instruction, and the court failed to provide adequate clarification in response to their inquiries on the subject." (Lodged Doc. 13 at 37) (internal citations omitted). That is not the case here, as the jury did not have questions about the instruction, and the jury is presumed to follow the instructions they are given. Weeks v. Angelone, 528 U.S. 225, 234 (2000).
For the Court to grant habeas relief based upon an error in a jury instruction, there must be a "reasonable likelihood" the jury applied the instruction in a way that violated the Constitution. Solis, 219 F.3d at 927 (quoting Estelle, 502 U.S. at 72). The instruction may not be construed in isolation, but rather, in the context of all the other jury instructions and the trial record as a whole. Estelle, 502 U.S. at 72. The Court of Appeal found that considering all of the instructions given to the jury, including CALCRIM No. 401, the jury was "properly informed . . . as to the intent required for aider and abettor culpability." (Lodged Doc. 13 at 39.) Based on the foregoing, Petitioner is unable to show there was a "reasonably likelihood" the jury misapplied the instruction. Therefore, the Court recommends denying the claim.
In his fourth claim for relief, Petitioner contends trial counsel was ineffective for failing to object to the wording of CALCRIM No. 400. (Doc. 1 at 8.)
A petitioner who is in state custody and wishes to collaterally challenge his conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir. 1988).
A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state court was given a full and fair opportunity to hear a claim if the petitioner has presented the highest state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365; Kenney v. Tamayo-Reyes, 504 U.S. 1, 8 (1992).
The petitioner must also have specifically informed the state court that he was raising a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir. 1998). If any of grounds for collateral relief set forth in a petition for habeas corpus are unexhausted, the Court must dismiss the petition. 28 U.S.C. § 2254(b)(1); Rose, 455 U.S. at 521-22.
Here, Petitioner does not contend that he presented his ineffective assistance of counsel claim in state court. Further, based on the Court's review of his filings in state court, it appears that Petitioner did not present any ineffective assistance of counsel claims before the state court. (Lodged Docs. 1, 15.)
Although non-exhaustion of state court remedies has been viewed as an affirmative defense, it is well established that it is the petitioner's burden to prove that state judicial remedies were properly exhausted. 28 U.S.C. § 2254(b)(1)(A); Darr v. Burford, 339 U.S. 200, 218-19 (1950), overruled in part on other grounds in Fay v. Noia, 372 U.S. 391 (1963); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9
Because Petitioner did not exhaust his claim for ineffective assistance of counsel before the state court, the Court recommends denying the petition for failure to exhaust state court remedies.
A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides:
If a court denies a habeas petition, the court may only issue a certificate of appealability "if jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the petitioner is not required to prove the merits of his case, he must demonstrate "something more than the absence of frivolity or the existence of mere good faith on his. . . part." Miller-El, 537 U.S. at 338.
Reasonable jurists would not find the Court's determination that Petitioner is not entitled to federal habeas corpus relief to be debatable or wrong, or conclude that the issues presented required further adjudication. Accordingly, the Court recommends declining to issue a certificate of appealability.
Based on the foregoing, the undersigned recommends that the Court deny the Petition for writ of habeas corpus with prejudice and decline to issue a certificate of appealability.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C § 636(b)(1). Within
The perpetrator[s] (has/have) reached a place of temporary safety if:
(Clerk's Transcript 8 at 2355-56.)
