Edgardo Herrera v. Martin Biter

Filing 50

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. The Petition for Writ of Habeas Corpus is DENIED and Judgment shall be entered dismissing this action with prejudice. (See document for further details). (mr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EDGARDO HERRERA,

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Case No. CV 13-7965 SS

Petitioner,

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v.

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MEMORANDUM DECISION AND ORDER

MARTIN D. BITER, Warden,

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Respondent.

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I.

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INTRODUCTION

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Effective October 17, 2013, Edgardo Herrera (“Petitioner”), a

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California state prisoner proceeding pro se, filed a Petition for

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Writ of Habeas Corpus by a Person in State Custody pursuant to 28

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U.S.C. § 2254 (“Petition”).1

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(Dkt. No. 1).

On March 3, 2014,

“When a prisoner gives prison authorities a habeas petition
or other pleading to mail to court, [pursuant to the mailbox rule,]
the court deems the petition constructively ‘filed’ on the date it
is signed[,]” Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir.
2010); Houston v. Lack, 487 U.S. 266, 276 (1988), which in this
case was October 17, 2013.
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Respondent filed an Answer to the Petition with an accompanying

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Memorandum of Points and Authorities (“Ans. Mem.”).

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On December 22, 2015, Petitioner filed a First Amended Petition

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for Writ of Habeas Corpus, and he filed the operative Second Amended

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Petition (“SAP”) effective January 21, 2016.

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39, 41).

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to the SAP as well as a memorandum of points and authorities in

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support of the Supplemental Answer (“Supp. Ans. Mem.”).

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46).

(Dkt. No. 12).

(Dkt. Nos. 24, 38-

On March 11, 2016, Respondent filed a Supplemental Answer

(Dkt. No.

Respondent has also lodged documents from Petitioner’s state

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proceedings, including the Clerk’s Transcript (“CT”) and Reporter’s

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Transcript (“RT”).

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Reply on April 8, 2016.

(Dkt. Nos. 13, 17, 31).

Petitioner filed a

(Dkt. No. 48).

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The

parties

have

consented

to

the

jurisdiction

of

the

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undersigned United States Magistrate Judge pursuant to 28 U.S.C. §

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636(c).

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the Petition is DENIED and this action is DISMISSED WITH PREJUDICE.

(Dkt. Nos. 9, 14-15).

For the reasons discussed below,

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II.

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PRIOR PROCEEDINGS

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On December 7, 2010, a Los Angeles County Superior Court jury

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convicted Petitioner of three counts of second-degree robbery in

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violation of California Penal Code (“P.C.”) § 211 and also found

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it to be true that a principal personally used a firearm during

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the robberies within the meaning of P.C. § 12022(a)(1) and that

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Petitioner committed the robberies for the benefit of, at the

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direction of, or in association with a criminal street gang with
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the specific intent to promote, further or assist in criminal

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conduct by gang members within the meaning of P.C. § 186.22(b).2

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(CT 403-05, 409-11; RT 4805-08).

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admitted

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California’s Three Strikes Law, P.C. §§ 667(b)-(i) & 1170.12(a)-

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(d), and a prior serious felony conviction within the meaning of

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P.C. § 667(a)(1).

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trial court sentenced Petitioner to a prison term of 30 years.

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421-24, 426-27; RT 5406-07).

he

had

suffered

a

On January 15, 2011, Petitioner

prior

“strike”

(CT 414; RT 5101-03).

conviction

under

On March 10, 2011, the
(CT

10
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Petitioner

appealed

his

convictions

and

sentence

to

the

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California Court of Appeal (2d App. Dist., Div. 7), which affirmed

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the judgment in an unpublished decision filed August 9, 2012.

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(Lodgments A1, A5-A7).

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petition for review in the California Supreme Court, which denied

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the petition on October 31, 2012.

On September 11, 2012, Petitioner filed a

(Lodgments B1-B2).

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Effective July 31, 2014, Petitioner filed a petition for writ

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of habeas corpus in Los Angeles County Superior Court, which denied

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the petition on November 20, 2014.

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39-40).

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corpus in the California Court of Appeal, which denied the petition

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on January 14, 2015.

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10,

(Lodgment C1; Dkt. No. 34-1 at

Petitioner thereafter filed a petition for writ of habeas

2015,

Petitioner

(Dkt. No. 34-1 at 42).
filed

a

habeas

Effective February

corpus

petition

in

the

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Petitioner was tried with co-defendants
Nicholas Rodriguez. (See, e.g., RT 4). The
reach verdicts as to Cisneros and Rodriguez,
declared as to them. (RT 4813; Lodgment A1 at
2

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3

Jose Cisneros and
jury was unable to
and a mistrial was
2).

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California Supreme Court, which denied the petition on July 8,

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2015.

(Dkt. Nos. 34-1, 37).

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III.

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FACTUAL BACKGROUND

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The

following

facts,

taken

from

the

California

Court

of

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Appeal’s unpublished decision on direct review, have not been

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rebutted with clear and convincing evidence and are therefore

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presumed correct.

28 U.S.C. § 2254(e)(1); Slovik v. Yates, 556

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F.3d 747, 749 n.1 (9th Cir. 2009).

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In October 2009[,] Mario Frias, Jesus Nunez,

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Arturo Frias, and Victor Vasquez were walking to a

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party when they were approached by two men.

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asked

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responded, “Nowhere,” signifying that he was not a

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gang member.

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him

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refused and slapped the man’s hand away when he

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reached for Frias’s pocket.

The man hit Mario Frias

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in the head with a pistol.

He went through Nunez’s

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pockets and hit Nunez in the head with the gun.

Mario

the

Frias

where

he

was

from,

One

and

he

The man demanded that Mario Frias give

contents

of

his

pockets.

Mario

Frias

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Mario Frias ran across the street, but two men

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jumped from a nearby car, demanded his possessions,

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then attacked him when he claimed to have nothing

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to give them.

[Petitioner] was the driver of the
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car; he remained in the car and gave orders to the

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assailants, including an instruction to be sure to take

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the men’s possessions. [Petitioner] was holding a shiny,

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rounded object that was shaped like a bat and that made

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a sound like a gun being loaded.

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Nunez were beaten and robbed.

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left in the car [Petitioner] drove.

The Frias brothers and
Three of the attackers

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(Lodgment A1 at 2).

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IV.

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PETITIONER’S CLAIMS

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The Petition raises seven grounds for federal habeas relief.

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In Ground One, Petitioner contends he was denied due process of

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law because there was insufficient evidence to prove his identity

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as one of the robbers.

(SAP at 5).3

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alleges

due

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insufficient evidence to prove the gang enhancements since the

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prosecution

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activity” and the gang’s “primary activities.”

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Three, Petitioner asserts the trial court denied him due process

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of law when it instructed the jury that it could consider evidence

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of Petitioner’s gang activity for the purpose of deciding identity,

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which Petitioner claims was tantamount to a directed verdict that

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Petitioner committed the robberies.

he

was

denied

failed

to

process

establish

a

In Ground Two, Petitioner
of

law

“pattern

because

of

criminal

(Id.).

(Id. at 5-6).

there

was

gang

In Ground

In Ground Four,

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The Court refers to the SAP as if it was consecutively numbered
in accordance with the Court’s electronic docket (Dkt. No. 41).
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Petitioner alleges: (a) the trial court violated the Confrontation

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Clause

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testimony that Petitioner had told other officers he was a Lott 13

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gang member named Fatty; and (b) admission of Detective Aguirre’s

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expert testimony deprived Petitioner of due process of law.

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at 6-16).

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Aguirre

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procedures to induce Arturo Frias to identify Petitioner as one of

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the robbers.

by

admitting

expert

Detective

Eduardo

Aguirre’s

(Id.

In Ground Five, Petitioner maintains that Detective

employed

received

gang

unduly

suggestive

(Id. at 17-33).
ineffective

photographic

identification

In Ground Six, Petitioner alleges

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he

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counsel

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violated the Confrontation Clause and failed to object to the

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unduly suggestive photographic identification procedures.

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33).

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counsel rendered ineffective assistance by failing to raise Grounds

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Four through Six.

failed

to

assistance

object

that

of

counsel

Detective

when

Aguirre’s

his

trial

testimony

(Id. at

In Ground Seven, Petitioner asserts that his appellate

(Id.).

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V.

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STANDARD OF REVIEW

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The Antiterrorism and Effective Death Penalty Act of 1996

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(“AEDPA”) “bars relitigation of any claim ‘adjudicated on the

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merits’ in state court, subject only to the exceptions in §§

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2254(d)(1) and (d)(2).”

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(2011).

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grant habeas relief only if the state court adjudication was

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contrary to or an unreasonable application of clearly established

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federal law, as determined by the Supreme Court, or was based upon

Harrington v. Richter, 562 U.S. 86, 98

Under AEDPA’s deferential standard, a federal court may

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an unreasonable determination of the facts.

2

U.S.C. § 2254(d)).

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deferential standard for evaluating state-court rulings, which

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demands that state-court decisions be given the benefit of the

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doubt[.]”

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(citations and internal quotation marks omitted).

Cullen

Id. at 100 (citing 28

“This is a difficult to meet and highly

v.

Pinholster,

563

U.S.

170,

181

(2011)

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Petitioner raised Grounds One through Three in his petition

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for review to the California Supreme Court, and he raised Grounds

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Four through Seven in his habeas corpus petition to the California

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Supreme

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citation to authority.

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Court “looks through” the California Supreme Court’s silent denials

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to th43e last reasoned decision as the basis for the state court’s

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judgment.

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there has been one reasoned state judgment rejecting a federal

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claim,

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rejecting the same claim rest upon the same ground.”); Cannedy v.

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Adams, 706 F.3d 1148, 1159 (9th Cir. 2013) (“[W]e conclude that

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Richter does not change our practice of ‘looking through’ summary

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denials to the last reasoned decision – whether those denials are

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on

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omitted)), as amended, 733 F.3d 794 (9th Cir. 2013).

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the Court will consider the California Court of Appeal’s reasoned

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opinion addressing Grounds One through Three,4 and the Los Angeles

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the

Court,

which

denied

the

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without

comment

(Lodgments B1-B2; Dkt. Nos. 34-1, 37).

or
The

See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where

later

merits

unexplained

or

denials

orders

of

upholding

discretionary

that

judgment

review.”

or

(footnote
Therefore,

In rejecting Ground One on the merits, the California Court of
Appeal noted that Petitioner did not brief his contention that
“‘the Cognitive Deficiencies of the One Victim Who Did Identify
[Petitioner]’ warrant reversal,” and declined to further consider
4

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petitions

7

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County Superior Court’s opinion addressing Grounds Four and Six.5

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Berghuis v. Thompkins, 560 U.S. 370, 380 (2010).

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no state court has provided a reasoned decision as to Ground Seven,

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this Court must conduct “an independent review of the record” to

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determine whether the decision to deny those claims was contrary

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to, or an unreasonable application of, clearly established federal

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law.

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Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013).

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Court will address Ground Five de novo.6

However, because

Murray v. Schriro, 745 F.3d 984, 996-97 (9th Cir. 2014);
Finally, the

See Thompkins, 560 U.S.

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that contention.
(Lodgment A1 at 4 n.2).
Petitioner briefly
mentions witness Arturo Frias’s “mental and cognitive abilities”
in raising Ground One before this Court. (SAP at 5). Respondent
contends that this portion of Ground One is procedurally defaulted.
(Ans. Mem. at 5-8).
However, the Court does not consider
Petitioner’s stray comment as raising a separate argument. Rather,
the Court considers Ground One to raise a single claim that there
was insufficient evidence to prove his identity as one of the
robbers (see SAP at 5), a claim the California Court of Appeal
rejected on the merits.
In any event, the Court retains the
discretion to deny claims on the merits even if the claims are
alleged to be procedurally defaulted. See Flournoy v. Small, 681
F.3d 1000, 1004 n.1 (9th Cir. 2012) (“While we ordinarily resolve
the issue of procedural bar prior to any consideration of the
merits on habeas review, we are not required to do so when a
petition clearly fails on the merits.”); Franklin v. Johnson, 290
F.3d 1223, 1232 (9th Cir. 2002) (“[C]ourts are empowered to, and
in some cases should, reach the merits of habeas petitions if they
are . . . clearly not meritorious despite an asserted procedural
bar.”).
5
Respondent asserts that Grounds Four through Seven are untimely.
(Supp. Ans. Mem. at 4-16). However, the Court will not address
this contention because the Court retains the discretion to address
and deny claims on the merits even if the claims are alleged to be
untimely. See Cooper v. Calderon, 274 F.3d 1270, 1275 n.3 (9th
Cir. 2001) (per curiam) (denying petition on merits rather than
remanding to consider equitable tolling); Van Buskirk v. Baldwin,
265 F.3d 1080, 1083 (9th Cir. 2001) (court may properly deny
petition on merits rather than reaching “the complex questions
lurking in the time bar of the AEDPA.”).
6 The Superior Court, citing In re Waltreus, 62 Cal. 2d 218 (1965),
rejected Ground Five because “[t]he suggestiveness of the lineup
8

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at 390 (“Courts can . . . deny writs of habeas corpus under § 2254

2

by engaging in de novo review when it is unclear whether AEDPA

3

deference applies, because a habeas petitioner will not be entitled

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to a writ of habeas corpus if his or her claim is rejected on de

5

novo review[.]”); Norris v. Morgan, 622 F.3d 1276, 1290 (9th Cir.

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2010) (affirming denial of habeas corpus petition when claim failed

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even under de novo review); Frantz v. Hazey, 533 F.3d 724, 735-37

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(9th Cir. 2008) (en banc) (a federal habeas court can review

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constitutional issues de novo before performing a § 2254(d)(1)

10

analysis).7

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VI.

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DISCUSSION

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15
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A.

Petitioner

Is

Not

Entitled

To

Habeas

Relief

On

His

Insufficient Evidence Claims

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18

In Ground One, Petitioner contends there was insufficient

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evidence to prove his identity as one of the robbers because

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witnesses

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23
24
25
26
27
28

provided

inconsistent

testimony,

a

suggestive

procedure was raised on appeal and cannot be raised again [in a]
petition for writ of habeas corpus.” (Dkt. No. 34-1 at 39); see
also Carter v. Giurbino, 385 F.3d 1194, 1198 (9th Cir. 2004)
(“Waltreus holds that issues actually raised and rejected on appeal
cannot be raised anew in a state petition for writ of habeas
corpus.”). Yet on direct appeal, Petitioner only challenged the
alleged suggestive lineup procedures in relation to his
insufficient evidence claim. (See Lodgments A1, A5, B1). He did
not separately argue that the allegedly tainted lineup was itself
a due process violation. (Id.).
7
The Court emphasizes that for the reasons discussed in this
Memorandum Decision and Order, the pending SAP would be denied even
if entirely subject to de novo review. Thompkins, 560 U.S. at 390.
9

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identification procedure was employed, and Arturo Frias, the only

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witness to identify Petitioner, had limited cognitive abilities.

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(SAP

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insufficient evidence to support the gang enhancements because only

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one of the two predicate acts presented to the jury was committed

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by a member of Alcoholics Causing Ruckus (“ACR”), and there was

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insufficient

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(Id.).

at

5).

In

Ground

evidence

to

Two,

Petitioner

determine

ACR’s

alleges

primary

there

was

activities.

Petitioner’s claims are without merit.

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10

1.

California Court of Appeal’s Opinion

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13

The California Court of Appeal rejected Petitioner’s challenge
to the sufficiency of the evidence of identity, stating:

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15

Viewed

in

the

light

most

favorable

to

the

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prosecution, we conclude that the evidence is sufficient

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to sustain [Petitioner’s] conviction.

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Frias positively identified [Petitioner] as the driver

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of the car involved in the robberies.

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identified [Petitioner] as the driver from a photographic

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six-pack

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[Petitioner] implicitly acknowledged his involvement in

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the crimes: in jail, three months after the robbery, he

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wrote a letter to an associate expressing confidence that

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“most

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dismissed [be]cause I had no gun.”

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private investigator was going to prompt “that fool” —

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the victim who had identified him — “to say that I hit

in

likely

the

days

I[’]m

after

getting

10

the

At trial, Arturo

He had previously

robbery.

the

gun

Moreover,

enhan[ce]ment

He wrote that a

1

him up in a party a month before the rob[b]ery and

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hopefully he does because I was busted a month before

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and if he does say that I[’]m going to ask for them to

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remove his testimony and if that happen[]s then I’ll be

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firme [be]cause he[’]s the only one who I.D. [identified]

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me.

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should be ok.”

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in this case.

The 2 other vict[i]ms never saw me so I think I
This evidence supports the jury’s verdict

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10

*
The

*

circumstances

*
of

the

identification

of

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[Petitioner] were addressed at trial, and the jury heard

12

evidence

13

prejudicial statements made by the officer conducting

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the photographic lineup.

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the circumstances of the identification compromised that

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identification.

17

record

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identification.

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conviction.’

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the identification and its weight are explored at length

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at trial, where eyewitness identification is believed by

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the trier of fact, that determination is binding on the

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reviewing court.

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is sufficient for proof of any fact.”

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identification

26

established that he was present and involved in the

27

robberies

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cannot

from

the

Frias

about

suggestive

and

The jury did not conclude that

“In the instant case, ‘there is in the

inescapable

fact

of

in-court

eyewitness

That alone is sufficient to sustain the

Next, when the circumstances surrounding

and

say

Arturo

Third, the evidence of a single witness

evidence,

indicated

that

the

Beyond this

[Petitioner’s]

consciousness

evidence
11

was

of

own

words

guilt.

insufficient

We
to

1

establish

2

robberies.

that

[Petitioner]

participated

in

the

3
4

(Lodgment A1 at 3-5 (citation omitted)).

5
6

The California Court of Appeal also determined there was

7

sufficient evidence to support the gang enhancements, stating:

8
9

The evidence was sufficient to support the true

10

finding on the gang enhancement allegation.

11

prosecution attempted to establish the requisite pattern

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of criminal activity with respect to ACR with evidence

13

of crimes committed by people named Andrew Rodriguez and

14

Roger Mendoza.

15

expert

16

examination in which Aguirre acknowledged that Rodriguez

17

had maintained he was a member of an associated gang,

18

Lott 13, and that another officer, purportedly the source

19

of information that Rodriguez was an ACR member, had

20

actually written down on an investigation card (a “gang

21

hard card”) that Rodriguez claimed to be a member of Lott

22

13.

23

Rodriguez to be an ACR member based on having spoken with

24

Rodriguez

25

Regardless of whether Rodriguez admitted to being a

26

member of ACR, the jury could reasonably conclude that

27

he was an ACR member.

28

being tried may also constitute one of the predicate

witness

[¶]

The

[Petitioner] points to testimony of gang
Detective

Eduardo

Aguirre

on

cross-

Aguirre, however, also testified that he understood

and

speaking

to

people

who

know

him.

Moreover, because the offense

12

1

offenses for the gang enhancement statute, even if the

2

Rodriguez evidence were to be considered insufficient,

3

[Petitioner]

4

insufficient evidence of two predicate acts to support

5

the gang enhancement allegation.

still

has

not

shown

that

there

was

6
7

Next,

[Petitioner]

contends

that

there

was

8

insufficient evidence that criminal acts were one of the

9

primary activities of ACR because Aguirre only listed a

10

series of criminal acts the gang had been involved in as

11

a response to the prosecutor’s question asking him to

12

state the primary activities of ACR. [Petitioner] claims

13

the evidence was deficient because Aguirre did not state

14

that criminal activity was one of the gang’s primary

15

activities,

16

Aguirre was asked, “What are the primary activities of

17

ACR?” and responded, “ACR, over the years, they've been

18

involved in shootings, robberies, stolen vehicles, gun

19

possessions, sales of narcotics, vandalism.”

20

to attach talismanic significance to the words “primary

21

activities”: the jury was entitled to understand this

22

response as an enumeration responsive to the specific

23

question concerning the gang’s primary activities.

but

24

we

find

*

this

*

argument

unpersuasive.

We decline

*

25

Here, . . . Aguirre testified that he was familiar

26

with the gang and that he had investigated shootings and

27

robberies

28

identified a number of specific criminal offenses in

that

ACR

members

13

had

committed,

and

he

1

response

2

activities. This testimony was supported by the evidence

3

of the charged offense, a coordinated street robbery

4

involving

5

testified about one ACR member’s conviction for gun

6

possession and another member’s conviction for robbery.

7

There

8

enhancement allegation.

was

to

a

question

multiple

ACR

sufficient

about

the

members.

evidence

gang’s

Second,

to

support

primary

Aguirre

the

gang

9
10

(Lodgment A1 at 5-7 (citations omitted)).

11
12

2.

Analysis

13
14

To review the sufficiency of the evidence in a habeas corpus

15

proceeding, the court must determine “whether, after viewing the

16

evidence in the light most favorable to the prosecution, any

17

rational trier of fact could have found the essential elements of

18

the crime beyond a reasonable doubt.”

19

U.S. 307, 319 (1979) (emphasis omitted); Parker v. Matthews, 132

20

S. Ct. 2148, 2152 (2012) (per curiam); see also Coleman v. Johnson,

21

132 S. Ct. 2060, 2065 (2012) (per curiam) (“[T]he only question

22

under Jackson is whether [the jury’s] finding was so insupportable

23

as to fall below the threshold of bare rationality.”).

24

reviewing court must consider all of the evidence admitted by the

25

trial court,’ regardless [of] whether that evidence was admitted

26

erroneously,” McDaniel v. Brown, 558 U.S. 120, 131 (2010) (per

27

curiam) (citation omitted), all evidence must be considered in the

28

light most favorable to the prosecution, Lewis v. Jeffers, 497 U.S.
14

Jackson v. Virginia, 443

“‘[A]

1

764, 782 (1990); Jackson, 443 U.S. at 319, and if the facts support

2

conflicting inferences, reviewing courts “must presume – even if

3

it does not affirmatively appear in the record – that the trier of

4

fact resolved any such conflicts in favor of the prosecution, and

5

must defer to that resolution.”

6

v. Smith, 132 S. Ct. 2, 6 (2011) (per curiam).

7

AEDPA, federal courts must “apply the standards of [Jackson] with

8

an additional layer of deference.”

9

1262, 1274 (9th Cir. 2005); Boyer v. Belleque, 659 F.3d 957, 964-

Jackson, 443 U.S. at 326; Cavazos
Furthermore, under

Juan H. v. Allen, 408 F.3d

10

65 (9th Cir. 2011).

These standards are applied to the substantive

11

elements of the criminal offense under state law.

12

U.S. at 324 n.16; Boyer, 659 F.3d at 964; see also Johnson, 132 S.

13

Ct. at 2064 (“Under Jackson, federal courts must look to state law

14

for the substantive elements of the criminal offense, but the

15

minimum amount of evidence that the Due Process Clause requires to

16

prove the offense is purely a matter of federal law.” (citation

17

and quotation marks omitted)).

Jackson, 443

18
19

a.

Robbery

20
21

Petitioner does not challenge the sufficiency of the evidence

22

to prove that a robbery was committed,8 but instead argues there

23
24
25
26
27
28

California law defines robbery as “the taking of personal
property in the possession of another against the will and from
the person or immediate presence of that person accomplished by
means of force or fear and with the specific intent permanently to
deprive such person of such property.” People v. Clark, 52 Cal.
4th 856, 943 (2011) (citation and internal quotation marks
omitted); P.C. § 211; see also People v. Magee, 107 Cal. App. 4th
188, 195 n.4 (2003) (“The elements of robbery are (1) the victim
had possession of property of some value, (2) the property was
8

15

1

was insufficient evidence for the jury to conclude he was one of

2

the robbers. (SAP at 5). The Court disagrees with this contention.

3
4

The jury heard evidence that on October 3, 2009, Mario Frias

5

(“Mario”), Arturo Frias (“Arturo”), Jesus Nunez and Victor Vazquez

6

were walking down a street when they were confronted by two men,

7

one of whom was armed with a pistol.

8

1830-32, 1846, 2143).

9

were from, which Mario and Nunez understood as asking if they were
“gang

11

“nowhere.”

12

“[l]et me have whatever you have in your pockets” and reached for

13

Mario’s pockets, but Mario slapped the man’s hands away and the

14

man hit Mario in the head with the pistol.

15

ran across the street to distract the men from his brothers.

16

1233-34).

17

(RT 1234-35).

18

while the driver remained inside and told the other men to “[m]ake

19

sure you get their stuff.”

20

demanded Mario give them what he had in his pockets and, after he

21

refused, they beat him, knocked him to the ground, and took his

23
24
25
26
27
28

or

The armed man asked the group where they

10

22

member[s]

(RT 1228-33, 1561, 1565-66,

something,”

and

Mario

(RT 1231-32, 1246, 1565).

and

Nunez

responded

The man then told Mario

(RT 1231, 1233).

Mario
(RT

At that point, Mario saw a green Toyota Camry pull up.
Two men jumped out of the car and approached Mario

(RT 1235, 1250, 1845).

The two men

taken from the victim or his or her personal presence, (3) the
property was taken against the will of the victim, (4) the taking
was by either force or fear, and (5) the property was taken with
the specific intent to permanently deprive the victim of the
property.”).
All robberies are second degree unless otherwise
specified in P.C. § 212.5(a) (first-degree robberies include, among
other things, robbery of an inhabited dwelling house) or P.C. §
212.5(b) (“Every robbery of any person while using an automated
teller machine or immediately after the person has used an
automated teller machine and is in the vicinity of the automated
teller machine is robbery of the first degree.”). P.C. § 212.5(c).
16

1

wallet.

2

were attacked by the two men who initially approached them, and

3

Arturo’s wallet was taken.

4

50).

5

1239-40, 1263, 2149).

6

the robbery and identified Petitioner as that person.9

7

46, 1851-52, 2108, 2120-21, 2183-84, 3029-30).

(RT 1236-38).

While this was happening, Arturo and Nunez

(RT 1238-39, 1565-67, 1843-44, 1849-

The attackers got into the Camry, which drove away.

(RT

Arturo observed the Camry’s driver during
(RT 1845-

8
9

Additionally, while incarcerated, Petitioner wrote several

10

letters that were discovered in a search of his cell.

(RT 1556-

11

59).

12

Petitioner described a plan to discredit Arturo’s testimony and

13

stated that Arturo was the only one to identify Petitioner, and

14

that if his testimony was removed Petitioner the “2 other two

15

victims never saw me[,] so I think that I should be ok.”

16

Petitioner also noted that “most likely [he was] getting the gun

17

enhancement dismissed [because] I had no gun.”

18

subsequent undated letter, Petitioner urged friends to manufacture

19

evidence to exonerate him of the gang enhancement by “show[ing]

20

that we [ACR and Lott 13] don’t get along.”

In one of these letters, which was dated December 30, 2009,

(CT 270).

(Id.).

In a

(CT 272-73).

21
22

Based

on

Arturo’s

identification

of

Petitioner

and

23

Petitioner’s “own words establish[ing] that he was present and

24

involved

25

guilt[,]” the California Court of Appeal held sufficient evidence

in

the

robberies

and

indicat[ing]

consciousness

of

26
27
28

Arturo referred to the vehicle as a Camaro, but identified the
picture of the Camry as being “exactly the car that night.” (RT
1845, 1255-56, 2133).
9

17

1

supported the jury’s conclusion that Petitioner participated in

2

the robberies.

3

conclusion, arguing the evidence against him was insufficient

4

because there were inconsistencies in the witnesses’ description

5

of the robbers and the only witness to identify Petitioner – Arturo

6

– had cognitive difficulties.

7

not rendered insufficient simply because there are discrepancies

8

in the eyewitnesses’ descriptions of the robber[s].”10

9

States v. Ginn, 87 F.3d 367, 369 (9th Cir. 1996).

(Lodgment A1 at 3-5).

Petitioner disputes this

(SAP at 5).

However, “evidence is

United

Rather, “it is

10

the responsibility of the jury - not the court - to decide what

11

conclusions should be drawn from evidence admitted at trial[,]”

12

Smith, 132 S. Ct. at 4; Matthews, 132 S. Ct. at 2152, and the Court

13

“‘must

14

credibility of witnesses, resolve evidentiary conflicts, and draw

15

reasonable inferences from proven facts by assuming that the jury

16

resolved all conflicts in a manner that supports the verdict.’”

17

Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997) (quoting Walters

18

v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995)).

19

surrounding Arturo’s identification of Petitioner were thoroughly

20

explored during Petitioner’s trial and were extensively argued to

21

the jury, which nevertheless convicted Petitioner.11

22

respect

the

province

of

24
25
26
27
28

jury

to

determine

the

Here, the issues

(See, e.g.,

Petitioner also complains that Arturo’s identification was based
on an impermissibly suggestive pretrial identification procedure.
(SAP at 5). As discussed below, this claim is without merit. In
any event, as noted above, in reviewing the sufficiency of the
evidence, the Court considers all of the evidence admitted,
including evidence allegedly erroneously admitted. Brown, 558 U.S.
at 131.
11
Arturo also identified Rodriguez and Cisneros as involved in
the robbery, but the jury did not convict these two defendants.
(RT 1832, 1843-48, 4813). This does not undermine the sufficiency
of the evidence against Petitioner.
See United States v.
10

23

the

18

1

RT 1811-14, 1826, 1873-74, 1876, 1882, 1885-86, 1899-1900, 2103-

2

04, 2108-10, 2114-19, 2438-96, 2702-63, 2768-77, 3009-12, 3013-23,

3

3947-4007).

4

determination that there was sufficient evidence to support the

5

jury’s conclusion that Petitioner participated in the robberies

6

was not contrary to, or an unreasonable application of, clearly

7

established

8

Chappell, 793 F.3d 1092, 1101 (9th Cir. 2015), cert. denied, 136

9

S. Ct. 1446 (2016); see also Ngo v. Giurbino, 651 F.3d 1112, 1114

10

(9th Cir. 2011) (“‘Circumstantial evidence and inferences drawn

11

from it may be sufficient to sustain a conviction.’” (citations

12

omitted)); Bruce v. Terhune, 376 F.3d 950, 957-58 (9th Cir. 2004)

13

(Jackson standard satisfied based on victim’s testimony since there

14

was no indication testimony was “physically impossible and simply

15

could not have occurred as described”); United States v. McClendon,

16

782 F.2d 785, 790 (9th Cir. 1986) (single eyewitness’s in-court

17

identification

18

sufficient

19

States v. Larios, 640 F.2d 938, 940 (9th Cir. 1981) (“The testimony

20

of one witness . . . is sufficient to uphold a conviction.”); Oliva

21

v.

22

(“‘Identification of the defendant by a single eyewitness may be

23

sufficient to prove the defendant’s identity as the perpetrator of

24

McClendon, 782 F.2d 785, 790 (9th Cir. 1986) (where eyewitness
identified two men – McClendon and Higgins – as present in getaway
car, and jury convicted McClendon but acquitted Higgins, “the fact
that the jury was less convinced of Higgins’ guilt may be curious,
[but] it does not undermine our finding that a ‘rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt’ from the evidence presented against McClendon.”
(quoting Jackson, 443 U.S. at 319)).

25
26
27
28

Under

federal

to

Hedgpeth,

of

these

law.

600

Jackson,

McClendon

support

F.

circumstances,

as

2d

19

U.S.

present

McClendon’s

Supp.

443

the

in

robbery

1067,

at

1087

state

319;

getaway

court’s

Boyer

car

conviction);

(C.D.

Cal.

v.

was

United

2009)

1

a crime.’” (citations omitted)), affirmed by, 375 F. App’x 697 (9th

2

Cir. 2010).

3
4

b.

Gang Enhancement

5
6

The California Street Terrorism Enforcement and Prevention

7

Act (“STEP Act”), P.C. §§ 186.20 et seq., is a statutory scheme

8

enacted to further the “eradication of criminal activity by street

9

gangs[.]”

P.C. § 186.21 (2010). The STEP Act “imposes various

10

punishments

11

including a sentencing enhancement on those who commit felonies

12

‘for the benefit of, at the direction of, or in association with

13

any criminal street gang.’”12

14

(2015) (quoting P.C. § 186.22(b); italics omitted).

15

defines

16

association of three or more persons with a common name or common

17

identifying sign or symbol; (2) [that] has as one of its primary

18

activities the commission of one or more of the criminal acts

19

enumerated in the statute;[13] and (3) includes members who either

20
21
22
23
24
25
26
27
28

a

on

individuals

“criminal

street

who

commit

gang-related

crimes

—

People v. Prunty, 62 Cal. 4th 59, 67

gang”

as

“(1)

. . .

The STEP Act
an

ongoing

To warrant a gang enhancement, California law requires the
prosecutor prove two elements beyond a reasonable doubt. First,
the prosecutor must show that Petitioner committed a felony “for
the benefit of, at the direction of, or in association with any
criminal street gang[.]”
P.C. § 186.22(b)(1) (2010); Emery v.
Clark, 643 F.3d 1210, 1214 (9th Cir. 2011) (per curiam). Second,
the prosecutor must show that Petitioner committed the crime “with
the specific intent to promote, further, or assist in any criminal
conduct by gang members[.]”
P.C. § 186.22(b)(1) (2010); Emery,
643 F.3d at 1214.
13
At the time of Petitioner’s offenses, the enumerated criminal
acts consisted of: assault with a deadly weapon or by means of
force likely to produce great bodily injury; robbery; unlawful
homicide or manslaughter; the sale, possession for sale,
transportation, manufacture, offer for sale, or offer to
12

20

1

individually or collectively have engaged in a ‘pattern of criminal

2

gang activity’ by committing, attempting to commit, or soliciting

3

two or more of the enumerated offenses (the so-called ‘predicate

4

offenses’)[14] during the statutorily defined period.”15

5

Hernandez, 33 Cal. 4th 1040, 1047 (2004) (footnotes added); People

6

v. Sengpadychith, 26 Cal. 4th 316, 319-20 (2001).

People v.

7
8

In Ground Two, Petitioner alleges there was insufficient

9

evidence to support his gang enhancements because the prosecution

10

did not demonstrate the predicate acts or primary activities

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

manufacture controlled substances; shooting at an inhabited
dwelling or occupied motor vehicle; discharging or permitting the
discharge of a firearm from a motor vehicle; arson; the
intimidation of witnesses and victims; grand theft; grand theft of
any firearm, vehicle, trailer, or vessel; burglary; rape; looting;
money laundering; kidnapping; mayhem; aggravated mayhem; torture;
felony extortion; felony vandalism; carjacking; the sale, delivery,
or transfer of a firearm; possession of a pistol, revolver, or
other firearm capable of being concealed upon the person; threats
to commit crimes resulting in death or great bodily injury; theft
and unlawful taking or driving of a vehicle; prohibited possession
of a firearm; carrying a concealed firearm; and carrying a loaded
firearm. P.C. § 186.22(e)(1-25), (31-33) (2010).
14
At the time of Petitioner’s offenses, a “pattern of criminal
gang activity” included the enumerated criminal acts listed in note
13 above as well as: felony theft of an access card or account
information; counterfeiting, designing, using, or attempting to
use an access card; felony fraudulent use of an access card or
account information; unlawful use of personal identifying
information to obtain credit, goods, services, or medical
information; and wrongfully obtaining Department of Motor Vehicles
documentation. P.C. § 186.22(e) (26-30) (2010).
15
To fall within the statutorily defined period, at least one of
the predicate offenses must have occurred “after the effective
date” of the STEP Act, September 26, 1988, and the last of the
predicate offenses must have occurred “within three years after a
prior offense.” P.C. § 186.22(e); People v. Loeun, 17 Cal. 4th 1,
8 (1998).
21

1

necessary to prove that ACR was a criminal street gang.

2

5).

(SAP at

The Court disagrees.

3
4

Expert witness Detective Eduardo Aguirre testified he has been

5

a police officer for a little over 19 years, during which time he

6

has worked extensively in gang units.16

7

participated in a 40-hour course on gang subcultures and various

8

seminars regarding gangs.

9

employment, Detective Aguirre has investigated over 500 murders

10

and thousands of shootings and robberies, and he has arrested gang

11

members for various crimes.

12

to gang members on a daily basis, talks to gang investigators in

13

his unit and in nearby cities to keep up on gang intelligence, and

14

is out in the community daily to keep up with gang trends and

15

rivalries.

16

talked to thousands of gang members about gang culture.

17

Detective Aguirre testified he is familiar with Alcoholics Causing

18

Ruckus or ACR, which began as a tagging crew but “elevated their

19

status to an actual gang” approximately four or five years before

20

trial.

21

investigated shootings and robberies that involved ACR members.

22

(RT 2195).

23

10 documented members, but are “at least 25 members deep.”

(RT 2188-89).

(RT 2188, 2192, 2779-81).

(RT 2189-90).

(RT 2190-91).

(RT 2192-95, 2800).

He has also

During his

Detective Aguirre talks

Detective Aguirre estimated he has
(Id.).

Detective Aguirre stated he had

Detective Aguirre indicated that ACR has approximately
(RT

24
25
26
27
28

Detective Aguirre explained he was originally hired by the City
of Compton, and worked in its gang unit for eight years. (RT 218889). He then joined the Los Angeles County Sheriff’s Department,
and had spent about eight years in its gang unit at the time of
trial. (RT 2189).
16

22

1

2195, 2801). Detective Aguirre described ACR’s claimed territory,17

2

indicated ACR has a common hand sign – the letters ACR – and

3

identified ACR’s rivals.

4

to a question regarding ACR’s primary activities, Detective Aguirre

5

responded “ACR, over the years, they’ve been involved in shootings,

6

robberies, stolen vehicles, gun possessions, sales of narcotics,

7

[and] vandalism.”

8

also presented “evidence of crimes committed by people named Andrew

9

Rodriguez and Roger Mendoza.”18

(RT 2196-98, 2803-05, 2819).

(RT 2198; see also RT 2806).

In response

The prosecution

(Lodgment A1 at 5; see also RT

10

2198-99).

Additionally, Detective Aguirre opined that Petitioner

11

was an ACR gang member known as Fatty.

12

Aguirre based this opinion on items he found in Petitioner’s home

13

as well as letters recovered from Petitioner’s jail cell.

14

2200-02).

(RT 2199-2201).

Detective

(RT

15
16

Petitioner initially contends the evidence was insufficient

17

to support his conviction because “[o]nly one of two predicate acts

18

was committed by a member of ACR,” as Andrew Rodriguez was a Lott

19

13 gang member and not an ACR member.19 (SAP at 5). This contention

20
21
22
23
24
25
26
27
28

Detective Aguirre explained that ACR’s territory is within the
territory claimed by Lott 13, a gang that allows ACR to operate in
its territory. (RT 2195-97).
18
Based on certified court records, Detective Aguirre testified
that Rodriguez’s crime was gun possession and Mendoza’s crime was
robbery. (RT 2198-99). Detective Aguirre identified Rodriguez as
associated with ACR, and noted that he committed his crime with a
Lott 13 gang member. (Id.). Detective Aguirre described Mendoza
as an ACR gang member who committed his crime with a Lott 13 gang
member. (RT 2199, 2423).
19
The SAP does not specify the predicate act to which Petitioner
refers, but he argued on direct review that Andrew Rodriguez was a
Lott 13 member, not an ACR member, and the Court assumes he intends
the same argument here. (See Lodgment A5 at 41; Lodgment B1 at
11-12; Lodgment A1 at 5-6). To the extent Petitioner intends to
17

23

1

fails.

2

Rodriguez was a Lott 13 gang member, Detective Aguirre testified

3

he worked on Rodriguez’s case and that in speaking to Rodriguez

4

and people who knew him, Rodriguez “was actually ACR[,]” (RT 2807-

5

10), and the jury was entitled to rely on such testimony.

6

132 S. Ct. at 4; Matthews, 132 S. Ct. at 2152; Jones, 114 F.3d at

7

1008; see also Hernandez, 33 Cal. 4th at 1047-48 (“[T]o prove the

8

elements of the criminal street gang enhancement, the prosecution

9

may . . . present expert testimony on criminal street gangs.”).

First, although there was evidence presented that Andrew

even

setting

aside

the

Rodriguez

evidence,

Smith,

10

Second,

there

was

11

sufficient evidence “establishing a ‘pattern of criminal gang

12

activity,’” since “the charged offense may serve as a predicate

13

offense.”

14

Cal. 2010); Sengpadychith, 26 Cal. 4th at 323; People v. Gardeley,

15

14 Cal. 4th 605, 621-25 (1997), disapproved of in part on other

16

grounds, People v. Sanchez, 63 Cal. 4th 665 (2016); see also People

17

v. Loeun, 17 Cal. 4th 1, 11 (1998) (“[T]he prosecution can establish

18

the requisite ‘pattern’ exclusively through evidence of crimes

19

committed contemporaneously with the charged incident.”).

Ratliff v. Hedgepeth, 712 F. Supp. 2d 1038, 1061 (C.D.

20
21

Petitioner also asserts that the prosecution improperly relied

22

on

Detective

23

activities

Aguirre’s

because

testimony

Detective

to

Aguirre

establish
provided

ACR’s
no

primary

evidence

to

24
25
26
27
28

raise any other argument beyond that discussed herein, his
conclusory contentions are insufficient to warrant habeas corpus
relief. See Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011)
(A “cursory and vague claim cannot support habeas relief.”); James
v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations
which are not supported by a statement of specific facts do not
warrant habeas relief.”).
24

1

support his testimony.

2

California Court of Appeal noted, Detective Aguirre based his

3

testimony on, inter alia, his investigations of shootings and

4

robberies involving ACR members as well as “evidence of the charged

5

offense,

6

members” and Rodriguez’s and Mendoza’s convictions.

7

at 7; see also RT 2195-99).

8

than

9

Sengpadychith, 26 Cal. 4th at 324 (expert testimony can provide

10

sufficient proof of gang’s primary activities); Gardeley, 14 Cal.

11

4th at 620 (Detective’s testimony regarding gang and its primary

12

activities, which was based on “conversations with the defendants

13

and with other [gang] members, his personal investigations of

14

hundreds

15

information

16

agencies[,]” was sufficient evidence of gang’s primary activities);

17

People v. Margarejo, 162 Cal. App. 4th 102, 107–08 (2008) (gang

18

expert’s testimony regarding defendant’s gang’s primary activities

19

provided sufficient evidence to support jury’s conclusion that

20

defendant’s gang met the statutory definition of a criminal street

21

gang); People v. Martinez, 158 Cal. App. 4th 1324, 1330 (2008)

22

(Gang

23

investigations and personal conversations with members, and reviews

24

of reports suffices to establish the foundation for his testimony”

25

regarding the gang’s primary activities); People v. Vy, 122 Cal.

26

App. 4th 1209, 1226 (2005) (“[P]roof of the ‘primary activities’

27

element was satisfied through testimony by a police gang expert,

28

Detective Ta.

a

(SAP at 5; Reply at 10).

coordinated

sufficient

of

to

expert’s

ACR’s

committed

his

“eight

robbery

involving

multiple

ACR

(Lodgment A1

Detective Aguirre’s testimony is more

establish

crimes
from

street

However, as the

by

colleagues

years

primary

gang
and

dealing

activities.

members,

various

with

the

law

as

well

See

as

enforcement

gang,

including

He gave significant expert testimony that [the gang]
25

1

was engaged in criminal actions that constituted predicate crimes

2

under the gang statute.”); People v. Duran, 97 Cal. App. 4th 1448,

3

1465 (2002) (“The testimony of a gang expert, founded on his or

4

her conversations with gang members, personal investigation of

5

crimes committed by gang members, and information obtained from

6

colleagues in his or her own and other law enforcement agencies,

7

may be sufficient to prove a gang’s primary activities.”).

8
9

Accordingly, the state court’s rejection of Ground Two was

10

neither contrary to, or an unreasonable application of, clearly

11

established federal law.

12
13
14

B.

Petitioner

Is

Not

Entitled

To

Habeas

Relief

On

His

Instructional Error Claim

15
16

Instructional error warrants federal habeas relief only if

17

the “‘instruction by itself so infected the entire trial that the

18

resulting conviction violates due process[.]’”

19

Sarausad, 555 U.S. 179, 191 (2009) (citation and internal quotation

20

marks omitted); Middleton v. McNeil, 541 U.S. 433, 437 (2004) (per

21

curiam).

22

Instead, Petitioner must show there was a “reasonable likelihood

23

that the jury has applied the challenged instruction in a way that

24

violates the Constitution.”

25

and internal quotation marks omitted); Sarausad, 555 U.S. at 190-

26

91; see also Cupp v. Naughten, 414 U.S. 141, 146 (1973) (“Before a

27

federal court may overturn a conviction resulting from a state

28

trial in which [an allegedly faulty] instruction was used, it must

Waddington v.

The instruction must be more than merely erroneous.

McNeil, 541 U.S. at 437 (citations

26

1

be established not merely that the instruction is undesirable,

2

erroneous or even ‘universally condemned,’ but that it violated

3

some right which was guaranteed to the defendant by the Fourteenth

4

Amendment.”).

5

instruction ‘may not be judged in artificial isolation,’ but must

6

be considered in the context of the instructions as a whole and

7

the trial record.”

8

(citation omitted); Sarausad, 555 U.S. at 191. Where the alleged

9

error is the failure to give an instruction, the burden on the

Further,

“[i]t

is

well

established

that

the

Estelle v. McGuire, 502 U.S. 62, 72 (1991)

10

Petitioner is “‘especially heavy.’”

Sarausad, 555 U.S. at 191

11

(quoting Henderson v. Kibbe, 431 U.S. 145, 155 (1977)).

12

if a constitutional error occurred, federal habeas relief remains

13

unwarranted unless the error caused prejudice, i.e., unless it had

14

a substantial and injurious effect or influence in determining the

15

jury’s verdict.

16

curiam); Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).

Moreover,

Hedgpeth v. Pulido, 555 U.S. 57, 61-62 (2008) (per

17
18

In

Ground

Three,

Petitioner

argues

that

the

trial

court

19

unconstitutionally directed a verdict against him on the robbery

20

counts by instructing the jury that it could conclude that he was

21

one of the robbers “on the sole basis that Petitioner’s alleged

22

membership in a gang established his identity in the offenses.”

23

(SAP at 6).

24

modification of model jury instruction CALCRIM No. 1403 to allow

25

the jury to consider evidence of gang activity in deciding “[t]he

26

identity of the person who committed the” robberies.

27

Reporter’s Transcript (Nov. 29, 2010) (“ART”) at 15-16; CT 357).

28

\\

Specifically, Petitioner challenges the trial court’s

27

(Augmented

1

1.

Background

2
3
4

The California Court of Appeal found the following facts
underlying this claim:

5
6

The jury was instructed with a version of CALCRIM

7

No. 1403 that directed jurors that they could consider

8

evidence of gang activity for the limited purpose of

9

deciding intent, purpose, and knowledge relative to the

10

gang enhancement allegation; motive; or “The identity of

11

the person who committed the crimes.”[20]

12

authorized

13

credibility

14

information relied upon by an expert witness in reaching

15

an opinion.

to

use

and

the

when

evidence
it

to

considered

The jury was

evaluate
the

witness

facts

The jury was instructed not to consider the

16
17
20

The modified version of CALCRIM No. 1403 stated:

18
19
20
21
22
23
24
25
26
27
28

and

You may consider evidence of gang activity only
for the limited purpose of deciding whether the
defendant acted with the intent, purpose, and
knowledge that are required to prove the gangrelated allegations, or the defendant had a motive
to commit the crimes charges, or the identity of
the person who committed the crimes. [¶] You may
also consider this evidence when you evaluate the
credibility or believability of witnesses and when
you consider the facts and information relied on by
an expert witness in reaching his or her opinion.
[¶]
You may not consider this evidence for any
other purpose.
You may not conclude from this
evidence that the defendant is a person of bad
character or that he has a disposition to commit
crime.
(ART at 15-16; CT 357).
28

1

gang

2

disposition, or for any other purpose.

evidence

as

evidence

of

a

bad

character

or

3
4

(Lodgment A1 at 9 (footnote added)).

5
6

2.

California Court of Appeal’s Opinion

7
8
9

The California Court of Appeal rejected Petitioner’s challenge
to the modified instruction, stating:

10
11

There is no reasonable likelihood that the jury

12

improperly

13

suggests.

14

that

15

determined the question of identity; it did not compel

16

a conclusion of identity if the jury found [Petitioner]

17

to

18

conjunction with CALCRIM No. 315, which instructed the

19

jury on all the considerations involved in evaluating

20

witness

21

likelihood that the jury relied upon this instruction to

22

use the gang evidence improperly.

it

be

a

applied

the

instruction

[Petitioner]

This limiting instruction informed the jury
could

gang

consider

member.

identifications,

the

gang

evidence

Particularly

we

23
24

as

(Lodgment A1 at 9-10).

25
26
27
28
29

find

when

no

when

read

it

in

reasonable

1

3.

Analysis

2
3

A trial judge “may not direct a verdict for the State, no

4

matter how overwhelming the evidence.”

5

U.S. 275, 277 (1993); see also United States v. Martin Linen Supply

6

Co., 430 U.S. 564, 572-73 (1977) (A “trial judge is prohibited from

7

entering a judgment of conviction or directing the jury to come

8

forward with such a verdict, regardless of how overwhelmingly the

9

evidence

may

point

in

that

Sullivan v. Louisiana, 508

direction.”

(citations

omitted)).

10

Rather, the Sixth and Fourteenth Amendments “require criminal

11

convictions to rest upon a jury determination that the defendant

12

is guilty of the crime with which he is charged, beyond a reasonable

13

doubt.”

14

also In re Winship, 397 U.S. 358, 364 (1970) (“[T]he Due Process

15

Clause protects the accused against conviction except upon proof

16

beyond a reasonable doubt of every fact necessary to constitute

17

the

18

relieving States of this burden violate a defendant’s due process

19

rights.”

20

curiam); Francis v. Franklin, 471 U.S. 307, 326 (1985); see also

21

Evanchyk v. Stewart, 340 F.3d 933, 939 (9th Cir. 2003) (“It is a

22

violation of due process for a jury instruction to omit an element

23

of the crime.”).

United States v. Gaudin, 515 U.S. 506, 509-10 (1995); see

crime

with

which

he

is

charged.”).

“Jury

instructions

Carella v. California, 491 U.S. 263, 265 (1989) (per

24
25

Here,

contrary

to

Petitioner’s

contention,

the

modified

26

version of CALCRIM 1403 did not direct a verdict against Petitioner

27

on the robbery counts or otherwise lessen the prosecution’s burden

28

of proof.

Rather, as the California Court of Appeal recognized,
30

1

the “limiting instruction informed the jury that it could consider

2

the gang evidence when it determined the question of identity; it

3

did

4

[Petitioner] to be a gang member.”

5

the jury was instructed, inter alia, on the elements of robbery

6

and that the prosecution has the burden of proving those elements

7

beyond a reasonable doubt.

8

also

9

testimony, and particularly that “[t]he People have the burden of

10

proving beyond a reasonable doubt that it was the defendant who

11

committed the crime.

12

must find the defendant not guilty.”

13

Accordingly,

14

prosecution’s burden of proof, Victor v. Nebraska, 511 U.S. 1, 14-

15

15 (1994); Lisenbee v. Henry, 166 F.3d 997, 999 (9th Cir. 1999),

16

and nothing in CALCRIM 1403 altered that burden.

17

presumed to follow its instructions,” Weeks v. Angelone, 528 U.S.

18

225, 234 (2000); Zafiro v. United States, 506 U.S. 534, 540-41

19

(1993), and to attend to the particular language of an instruction,

20

United States v. Olano, 507 U.S. 725, 740 (1993); Franklin, 471

21

U.S. at 324 n.9, Petitioner has not demonstrated a constitutional

22

violation.

23

232 F.3d 704, 714-15 (9th Cir. 2000) (A jury instruction on how to

24

evaluate evidence did not shift the prosecution’s burden of proof

25

in any way.

26

that the prosecution bore the burden of proving every element of

27

the offense beyond a reasonable doubt.

28

instructed on the burden of proof, and there was no error.”).

not

compel

a

conclusion

specifically

the

of

identity

if

the

(Lodgment A1 at 9).

(ART 7-10; CT 351-52).

instructed

on

jury

how

to

found

Instead,

The jury was

evaluate

eyewitness

If the People have not met this burden, you

jury

was

properly

(RT 4230-32; CT 376-77).
instructed

regarding

the

As “[a] jury is

Bruce, 376 F.3d at 955-56; see also Drayden v. White,

“The jury was separately and explicitly instructed

31

Thus, the jury was properly

1

As such, the state court’s denial of Ground Three was not

2

contrary to, or an unreasonable application of, clearly established

3

federal law.

4
5

C.

6

Petitioner

Is

Not

Entitled

To

Habeas

Relief

On

His

Confrontation Clause And Due Process Claims

7
8

In Ground Four(a), Petitioner contends the admission of gang

9

expert Detective Aguirre’s testimony that Petitioner admitted to

10

other non-testifying police investigators that he was a Lott 13

11

gang member violated Petitioner’s right to confront the witnesses

12

against him.

13

the trial court denied him due process of law when it admitted

14

Detective

15

testimony.21

(SAP at 6-16).

Aguirre’s
(Id.).

In Ground Four(b), Petitioner argues

“[irrelevant]

and

prejudicial”

expert

Petitioner’s contentions are without merit.22

16
17
18
19
20
21
22
23
24
25
26
27
28

Petitioner also suggests he was denied equal protection of the
law, but does not explain why this is so, and his vague, conclusory
and unsupported assertion is manifestly insufficient to warrant
habeas corpus relief. Greenway, 653 F.3d at 804; James, 24 F.3d
at 26.
22
A federal court, in conducting habeas review, is limited to
deciding whether a state court decision violates the Constitution,
laws or treaties of the United States.
28 U.S.C. § 2254(a);
Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam); McGuire,
502 U.S. at 67-68. Federal habeas corpus relief “does not lie for
errors of state law.” Jeffers, 497 U.S. at 780; see also Wilson
v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (“[I]t is only
noncompliance with federal law that renders a State’s criminal
judgment susceptible to collateral attack in the federal courts.”
(emphasis in original)).
Therefore, to the extent Petitioner’s
claim can be read as alleging that admission of the gang expert’s
testimony violated state law (see SAP at 9-11), such a claim – or
any other state law claim – is not cognizable in this proceeding
and will not be further addressed.
See Williams v. Borg, 139 F.3d
737, 740 (9th Cir. 1998) (Federal habeas relief is available “only
for constitutional violation, not for abuse of discretion.”).
21

32

1

1.

Los Angeles County Superior Court’s Opinion

2
3

The Los Angeles County Superior Court did not specifically

4

discuss

the

Confrontation

or

5

Due

Process

Clauses,

but

denied

Petitioner’s claims, stating:

6
7

[Detective] Eduardo Aguirre properly relied on the

8

Petitioner[’]s admission of gang membership in forming

9

his opinion that the Petitioner was a gang member and the

10

crime was committed for the benefit of the gang.

11

Evid.

12

information made known to him, whether admissible or not,

13

that is of a type that may reasonably [be] relied upon

14

by an expert in forming his opinion.

15

admission of gang membership to a police officer is that

16

type of information.

17

admission

18

pursuant to [Cal. Evid. Code §] 1220.

Code

§

of

801(b)]

gang

permits

an

expert

to

[Cal.

rely

on

The Petitioner’s

In addition[,] the Petitioner’s
membership

is

admissible

hearsay

19
20

(Dkt. No. 34-1 at 39).23

21

\\

22

\\

23
24
25
26
27
28

Although the Superior Court did not specifically discuss the
federal aspects of the claims Petitioner raised, the Court presumes
the Superior Court denied his Confrontation Clause and Due Process
claims on the merits, see Johnson v. Williams, 133 S. Ct. 1088,
1096 (2013) (“When a state court rejects a federal claim without
expressly addressing that claim, a federal habeas court must
presume that the federal claim was adjudicated on the merits — but
that presumption can in some limited circumstances be rebutted.”),
and Petitioner has not rebutted this presumption.
23

33

1

2.

Analysis

2
3

a.

Confrontation Clause

4
5

The Sixth Amendment’s Confrontation Clause provides that “[i]n

6

all criminal prosecutions, the accused shall enjoy the right . . .

7

to be confronted with the witnesses against him. . . .”

8

Const., Amend. VI.

9

testimonial statements of a witness who did not appear at trial

10

unless he was unavailable to testify, and the defendant . . . had

11

a

12

Washington, 541 U.S. 36, 53-54 (2004); Davis v. Washington, 547

13

U.S. 813, 821 (2006).

The Confrontation Clause applies only to

14

“‘witnesses’

against

the

15

testimony.’”

Crawford, 541 U.S. at 51 (citation omitted); Davis,

16

547 U.S. at 823-24.

17

declaration or affirmation made for the purpose of establishing or

18

proving some fact.”

19

internal punctuation omitted); Davis, 547 U.S. at 824.

20

Davis court explained:

prior

U.S.

The Confrontation Clause bars “admission of

opportunity

for

cross-examination.”

accused,

i.e.,

Crawford

those

who

v.

‘bear

“‘Testimony,’ in turn, is typically a solemn

Crawford, 541 U.S. at 51 (citation and some
As the

21
22

[a] critical portion of [Crawford’s] holding . . . is

23

the phrase “testimonial statements.”

24

this sort cause the declarant to be a “witness” within

25

the meaning of the Confrontation Clause.

26

testimonial character of the statement that separates it

27

from other hearsay that, while subject to traditional

28
34

Only statements of

It is the

1

limitations upon hearsay evidence, is not subject to the

2

Confrontation Clause.

3
4

Davis, 547 U.S. at 821 (citation omitted).

5

statements do not implicate the Confrontation Clause.

6

California, 554 U.S. 353, 376 (2008); Whorton v. Bockting, 549 U.S.

7

406, 420 (2007).

8

the

9

establishing the truth of the matter asserted.”

use

of

Thus, nontestimonial
Giles v.

Moreover, the Confrontation Clause “does not bar

testimonial

statements

for

purposes

other

than

Crawford, 541 U.S.

10

at 59 n.9; see also United States v. Wahchumwah, 710 F.3d 862, 871

11

(9th Cir. 2013) (Crawford “applies only to testimonial hearsay,

12

and ‘does not bar the use of testimonial statements for purposes

13

other

14

(citation

15

violation is subject to harmless error analysis.

16

Arsdall,

17

violation is harmless, and does not justify habeas relief, unless

18

it had substantial and injurious effect or influence in determining

19

the jury’s verdict.

20

F.3d 1098, 1114 (9th Cir. 2011).

than

establishing
omitted)).

475

U.S.

673,

the

truth

of

Additionally,

684

(1986).

the
a

A

matter

asserted.’”

Confrontation

Clause

Delaware v. Van

Confrontation

Clause

Brecht, 507 U.S. at 623; Ocampo v. Vail, 649

21
22

Here, Petitioner complains his Confrontation Clause rights

23

were violated when gang expert Detective Aguirre testified that

24

Petitioner admitted to several officers that he was Fatty from Lott

25

13.

26

Court has not clearly established that the admission of out-of-

27

court statements relied on by an expert violates the Confrontation

28

Clause.”

(RT 2421-22).

This contention is without merit.

“The Supreme

Hill v. Virga, 588 F. App’x 723, 724 (9th Cir. 2014),
35

1

cert. denied, 135 S. Ct. 2355 (2015); see also Lopez v. Davey, 2015

2

WL 4776434, *18 (N.D. Cal. 2015) (“There is no clearly established

3

Supreme Court authority that admission of hearsay statements relied

4

on by an expert violates the Confrontation Clause.”); Castillo v.

5

Lewis, 2015 WL 10401594, *13 (C.D. Cal. 2015) (“[T]o date the

6

Supreme Court has not held that the use of testimonial hearsay

7

evidence as a basis for expert opinion violates the Confrontation

8

Clause.”), report and recommendation adopted by, 2016 WL 837891

9

(C.D. Cal. 2016); Watts v. Brazelton, 2013 WL 2317793, *11 (C.D.

10

Cal.

2013)

(“[N]o

11

admission

12

Confrontation

13

rejection of Petitioner’s Confrontation Clause claim cannot have

14

been

15

established federal law.

16

126 (2008) (“Because our cases give no clear answer to the question

17

presented,

state

court

18

unreasonabl[y] appli[ed] clearly established Federal law.

Under

19

the

20

unauthorized.” (citation and internal quotation marks omitted;

21

brackets in original)); Carey v. Musladin, 549 U.S. 70, 77 (2006)

22

(“Given the lack of holdings from this Court. . . , it cannot be

23

said

24

established Federal law.’” (citation omitted)); Stenson v. Lambert,

25

504 F.3d 873, 881 (9th Cir. 2007) (“Where the Supreme Court has

26

not addressed an issue in its holding, a state court adjudication

27

of the issue not addressed by the Supreme Court cannot be contrary

of

expert

.

explicit

the

to,

.

or

.

state

based

establishe[s]

on

unreasonable

hearsay
the

that

the

violates

the

California

application

of,

court’s

clearly

See Wright v. Van Patten, 552 U.S. 120,

cannot

of

case

Accordingly,

an

it

terms

Court

opinion

Clause.”).

contrary

that

Supreme

§

court

be

said

2254(d)(1),

that

therefore,

‘unreasonabl[y]

28
36

the

relief

appli[ed]

is

clearly

1

to, or an unreasonable application of, clearly established federal

2

law.”).

3
4

Even if this was not the case, the Court need not address

5

whether

Detective

Aguirre’s

disputed

testimony

violated

the

6

Confrontation Clause because any possible error was harmless.

7

Brecht, 507 U.S. at 623.

8

admission, Detective Aguirre never opined that Petitioner was a

9

Lott 13 gang member.

In particular, despite Petitioner’s

Instead, based on items recovered from

10

Petitioner’s home and jail cell,24 Detective Aguirre concluded

11

Petitioner was a member of the ACR gang, not Lott 13.25

12

2200).

13

gang moniker was Fatty, he based this opinion primarily on evidence

14

he recovered from Petitioner’s home and a letter Petitioner signed,

15

all of which referred to him as Fatty from ACR.

(RT 2199-

Although Detective Aguirre did opine that Petitioner’s

(CT 270-71; (RT

16
17
18
19
20
21
22
23
24
25
26
27
28

These items included a letter found in Petitioner’s jail cell
which he signed “Edgar Faty” and “Still Alcoholic.” (CT 270-71;
RT 2200).
Petitioner signed another letter Edgar “Still an
Alcoholic catching respect.” (RT 2201). Additionally, a mousepad
and a business card recovered from Petitioner’s home both said
“Fatty ACR.” (RT 2201-02). Moreover, Detective Aguirre identified
Petitioner in a photograph in which Petitioner was “throwing up
ACR, hand signs.” (RT 2208). Detective Aguirre also testified
about ACR graffiti with three different monikers, including
“Fatty,” which Detective Aguirre stated was a “roster” signifying
that ACR was “present” in the area and that “Fatty” – i.e.,
Petitioner – was “active.”
(RT 2430-32).
Finally, in another
letter Petitioner wrote while he was in jail, Petitioner urged his
friends to manufacture evidence that would exonerate him on the
pending gang enhancement by showing that “we,” i.e., ACR members,
do not get along with Lott 13 members. (CT 272-73).
25
Detective Aguirre explained that Lott 13 and ACR are allies.
(RT 2422, 2425-26, 2786; see also RT 2435-37). Detective Aguirre
also testified that ACR members have sometimes moved on to Lott
13, and Lott 13 allows ACR to operate in its territory. (RT 2195,
2197, 2797).
24

37

1

2200-02).

2

Petitioner’s Lott 13 admission, and as Petitioner’s statement that

3

he was Fatty was cumulative of other evidence admitted at trial,

4

Petitioner

5

disputed

6

influence in determining the jury’s verdict.

7

623; see also Woods v. Sinclair, 764 F.3d 1109, 1125-26 (9th Cir.

8

2014) (Given the cumulative nature of the improperly admitted

9

statements, petitioner “cannot establish prejudice as a result of

10

the Confrontation Clause violation, and he is not entitled to

11

habeas relief on this issue.”), cert. denied, 135 S. Ct. 2311

12

(2015); Whelchel v. Washington, 232 F.3d 1197, 1210-11 (9th Cir.

13

2000) (Confrontation Clause error was harmless when improperly

14

admitted evidence was “merely cumulative”).

Thus,

cannot

testimony

because

show
had

Detective

that
a

Aguirre

admission

substantial

of
and

did

not

Detective
injurious

rely

on

Aguirre’s
effect

or

Brecht, 507 U.S. at

15
16

b.

Due Process

17
18

“Under AEDPA, even clearly erroneous admissions of evidence

19

that render a trial fundamentally unfair may not permit the grant

20

of federal habeas corpus relief if not forbidden by ‘clearly

21

established Federal law,’ as laid out by the Supreme Court.” Holley

22

v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (quoting 28

23

U.S.C. § 2254(d)).

24

regarding the admission of evidence as a violation of due process”

25

and “has not yet made a clear ruling that admission of irrelevant

26

or overtly prejudicial evidence constitutes a due process violation

27

sufficient to warrant issuance of the writ.”

28

state court’s rejection of Petitioner’s due process claim cannot

“The Supreme Court has made very few rulings

38

Id.

Therefore, the

1

be

2

established federal law.

3

555 F.3d 742, 761-62 (9th Cir. 2009).

contrary

to,

or

an

unreasonable

application

of,

clearly

28 U.S.C. § 2254(d)(1); Moses v. Payne,

4
5

Even setting aside the “clearly established federal law”

6

issue, Petitioner’s due process claim is without merit.

7

petitioner bears a heavy burden in showing a due process violation

8

based on an evidentiary decision.”

9

1172 (9th Cir. 2005), as amended, 421 F.3d 1154 (9th Cir. 2005).

10

“‘The admission of evidence does not provide a basis for habeas

11

relief

12

violation of due process.’”

13

omitted); Gonzalez v. Knowles, 515 F.3d 1006, 1011 (9th Cir. 2008).

14

In the context of a claim of improperly-admitted evidence, “[a]

15

writ of habeas corpus will be granted . . . only where the

16

‘testimony is almost entirely unreliable and . . . the factfinder

17

and

18

recognize, and take due account of its shortcomings.’”

19

Olivarez, 292 F.3d 939, 956 (9th Cir. 2002) (citation omitted).

20

“Only if there are no permissible inferences the jury may draw from

21

evidence

22

Woodford, 334 F.3d 862, 887 (9th Cir. 2003) (emphasis in original);

23

Houston v. Roe, 177 F.3d 901, 910 n.6 (9th Cir. 1999).

24

the evidence must ‘be of such quality as necessarily prevents a

25

fair trial[,]’” Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir.

26

1991) (emphasis in original; citation omitted); Randolph v. People

27

of the State of Cal., 380 F.3d 1133, 1147-48 (9th Cir. 2004), which

28

can only occur if the admission of the evidence had a “‘substantial

unless

the

it

adversary

can

its

rendered

system

admission

the

“A habeas

Boyde v. Brown, 404 F.3d 1159,

trial

fundamentally

unfair

in

Holley, 568 F.3d at 1101 (citations

will

not

violate

39

be

due

competent

process.”

to

uncover,

Mancuso v.

Alcala

v.

“Even then,

1

and

2

verdict.’”

3

also Plascencia v. Alameida, 467 F.3d 1190, 1203 (9th Cir. 2006)

4

(“[T]he

5

Plascencia’s due process rights” since “[e]ven if the admission of

6

the [evidence] was improper, the error could not have had ‘a

7

substantial and injurious effect on the jury’s verdict.’” (citation

8

omitted)).

injurious

effect

or

influence

in

determining

the

jury’s

Brecht, 507 U.S. at 623 (1993) (citation omitted); see

admission

of

the

challenged

evidence

did

not

violate

9
10

Here, “since evidence of [P]etitioner’s gang membership was

11

clearly

relevant

to

the

gang

enhancement

charge[s]

against

12

[P]etitioner, . . . [P]etitioner was not denied due process of law

13

when evidence regarding his gang membership was admitted into

14

evidence.”

15

States v. Takahashi, 205 F.3d 1161, 1164 (9th Cir. 2000) (“Evidence

16

of gang affiliation is admissible when it is relevant to a material

17

issue in the case.”); People v. Williams, 170 Cal. App. 4th 587,

18

609 (2009) (“Gang evidence, including expert testimony, is relevant

19

and admissible to prove the elements of the substantive gang crime

20

and gang enhancements.”); Hernandez, 33 Cal. 4th at 1049 (“Evidence

21

of the defendant’s gang affiliation — including evidence of the

22

gang’s

23

practices, criminal enterprises, rivalries, and the like — can help

24

prove identity, motive, modus operandi, specific intent, means of

25

applying force or fear, or other issues pertinent to guilt of the

26

charged crime.”).

Ratliff, 712 F. Supp. 2d at 1065; see also United

territory,

membership,

27
28
40

signs,

symbols,

beliefs

and

1

For all these reasons, the state court’s rejection of Ground

2

Four was not contrary to, or an unreasonable application of,

3

clearly established federal law.

4
5

D.

6

Petitioner

Is

Not

Entitled

To

Habeas

Relief

On

His

Impermissibly Suggestive Pretrial Identification Claim

7
8
9
10

In

Ground

impermissibly

Five,

suggestive

Petitioner

contends

photographic

denied him due process of law.

the

use

identification

of

an

procedure

(SAP at 6, 16-33).

11
12

1.

Background

13
14

The robberies occurred on October 3, 2009.

(RT 1228-33, 1561,

15

1565-66, 1830-32, 1846, 2143).

16

Aguirre

17

photographic

18

1851-52, 2183-84, 3006).

19

lineup, Detective Aguirre read Arturo a standard admonition in

20

English and Spanish.27

interviewed
lineup

Arturo

On October 9, 2009, Detective

Frias

containing

and

showed

Petitioner’s

him

a

six-pack

photograph.26

(RT

Before showing Arturo the photographic

(RT 3015-17).

On cross-examination,

21
22
23
24
25
26
27
28

In addition to the six-pack photographic lineup containing
Petitioner’s picture, Detective Aguirre showed Arturo multiple sixpack photographic lineups on November 5, 2009. (RT 2183-87). Any
further reference to “the photographic lineup” refers to the
October 9, 2009, photographic lineup containing Petitioner’s
picture, which is the lineup relevant to Ground Five.
27
While the photographic lineup, including the standard
admonition, was in evidence before the jury, it is not part of the
record before this Court.
(RT 2183-84, 3904).
Similarly,
Detective Aguirre recorded the October 9, 2009 interview with
Arturo, but it is not part of the record. (RT 3033-34). Therefore,
the Court is unaware of exactly what Detective Aguirre told
26

41

1

Detective Aguirre conceded that in addition to the admonition, he

2

told Arturo that he was going to show him the driver.28

3

After several minutes, Arturo picked out Petitioner’s photograph

4

from the lineup, identifying him as the green car’s driver.29

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

Petitioner.
However, the record does contain an
Detective Aguirre read to Mario Frias, which stated:

[DC]:

23

26
27
28

admonition

(CT 330; see also RT 1534-35). Because Detective Aguirre indicated
he read the admonition to Arturo from a form that is provided to
investigators before they show six-pack photographic lineups to
witnesses and the same admonition is read in every case in which a
witness is shown a photographic lineup (RT 2184, 2510-11), it is
reasonable to assume that this is the admonition Detective Aguirre
read Arturo, though this assumption has no bearing on the outcome
of this case.
28
The following colloquy occurred between Petitioner’s defense
counsel (“DC”) and Detective Aguirre (“Det.”):

22

25

(RT

You’ll be asked to look at a group of photographs. The
fact that the photographs are shown to you should not
influence your [judgment]. You should not conclude or
guess that the photographs contain the picture of the
person that committed the crime. You are not obligated
to identify anyone.
It is just as important to free
innocent persons from suspicion as to identify guilty
parties.
Please do not discuss the case with other
witnesses or indicate in any way that you have identified
someone. Do you understand that?

21

24

(RT 3018).

[Det.]:
[DC]:
[Det.]:

And specifically what you said to [Arturo] was, I’m
going to show you, you know, some photographs. And
if you see him, tell me. Okay. Tell me which one
it was. Okay? And no, no hurry. Take your time.
Well, you said that the – the fat one that was in
the car, you didn’t take a good look at him. But
I’m going to show him to you see anyone?
Yes.
That’s what you told him. You told him you were
going to show the driver to him, didn’t you?
Yes.

(RT 3018).
29
Arturo initially dismissed four of the six photographs and
focused on the first two photos in the array. (RT 3018). Detective
Aguirre then covered the four rejected photos and told Arturo to
42

1

1851-52, 2183-84, 3029-30).

2

Petitioner as the green car’s driver.

At trial, Arturo also identified
(RT 1845-46).

3
4

2.

Analysis

5
6

“[C]onvictions based on eyewitness identification at trial

7

following a pretrial identification . . . will be set aside on that

8

ground only if the [pretrial] identification procedure was so

9

impermissibly suggestive as to give rise to a very substantial

10

likelihood of irreparable misidentification.”

11

States, 390 U.S. 377, 384 (1968); see also Perry v. New Hampshire,

12

565 U.S. 228, 238-39 (2012) (“[D]ue process concerns arise only

13

when law enforcement officers use an identification procedure that

14

is both suggestive and unnecessary.”).

15

misidentification

16

process. . . .”

17

to successfully challenge identification testimony, a defendant

18

must

19

identification procedures were so unnecessarily suggestive as to

20

give rise to a substantial likelihood of misidentification.

21

565 U.S. at 239; Biggers, 409 U.S. at 198.

22

procedure

23

identification testimony is not required.

24

Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Biggers, 409 U.S.

25

at 199.

26

‘totality of the circumstances’ the identification was reliable

show

is

which

violates

a

Simmons v. United

“It is the likelihood of
defendant’s

right

to

Neil v. Biggers, 409 U.S. 188, 198 (1972).

that

the

government’s

impermissibly

suggestive,

pre-trial

or

due

Thus,

in-court

Perry,

Even if a pretrial

automatic

exclusion

of

Perry, 565 U.S. at 239;

Rather, the court must determine “whether under the

27
28

take his time and look at both of the remaining photos, which
Arturo did. (RT 3018-21).
43

1

even though the confrontation procedure was suggestive.”

2

409 U.S. at 199; Perry, 565 U.S. at 239; Brathwaite, 432 U.S. at

3

114.

4

court identification testimony is sufficiently reliable: (1) the

5

witness’s opportunity to view the criminal at the time of the

6

crime; (2) the witness’s degree of attention; (3) the accuracy of

7

the witness’s prior description of the criminal; (4) the level of

8

certainty

9

identification; and (5) the length of time between the crime and

Biggers,

Five factors must be considered in determining whether in-

demonstrated

pretrial

by

the

identification.

witness

Perry,

at

565

the

10

the

U.S.

at

11

pretrial

239

n.5;

Brathwaite, 432 U.S. at 114; Biggers, 409 U.S. at 199.

12
13

Petitioner

“bears

the

burden

of

showing

impermissible

14

suggestiveness.”

15

2005); see also English v. Cody, 241 F.3d 1279, 1282 (10th Cir.

16

2001) (“In order to prevail on a claim of an unduly suggestive

17

[identification procedure], a defendant has the initial burden of

18

proving

19

suggestive.”

20

contend there was any inherent deficiency in the photographic

21

lineup

22

Petitioner argues that the circumstances surrounding Detective

23

Aguirre’s

presentation

24

rendered

Arturo’s

25

impermissibly suggestive.30

that

Howard v. Bouchard, 405 F.3d 459, 469 (6th Cir.

the

identification

(citation

Detective

omitted)).

Aguirre

of

showed

the

pretrial

procedure
Here,

to

was

impermissibly

Petitioner

Arturo

photographic

does

Frias.

lineup

identification

(SAP at 6, 16-33).

of

not

Rather,

to

Arturo

petitioner

In particular,

26
27
28

The majority of Petitioner’s claim focuses on perceived
inconsistencies
between
the
victims’
descriptions
of
the
perpetrators. (See SAP at 18-28). But the relevant question here
30

44

1

Petitioner complains that: (1) “Detective Aguirre first show[ed]

2

Arturo . . . photos of Petitioner taken from his home” as well as

3

photos “taken of Petitioner after [he was interviewed] by police

4

in the area where the crimes was committed”; (2) Arturo’s pretrial

5

identification

6

Aguirre placed Petitioner’s photograph in the lineup only because

7

Petitioner “had recently been [stopped and interviewed] by police

8

near,

9

identification of him was impermissibly suggestive because Arturo

10

has cognitive difficulties and the three other robbery victims were

11

unable to identify Petitioner; and (4) Detective Aguirre informed

12

Petitioner that the driver would be in the photographic lineup.

13

(SAP at 6, 17-18, 28-29; Reply at 2, 12-13).

or

at

of

the

him

was

scene

improperly

of

the

tainted

crime”;

(3)

since

Arturo’s

Detective

pretrial

14
15

Petitioner

has

lineup

not

met

his

procedure

burden

was

of

showing

impermissibly

that

the

16

photographic

suggestive.

17

Petitioner’s first assertion is unclear and unsupported by citation

18

to any evidence in the record,31 his second assertion is factually

19

incorrect,32 see Dows v. Wood, 211 F.3d 480, 486-87 (9th Cir. 2000)

20
21
22
23
24
25
26
27
28

is whether the photographic lineup shown to Arturo Frias was
impermissibly suggestive.
31
Neither Petitioner’s SAP nor his Reply point to any evidence
supporting this allegation, Petitioner cites to no evidence in the
record indicating that Detective Aguirre showed Arturo any picture
of Petitioner other than the photographic lineup, and the Court
need not scour the state court record in search of possible support
for Petitioner’s argument. See Adams v. Armontrout, 897 F.2d 332,
333 (8th Cir. 1990) (Neither “[Section] 2254 [nor] the Section 2254
Rules require the federal courts to review the entire state court
record of habeas corpus petitioners to ascertain whether facts
exist which support relief.”).
32
As pretrial proceedings made clear, Detective Aguirre initially
focused on Petitioner as a suspect based on “word on the street”
45

1

(factually unfounded argument provides no basis for federal habeas

2

relief), and both the first and second assertions are “cursory and

3

vague [and] cannot support habeas relief.”

4

653 F.3d 790, 804 (9th Cir. 2011); James v. Borg, 24 F.3d 20, 26

5

(9th Cir. 1994); see also Gustave v. United States, 627 F.2d 901,

6

904 (9th Cir. 1980) (affirming dismissal of claim challenging

7

allegedly suggestive display of photographs since it was “vague,

8

conclusory and without any facts alleged in support of the claim”).

9

Similarly, with regard to Petitioner’s third assertion, the trial
found

Arturo

competent

to

testify

Greenway v. Schriro,

10

court

(RT

1828-30),

and

11

Petitioner does not explain how Arturo’s cognitive difficulty made

12

the six-pack procedure impermissibly suggestive.

13

F.3d at 804 (9th Cir. 2011); James, 24 F.3d at 26; Gustave, 627

14

F.2d at 904.

15

suggestive merely because the witness knew the lineup included a

16

suspect as “it stands to reason that there is a suspect at the

17

lineup stage.”

18

Cir. 2000) (italics in original); see also Jenkins v. City of New

19

York, 478 F.3d 76, 93 (2d Cir. 2007) (“[A]lthough the police

20

generally should refrain from informing a witness that [a] suspect

21

is in [a] lineup, a lineup is not unduly suggestive merely because

22

they do so.”); United States v. Carter, 756 F.2d 310, 313 (3d Cir.

23

1985) (While suggesting there is a suspect in the lineup the witness

24

is about to view “is dangerously suggestive when combined with a

25

one person show-up, this is not true in the case of a fair

26

lineup[.]” (citations omitted)); Gullick v. Perrin, 669 F.2d 1, 5

Greenway, 653

Finally, a pretrial lineup is not impermissibly

United States v. Bowman, 215 F.3d 951, 966 (9th

27
28

information he received from a confidential informant rather than
any prior stop of Petitioner. (See CT 160-82, 186-92; RT D7-D14).
46

1

n.9 (1st Cir. 1981) (“The mere holding of any lineup [is] likely

2

to suggest to a witness that suspicion has focused on one or more

3

of the participants - else why hold the lineup?”); United States

4

v. Gambrill, 449 F.2d 1148, 1151 n.3 (D.C. Cir. 1971) (“It must be

5

recognized . . . that any witness to a crime who is called upon to

6

view a police lineup must realize that he would not be asked to

7

view the lineup if there were not some person there whom the

8

authorities suspected.

9

average intelligence.

To ignore this fact is to underestimate
Thus, telling this to a witness may in many

10

instances be relatively harmless.”); Hodge v. Henderson, 761 F.

11

Supp. 993, 1007-08 (S.D. N.Y. 1990) (“[I]t is implicit in the

12

viewing of a lineup that a suspect might appear; this knowledge

13

alone

14

misidentification.”), affirmed by, 929 F.2d 61 (2d Cir. 1991) (per

15

curiam).

16

that the photographic lineup was impermissibly suggestive, and he

17

cannot establish a due process violation.

18

39; see also United States v. Bagley, 772 F.2d 482, 492 (9th Cir.

19

1985) (“If we find that a challenged procedure is not impermissibly

20

suggestive, our inquiry into the due process claim ends.”).

is

insufficient

to

pose

a

substantial

likelihood

of

Accordingly, Petitioner has not met his burden of showing

Perry, 565 U.S. at 238-

33

21
22

Having so concluded, the Court need not consider whether the
evidence was reliable under the totality of the circumstances.
See Bagley, 772 F.2d at 493 (“Having concluded that the one-on-one
show-up was a legitimate identification procedure, we need not
reach the question whether the teller’s identification was reliable
under the test enunciated in Biggers.”); United States v.
Davenport, 753 F.2d 1460, 1463 n.2 (9th Cir. 1985) (“Because we do
not
regard
the
confrontation
procedures
as
unnecessarily
suggestive, we need not consider the reliability of the
identification in determining whether the procedures gave rise to
a substantial likelihood of mistaken identification.”).
33

23
24
25
26
27
28

47

1

Where, as here, “the procedure employed does not give rise to

2

‘a very substantial likelihood of irreparable misidentification,’

3

identification evidence is for the jury to weigh.”

4

v. Kessler, 692 F.2d 584, 587 (9th Cir. 1982) (citation omitted);

5

United States v. Jones, 84 F.3d 1206, 1210 (9th Cir. 1996).

6

the reliability of Arturo Frias’s identification of Petitioner and

7

his

8

examination of Arturo Frias and Detective Aguirre as well as

9

through the defendants’ use of expert testimony.

co-defendants

was

thoroughly

explored

United States

through

the

Here,

cross-

(See, e.g., RT

10

1857-1903, 2103-19, 2438-71, 2496-2511, 2702-26, 2755-61, 2764-

11

2825,

12

circumstances, Petitioner has not demonstrated that he was denied

13

due process of law when the trial court allowed the jury to evaluate

14

the identification evidence.

15

(Short

16

misidentification’” identification “evidence is for the jury to

17

weigh.

18

American

19

untrustworthiness is customary grist for the jury mill.

20

are not so susceptible that they cannot measure intelligently the

21

weight of identification testimony that has some questionable

22

feature.” (citation omitted)); Simmons, 390 U.S. at 384 (“The

23

danger that use of [photographic identification] technique[s] may

24

result

25

substantially lessened by a course of cross-examination at trial

26

which exposes to the jury the method’s potential for error.”);

27

Richardson v. Runnels, 318 F. App’x 492, 493 (9th Cir. 2008) (Since

28

defense “counsel was given every opportunity to challenge the

3002-26,

of

“‘a

3035-38,

very

3947-89,

3991-4007).

Under

these

See Brathwaite, 432 U.S. at 116

substantial

likelihood

of

irreparable

We are content to rely upon the good sense and judgment of
juries,

in

for

convictions

evidence

based

on

48

with

some

element

misidentification

of

Juries

may

be

1

identification

2

suggestive police procedures led to an inaccurate identification,

3

. . . [t]he trial court’s decision to leave the ultimate question

4

of

5

constitutional claim).

the

evidence”

identification’s

and

“was

fully

reliability

to

able

the

to

argue

jury”

raised

that

“no

6
7
8

E.

Petitioner Is Not Entitled To Habeas Relief On His Ineffective
Assistance of Counsel Claims

9
10

In Ground Six, Petitioner contends he received ineffective

11

assistance of counsel when defense counsel failed to object to

12

Detective Aguirre’s hearsay testimony as violating Petitioner’s

13

right to confront the witnesses against him and failed to object

14

to the unduly suggestive identification of Petitioner, as set forth

15

in Grounds Four and Five. (SAP at 33). In Ground Seven, Petitioner

16

alleges he received ineffective assistance when appellate counsel

17

did not raise Grounds Four through Six on appeal.

18

Superior

19

assistance

20

ineffective assistance of appellate counsel claim.

21

1 at 39).

Court
at

concluded
trial[,]”

that
but

“counsel
did

not

(Id.).

provided
address

The

effective

Petitioner’s
(Dkt. No. 34-

22
23

“The

Sixth

Amendment

guarantees

criminal

defendants

the

24

effective assistance of counsel.”

Yarborough v. Gentry, 540 U.S.

25

1, 4 (2003) (per curiam); see also Missouri v. Frye, 566 U.S. 133,

26

138 (2012) (“The right to counsel is the right to effective

27

assistance of counsel.”).

28

of trial counsel claim, Petitioner must demonstrate both that

To succeed on an ineffective assistance

49

1

counsel’s

2

performance prejudiced the defense.

3

U.S.

4

(Strickland standard is clearly established federal law).

5

establish deficient performance, a person challenging a conviction

6

must show that ‘counsel’s representation fell below an objective

7

standard of reasonableness.’”

8

omitted); Premo v. Moore, 562 U.S. 115, 121 (2011).

9

“focuses on the question whether counsel’s deficient performance

10

renders the results of the trial unreliable or the proceeding

11

fundamentally unfair.”

12

(1993); Williams v. Taylor, 529 U.S. 362, 393 n.17 (2000).

13

is, Petitioner must establish there is a “reasonable probability

14

that, but for counsel’s unprofessional errors, the result of the

15

proceeding would have been different[,]” Strickland, 466 U.S. at

16

694; Pinholster, 563 U.S. at 189, and “[t]he likelihood of a

17

different

18

Richter, 562 U.S. at 112; Pinholster, 563 U.S. at 189.

19

bears the burden of establishing both components.

20

U.S. at 390-91; Strickland, 466 U.S. at 687.

21

need not determine whether counsel’s performance was deficient

22

before examining the prejudice the alleged deficiencies caused

23

Petitioner.

24

(“‘If it is easier to dispose of an ineffectiveness claim on the

25

ground of lack of sufficient prejudice, . . . that course should

26

be followed.’” (quoting Strickland, 466 U.S. at 697)).

performance

668,

687

(1984);

result

must

was

deficient

see

also

and

that

the

deficient

Strickland v. Washington, 466
Pinholster,

563

U.S.

at

189
“‘To

Richter, 562 U.S. at 104 (citation
Prejudice

Lockhart v. Fretwell, 506 U.S. 364, 372

be

substantial,

not

just

That

conceivable.”
Petitioner

Williams, 529

However, the Court

See Smith v. Robbins, 528 U.S. 259, 286 n.14 (2000)

27
28
50

1

“[T]he

right

to

effective

assistance

of

counsel

is

not

2

confined to trial, but extends also to the first appeal as of

3

right.”

4

Evitts v. Lucey, 469 U.S. 387, 396-97 (1985).

5

establishing a prima facie claim of ineffective appellate counsel

6

is the same as for trial counsel: Petitioner must show his appellate

7

counsel was deficient and the deficient performance prejudiced him.

8

Robbins, 528 U.S. at 285, 289; Strickland, 466 U.S. at 687; Cockett

9

v. Ray, 333 F.3d 938, 944 (9th Cir. 2003).

Kimmelman v. Morrison, 477 U.S. 365, 378 n.2 (1986);
The standard for

Moreover, appellate

10

counsel has no constitutional duty to raise every issue, where, in

11

the attorney’s judgment, the issue has little or no likelihood of

12

success.

13

Calderon, 281 F.3d 851, 881 (9th Cir. 2002).

14

of the court, appellate counsel is under an ethical obligation to

15

refrain from wasting the court’s time on meritless arguments.

16

McCoy v. Wisconsin, 486 U.S. 429, 436 (1988).

17

appellate

18

appellate counsel used reasonable tactics; otherwise, it “could

19

dampen

20

discourage the acceptance of assigned cases, and undermine the

21

trust between attorney and client.”

22

1430, 1435 (9th Cir. 1997) (citing Strickland, 466 U.S. at 690).

Jones v. Barnes, 463 U.S. 745, 751-53 (1983); Turner v.

the

counsel’s

ardor

performance,

and

impair

the

Indeed, as an officer

court

[counsel’s]

Thus, in reviewing
will

presume

independence.

.

that

.

,

Pollard v. White, 119 F.3d

23
24

Here, because Petitioner’s ineffective assistance of trial

25

counsel claims relate to claims that have been found meritless,

26

Petitioner cannot demonstrate his trial counsel was ineffective.

27

See Flournoy v. Small, 681 F.3d 1000, 1006 (9th Cir. 2012) (“The

28

failure to make an objection that would have been overruled was
51

1

not deficient performance.”); Sexton v. Cozner, 679 F.3d 1150, 1157

2

(9th

3

failing to raise even a nonfrivolous claim, so clearly we cannot

4

hold counsel ineffective for failing to raise a claim that is

5

meritless.” (citation omitted)).

6

appellate counsel rendered ineffective assistance in failing to

7

raise Grounds Four through Six on appeal.

8

694 F.3d 1094, 1106 (9th Cir. 2012) (“Counsel is not required to

9

raise

Cir.

an

2012)

(“Counsel

‘untenable

issue’

is

not

on

necessarily

ineffective

for

Nor can Petitioner prove his

appeal.”

See Rogovich v. Ryan,

(citations

omitted));

10

Moorman v. Ryan, 628 F.3d 1102, 1107 (9th Cir. 2010) (“If trial

11

counsel’s performance was not objectively unreasonable or did not

12

prejudice Moormann, then appellate counsel did not act unreasonably

13

in failing to raise a meritless claim of ineffective assistance of

14

counsel, and Moormann was not prejudiced by appellate counsel’s

15

omission.”); Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001)

16

(“[Petitioner] cannot sustain his claim for ineffective assistance

17

of appellate counsel because the issues he raises are without

18

merit”).

19
20

Accordingly, the state court’s rejection of Grounds Six and

21

Seven was neither contrary to, nor an unreasonable application of,

22

clearly established federal law.

23

\\

24

\\

25

\\

26

\\

27
28
52

1

VII.

2

CONCLUSION

3
4

For the foregoing reasons, the Petition for Writ of Habeas

5

Corpus is DENIED and Judgment shall be entered dismissing this

6

action with prejudice.

7
8

DATED:

March 24, 2017

9
/S/
__________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
53