Alfred Roldan v. Ron Barnes

Filing 55

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Josephine L. Staton. The Court accepts and adopts the Magistrate Judge's Report and Recommendation. It is Ordered that Judgment be entered denying and dismissing the Petition with prejudice.(sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ALFRED ROLDAN,

) NO. ED CV 13-394-JLS(E)
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Petitioner,
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v.
) REPORT AND RECOMMENDATION OF
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RON BARNES, Warden,
) UNITED STATES MAGISTRATE JUDGE
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Respondent.
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______________________________)

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This Report and Recommendation is submitted to the Honorable

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Josephine L. Staton, United States District Judge, pursuant to 28

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U.S.C. section 636 and General Order 05-07 of the United States

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District Court for the Central District of California.

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PROCEEDINGS

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Petitioner filed a “Petition for Writ of Habeas Corpus By a

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Person in State Custody” on March 4, 2013, to which was attached a

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memorandum (“Pet. Mem.”) and a copy of Petitioner’s then-pending

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California Supreme Court habeas corpus petition in California Supreme

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Court case number S208679 (“Pet. Attach.”).

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On April 22, 2013, the Court received from Petitioner a “Petition

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for Abeyance,” which the Court rejected for filing on that date on the

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ground that the proof of service did not reflect service on

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Respondent.

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“Notice of Motion and Motion to Amend Habeas Corpus,” to which was

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attached a copy of the California Supreme Court’s order denying the

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petition in case number S208679.

On May 13, 2013, the Court received from Petitioner a

On May 16, 2013, the Court rejected

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this Motion for filing on the ground that Petitioner had not attached

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a proof of service.1

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Respondent filed an Answer on June 3, 2013.

On July 2, 2013,

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Petitioner filed a motion for an extension of time to file a Reply,

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which the Court granted on that date.

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On August 2, 2013, the Court received from Petitioner: (1) a

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motion for an extension of time to file a Reply; (2) a “Petition for

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Abeyance, etc.”; and (3) a “Notice of Motion and Motion to Amend

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Habeas Corpus.”

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for filing on the ground that the proofs of service did not reflect

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service on Respondent.

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On August 6, 2013, the Court rejected these documents

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On May 15, 2013, the Court also rejected for filing
another “Petition for Abeyance” submitted by Petitioner, again on
the ground that the proof of service did not reflect service on
Respondent.
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On August 2, 2013, the Court received from Petitioner:

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(1) another motion for an extension of time to file a Reply;

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(2) another “Petition for Abeyance”; and (3) a “Notice of Motion and

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Motion to Amend Habeas Corpus, etc.” (“Motion to Amend”).

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August 6, 2013, the Court rejected these documents for filing for

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failure to show proof of service on Respondent.

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however, the Court issued an order sua sponte vacating the August 6,

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2013 Order and permitting the documents to be filed.

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October 7, 2013 Order, the Court also denied as moot both the motion

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On

On October 7, 2013,

In the

for an extension of time and the “Petition for Abeyance.”

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The Motion to Amend sought to amend the Petition to add allegedly

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newly exhausted grounds for relief that were contained in his

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California Supreme Court habeas corpus petition.

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Opposition to the Motion to Amend on December 5, 2013, alleging that

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Petitioner’s new claims were untimely.

Respondent filed an

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On April 9, 2014, the Magistrate Judge issued a Minute Order

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construing the original Petition to contain the claims raised in the

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California Supreme Court habeas petition attached to the original

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Petition and ordering Respondent to file a Supplemental Answer

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addressing the merits of those claims.

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On April 24, 2014, the Court denied Petitioner’s most recent
“Motion for Abeyance,” which had been filed on March 31, 2014.

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On May 22, 2014, Respondent filed a Supplemental Answer
addressing the merits of the claims raised in the California Supreme
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Court petition attached to Petitioner’s original federal Petition.

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July 9, 2014, Petitioner filed a Reply, accompanied by declarations

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On

and documentary evidence.

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BACKGROUND

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An Amended Information charged Petitioner and co-defendant Frank

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Ahumada with: (1) one count of the robbery of Arif Arif on January 19,

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2004 in violation of California Penal Code section 211 (Count 1);

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(2) one count of assault with a firearm on Arif Arif on January 19,

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2004 in violation of California Penal Code section 245(a)(2) (Count

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2); and (3) one count of unlawful participation in a criminal street

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gang on January 19, 2004 in violation of California Penal Code section

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186.22(a) (Count 3) (Clerk’s Transcript [“C.T.] 259-61)2.

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Information also charged Petitioner with one count of the robbery of

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Adam Sappenfield on January 18, 2014 in violation of California Penal

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Code section 211 (Count 4); and one count of unlawful participation in

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a criminal street gang on January 18, 2004 in violation of California

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Penal Code section 186.22(a) (Count 5) (C.T. 261-62).

The Amended

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The Amended Information further alleged that: (1) with respect to

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Count 1, Ahumada personally and intentionally discharged a firearm and

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proximately caused great bodily injury to another person within the

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meaning of California Penal Code sections 12022.53(d) and

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Respondent lodged two non-identical copies of a Clerk’s
Transcript identified as “Lodgment 1.” Unless otherwise
indicated, the Court refers to the Clerk’s Transcript lodged on
or about May 28, 2014, and identified in Respondent’s
“Supplemental Notice of Lodgment” filed on that date.
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1192.79(c)(8); (2) with respect to Count 1, Petitioner violated

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California Penal Code section 186.22(a), was a principal in the

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offense and at least one principal personally and intentionally

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discharged a firearm and proximately caused great bodily injury to

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another person within the meaning of California Penal Code sections

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12022.53(d) and (e) and 186.22(b); (3) with respect to Count 2,

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Ahumada personally used a firearm within the meaning of California

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Penal Code sections 12022.5(a) and 1192.7(c)(8) and personally

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inflicted great bodily injury on Arif within the meaning of California

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Penal Code sections 12022.7(a) and 1192.7(c)(8); (4) with respect to

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Counts 1 and 2, Petitioner and Ahumada committed the Arif robbery and

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assault for the benefit of, at the direction of, or in association

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with a criminal street gang within the meaning of California Penal

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Code section 186.22(b); and (5) with respect to Count 4, Petitioner

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committed the Sappenfield robbery for the benefit of, at the direction

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of, or in association with a criminal street gang within the meaning

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of California Penal Code section 186.22(b) (C.T. 259-61).

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The jury found Petitioner guilty of all the charged offenses and

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found true all of the enhancement allegations (Reporter’s Transcript

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[“R.T.”] 596-99; C.T. 477-85, 492, 494, 499-500).

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Petitioner to the midterm of three years on Count 1,3 plus twenty-five

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years to life pursuant to the section 12022.53(d) and (e)

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See Cal. Penal Code § 213.
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The court sentenced

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enhancements,4 plus a consecutive ten year term for the gang

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enhancement (R.T. 620-21; C.T. 512).

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sentence of one year and four months on Count 4, plus a consecutive

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term of one year and four months for the personal use enhancement on

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that count, plus a consecutive term of three years and three months

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for the gang enhancement (R.T. 621; C.T. 513).

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sentence on counts 2, 3 and 5 pursuant to California Penal Code

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section 654 (R.T. 620-21; C.T. 512-13).

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Petitioner’s total sentence to be forty-three years and seven months

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The court imposed a consecutive

The court stayed

The court calculated

to life (R.T. 621; C.T. 513).

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The California Court of Appeal remanded the matter for

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resentencing but otherwise affirmed the judgment (see People v.

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Ahumada, 2009 WL 1653840 (Cal. App. June 12, 2009).

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sentencing court again imposed a three year sentence on Count 1, plus

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twenty-five years to life pursuant to the section 12022.53(d) and (e)

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enhancements (Reporter’s Transcript of Proceedings on April 7, 2010

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[“April 7, 2010 R.T.”] 8-9; Clerk’s Transcript lodged on or about

On remand, the

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Section 12022.53(d) mandates “an additional and
consecutive term of imprisonment in the state prison for 25 years
to life” for “any person who . . . personally and intentionally
discharges a firearm.” Section 12022.53(e)(1)(A) provides that
section 12022.53(d) also applies to any principal in the
commission of the section 12022.53(d) offense who “violated
subdivision (b) of Section 186.22.” Because the jury found true
the street gang enhancement in Section 186.22(b), section
12022.53(d) applied to Petitioner. See Garcia v. Yarborough,
2006 WL 6185670 (C.D. Cal. Apr. 18, 2006), aff’d, 310 Fed. App’x
988 (9th Cir.), cert. denied, 558 U.S. 837 (2009) (“Subdivision
(e) of section 12022.53 authorizes the imposition of the enhanced
sentence under 12022.53(d) to aiders and abettors if a criminal
street gang allegation is also pled and proven.”) (citation
omitted).
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June 3, 2013, at 28).

With respect to the gang enhancement on Count

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1, the court stated, with the prosecutor’s acquiescence, that the gang

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enhancement on Count 1 was “not imposed and stayed pursuant to 654 of

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the Penal Code” (April 7, 2010 R.T. 9).

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year consecutive sentence on Count 4 plus “3.3 years” on the personal

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use enhancement, plus “3.3" years on the gang enhancement, for a total

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calculated sentence of thirty-five years and six months to life

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(April 7, 2010 R.T. 10; Clerk’s Transcript lodged on or about June 3,

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2013, at 28-29).

The court imposed a three

The court again stayed sentence on Counts 2, 3 and 5

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(April 7, 2010 R.T. 9-10; Clerk’s Transcript lodged on or about

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June 3, 2013, at 28-29).

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The Court of Appeal amended Petitioner’s sentence to a term of

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thirty-five years eight months to life, but otherwise affirmed the

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judgment (Respondent’s Lodgment 7; see People v. Roldan, 2011 WL

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3873858 (Cal. App. Sept. 2, 2011).

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California Supreme Court denied Petitioner’s petition for review

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“without prejudice to any relief to which [Petitioner] might be

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entitled after the court decides People v. Caballero, S190647”

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(Respondent’s Lodgments 8, 9).

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petition in the California Supreme Court, which that court denied

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summarily on April 17, 2013 (Respondent’s Lodgments 10, 11).

On November 16, 2011, the

Petitioner filed a habeas corpus

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SUMMARY OF TRIAL EVIDENCE

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The following summary is taken from the opinion of the California

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Court of Appeal in People v. Roldan, 2011 WL 3873858 (Cal. App.

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Sept. 2, 2011).

See Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir.
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2009) (taking factual summary from state appellate decision).

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On January 18, 2004, defendant robbed Adam Sappenfield

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who was sitting in his car with two friends.

Defendant and

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two others approached the vehicle.

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Sappenfield’s window and asked if he had any weed.

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Sappenfield said no, and defendant pulled out a weapon,

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placed it in the window, and demanded Sappenfield’s cell

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phone.

Defendant tapped on

After taking the phone, defendant demanded money.

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Sappenfield denied having any.

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Defendant and the two

individuals with him fled.

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The next evening, defendant entered the Corona Discount

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Place with his codefendant, Frank Ahumada, Jr.

Like

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Ahumada, defendant was a member of Corona Vario Locos, a

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criminal street gang.

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sweatshirt with the hood pulled up.

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the store recognized them as regular customers.

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pulled out a gun and demanded money.

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well and Arif was trapped behind the counter.

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approximately $300 from the register and handed it to

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defendant.

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another approximately $200.

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Arif gave them approximately $200 from his wallet.

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money was demanded and Ahumada shot Arif in the hand.

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Ahumada and defendant fled.

Each wore black pants and a black
Arif Arif, the clerk in
Ahumada

Defendant had a gun as
He took

Ahumada demanded more money and Arif gave over
The robbers demanded more and
More

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(Respondent’s Lodgment 7, pp. 2-3; People v. Roldan, 2011 WL 3873858
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at *1).

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PETITIONER’S CONTENTIONS

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Petitioner contends:

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1.

The evidence allegedly was insufficient to show Petitioner

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committed the crimes for the benefit of a criminal street gang within

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the meaning of the gang enhancement statute, California Penal Code

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section 186.22(b);

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2.

Petitioner’s trial counsel allegedly rendered ineffective

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assistance by: (a) failing to request a continuance prior to the

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commencement of trial; (b) failing to file a motion to suppress

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allegedly irrelevant and prejudicial gang evidence; (3) failing to

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request instructions concerning the use of gang evidence, lesser

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included offenses and the alleged distinction between the intent of

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the shooter and that of the accomplice; (4) failing to challenge the

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sufficiency of the evidence to show Petitioner’s involvement and

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intent with respect to the Arif robbery; (5) failing to “seek

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discovery[,] to investigate, object, file motions and develop a

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working defense and relationship with his client as counsel mis-led

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and had conflict of interest with petitioner through out proceedings”;

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and (6) failing to investigate purported mitigating evidence with

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respect to Petitioner’s sentence (Pet. Attach., ECF Docket No. 1, pp.

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43-46).5

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3.

Petitioner allegedly received an unconstitutional sentence;

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The sentencing court allegedly was unaware of its discretion

and

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to strike the gang enhancement.

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STANDARD OF REVIEW

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Under the “Antiterrorism and Effective Death Penalty Act of 1996"

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(“AEDPA”), a federal court may not grant an application for writ of

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

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any claim that was adjudicated on the merits in state court

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proceedings unless the adjudication of the claim:

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decision that was contrary to, or involved an unreasonable application

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

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Court of the United States”; or (2) “resulted in a decision that was

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based on an unreasonable determination of the facts in light of the

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evidence presented in the State court proceeding.”

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2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v.

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Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09

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(2000).

(1) “resulted in a

28 U.S.C. §

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“Clearly established Federal law” refers to the governing legal
principle or principles set forth by the Supreme Court at the time the

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The Petition does not bear consecutive page numbers.
The Court uses the ECF pagination.
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state court renders its decision on the merits.

Greene v. Fisher, 132

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S. Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).

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A state court’s decision is “contrary to” clearly established Federal

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law if:

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Court law; or (2) it “confronts a set of facts . . . materially

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indistinguishable” from a decision of the Supreme Court but reaches a

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different result.

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omitted); Williams v. Taylor, 529 U.S. at 405-06.

(1) it applies a rule that contradicts governing Supreme

See Early v. Packer, 537 U.S. at 8 (citation

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Under the “unreasonable application prong” of section 2254(d)(1),

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a federal court may grant habeas relief “based on the application of a

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governing legal principle to a set of facts different from those of

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the case in which the principle was announced.”

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538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537

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U.S. at 24-26 (state court decision “involves an unreasonable

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application” of clearly established federal law if it identifies the

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correct governing Supreme Court law but unreasonably applies the law

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to the facts).

Lockyer v. Andrade,

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“In order for a federal court to find a state court’s application

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of [Supreme Court] precedent ‘unreasonable,’ the state court’s

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decision must have been more than incorrect or erroneous.”

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Smith, 539 U.S. 510, 520 (2003) (citation omitted).

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court’s application must have been ‘objectively unreasonable.’”

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at 520-21 (citation omitted); see also Waddington v. Sarausad, 555

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U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th

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Cir. 2004), cert. dism’d, 545 U.S. 1165 (2005).

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habeas court must determine what arguments or theories supported,
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Wiggins v.

“The state
Id.

“Under § 2254(d), a

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. . . or could have supported, the state court’s decision; and then it

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must ask whether it is possible fairminded jurists could disagree that

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those arguments or theories are inconsistent with the holding in a

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prior decision of this Court.”

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786 (2011).

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2254(d)(1).”

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relief may not issue unless “there is no possibility fairminded

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jurists could disagree that the state court’s decision conflicts with

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[the United States Supreme Court’s] precedents.”

Harrington v. Richter, 131 S. Ct. 770,

This is “the only question that matters under §
Id. (citation and internal quotations omitted).

Habeas

Id. at 786-87 (“As a

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condition for obtaining habeas corpus from a federal court, a state

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

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presented in federal court was so lacking in justification that there

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was an error well understood and comprehended in existing law beyond

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any possibility for fairminded disagreement.”).

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In applying these standards, the Court looks to the last reasoned

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state court decision.

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(9th Cir. 2008).

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state court summarily denies a claim, “[a] habeas court must determine

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what arguments or theories . . . could have supported the state

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court’s decision; and then it must ask whether it is possible

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fairminded jurists could disagree that those arguments or theories are

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inconsistent with the holding in a prior decision of this Court.”

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Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) (citation,

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quotations and brackets omitted).

See Delgadillo v. Woodford, 527 F.3d 919, 925

Where no reasoned decision exists, as where the

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Additionally, federal habeas corpus relief may be granted “only
on the ground that [Petitioner] is in custody in violation of the
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Constitution or laws or treaties of the United States.”

28 U.S.C. §

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2254(a).

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of whether the petition satisfies section 2254(a) prior to, or in lieu

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of, applying the standard of review set forth in section 2254(d).

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Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).

In conducting habeas review, a court may determine the issue

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Furthermore, on federal habeas review of trial-type errors, this

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Court must apply the harmless error standard set forth in Brecht v.

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Abrahamson, 507 U.S. 619 (1993) (“Brecht”).

Brecht forbids a grant of

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habeas relief for a trial-type error unless the error had a

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“substantial and injurious effect or influence” on the outcome of

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proceeding.

Id. at 637-38.

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DISCUSSION

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I.

Petitioner’s Challenge to the Sufficiency of the Evidence to
Support the Gang Enhancement Does Not Merit Habeas Relief.

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A.

Governing Legal Standards

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Petitioner contends the evidence did not suffice to show that

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Petitioner committed the crimes for the benefit of a criminal street

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gang, arguing that there allegedly was no evidence that the

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perpetrators wore gang colors, threw gang signs or claimed gang

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affiliation during the crimes (Pet. Attach, ECF Document 1, p. 45).

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Because the California Supreme Court summarily rejected this claim,

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the federal Court “must determine what arguments or theories . . .

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could have supported the state court’s decision; and then it must ask
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whether it is possible fairminded jurists could disagree that those

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arguments or theories are inconsistent with the holding in a prior

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decision of this [United States Supreme] Court.”

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Pinholster, 131 S. Ct. at 1403 (citation, quotations and brackets

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omitted).

Cullen v.

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On habeas corpus, the Court’s inquiry into the sufficiency of

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evidence is limited.

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totally devoid of evidentiary support as to render [Petitioner’s]

Evidence is sufficient unless the charge was “so

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conviction unconstitutional under the Due Process Clause of the

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Fourteenth Amendment.”

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1975), cert. denied, 423 U.S. 1062 (1976) (citations and quotations

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omitted).

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determines that no “rational trier of fact could have found the

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essential elements of the crime beyond a reasonable doubt.”

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v. Virginia, 443 U.S. 307, 317 (1979).

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was “so unsupportable as to fall below the threshold of bare

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rationality.”

Fish v. Cardwell, 523 F.2d 976, 978 (9th Cir.

A conviction cannot be disturbed unless the Court

Jackson

A verdict must stand unless it

Coleman v. Johnson, 132 S. Ct. 2060, 2065 (2012).

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Jackson v. Virginia establishes a two-step analysis for a

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challenge to the sufficiency of the evidence.

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Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc).

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reviewing court must consider the evidence in the light most favorable

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to the prosecution.”

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United States v.
“First, a

Id. (citation omitted); see also McDaniel v.

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Brown, 558 U.S. 120, 133 (2010).6

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usurp the role of the trier of fact by considering how it would have

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resolved the conflicts, made the inferences, or considered the

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evidence at trial.”

United States v. Nevils, 598 F.3d at 1164

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(citation omitted).

“Rather, when faced with a record of historical

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facts that supports conflicting inferences a reviewing court must

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presume - even if it does not affirmatively appear in the record -

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that the trier of fact resolved any such conflicts in favor of the

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prosecution, and must defer to that resolution.”

At this step, a court “may not

Id. (citations and

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internal quotations omitted); see also Coleman v. Johnson, 132 S. Ct.

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at 2064 (“Jackson leaves [the trier of fact] broad discretion in

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deciding what inferences to draw from the evidence presented at trial,

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requiring only that [the trier of fact] draw reasonable inferences

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from basic facts to ultimate facts”) (citation and internal quotations

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omitted); Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (“it is the

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

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conclusions should be drawn from evidence admitted at trial”).

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State need not rebut all reasonable interpretations of the evidence or

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“rule out every hypothesis except that of guilt beyond a reasonable

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doubt at the first step of Jackson [v. Virginia].”

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Nevils, 598 F.3d at 1164 (citation and internal quotations omitted).

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Circumstantial evidence and the inferences drawn therefrom can be

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sufficient to sustain a conviction.

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1114-15 (9th Cir. 2011).

The

United States v.

Ngo v. Giurbino, 651 F.3d 1112,

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The Court must conduct an independent review of the
record when a habeas petitioner challenges the sufficiency of the
evidence. See Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir.
1997). The Court has conducted such an independent review with
respect to Petitioner’s sufficiency claim.
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At the second step, the court “must determine whether this

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evidence, so viewed, is adequate to allow any rational trier of fact

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to find the essential elements of the crime beyond a reasonable

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doubt.”

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internal quotations omitted; original emphasis).

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“may not ask itself whether it believes that the evidence at the trial

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established guilt beyond a reasonable doubt.”

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internal quotations omitted; original emphasis).

United States v. Nevils, 598 F.3d at 1164 (citation and
A reviewing court

Id. (citations and

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In applying these principles, a court looks to state law for the

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substantive elements of the criminal offense, but the minimum amount

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of evidence that the Constitution requires to prove the offense “is

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purely a matter of federal law.”

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2064.

Coleman v. Johnson, 132 S. Ct. at

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B.

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Discussion

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California Penal Code section 186.22(b)(1) authorizes a sentence

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enhancement for any person who is convicted of a violent felony which

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was “committed for the benefit or, at the direction of, or in

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association with any criminal street gang, with the specific intent to

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promote, further, or assist in any criminal conduct by gang members.”

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Here, the prosecution introduced evidence that:

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(1) Petitioner and Ahumada admitted membership in CVL or one of its

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member “clicks” (presumably cliques) (R.T. 176-79, 185-86, 198, 230-

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33, 242-43)7; (2) Ahumada had gang tattoos; (R.T. 178-80, 302-04);

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(3) a photograph recovered from the search of Ahumada’s residence

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showed Petitioner, wearing gang colors, posing along with two gang

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members, one of whom was displaying a gang sign (R.T. 195-97, 243-44);

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(4) the cell phone taken from Sappenfield and recovered during the

7

search of Ahumada’s residence displayed the words “Crown Town,”

8

signifying CVL, and contained photographs of gang members which

9

Sappenfield said were not on the phone when it was taken from him

10

(R.T. 70-71, 204-05, 215-16, 262, 263-64); and (5) Petitioner was

11

observed writing “Lil Critter,” Petitioner’s moniker, on a fence (R.T.

12

241-43).

13

in his opinion: (1) CVL was an active criminal street gang whose

14

primary activities included robbery and assault; (2) CVL gang members

15

“put in work” by committing crimes; and (3) both crimes were committed

16

for the benefit of, at the direction or in association with a criminal

17

street gang (R.T. 222-23, 226, 314-18, 319-21).

Furthermore, the prosecution’s gang expert testified that,

18
19

This evidence amply supported the gang enhancement.

See Emery v.

20

Clark, 643 F.3d 1210, 1214 (9th Cir. 2011) (evidence sufficient where

21

gang expert testified that petitioner shot victim because victim had

22

“disrespected” petitioner’s gang and that it was important for

23

petitioner to maintain respect accorded to him as a gang member;

24

applying California law); People v. Vang, 52 Cal. 4th 1038, 1048, 132

25

Cal. Rptr. 3d 373, 262 P.3d 581 (2011) (“Expert opinion that

26
27
28

7

The prosecution’s gang expert testified that the CVS
member “clicks” all got along with each other (R.T. 227).
17

1

particular criminal conduct benefitted a gang is not only permissible

2

but can be sufficient to support the Penal Code section 186.22,

3

subdivision (b)(1), gang enhancement.”) (citation and internal

4

quotations omitted); People v. Albillar, 51 Cal. 4th 47, 63, 119 Cal.

5

Rptr. 3d 415, 244 P.3d 1062 (2010) (“Expert opinion that particular

6

criminal conduct benefitted a gang by enhancing its reputation for

7

viciousness can be sufficient to raise the inference that the conduct

8

was ‘committed for the benefit of a [criminal street gang]’ within the

9

meaning of section 186.22(b)(1)”) (citation omitted); People v.

10

Romero, 140 Cal. App. 4th 15, 18-19, 43 Cal. Rptr. 3d 862 (2006)

11

(evidence sufficient to show crime was gang-related, where evidence

12

showed defendant was a gang member, shootings occurred in territory

13

and at hangout of rival gang, and gang expert testified that shootings

14

were committed for benefit of defendant’s gang, although evidence did

15

not show victims were gang members or that anyone involved wore gang

16

colors or used gang signs).

17

that the offenses were not gang-related (see R.T. 426-32), the jury

18

chose to credit the testimony of the prosecution expert.

19

cannot revisit that credibility determination.

20

538 U.S. at 131-34 (ruling that the lower federal court erroneously

21

relied on inconsistencies in trial testimony to deem evidence legally

22

insufficient; the reviewing federal court must presume that the trier

23

of fact resolved all inconsistencies in favor of the prosecution, and

24

must defer to that resolution); United States v. Franklin, 321 F.3d

25

1231, 1239-40 (9th Cir.), cert. denied, 540 U.S. 858 (2003) (in

26

reviewing the sufficiency of the evidence, a court does not “question

27

a jury’s assessment of witnesses’ credibility” but rather presumes

28

that the jury resolved conflicting inferences in favor of the

Although the defense gang expert opined

18

This Court

See McDaniel v. Brown,

1

prosecution).

2
3

For the foregoing reasons, the California Supreme Court’s

4

rejection of Petitioner’s challenge to the sufficiency of the evidence

5

to support the gang enhancements was not contrary to, or an

6

objectively unreasonable application of, any clearly established

7

Federal law as determined by the United States Supreme Court.

8

U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. 770, 785-87

9

(2011).

See 28

Petitioner is not entitled to habeas relief on this claim.

10
11
12

II.

Petitioner’s Claims of Ineffective Assistance of Counsel Do Not
Merit Habeas Relief.

13
14

Petitioner contends his trial counsel rendered ineffective

15

assistance in several ways.

16

rejected these claims in an unreasoned order, this federal Court “must

17

determine what arguments or theories . . . could have supported the

18

state court’s decision; and then it must ask whether it is possible

19

fairminded jurists could disagree that those arguments or theories are

20

inconsistent with the holding in a prior decision of this [United

21

States Supreme] Court.”

22

(citation, quotations and brackets omitted).

Because the California Supreme Court

Cullen v. Pinholster, 131 S. Ct. at 1403

23
24

A.

Governing Legal Standards

25
26

To establish ineffective assistance of counsel, Petitioner must

27

prove: (1) counsel’s representation fell below an objective standard

28

of reasonableness; and (2) there is a reasonable probability that, but
19

1

for counsel’s errors, the result of the proceeding would have been

2

different.

3

(1984) (“Strickland”).

4

“is a probability sufficient to undermine confidence in the outcome.”

5

Id. at 694.

6

counsel’s performance was reasonable or the claimed error was not

7

prejudicial.

8

2002) (“Failure to satisfy either prong of the Strickland test

9

obviates the need to consider the other.”) (citation omitted).

Strickland v. Washington, 466 U.S. 668, 688, 694, 697
A reasonable probability of a different result

The court may reject the claim upon finding either that

Id. at 697; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir.

10
11

Review of counsel’s performance is “highly deferential” and there

12

is a “strong presumption” that counsel rendered adequate assistance

13

and exercised reasonable professional judgment.

14

384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005)

15

(quoting Strickland, 466 U.S. at 689).

16

reasonableness of counsel’s conduct “on the facts of the particular

17

case, viewed as of the time of counsel’s conduct.”

18

U.S. at 690.

19

nor apply the fabled twenty-twenty vision of hindsight. . . .”

20

Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert.

21

denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see

22

Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (“The Sixth Amendment

23

guarantees reasonable competence, not perfect advocacy judged with the

24

benefit of hindsight.”) (citations omitted).

25

burden to show that “counsel made errors so serious that counsel was

26

not functioning as the counsel guaranteed the defendant by the Sixth

27

Amendment.”

28

internal quotations omitted); see Strickland, 466 U.S. at 689

Williams v. Woodford,

The court must judge the

Strickland, 466

The court may “neither second-guess counsel’s decisions,

Petitioner bears the

Harrington v. Richter, 131 S. Ct. at 787 (citation and

20

1

(petitioner bears burden to “overcome the presumption that, under the

2

circumstances, the challenged action might be considered sound trial

3

strategy”) (citation and quotations omitted).

4
5

A state court’s decision rejecting a Strickland claim is entitled

6

to “a deference and latitude that are not in operation when the case

7

involves review under the Strickland standard itself.”

8

Richter, 131 S. Ct. at 785.

9

not whether counsel’s actions were reasonable.

Harrington v.

“When § 2254(d) applies, the question is
The question is

10

whether there is any reasonable argument that counsel satisfied

11

Strickland’s deferential standard.”

Id. at 788.

12
13

“In assessing prejudice under Strickland, the question is not

14

whether a court can be certain counsel’s performance had no effect on

15

the outcome or whether it is possible a reasonable doubt might have

16

been established if counsel acted differently.”

17

(citations omitted).

18

counsel’s alleged error, it is “‘reasonably likely’” that the result

19

would have been different.

20

at 696).

21

not just conceivable.”

Id. at 791-92

Rather, the issue is whether, in the absence of

Id. at 792 (quoting Strickland, 466 U.S.

“The likelihood of a different result must be substantial,
Id.

22
23

B.

Discussion

24
25

1.

Failure to Request a Continuance

26
27

Petitioner contends that his “newly appointed” trial counsel

28

failed to request a continuance, contending counsel had “hardly enough
21

1

time to prepare for an armed robbery trial” (see Pet. Attach., ECF

2

Docket 1, p. 46).

3

request a continuance is mistaken.

4

September 13, 2007, the attorney who tried the case, Joseph Galasso

5

III, filed a motion for a continuance, alleging that Petitioner’s

6

prior counsel had been transferred to a different courthouse and that

7

Mr. Galasso required additional time to prepare the case (C.T. 238-

8

238B).

9

trial for November 5, 2007 (C.T. 243-44).

Petitioner’s contention that counsel did not
The record shows that, on

The court granted the motion on September 26, 2007, and set
The court subsequently

10

granted two motions for continuances filed by Ahumada’s counsel (C.T.

11

245-48, 250-53, 255).

12

287-88).

Trial did not begin until January 8, 2008 (C.T.

13
14

Furthermore, Petitioner has not alleged any facts showing how

15

Petitioner was prejudiced by counsel’s alleged failure to request a

16

(further) continuance.

17

counsel’s unreasonableness nor any resulting prejudice.

18

States v. Sarno, 73 F.3d 1470, 1492-93 (9th Cir. 1995), cert. denied,

19

518 U.S. 1020 (1996), and 519 U.S. 859 (1996) (general allegations

20

that a continuance would have permitted defendant to prepare a better

21

defense insufficient); Windham v. Cate, 2012 WL 3150354, at *10 (C.D.

22

Cal. June 11, 2012), adopted, 2012 WL 2913160 (C.D. Cal. July 17,

23

2012) (“Given the complete absence of any evidence that trial

24

counsel’s failure to seek an additional continuance impaired

25

Petitioner’s defense, Petitioner’s ineffective assistance claim fails

26

under both prongs of Strickland.”) (citation omitted).

27

Petitioner is not entitled to habeas relief on this claim.

28

///

Accordingly, Petitioner has shown neither

22

See United

Therefore,

1

2.

Failure to Move to Suppress Gang Evidence

2
3

Petitioner faults counsel for failing to seek suppression of the

4

allegedly “irrelavant [sic] prejudicial gang evidence” (Pet. Attach.,

5

ECF Docket No. 1, p. 46).

6

expert testimony, is relevant and admissible to prove the elements of

7

the substantive gang crime and gang enhancements.”

8

Williams, 170 Cal. App. 4th 587, 609, 88 Cal. Rptr. 3d 401 (2009)

9

(citation omitted).

In California, “[g]ang evidence, including

People v.

Even relevant gang evidence may be excluded if

10

the probative value is substantially outweighed by the probability

11

that the evidence would be unduly prejudicial.

12

30 Cal. 4th 1166, 135 Cal. Rptr. 2d 553, 70 P.3d 981 (2003), cert.

13

denied, 540 U.S. 1124 (2004).

14

that is likely to evoke an emotional bias against the defendant or to

15

cause the jury to prejudge the issues based on extraneous factors.

16

People v. Crabtree, 169 Cal. App. 4th 1293, 1315, 88 Cal. Rptr. 3d 41

17

(2009).

18

charges and the gang enhancements.

19

showing undue prejudice.

20

unreasonableness in failing to file a motion to suppress the gang

21

evidence nor any resulting prejudice.

See People v. Carter,

Undue prejudice arises from evidence

Here, the gang evidence was relevant to the substantive gang
Petitioner alleges no facts

Petitioner has shown neither counsel’s

22
23

3.

Failure to Request Instructions

24
25

Petitioner faults counsel for failing to request instructions

26

concerning the use of gang evidence, lesser included offenses and the

27

alleged distinction between the intent of the shooter and that of the

28

accomplice.

These claims lack merit.
23

1

With respect to the use of gang evidence, the court instructed

2

the jury that it could consider evidence of gang activity “only for

3

the limited purpose of deciding whether: A defendant acted with the

4

intent, purpose and knowledge that are required to prove the gang

5

related crimes and enhancements charged [and] when you evaluate the

6

credibility or believability of a witness and when you consider the

7

facts and information relied on by an expert witness in reaching his

8

or her opinion” (R.T. 509-10; C.T. 464).

9

it could not consider the gang evidence “for any other purpose” and

The court also told the jury

10

could not “conclude from this evidence that the defendant is a person

11

of bad character or that he has a disposition to commit crime” (R.T.

12

509-10; C.T. 464).

13

instruction counsel purportedly should have requested, and does not

14

allege how the failure to give any additional instruction could have

15

prejudiced Petitioner.

16

(9th Cir. 2011) (a “cursory and vague claim cannot support habeas

17

relief”) (citation omitted); Jones v. Gomez, 66 F.3d 199, 204-205 (9th

18

Cir. 1995), cert. denied, 517 U.S. 1143 (1996) (conclusory allegations

19

do not warrant habeas relief); Marroquin v. Hernandez, 2013 WL

20

1498856, at *28 (C.D. Cal. Jan. 24, 2013), adopted, 2013 WL 1498914

21

(C.D. Cal. Apr. 9, 2013) (habeas relief unavailable where petitioner

22

did not “specify what kind of cautionary instruction counsel should

23

have requested or suggest how he was prejudiced by counsel’s failure

24

to do so”).

25

///

26

///

27

///

28

///

Petitioner does not assert what additional

See Greenway v. Schriro, 653 F.3d 790, 804

24

1

Petitioner’s vague allegation that counsel allegedly failed to

2

seek a lesser included offense instruction is similarly defective.8

3

Petitioner does not describe what lesser included offense instruction

4

counsel purportedly should have requested or how the absence of any

5

instruction prejudiced Petitioner.

6

allegations do not warrant habeas relief.

7

653 F.3d at 804; Jones v. Gomez, 66 F.3d at 204-205 (9th Cir. 1995).

Such vague and conclusory
See Greenway v. Schriro,

8
9

4.

Failure to Challenge the Sufficiency of the

10

Evidence to Show Petitioner’s Involvement and

11

Intent with Respect to the Arif Robbery

12
13

Petitioner contends counsel should have challenged the

14

sufficiency of the evidence of Petitioner’s involvement and intent

15

with respect to the offenses against Arif, contending that Petitioner

16

purportedly did not know Ahumada would fire the rifle (Pet. Attach,

17

ECF Document 1, p. 46).

18
19

To the extent Petitioner contends counsel should have challenged

20

the sufficiency of the evidence of the robbery of Arif, Petitioner’s

21

claim plainly lacks merit.

22

personal property in the possession of another, from his person or

23

immediate presence, and against his will, accomplished by means of

In California, robbery is a “taking of

24
8

25
26
27
28

At trial, the court granted a defense request to
instruct the jury, with respect to Count 1, on the enhancement of
personal use of a firearm pursuant to California Penal Code
section 12022.53(b), assertedly a lesser enhancement to the
section 12022.53(d) enhancement (R.T. 481-88). Petitioner does
not allege what other lesser included offense instruction
supposedly was appropriate in his case.
25

1

force or fear.”

Cal. Penal Code § 211.

The evidence that Petitioner

2

pointed a gun toward Arif (R.T. 106-09, 127, 129, 151, 161) and then

3

took money from Arif (R.T. 110-13) sufficed to support Petitioner’s

4

robbery conviction.

5

35 Cal. Rptr. 38 (1963) (evidence that defendant pointed gun at victim

6

and said “this is it” sufficed to show defendant’s intent to commit

7

robbery); People v. Franklin, 200 Cal. App. 2d 797, 798, 19 Cal. Rptr.

8

465 (1962) (evidence that defendant pointed gun at victim and demanded

9

money sufficient to show taking was by force or fear).

See People v. Jackson, 222 Cal. App. 2d 296, 298,

Counsel was

10

not ineffective in failing to make a meritless argument.

11

Wood, 93 F.3d 1434, 1445 (9th Cir. 1996), cert. denied, 519 U.S. 1142

12

(1997) (“the failure to take a futile action can never be deficient

13

performance”).

See Rupe v.

14
15

To the extent Petitioner contends counsel should have challenged

16

the sufficiency of the evidence to support Petitioner’s conviction for

17

assault with a firearm on Arif, Petitioner also has failed to show a

18

Strickland violation.

19

unlawful attempt, coupled with a present ability, to commit a violent

20

injury on the person of another.”

21

assault is an attempt to commit a battery, which is defined as “any

22

willful and unlawful use of force or violence upon the person of

23

another.”

24

P.2d 372 (1971); Cal. Penal Code § 242.

Under California law, an assault is “an

Cal. Penal Code section 240.

An

People v. Rocha, 3 Cal. 3d 893, 899, 92 Cal. Rptr. 172, 479

25
26

“[I]t is a defendant’s action enabling him to inflict a present

27

injury that constitutes the actus reus of assault.”

28

44 Cal. 4th 1164, 1172, 81 Cal. Rptr. 3d 723, 189 P.3d 971 (2008).
26

People v. Chance,

1

“There is no requirement that the injury would necessarily occur as

2

the very next step in the sequence of events, or without any delay.”

3

Id.

4

specific intent to injure the victim.”

5

4th 779, 788, 111 Cal. Rptr. 3d 114, 29 P.3d 197 (2001).

6

defendant guilty of assault must be aware of the facts that would lead

7

a reasonable person to realize that a battery would directly,

8

naturally and probably result from his conduct.”

9

need not be subjectively aware of the risk that a battery might

Assault is a general intent crime and “does not require a
People v. Williams, 26 Cal.

Id.

“[A]

“He, however,

10

occur.”

11

can constitute an assault with a deadly weapon.

12

Raviart, 93 Cal. App. 4th 258, 263, 267, 112 Cal. Rptr. 2d 850 (2001);

13

Salcedo v. Ollison, 2009 WL 1041527, at *2 (C.D. Cal. Apr. 17, 2009);

14

see also People v. Licas, 41 Cal. 4th 362, 366-67, 60 Cal. Rptr. 3d

15

31, 159 P.3d 507 (2007) (“Once a defendant has attained the means and

16

location to strike immediately he has the ‘present ability to

17

injure.’”) (citation omitted).

Pointing a gun at another person within range of the weapon
See People v.

18
19

The court instructed the jury on the elements of assault with a

20

firearm (R.T. 510-11; C.T. 460).

21

abetting instructions, informing the jury that to prove guilt based on

22

a theory of aiding and abetting, the prosecution was required to show

23

that a person aids and abets a crime if he knows of the perpetrator’s

24

unlawful purpose and specifically intends to, and does in fact, aid,

25

facilitate, promote, encourage or instigate the perpetrator’s

26

commission of that crime (R.T. 503-04; C.T 458-59).

27

that: (1) Petitioner and Ahumada entered the store wearing black

28

sweatshirts with the hoods covering their heads; (2) Arif recognized

The court also gave aiding and

27

Arif testified

1

the two as “regular customers”; (3) as Arif returned to the counter

2

where the cash register was located; Petitioner closed the door and

3

Ahumada and Petitioner entered the first aisle; (4) Ahumada approached

4

Arif, pointed a gun at Arif’s upper body and said, “We want the

5

money”; (5) Petitioner stood at the end of the counter, blocked Arif’s

6

path, and also pointed a gun at Arif; (6) trapped, Arif took some

7

money from the cash register and gave it to Petitioner; (7) Ahumad

8

told Arif, “We want more”; (8) Arif gave the rest of the money in the

9

cash register to Petitioner; (9) at Ahumada’s command, Arif took money

10

from his wallet and gave it to Petitioner; (10) Arif turned to the

11

right, pointed to the cash register with his right hand and said: “I

12

gave you everything you want.

13

(11) Ahumada shot Arif in the right hand; (12) at Ahumada’s command,

14

Arif dropped to the floor; and (13) Ahumada and Petitioner left the

15

store (R.T. 103-16, 127, 129, 151, 156-57, 161).9

16

with this evidence reasonably could have concluded that challenging

17

the sufficiency of the evidence to support Petitioner’s conviction for

18

assault with a firearm on Arif, either as a direct perpetrator or as

19

an aider and abettor, would fail.

20

Petitioner has not shown counsel’s unreasonableness in this regard or

21

any resulting prejudice.

22

///

23

///

Take everything.

You can take it.”;

An attorney faced

Rupe v. Wood, 93 F.3d at 1445.

24
9

25
26
27
28

Although Arif confused Ahumada’s and Petitioner’s first
names, his in-court identifications and his testimony make it
clear that Ahumada was the robber who shot Arif and Petitioner
was the robber who blocked Arif’s exit from the counter and took
the money. Arif testified that, although he had seen Petitioner
and Ahumada in his store since they were young, he did not know
their names “for sure” (R.T. 155).
28

1

5.

Failure to “Seek Discovery[,] to Investigate,

2

Object, File Motions, and Develop a Working

3

Defense and Relationship, etc.”

4
5

Petitioner’s vague and conclusory claims that trial counsel

6

allegedly failed to seek unidentified discovery, to perform

7

unspecified investigations, to make unspecified objections, or to file

8

unspecified motions do not establish counsel’s alleged

9

unreasonableness or any resulting prejudice.

See Bible v. Ryan, 571

10

F.3d 860, 871 (9th Cir. 2009), cert. denied, 559 U.S. 995 (2010)

11

(speculation insufficient to show Strickland prejudice); Ceja v.

12

Stewart, 97 F.3d 1246, 1255 (9th Cir. 1996), cert. denied, 522 U.S.

13

971 (1997) (rejecting Strickland claim where petitioner failed to

14

explain what compelling evidence would have been uncovered had counsel

15

interviewed more witnesses); United States v. Murray, 751 F.2d 1528,

16

1535 (9th Cir.), cert. denied, 474 U.S. 979 (1985) (rejecting claim

17

that counsel ineffectively failed to call witnesses, where defendant

18

did not “identify any witnesses that his counsel should have called

19

that could have been helpful”); see also Zettlemoyer v. Fulcomer, 923

20

F.2d 284, 298 (3d Cir.), cert. denied, 502 U.S. 902 (1991) (petitioner

21

cannot satisfy Strickland standard by “vague and conclusory

22

allegations that some unspecified and speculative testimony might have

23

established his defense”).

24
25

Petitioner’s equally conclusory claims that counsel allegedly

26

failed to “develop a working defense and relationship with his

27

client,” misled Petitioner in an undescribed fashion and operated

28

under an unspecified conflict of interest also fail to show a
29

1

Strickland violation.

See Morris v. Slappy, 461 U.S. 1, 14 (1983)

2

(Sixth Amendment does not guarantee a “meaningful relationship” with

3

counsel); Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir.), amended,

4

253 F.3d 1150 (9th Cir. 2001) (conclusory allegations insufficient to

5

establish an actual conflict of interest); Morris v. State of

6

California, 966 F.2d 448, 455 (9th Cir. 1991), cert. denied, 506 U.S.

7

831 (1992) (“bare allegation of a conflict of interest” insufficient).

8
9
10

6.

Failure to Investigate and Present Alleged
Mitigating Evidence

11
12

Petitioner contends counsel failed to investigate and present at

13

sentencing purported mitigating evidence.

14

should have discovered and presented evidence concerning Petitioner’s

15

alleged “lack of maturity[,] under developed [sic] sense of

16

responsibility and negative influences from gangs” (Pet. Attach., ECF

17

Docket No. 1, p. 43).

18

should have obtained and presented information concerning Petitioner’s

19

background history, a character assessment, a family and social

20

history, an “educational training history,” as well as evidence

21

concerning Petitioner’s alleged “prior juvenile experience” and

22

religious and cultural influences (id.).

23

Petitioner does not describe what specific information in Petitioner’s

24

history, character, education, experiences or influences counsel

25

purportedly should have presented to the court or how any such alleged

26

information would have affected Petitioner’s sentence.

27

conclusory allegations do not show that the California Supreme Court’s

28

rejection of this claim was objectively unreasonable.

Petitioner contends counsel

In this regard, Petitioner contends counsel

30

In the Petition, however,

Petitioner’s

See Bible v.

1

Ryan, 571 F.3d at 871; Ceja v. Stewart, 97 F.3d at 1255; United States

2

v. Murray, 751 F.2d 1535; see also Zettlemoyer v. Fulcomer, 923 F.2d

3

at 298.

4
5

Petitioner attaches to his Reply the declarations of Petitioner,

6

Ahumada, Petitioner’s mother and Petitioner’s uncle, as well as

7

Petitioner’s alleged scholastic test report and special education

8

report (Reply, ECF Docket No. 51, pp. 15-32).

9

purport to describe Petitioner’s alleged hardships growing up and

The declarations

10

Ahumada’s alleged influence over Petitioner.

11

purport to show Petitioner’s alleged learning problems.

The other documents

12
13

The Court cannot properly consider these declarations.

14

here, the state court adjudicated a claim on the merits and such

15

adjudication was not “unreasonable” under section 2254(d), habeas

16

relief is unavailable regardless of the nature of any additional

17

evidence Petitioner might present for the first time in federal court.

18

See Cullen v. Pinholster, 131 S. Ct. 1388, 1400 (2011) (“if a claim

19

has been adjudicated on the merits by a state court, a federal habeas

20

petitioner must overcome the limitation of § 2254(d)(1) on the record

21

that was before the state court,” even where the state court denied

22

the petition summarily) (footnote omitted); Gulbrandson v. Ryan, 738

23

F.3d 976, 993-94 n.6 (9th Cir. 2013), cert. denied, 134 S. Ct. 2823

24

(2014) (Pinhoster’s preclusion of a federal evidentiary hearing

25

applies to section 2254(d)(2) claims as well as to section 2254(d)(1)

26

claims).

27

///

28

///
31

Where, as

1

C.

Conclusion

2
3

For all of the foregoing reasons, the California Supreme Court’s

4

rejection of Petitioner’s claims of ineffective assistance of counsel

5

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

6

any clearly established United States Supreme Court precedent.

7

Petitioner is not entitled to habeas relief on these claims.

8
9

III. Petitioner’s Challenge to the Constitutionality of His

10

Sentence Does Not Merit Habeas Relief.

11
12

A.

Background

13
14

At Petitioner’s initial sentencing on March 21, 2008,

15

Petitioner’s counsel presented the testimony of Petitioner’s mother,

16

who told the court that Petitioner was “only a kid,” was remorseful,

17

and had “learned his lesson” (R.T. 605).

18

reminded the court that Petitioner was only fifteen years old at the

19

time of the offenses, and that fifteen-year-olds did “stupid things”

20

(R.T. 606).

21

immature,” but had matured and expressed remorse (R.T. 606).

22

Recognizing that the sentence of twenty-five years to life pursuant to

23

California Penal Code section 12022.53(d) was mandatory,10

24

Petitioner’s counsel asked the court to exercise its discretion to

25

impose concurrent sentences on Counts 4 and 5 (R.T. 607-08).

26

///

Petitioner’s counsel

Petitioner’s counsel said Petitioner had been “very

27
28

10

See California Penal Code sections 12022.53(d), (h).
32

1

The court expressed concern regarding imposing a life sentence on

2

a “child” with no prior record (R.T. 607).

The court acknowledged

3

that the crimes were “very, very serious” but observed that Petitioner

4

had a “minimal” criminal history consisting of “law enforcement

5

contact” and no history of drug use (R.T. 617-18).

6

acknowledged that Sappenfield’s mother had asked for mercy and

7

reported that her son assertedly believed Petitioner had refused an

8

order to shoot Sappenfield (R.T. 618).

9

there was “not a lot of mitigation” (R.T. 619).

The court

However, the court also said

10
11

The court explained that, in selecting the middle term, it had

12

concluded that the mitigating factors including Petitioner’s youth,

13

the absence of a prior record or drug use and the request of

14

Sappenfield’s mother for mercy, did not outweigh the aggravating

15

factors including the seriousness of the offenses (R.T. 620-21).

16

court then imposed a sentence that included twenty-five years to life

17

pursuant to California Penal Code section 12022.53(d) (R.T. 620).

The

18
19

As indicated above, the Court of Appeal reversed and remanded for

20

resentencing.

The Court of Appeal commented that it was not

21

preventing the sentencing court on remand from reconsidering “the

22

sentence as a whole, including the discretionary portions, as long as

23

the new sentence does not exceed the original one” (see People v.

24

Ahumada, 2009 WL 1653820 at *10) (citation omitted).

25
26

At sentencing on remand, Petitioner’s counsel again argued that

27

Petitioner had been fifteen at the time of the offenses and had no

28

prior criminal record (April 7, 2010 R.T. 2).
33

Counsel argued that

1

Petitioner should receive a lesser punishment than Ahumada, contending

2

that Petitioner was not the shooter in the Arif robbery but “was only

3

there” (April 7, 2010 R.T. 2).

4

a sentence of twenty-five years to life, and that Petitioner was

5

receiving a life sentence “for the actions of another person”

6

(April 7, 2010 R.T. 3-4).

7

odd years to life” would be “tantamount to a life sentence” which

8

assertedly would violate the Eighth Amendment (April 7, 2010 R.T. 5).

Counsel argued that murderers received

Counsel argued that a sentence of “30-some-

9
10

The court observed that Petitioner had committed “serious

11

felonies” which caused trauma to the victims, and that gang activity

12

“raises a serious threat to public safety” (April 7, 2010 R.T. 6-7).

13

The court noted Petitioner’s statements in the probation report that

14

Petitioner reportedly had been living with his grandmother and sister,

15

had not been doing well in school and had “drifted off with the wrong

16

crowd” (April 7, 2010 R.T. 7).

17

grandmother and sister had tried to intervene but Petitioner

18

assertedly ignored them (April 7, 2010 R.T. 7).

19

regretted not having listened to them, but said the peer pressure “was

20

hard to resist” (April 7, 2010 R.T. 7).

21

apologized for frightening and upsetting the victims and acknowledged

22

that he deserved punishment (April 7, 2010 R.T. 7).

Petitioner reportedly said his

Petitioner allegedly

Petitioner reportedly

23
24

The court also noted the reported statements of Sappenfield’s

25

mother that Sappenfield assertedly believed Petitioner disregarded

26

someone’s scream to shoot Sappenfield and that she did not want

27

Petitioner to receive “the fullest extent of punishment” (April 7,

28

2010 R.T. 7-8).

Sappenfield’s mother reportedly said her heart broke
34

1

for Petitioner because she “observed his devastation in court”

2

(April 7, 2010 R.T. 8).

3
4

The court said it also had taken into consideration the

5

statements in the probation report that Petitioner allegedly was

6

“impressionable, unsophisticated and naive” and “believed to be

7

immature at the time of the instant matter “ (April 7, 2010 R.T. 8).

8

The court considered Petitioner’s expressions of alleged remorse

9

(April 7, 2010 R.T. 8).

The court again selected the middle term on

10

count 1, and stated it had “no discretion” (April 7, 2010 R.T. 8-9).

11

As indicated previously, Petitioner received a sentence of 35 years

12

and six months to life (April 7, 2010 R.T. 10).

13
14

The Court of Appeal rejected Petitioner’s Eighth Amendment claim,

15

ruling that Petitioner’s claim was not governed by Graham v. Florida,

16

560 U.S. 48 (2010) (“Graham”) (see Respondent’s Lodgment 7, p. 7;

17

People v. Roldan, 2011 WL 3873858, at *4-5).

18

sentence of life without parole for a juvenile offender in a

19

nonhomicide case is unconstitutional.

20

distinguished Graham because Petitioner did not receive a sentence of

21

life without the possibility of parole (see Respondent’s Lodgment 7,

22

p. 7; People v. Roldan, 2011 WL 3873858, at *4-5).

23

Appeal also held that Petitioner’s “as applied” Eighth Amendment

24

challenge to his sentence failed for lack of evidence that

25

Petitioner’s sentence was constitutionally disproportionate (see

26

Respondent’s Lodgment 7, pp. 8-9; People v. Roldan, 2011 WL 3873858,

27

at *4-5).

28

Amendment claim summarily (Respondent’s Ex. 11).

Graham held that a

The Court of Appeal

The Court of

The California Supreme Court rejected Petitioner’s Eighth

35

1

B.

Discussion

2
3

1.

Petitioner’s Categorical Challenge to His Sentence

4
5

The Eighth Amendment forbids the imposition of “cruel and unusual

6

punishments.”

7

the Supreme Court recognized that its cases addressing Eighth

8

Amendment challenges to sentences fell within two general

9

classifications.

United States Constitution, Amend. VIII.

Graham, 560 U.S. at 59.

In Graham,

“The first involves

10

challenges to the length of term-of-years sentences given in all the

11

circumstances in a particular case.”

12

in which the Court implements the proportionality standard by certain

13

categorical restrictions on the death penalty.”

14

v. Simmons, 543 U.S. 551 (2005) (Eighth Amendment forbids imposition

15

of death penalty for a juvenile offender under the age of 18 at the

16

time of the capital crime).

Id.

“The second comprises cases

Id.; see, e.g., Roper

17
18

In Graham, the Supreme Court ruled that, under the categorical

19

approach, the Eighth Amendment prohibited the imposition of a sentence

20

of life without the possibility of parole on a juvenile convicted of a

21

non-homicide offense.

22

reasoned that the penological goals of retribution, deterrence,

23

incapacitation and rehabilitation did not justify a sentence of life

24

without parole on one who committed the crime as a juvenile, in light

25

of, among other things, juveniles’ lack of maturity, underdeveloped

26

sense of responsibility, inclination to “impetuous and ill-considered

27

actions and decisions” and diminished moral responsibility.

28

71-74.

Graham, 560 U.S. at 74-75.

The Graham court

Id. at

Under Graham, a state “is not required to guarantee eventual
36

1

freedom to a juvenile offender convicted of a nonhomicide crime.”

2

at 75.

3

Graham some meaningful opportunity to obtain release based on

4

demonstrated maturity and rehabilitation.”

Id.

“What the State must do, however, is give defendants like

Graham, 560 U.S. at 75.

5
6

In Miller v. Alabama, 132 S. Ct. 2455 (2012) (“Miller”), the

7

Supreme Court applied the categorical approach to deem

8

unconstitutional a mandatory sentence of life without the possibility

9

of parole on a juvenile offender convicted of a homicide.

The Court

10

reasoned that “[m]andatory life without parole for a juvenile

11

precludes consideration of [the defendant’s] chronological age and its

12

hallmark features, - among them, immaturity, impetuostity, and failure

13

to appreciate risks and consequences.”

14

that such a sentence prevents taking into account the defendant’s

15

family and home environment, the circumstances of the underlying

16

homicide offense, the fact that the offender “might have been charged

17

and convicted of a lesser offense if not for incompetencies associated

18

with youth,” and “the possibility of rehabilitation.”

19

ruled that the Eighth Amendment requires “a judge or jury . . . to

20

consider [such] mitigating circumstances before imposing the harshest

21

penalty possible for juveniles [i.e., life without the possibility of

22

parole].”

Id. at 2468.

The court stated

Id.

The Court

Id. at 2475.

23
24

In Moore v. Biter, 725 F.3d 1184 (9th Cir. 2013), the Ninth

25

Circuit held that the Eighth Amendment prohibited a term-of-years

26

sentence of 254 years imposed on a juvenile offender for nonhomicide

27

offenses.

28

indistinguishable” from a sentence of life without the possibility of

The Moore Court deemed the sentence “materially

37

1

parole because the petitioner would never be eligible for parole

2

within his lifetime.

3

55 Cal. 4th 262, 268, 145 Cal. Rptr. 3d 286, 282 P.3d 291 (2012)

4

(holding that, under Graham and Miller, “sentencing a juvenile

5

offender for a nonhomicide offense to a term of years with a parole

6

eligibility date that falls outside the juvenile offender’s natural

7

life expectancy constitutes cruel and unusual punishment in violation

8

of the Eighth Amendment”).

Id. at 1191-9211; see also People v. Caballero,

9
10

In the present case, Petitioner’s categorical challenge to his

11

sentence plainly fails.

12

prohibit sentences of life with the possibility of parole for juvenile

13

nonhomicide offenders (see Pet. Mem., ECF Docket No. 1, p. 16).12

14

Petitioner, age fifteen when he committed the offenses in 2004, will

15

serve approximately twenty-eight years of the sentence imposed on

16

April 7, 2010, after application of credits (see April 7, 2010 R.T.

17

13).

18

becomes eligible for parole.

19

does not fall outside Petitioner’s natural life expectancy.

20

People v. Perez, 214 Cal. App. 4th 49, 57-58, 154 Cal. Rptr. 3d 114

21

(2013), cert. denied, 134 S. Ct. 527 (2013) (where defendant who

As Petitioner acknowledges, Graham does not

Hence, Petitioner will be approximately fifty years old when he
Petitioner’s parole eligibility date
See

22
11

23
24
25
26
27
28

The Ninth Circuit also held that Graham should be
applied retroactively on collateral review and that the state
court’s rejection of the petitioner’s Eighth Amendment challenge
to his sentence was contrary to clearly established Supreme Court
law as expressed in Graham. Moore v. Biter, 725 F.3d at 1191-93.
The United States Supreme Court decided Graham before the
California Supreme Court denied Petitioner’s petition for review.
12

See Graham, 560 U.S. at 63 (“The instant case concerns
only those juvenile offenders sentenced to life without parole
solely for a nonhomicide offense.”).
38

1

committed crimes at age 16 would be eligible for parole at age 47,

2

there was “plenty of time” for him to seek release based on

3

demonstrated maturity and rehabilitation).

4

and the record fails to show, that Petitioner would not receive a

5

“meaningful opportunity to obtain release based on demonstrated

6

maturity and rehabilitation” at a future parole suitability hearing.

7

See Graham, 560 U.S. at 75; see also California Penal Code § 3041.5

8

(inmate shall be permitted to review his or her file prior to parole

9

suitability hearing, and shall be afforded the right to be present, to

10

answer and ask questions and to speak on his own behalf); Cal. Code of

11

Regs., tit. 15, § 2281(b) (in determining suitability for parole,

12

Board may consider, inter alia, “the circumstances of the prisoner’s:

13

social history; past and present mental state; past criminal history,

14

including involvement in other criminal misconduct which is reliably

15

documented; the base and other commitment offenses, including behavior

16

before, during and after the crime; past and present attitude toward

17

the crime; any conditions of treatment or control, including the use

18

of special conditions under which the prisoner may safely be released

19

to the community; and any other information which bears on the

20

prisoner’s suitability for release.”); Cal. Code of Regs., tit. 15, §

21

2281(d) (circumstances tending to show suitability for parole include

22

stable social history, signs of remorse, lack of criminal history of

23

violent crime, and applicant’s age, understanding and plans for the

24

future and institutional behavior).

25

was not a de facto sentence of life without the possibility of parole.

26

Compare Moore v. Biter, 725 F.3d at 1191-92 (sentence of 254 years

27

“materially indistinguishable” from a sentence of life without the

28

possibility of parole because petitioner was “guaranteed to die in
39

Petitioner fails to argue,

Therefore, Petitioner’s sentence

1

prison regardless of his remorse, reflection, or growth”).

2

Accordingly, the state courts’ rejection of Petitioner’s categorical

3

challenge to his sentence was not contrary to Graham, Miller or Moore.

4
5

Additionally, lower courts have applied Graham inconsistently

6

where a defendant who was a juvenile at the time of the offense

7

received a lengthy term-of-years sentence which nevertheless provided

8

some possibility for parole.

9

n.6 (citing cases).

See Moore v. Biter, 725 F.3d at 1194

Given the inconsistency in the case law, and

10

given the material difference between Petitioner’s sentence and the

11

254-year sentence in Moore, this Court cannot conclude that the state

12

courts’ rejection of Petitioner’s categorical Eighth Amendment

13

challenge to his sentence was “so lacking in justification that there

14

was an error well understood and comprehended in existing law beyond

15

any possibility for fairminded disagreement.”

16

Richter, 131 S. Ct. 770, 786-87 (2011); see also White v. Woodall, 134

17

S. Ct. 1697, 1705 (2014) (“where the precise contours of the right [at

18

issue] remain unclear, state courts enjoy broad discretion in their

19

adjudication of a prisoner’s claims”) (citations and internal

20

quotations omitted).

See Harrington v.

21
22

For all of the foregoing reasons, to the extent Petitioner makes

23

a categorical challenge to his sentence by analogizing it to a

24

juvenile sentence of life without the possibility of parole under

25

Graham and Miller, Petitioner is not entitled to habeas relief.

26

///

27

///

28

///
40

1

2.

Petitioner’s Proportionality Challenge to His Sentence

2
3

Petitioner also mounts a proportionality challenge to his

4

sentence, arguing that the “principles underlying the decision in

5

Graham must be taken into account in an Eighth Amendment analysis of a

6

life sentence imposed on a juvenile offender” (Pet. Mem., ECF Docket

7

No., p. 16) (citation omitted).

8

fifteen years old at the time of the offenses, and contends he was

9

“impressionable, unsophisticated, and naive,” and “youthful and

Petitioner points out that he was

10

immature” at the time (id., p. 17).

11

influenced by friends more than family members, and that he did not

12

understand the seriousness of his actions until he heard the victims

13

testify at trial (id.).

14

to the probation officer and adds that Sappenfield’s mother reportedly

15

stated that Petitioner appeared to be devastated (id.; see C.T. 545,

16

547 [probation report]).

17

crimes were serious, he allegedly did not inflict any injury on Arif

18

and assertedly refused to shoot Sappenfield (Pet. Mem., ECF Docket No.

19

1, p. 17).

Petitioner contends that he was

Petitioner asserts that he expressed remorse

Petitioner also argues that, although his

20
21

In Rummel v. Estelle, 445 U.S. 263 (1980), the Supreme Court

22

upheld a sentence of life with the possibility of parole for the crime

23

of obtaining $120.75 by false pretenses, following prior convictions

24

for fraudulent use of a credit card to obtain $80 worth of goods and

25

services and passing a forged check for $28.36.

26

U.S. 277 (1983), the Court struck down a sentence of life without the

27

possibility of parole for uttering a “no account” check for $100, “one

28

of the most passive felonies a person could commit,” where the
41

In Solem v. Helm, 463

1

petitioner had three prior third-degree burglary convictions and

2

convictions for obtaining money by false pretenses, grand larceny and

3

driving while intoxicated.

4

(1991) (“Harmelin”), five Justices, although in disagreement regarding

5

the rationale, upheld a sentence of life without the possibility of

6

parole for a first offense of possession of more than 650 grams of

7

cocaine.

8

capital sentence could violate the Eighth Amendment if it were grossly

9

disproportionate to the crime.

In Harmelin v. Michigan, 501 U.S. 957

In a concurring opinion, Justice Kennedy opined that a non-

Id. at 996-1009.

Justice Kennedy

10

articulated a test whereunder the court first conducts a threshold

11

review of the gravity of the offense and the severity of the sentence

12

to determine whether the case is the “rare” case in which this

13

analysis supports an inference of gross disproportionality.

14

501 U.S. at 1005 (Kennedy, J., concurring).

15

arises, the court thereafter compares the challenged sentence with

16

those received by other offenders in the same jurisdiction and with

17

sentences imposed for the same crime in other jurisdictions.

Harmelin,

If such an inference

Id.

18
19

In 2003, the United States Supreme Court decided two cases

20

involving the constitutionality of sentences imposed under

21

California’s Three Strikes Law.

22

(2003), the Court upheld a sentence of twenty-five years to life for

23

felony grand theft consisting of the non-violent theft of three golf

24

clubs.

25

Court upheld, under the AEDPA standard of review, the California Court

26

of Appeal’s determination that a sentence of fifty years to life for

27

two non-violent petty thefts with a prior theft-related conviction was

28

not disproportionate.

In Ewing v. California, 538 U.S. 11

In Lockyer v. Andrade, 538 U.S. 63 (2003) (“Andrade”), the

Andrade, 538 U.S. at 66-67.
42

1

In Andrade the United States Supreme Court acknowledged that, “in

2

determining whether a particular sentence for a term of years can

3

violate the Eighth Amendment, we have not established a clear or

4

consistent path for courts to follow.”

5

However, the Court observed that “one governing legal principle

6

emerges as ‘clearly established’ under [28 U.S.C.] § 2254(d)(1): A

7

gross disproportionality principle is applicable to sentences for

8

terms of years.”

Andrade, 538 U.S. at 72.

Id.

9
10

In Graham, the Supreme Court expressly adopted Justice Kennedy’s

11

approach in Harmelin.

12

Norris v. Morgan, 622 F.3d 1276, 1287 n.12 (9th Cir. 2010), cert.

13

denied, 131 S. Ct. 1557 (2011).

14

in the eighth amendment proportionality analysis is whether [the]

15

sentence was one of the rare cases in which a . . . comparison of the

16

crime committed and the sentence imposed leads to an inference of

17

gross disproportionality.”

18

(9th Cir.), cert. denied, 506 U.S. 858 (1992) (citations and

19

quotations omitted); see Andrade, 538 U.S. at 73 (gross

20

proportionality principle “applicable only in the ‘exceedingly rare’

21

and ‘extreme’ case”) (citations omitted); Harmelin, 501 U.S. at 1001

22

(1991) (Kennedy, J., concurring) (“The Eighth Amendment does not

23

require strict proportionality between crime and sentence”); see also

24

Norris v. Morgan, 622 F.3d at 1287 (“the Supreme Court has uniformly

25

applied - and thus given meaning to - the gross disproportionality

26

principle by consistently measuring the relationship between the

27

severity of the punishment inflicted upon the offender and the nature

28

and number of offenses committed . . .”); Cocio v. Bramlett, 872 F.2d

See Graham, 560 U.S. at 61 (2010); see also

Thus, “[t]he threshold determination

United States v. Bland, 961 F.2d 123, 129

43

1

889, 892 (9th Cir. 1989) (“we are required to defer to the power of a

2

state legislature to determine the appropriate punishment for

3

violation of its laws based on principles of federalism, unless we are

4

confronted with a rare case of a grossly disproportionate sentence”).

5
6

Petitioner’s challenge to the proportionality of his sentence

7

fails under these strict standards.

Nothwithstanding Petitioner’s

8

youth, alleged immaturity, lack of criminal history, expressions of

9

asserted remorse and other alleged mitigating circumstances,

10

Petitioner committed two gang-related armed robberies on two

11

consecutive days.

12

the gun in the car window next to Sappenfield.

13

Petitioner and his companion robbed Arif, during which robbery

14

Petitioner accosted Arif at gunpoint, blocked Arif from escaping, took

15

money and Arif’s wallet, and stood by with gun at the ready as

16

Petitioner’s confederate Ahumada shot Arif.

17

sentences of life without the possibility of parole for crimes

18

significantly less heinous than Petitioner’s crimes.

19

(life without possibility of parole for possession of 672 grams of

20

cocaine); United States v. Jensen, 425 F.3d 698, 708 (9th Cir. 2005),

21

cert. denied, 547 U.S. 1056 (2006) (life without possibility of parole

22

for possession of methamphetamine with intent to distribute); United

23

States v. Van Winrow, 951 F.2d 1069, 1071 (9th Cir. 1991) (life

24

without possibility of parole for possession of cocaine with intent to

25

distribute); Terrebonne v. Butler, 848 F.2d 500, 506-07 (5th Cir.

26

1988), cert. denied, 489 U.S. 1020 (1989) (en banc) (life without

27

possibility of parole for 21-year-old heroin addict who delivered

28

packets of heroin to an undercover officer); Holley v. Smith, 792 F.2d

Petitioner robbed Sappenfield at gunpoint, putting

44

The next day

Courts have upheld

See Harmelin

1

1046, 1051-52 (11th Cir. 1986), cert. denied, 481 U.S. 1020 (1987)

2

(life without possibility of parole for recidivist robber); Holmes v.

3

Valadez, 2005 WL 3113085, at *8-9 (N.D. Cal., Nov. 21, 2005) (ninety

4

years to life for two first degree-burglary convictions for recidivist

5

burglar).

6
7

The Andrade decision also appears to foreclose the possibility of

8

a successful disproportionality claim in the present case.

9

Andrade, the Supreme Court acknowledged: “in determining whether a

In

10

particular sentence for a term of years can violate the Eighth

11

Amendment, we have not established a clear or consistent path for

12

courts to follow.”

13

clarity, the Andrade Court found not unreasonable a California court’s

14

affirmance of a sentence of 50 years to life for two petty thefts with

15

a prior theft-related conviction.

16

prevent this Court from concluding that the state appellate courts’

17

refusals to interfere with Petitioner’s sentence was “contrary to” or

18

an “unreasonable application of” “clearly established Federal law as

19

determined by the Supreme Court of the United States.”

20

§ 2254(d); see also Silva v. McDonald, 891 F. Supp. 2d 1116, 1131

21

(C.D. Cal.), app. dism’d, (9th Cir. 12-56765) (Oct. 22, 2012) (denying

22

habeas relief under the AEDPA standard of review because “this Court

23

is not aware of any controlling Supreme Court precedent which holds,

24

or could be construed to hold that the sentence at issue here of 40-

25

years-to-life with the possibility of parole, for a juvenile who was

26

16 years old at the time of the nonhomicide crime, violates the Eighth

27

Amendment”).

28

///

Andrade, 538 U.S. at 72.

Id.

45

Because of this lack of

The same lack of clarity would

See 28 U.S.C.

1

In sum, the California courts’ rejection of Petitioner’s

2

disproportionality claim was not contrary to, or an objectively

3

unreasonable application of, any clearly established Federal Law as

4

determined by the United States Supreme Court.

5

2254(d); Harrington v. Richter, 131 S. Ct. 770, 785-87 (2011).

6

Petitioner is not entitled to federal habeas relief on this claim.

See 28 U.S.C. §
Thus,

7
8
9

IV.

Petitioner’s Claim that the State Court Allegedly Was Unaware of
Its Sentencing Discretion Does Not Merit Habeas Relief.

10
11

Petitioner contends the sentencing court was unaware of its

12

discretion to strike the gang enhancement appended to Count 4 (Pet.,

13

“Attachment” to “Ground II,” ECF Docket No. 1, p. 7).

14

Appeal rejected this assertion, ruling that nothing in the record

15

suggested that the court was unaware that it had the discretion to

16

strike the enhancement (Respondent’s Lodgment 7, p. 6; see People v.

17

Roldan, 2011 WL 3873858, at *3).

The Court of

18
19

To the extent Petitioner contends his sentence violated state

20

law, Petitioner is not entitled to habeas relief.

21

corpus relief may be granted “only on the ground that [Petitioner] is

22

in custody in violation of the Constitution or laws or treaties of the

23

United States.”

24

and serving of a sentence generally are governed by state law and do

25

not raise a federal constitutional question.

26

Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994), cert. denied, 514 U.S.

27

1026 (1995) (“The decision whether to impose sentences concurrently or

28

consecutively is a matter of state criminal procedure and is not

28 U.S.C. § 2254(a).

46

Federal habeas

Matters relating to sentencing

See Cacoperdo v.

1

within the purview of federal habeas corpus.”) (citation omitted);

2

Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (rejecting as

3

not cognizable petitioner’s contention the California court violated

4

section 654 by imposing two consecutive terms for rape in concert

5

based on petitioner’s single act of standing guard while others raped

6

the victim); Dowell v. Clark, 2011 WL 5326166, at *6-7 (C.D. Cal.

7

Mar. 23, 2011), adopted, 2011 WL 5331718 (C.D. Cal. Nov. 3, 2011)

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(claim that sentencing court misunderstood its discretion to strike

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gang enhancement presented only a claim of state law error not

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cognizable on federal habeas review); see also Wilson v. Corcoran, 131

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S. Ct. 13, 16 (2010) (per curiam) (“[I]t is only noncompliance with

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federal law that renders a State’s criminal judgment susceptible to

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collateral attack in the federal courts.”) (original emphasis).

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Under narrow circumstances, however, the misapplication of state

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sentencing law may violate due process.

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U.S. 40, 50 (1992).

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whether [the error] is so arbitrary or capricious as to constitute an

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independent due process” violation.

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citation omitted); see also Christian v. Rhode, 41 F.3d 461, 469 (9th

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Cir. 1994) (“Absent a showing of fundamental unfairness, a state

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court’s misapplication of its own sentencing laws does not justify

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federal habeas relief.”).

See Richmond v. Lewis, 506

“[T]he federal, constitutional question is

Id. (internal quotation and

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Petitioner has shown no such fundamental unfairness.

The

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California sentencing court has the discretion to strike the gang

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enhancement “in an unusual case where the interests of justice would

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best be served, if the court specifies on the record and enters into
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the minutes the circumstances indicating that the interests of justice

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would best be served by that disposition.”

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186.22(g).

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discretion to strike the gang enhancement, Petitioner has failed to

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demonstrate that, had the judge understood his discretion, the judge

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would have exercised that discretion.

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above, the judge imposed the midterm, not the low term, on Count 4,

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after indicating that the circumstances in mitigation did not outweigh

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the circumstances in aggravation (April 7, 2010 R.T. 16-18).

Cal. Penal Code §

Even assuming arguendo the court was unaware of its

To the contrary, as indicated

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Accordingly, there is insufficient cause to believe that the judge

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would have deemed Petitioner’s case to be the “unusual” case

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warranting dismissal of the gang enhancement within the meaning of

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section 186.22(g).

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“fundamentally unfair.”

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shown that the alleged error had any substantial and injurious effect

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or influence on Petitioner’s sentence within the meaning of Brecht v.

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Abrahamson, 507 U.S. 619 (1993) (“Brecht”).

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637-38; Estrella v. Ollison, 668 F.3d 593, 598 (9th Cir. 2011)

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(applying Brecht to claim of sentencing error).

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///

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Hence, Petitioner’s sentence was not
For the same reasons, Petitioner has not

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See Brecht, 507 U.S. at

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RECOMMENDATION

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For the foregoing reasons, IT IS RECOMMENDED that the Court issue

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an Order: (1) accepting and adopting this Report and Recommendation;

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and (2) denying and dismissing the Petition with prejudice.

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DATED:

August 12, 2014.

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____________/S/_______________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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NOTICE
Reports and Recommendations are not appealable to the Court of

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Appeals, but may be subject to the right of any party to file

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objections as provided in the Local Rules Governing the Duties of

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Magistrate Judges and review by the District Judge whose initials

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appear in the docket number.

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Federal Rules of Appellate Procedure should be filed until entry of

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the judgment of the District Court.

No notice of appeal pursuant to the

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If the District Judge enters judgment adverse to Petitioner, the

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District Judge will, at the same time, issue or deny a certificate of

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appealability.

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and Recommendation, the parties may file written arguments regarding

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whether a certificate of appealability should issue.

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Within twenty (20) days of the filing of this Report