Jose P. Mitchell v. Warden

Filing 28

MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott. IT IS ORDERED that Judgment be entered denying the FirstAmended Petition. (SEE ORDER FOR FURTHER DETAILS). (et)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Petitioner,

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MEMORANDUM OPINION AND
ORDER

v.

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Case No. 2:23-cv-02516-KES

JOSE PEPE MITCHELL,

D. SAMUEL, Warden
Respondent.

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I.

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INTRODUCTION

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On March 31, 2023, Petitioner filed a pro se Petition for Writ of Habeas

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Corpus by a Person in State Custody (Dkt. 1 (“Petition”)) and, on May 15, filed a

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First Amended Petition (Dkt. 6 (“FAP”)), raising two claims challenging his 2016

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convictions for robbery, attempted robbery, and conspiracy.1 See People v.

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Mitchell, No. B281476, 2019 WL 1498791 (Cal. Ct. App. Apr. 5, 2019). On

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Petitioner previously filed a federal habeas petition that was dismissed
without prejudice. See Mitchell v. Johnson, No. 2:20-cv-05358-MWF-KES (C.D.
Cal. filed June 16, 2020), Dkt. 1, 6, 7.

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November 2, 2023, Respondent filed an Answer. (Dkt. 21.) On December 11,

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2023, Petitioner filed a Traverse. (Dkt. 27.) The parties consented to have the

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undersigned conduct all proceedings in this case, including the resolution of all

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dispositive matters. (See Dkt. 23, 24.) The matter, thus, stands submitted and

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ready for decision.

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II.

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BACKGROUND

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On November 28, 2018, a Los Angeles County Superior Court jury in Case

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No. YA091753 convicted Petitioner of two counts of second-degree robbery, three

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counts of attempted second-degree robbery, and one count of conspiracy and found

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him not guilty of one count of robbery. (3 Clerk’s Transcript (“CT”) at 633-41.)2

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In a bifurcated proceeding, the trial court found that Petitioner had suffered a prior

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felony conviction. (6 Reporter’s Transcript (“RT”) at 4217.) He was sentenced to

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21 years in state prison.3 (3 CT at 713.)

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Petitioner appealed, raising both of the FAP’s claims and a sentencing claim.

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(See Lodged Document (“LD”) 23.) The California Court of Appeal affirmed the

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judgment on November 11, 2018, in a reasoned decision. (LD 1.) Petitioner then

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sought review in the California Supreme Court (LD 2, 3), which granted review

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concerning the sentencing claim and ordered the court of appeal to vacate its

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Except for citations to the Reporter’s Transcript and Clerk’s Transcript,
page citations refer to the pagination imposed by the Court’s electronic filing
system.
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In a separate case in Los Angeles County Superior Court (Case No.
TA124565), Petitioner was found to have violated his probation by committing the
crimes of which he was convicted in Case No. YA091753. (See LD 10 at 30-31.)
Although neither of the FAP’s claims concerns that finding, one of it claims alleges
that the jurors’ exposure in Case No. YA091753 to the existence of the probationviolation case violated due process and deprived Petitioner of his right to a fair trial.
(See Dkt. 6 at 5, 121.)
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decision and “reconsider the cause in light of Senate Bill No. 1393” (LD 4), which

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gave California trial courts discretion to strike certain sentencing enhancements.

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See Mitchell, 2019 WL 1498791, at *1. On reconsideration, the court of appeal

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remanded to the trial court to consider whether to exercise its discretion under

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Senate Bill No. 1393 but otherwise affirmed the judgment. (LD 5 at 33.) Petitioner

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again filed a petition for review in the California Supreme Court (LD 6), which

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denied review on June 12, 2019 (LD 7).4

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On October 26, 2020, Petitioner filed a habeas petition in the superior court,

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which denied it in a reasoned decision. (See LD 9 at 53-54.) On September 12,

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2021, he filed a second habeas petition in the superior court, which denied it in

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another reasoned decision.5 (See id. at 58, 60-61.) On January 18, 2022, he filed a

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habeas petition in the court of appeal (LD 12), which denied it for failure to “state a

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prima facie basis for relief” (LD 13 (citations omitted)). He has not filed any

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habeas petitions in the California Supreme Court. See Cal. App. Cts. Case Info.,

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http://appellatecases.courtinfo.ca.gov/ (search for “Jose” with “Pepe” and

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“Mitchell” in supreme court) (last visited Mar. 11, 2024).

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On remand, the trial court declined to strike the sentencing enhancement.
(LD 9 at 52.) Neither of the FAP’s claims concerns that decision. Accordingly, the
Court omits the lengthy procedural history concerning Petitioner’s unsuccessful
efforts to overturn it.
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Respondent was unable to obtain copies of the habeas petitions that
Petitioner filed in the superior court despite diligent efforts to do so. (See Answer
at 15 n.5.) Petitioner, however, attached an undated habeas petition with no file
stamp bearing the superior court’s name and address on its caption page. (See Dkt.
6 at 47-83.) The Court cannot determine with certainty whether that petition was
ever filed or, if it was, which reasoned decision by the superior court corresponds to
it. The Court need not resolve this issue because Petitioner exhausted the FAP’s
two claims on direct appeal (see LD 23), and there is a reasoned decision
concerning those claims (LD 5). Petitioner does not assert any other claim in the
FAP. (See Dkt. 6 at 5, 121.)
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III.

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FACTUAL BACKGROUND

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The underlying facts are taken from the unpublished California Court of

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Appeal decision on Petitioner’s direct appeal. (LD 5 at 10-21); Mitchell, 2019 WL

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1498791, at *5-10. Unless rebutted by clear and convincing evidence, these facts

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are presumed correct. Tilcock v. Budge, 538 F.3d 1138, 1141 (9th Cir. 2008); 28

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U.S.C. § 2254(e)(1). Because Petitioner challenges the sufficiency of the evidence,

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this Court has also conducted an independent review of the record. See Jones v.

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Wood, 114 F.3d 1002, 1008 (9th Cir. 1997).

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The evidence and testimony received at the second trial revealed the
following material facts.6

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a.

The initial robberies in Torrance

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On the afternoon of June 27, 2014, Jeannie Kim went to a branch of BBCN

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Bank located on Sepulveda Boulevard in Torrance. After completing her business,

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she went out to her car and placed her purse behind the driver’s seat. Ms. Kim

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then drove to her home in Torrance and pulled into her garage. When Ms. Kim got

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out of the car, a young African-American male whom she did not know was

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standing inside her garage very close to her car. He demanded her purse. Ms. Kim

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refused. The man demanded her purse again and, this time, pointed a gun at her

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and pushed her. She stepped backward and fell. Ms. Kim saw the man reach

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behind her front driver’s seat, grab her purse and run to a white car in the street.

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The man got into the front passenger seat. Ms. Kim did not get a look at the driver.

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She got back into her car and attempted to pursue the white car as it fled, but she

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was unable to keep up with it. Ms. Kim testified she was not sure if [Petitioner]

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Petitioner’s first trial ended in a mistrial after the jurors were unable to
reach a verdict. See Mitchell, 2019 WL 1498791, at *1.
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was the man who took her purse.
A couple of weeks later, on July 11, 2014, Su Jin Lim left the BBCN Bank in

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Gardena, drove to her home in Torrance, and parked her white Toyota Camry in

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her driveway. Ms. Lim got out of the car carrying a small, pink backpack that

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contained several items, including her cell phone and bank cards, and went to get

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something out of her trunk. While she was standing at her open trunk, an African-

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American male, in his 20’s or 30’s, came up to her and told her not to make any

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noise. Ms. Lim screamed, and the man hit her in the side of her head with a hard

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object that felt metallic. She screamed again for help and tried to hold on to her

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backpack, but the man wrested it away from her. He then jumped into a brown-

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colored car that was waiting at the end of her driveway and fled. Ms. Lim was

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bleeding from the wound to her head and required medical attention. Ms. Lim was

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unable to identify [Petitioner] in court.

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James Chen lived on the same street as Ms. Lim. He and his wife had just

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pulled out of their driveway on their way to dinner when Mrs. Chen said she heard

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a scream. Mr. Chen looked in the direction his wife pointed and saw Ms. Lim at the

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end of her driveway, struggling with a dark-skinned man, wearing a baseball cap.

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The man jumped into an older model, brown-colored Honda. The Honda drove off

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in the opposite direction, so Mr. Chen made a U-turn and tried to chase it. The

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Honda ran through several stop signs, so Mr. Chen was unable to catch up or get a

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license plate number.

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Detective Jeff Livingston of the Torrance Police Department investigated the

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similar “follow home” robberies involving Jeannie Kim and Ms. Lim. Detective

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Livingston learned that the Chen’s home had security cameras. He obtained the

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video footage from those cameras which showed Ms. Lim’s white Camry driving

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down the street just before the time of the robbery, followed by a brown-colored

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Honda and a red car with black rims. Shortly thereafter, the footage showed the

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red car and brown Honda driving back down the street in the opposite direction.

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Detective Livingston showed the footage to Detective Dariusz Wawryk, who agreed

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that it appeared the two cars may have been involved in the robbery.

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Detective Livingston contacted Detective Michael Ross of the Gardena

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Police Department and inquired about the video footage from Gardena’s traffic

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cameras located in the vicinity of the BBCN Bank for the afternoon of July 11,

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2014. Detective Livingston asked Detective Ross to look for images of a white

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Camry, a brown Honda, and a red car with a black top and black rims. Detective

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Ross found footage showing a white Camry travelling south on Normandie Avenue

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not far from the BBCN Bank, with a brown car (or one with rusted or oxidized

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paint) and a red car with a black top following in fairly close proximity. Both

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Detective Livingston and Detective Wawryk believed the cars looked similar to

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those captured by the Chen’s home security cameras.

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In August, Ms. Lim emailed Detective Livingston the monthly statement for

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her cell phone. The statement showed that on July 11, a few hours after she was

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robbed, her phone was used to make a call to a phone number she did not

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recognize (ending -8143). After obtaining a search warrant, Detective Livingston

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determined that phone number belonged to an individual named Darian Baber.

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Detective Livingston and Detective Wawryk also obtained access to Baber’s

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Facebook account. On June 27, 2014, the date Jeannie Kim was robbed, Baber

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posted a selfie on his Facebook page. In the photograph, Baber is sitting in a car

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holding numerous $ 100 bills, and a Hispanic male is visible in the back seat.

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Baber’s appearance in the photograph fit the general description of the suspect

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given by Ms. Kim, and the money stolen from her that day had been the same

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denomination ($100 bills).

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In response to these leads, the Torrance Police Department initiated
surveillance of Baber. While the detectives were watching Baber’s house in
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Inglewood, they saw a red car (similar to the one captured on the Chen’s security

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footage and the Gardena traffic cameras) arrive and park outside. The car was a

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red Infiniti sedan with a black top and black rims. After checking the license plate

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number, they determined [Petitioner] was the registered owner of the car. The

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police later saw [Petitioner] and Baber talking to each other on multiple occasions,

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and [Petitioner] was identified as a “friend” on Baber’s Facebook page.

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b.

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On the afternoon of November 25, 2014, Lydia Kim left the Hamni Bank at

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The Culver City incidents

3737 West Olympic Boulevard and went to meet a client at a business called

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Master’s Golf. She parked her car in the lot and headed toward the entrance of the

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building. When she got near the door, the manager of Master’s Golf came out to

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meet her and asked why she had come with an African-American male. She was

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scared as she did not realize someone was walking near her, so she quickly went

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inside the building. The African-American man turned and walked away. Ms. Kim

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was unable to identify [Petitioner] in court because she had never seen the man’s

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face. During her testimony, Ms. Kim looked at video footage from a nearby

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security camera that captured the encounter. She identified herself as the person

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being followed by an African-American male wearing a construction vest, who then

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left in a black car after she entered Master’s Golf.

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Later that same day, Young Ok Hwang also conducted business at the same

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branch of Hamni Bank. She withdrew $7,000, placed the money in her purse, and

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then drove to her home on Whitburn Avenue in Culver City. By the time she

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arrived home, and parked in her driveway, it was dark outside. Ms. Hwang

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grabbed her purse, removed a piece of luggage from her trunk, and then walked to

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the end of her driveway to get her mail. Before she got to her mailbox, an African-

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American male suddenly appeared and ran toward her. He was wearing a

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construction worker’s vest. He grabbed her purse, and Ms. Hwang struggled with

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him. She was too shocked and scared to scream. The man wrested the purse from

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her and ran to the street. Ms. Hwang then cried out for help. The man jumped into

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the passenger side of a black car and the car sped off.

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Detective Ryan Thompson of the Culver City Police Department investigated

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the incidents involving Lydia Kim and Ms. Hwang. Detective Thompson obtained

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the video surveillance footage from the business located next to Master’s Golf. The

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video showed the arrival of Ms. Kim, an African-American man following her, and

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a red car making a U-turn and pulling up near the driveway, followed by a black

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car that parked in the lot.

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Detective Thompson also spoke with Anthony Canchari, a witness to the

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robbery of Ms. Hwang. Mr. Canchari said he was standing at a nearby corner

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when he saw an African-American male get out of a maroon-colored car and head

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in the direction of Whitburn Avenue. Mr. Canchari then heard a woman scream.

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The African-American male ran back to the maroon car and got in. The driver of

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the car turned off the headlights and fled the area. A black car followed. When

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Detective Thompson showed Mr. Canchari some photographs, he identified

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[Petitioner’s] red Infiniti and signed his name on the photograph, noting “This car

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looks familiar.”

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At trial, Ms. Hwang identified the construction vest recovered from

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[Petitioner] as the “same vest” she had seen on the man who robbed her. Ms.

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Hwang identified [Petitioner] in court as the person who took her purse. She

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admitted she had testified in the first trial that she was not sure if [Petitioner] was

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the one who robbed her. Ms. Hwang explained she had done so because she was

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scared [Petitioner] would seek revenge against her. Ms. Hwang said she wanted to

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just tell the truth even though she was still a little afraid to do so. When asked on

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redirect, Ms. Hwang reiterated she had previously equivocated about [Petitioner’s]

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identification out of fear. The prosecutor asked again if she believed [Petitioner]

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was the person who stole her purse, and she said “yes, I think so.” The prosecutor

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asked, “are you sure?” Ms. Hwang responded, “yes.”

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c.

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The Torrance Police Department began a surveillance operation, supervised

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by Detective Eric Williams, that involved several plain clothes detectives, including

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Detective Wawryk and Detectives Brent Clissold and Scott Nakayama. The

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undercover detectives, working in teams, drove unmarked cars and documented the

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activities of [Petitioner] (as well as Baber and Villanueva) on multiple days over a

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period of months.

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The surveillance operation

According to Detective Clissold, the activities of [Petitioner], Baber and

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Villanueva followed a regular pattern. [Petitioner] was usually observed driving

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his red Infiniti, while Baber would be in a separate car with a third person (usually

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Villanueva). The two cars would follow each other to one of the branches of Hamni

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Bank or BBCN Bank (“like they’re trailing each other”), park and then wait in an

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area where the bank’s front doors and parking lot were visible. After a customer

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would leave the bank, the two cars, driving “in tandem,” would follow the customer

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to their home or place of business. They always drove this way, travelling in

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proximity to each other, making the same turns and leaving locations at the same

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time. All of the known victims and potential victims were Asian females.

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On the afternoon of December 8, 2014, [Petitioner] was observed by

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Detective Williams parking his car near the Hamni Bank at 3737 West Olympic

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Boulevard. [Petitioner] got out of the car and put on a “caution” or construction

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vest. Detective Nakayama was also surveilling [Petitioner] and saw him walking

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near the bank talking on his cell phone. At some point, a female customer left the

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bank in a white Lexus sports utility vehicle, and [Petitioner], in his car,

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immediately “shadow[ed]” her, along with Baber and a third person (possibly

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Villanueva) in a black Infiniti. Jieun Kim was the driver of the Lexus. The two cars

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followed Ms. Kim’s Lexus “in tandem” until it pulled into her garage which was

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protected by two separate security gates. Both [Petitioner] and the black Infiniti

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pulled over and parked at the curb. After a few moments, they both drove off.

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On December 17, 2014, Soon J. Le left the Hamni Bank on 3099 West

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Olympic Boulevard and headed back to work in her Honda Pilot. She pulled into

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the covered parking structure and found a parking spot. She noticed a car behind

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her with two occupants. The driver appeared to be a Hispanic male. She gestured

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for them to move so she could back her car up a bit and straighten it in the parking

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space. Ms. Le then got out of her car, gave her key to the parking attendant and

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went inside.[FN]

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FN.

Ms. Le was unavailable to testify at the second trial, so her testimony

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from the first trial was read into the record. Ms. Le had been unable

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to identify [Petitioner] in court at the first trial.

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This encounter was observed by detectives Clissold, Williams, Nakayama

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and Wawryk who were working surveillance that day. Detective Clissold saw

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[Petitioner] in his red Infiniti at a gas station on Olympic Boulevard. Baber and

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Villanueva arrived in a white Honda shortly thereafter. The three men spoke

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together briefly. Baber and Villanueva got back into the Honda and left the gas

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station. [Petitioner] followed. The detectives trailed the two cars to where they

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both parked across the street from the Hamni Bank on 3099 West Olympic

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Boulevard. Detective Williams noted the subjects had parked in areas with a

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“good visual” of the front of the bank and the parking lot.

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After sitting outside the bank in their respective cars for awhile, [Petitioner],

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Baber and Villanueva drove off, following a female customer in a blue Honda Pilot,

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who the detectives later learned was Ms. Le. Detective Williams saw Villanueva

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and Baber in the white Honda follow Ms. Le into a covered parking structure.

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[Petitioner], in his red Infiniti, parked at the curb a short distance from the

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driveway. Detective Williams double-parked several car lengths behind

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[Petitioner]. [Petitioner’s] driver side window was rolled down and Detective

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Williams could see [Petitioner], somewhat slouched down, looking at him in his

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driver’s side mirror. After a few minutes the white Honda came out of the parking

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structure and drove off, as did [Petitioner].

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Meanwhile, the detectives had determined that the white Honda, driven by

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Villanueva, had been reported stolen. A patrol car, not involved in the surveillance

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operation, drove past in the opposite direction and made a U-turn, apparently

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noting the stolen vehicle. Both [Petitioner] and the white Honda immediately made

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an evasive move, turning onto a side street. Baber and Villanueva abandoned the

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white Honda. The detectives called off the patrol car so as to not interfere with

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their surveillance operation. The detectives saw Baber and Villanueva being

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picked up by [Petitioner] in the red Infiniti.

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That same day, the detectives also observed [Petitioner], Baber and

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Villanueva make several other unsuccessful attempts to rob female victims, and

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several vehicle burglaries.

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Detective Williams later interviewed Ms. Le who reported the two men who

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had pulled in behind made her nervous because they were staring at her and her

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car, and it was unusual to see anyone who was not Asian in the parking structure

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since everyone with whom she worked was Asian. Therefore, she said that when

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she got out of her car she immediately went over to the parking attendant and went

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inside.

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d.

[Petitioner’s] pretrial statement

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[Petitioner] was arrested on December 19, 2014. [Petitioner’s] cell phone

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was taken into evidence, as was a construction or safety vest located in the trunk of

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his car. While in custody, [Petitioner] waived his right to remain silent, did not ask

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to speak to an attorney and gave a statement to Detective Wawryk. The statement

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was recorded and a redacted portion was played for the jury.
[Petitioner] identified his cell phone and confirmed his phone number ending

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-2215. [Petitioner] also confirmed he owned the red Infiniti with the black top and

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black rims.

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Detective Wawryk asked [Petitioner] why he would be participating in these

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robberies when he had a job, particularly with a gun involved where someone

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would eventually get hurt. [Petitioner] responded, “There’s no gun (inaudible) I’m

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not bullshit [sic] you. Nobody has a gun.” In response to being asked why there

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would be long periods in between some of the robberies, [Petitioner] said, “Didn’t

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want to do it.” [Petitioner] asked several times if there was anything he could do

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to help himself, including asking if he could provide information. “No snitching in

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the world to get me out of this, huh, not even no wire informant?”

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Detective Wawryk explained that he had to present the case to the district

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attorney, that he was not the person who could make any type of deal, but that he

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could tell the district attorney that [Petitioner] was remorseful or otherwise. He

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said, “you tell me . . . how did you feel?” [Petitioner] said, “I was raised better

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than this.”

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Detective Wawryk told [Petitioner] he was on videotape. “[Y]ou were there.

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I got you — I got you on surveillance, neighbor’s house, and I got you on

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surveillance . . . . Leaving the BBCN in Gardena, going down Normandie, you —

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you got to realize there’s frickin [sic] surveillance video all over the streets; you

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know what I mean? So am I — am I bullshitting you?” [Petitioner] responded,

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“not really.”

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Detective Wawryk again told [Petitioner] they had a lot of security camera

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footage and other evidence implicating him and his “crew,” enough to charge him

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on three completed robberies and four attempted robberies. [Petitioner]

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responded, “Just give me a charge for attempted. Are . . . you charging me?”

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[Petitioner] continued to deny personally taking anything from anyone. “I

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never robbed.” Detective Wawryk said, “but you were — you were part of the

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crew.” [Petitioner] interjected, “I’m saying I never robbed nobody.” Detective

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Wawyrk explained, “You were part of the crew. You guys were working in concert

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together. You were identifying victims for them. You were following people from

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the bank. You were setting up on one side of the street; they set up on the other and

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yeah, they pop out of the car. They complete the robbery but you were part of the

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crew; you know what I mean? You can’t deny that.”

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[Petitioner], responded: “Yeah, but you’re — but I’m being charged with

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actual robbery.” Detective Wawryk said, “well, the crew, the whole crew is

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charged with the robbery.” To which [Petitioner] asked, “Is that how they

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(inaudible).” Detective Wawryk said, “Yeah, that’s how it is, yeah.”

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Later on, near the end of the interview, [Petitioner] asked, “If I give you the

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rest of the information that you need, . . . what type of deal do I have to work out for

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me?” [Petitioner] eventually said he did not think it was going to help his

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situation, but he could tell them where “some stuff” was in storage. He then asked

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if they took anything from his mother’s house. It was near Christmas time and he

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asked, “[y]ou didn’t take the presents, though, because some of that stuff I didn’t

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steal, actually, but.”

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e.

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Detective Thompson testified as an expert in cell phone technology and cell

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phone record analysis. In looking at the records for [Petitioner’s] cell phone and

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Baber’s cell phone, he determined that on the dates of four of the incidents, there

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was regular communication between their two phones. There were 14 calls

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between them on June 27, the date of the robbery of Ms. Kim in Torrance. There

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were 22 calls on July 11, the date of the robbery of Ms. Lim in Torrance. And, on

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November 25, the date of the attempt on Ms. Kim at Master’s Golf and the robbery

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Cell phone records

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of Ms. Hwang in Culver City, there were also 22 calls between them.

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Detective Thompson further testified that the GPS tracking for the two cell

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phones showed the phones were used to make calls in the vicinity of the banks or

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the victims’ homes during several of the incidents. He explained that when a cell

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phone is used to make a call, it will “ping” or be documented as within the

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coverage area of a particular cellular phone tower.

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In analyzing the records for [Petitioner’s] cell phone, Detective Thompson

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opined that [Petitioner’s] cell “phone [was] pinging in the area of these banks

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where these victims [were] leaving from and [were] generally speaking, heading

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towards the areas where these victims lived. [¶] Right after they’re robbed, the

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phone appears to move away from where the victims live[d] towards where

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[Petitioner] reside[d].”

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f.

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[Petitioner] did not testify and did not call any witnesses.

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Defense evidence

(LD 5 at 10-21.)

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IV.

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GROUNDS FOR RELIEF7

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1.

The trial court violated due process and deprived Petitioner of his right

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to a fair trial by denying his motions for mistrial based on the jurors’ exposure to

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extrinsic information concerning his probation-violation case. (Dkt. 6 at 5, 121.)

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2.

There was insufficient evidence to support Petitioner’s convictions for

conspiracy, robbery, and attempted robbery. (Id.)

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Petitioner’s presentation of his claims is somewhat unclear (See Dkt. 6 at
121), but construed liberally, see Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir.
2008) (district courts are obligated to liberally construe pro se litigant filings), he
appears to assert the same challenges to his convictions that he raised on direct
review. (Compare Dkt. 6 at 121, with LD 23 at 2-3.)
14

1

V.

2

STANDARD OF REVIEW

3

Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective

4

Death Penalty Act of 1996 (“AEDPA”), a federal court may not grant a writ of

5

habeas corpus on behalf of a person in state custody “with respect to any claim that

6

was adjudicated on the merits in State court proceedings unless the adjudication of

7

the claim (1) resulted in a decision that was contrary to, or involved an

8

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

9

Supreme Court of the United States; or (2) resulted in a decision that was based on

10

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

11

State court proceeding.” As explained by the Supreme Court, § 2254(d)(1) places a

12

“constraint on the power of a federal habeas court to grant a state prisoner’s

13

application for a writ of habeas corpus with respect to claims adjudicated on the

14

merits in state court.” Williams v. Taylor, 529 U.S. 362, 412 (2000). In Williams,

15

the Court held that:

16

Under the “contrary to” clause, a federal habeas court may grant

17

the writ if the state court arrives at a conclusion opposite to that

18

reached by this Court on a question of law or if the state court

19

decides a case differently than this Court has on a set of

20

materially indistinguishable facts. Under the “unreasonable

21

application” clause, a federal habeas court may grant the writ if

22

the state court identifies the correct governing legal principle

23

from this Court’s decisions but unreasonably applies that

24

principle to the facts of the prisoner’s case.

25

Id. at 412-13; see Weighall v. Middle, 215 F.3d 1058, 1061-62 (9th Cir. 2000)

26

(discussing Williams). A federal court making the “unreasonable application”

27

inquiry asks “whether the state court’s application of clearly established federal law

28

15

1

was objectively unreasonable.” Williams, 529 U.S. at 409; Weighall, 215 F.3d at

2

1062. The Williams Court explained that “a federal habeas court may not issue the

3

writ simply because that court concludes in its independent judgment that the

4

relevant state court decision applied clearly established federal law erroneously or

5

incorrectly. Rather, that application must also be unreasonable.” 529 U.S. at 411;

6

accord Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). Section 2254(d)(1)

7

imposes a “highly deferential standard for evaluating state-court rulings,” Lindh v.

8

Murphy, 521 U.S. 320, 333 n. 7 (1997), that “demands that state court decisions be

9

given the benefit of the doubt,” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per

10

curiam). A federal court may not “substitut[e] its own judgment for that of the state

11

court, in contravention of 28 U.S.C. § 2254(d).” Id. at 25; Early v. Packer, 537

12

U.S. 3, 11 (2002) (per curiam) (holding that habeas relief is not proper where state

13

court decision was only “merely erroneous”).

14

The only definitive source of clearly established federal law under AEDPA is

15

the holdings (as opposed to the dicta) of the United States Supreme Court as of the

16

time of the state court decision. Williams, 529 U.S. at 412. While circuit law may

17

be “persuasive authority” for purposes of determining whether a state court decision

18

is an unreasonable application of Supreme Court law, Duhaime v. Ducharme, 200

19

F.3d 597, 600-01 (9th Cir. 1999), only the Supreme Court’s holdings are binding on

20

the state courts and only those holdings need be reasonably applied, Williams, 529

21

U.S. at 412; Moses v. Payne, 555 F.3d 742, 759 (9th Cir. 2009). Furthermore,

22

under § 2254(e)(1), factual determinations by a state court “shall be presumed to be

23

correct” unless the petitioner rebuts the presumption “by clear and convincing

24

evidence.”

25

A federal habeas court conducting an analysis under § 2254(d) “must

26

determine what arguments or theories supported, or, [in the case of an unexplained

27

denial on the merits], could have supported, the state court’s decision; and then it

28

16

1

must ask whether it is possible fairminded jurists could disagree that those

2

arguments or theories are inconsistent with the holding in a prior decision of [the

3

Supreme Court].” Harrington v. Richter, 562 U.S. 86, 102 (2011) (“A state court’s

4

determination that a claim lacks merit precludes federal habeas relief so long as

5

‘fairminded jurists could disagree’ on the correctness of the state court’s

6

decision.”). In other words, to obtain habeas relief from a federal court, “a state

7

prisoner must show that the state court’s ruling on the claim being presented in

8

federal court was so lacking in justification that there was an error well understood

9

and comprehended in existing law beyond any possibility for fairminded

10
11

disagreement.” Id. at 103.
The Supreme Court has held that “[w]here there has been one reasoned state

12

judgment rejecting a federal claim, later unexplained orders upholding that

13

judgment or rejecting the same claim rest upon the same ground.” Ylst v.

14

Nunnemaker, 501 U.S. 797, 803 (1991). Here, Petitioner raised both of the FAP’s

15

grounds for relief on direct appeal. (LD 23.) The California Court of Appeal

16

rejected them in a reasoned decision (LD 5), and the California Supreme Court

17

subsequently denied review without comment or citation (LD 7). Accordingly, the

18

Court looks through the California Supreme Court’s denial and reviews the

19

California Court of Appeal’s reasoned decision under AEDPA’s deferential

20

standard. See Nunnemaker, 501 U.S. at 803; Reis-Campos v. Biter, 832 F.3d 968,

21

973-74 (9th Cir. 2016) (“[W]ith respect to evaluating the state court’s reasoning,

22

where a federal claim has been adjudicated in a reasoned decision, we ‘look

23

through’ subsequent summary denials and review the last reasoned decision.”).

24
25
26
27
28

17

1

VI.

2

DISCUSSION

3

GROUND ONE: THE TRIAL COURT’S DENIAL OF PETITIONER’S

4

MISTRIAL MOTIONS.

5

In his first ground for relief, Petitioner contends that the trial court violated

6

due process and deprived him of his right to a fair trial by denying his mistrial

7

motions based on the jurors’ exposure to extrinsic information concerning his

8

probation-violation case during voir dire. (See Dkt. 6 at 5, 121.)

9
10
11
12

A.

The California Court of Appeal’s Decision.

The California Court of Appeal summarized the relevant facts underlying this
claim as follows:
[Petitioner’s] second trial proceeded in November 2016. On November 15,

13

2016, during the fourth day of voir dire, an issue arose about the possibility that

14

some prospective jurors had been exposed to outside information. During

15

questioning, Prospective Juror No. 13, volunteered that he had “read the board out

16

front” and “saw the defendant’s name and [a] couple things about him.” After

17

questioning by the court, it was determined the juror was referring to the court’s

18

calendar posted on the door, which he read while the jurors were waiting to come

19

into the courtroom. He elaborated by saying the calendar identified the current

20

trial “and then another charge” that had not been explained in court.

21

The court asked the panel if anyone else had looked at the calendar or

22

formed any opinions about it. Prospective Juror No. 16 raised her hand and said

23

“I don’t have an opinion, but I did read it. I saw it.” No other juror raised his or

24

her hand or otherwise responded to the court’s question.

25

The court spoke briefly with counsel at sidebar about the fact the calendar

26

noted defendant’s trailing probation violation case. The court expressed concern

27

about bringing too much attention to something that could be a nonissue. The

28

18

1

parties agreed the court should ask some additional questions of Prospective Juror

2

No. 13 at sidebar and admonish the balance of the jurors.

3

When Prospective Juror No. 13 was asked, at sidebar, what specifically he

4

recalled reading, he said the calendar mentioned the present trial, but also noted

5

that defendant had been charged with a probation violation. The court asked

6

whether he could disregard that information and not let it influence him.

7

Prospective Juror No. 13 said he did not think that information should have been

8

out there at all, but he would try to disregard it. The court reminded him that

9

defendant was presumed innocent of all charges, including any probation violation.

10

Prospective Juror No. 13 responded, “Oh, so he — so it wasn’t a done deal on that.

11

[¶] . . . [¶] . . . I just assumed that since it was up there that it was a — he’d

12

already been you know violated.” The court said it was simply a charging

13

document and defendant was presumed innocent. The court asked again if he

14

thought he could be fair. Prospective Juror No. 13 responded, “Just the fact that it

15

says probation on it has affected my judgment I think.” The court asked if either

16

side would like to ask additional questions and both sides declined. Prospective

17

Juror No. 13 returned to his seat.

18

While still at sidebar, defense counsel asked for a mistrial, arguing that

19

Prospective Juror No. 13 made the initial statement about outside information in

20

open court, and it could have tainted the other jurors. The court said the phrase

21

“probation violation” was not said in open court, only a reference to additional

22

information. The court denied defendant’s motion, finding insufficient grounds to

23

warrant a mistrial, but reiterated that it would admonish the jurors, and speak with

24

Prospective Juror No. 16 who had raised her hand indicating she had also read the

25

calendar.

26

At sidebar, Prospective Juror No. 16 said she just looked at the calendar

27

briefly but did not recall anything specific about what was printed on it. When

28

19

1

asked if anything about it would cause her to be unfair to defendant, she said no.

2

She said it would not influence her if she was chosen as a juror and that she could

3

be fair to both sides. As she was being excused to return to her seat, she

4

volunteered that other jurors were looking at the calendar even though they did not

5

raise their hands when the court inquired about it.

6

Defense counsel renewed his motion for a mistrial, stating it appeared the

7

possible taint was “a wide spread situation.” The court agreed to speak with each

8

prospective juror individually.

9

Prospective Juror Nos. 1 through 4 all stated at sidebar they had not read

10

the calendar and had not been influenced by any of the comments made in open

11

court by their fellow jurors. They all indicated they could be fair to both sides and

12

follow the court’s instructions.

13

Prospective Juror No. 5 said she had not read the calendar, but the

14

discussion raised by the other jurors in court had made her curious. She asked “is

15

there another case out?” The court admonished Prospective Juror No. 5 that she

16

was not to speculate about such issues, and that she was to listen only to the

17

evidence presented in court if she was seated as a juror. The court asked if she

18

could do that. She said she would try, that she wanted to be fair, but it made her

19

feel a little “weird.”

20

After Prospective Juror No. 5 returned to her seat, the court, still at sidebar

21

with counsel, expressed concern that calling up each juror individually was

22

“drawing more attention to the issue at hand than need be.” The court therefore

23

decided it was better to give “a general admonition, and inquire of the jurors

24

whether or not they can follow the court’s order, and not consider anything outside

25

of any evidence that will be presented during the trial in this matter.” The court

26

indicated it would allow counsel “an opportunity to voir dire on whatever issues

27

they feel is [sic] relevant to the issue of potential jurors being unfair or biased.”

28

20

1

When the proceedings resumed, the court told the panel it was going to

2

proceed with a general admonition in lieu of continuing with the individual sidebar

3

discussions. The court then admonished the prospective jurors as follows.

4

“I’m going to ask, one, that you not speak to each other about anything you

5

may have heard, saw, read, or the calendar or otherwise. Not speculate as to any

6

evidence that may be presented in this case. If you’re selected as jurors, the

7

evidence that you will consider for deliberations will be evidence that come[s] from

8

either this seat, meaning a witness is testifying, which is called evidence, or will be

9

presented to you as evidence, or either side will present certain documentation, and

10

you will be given instructions as to whether or not it is to be received for evidence.

11

[¶] Anything other than that, I am ordering you not to consider, not to speculate,

12

not to form any opinions. Remember, Mr. Mitchell is presumed to be innocent.

13

There is no evidence that has been presented.”

14

The court asked for a show of hands if anyone could not follow those

15

instructions. Prospective Juror No. 5 raised her hand, and the court asked if that

16

was based on the previous conversation at sidebar, and Prospective Juror No. 5

17

said yes.

18

Prospective Juror No. 7 said, “I didn’t see it, or anything like that, but I

19

overheard some things.” The court asked if it was anything that would cause

20

him/her to be unfair to defendant and Prospective Juror No. 7 said no.

21

The court re-read the charges, reiterating that they were just charges, that

22

defendant was presumed innocent and that the prosecutor had the burden of

23

proving each of those charges. “You are not to consider anything else presented

24

unless it is presented for evidence. Any discussions, outside discussions that you

25

have had, that is not to be considered in your deliberation, or your interpretation of

26

the evidence as presented.” The court then asked the panel, “Do you all agree to

27

follow the court’s order? Will you all be able to follow the court’s order, and

28

21

1

continue to give Mr. Mitchell a fair trial?”

2

The prospective jurors collectively responded, “Yes. Yes.”

3

The court asked if there was anyone who believed they could not follow those

4

instructions, then noted for the record, “[n]o hands being shown except for Juror

5

No. 5.” The court allowed counsel to ask additional questions of the panel on the

6

subject.

7

Prospective Juror No. 7 said she heard other jurors discussing the calendar,

8

and it might affect her deliberations. The court allowed a brief sidebar with

9

Prospective Juror No. 7 who said she heard another juror say that whatever was on

10

the calendar probably meant that defendant was “probably guilty.” Prospective

11

Juror No. 7 was not involved in the conversation but overheard it. She believed

12

there may have been three or four prospective jurors within “earshot” of the

13

comment. The court emphasized no evidence of a probation violation had been

14

presented, it was not an issue for the jury to consider, and any speculation about

15

there being such a violation must not be considered. Prospective Juror No. 7 said

16

she could be fair and would abide by the court’s instructions.

17

Prospective Juror No. 9 said it possibly could affect her deliberations. At

18

sidebar, Prospective Juror No. 9 said she had not read the calendar but hearing

19

what Prospective Juror Nos. 13 and 16 said made her wonder about the possibility

20

of another case. She asked if there was another case pending and the court said,

21

“[n]o. This is the only case that you’re to consider.” When asked whether she

22

could keep an open mind and listen to the evidence fairly, Prospective Juror No. 9

23

said yes.

24
25
26
27
28

Prospective Juror No. 13 said it possibly could affect his deliberations.
Neither party asked him any follow-up questions.
Prospective Juror No. 16 reiterated that she would adhere to the court’s
instructions and the speculation and comments about the calendar would not affect
22

1
2

her.
Prospective Juror No. 19 said he believed he could follow the court’s

3

instructions, but he would “still want to know what was going on.” The court

4

interjected that jurors are not to speculate about outside issues, but are only to

5

consider the evidence presented, along with the court’s instructions. The court

6

asked if he could follow that instruction. Prospective Juror No. 19 said he was not

7

sure because there was “no delete function in the human memory.” The court

8

explained there is no delete function for our “common life experiences” either, but

9

as jurors everyone has to put that information aside and focus on the evidence

10

presented and evaluate the case before them. “I’m not asking you to erase your

11

memory. I’m asking you only if you’re able to consider as evidence only what you

12

hear, and see in court, and that which is presented as evidence.” Prospective Juror

13

No. 19 responded, “[i]f I understand you correctly, I can agree to that.” He then

14

said, “I would set that aside, listen to the evidence fairly.”

15

One of the prospective jurors still seated in the audience (No. 3854) said that

16

“everyone’s just speculating” about what was on the calendar, but he did not hear

17

anyone speculating about defendant’s guilt or innocence. He said he could follow

18

the court’s instructions and be fair.

19

All of the remaining prospective jurors, including those in the audience who

20

had not yet answered the basic background questions, responded that they had not

21

read the calendar, had not heard any discussions about it, had not formed any

22

opinions and would follow the court’s instructions.

23

After both sides had completed their questioning, defense counsel again

24

moved for a mistrial. The court denied the renewed motion for mistrial, explaining

25

that except for Prospective Juror No. 5, all of the prospective jurors affirmatively

26

stated they could put aside any outside influences. “I think the jurors were

27

forthright in what they either overheard, saw, or even speculate to [sic] and each

28

23

1

gave the court assurance[,] that is they would not allow that to influence their

2

judgment.” On its own motion, the court excused Prospective Juror No. 5 for

3

cause because of her statements that the information had impacted her ability to be

4

fair.

5

The next day, jury selection resumed. Neither defense counsel nor the

6

prosecutor moved to excuse any prospective jurors for cause. Since Juror No. 5

7

had been excused, the court instructed Juror No. 13 to take her seat. Defense

8

counsel exercised only three of his remaining peremptory challenges, excusing

9

Prospective Juror Nos. 1, 5 (formerly Juror No. 13) and 6. Both the prosecutor

10

and defense counsel accepted the panel as then constituted. Prospective Juror No.

11

19 was excused, and Prospective Juror Nos. 17, 18 and 20 were sworn as

12

alternates.

13

(LD at 3-10.)

14

The court of appeal rejected Petitioner’s claim for two reasons. (Id. at 22-

15

24.) First, it found that he had forfeited any claim that biased jurors had been

16

permitted to serve on his jury by failing to move to excuse any juror for cause or

17

exhaust his peremptory challenges.8 (Id. at 22-23.) Second, it held that the trial

18

court properly denied Petitioner’s mistrial motions because no juror who stated that

19
20
21
22
23
24
25
26
27
28

8

Citing this aspect of the court of appeal’s decision, Respondent contends
that Petitioner’s claim is procedurally barred. (See Answer at 31-33.) But
considering that Petitioner repeatedly moved for a mistrial based on the potential
jurors’ exposure to the information concerning his probation-violation case (see
Aug. RT at 342-43, 348, 389), the procedural-bar question is at a minimum
complicated. By contrast, resolving the claim on its merits is not, as explained
below. Accordingly, in the interests of judicial economy, the Court declines to
address the procedural-bar question and instead addresses the merits of Petitioner’s
claim. See Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997) (holding that, in the
interests of judicial economy, federal courts may address an allegedly defaulted
habeas claim on its merits if the issue on the claim’s merits is clear but the
procedural-default issues are not).
24

1

the information on the court calendar would affect his or her impartiality was

2

permitted to serve on the jury and the trial court took steps to ensure that it did not.

3

Specifically, the court of appeal stated:

4

[T]he record does not establish any abuse of discretion by the trial court in

5

denying [Petitioner’s] oral motions for mistrial . . . [¶] The court excused for

6

cause the only juror who admitted to being unable to judge [Petitioner] fairly,

7

Prospective Juror No. 5. The court inquired of the jurors collectively and

8

individually about whether they had seen or heard anything related to the court’s

9

calendar, and also allowed counsel to ask additional questions on the subject. A

10

majority of the prospective jurors said they had not noticed the calendar, and gave

11

no indication their impartiality had been impaired.

12

Prospective Juror Nos. 7, 9 and 16 said they had overheard some speculation

13

about the possibility of another charge or case. However, after questioning and

14

admonitions from the court, all three prospective jurors confirmed they could listen

15

to the court’s instructions and give [Petitioner] a fair trial. Prospective Juror Nos.

16

13 and 19 were the only other two jurors who said the information from the

17

calendar might affect their judgment. Both were excused.

18

Moreover, the court thoroughly admonished the jury about the presumption

19

of innocence, what constitutes evidence and their duty to disregard outside

20

information. [Petitioner] has not demonstrated any likelihood that a juror or

21

jurors were actually biased against him. Indeed, the jury acquitted [Petitioner] of

22

the robbery on count 2, indicating the jury engaged in measured and thoughtful

23

deliberations.

24

(Id. at 22-24.)

25
26
27
28

25

1

B.

Applicable Federal Law.

2

The Sixth Amendment guarantees to the criminally accused a fair trial by a

3

panel of impartial, indifferent jurors. U.S. Const. amend. VI; see Irvin v. Dowd,

4

366 U.S. 717, 722 (1961). Pursuant to that right, criminal defendants are entitled to

5

a jury that reaches a verdict based only on the evidence produced at trial. Turner v.

6

Louisiana, 379 U.S. 466, 472-73 (1965). Indeed, “[d]ue process does not tolerate

7

‘any ground of suspicion that the administration of justice has been interfered with’

8

by external influence.” Godoy v. Spearman, 861 F.3d 956, 959 (9th Cir. 2017)

9

(quoting Mattox v. United States, 146 U.S. 140, 149 (1892)).

10

When a court is confronted with an allegation of improper external influence

11

on a juror, it “appl[ies] a settled two-step framework.” Id. (citations omitted).

12

First, it “asks whether the contact was possibly prejudicial, meaning it had a

13

tendency to be injurious to the defendant.” Id. (internal quotations omitted).

14

Second, if it was, the court “proceeds to step two, where the ‘burden rests heavily

15

upon the [state] to establish’ the contact was, in fact, ‘harmless.’” Id. (quoting

16

Remmer v. United States, 347 U.S. 227, 229 (1954)).

17

An unauthorized communication “is possibly prejudicial . . . if it raises a risk

18

of influencing the verdict.” Id. at 956. Although this is “low threshold” to meet,

19

the communication must nevertheless raise “a credible risk of influencing the

20

verdict” to “trigger[] the presumption of prejudice.” Id. The presumption does not,

21

however, apply when the unauthorized communication or influence is de minimis.

22

Caliendo v. Warden of Cal. Men’s Colony, 365 F.3d 691, 696, 697 (9th Cir. 2004)

23

(explaining that brief, inadvertent encounters between jurors and witnesses

24

generally do not give rise to presumption because “it is virtually impossible to

25

shield jurors from every contact or influence that might theoretically affect their

26

vote”).

27
28

To distinguish between the two, the Ninth Circuit has identified the following
26

1

factors: (1) the extent to which the unauthorized communication concerned the

2

case; (2) the length and nature of the contact; (3) the identity and role at trial of the

3

parties involved; (4) the evidence suggesting the contact actually impacted the

4

juror; and (5) the possibility of eliminating prejudice through a limiting instruction.

5

Id. at 697-98. No one factor is dispositive. Id. In weighing these factors,

6

reviewing courts “generally accord some deference to the findings of the trial judge,

7

who is in the best position to determine whether possibly prejudicial misconduct

8

took place and, if so, whether the government clearly established harmlessness.”

9

Id. at 698. By contrast, no deference is warranted when “an extrinsic contact was

10

possibly prejudicial but the trial judge neglected to hold the government to its

11

heavy burden of proving that the contact was clearly not prejudicial.” Id.

12

C.

Analysis.

13

Irrespective of whether the exposure to the information on the court calendar

14

concerning Petitioner’s probation-violation was de minimis or sufficient to trigger

15

the presumption of prejudice, it did not deprive him of his right to a fair trial or

16

result in a biased juror sitting on his jury. First, although the information on the

17

court calendar concerned Petitioner, any exposure to it was limited. Only two

18

jurors – Juror Nos. 13 and 16 – actually read the information concerning Petitioner

19

(see Aug. RT at 336-37, 340-42, 345),9 and only one other juror – Juror No. 5 –

20

gleaned that Petitioner had a second criminal case (see id. at 361-62). None of

21

those jurors served on the jury (see id. at 27-2810 (reflecting that defense counsel

22
23
24
25
26
27
28

9

Juror No. 19 stated that she had read “the title” of the calendar but “didn’t
read the lines under it.” (Aug. RT at 375.) The calendar was removed once it was
brought to the trial court’s attention. (See id. at 354.)
10

Both of the volumes of the augmented reporter’s transcript are as
designated as “Volume 1 of 1.” (LD 21 at 1; LD 22 at 1.) For reasons unclear to
the Court, the volume with lower page numbers (see LD 22 (containing pages one
through twenty-nine of the Aug. RT)) reflects events that occurred later in time than
27

1

exercised peremptory strike against Juror No. 13), 28-29 (reflecting that the jury

2

accepted by both parties did not include Juror No. 16), 391 (reflecting that the trial

3

court removed Juror No. 5 on its own motion)), and the existence of Petitioner’s

4

probation-violation case was never mentioned in open court (see id. 337 (reflecting

5

that the juror who raised the issue concerning the court calendar stated only that it

6

contained “additional information” about Petitioner and waited to reveal that

7

information until a sidebar), 343 (trial court noting that the same juror did not

8

mention the probation-violation case in open court but rather revealed it “at sidebar

9

out of the presence of the other jurors”)). Compare Turner, 379 U.S. at 472

10

(improper contact was conclusively prejudicial when two deputy sheriffs who had

11

provided key testimony against defendant were engaged in “a continuous and

12

intimate association with the jury throughout trial”). Although Juror No. 19 – who

13

neither read the calendar nor knew anything about the probation-violation case –

14

stated that he was “curious” about “what was going on” (id. at 375), he too did not

15

serve on the jury (see id. at 28-29 (reflecting that the jury both parties accepted did

16

not include Juror No. 19)).

17

Second, there is no reason to believe that the information reflected in the

18

court calendar biased any actual juror against Petitioner. None of them read the

19

calendar, and at most a few potential jurors merely “speculat[ed]” about what it

20

said. (Id. at 378-80.) Although Juror No. 7 overheard a few potential jurors say

21

that Petitioner had violated his probation,11 she did not know whether that was true.

22

(See id. at 383-84.) What’s more, the trial court affirmatively told her it was not.

23

(See id. at 384.) Similarly, when Juror No. 9 inquired whether Petitioner had

24

those in the volume with higher page numbers (see LD 21 (containing pages 301
through 395 of the Aug. RT)).

25
26
27
28

11

Juror No. 7 did not identify the jurors to whom she was referring. (See
Aug. RT at 385-86.)
28

1

“another case against him,” the trial court unequivocally told her, “No. This is the

2

only case that you’re to consider.” (Id. at 387); see United States v. Gonzalez, 226

3

F. App’x 700, 702 (9th Cir. 2007) (court remedied any harm stemming from “two

4

inadvertent suggestions of [defendant’s] previous criminal contacts with law

5

enforcement [that] triggered jury inquiries” by “affirmatively stating that

6

[defendant] had no convictions and had no criminal history” (citations omitted)).

7

No other juror who served on the jury indicated that they had overheard anything or

8

drawn any conclusions about whether Petitioner had a second criminal case, let

9

alone that it involved an alleged probation violation.

10

Moreover, the fact that Juror No. 7 and Juror No. 9 initially indicated that

11

what they had either heard or suspected might affect their deliberations (see Aug.

12

RT at 370-71, 381-84, 387) is not sufficient to show that Petitioner was denied his

13

right to a fair trial. The Supreme Court has never held that a criminal defendant is

14

deprived of his Sixth Amendment rights whenever a juror indicates a willingness to

15

fairly consider the evidence at trial despite initially equivocating on the ability to do

16

so. See Carey v. Musladin, 549 U.S. 70, 77 (where Supreme Court precedent gives

17

no clear answer to question presented, “it cannot be said that the state court

18

‘unreasonab[ly] appli[ed] clearly established Federal law’”). On the contrary, the

19

Supreme Court has suggested that such circumstances give rise to no Sixth

20

Amendment violation. See Skilling v. United States, 561 U.S.358, 396-97 (2010).

21

In Skilling, a juror testified that she was angry about the collapse of a company run

22

by the defendant and that the company’s collapse had forced her to forfeit her own

23

retirement savings plan. Id. at 396. When asked about her views of the defendant’s

24

guilt in crimes arising from the company’s collapse, the juror equivocated, stating

25

that she lacked sufficient information to determine whether the defendant was

26

“probably guilty.” Id. at 397. The juror likewise equivocated on her ability to be

27

fair and impartial, stating only that she “thought” she could be fair and impartial.

28

29

1

Id. Notwithstanding these responses, the Supreme Court held that the district court

2

did not err in concluding that the juror was “fit for service.” Id. Here, both Juror

3

No. 7 and Juror No. 9 unequivocally declared that they could be fair to both sides

4

once the trial court explained that there was no evidence of any probation violation

5

or other criminal case and that “the only thing[s]” they could consider were the

6

current charges against Petitioner. (Aug. RT at 384-85, 388.) Thus, pursuant to

7

Skilling, both were fit to serve on his jury.

8
9

Third, there is no reason to believe that the information on the court calendar
rendered any actual juror unable to assess the evidence against Petitioner fairly.

10

Indeed, no juror – not even the one whom the court removed on its own motion (see

11

Aug. RT at 391) – knew anything about the probation-violation case, and it never

12

came up after the court questioned the jurors. See United States v. Allen, 435 F.3d

13

1231, 1236 (9th Cir. 2005) (co-conspirator’s “isolated reference” to defendant

14

having been “in jail” did not warrant mistrial); Virgo v. Frauenheim, 714 F.3d 511,

15

514 (7th Cir. 2018) (“brief and nondescript” reference to defendant’s criminal

16

history did not prevent the jury from fairly evaluating evidence); Mixon v. Gastelo,

17

No. CV 15-9517 JAK (AFM), 2016 WL 2731680, at *10 (C.D. Cal. Apr. 7, 2016)

18

(same), accepted by 2016 WL 2731689 (C.D. Cal. May 10, 2016). More

19

importantly, when the issue arose, the trial court instructed the jurors to not

20

consider anything other than the evidence presented at trial in deciding whether

21

Petitioner was guilty or not, and all the jurors – other than the one whom the court

22

removed on its own motion (see Aug. RT at 391) – declared that they would follow

23

those instructions (see id. at 366-67, 369). See Mancuso v. Olivarez, 292 F.3d 939,

24

952 (9th Cir. 2002) (detective’s testimony indicating that parole search was

25

performed on petitioner’s apartment did not warrant mistrial even though the trial

26

court had prohibited any reference to his parole status, in part, because the court

27

admonished the jury to ignore that aspect of the detective’s testimony), overruled

28

30

1

on other grounds by Slack v. McDaniel, 529 U.S. 473 (2000); Cook v. LaMarque,

2

593 F.3d 810, 827-28 (9th Cir. 2010) (presuming that the jury followed the trial

3

court’s instructions to “base its decision on the facts and the law” and “disregard []

4

extrinsic information” when a juror had shared with fellow jurors comments she

5

overheard between the defendant and his attorney undermining his theory of

6

defense); see also Thompson v. Borg, 74 F.3d 1571, 1574-76 (9th Cir. 1996) (jury

7

veniremen’s announcement in front of potential jurors that he had read a newspaper

8

article stating that the defendant had withdrawn his initial guilty plea was not

9

prejudicial in part because the trial court took sufficient curative steps).

10

Fourth, the trial court’s findings of facts further undercut Petitioner’s claim

11

that he was denied his right to a fair trial. After questioning the jurors concerning

12

the information on the court calendar, the trial court found that their answers were

13

truthful and that they could fairly consider the evidence at trial. (See id. at 391.)

14

That finding, which was made after considering the jurors’ testimony and observing

15

their demeanor, was reasonable under the circumstances and is entitled to

16

deference. See Snyder v. Louisiana, 552 U.S. 472, 477 (2008) (recognizing that

17

determinations of credibility and demeanor lie “peculiarly within a trial [court’s]

18

province,” and instructing courts to “defer to” trial court’s determinations “in the

19

absence of exceptional circumstances”); Patton v. Yount, 467 U.S. 1025, 1037 n.12

20

(1984) (explaining that “habeas courts owe special deference” to finding that juror

21

can “render a verdict based on the evidence presented in court”); see also United

22

States v. Hanley, 190 F.3d 1017, 1031 (9th Cir. 1999) (“[W]e must accord special

23

deference to the trial judge’s impression of the impact of the alleged misconduct.”);

24

United States v. Bagnariol, 665 F.2d 877, 885 (9th Cir. 1981) (“The trial judge is

25

uniquely qualified to appraise the probable effect of information on the jury.”).

26
27
28

Fifth, the trial court took affirmative steps to eliminate the possibility of any
prejudice. It repeatedly instructed the jurors to presume that Petitioner was
31

1

innocent and consider only the evidence presented at trial in determining whether

2

he was guilty or not. (See id. at 366-67, 369.) What’s more, it prohibited them

3

from discussing any information in the court calendar and ordered them not to

4

“consider,” “speculate,” or “form any opinions” about anything not admitted as

5

evidence. (Id. at 367); see Mays v. Hedgpeth, No. 11–CV–5531 YGR, 2014 WL

6

6668163, at *23-24 (N.D. Cal. Nov. 24, 2014) (presumption of prejudice arising

7

from juror’s mid-deliberation statement to other jurors that petitioner had already

8

been convicted and sentenced of the charged crime in a prior trial was rebutted

9

when the trial court questioned the jurors concerning the statement and admonished

10

them to disregard it and, thereafter, the jury deliberated for several more days

11

before reaching its verdict);12 cf. United States v. Marrufo, No. CR 17-976-TUC-

12

CKJ, 2023 WL 142675, at *4 (D. Ariz. Jan. 10, 2023) (“one-time reference to

13

[defendant’s] possible incarceration due to a felony conviction was harmless” even

14

though trial court gave no curative or limiting instruction (citations omitted)). The

15

trial court also allowed counsel to “voir dire on whatever issues they fe[lt] were

16

relevant” to any potential juror being “unfair or biased” (id. at 365), and no juror

17

who served on the jury indicated that they could not be fair or unbiased. Further,

18

the court instructed the jurors at the close of trial to base their respective decisions

19

only on the evidence adduced at trial, presume Petitioner was innocent, and follow

20

the court’s instructions. (See 2 CT at 482, 487.) The jury is presumed to have

21

followed those unambiguous instructions, see Weeks v. Angelone, 528 U.S. 225,

22

234 (2000), and Petitioner cites no evidence to rebut that presumption.

23
24
25
26
27
28

Finally, the jury’s verdict shows that the information concerning Petitioner’s
12

Although the extrinsic information in Mays was relayed by a juror rather
than from an external source, the court analyzed the petitioner’s claim as both as a
juror-bias claim and an external-influence claim and found the presumption of
prejudice had been rebutted for both. See 2014 WL 6668163, at *23-24.
32

1

probation-violation case – to the extent any juror knew or suspected that such a case

2

existed – did not result in any prejudice. Indeed, the jury acquitted him of one of

3

the charged robbery counts (See 2 CT at 520), even though the victim there – like

4

all of Petitioner’s victims – was also an Asian woman who had visited her local

5

bank alone before being robbed after she drove home (see 3 RT at 1816-21; see also

6

4 RT at 2103, 2429-32, 2459-62, 2454-56; 5 RT at 2720, 2812-13, 3007-08, 3040-

7

41). That fact if anything shows that the jurors carefully considered the evidence

8

adduced at trial as to each charged count and reached their respective decisions

9

based only on that evidence without regard to Petitioner’s parole-violation case.

10

See Barren v. Hedgpeth, No. CV 07-6896-GHK (FFM), 2011 WL 5553980, at *11

11

(C.D. Cal. Oct. 5, 2011) (jury’s decision to acquit petitioner on three counts

12

“[r]ather than reflexively finding [him] guilty on all counts” showed that it

13

“dispassionately and methodically evaluated the facts and applied the law to those

14

facts”); Moore v. Chrones, 687 F. Supp. 2d 1005, 1033 (C.D. Cal. 2010) (petitioner

15

convicted of petty theft with a prior and heroin possession suffered no prejudice

16

from the jury learning that he had a prior conviction in part because jury acquitted

17

him of robbery count); see also United States v. Young, 470 U.S. 1, 18 n.15 (1985)

18

(jury’s failure to convict defendant on most serious count showed that prosecutor’s

19

improper argument “did not undermine the jury’s ability to view the evidence

20

independently and fairly”). “Were it otherwise, the jury would not have hesitated to

21

convict [P]etitioner on all counts.” Barren, 2011 WL 5553980, at *11.

22

Accordingly, the court of appeal’s rejection of this claim was neither an

23

unreasonable application of nor contrary to clearly established federal law. As

24

such, this claim does not warrant habeas relief.

25
26
27
28

33

1
2

GROUND TWO: SUFFICIENCY OF THE EVIDENCE.
In his second ground for relief, Petitioner contends that there was insufficient

3

evidence to support his convictions for conspiracy, robbery, and attempted

4

robbery.13 (See Dkt. 6 at 8, 121.)

5

A.

The California Court of Appeal’s Decision.

6

The California Court of Appeal rejected Petitioner’s sufficiency of the

7

evidence claim on its merits. First, as to the conspiracy count (Count One), it

8

concluded that there was sufficient evidence to show that he and others conspired to

9

commit robbery and took overt acts in furtherance of that conspiracy:

10

[T]here was abundant circumstantial evidence of an agreement to commit

11

robbery. Several different undercover detectives testified about observing

12

[Petitioner], on multiple days, acting in tandem with his two coconspirators,

13

waiting outside of banks for female customers to leave, alone, and then trailing

14

them home or to their place of business to be robbed. Their coordinated conduct

15

reasonably implied a common purpose, a tacit agreement.

16

The testimony from the undercover detectives about the surveillance

17

operation was bolstered and corroborated by the videotaped surveillance footage,

18

the security camera footage, the cell phone records and Detective Thompson’s

19

testimony regarding the tracking of [Petitioner’s] and Baber’s cell phones on the

20

dates of the offenses and their regular communication during those time periods.

21

[Petitioner’s] pretrial statement to Detective Wawryk also contained admissions

22
23
24
25
26
27
28

13

Petitioner does not identify which of his six convictions he is challenging
and alleges no facts in support of this claim other than that his conviction for the
robbery of Young Ok Hwang was based on a witness’s conflicting statements. (See
FAP at 121 (referring only to Count Four); see also 2 CT at 466-67 (reflecting that
Count Four concerned robbery of Ms. Hwang).) Nevertheless, the Court assumes
he intends to challenge all of his convictions, as he did on direct review. (See LD at
2, 25-51.)
34

1

supporting his participation in the conspiracy. This evidence provided a sufficient

2

basis upon which the jury could reasonably infer the existence of an agreement to

3

commit robbery. [Petitioner] cites no authority for the proposition that a record of

4

the actual conversations between the conspirators was necessary, and we know of

5

no such authority.

6

There was also ample evidence of overt acts taken in furtherance of the

7

conspiracy . . . [Petitioner] argues the evidence showed only [Petitioner] and

8

another car driving “in unison” without more. When viewed in its totality, the

9

evidence showed a clear pattern of activity by [Petitioner] and his two

10

coconspirators, engaged in over a period of months within the same geographic

11

area, targeting Asian female bank customers who were by themselves.

12

[Petitioner’s] conduct in driving to a particular bank location, waiting outside with

13

his coconspirators nearby in another vehicle, and then following, for several miles,

14

a female customer home or to her place of business was more than sufficient to

15

constitute an overt act taken in furtherance of the conspiracy. Any suggestion to

16

the contrary is without merit.

17

(LD 5 at 25-27.)

18

Second, the court of appeal held that sufficient evidence supported

19

Petitioner’s convictions for the robberies of Ms. Lim and Ms. Hwang (Counts

20

Three and Four) as either a principal or an aider and abettor:

21

There was ample evidence supporting [Petitioner’s] guilt as an aider and

22

abettor of the robbery of Ms. Lim . . . [¶] There was strong evidence

23

demonstrating [his] presence at the scene and acting in concert with his

24

coconspirators. [He] admitted to his ownership of the red Infiniti with the black

25

top and black rims. A car that looked nearly identical to [Petitioner’s] car was

26

captured by the traffic camera footage following Ms. Lim’s car near the vicinity of

27

the bank. A similar car was also captured by the security footage from the Chen’s

28

35

1

home near Ms. Lim’s home at the time of the robbery. This evidence was bolstered

2

by the cell phone records and testimony of Detective Thompson as to the usage of

3

[Petitioner’s] cell phone at the relevant times, both in the vicinity of the robbery

4

and communicating with Baber.

5

[Petitioner] argues that none of the security or surveillance footage showed

6

the license plate number of the red car or the face of the driver of the car. The lack

7

of these additional details does not lessen the strength and impact of the above

8

evidence or the totality of evidence presented about the pattern of behavior

9

engaged in by the three coconspirators with respect to all of their victims. Viewed

10

collectively, along with the admissions made by [Petitioner] in his pretrial

11

statement, the evidence was more than sufficient to support the jury’s verdict.

12

As for count 4, the evidence presented as to the manner of how Ms. Hwang

13

was robbed fit the pattern of behavior followed by [Petitioner] and his

14

coconspirators with respect to all of the victims. Moreover, Ms. Hwang testified

15

that [Petitioner] was the individual who robbed her.

16

[Petitioner] argues that some of her testimony was inconsistent with the

17

report by Mr. Canchari that the robber fled in a maroon car. (Ms. Hwang said her

18

attacker fled in a black car). [Petitioner] also argues Ms. Hwang’s testimony was

19

inherently untrustworthy because she changed her testimony from the first trial at

20

which she was unable to identify [Petitioner] in court.

21

However, Ms. Hwang explained that she did not identify [Petitioner] in the

22

first trial out of fear of retaliation. And, other than the color of the car, the

23

testimony of Ms. Hwang was consistent with Mr. Canchari. It was for the jury to

24

decide the weight and credibility of her testimony . . . Nothing here indicates any

25

basis for disregarding the jury’s decision to believe Ms. Hwang’s testimony.

26

(Id. at 27-29.)

27
28

Finally, the court of appeal held that sufficient evidence supported
36

1

Petitioner’s three attempted-robbery convictions (Counts Five, Six, and Seven):
As we have already explained above, the prosecution presented solid

2
3

evidence of a clear pattern of concerted action by [Petitioner] and his two

4

conspirators in a series of follow-home robberies in which Asian female bank

5

customers, driving alone, were targeted. Further, [Petitioner] made various

6

admissions to Detective Wawryk in his pretrial statement, including a statement

7

that is reasonably construed to be an admission by [Petitioner] of participating in

8

the crimes, but denying any personal conduct in confronting any of the victims.

9

Taken together, this was strong evidence demonstrating an intent to rob the victims.
There was also ample evidence showing direct acts, beyond mere

10
11

preparation, taken by the three conspirators towards the accomplishment of the

12

intended robberies. Each of the attempted robbery victims was followed by

13

[Petitioner] and his conspirators for several miles to their homes or places of

14

business. Each victim was followed until she got out of her car, and then each of

15

the attempted crimes was “frustrated by extraneous circumstances.”

16

Lydia Kim was followed to Master’s Golf, where the security camera footage

17

showed a red vehicle similar to [Petitioner’s] car arriving in tandem with the car

18

from which a male exited and followed Lydia Kim until confronted by the manager

19

of Master’s Golf. With respect to both Ms. Le and Jieun Kim, [Petitioner] and his

20

coconspirators parked outside the bank, waiting for them to leave, and then

21

followed them for several miles. This conduct was observed and attested to by

22

several undercover detectives. Ms. Le was followed all the way to her parking spot

23

inside her workplace parking garage, at which point the attempt was frustrated by

24

the presence of the parking attendant. The attempt on Jieun Kim was frustrated by

25

her ability to drive safely through a double-set of security gates upon her arrival

26

home.

27

(Id. at 30-31 (citation omitted).)

28

37

1

B.

Applicable Law.

2

The Due Process Clause of the Fourteenth Amendment protects a criminal

3

defendant from conviction “except upon proof beyond a reasonable doubt of every

4

fact necessary to constitute the crime with which he is charged.” In re Winship,

5

397 U.S. 358, 364 (1970); accord Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir.

6

2005). Evidence is enough to support a conviction if, viewing it in the light most

7

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

8

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

9

443 U.S. 307, 319 (1979). Under Jackson, the reviewing court does not ask

10

whether the evidence at trial established guilt beyond a reasonable doubt as to every

11

essential element of a crime but instead asks whether any rational trier of fact could

12

have so found. Id. The court must construe the evidence in the light most

13

favorable to the prosecution to “respect the province of the jury to determine the

14

credibility of witnesses, resolve evidentiary conflicts, and draw reasonable

15

inferences from proven facts.” Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir.

16

1995). Jury decisions are unreasonable under Jackson only when the jury’s

17

findings are “so insupportable as to fall below the threshold of bare rationality.”

18

Coleman, 566 U.S. at 656.

19

When a state court has issued a reasoned decision rejecting a sufficiency of

20

the evidence claim under a standard “not contrary” to Jackson, the reviewing court

21

owes “double deference” to the trier of fact and state court. Juan H., 408 F.3d at

22

1275; Long v. Johnson, 736 F.3d 891, 897 (9th Cir. 2013).

23

California’s standard for determining the sufficiency of evidence is identical

24

to the federal standard announced in Jackson. People v. Johnson, 26 Cal. 3d 557,

25

576 (1980). Therefore, the question on federal habeas review is whether the court

26

of appeal unreasonably applied Jackson. Juan H., 408 F.3d at 1275. Reversal is

27

proper only if the court of appeal’s decision was objectively unreasonable.

28

38

1

Coleman, 566 U.S. at 655.

2

C.

3

The California Court of Appeal reasonably rejected Petitioner’s challenges to

4

the evidence supporting his convictions. Each challenge is addressed in turn below.
1.

5
6

Analysis.

Conspiracy

In California, a conviction of conspiracy requires proof that the defendant

7

and another person had the specific intent to agree or conspire to commit an

8

offense, as well as the specific intent to commit the elements of that offense,

9

together with proof of the commission of an overt act “by one or more of the parties

10

to such agreement” in furtherance of the conspiracy. People v. Morante, 20 Cal.

11

4th 403, 416 (1999). The unlawful agreement at the core of the conspiracy charge

12

need not be explicit or expressed in words but may consist of a tacit mutual

13

understanding to commit a crime. People v. Vu, 143 Cal. App. 4th 1009, 1025

14

(2006). Thus, the existence of an unlawful agreement may be inferred from

15

conduct, relationships, interests, and activities of the alleged coconspirators before

16

and during the alleged conspiracy. People v. Gonzalez, 116 Cal. App. 4th 1405,

17

1417 (2004). The requisite overt act need not be a criminal offense, nor must it be

18

committed by the defendant. People v. Fenenbock, 46 Cal. App. 4th 1688, 1708

19

(1996).

20

Here, there was sufficient evidence to support Petitioner’s conspiracy

21

conviction. First, his statements to the investigating detective supported a

22

reasonable inference that he was part of a conspiracy to commit robbery. Indeed,

23

although he insisted that he did not personally rob the victims and believed he

24

should not have been charged with “actual robbery,” he answered, “Yeah,” when

25

asked if he was part of a “crew” working “in concert together” to identify victims at

26

banks and follow them in order to rob them. (Supp. CT. at 29, 33.) He also assured

27

the investigating detective that “nobody” used a gun (id. at 18) and declared that

28

39

1

“out of everybody, [he was] the most remorseful one” because he “grew up better”

2

and “kn[ew] better” (id. at 33 (emphasis added).) Additionally, he admitted that he

3

owned a red Infiniti (see id. at 9, 11), which matched one of the cars that was used

4

in several of the charged crimes (see, e.g., 4 RT at 2406-07, 2490-91, 2746-47; 5

5

RT at 2717, 2773), and indicated that he was willing to “snitch[]” on his co-

6

conspirators in exchange for leniency (Supp. CT at 19; see id. at 27-28, 34, 377).

7

And the fact that Petitioner and his companions carried out two robberies and

8

attempted three others was itself strong evidence that they conspired to commit

9

those crimes.14 See People v. Herrera, 70 Cal. App. 4th 1456, 1464 (1999)

10

(explaining that “carrying out the agreed-upon crime” constitutes sufficient

11

circumstantial evidence to prove existence of conspiracy to do so), disapproved on

12

another ground in People v. Mesa, 54 Cal. 4th 191, 199 (2012).

13

Second, there was ample evidence to show that Petitioner took overt acts in

14

furtherance of the conspiracy. Phone records showed that he and Barber – one of

15

Petitioner’s co-conspirators – exchanged a high volume of calls immediately before

16

and after the charged robberies, and GPS tracking placed both of them in the

17

vicinities of the robberies and one of the attempted robberies. (See 5 RT at 2782-

18

2802, 2807). Police were surveilling Petitioner and Barber when the other two

19

attempted robberies occurred. They witnessed Petitioner and Barber (along with at

20

least one other individual) target their victims at local banks and, from there, follow

21

the victims in two different cars for long distances, all the while driving in tandem.

22

(See 5 RT at 2715-21, 2746-48, 2750, 2035.) Similarly, a witness to the aftermath

23

of the robbery of Ms. Hwang testified that he saw two cars driving in tandem away

24
25
26
27
28

14

As related below, sufficient evidence supported Petitioner’s convictions for
the charged robberies and attempted robberies, despite Petitioner’s claim that there
was not. (See Dkt. 6 at 121.)
40

1

from the victim’s home.15 (See 4 RT at 2414-17; 5 RT at 2772.)

2

Moreover, Petitioner and his companions employed identical tactics in

3

targeting and following different robbery victims on different occasions. See

4

Smyer v. Sherman, No. 2:20-cv-09659-JWH-PD, 2021 WL 8269098, at *4, *8

5

(C.D. Cal. Oct. 29, 2021) (sufficient evidence that petitioner conspired to murder

6

his pregnant girlfriend in part because attack leading to her murder “mirrored”

7

those before and after on a different woman who was pregnant with petitioner’s

8

baby when both attacks occurred), accepted by, 2022 WL 1289261 (C.D. Cal. Apr.

9

22, 2019), cert. denied, Smyer v. Phillips, 144 S. Ct. 609 (2024); People v. Mullins,

10

19 Cal. App. 5th 594, 607 (2013) (upholding conviction for conspiracy to commit

11

theft at mall ATM when defendant had engaged in a scheme to rob people after

12

they withdrew money from ATMs on at least two occasions just weeks before

13

committing the charged crime). Indeed, all the victims in the charged robberies and

14

attempted robberies were Asian women who had visited their local bank alone

15

shortly before being robbed (or being targeted for robbery). (See 4 RT at 2103,

16

2429-32, 2459-62, 2454-56; 5 RT at 2720, 2812-13, 3007-08, 3040-41.)

17

In short, there was overwhelming evidence that Petitioner conspired with

18

others to commit robbery and took overt acts in furtherance of that conspiracy.

19

Accordingly, he is not entitled to relief on this claim.
2.

20

Robbery

21

Robbery is the “the felonious taking of personal property in the possession of

22

another, from his person or immediate presence, and against his will, accomplished

23

by means of force or fear.” Cal. Penal Code § 211. Under California law, “a

24

person who aids and abets the commission of a crime is a “principal’ in the crime,

25
26
27
28

15

Ms. Hwang identified Petitioner as the person who robbed her. (See 4 RT
2475, 2477, 2487-88.)
41

1

and thus shares the guilt of the actual perpetrator.” People v. Prettyman, 14 Cal. 4th

2

248, 259 (1996). For aiding and abetting, the prosecutor must prove the defendant

3

acted “with knowledge of the criminal purpose of the perpetrator and with an intent

4

or purpose either of committing, or of encouraging or facilitating commission of,

5

the offense.” Id. “[I]n general, neither presence at the scene of a crime nor

6

knowledge of, but failure to prevent it, is sufficient to establish aiding and abetting

7

its commission.” See People v. Campbell, 25 Cal. App. 4th 402, 409 (1994). But a

8

defendant’s presence at the scene of the target crime, companionship with the

9

principal, and conduct before and after the crime are among several factors that

10

may be considered in determining whether the defendant had the requisite

11

knowledge and intent for aider-and-abettor liability. Id.

12

Here, neither of Petitioner’s challenges to his robbery convictions warrants

13

relief. First, there was sufficient evidence to prove that, at a minimum, he aided

14

and abetted the robbery of Ms. Lim. As related above, he admitted he was part of a

15

“crew” working “in concert together” to identify victims at banks and follow them

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in order to rob them. (Supp. CT at 28-29.) Like each of the victims he and his

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crew targeted (see 4 RT at 2103, 2429-32, 2459-62, 2454-56; 5 RT at 2720, 3007-

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08, 3040-41), Ms. Lim was an Asian woman who had visited her local bank alone

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shortly before being robbed (see 4 RT at 2016, 2103-05, 2109, 2113, 2147-49).

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And as in each of the charged crimes, the person who robbed Ms. Lim did not act

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alone. (See 4 RT at 2018-19, 2116). More importantly, GPS tracking and phone

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records showed that Petitioner and Barber were both in the robbery’s vicinity, drove

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away afterwards, and exchanged 22 phone calls that day. (See 5 RT at 2793-96,

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2801-02, 2807.) What’s more, phone records from Ms. Lim’s phone, which was

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taken in the robbery, showed that her phone was used to call Barber. (See 4 RT at

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2113-14; 5 RT at 3012.) Finally, a neighbor’s video-security footage and nearby

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traffic-camera footage showed that one of the cars that followed Ms. Lim to her

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1

home “very much resembled” Petitioner’s car (5 RT at 3009, 3019-21; see 4 RT at

2

2124, 2136, 2150-67), which police later saw parked in front of Barber’s home (see

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4 RT at 2412-13; 5 RT at 3019-21).16 Given this evidence, the jury could

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reasonably infer that Petitioner robbed Ms. Lim or aided and abetted the person

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who did.

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Second, there was sufficient evidence to prove that Petitioner robbed Ms.

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Hwang. Of course, much of the foregoing evidence – including Petitioner’s pretrial

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admissions and his modus operandi in selecting his victims and committing the

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charged crimes – supports a reasonable inference that he participated in the robbery

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of Ms. Hwang. But on top of that, Ms. Hwang identified him at trial as the person

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who robbed her, and she testified that she was “sure” it was him. (4 RT at 2474-75,

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2487.) That testimony alone was sufficient to establish his identity as the robber.

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See Bruce v. Terhune, 376 F.3d 950, 957-58 (9th Cir. 2004) (testimony of single

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witness is sufficient to uphold conviction).

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Moreover, that Ms. Hwang did not identify Petitioner at his first trial is of no

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consequence.17 (See Dkt. 6 at 121.) The jury knew that Ms. Hwang had failed to

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definitively identify Petitioner at the first trial (see 4 RT at 2477); indeed, defense

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counsel read her prior testimony into evidence and questioned her about it. (See id.

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at 2479-80.) The jury also heard her explain that she chose not to identify him at

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the first trial – even though she had known then that he was the person who robbed

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her – because she had been “afraid” he might exact “revenge” against her if she had

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done so. (4 RT at 2480-81, 2486-87.) Because that explanation was not inherently

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implausible, Ms. Hwang’s testimony was sufficient to prove Petitioner’s guilt. See

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16

Police began surveilling Barber after they determined that Ms. Lim’s
stolen phone had been used to call him. (See 5 RT at 3012-19.)
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At Petitioner’s first trial, Ms. Hwang testified that Petitioner “resemble[d]”
the person who robbed her but did not definitively identify him. (4 RT at 2480.)
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1

Smith v. Horel, No. CV 08-8424-PSG (RC), 2010 WL 4536804, at *7 (C.D. Cal.

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Sept. 20, 2010) (single witness’s testimony that petitioner was the person who shot

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him was sufficient to prove petitioner committed attempted murder even though the

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witness “wavered” under cross-examination concerning whether petitioner was the

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shooter), accepted by 2010 WL 4536866 (C.D. Cal. Oct. 29, 2010). Consequently,

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Petitioner’s argument amounts to nothing more than an invitation to re-weigh the

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evidence at trial and intrude upon the jury’s exclusive province to determine

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whether or not Ms. Hwang’s testimony at the second trial was credible. Reviewing

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courts, however, are prohibited from doing either. See Goode, 814 F.2d at 1355.

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3.

Attempted Robbery

“An attempted robbery requires a specific intent to commit robbery and a

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direct, ineffectual act (beyond mere preparation) toward its commission.” People v.

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Medina, 41 Cal. 4th 685, 694 (2007). The direct but ineffectual act need not,

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however, be an actual element of the crime. See id. As such, a completed theft is

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not required for an attempted robbery. See id.

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Here, there was sufficient evidence to support each of Petitioner’s

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convictions for attempted robbery. It bears repeating that he admitted that he was

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part of a “crew” working “in concert together” to identify victims at banks and

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follow them in order to rob them. (Supp. CT at 28-29.) And in each attempted

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robbery, as in the two charged robberies, Petitioner targeted the same type of victim

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– namely, Asian women who had just visited a local bank alone. (See 4 RT at

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2103, 2429-32, 2459-62, 2454-56; 5 RT at 2720, 2812-13, 3007-08, 3040-41.)

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What’s more, police witnessed the attempted robberies of Jieun Kim and Ms. Le

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and observed Petitioner and his co-conspirators using identical tactics in both.

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Specifically, they identified their targets at local banks, waited for the victims to

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leave, and thereafter drove separate cars in tandem while following the victims over

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long distances. (See 5 RT at 2715-21, 2746-48, 2750, 3025.)

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44

1

Although police did not witness the attempted robbery of Lydia Kim, there

2

was substantial evidence supporting a reasonable inference that Petitioner was one

3

of the people who attempted to rob her. Indeed, the person who followed her in the

4

Master Golf’s parking lot donned the same type of construction vest that Petitioner

5

had worn when he robbed Ms. Hwang later that same day.18 (See 4 RT at 2437

6

(Lydia Kim testifying that the person who followed her in the Master Golf’s

7

parking lot was wearing a construction vest), 2467 (Ms. Hwang identifying the

8

construction vest that police recovered from Petitioner’s car as the “same vest” that

9

he had worn when he robbed her).) Additionally, GPS tracking showed that

10

Petitioner and Barber were in the vicinity of where the attempted robbery of Lydia

11

Kim occurred (see 5 RT at 2799-2801), and phone records show that they were in

12

constant communication that day (see id. at 2798, 2802). From this evidence, the

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jury could reasonably infer that Petitioner committed the attempted robbery.

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Moreover, it is of no consequence that Petitioner and his co-conspirators

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never approached the victims in the attempted robberies because, in each, they were

16

thwarted from doing so. Indeed, in two of the attempted robberies, they were

17

prevented from approaching their victims by the presence of third parties. (See 4

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RT at 2434 (Lydia Kim testifying that Master Golf’s manager alerted her that she

19

was being followed inside the parking garage); 5 RT at 2812-13 (Le testifying that

20

she parked her car and immediately gave her keys to a nearby valet).) And the third

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attempted-robbery victim lived in a home behind two separate security gates, one of

22

which closed before the next opened. (See id. at 2456 (Jieun Kim describing the

23

“double gate system” at her home).) As such, Petitioner and his companions never

24

had an opportunity to confront her once she passed through the first gate.

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18

According to defense counsel, the construction vests were similar though
not identical. (See 5 RT at 3354.)
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1

In short, there was ample evidence supporting each of Petitioner’s

2

convictions. Accordingly, the court of appeal’s rejection of his sufficiency-of-the-

3

evidence claim was neither an unreasonable application of nor contrary to clearly

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established federal law.

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VII.

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ORDER

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Accordingly, IT IS ORDERED that Judgment be entered denying the First
Amended Petition.

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DATED: March 26, 2024

______________________________
KAREN E. SCOTT
United States Magistrate Judge

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