Raymond Davis Miller v. Warden Marcus Pollard

Filing 39

MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott. Based on the foregoing, the Court directs that judgment be entered denying the Petition on the merits. (es)

1
2

O

3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12

Petitioner,

13
14

Case No. 2:20-cv-06690-KES

RAYMOND DAVIS MILLER,

MEMORANDUM OPINION AND
ORDER

v.
MARCUS POLLARD, Warden,

15

Respondent.

16
17
18

I.

19

INTRODUCTION

20

Raymond Davis Miller (“Petitioner”) filed a Petition for Writ of Habeas

21

Corpus by a person in state custody pursuant to 28 U.S.C. § 2254 (“Pet.”),

22

challenging his 2016 conviction for multiple crimes arising out of two violent

23

confrontations with an acquaintance, David Simington, including assault with a

24

deadly weapon, criminal threats, dissuading a witness, and attempted kidnapping.

25

(Dkt. 1 at 2.1) After Respondent moved to dismiss the Petition as partially

26
27
28

1

Except for citations to the Reporter’s Transcript (“RT”) and Clerk’s
Transcript (“CT”), page citations refer to pagination imposed by the Court’s
electronic filing system.
1

1

unexhausted (Dkt. 16), Petitioner voluntarily dismissed his two unexhausted

2

grounds (Dkt. 26). Respondent then answered the Petition (Dkt. 35) and lodged

3

relevant documents (Dkt. 18, 36). Petitioner replied. (Dkt. 38.) For the reasons

4

discussed below, Petitioner’s two remaining claims fail on the merits, and the

5

Petition should be denied.

6

II.

7

FACTUAL BACKGROUND

8

The underlying italicized facts are taken from the unpublished California Court

9

of Appeal decision on Petitioner’s first direct appeal. (Lodged Document [“LD”] 3);

10

People v. Miller, No. B282284, 2019 WL 1856420, 2019 Cal. App. Unpub. LEXIS

11

2930 (Cal. Ct. App. Apr. 25, 2019). Unless rebutted by clear and convincing

12

evidence, these facts may be presumed correct. Tilcock v. Budge, 538 F.3d 1138,

13

1141 (9th Cir. 2008); 28 U.S.C. § 2254(e)(1).

14
15
16

A. August 21, 2015: [Petitioner] Attacked Simington With A Wooden Pole,
Causing A Head Injury And Broken Arm
[Petitioner] and Simington first met in prison. Thereafter, on August 21,

17

2015, Simington was fixing his car at the lot where John Schumann kept his motor

18

home. Simington served as Schumann’s “kind of” caretaker, because Schumann

19

had a heart condition.

20

At some point while Simington was fixing his car, [Petitioner], accompanied

21

by an unidentified man, arrived at the lot and got into an argument with Simington

22

possibly over drugs. Schumann heard the commotion from inside his motor home,

23

went outside, and hollered that [Petitioner] was not supposed to be on the lot.

24

[Petitioner] struck Simington with a four-foot wooden pole on the back of his head

25

and right arm. Simington saw [Petitioner] strike his arm but not the back of his

26

head. The blows caused Simington’s head to bleed and broke his right arm.

27

Simington then attempted to move behind Schumann, at which point [Petitioner]

28

struck Schumann’s stomach with the pole and fled.
2

1

The paramedics and police arrived. Simington told Officer James Clark

2

about the argument and attack. Simington received treatment for his injuries at a

3

hospital.

4

[Petitioner] was arrested and charged with assault and battery.

5

After being released from the hospital, Simington testified about the

6

aforementioned events at the preliminary hearing on the assault and battery

7

charges. We observe that at the preliminary hearing, Simington testified he did not

8

see who hit his arm, but at trial, he testified he saw [Petitioner] hit his arm with a

9

wooden pole. [FN2: At trial, on redirect examination, Simington testified he was

10

mistaken when he testified at the preliminary hearing that he did not see who hit his

11

arm.]

12

About two weeks after the attack and sometime after the preliminary hearing,

13

[Petitioner]’s girlfriend, Toni, approached Simington at the gas station where he

14

was working. She asked him out for a drink and how he was feeling. Simington put

15

her off and said he would call her later, although he never did. About a week later,

16

Toni approached Simington at work again and asked him if he planned to testify

17

against [Petitioner]; Simington said no. Simington thought “something was up”

18

and observed Toni “had a certain look on her face.” Simington had no further

19

contact with Toni.

20

B. November 1, 2015: [Petitioner] Threatened To Take Simington To The

21

Desert To Kill Him And Schumann, But Lawson Intervened And Helped

22

Simington Regain Possession Of His Car Keys

23

In the early morning of November 1, 2015, at about 2:00 a.m., Simington

24

arrived home from work to his apartment building and parked his car in the back

25

alley carport. Someone came to Simington’s passenger-side window, looked into

26

the car, and walked off. Upon exiting his car, Simington saw [Petitioner] [FN3:

27

Simington believed [Petitioner] had been released on bail.] and another man,

28

different from the one who had peered into his car, moving quickly toward him.
3

1

Simington ran. [Petitioner] kicked Simington’s legs and tackled him, causing them

2

both to fall to the ground. Simington believed he lost his car keys when he fell and

3

that [Petitioner] or the other man2 then picked them up.3

4

[Petitioner] then picked up a 15-inch knife that had fallen on the ground.

5

[Petitioner] and the other man grabbed Simington. Simington attempted to run

6

away, but could not escape [Petitioner]’s and now the other man’s grasp.

7

[Petitioner] told Simington he was going to kill him, raised the knife, and pointed

8

the blade toward Simington while the other man continued to hold Simington. For

9

Simington, “[f]ear took over.” The other man grabbed [Petitioner]’s arm and

10

said, “not here.”

11

Simington attempted to flee again, and the other man said, “He’s not going

12

to go quietly. We’ve got to do something to him,” and “[l]et’s just knock him out

13

and take him.” [Petitioner] said no, became angry, walked away, and got on his

14

phone. [Petitioner] and the other man then walked Simington southward down the

15

alley while holding on to him. [Petitioner] told the other man to get the truck. The

16

other man walked down the alley southward, in the direction of where the truck

17

would eventually arrive.

18

[Petitioner] told Simington, “you messed up” and “[y]ou never should have

19

testified against me.” [Petitioner] also told Simington that (1) he was going to take

20

him to the desert; (2) they were going to talk Schumann into the car and take him to

21

the desert too; (3) Simington was going to dig a hole in which to bury Schumann;

22

and (4) Simington would be “going in right behind” Schumann.

23
24
25
26
27
28

2

Like the California Court of Appeal, the Court refers to this individual as
“the other man.”
3

Simington testified, “They had the keys to my car.” (2 RT 691.) When
asked how he knew that, he responded, “I guess I fell a couple times . . . . When I
went back to the . . . after all that happened at the end I couldn’t find my keys.”
(Id.)
4

1

Simington convinced [Petitioner] to allow him to go to his apartment

2

ostensibly to say goodbye to his son. Actually, although Simington had two sons,

3

they were not then at his apartment, and he created this ploy to attempt to seek

4

refuge in his apartment where his two roommates, Lawson and Eddie Peterson,

5

would be. Eventually, [Petitioner] and Simington went to Simington’s apartment

6

as [Petitioner] continued to hold Simington “under the arm with his hand.”

7

Simington believed [Petitioner] still had the knife. Simington knocked on the

8

apartment door and Lawson opened it.

9

Simington told Lawson to “wake up” and, referring to himself, also told

10

Lawson he was in “bad trouble,” “you gotta help me,” [Petitioner] and the other

11

man were going to take him to the desert to kill him, and he had lost his car keys.4

12

Lawson intervened, causing [Petitioner] to release Simington from his grip.

13

Lawson asked [Petitioner] where Simington’s car keys were. [Petitioner]

14

whistled, and the other man arrived and pulled a set of keys from his pocket. The

15

keys did not belong to Simington. Lawson grabbed the other man and told him to

16

“[g]o get [Simington’s car] keys.”5

17

Lawson then went to the alley with [Petitioner] and the other man to retrieve

18

Simington’s keys. [FN4: In subsection B below, we set forth additional facts about

19

this event in our discussion of [Petitioner’s] sufficiency-of-evidence challenge to

20
21
22
23
24
25
26
27
28

4

Simington testified (in essence) that he assumed that Petitioner and the
other man had the keys to his car, because Simington did not have them after the
scuffle. (2 RT 691.) He also testified that he told Lawson that he “lost [his] keys”
and that his keys were “missing.” (2 RT 701.) Lawson’s preliminary hearing
testimony, which the jury heard, reflected that Simington told Lawson, “They even
got my car keys.” (3 RT 946.)
5

Lawson’s preliminary hearing testimony was that Petitioner whistled to
summon the other man and that Petitioner then asked the other man for Simington’s
keys. (3 RT 958.) Simington testified that Lawson demanded Simington’s keys
from the other man when the other man responded to Petitioner’s whistle. (2 RT
701.)
5

1

the theft verdict.6] Simington stayed in the apartment. After returning Simington’s

2

keys, [Petitioner] and the other man left the scene.

3

About five or 10 minutes later, Simington went to the carport to inspect his

4

car and found it had been ransacked. Simington also noticed a pickup truck idling

5

at, and then departing from the alley’s southern end—the same end toward which

6

the other man had forcibly walked Simington after he and [Petitioner] had initially

7

apprehended Simington in the alley.

8
9

The police arrived, and Simington gave a statement to Deputy Benjamin
Casebolt. [Petitioner] was arrested. (LD 3 at 4-8.)

10

III.

11

PROCEDURAL HISTORY

12

Based on the August 21, 2015 attack, the District Attorney charged Petitioner

13

with two counts of assault with a deadly weapon: one count concerning Simington

14

(count 1) and the other concerning Schumann (count 14) (Cal. Pen. Code (“PC”)

15

§ 245(a)(1)). (1 CT 151, 158.)

16

Based on the November 1, 2015 events, the District Attorney charged

17

Petitioner with the attempted willful, deliberate, and premeditated murder of

18

Simington (count 3) (PC §§ 664, 187(a)); assault on Simington with a deadly

19

weapon (a knife) (count 4) (PC § 245(a)(1)); dissuading Simington from testifying

20

by force or threat (count 5) (PC § 136.1(c)(1)); making criminal threats against

21

Simington (count 6) (PC § 422(a)); kidnapping Simington (count 7) (PC § 207(a));

22

two counts of conspiracy to commit murder (counts 8 and 9) (PC §§ 182(a)(1),

23

187(a)); conspiracy to kidnap Simington (count 10) (PC §§ 182(a)(1), 207(a));

24

second degree robbery of Simington’s personal property (count 11) (PC § 211); and

25
26
27
28

6

The Court sets out these additional facts in its analysis of Petitioner’s
insufficiency of evidence claim.
6

1
2

first degree burglary (count 13) (PC § 459).7 (1 CT 148-159.)
The jury found Petitioner guilty of three counts of assault with a deadly

3

weapon (counts 1, 4, and 14), dissuading a witness from testifying (count 5),

4

criminal threats (count 6), attempted kidnapping8 (count 7), conspiracy to kidnap

5

(count 10), petty theft9 (count 11), and burglary (count 13). (1 CT 197-203, 206-

6

10.) The jury found Petitioner not guilty of conspiracy to commit murder (counts 8

7

and 9). (1 CT 204-05.) The trial court declared a mistrial on attempted murder

8

(count 3) because the jury could not reach a unanimous verdict on that charge. (4

9

RT 2414.)

10

Petitioner appealed. (LD 5, 6, 7.) The Court of Appeal affirmed his

11

convictions but reversed three 1-year sentence enhancements and remanded the

12

case for re-sentencing. (LD 3.)

13

On remand, the trial court vacated the sentence, struck the three

14

enhancements, and resentenced Petitioner to 17 years in state prison rather than 20.

15

(LD 4.) Petitioner again appealed. Petitioner’s appellate counsel filed a brief

16

pursuant to People v. Wende, 25 Cal.3d 436 (1979), and requested that the Court of

17

Appeal independently review the record. (LD 8.) The Court of Appeal found no

18

error and affirmed the judgment. (LD 9.)

19

Petitioner never filed a petition for review at the California Supreme Court in

20

either of his direct appeals. Instead, Petitioner accomplished exhaustion by filing a

21
22
23
24
25
26
27
28

7

The District Attorney’s Office charged Petitioner with two other crimes that
it ultimately did not bring to trial: battery with serious bodily injury (PC § 243(d)
(count 2) and conspiracy to dissuade a witness from testifying by force or threat
(PC §§ 136.1(c)(1), 182(a)(1)) (count 12). (See 1 CT 81, 87.)
8

The jury found Petitioner not guilty of the greater crime of actual
kidnapping. (1 CT 202.)
9

The jury found Petitioner not guilty of the greater crime of second degree
robbery. (1 CT 207.)
7

1

habeas petition with the California Supreme Court (LD 10) that was summarily

2

denied in February 2020 (LD 11).

3

IV.

4

CLAIMS

5

Ground Two: Appellate counsel provided ineffective assistance of counsel

6

(“IAC”) by failing to file a petition in the California Supreme Court for review

7

raising the claims raised unsuccessfully on initial direct appeal. (Pet. at 5, 12-13.)

8
9

Ground Three: There is insufficient evidence to support Plaintiff’s
conviction on count 11 for petty theft. (Id. at 5, 13-14.)

10

V.

11

STANDARD OF REVIEW

12

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”),

13

Petitioner is entitled to habeas relief only if the state court’s decision on the merits

14

“(1) resulted in a decision that was contrary to, or involved an unreasonable

15

application of, clearly established Federal law, as determined by the Supreme

16

Court” or “(2) resulted in a decision that was based on an unreasonable

17

determination of the facts in light of the evidence presented in the State court

18

proceeding.” 28 U.S.C. § 2254(d)(1)-(2); Cullen v. Pinholster, 563 U.S. 170, 181

19

(2011).

20

The relevant “clearly established Federal law” consists of only Supreme

21

Court holdings (not dicta), applied in the same context to which the petitioner seeks

22

to apply it, existing at the time of the relevant state court decision. Premo v.

23

Moore, 562 U.S. 115, 127 (2011). A state court acts “contrary to” clearly

24

established Federal law if it applies a rule contradicting the relevant holdings or

25

reaches a different conclusion on materially indistinguishable facts. Price v.

26

Vincent, 538 U.S. 634, 640 (2003). A state court “unreasonably appli[es]” clearly

27

established federal law if it engages in an “objectively unreasonable” application to

28

the facts of the correct governing legal rule. White v. Woodall, 572 U.S. 415, 425
8

1

(2014) (rejecting previous construction of section 2254(d) that a state court decision

2

involves an unreasonable application of clearly established Supreme Court law if

3

the state court “unreasonably refuses to extend a legal principle to a new context

4

where it should apply”). Habeas relief may not issue unless “there is no possibility

5

fair-minded jurists could disagree that the state court’s decision conflicts with [the

6

United States Supreme Court’s] precedents.” Harrington v. Richter, 562 U.S. 86,

7

103 (2011). “[T]his standard is ‘difficult to meet,’” Metrish v. Lancaster, 569 U.S.

8

351, 358 (2013), as even a “strong case for relief does not mean the state court’s

9

contrary conclusion was unreasonable,” Richter, 562 U.S. at 102.

10

VI.

11

DISCUSSION

12

A.

CLAIM TWO: IAC.

13

1. The Relevant State Court Decision.

14

For purposes of applying AEDPA deference, the relevant state court decision

15

is the last reasoned decision, if any. Ylst v. Nunnemaker, 501 U.S. 797, 806

16

(1991).

17

Here, Petitioner first presented an IAC claim to the California Supreme Court

18

in his habeas petition. (LD 10 at 7, 46 [letter from counsel confirming he did not

19

file a petition for review].) Specifically, Petitioner argued that his counsel on direct

20

appeal failed to “raise the enclosed claims.” (Id. at 7.) The two “enclosed” claims

21

in his state habeas petition were (1) that the trial court erred in overruling defense

22

counsel’s objections to hear any portions of Lawson’s preliminary hearing

23

testimony (id. at 4-5), and (2) insufficient evidence to support petty theft (id. at 6)—

24

i.e., the two claims raised unsuccessfully on direct appeal. (See LD 3 at 11-20.)

25

The California Supreme Court denied the claim without explaining its

26

reasoning. (LD 11.) When faced with an unexplained denial, federal courts

27

applying AEDPA must independently consider whether any reasonably grounds

28

exist on which the state court could have denied the claim. Richter, 562 U.S. at 98,
9

1

102; Murray v. Schriro, 882 F.3d 778, 802 (9th Cir. 2018).

2

2. The California Supreme Court’s Denial Had A Reasonable Ground.

3

There is no right to counsel on discretionary appeals. Pennsylvania v. Finley,

4

481 U.S. 551, 555 (1987). In California, after the first appeal, direct review occurs

5

only at the California Supreme Court’s discretion. See Douglas v. California, 372

6

U.S. 353, 356 (1963); People v. Scott, 64 Cal. App. 4th 550, 558 n.6 (1998).

7

Where no constitutional right to counsel exists, there can be no claim of ineffective

8

assistance. Wainwright v. Torna, 455 U.S. 586, 587-88 (1982). Petitioner,

9

therefore, cannot pursue an ineffective assistance claim based on his appellate

10

counsel’s failure to file a petition for review. See Lennan v. Janda, No. CV 12-

11

4510-JLS (JEM), 2015 U.S. Dist. LEXIS 167086, at *45 (C.D. Cal. Aug. 4, 2015);

12

Hollins v. Jaime, No. SACV 19-2487-FMO (KS), 2020 WL 2066141, at *6 (C.D.

13

Cal. Apr. 8, 2020) (“Because Petitioner had no constitutional right to appellate

14

counsel for discretionary review by the California Supreme Court, he could not

15

have been deprived of effective assistance by his appellate counsel’s failure to file a

16

timely request for review in that court.”). The California Supreme Court’s denial of

17

Petitioner’s IAC claim was therefore reasonable, and Petitioner does not warrant

18

habeas relief on this claim.

19

B.

CLAIM THREE: Insufficiency of the Evidence.

20

1. The Relevant State Court Decision.

21

Petitioner first presented this claim on direct appeal. (LD 5.) He then

22

presented it to the California Supreme Court in his habeas petition (LD 10 at 29,

23

40) and received an unexplained denial (LD 11).

24

When the California Supreme Court issues an unexplained decision after a

25

lower court has issued a reasoned decision, the reviewing federal court “looks

26

through” the unexplained decision, presuming that the California Supreme Court

27

denied relief on the same factual and legal grounds as the lower court. Ylst, 501

28

U.S. at 804. Thus, for purposes of applying AEDPA deference, the relevant state
10

1

court decision is the reasoned decision of the Court of Appeal. (LD 3.)

2

2. Clearly Established Federal Law.

3

Under Jackson v. Virginia, in determining a due process claim based on the

4

sufficiency of the evidence, “the critical inquiry ... is whether, after viewing the

5

evidence in the light most favorable to the prosecution, any rational trier of fact

6

could have found the essential elements of the crime beyond a reasonable doubt.”

7

443 U.S. 307, 318 (1979). In undertaking collateral review of a state court decision

8

rejecting a claim of insufficiency of the evidence pursuant to 28 U.S.C.

9

§ 2254(d)(1), the inquiry is “even more limited”; federal courts “ask only whether

10

the state court’s decision was contrary to or reflected an unreasonable application of

11

Jackson to the facts of a particular case.” Emery v. Clark, 643 F.3d 1210, 1213-14

12

(9th Cir. 2011) (citing Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005)).

13

The relevant inquiry is made in light of the applicable state law. Jackson, 443 U.S.

14

at 324 n.16; see also Emery, 643 F.3d at 1214 (“Insufficient evidence claims are

15

reviewed by looking at the elements of the offense under state law.”).

16

3. The California Court of Appeal’s Decision.

17

The Court of Appeal began by summarizing Petitioner’s briefing as arguing

18

that “the evidence supporting the jury’s guilty verdict on the petty theft charge

19

(count 11) was insufficient because there was no evidence that [Petitioner] intended

20

to steal Simington’s car keys, [Petitioner] knew or reasonably expected that the

21

other man who accompanied him would steal the keys, or anyone took the keys

22

from Simington.” (LD 3 at 17; see also LD 5 at 29-31.)

23

Next, the court summarized the elements of petty theft, relying on

24

CALCRIM 1800, the pattern jury instruction given to Petitioner’s jury (2 CT 228),

25

as follows:

26

The elements of theft are: The defendant (1) took possession of

27

property owned by someone else; (2) took the property without the

28

owner’s consent; (3) when taking the property, intended to deprive the
11

1

owner of it permanently or to remove it from the owner’s possession

2

for so extended a period that the owner would be deprived of a major

3

portion of the value or enjoyment of the property; and (4) moved the

4

property, even a small distance, and kept it for any period of time,

5

however brief. (CALCRIM No. 1800.)

6
7
8

(LD 3 at 18.)
The court then summarized the evidence that would support a finding on
each disputed element, as follows:

9

Lawson testified at the preliminary hearing about the events

10

surrounding Simington’s car keys, which testimony was read back at

11

trial, as follows.10 When Simington first arrived at the apartment with

12

[Petitioner] and saw Lawson, Simington “said that they even got my

13

car keys.” [3 RT 946.] At some point after Simington went into the

14

apartment, [Lawson] and Simington were asking [Petitioner] about the

15

whereabouts of Simington’s car keys. [Petitioner] then whistled, the

16

other man came, and [Petitioner] asked the other man for Simington’s

17

keys. [3 RT 949.] The other man produced keys but not Simington’s.

18

[3 RT 958.] Lawson, [Petitioner], and the other man went outside to

19

the carport area in the alley behind Simington’s apartment building,

20

where the other man went into one of the carport stalls [about five or

21

six stalls away] and returned about a minute later with Simington’s

22

keys. [3 RT 958-59.]

23
24

At trial, Simington testified about the events concerning the
keys as follows. Simington arrived home from work in his car, which

25
26
27
28

10

Lawson died after the preliminary hearing but before trial. Because he was
“unavailable,” his preliminary hearing testimony was read to the jury. (3 RT 93738, 1589.)
12

1

he parked in the alley behind his apartment building. [3 RT 918.]

2

After [Petitioner] initially tackled Simington in the alley, brandished a

3

knife, and with the other man, grabbed Simington and walked him

4

down the alley, Simington could not find his keys.11 [2 RT 689-91.]

5

Simington then persuaded [Petitioner] to let him go to his apartment,

6

and Lawson appeared. [2 RT 695-98.] When the other man came to

7

the apartment, Lawson grabbed him and said “come here” and “[g]o

8

get his keys.” [2 RT 701.] Simington stayed in the apartment while

9

Lawson, [Petitioner], and the other man retrieved his keys from the

10

carport. [2 RT 702.]

11

Lawson’s and Simington’s chronological accounts of the events

12

support a reasonable inference that Simington dropped his keys when

13

[Petitioner] initially chased him down the alley, and that [Petitioner]

14

himself or through the other man then took physical possession of

15

Simington’s keys from the alley floor. [Petitioner] and Simington’s

16

earlier physical altercation, the threats to kill Simington that

17

[Petitioner] made in the alley, [Petitioner]’s attempt to give Simington

18

the wrong keys at Simington’s apartment, and the presence of the

19
20
21
22
23
24
25
26
27
28

11

At the preliminary hearing, Simington testified that he had placed the keys
on the passenger seat after removing them from the ignition. (2 CT 310-11.) It is
unclear what he did with them afterward, if anything. He also testified at the
preliminary hearing that “the black guy” accompanying Petitioner “ransack[ing]”
the car after “g[e]t[ting]” Simington’s “keys,” but then said, “You know, I don’t
know what he did. I wasn’t there.” (2 CT 323.) Neither the prosecution nor
Petitioner’s counsel sought to introduce this portion of Simington’s preliminary
hearing testimony as evidence in the trial. In evaluating a sufficiency of the
evidence claim, courts consider only the “record evidence” considered by the jury.
See Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (“[T]he dispositive
question under Jackson is ‘whether the record evidence could reasonably support a
finding of guilt beyond a reasonable doubt.’”).
13

1

knife all support an inference that Simington never consented to

2

[Petitioner]’s taking his keys.

3

That evidence also supports a reasonable inference that

4

[Petitioner] intended to deprive Simington of his keys permanently or

5

for an extended period so as to deprive Simington of a major portion

6

of the value or enjoyment of his keys. This inference is especially

7

true because by taking the keys, [Petitioner] impeded Simington’s

8

ability to escape. Finally, the facts that (1) the other man retrieved

9

Simington’s keys from a place different from where Simington

10

dropped them, and (2) Simington’s car was ransacked between the

11

time he “lost” his keys and [Petitioner] and the other man returned

12

them at Lawson’s insistence [2 RT 702] support a reasonable

13

inference that [Petitioner] moved the keys and maintained possession

14

of them for some time. Therefore, the evidence adduced at trial was

15

sufficient to support each element of theft.

16

[Petitioner] also argues that the evidence of his intent to deprive

17

Simington of his car keys was insufficient because (1) Simington

18

testified that he told Lawson he had “lost” his keys, negating an

19

inference that [Petitioner] wanted to take Simington’s keys, (2) the

20

other man shortly thereafter returned the keys to Simington, and

21

(3) [Petitioner] and the other man had their own cars and were without

22

a third accomplice who could have simultaneously operated

23

Simington’s car. By these contentions, [Petitioner] asks us to draw

24

inferences contradicting those the jury drew. The substantial evidence

25

standard of review does not permit us to do so.

26

(LD 3 at 18-20.)

27

4. The California Court of Appeal Reasonably Denied this Claim.

28

The Court is skeptical of some of the California Court of Appeal’s factual
14

1

conclusions. For example, it found that the man retrieved Simington’s keys “from

2

a place different from where Simington dropped them.” (LD 3 at 20.) Yet

3

Simington did not know exactly when or where the keys left his possession, and the

4

carport area (where the keys were found) was along the alley where the initial

5

scuffle occurred. The California Court of Appeal also attributes some actions to

6

Petitioner that the evidence does not support. The court found that Petitioner

7

attempted to give Simington the wrong set of keys (id. at 19), but there is no

8

indication that Petitioner intended the other man to give Simington the wrong

9

keys—especially given that, according to Lawson, Petitioner then instructed the

10

other man to go retrieve the correct keys.

11

Nonetheless, even if the Court found that the state court based its decision on

12

an unreasonable determination of the facts—warranting de novo review (see Hurles

13

v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014))—the Court would still deny

14

Petitioner’s claim. The evidence could have supported multiple versions of events.

15

It is possible, maybe even likely, that Simington dropped the keys; his car was

16

unlocked, permitting Petitioner or the other man to “ransack” it; and the other man

17

found Simington’s keys fortuitously in the carport area. Still, one of the versions of

18

events supported by the evidence is the version that the jury accepted.12 Viewing

19

the evidence in the light most favorable to the prosecution, a rational trier of fact

20

could have found that Petitioner took possession of Simington’s car keys (the

21

primary element in dispute, as in these circumstances the other elements follow

22

from this one13). Petitioner had a motive to take the keys—i.e., preventing

23
24
25
26
27
28

12

Notably, the jury rejected the second degree robbery charge (which
required that Petitioner took the keys from Simington’s person, by force or fear or
to prevent Simington from resisting) and the lesser-included grand theft charge
(which required that theft was from Simington’s person), opting instead for petty
theft. (4 RT 1857-60, 2423.)
13

If Petitioner did in fact take the keys, then it would have likely involved
moving the keys, without Simington’s consent, and with the intent to deprive
15

1

Simington’s escape. Petitioner or the other man had the opportunity to take the

2

keys—i.e., during the scuffle or shortly thereafter. Circumstantial evidence

3

supported the notion that Petitioner—or, at his instruction or with his knowledge

4

and support, the other man14—took Petitioner’s keys either from Petitioner’s car or

5

from the ground, and later dropped them or placed them in the carport area. When

6

Lawson told Petitioner to return Simington’s keys, Petitioner did not protest—

7

“What keys? We didn’t take his keys!”—but instead whistled for the other man

8

and asked him for the keys, suggesting that Petitioner knew that the other man was

9

responsible. Nor did the other man protest—“What keys?”—but instead reached in

10

his pocket for keys. When Simington disclaimed the produced keys, the other man

11

led Lawson directly to the place where the keys were and produced them a mere

12

minute later, suggesting that he had remembered (or had always known) where the

13

keys had been placed. Further, the car was ransacked (although granted it is

14

unclear whether the car was locked at the time). This is not overwhelming

15

evidence, but nor is it so flimsy that no rational trier of fact could have convicted

16

Petitioner.

17

///

18

///

19

///

20
21
22
23
24
25
26
27
28

Simington of the enjoyment of the keys. Even kicking the keys away so that
Simington could not reach them—i.e., so that they were under Petitioner’s control
and not Simington’s—might support a petty theft conviction. For example, the jury
was instructed, “A person does not have to actually hold or touch something to
possess it. It is enough if the person has control over it or the right to control it,
either personally or through another person.” (4 RT 1859.)
14

The trial court instructed the jury on aiding and abetting, because “the
other individual involved ended up with the keys.” (3 RT 1558; see also 3 RT 1581
[prosecutor telling jury, “it doesn’t matter which of them took the keys because we
have something in the law called aiding and abetting”]; 4 RT 1827-28.)
16

1

V.

2

CONCLUSION

3
4

Based on the foregoing, the Court directs that judgment be entered denying
the Petition on the merits.

5
6
7
8

DATED: July 14, 2021
____________________________________
KAREN E. SCOTT
UNITED STATES MAGISTRATE JUDGE

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