Frank Ray Rivera Jr v. J. Martinez

Filing 17

MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DISMISSING ACTION by Magistrate Judge Jacqueline Chooljian. (1) the Petition is denied and this action is dismissed with prejudice; and (2) Judgment shall be entered accordingly. See memorandum for details. (hr)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16
17
18

FRANK RAY RIVERA, JR.,

)
)
Petitioner,
)
)
v.
)
)
)
J. MARTINEZ, Warden,
)
)
)
Respondent.
)
_______________________________ )
I.

Case No. CV 16-437 JC
MEMORANDUM OPINION AND
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS AND
DISMISSING ACTION

SUMMARY
On January 20, 2016, petitioner, who is in state custody and is proceeding

19

pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody

20

(“Petition”), challenging a criminal judgment in Ventura County Superior Court.

21

Although framed as two grounds for relief, petitioner essentially claims that his

22

federal due process rights were violated because the evidence was insufficient to

23

convict him.

24

On April 27, 2016, respondent filed an Answer (“Answer”) and lodged

25

multiple documents (“Lodged Doc.”), including the Clerk’s Transcript (“CT”), and

26

the Reporter’s Transcript (“RT”). Petitioner did not file a Reply.

27
28

The parties have consented to proceed before the undersigned United States
Magistrate Judge.

For the reasons explained below, the Petition is denied and this action is

1
2

dismissed with prejudice.

3

II.

PROCEDURAL HISTORY
On May 28, 2013, a Ventura County Superior Court jury found petitioner

4
5

guilty of possession of methamphetamine for sale (count 1), possession of a

6

firearm by a felon (counts 2, 4), possession of ammunition (counts 3, 5), and

7

possession of alprazolam (xanax) for sale (count 6). (CT 204-07, 340-45). The

8

jury also found true allegations that petitioner was personally armed with a firearm

9

in committing the offense charged in count 1, and that he was released from

10

custody on bail during the commission of the offenses charged in counts 4-6. (CT

11

340, 343-45). On June 25, 2013, the trial court sentenced petitioner to a total of

12

eleven years and four months in state prison. (CT 367).
On September 23, 2014, the California Court of Appeal affirmed the

13
14

judgment. (Lodged Doc. 6). On December 10, 2014, the California Supreme

15

Court denied petitioner’s petition for review. (Lodged Doc. 8).

16

III.

17

FACTS
Since petitioner challenges the sufficiency of the evidence, the Court has

18

independently reviewed the state court record. See Jones v. Wood, 114 F.3d 1002,

19

1008 (9th Cir. 1997). Based on its independent review of the record, the Court

20

summarizes the facts below, drawing from the California Court of Appeal’s

21

opinion on direct review. (Lodged Doc. 6 at 2-4). The Court of Appeal’s factual

22

findings constitute a fair and accurate summary of the evidence presented at trial

23

and are presumed correct. See 28 U.S.C. § 2254(e)(1).

24

A.

25

The following events occurred on February 25, 2012 and are the predicates

26
27
28

February 2012 Events

for counts 1-3.
On that date at about 2:00 p.m., Officer Moses Martinez arrested a man
named Correa pursuant to an arrest warrant. Correa was walking a dog, so
2

1

Martinez and two other police officers took the dog back to Correa’s residence in

2

Oxnard. Martinez knocked on the door. A man named Koen opened it. Martinez

3

recognized Koen as “the other individual [he] wanted to arrest on the warrant.”

4

Koen looked at Martinez, closed the door, and locked it. Martinez heard people

5

“running around inside” and “doors opening and closing.” After about 10 to 15

6

seconds, the officers forced entry.
The officers conducted “a quick protective sweep” of the residence.

7
8

Petitioner and a female, Bridget Escamilla, walked out of the master bedroom.

9

Another female walked out of a different bedroom. Inside the closet of the master

10

bedroom, the officers found a loaded magazine for a pistol. Under the bed, they

11

found crystal methamphetamine. After a search warrant was issued, the officers

12

conducted an extensive search of the master bedroom. Inside the drawers of a

13

nightstand, they found letters addressed to petitioner at the Oxnard residence and a

14

wallet containing his driver’s license. Between the bed and a bookshelf, they

15

found paperwork in petitioner’s name. Next to the methamphetamine under the

16

bed, they found a prescription for penicillin in his name. Also under the bed were

17

several boxes of shotgun ammunition and a Time Warner Cable box addressed to

18

petitioner. The master bedroom closet contained an unloaded handgun, three

19

loaded magazines, a small baggie of methamphetamine, and boxes for men’s

20

shoes. There was no female clothing in the master bedroom. Officer Martinez

21

testified that he found nothing “to indicate that anyone besides [petitioner] lived

22

. . . in [the] . . . master bedroom.” There was no paperwork in any other person's

23

name.
A silver Chevrolet Impala was parked in the driveway of the residence. The

24
25

day before petitioner’s arrest, Officer Martinez made a traffic stop of the vehicle.

26

Petitioner was the driver.

27

///

28

///
3

1

B.

2

The following events occurred on April 12-13, 2012 and are the predicates

3

April 2012 Events

for counts 4-6.

4

On April 12, 2012, Deputy Eduardo Malagon was conducting surveillance

5

on a residence in Port Hueneme. The same silver Chevrolet Impala that had been

6

parked outside petitioner’s Oxnard residence was parked in the driveway of the

7

Port Hueneme residence. Petitioner walked out of the Port Hueneme residence,

8

used a key to open the Impala’s trunk, put a “backpack” inside the trunk, and

9

closed it. He then walked back toward the front door of the residence until he was

10

out of Malagon’s view.
On April 13, 2012, Deputy Malagon and other deputies returned to the Port

11
12

Hueneme residence with a search warrant. After entering the residence, they

13

searched petitioner’s person. In his pocket they found the keys to the Impala.

14

Other persons were inside the residence. Malagon did not “find any other set of

15

keys [for the Impala] in the house or in anyone[ ] [else’s] possession.”
The Impala was still parked in the driveway. The deputies unlocked the

16
17

vehicle and searched it. They found a “duffle bag” in the back seat. It contained

18

male clothing and 149 alprazolam pills. A revolver was underneath the driver’s

19

seat. It contained “six live rounds of ammunition.”
In the center console of the Impala, Deputy Malagon found a “Metro PCS

20
21

request form” addressed to petitioner and “two Ventura County Superior Court

22

minute orders with [petitioner’s] name on it.” The vehicle did not contain

23

paperwork bearing the name of any other person. Deputy Malagon testified that,

24

during his search of the Impala and Port Hueneme residence, he had found nothing

25

“that indicated either anyone in the house or anyone else other than [petitioner]

26

had any belongings in the vehicle.”

27

///

28

///
4

1

IV.

STANDARD OF REVIEW

2

This Court may entertain a petition for writ of habeas corpus on “behalf of a

3

person in custody pursuant to the judgment of a State court only on the ground that

4

he is in custody in violation of the Constitution or laws or treaties of the United

5

States.” 28 U.S.C. § 2254(a). A federal court may not grant an application for

6

writ of habeas corpus on behalf of a person in state custody with respect to any

7

claim that was adjudicated on the merits in state court proceedings unless the

8

adjudication of the claim: (1) “resulted in a decision that was contrary to, or

9

involved an unreasonable application of, clearly established Federal law, as

10

determined by the Supreme Court of the United States”; or (2) “resulted in a

11

decision that was based on an unreasonable determination of the facts in light of

12

the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).1

13

In applying the foregoing standards, federal courts look to the last reasoned

14

state court decision. See Smith v. Hedgpeth, 706 F.3d 1099, 1102 (9th Cir.), cert.

15

denied, 133 S. Ct. 1831 (2013). Where there has been one reasoned state

16

judgment rejecting a federal claim, later unexplained orders upholding that

17

judgment or rejecting the same claim are presumed to rest upon the same ground.

18

Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Cannedy v. Adams, 706 F.3d

19

1148, 1158 (9th Cir. 2013) (it remains Ninth Circuit practice to “look through”

20

summary denials of discretionary review to the last reasoned state-court decision),

21

as amended on denial of rehearing, 733 F.3d 794 (9th Cir. 2013), cert. denied, 134

22

S. Ct. 1001 (2014); but see Kernan v. Hinojosa, 136 S. Ct. 1603, 1606 (2016) (Ylst

23

presumption is rebuttable; strong evidence can refute it).

24
25
26
27
28

1

When a federal claim has been presented to a state court and the state court has denied
relief, it may be presumed that the state court adjudicated the claim on the merits in the absence
of any indication or state-law procedural principles to the contrary. Harrington v. Richter, 562
U.S. 86, 99 (2011); see also Johnson v. Williams, 133 S. Ct. 1088, 1094-96 (2013) (extending
Richter presumption to situations in which state court opinion addresses some, but not all of
defendant’s claims).
5

1

V.

DISCUSSION

2

Petitioner contends that there was insufficient evidence to support his

3

convictions and the true finding that he was personally armed with a firearm. The

4

California Court of Appeal – the last state court to issue a reasoned decision

5

addressing petitioner’s challenge to the sufficiency of the evidence – rejected it on

6

the merits. (Lodged Doc. 6 at 4-6). Based upon an independent review of the

7

record, this Court agrees with the California Court of Appeal and concludes that

8

petitioner is not entitled to federal habeas relief on the claim.

9
10

A.

Pertinent Law

On habeas review, the court’s inquiry into the sufficiency of evidence is

11

subject to two layers of judicial deference. Coleman v. Johnson, 132 S. Ct. 2060,

12

2062 (2012) (per curiam). First, on direct appeal, “it is the responsibility of the

13

jury – not the court – to decide what conclusions should be drawn from evidence

14

admitted at trial. A reviewing court may set aside the jury’s verdict on the ground

15

of insufficient evidence only if no rational trier of fact could have agreed with the

16

jury.” Id. (quoting Cavazos v. Smith, 132 S. Ct. 2, 4 (2011)(per curiam));

17

see Jackson v. Virginia, 443 U.S. 307, 319 (1979) (standard of review on

18

sufficiency of the evidence claim is whether, “after viewing the evidence in the

19

light most favorable to the prosecution, any rational trier of fact could have found

20

the essential elements of the crime beyond a reasonable doubt”) (emphasis in

21

original); Coleman, 132 S. Ct. at 2065 (“[T]he only question under Jackson is

22

whether [the jury’s] finding was so insupportable as to fall below the threshold of

23

bare rationality.”).

24

Second, on habeas review, “a federal court may not overturn a state court

25

decision rejecting a sufficiency of the evidence challenge simply because the

26

federal court disagrees with the state court. The federal court instead may do so

27

only if the state court decision was ‘objective unreasonable.’” Coleman, 132 S. Ct.

28

at 2062, 2065 (state court determination that jury’s finding was not so
6

1

insupportable as to fall below the threshold of bare rationality is entitled to

2

considerable deference on habeas review)(citations omitted); see Juan H. v. Allen,

3

408 F.3d 1262, 1274-75 (9th Cir. 2005) (as amended) (federal habeas relief may

4

be granted only if state court’s adjudication of insufficiency of the evidence claim

5

involved unreasonable application of Jackson to the facts of the case), cert. denied,

6

546 U.S. 1137 (2006).2

7

Sufficiency of the evidence claims are judged by the elements defined by

8

state law. Jackson, 443 U.S. at 324 n. 16. Evidence must be considered in the

9

light most favorable to the prosecution. Id. at 319. The testimony of a single

10

witness is sufficient to sustain a conviction. Bruce v. Terhune, 376 F.3d 950, 957-

11

58 (9th Cir. 2004) (per curiam). Circumstantial evidence and inferences drawn

12

therefrom also may be sufficient to sustain a conviction. Ngo v. Guirbino, 651

13

F.3d 1112, 1114-15 (9th Cir. 2011) (citations omitted).

14

In California, to convict a defendant for illegal possession of a controlled

15

substance for sale, the prosecution must prove: (1) the defendant unlawfully

16

possessed a controlled substance (i.e., methamphetamine, alprazolam);

17

(2) petitioner knew of its presence; (3) petitioner knew that the substance was a

18

controlled substance; and (4) the controlled substance was in a quantity usable for

19

consumption or sale. See Cal. Health & Safety Code §§ 11375(b)(1), 11378;

20

People v. Palaschak, 9 Cal. 4th 1236, 1242 (1995) (“The essential elements of

21

possession of a controlled substance are dominion and control of the substance in

22

a quantity usable for consumption or sale, with knowledge of its presence and of

23

its restricted dangerous drug character.”) (citations and quotations omitted);

24

CALJIC 12.00. Each of the elements may be established with circumstantial

25

evidence. See Palaschak, 9 Cal. 4th at 1242.

26
27
28

2

The California standard for determining the sufficiency of evidence to support a
conviction is identical to the federal standard enunciated in Jackson. People v. Johnson, 26 Cal.
3d 557, 576 (1980).
7

1

California law requires the prosecution to prove the following elements to

2

establish that a defendant was a felon in possession of a firearm or ammunition:

3

(1) the defendant had previously been convicted of an enumerated felony; and

4

(2) the defendant owned a firearm/ammunition or had a firearm/ammunition in his

5

possession or under his custody or control. See Cal. Penal Code §§ 29800(a)(1),

6

30305(a)(1); CALJIC 12.00, 12.44, & 12.49.

7

Possession may be actual or constructive. See People v. Mitchell, 170 Cal.

8

App. 4th 587, 625 (2009); In re Daniel G., 120 Cal. App. 4th 824, 831 (2004);

9

CALJIC 12.00 & 12.44. Actual possession requires that a person knowingly

10

exercise direct physical control over a thing. See In re Daniel G., 120 Cal. App.

11

4th at 831; CALJIC 12.00 & 12.44. Constructive possession requires that a person

12

knowingly exercise control over or the right to control a thing, either directly or

13

through another person or persons. See In re Daniel G., 120 Cal. App. 4th at 831;

14

CALJIC 12.00 & 12.44. The actual or constructive possession, may also be sole

15

or joint, i.e., shared with another person or persons. See People v. Mitchell, 170

16

Cal. App. 4th at 625 (“[M]ore than one person may possess the same contraband.

17

Conviction is not precluded . . . if the defendant’s right to exercise dominion and

18

control over the place where the contraband was located is shared with another.”

19

(citation, internal citation and internal quotation marks omitted); CALJIC 12.00 &

20

12.44. In general, the knowing possession of contraband simply requires an

21

awareness of both its physical presence and character. People v. Low, 49 Cal. 4th

22

372, 386 (2010) (citations omitted).

23

Mere proximity to contraband, standing alone, is not sufficient evidence of

24

possession. People v. Sifuentes, 195 Cal. App. 4th 1410, 1417 (2011). Similarly,

25

proof that amounts to no more than a speculative possibility that the defendant had

26

an opportunity of access to a place where the contraband was kept is insufficient

27

to support a finding of possession. People v. Mitchell, 53 Cal. App. at 25.

28

However, possession may be imputed when contraband is immediately and
8

1

exclusively accessible to the accused and subject to his dominion and control, or

2

to the joint dominion and control of the accused and another. People v. Williams,

3

5 Cal. 3d 211, 215 (1971).

4

To establish that a defendant was personally armed with a firearm during

5

the commission of a crime, the prosecution must prove that the defendant

6

knowingly carried a firearm or had it available for offensive or defensive use. See

7

Cal. Penal Code § 12022(c); CALJIC 17.16.1.

8

B.

Analysis

9

Petitioner contends that there is insufficient evidence to establish that he

10

knowingly possessed the contraband at issue, but does not otherwise challenge the

11

sufficiency of the evidence. Petitioner is not entitled to federal habeas relief.

12

First, the Court of Appeal reasonably determined that the evidence was

13

sufficient to establish that petitioner knowingly possessed the contraband at issue

14

in counts 1-3 and the firearm allegation – the charges predicated on the February

15

2012 events. (Lodged Doc. 6 at 5). The Court of Appeal explained:

16

Substantial evidence supports the jury’s finding that

17

[petitioner] knowingly exercised dominion and control over the

18

firearm, ammunition, and methamphetamine in the master bedroom of

19

the Oxnard residence. In his reply brief, [petitioner] concedes that “it

20

can be deduced from the evidence that [he] resided in the master

21

bedroom.” It is reasonable to infer that the female who walked out of

22

that bedroom was a visitor and that [petitioner] was the bedroom’s

23

sole occupant. There was no female clothing in the master bedroom.

24

Letters, a driver’s license, a prescription, and other paperwork bore

25

[petitioner’s] name. Nothing found in the master bedroom suggests

26

that anyone else was living there. A reasonable trier of fact could

27

infer that Koen lived in the separate bedroom where the police found

28

paperwork in his name.
9

1

(Lodged Doc. 6 at 5). The findings of the Court of Appeal are well-supported by

2

the record and are objectively reasonable.

3

Petitioner argues that the evidence of his possession of the

4

methamphetamine, firearm and ammunition in February 2012 was insufficient

5

because (1) the items were “equally accessible to four other individuals” and there

6

was “a significant opportunity for others to move the items within the house

7

before the police could enter and secure the residence”; (2) the proximity of

8

petitioner’s personal items in the bedroom was insufficient to conclude that he had

9

knowledge or possession of the contraband hidden under the bed and in the closet;

10

(3) there is no evidence that petitioner exhibited a consciousness of guilt; and (4)

11

there is no evidence that he had control over or the right to control the contraband.

12

Petitioner essentially asks this Court to reweigh the evidence. On habeas

13

review, the Court cannot reevaluate the evidence or draw new inferences.

14

Cavazos v. Smith, 132 S. Ct. 2, 7 n.* (2011) (per curiam) (reweighing facts

15

precluded by Jackson); United States v. Nevils, 598 F.3d 1158, 1170 (9th Cir.

16

2010) (in assessing sufficiency of the evidence claim, it is not court’s function to

17

reweigh the evidence) (citation and quotation marks omitted). The Court must

18

presume that the jury rejected petitioner’s interpretations of the evidence and

19

resolved any ambiguities in favor of its guilty verdicts. Jackson, 443 U .S. at 319

20

(court must view evidence “in the light most favorable to the prosecution”); see

21

Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004) (federal habeas court must

22

presume trier of fact resolved conflicts in favor of prosecution). The only issue is

23

whether it was objectively reasonable for the California courts to determine that a

24

rational trier of fact could have found beyond a reasonable doubt that petitioner

25

knowingly possessed the contraband in issue. In this case, such question must be

26

answered in the affirmative. Indeed, the record reflects that (1) the officers

27

entered the Oxnard residence within about 10 to 15 seconds – affording little

28

opportunity for anyone – especially anyone not already present in the master
10

1

bedroom – to hide or access items in the master bedroom; (2) only items

2

apparently belonging to petitioner/bearing his name, including his wallet, driver’s

3

license, and penicillin prescription, were found in the master bedroom –

4

suggesting that he was the only person residing in and knowingly exercising

5

control over the master bedroom and its contents; and (3) petitioner and a female

6

visitor were the only two people observed coming out of the master bedroom. In

7

short, notwithstanding the absence of certain evidence highlighted by petitioner,

8

ample evidence supports the Court of Appeal’s conclusion that a rational jury

9

could have found petitioner guilty of counts 1-3 and could have found true the

10

firearm allegation.

11

Second, the Court of Appeal also reasonably determined that the evidence

12

was sufficient to establish that petitioner knowingly possessed the contraband at

13

issue in counts 4-6 – the charges predicated on the April 2012 events. (Lodged

14

Doc. 6 at 5-6). As the Court of Appeal explained:

15

Substantial evidence also supports the jury’s finding that

16

[petitioner] knowingly exercised dominion and control over the

17

firearm, ammunition, and alprazolam pills in the Impala parked

18

outside the Port Hueneme residence. Two months earlier, [petitioner]

19

had been driving the same vehicle when Officer Martinez stopped it

20

for a traffic violation. Before searching the Impala, deputies found

21

the keys in [petitioner’s] pocket. The vehicle’s center console

22

contained paperwork bearing [petitioner’s] name. There was no

23

paperwork bearing the name of any other person. The day before the

24

police searched the vehicle, Deputy Malagon saw [petitioner] open

25

the Impala’s trunk and put a backpack inside.

26

(Lodged Doc. 6 at 5). This Court agrees with the findings and analysis of the

27

Court of Appeal.

28

///
11

Petitioner argues that the evidence of his possession of the alprazolam,

1
2

firearm and ammunition in April 2012 was insufficient because, even though he

3

had the keys to the Impala where all of the contraband at issue was found (1) no

4

evidence was introduced that he was the owner of the vehicle or the Port Hueneme

5

residence where it was parked; and (2) evidence of the mere presence of the

6

contraband in the Impala was insufficient to convict him because eight or nine

7

other individuals had equal access to it. The Court of Appeal considered and

8

squarely rejected such contentions:
[Petitioner] contends that the other persons in the Port

9
10

Hueneme residence “had the opportunity of equal access” to the

11

Impala. But [petitioner] does not cite any evidence in the record

12

supporting this contention. Deputy Malagon testified that he had

13

found nothing “that indicated either anyone in the house or any else

14

other than [petitioner] had any belongings in the vehicle.” Malagon

15

did not “find any other set of keys [for the Impala] in the house or in

16

anyone[] [else’s] possession.”

17

(Lodged Doc. 6 at 6). The Court of Appeal’s determination that a rational jury

18

could find that petitioner knowingly possessed the contraband at issue in counts 4-

19

6 is well-supported by the record and this Court agrees with such determination.
In sum, the evidence presented at petitioner’s trial was more than sufficient

20
21

to enable a rational trier of fact to conclude that he was guilty of the charged

22

offenses. The California Court of Appeal’s rejection of petitioner’s insufficiency

23

of the evidence claim was not contrary to, or an objectively unreasonable

24

application of, clearly established federal law. Nor was it based on an

25

unreasonable determination of the facts in light of the evidence presented.

26

Accordingly, petitioner is not entitled to federal habeas relief on this claim.

27

///

28

///

12

1
2

VI.

ORDER
IT IS THEREFORE ORDERED: (1) the Petition is denied and this action is

3

dismissed with prejudice; and (2) Judgment shall be entered accordingly.

4

DATED: December 29, 2016

5

________________/s/______________________

6

Honorable Jacqueline Chooljian
UNITED STATES MAGISTRATE JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13