Maurice L. Robins v. David Long

Filing 25

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Otis D. Wright, II for Report and Recommendation (Issued) 20 . 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. (Attachments: # 1 R&R) (dml)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MAURICE L. ROBINS,

) NO. ED CV 13-1671-ODW(E)
)
Petitioner,
)
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v.
) REPORT AND RECOMMENDATION OF
)
DAVID LONG, Warden,
) UNITED STATES MAGISTRATE JUDGE
)
Respondent.
)
______________________________)

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This Report and Recommendation is submitted to the Honorable

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Otis D. Wright, II, 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 September 16, 2013.

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Answer on October 16, 2013.

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the allotted time.

Respondent filed an

Petitioner did not file a Reply within

On December 20, 2013, the Magistrate Judge issued

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a Minute Order requiring Petitioner to file a Reply.

Petitioner did

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not file a Reply within the time specified in the Minute Order.

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Therefore, on January 28, 2014, the Magistrate Judge issued a Report

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and Recommendation recommending dismissal of the action without

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prejudice for failure to prosecute.

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On February 18, 2014, Petitioner filed a “Notice of Appeal” and

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an “Application for Certificate of Appealability from District Court.”

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On February 25, 2014, the Magistrate Judge issued a Minute Order

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withdrawing the Report and Recommendation in light of Petitioner’s

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apparent desire to begin again to prosecute the action.

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Magistrate Judge extended to March 21, 2014, the time within which

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Petitioner was required to file a Reply.

The

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Petitioner again did not file a Reply within the allotted time.

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Therefore, on April 8, 2014, the Magistrate Judge issued another

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Report and Recommendation recommending dismissal of the action without

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prejudice for failure to prosecute.

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On April 25, 2014, Petitioner filed a notice of change of address

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to a correctional facility in Oklahoma and a motion for an extension

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of time to file a Reply.

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issued a Minute Order withdrawing the April 8, 2014 Report and

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Recommendation and granting Petitioner an extension of time to file a

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Reply to May 22, 2014.

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to Return to First Amended Petition [sic] for Writ of Habeas Corpus”

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(“Traverse”), which is the equivalent of Petitioner’s Reply.

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///

On April 29, 2014, the Magistrate Judge

On May 12, 2014, Petitioner filed a “Traverse

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BACKGROUND

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A jury found Petitioner guilty of six counts of robbery, and

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found true the allegations that a principal had been armed with a

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firearm in the commission of each robbery (Reporter’s Transcript

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[“R.T.”] 484-88; Clerk’s Transcript [“C.T.”] 162, 166-77).

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admitted a prior conviction allegation (R.T. 492; C.T. 263).

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court imposed a total sentence of eleven years and eight months (R.T.

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499-502; C.T. 289-91, 298-99).

Petitioner
The

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The California Court of Appeal affirmed the judgment

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(Respondent’s Lodgment 5; see People v. Robins, 2012 WL 5902388 (Cal.

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App. Nov. 26, 2012).

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petition for review summarily (Respondent’s Lodgments 6, 7).

The California Supreme Court denied Petitioner’s

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SUMMARY OF TRIAL EVIDENCE

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I.

Prosecution Case

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A.

Testimony of Robert Weston

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Robert Weston testified as follows:

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At approximately 7 a.m. on September 21, 2010, Weston, a tow

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truck driver, arrived at his place of work at Gosch Towing (R.T. 40-

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42).

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left before the auction began, then returned sometime after noon,

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noticing people waiting to pay for their cars (R.T. 46).

An auction began at approximately 10 a.m. (R.T. 45).

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Weston

Weston was

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standing around waiting for the office to clear out when he noticed

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“two black gentlemen” outside the office, one sitting in a chair

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propping the door open and the other standing (R.T. 47-48).

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identified Petitioner as the man seated in the chair (R.T. 48-49).

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Petitioner was looking inside the office, talking with the other man,

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and at one point talking on his [Petitioner’s] cell phone (R.T. 49-

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50).

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hanging down the back, had a goatee and a mustache, and was wearing a

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“brownish sweater looking shirt with blue jeans” (R.T. 51).

Weston

Petitioner had his hair braided in cornrows with a little bit

The other

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man was light-skinned and wore white shoes, blue jean shorts, a white

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shirt with a design and a “du-rag” (R.T. 51).

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Weston watched the two men for at least thirty minutes before

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Weston entered the office (R.T. 52).

At one point, Petitioner asked

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Weston if Petitioner could enter to use the restroom, and Weston

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allowed Petitioner inside to do so (R.T. 52-53).

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to the end of the yard and began talking to some men (R.T. 54).

The other man went

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Petitioner exited the restroom and the other man returned and

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conversed with Petitioner (R.T. 54-55).

Weston entered the office and

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sat down (R.T. 55).

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employees Frank Bulleit, Veronica Guevera, Kim Kinney and Gabriel

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Estrella, and another woman, Kathryn Cyr (R.T. 55-56).

Also in the office with Weston were Gosch

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Shortly after the last customer left, the man wearing the “du-

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rag” entered the office with a gun and said “This is a robbery.

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on the ground” (R.T. 56-58).

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ceiling (R.T. 64).

Get

The gunman fired the gun into the

Petitioner entered right behind the man with the
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gun (R.T. 57-59).

Petitioner was not wearing a mask, hat, hood or

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other disguise, and his face was fully exposed (R.T. 66).

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Petitioner grabbed Estrella and made him get down to the ground

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(R.T. 59-60).

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Petitioner grabbed the cash box and collected the cell phones from the

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victims (R.T. 60-61).

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because he did not want to lie down and get shot in the back of the

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head (R.T. 61, 63).

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The men demanded the victims’ cell phones (R.T. 64-65).

Weston did not lie down, but sat on his knees,

The other victims were down on the ground (R.T.

61).

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Weston was “a little fearful,” but also “pissed off” (R.T. 64,

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74).

Weston could see every action of the two robbers, and “was

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pretty much watching what both gentlemen were doing” (R.T. 64, 74).

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Petitioner walked up to Weston, and Weston put his cell phone into

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Petitioner’s hand (R.T. 65-66).

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Petitioner at the time (R.T. 65).

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able to focus on Petitioner for twenty to thirty minutes (R.T. 75,

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84).

Weston was less than a foot away from
During the incident, Weston was

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The two men left the building (R.T. 65-66).

Weston immediately

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called 911 from the office phone (R.T. 66-67).

Weston said he

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described Petitioner to the 911 operator as a “black male, late

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twenties, early thirties, a big guy, heavyset, with cornrows in his

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hair” (R.T. 69).

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On cross-examination, Weston acknowledged that he had testified
at the preliminary hearing that the robber was a “tall black
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gentleman” with braided hair wearing black jeans and a “black sweater

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type shirt,” who Weston believed had a mustache (R.T. 83).

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acknowledged telling the 911 operator and a deputy on the day of the

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crime, that the robber wore a brown sweater and blue jeans, saying

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“[i]t was a dark-colored sweater with dark-colored pants” (R.T. 84,

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85).

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the man had a mustache or goatee (R.T. 86).

Weston

Weston acknowledged that he did not tell the 911 operator that

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Weston acknowledged telling a deputy that the robber was over six

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feet tall and testifying at the preliminary hearing that the robber

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was “about 6'5"; almost 7" (R.T. 89-90).

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Police had shown Weston a “six-pack” photo array (R.T. 71).

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Weston looked at all the photos and recognized Petitioner “p[r]etty

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much right away,” within five to ten seconds (R.T. 75).

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examination, Weston first denied that, after he chose Petitioner’s

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photo, the police officer had said “[f]antastic” (R.T. 76).

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after the recorded interview was played for the jury, Weston admitted

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that the officer had made this statement (R.T. 81-82).

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testified, however, that Weston had identified Petitioner’s photo

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based on Weston’s independent memory of the incident (R.T. 90).

On cross-

However,

Weston

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Weston testified he did not see the robbers leave in a car and

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initially denied telling the 911 operator that he had seen the robbers

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leave in a car (R.T. 85).

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this statement in his 911 call and in his preliminary hearing

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testimony (R.T. 85-86).

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///

However, Weston later admitted having made

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Later, Weston went to the police station and picked up two
phones, his phone and Guevara’s Blackberry (R.T. 197-98).

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B.

Weston’s 911 Call

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The jury heard a tape of Weston’s 911 call, in which Weston

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described the robber as a “big” heavyset “black male” in his late 20's

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or early 30's, with his hair in cornrows, wearing a brown sweater and

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blue jeans (R.T. 68-69; C.T. 128-29).

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C.

Testimony of Veronica Guevara

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Veronica Guevara testified as follows:

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Guevara had her personal Blackberry with her at work on the day

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of the incident (R.T. 94-96).

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“black” man sitting outside the office talking on his cell phone (R.T.

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96-97).

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thing” (R.T. 97-98).

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and out of the office, his hands in his pockets (R.T. 97).

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suspicious, scared and nervous, Guevara informed her supervisor, Frank

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Bulleit (R.T. 100).

Before 12:45 p.m., Guevara noticed a

The man had cornrows and a “little bit of a goatee type
Another man wearing baggy clothes was walking in
Feeling

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The man with the cornrows entered the office and went into the

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restroom “for a little bit” (R.T. 101).

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the restroom (R.T. 101).

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out the door (R.T. 101).

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Guevara heard a bang inside

The man emerged from the restroom and walked

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A different man entered the office, ordered the occupants to the

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floor, told them not to look at him, and fired a shot upwards (R.T.

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102-03).

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down (R.T. 102-03).

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cell phones (R.T. 104).

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into her desk drawer, opened the drawer, and the man reached in and

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grabbed her phone (R.T. 103-04).

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see who grabbed her phone (R.T. 104, 110).

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pack photo array but was unable to make an identification (R.T. 110-

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Guevera dropped to the floor under her desk and put her head
The man with the cornrows demanded the victims’
Guevera, who previously had put her phone

Guevara was looking down and did not
Guevara was shown a six-

11).

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D.

Testimony of Frank Bulleit

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Bulleit, the office manager, testified as follows:

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Bulleit came to work at approximately 9:00 a.m. on the day of the

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incident and he and the staff began preparing for the monthly public

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auction (R.T. 135-36, 140).

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person at a time to enter, pay a $100 deposit, and receive a ticket

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(R.T. 139-40).

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approximately an hour and a half later (R.T. 140-41).

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took in $26,980 in cash (R.T. 141-42).

At 9:30, the gate opened to allow one

The auction began at 10:00 a.m. and concluded
The company

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Veronica, Kimberly and Robert were in the office (R.T. 142, 146).

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Gabriel Estrella was in another room where the water and microwave

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were located (R.T. 146).

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preparing for lunch when Bulleit heard a voice, turned, and saw a

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“black man” with a gun in the office (R.T. 147-48).

The last customer had left and staff was

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The man fired the

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gun upward and yelled at everyone to get down on the floor (R.T. 148).

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Bulleit dropped to the floor and curled up (R.T. 149-50).

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heard someone demand the cell phones (R.T. 150).

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phone on the floor (R.T. 150).

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doing,” to which Bulleit replied, “I’m giving you my phone” (R.T.

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150).

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look up, Bulleit did not see who picked up his phone (R.T. 150-51).

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However, he saw the man who took the phones take the money bag as well

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(R.T. 151).

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Bulleit

Bulleit threw his

The gunman said, “[w]hat are you

Someone picked up the phone (R.T. 150).

Because he did not

One of the men told the victims not to move, and the men

left (R.T. 152).

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Approximately three days later, officers showed Bulleit a series

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of photographs, but Bulleit was unable to make an identification (R.T.

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153-54, 156).

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E.

Testimony of Daniel Oliver

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Oliver, a tow truck driver, testified as follows:

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Oliver was at work on the day of the incident when two “African-

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American” men attempted to enter the gate after the auction had

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concluded (R.T. 161-63).

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five minutes, then left (R.T. 162).

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162).

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Approximately a half hour after the robbery, Oliver heard the

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descriptions of the robbers, which matched the men with whom he had

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spoken earlier (R.T. 164).

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Oliver talked to the men for approximately
The two men did not leave (R.T.

Oliver was not present during the robbery (R.T. 163).

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F.

Testimony of Kathryn Cyr

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Kathryn Cyr, Estrella’s fiancée, testified as follows:

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On the morning of the incident, Cyr went to the company sometime

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after noon (R.T. 180-81).

Cyr was in the office with Veronica, Kim,

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Frank, Gabriel and Robert (R.T. 181).

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someone entered and said, “Everyone needs to get down on the ground”

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(R.T. 182-83).

Cyr was sitting at a table when

Cyr did not look at the person (R.T. 183).

Nobody

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moved, and a gun went off directly above Cyr (R.T. 183).

Cyr dropped

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to the floor on her knees (R.T. 183).

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cell phones (R.T. 184).

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men were walking (R.T. 184).

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and grab the cash box, and collect the phones from each victim (R.T.

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185).

The man demanded the victims’

Cyr slid her phone toward the area where the
She saw a man walk past her, bend down

Cyr did not see the man’s face (R.T. 185).

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G.

Testimony of Kimberly Kinney

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Kimberly Kinney testified as follows:

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On the morning of the incident, Kinney was working at the desk at

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approximately 12:45 p.m. when two men entered, fired a gun, ordered

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the occupants to lie down and demanded their cell phones and money

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(R.T. 189-90).

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and did not look up (R.T. 191-92).

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give him her phone (R.T. 194).

Kinney put her phone on the desk

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without looking up (R.T. 194).

Kinney told an investigator she would

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not be able to identify the men (R.T. 194-95).

Kinney got down on her hands and knees, looked down,
One of the men ordered Kinney to

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Kinney was unable to

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make an identification from a photo six-pack (R.T. 195).

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H.

Other Evidence

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Christopher Poznanski, a sheriff’s investigator, allegedly

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arrived at the location on the day of the incident at approximately

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1:40 p.m. (R.T. 166-67).

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and noticed a hole in the ceiling of the office (R.T. 167-68).

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Another deputy allegedly gave Poznanski two cell phones which had been

Poznanski assertedly spoke with witnesses

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found, which Poznanski reportedly turned over to “Salyer,” a forensic

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technician (R.T. 170-72).

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Preston Salyer, a forensic technician for the Riverside County

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Sheriff’s Department, testified that he lifted a fingerprint from the

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screen of one of the phones (R.T. 201-09).

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fingerprint examiner, testified that the fingerprint from the phone

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matched Petitioner’s left index finger (R.T. 246, 248, 253-55, 284-

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87).

Patricia Campos, a

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Detective Samuel Flores testified that he prepared a photo six-

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pack including Petitioner’s photograph and another six-pack containing

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photos of other possible suspects (R.T. 295-96).

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selected Petitioner’s photograph from the first six-pack as that of

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the robber who had collected the money (R.T. 298-99).

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testified Weston said that he, Weston, had gotten a good look at

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Petitioner (R.T. 299).

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after Weston viewed the first six-pack, explaining that it was “just a

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figure of speech” (R.T. 299).

Flores said Weston

Flores

Flores admitted saying “fantastic” to Weston

Flores said he then showed Weston the
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second six-pack (R.T. 299).

Although Weston assertedly did not make

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an identification from the second six-pack, Flores told Weston “Okay.

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Good,” again allegedly as a figure of speech (R.T. 300).

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none of the other victims identified Petitioner (R.T. 312-13).

Flores said

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A video of Weston’s identification appeared to reflect that

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Weston took approximately 25 seconds to make the identification (R.T.

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307-08).

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II.

Defense Case

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A psychologist testified concerning the way memory allegedly

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works and factors assertedly affecting the reliability of an

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eyewitness identification, including stress, weapon focus, exposure

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duration, race, delay between the event and the identification, the

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preparation of the photo array and the alleged bias of the procedure

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administrator (R.T. 324-75).

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Petitioner’s mother testified that Petitioner assertedly was six

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feet one or two inches tall and weighed 220-225 pounds (R.T. 391-94).

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She also said Petitioner was right-handed, although she admitted that

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she had seen him use his left hand (R.T. 392-96).

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PETITIONER’S CONTENTIONS

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Petitioner contends:

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1.

The evidence allegedly was insufficient to support

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Petitioner’s robbery conviction and the gun use enhancements (Ground

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One);

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2.

Petitioner’s trial counsel allegedly rendered ineffective

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assistance by failing to move to suppress the identification testimony

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(Ground Two);

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3.

The trial court allegedly coerced the verdict (Ground Three);

4.

The sentencing court allegedly abused its discretion by

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failing to impose concurrent sentences (Ground Four);

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5.

The sentencing court allegedly erred by failing to stay

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Petitioner’s sentences pursuant to California Penal Code section 654

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(Ground Five); and

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6.

The sentencing court allegedly abused its discretion by

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refusing to recommend that Petitioner serve his sentence in a “Fire

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Camp” (Ground Six).

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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

(1) “resulted in a

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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).

28 U.S.C. §

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17

“Clearly established Federal law” refers to the governing legal

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principle or principles set forth by the Supreme Court at the time the

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state court renders its decision on the merits.

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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.

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///

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Greene v. Fisher, 132

(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

3

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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. . . 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.”

Wiggins v.

“The state
Id.

“Under § 2254(d), a

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

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

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Habeas

Id. at 786-87 (“As a

1

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

2

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

3

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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formidable barrier to federal habeas relief for prisoners whose claims

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have been adjudicated in state court.”

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16 (2013).

“AEDPA erects a

Burt v. Titlow, 134 S. Ct. 10,

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10

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

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state court decision, here the decision of the California Court of

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Appeal.

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2008).

See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir.

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Additionally, federal habeas corpus relief may be granted “only

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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.”

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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).

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28 U.S.C. §

In conducting habeas review, a court may determine the issue

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1

DISCUSSION

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3
4

I.

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

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6

Petitioner challenges the sufficiency of the evidence to support

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his conviction, arguing: (1) four of the victims in the office did not

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identify Petitioner; (2) Bulleit identified a different suspect in the

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photo lineup as the possible gunman but could not identify the other

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robber; (3) Weston’s trial testimony purportedly was unreliable

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because the photo lineup shown to Weston assertedly was suggestive and

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because Weston’s description of the robber allegedly changed during

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the investigation and trial; (4) none of the stolen money or receipts

14

for vehicles were found on Petitioner, in his vehicle or in his

15

residence; (5) no DNA evidence tied Petitioner to the crime scene; and

16

(6) the fingerprint evidence allegedly was inconclusive (Traverse, pp.

17

9-12).

18

that: (1) the photo lineup was not impermissibly suggestive; and

19

(2) there was nothing improbable about Weston’s testimony, which was

20

corroborated by the fingerprint evidence, and which the jury chose to

21

believe despite hearing expert testimony on the supposed pitfalls of

22

eyewitness identifications (Respondent’s Lodgment 5, p. 6-11; see

23

People v. Robins, 2012 WL 5902388, at *2-4).

The Court of Appeal ruled the evidence sufficient, reasoning

24
25

A.

Governing Legal Standards

26
27
28

On habeas corpus, the Court’s inquiry into the sufficiency of
evidence is limited.

Evidence is sufficient unless the charge was “so
17

1

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

2

conviction unconstitutional under the Due Process Clause of the

3

Fourteenth Amendment.”

4

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

5

omitted).

6

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

7

essential elements of the crime beyond a reasonable doubt.”

8

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

9

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

10

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

A conviction cannot be disturbed unless the Court

rationality.”

Jackson

A verdict must stand unless it

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

11
12

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

13

challenge to the sufficiency of the evidence.

14

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

15

reviewing court must consider the evidence in the light most favorable

16

to the prosecution.”

17

Brown, 558 U.S. 120, 133 (2010).1

18

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

19

resolved the conflicts, made the inferences, or considered the

20

evidence at trial.”

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

21

(citation omitted).

“Rather, when faced with a record of historical

22

facts that supports conflicting inferences a reviewing court must

23

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

24

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

United States v.
“First, a

Id. (citation omitted); see also McDaniel v.
At this step, a court “may not

25
26
1

27
28

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).
18

1

prosecution, and must defer to that resolution.”

Id. (citations and

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

The

10

State need not rebut all reasonable interpretations of the evidence or

11

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

12

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

13

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

United States v.

14
15

At the second step, the court “must determine whether this

16

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

17

to find the essential elements of the crime beyond a reasonable

18

doubt.”

19

internal quotations omitted; original emphasis).

20

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

21

established guilt beyond a reasonable doubt.”

22

internal quotations omitted; original emphasis).

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

Id. (citations and

23
24

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

25

substantive elements of the criminal offense, but the minimum amount

26

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

27

purely a matter of federal law.”

28

2064.

Coleman v. Johnson, 132 S. Ct. at

19

1

B.

Discussion

2
3

Weston said that he watched the robbers during the incident, that

4

Petitioner’s face was fully exposed, and that Weston was able to focus

5

on Petitioner for twenty to thirty minutes (R.T. 64, 66, 74-75, 84).

6

Weston also testified that Petitioner earlier spoke with Weston about

7

using the restroom, during which conversation Weston looked at

8

Petitioner’s face (R.T. 52-53).

9

a foot away when Weston put his cell phone into Petitioner’s hand

Weston said Petitioner was less than

10

(R.T. 65-66).

Weston selected Petitioner’s photograph from the first

11

six-pack within approximately 25 seconds and told Flores that he,

12

Weston, had gotten a good look at Petitioner (R.T. 298-99, 307-08).

13

At trial, Weston identified Petitioner unequivocally (R.T. 48-49).

14

Furthermore, one of Petitioner’s fingerprints was found on one

15

victim’s phone (R.T. 246).

16
17

A rational juror crediting this evidence could have found

18

Petitioner guilty beyond a reasonable doubt.

After having had ample

19

opportunity to observe Petitioner, Weston identified Petitioner both

20

at a pretrial photo lineup and at trial.

21

constitutionally sufficient to support the verdict in Petitioner’s

22

case.

23

112, 105 P.3d 487, cert. denied, 546 U.S. 833 (2005) (testimony of

24

single witness sufficient to support a conviction under California law

25

unless the testimony is “physically impossible or inherently

26

improbable”); Cal. Evid. Code § 411; see also United States v. Foster,

27

243 Fed. App’x 315, 316 (9th Cir. 2007) (testimony of one witness

28

sufficient, and “the resolution of any question as to his credibility

Such evidence was

See People v. Young, 34 Cal. 4th 1149, 1181, 24 Cal. Rptr. 3d

20

1

is properly entrusted to the jury”) (citations, internal quotations

2

and brackets omitted).2

3

fingerprint evidence rationally could have concluded that Petitioner

4

touched at least one of the phones, thus corroborating Weston’s

5

identification of Petitioner.

Furthermore, a juror crediting the

6
7

Petitioner points out various alleged discrepancies in Weston’s

8

statements and descriptions of Petitioner, and Petitioner argues an

9

absence of other evidence tying Petitioner to the crime (Traverse, pp.

10

9-12).

11

suggestive (id., p. 10-11).3

12

heard evidence concerning the alleged discrepancies in Weston’s

13

statements and descriptions of Petitioner and also heard the defense

14

eyewitness identification expert testify concerning the preparation of

15

a proper photo lineup and the factors supposedly affecting the

16

reliability of eyewitness identifications.

17

attacked the photo lineup procedure in closing, arguing that the

Petitioner also argues that the photo lineup procedure was
However, as indicated above, the jury

Petitioner’s counsel

18
2

19
20

The trial court properly instructed Petitioner’s jury
that the testimony of a single witness concerning any fact, if
believed, was sufficient proof of that fact (R.T. 405; C.T. 224).
3

21

The Court of Appeal reviewed the photo array and ruled
that the array was not suggestive:

22
23
24
25
26

All the men have generally similar cornrow hairstyles,
and all appear to be generally the same age. While the
six men represent a range of skin colors, defendant is
not the darkest–skinned of the group. Three of the
men, including defendant, have mustaches and goatees.
Since the photographs show only the subjects’ heads and
shoulders, the photographs do not show whether or not
the subjects are “heavyset.”

27
28

(Respondent’s Lodgment 5, p. 9; see People v. Robins, 2012 WL
5902388 at *3).
21

1

photographs of other men rendered the photo array suggestive and also

2

arguing that Officer Flores “coached” Weston by saying “fantastic”

3

after Weston identified Petitioner (R.T. 438-39).

4

nevertheless chose to credit Weston’s identifications of Petitioner.

5

This Court cannot revisit the jury’s credibility determinations.

6

King v. Runnels, 303 Fed. App’x 472, 473 (9th Cir. 2008), cert.

7

denied, 556 U.S. 1240 (2009) (“The reliability of the identification

8

was called into question during cross-examination and it was the

9

province of the jury to attach weight to the identification

The jury

See

10

testimony.”) (citation omitted); Comer v. Schriro, 480 F.3d 960, 986

11

(9th Cir.), cert. denied, 550 U.S. 966 (2007) (rejecting argument, on

12

habeas review, that prosecution witness was not credible; “the issue

13

of a witness’s credibility is for the jury to decide”) (citation

14

omitted); see also Watkins v. Sowders, 449 U.S. 341, 347 (1981) (“the

15

proper evaluation [of identification evidence] under the instructions

16

of the trial judge is the very task our system must assume juries can

17

perform”).

18
19

For the foregoing reasons, the Court of Appeal’s rejection of

20

Petitioner’s challenge to the sufficiency of the evidence was not

21

contrary to, or an unreasonable application of, any “clearly

22

established Federal law as determined by the Supreme Court of the

23

United States.”

24

S. Ct. 770 (2011).

25

of the Petition.

26

///

27

///

28

///

See 28 U.S.C. § 2254(d); Harrington v. Richter, 131
Petitioner is not entitled to relief on Ground One

22

1

II.

2

Petitioner’s Claim of Ineffective Assistance of Trial Counsel
Does Not Merit Habeas Relief.

3
4

Petitioner contends trial counsel ineffectively failed to move to

5

suppress Weston’s identification testimony, arguing that the six-pack

6

photo lineup shown to Weston was so impermissibly suggestive as to

7

taint Weston’s in-court identification of Petitioner (Traverse, pp.

8

13-16).

9

photo lineup was not unduly suggestive, any motion to suppress would

The Court of Appeal rejected this claim, ruling that the

10

have been futile, and thus Petitioner’s counsel was not ineffective

11

(Respondent’s Lodgment 5, p. 11; see People v. Robins, 2012 WL

12

5902388, at *4).

13
14

A.

Governing Legal Standards

15
16

To establish ineffective assistance of counsel, Petitioner must

17

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

18

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

19

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

20

different.

21

(1984) (“Strickland”).

22

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

23

Id. at 694.

24

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

25

prejudicial.

26

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

27

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

28

///

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.

23

1

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

2

is a “strong presumption” that counsel rendered adequate assistance

3

and exercised reasonable professional judgment.

4

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

5

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

6

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

7

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

8

U.S. at 690.

9

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

Williams v. Woodford,

The court must judge the

Strickland, 466

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

10

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

11

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

12

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

13

guarantees reasonable competence, not perfect advocacy judged with the

14

benefit of hindsight.”) (citations omitted).

15

can conceive of a reasonable explanation for counsel’s action or

16

inaction, the court need not determine the actual explanation.

17

v. California, 966 F.2d 448, 456-57 (9th Cir. 1991), cert. denied, 506

18

U.S. 831 (1992).

19

made errors so serious that counsel was not functioning as the counsel

20

guaranteed the defendant by the Sixth Amendment.”

21

Richter, 131 S. Ct. at 787 (citation and internal quotations omitted);

22

see Strickland, 466 U.S. at 689 (petitioner bears burden to “overcome

23

the presumption that, under the circumstances, the challenged action

24

might be considered sound trial strategy”) (citation and quotations

25

omitted).

If the reviewing court

Morris

Petitioner bears the burden to show that “counsel

Harrington v.

26
27
28

A state court’s decision rejecting a Strickland claim is entitled
to “a deference and latitude that are not in operation when the case
24

1

involves review under the Strickland standard itself.”

Harrington v.

2

Richter, 131 S. Ct. at 785.

3

not whether counsel’s actions were reasonable.

4

whether there is any reasonable argument that counsel satisfied

5

Strickland’s deferential standard.”

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

Id. at 788.

6
7

“In assessing prejudice under Strickland, the question is not

8

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

9

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

10

been established if counsel acted differently.”

11

(citations omitted).

12

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

13

would have been different.

14

at 696).

15

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.

16
17

B.

Discussion

18
19

At the time of Petitioner’s trial, it was well established that

20

evidence derived from a suggestive pretrial identification procedure

21

may be inadmissible if the challenged procedure was so “impermissibly

22

suggestive as to give rise to a very substantial likelihood of

23

irreparable misidentification.”

24

U.S. 377, 384 (1968); see also Manson v. Brathwaite, 432 U.S. 98, 114

25

(1977); Neil v. Biggers, 409 U.S. 188, 198 (1972); People v. Gordon,

26

50 Cal. 3d 1223, 1242-43, 270 Cal. Rptr. 451, 792 P.2d 251 (1990),

27

cert. denied, 499 U.S. 913 (1991), overruled on other grounds, People

28

v. Edwards, 54 Cal. 3d 787, 835, 1 Cal. Rptr. 2d 696, 819 P.2d 436

See Simmons v. United States, 390

25

1

(1991), cert. denied, 506 U.S. 841 (1992).

However, an identification

2

following a suggestive identification procedure does not violate Due

3

Process if the identification is reliable under the totality of the

4

circumstances.

5

forth factors to be considered in determining reliability of

6

suggestive identification); United States v. Dring, 930 F.2d 687, 693

7

(9th Cir. 1991), cert. denied, 506 U.S. 836 (1992); People v. Ochoa,

8

19 Cal. 4th 353, 412, 79 Cal. Rptr. 2d 408, 966 P.2d 442 (1998), cert.

9

denied, 528 U.S. 862 (1999).

See Manson v. Brathwaite, 432 U.S. at 111-14 (setting

The ultimate issue is whether the

10

identification procedure was so “impermissibly suggestive as to give

11

rise to a very substantial likelihood of irreparable

12

misidentification.”

13

also People v. Thomas, 54 Cal. 4th 908, 931, 144 Cal. Rptr. 3d 366,

14

281 P.3d 361 (2012), cert. denied, 133 S. Ct. 863 (2013).

Simmons v. United States, 390 U.S. at 384; see

15
16

Counsel reasonably could have concluded that, even if the lineup

17

was suggestive, Weston’s identification of Petitioner was sufficiently

18

reliable under the totality of the circumstances.

19

considered in evaluating the reliability of an identification after a

20

suggestive procedure include:

The factors to be

21
22

the opportunity of the witness to view the criminal at the

23

time of the crime, the witness’ degree of attention, the

24

accuracy of the witness’ prior description of the criminal,

25

the level of certainty demonstrated by the witness at the

26

confrontation, and the length of time between the crime and

27

the confrontation.

28

///
26

1

Neil v. Biggers, 409 U.S. at 199-200; see also People v. Gordon, 50

2

Cal. 3d at 1242-43 (citation omitted).

3
4

Here, Weston’s opportunity to view Petitioner (during a midday

5

robbery) was extremely good, and there is no indication Weston’s level

6

of attention was low.

7

the restroom, observed Petitioner’s uncovered face during the robbery,

8

and handed his phone to Petitioner while looking Petitioner in the

9

face.

Weston said he spoke to Petitioner concerning

Weston’s identification of Petitioner as the robber at trial

10

was unequivocal.

Although Weston’s descriptions of the robber did

11

vary somewhat, given the factors supporting the reliability of

12

Weston’s identification, any motion to suppress doubtlessly would have

13

been denied.

14

not so susceptible that they cannot measure intelligently the weight

15

of identification testimony that has some questionable feature.”);

16

People v. Arias, 13 Cal. 4th 92, 170, 51 Cal. Rptr. 2d 770, 820, 913

17

P.2d 980 (1996), cert. denied, 520 U.S. 1251 (1997) (same).

18

Petitioner has failed to demonstrate that counsel’s decision to forgo

19

a suppression motion was either unreasonable or prejudicial.

20

cannot be faulted for failing to make a meritless motion.

21

v. Schriro, 547 F.3d 1026, 1030 (9th Cir. 2008), cert. denied, 558

22

U.S. 932 (2009) (to show a Strickland violation, Petitioner must show

23

a reasonable probability that, had counsel made the motion, the motion

24

would have been granted); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir.

25

1996), cert. denied, 519 U.S. 1142 (1997) (“the failure to take a

26

futile action can never be deficient performance”); Shah v. United

27

States, 878 F.2d 1156, 1162 (9th Cir.), cert. denied, 493 U.S. 869

28

(1989) (“[T]he failure to raise a meritless legal argument does not

See Manson v. Brathwaite, 432 U.S. at 116 (“Juries are

27

Thus,

Counsel

See Styers

1

constitute ineffective assistance of counsel”; citation and internal

2

quotations omitted).

3
4

For the foregoing reasons, the Court of Appeal’s rejection of

5

Petitioner’s ineffectiveness claim was not contrary to, or an

6

unreasonable application of, any “clearly established Federal law as

7

determined by the Supreme Court of the United States.”

8

§ 2254(d); Harrington v. Richter, 131 S. Ct. at 770.

9

not entitled to relief on Ground Two of the Petition.

See 28 U.S.C.
Petitioner is

10
11

III.

Petitioner’s Claim of Alleged Jury Coercion Lacks Merit.

12
13

A.

Background

14
15

Jury selection commenced on the morning of Wednesday, May 11,

16

2011 (R.T. 33; C.T. 138).

17

p.m. on Monday, May 16, 2011 (R.T. 467; C.T. 152-53).

18

May 17, 2011, the jury requested readbacks of the testimony of Weston

19

and Campos, and a readback of the testimony concerning the receipts

20

found in the vehicle (C.T. 158-59).

21

3:02 p.m., the jury foreperson sent the court a note asking a question

22

concerning the firearm enhancement and adding “what if we can’t come

23

to agreement on some counts” (R.T. 475; C.T. 160).

The jury commenced deliberations at 4:05
On Tuesday,

Later that day, at approximately

24
25

At approximately 3:26 p.m., the court called the entire jury into

26

the court room, responded to the question concerning the enhancement,

27

and then addressed the question regarding a possible inability to come

28

to an agreement on one or more of the counts (R.T. 476-78; C.T. 161).
28

1

After the foreperson opined that it was not reasonably probable that

2

further deliberations could result in a verdict, the court polled the

3

other jurors, each of whom expressed agreement with the foreperson’s

4

assessment (R.T. 478-79; C.T. 161-62).

5

times the jury had voted on the counts on which it was deadlocked, and

6

the foreperson replied that the jury had taken only one vote (R.T.

7

479).

8

foreperson replied “11 to 1” (R.T. 479).

9

the foreperson did not volunteer, whether the majority had voted to

The court then asked how many

The court asked “what was the breakdown on the vote” and the

10

convict or to acquit.

11

The court did not ask, and

The court then gave the jurors the following

additional instruction:

12
13

.

.

.

It’s been my experience that on more than one

14

occasion that a jury which initially reported it was unable

15

to reach a verdict was ultimately able to arrive at verdicts

16

on one or more of the counts before it.

17
18

To assist you in your further deliberations, I’m going

19

to instruct you as follows:

Your goal as jurors should be

20

to reach a fair and impartial verdict if you are able to do

21

so based solely on the evidence presented and without regard

22

for the consequences of your verdict regardless of how long

23

it takes you to do so.

24
25

It is your duty as jurors to carefully consider, weigh

26

and evaluate all the evidence presented at the trial, to

27

discuss your views regarding the evidence, and to listen to

28

and consider the views of your fellow jurors.
29

In the course

1

of your further deliberations, you should not hesitate to

2

reexamine your own views or to request your fellow jurors to

3

reexamine theirs.

4

you once held if you are convinced it is wrong or to suggest

5

other jurors change their view if you are convinced that

6

they are wrong.

You should not hesitate to change a view

7
8
9

Fair and effective jury deliberations requires a frank
and forthright exchange of views.

10
11

As I previously instructed you, each of you must decide

12

the case for yourself, and you should do so only after a

13

full and complete consideration of all of the evidence with

14

your fellow jurors.

15

with the goal of arriving at a verdict on the charge if you

16

can do so without violence to your individual judgment.

It is your duty as jurors to deliberate

17
18

Both the People and the defendant are entitled to the

19

individual judgment of each juror.

20

instructed you, you have the absolute discretion to conduct

21

your deliberations in any way you deem appropriate.

22

suggest that since you have not been able to arrive at a

23

verdict using the methods that you have chosen, that you

24

consider a change to the methods you have been following.

25

At least temporarily try some new methods.

26

may wish to consider having different jurors lead the

27

discussions for a period of time, or you may wish to

28

experiment with reverse role playing by having those on one
30

As I previously

May I

For example, you

1

side of an issue present and argue the other side’s position

2

and vice versa.

3

understand the other side’s position.

This might enable you to bet[ter]

4
5

By suggesting you should consider changes in your

6

methods of deliberation, I want to stress I am not dictating

7

or instructing you as to how to conduct your deliberations.

8

I merely find you may find it productive to do whatever is

9

necessary to ensure each juror has a full and fair

10

opportunity to express his or her views and consider and

11

understand the views of the other jurors.

12
13

I also suggest you reread CALCRIM 200 [“Duties of Judge and

14

Juror”] and 3550 [“Pre-Deliberation Instructions”].

These

15

instructions pertain to your duties as jurors and make

16

recommendations as to how you should deliberate.

17
18

The integrity of a trial requires that jurors at all

19

times during their deliberations conduct themselves as

20

required by the instructions.

21

duties of a juror.

22

based on the facts and the law.

23

facts have been proved from the evidence received in the

24

trial and not from any other source.

CALCRIM 200 defines the

The decision the jury renders must be
You must determine what

25
26

A fact is something proved by the evidence or by

27

stipulation.

Second, you must . . . apply the law I state

28

to you to the facts as you determine them and in this way
31

1

arrive at your verdict.

2
3

You must accept and follow the law as I state it to you

4

regardless of whether you agree with the law.

If anything

5

concerning the law said by the attorneys in their arguments

6

or at any other time during the trial conflicts with my

7

instructions on the law, you must follow my instructions.

8

CALCRIM 3550 defines the jury’s duty to deliberate.

9
10

The decisions you make in this case must be based on

11

the evidence received in the trial and the instructions

12

given by the Court.

13

requires you to discuss for the purpose of reaching a

14

verdict.

15

recommends how jurors should approach their task.

16

should keep in mind the recommendation this instruction

17

suggests when considering the additional instructions,

18

comments, and suggestions I have made in the instructions

19

now presented to you.

These are the matters this instruction

CALCRIM 3550 also is an instruction which
You

20
21
22

I hope my comments and suggestions may be of some
assistance to you.

23
24

You are ordered to continue your deliberations at this

25

time.

If you have any other questions, concerns, requests,

26

or any communications you desire to report to me, please put

27

those in writing on the form my deputy has provided you

28

with.

Have them signed and dated by the foreperson and then
32

1

please notify the deputy.

Thank you, ladies and gentlemen.

2
3

(R.T. 479-82; see C.T. 247-48).

4

approximately 3:45 p.m., informed the court that it had reached a

5

verdict (R.T. 481, 484; C.T. 162)

The jury resumed deliberating and, at

6
7

B.

Discussion

8
9

“Clearly established federal law provides that ‘[a]ny criminal

10

defendant . . . being tried by a jury is entitled to the uncoerced

11

verdict of that body.’”

12

Cir. 2011) (quoting Lowenfield v. Phelps, 484 U.S. 231, 241 (1988)).

13

“A supplemental jury charge to encourage a deadlocked jury to try to

14

reach a verdict is not coercive per se.”

15

1147 (citing, inter alia, Allen v. United States, 164 U.S. 492

16

(1896)).

17

must “consider the supplemental charge given by the trial court in its

18

context and under all the circumstances.”

19

U.S. at 237 (citation and internal quotations omitted).

20

consider the form of the instruction, the length of time the jury

21

deliberated after receiving the instruction in relation to the total

22

time of deliberation and any other indicia of coerciveness.

23

United States v. Berger, 473 F.3d 1080, 1090 (9th Cir. 2007), cert.

24

denied, 552 U.S. 1097 (2008).

25

trial judge’s inquiry would be likely to coerce certain jurors into

26

relinquishing their views in favor of reaching a unanimous decision.”

27

Locks v. Sumner, 703 F.2d 403, 406 (9th Cir.), cert. denied, 464 U.S.

28

933 (1983).

Parker v. Small, 665 F.3d 1143, 1147 (9th

Parker v. Small, 665 F.3d at

When faced with a claim of jury coercion, a reviewing court

Lowenfield v. Phelps, 484
The court may

See

The ultimate inquiry is “whether the

33

1

In People v. Gainer, 19 Cal. 3d 835, 139 Cal. Rptr. 861, 566 P.2d

2

997 (1977), disapproved on other grounds, People v. Valdez, 55 Cal.

3

4th 82, 144 Cal. Rptr. 3d 865, 281 P.3d 924 (2012), cert. denied, 133

4

S. Ct. 1997 (2013), the California Supreme Court held, as a judicially

5

created rule of criminal procedure, that it was error for a court to

6

give an instruction “which either (1) encourages jurors to consider

7

the numerical division or preponderance of opinion of the jury in

8

forming or reexamining their views on the issues before them; or

9

(2) states or implies that if the jury fails to agree the case will

10

necessarily be tried.”

People v. Gainer, 19 Cal. 3d at 852.

11
12

Petitioner contends the court’s instruction improperly coerced

13

the verdict (Traverse, pp. 17-18).

14

instruction was consistent with the instruction approved in People v.

15

Moore, 96 Cal. App. 4th 1105, 117 Cal. Rptr. 2d 715 (2002), and People

16

v. Whaley, 152 Cal. App. 4th 968, 62 Cal. Rptr. 3d 11 (2007)

17

(Traverse, pp. 17-18).

18

jury returned a verdict so soon after receiving the instruction,

19

coupled with the fact the court knew the split on the first vote was

20

11-1, purportedly shows the instruction was coercive (Traverse, pp.

21

17-18).

22

judicial preference for a verdict, which violated the spirit, if not

23

the letter, of Gainer” (Traverse, p. 18 (footnote omitted)).

24

Court of Appeal rejected Petitioner’s claim, ruling that Petitioner

25

had pointed to no specific language in the challenged instruction

26

which violated precepts established in People v. Gainer, and that the

27

challenged instruction was consistent with People v. Moore and People

28

v. Whaley (Respondent’s Lodgment 5, pp. 11-15; see People v. Robins,

Petitioner concedes the

Petitioner argues, however, that the fact the

Petitioner contends the court’s instruction “revealed a

34

The

1

2012 WL 5902388, at *4-6).

2
3

To the extent Petitioner merely asserts a claim of state law

4

error based on People v. Gainer, Petitioner is not entitled to habeas

5

relief.

6

avoidance of potentially coercive jury instructions” than do federal

7

constitutional standards.

8

Federal habeas relief is unavailable for state law error.

9

v. Corcoran, 131 S. Ct. 13, 16 (2010) (“We have repeatedly held that

People v. Gainer “imposes even greater restrictions for the

Early v. Packer, 537 U.S. 3, 8 (2002).
See Wilson

10

federal habeas corpus relief does not lie for errors of state law”)

11

(citations and internal quotations omitted); Estelle v. McGuire,

12

502 U.S. 62, 67-68 (1991).

13
14

Moreover, federal habeas courts consistently have rejected

15

challenges to instructions patterned on the instructions given in

16

People v. Moore.

17

Jackson v. Hedgpeth, 2014 WL 1757219, at *11-12 (E.D. Cal. Apr. 29,

18

2014); Scott v. McDonald, 2014 WL 1286007, at *20-21 (E.D. Cal.

19

Mar. 31, 2014) (characterizing the form of the instruction as

20

“innocuous”); Renfro v. Adams, 2009 WL 426103, at *7-9 (E.D. Cal.

21

Feb. 20, 2009).

22

neutral; it did not urge the minority juror to consider the majority’s

23

vote or to ask himself or herself whether his or her own view was

24

reasonable under the circumstances.

25

U.S. at 237-38 (contrasting a neutral instruction with the more

26

traditional (and more coercive) “Allen” charge).

27

///

28

///

See, e.g., Parker v. Small, 665 F.3d at 1148-49;

The instruction given to Petitioner’s jury was

35

See Lowenfield v. Phelps, 484

1

Indeed, Petitioner does not appear to quibble with the form of

2

the instruction.

Rather, Petitioner emphasizes the trial court’s

3

knowledge of the 11-1 split (Traverse, p. 18).

4

Supreme Court law holds that a court violates the constitution by

5

inquiring into the numerical division of a supposedly deadlocked jury.

6

See Bell v. Uribe,

7

*9 (9th Cir. Jan. 21, 2014); Locks v. Sumner, 703 F.2d at 406.4

8

court’s supplemental instruction did not single out the holdout juror

9

or any particular issue or evidence, but simply advised the jury of

F.3d

No clearly established

, 2014 WL 211814, at
The

10

its duties to deliberate and suggested to all jurors in neutral terms

11

possible methods of aiding the process of deliberation.

12

Packer, 537 U.S. at 8-10 (under AEDPA standard of review, habeas

13

relief unavailable even though judge knew the identity of the single

14

holdout juror, where the judge gave neutral supplemental instruction

15

telling jurors that they were the sole judges of the facts, that they

16

must accept the law as given in the instructions, and that they could

17

not “make up” their own law); Parker v. Small, 665 F.3d at 1049

18

(California Court of Appeal was not unreasonable in rejecting

19

challenge to supplemental instruction given after reported jury

20

deadlock where, although judge knew there was one holdout juror

21

favoring acquittal, judge did not address that juror’s concerns in the

22

supplemental instruction or attempt to recast the evidence in light

See Early v.

23
4

24
25
26
27
28

In Brasfield v. United States, 272 U.S. 448, 449–50
(1926), the United States Supreme Court disapproved the practice
of polling deadlocked juries in federal prosecutions. In Burton
v. United States, 196 U.S. 283, 307–08 (1905), the Court stated
in dicta that federal trial judges should not inquire into jury
balloting. However, these cases invoked the Supreme Court’s
supervisory powers over the federal courts and did not implicate
the Constitution. See Bell v. Uribe,
F.3d
, 2014 WL
211814, at *9 (9th Cir. Jan. 21, 2014).
36

1

favorable to the prosecution): DeWeaver v. Runnels, 556 F.3d 995,

2

1007-08 (9th Cir.), cert. denied, 558 U.S. 868 (2009) (where jurors’

3

disagreement appeared to concern interpretation of several

4

instructions and court spoke with holdout juror concerning that

5

juror’s concerns, supplemental instruction including lengthy

6

hypothetical illustrating legal concepts as to which jury had

7

requested clarification not coercive); compare Smith v. Curry, 580

8

F.3d 1071, 1082-84 (9th Cir. 2009), cert. denied, 131 S. Ct. 10 (2010)

9

(supplemental instruction coercive where judge pointed out evidence

10

favorable to prosecution in response to the holdout juror’s

11

questions).

12
13

Petitioner also emphasizes the short lapse of time, between the

14

instruction and the verdict (Traverse, p. 18).

15

returns a verdict soon after receiving a supplemental instruction

16

“suggests the possibility of coercion.”

17

U.S. at 240 (citation omitted).

18

counsel did not object to the supplemental instruction, “such an

19

omission indicates that the potential for coercion . . . was not

20

apparent to one on the spot.”

21

(holding supplemental instruction was not coercive although jury

22

returned verdict sentencing petitioner to death for murder thirty

23

minutes after receiving instruction).

The fact that a jury

Lowenfield v. Phelps, 484

However, where, as here, defense

Id. (citation and footnote omitted)

24
25

Considering all of the circumstances, this Court is unable to

26

conclude that the Court of Appeal’s rejection of this claim was

27

contrary to, or an unreasonable application of, any clearly

28

established Federal law as determined by the United States Supreme
37

1

Court.

See Early v. Packer, 537 U.S. at 366; 28 U.S.C. § 2254(d).

2

Petitioner is not entitled to habeas relief on Ground Three of the

3

Petition.

4
5
6

IV.

Petitioner’s Claims of Alleged Sentencing Error Do Not Merit
Habeas Relief.

7
8

A.

Governing Legal Standards

9
10

Federal habeas corpus relief may be granted “only on the ground

11

that [Petitioner] is in custody in violation of the Constitution or

12

laws or treaties of the United States.”

13

Matters relating to sentencing and serving of a sentence generally are

14

governed by state law and do not raise a federal constitutional

15

question.

16

1994), cert. denied, 514 U.S. 1026 (1995) (“The decision whether to

17

impose sentences concurrently or consecutively is a matter of state

18

criminal procedure and is not within the purview of federal habeas

19

corpus.”) (citation omitted); Watts v. Bonneville, 879 F.2d 685, 687

20

(9th Cir. 1989) (rejecting as not cognizable petitioner’s contention

21

the California court violated section 654 by imposing two consecutive

22

terms for rape in concert based on petitioner’s single act of standing

23

guard while others raped the victim).

28 U.S.C. § 2254(a).

See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.

24
25

Under narrow circumstances, however, the misapplication of state

26

sentencing law may violate due process.

27

U.S. 40, 50 (1992).

28

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

See Richmond v. Lewis, 506

“[T]he federal, constitutional question is

38

1

independent due process” violation.

Id. (internal quotation and

2

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

3

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

4

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

5

federal habeas relief.”).

6
7

B.

Imposition of Consecutive Sentence

8
9

The sentencing court imposed consecutive sentences, stating that

10

“although it all occurred sort of as one transaction, . . . there were

11

different victims who were impacted differently by the various actions

12

that took place. . . .” (R.T. 500).

13

consecutive sentences because the probation report showed that

14

Petitioner did not take responsibility for his actions (R.T. 503).

15

Rather, Petitioner had claimed that he did not know the other

16

defendant and he was “just in the car. . . .” (R.T. 503).

17

reasoned that Petitioner’s refusal to take responsibility for his

18

actions showed that Petitioner was “a danger to society in terms of

19

committing another crime” (R.T. 503).

The court also stated it imposed

The court

20
21

Petitioner contends the sentencing court abused its discretion in

22

imposing consecutive sentences (Petition, p. 6; Traverse, pp. 19-21).

23

The Court of Appeal upheld the consecutive sentences, reasoning that

24

the existence of multiple victims warranted such sentences

25

(Respondent’s Lodgment 5, p. 15; see People v. Robins, 2012 WL

26

5902388, at *6).

27

///

28

///
39

1

California Penal Code section 669 and Rule 4.425 of the

2

California Rules of Court grant a sentencing court “broad discretion”

3

to impose consecutive sentences.

4

4th 452, 104 Cal. Rptr. 3d 601 (2010) (citations, footnote and

5

internal quotations omitted).

6

involved multiple victims was a reasonable basis for imposing

7

consecutive sentences.

8

35, 39 Cal. Rptr. 2d 547, 891 P.2d 93 (1995), cert. denied, 516 U.S.

9

1051 (1996), abrogated on other grounds People v. Combs, 34 Cal. 4th

See People v. Leon, 181 Cal. App.

The fact that Petitioner’s crimes

See People v. Champion, 9 Cal. 4th 879, 934-

10

821, 860, 22 Cal. Rptr. 3d 61, 101 P.3d 1007 (2004), cert. denied, 545

11

U.S. 1107 (2005) (“When a defendant engages in violent conduct that

12

injures several persons, he may be separately punished for injuring

13

each of those persons, notwithstanding section 654.

14

violent conduct warranting separate punishment for the injury

15

inflicted on each robbery victim.”) (internal citations omitted).

16

Because Petitioner’s consecutive sentences were within the boundaries

17

of California law, the sentences were not “so arbitrary or capricious

18

as to constitute an independent due process” violation.

19

v. Lewis, 506 U.S. at 50; Piggee v. Valenzuela, 2013 WL 1431719, at

20

*15-16 (C.D. Cal. Feb. 27, 2013), adopted, 2013 WL 1455299 (C.D. Cal.

21

Apr. 8, 2013) (imposition of consecutive sentence authorized by

22

California law did not violate due process).

23

entitled to habeas relief on Ground Four of the Petition.

Robbery is

See Richmond

Petitioner is not

24
25

C.

Application of California Penal Code Section 654

26
27
28

California Penal Code section 654(a) provides, in pertinent part:
“An act or omission that is punishable in different ways by different
40

1

provisions of law shall be punished under the provision that provides

2

for the longest potential term of punishment, but in no case shall the

3

act or omission be punished under more than one provision.”

4

654 forbids the imposition of multiple punishments for offenses

5

committed during a single course of conduct and incident to a single

6

objective.

7

40, 43, 591 P.2d 63 (1979).

8

654 did not preclude multiple punishment for crimes of violence

9

against multiple victims (Respondent’s Lodgment 5, pp. 15-16; see

10

Section

See People v. Perez, 23 Cal. 3d 545, 551, 153 Cal. Rptr.
The Court of Appeal ruled that section

People v. Robins, 2012 WL 5902388, at *6).

11
12

The Court of Appeal’s ruling comported with California law.

The

13

California Supreme Court has “long held that the limitations of

14

section 654 do not apply to crimes of violence against multiple

15

victims.”

16

P.3d 56 (2004) (citation and internal quotations omitted).

17

“multiple victim” exception to section 654, “even though a defendant

18

entertains but a single principal objective during an indivisible

19

course of conduct, he may be convicted and punished for each crime of

20

violence committed against a different victim.”

21

Cal. 3d 553, 587, 180 Cal. Rptr. 266, 639 P.2d 908 (1982), rev’d on

22

other grounds California v. Ramos, 463 U.S. 992 (1983).

23

crime of violence for purposes of the multiple victim exception.

24

People v. Deloza, 18 Cal. 4th 585, 592, 76 Cal. Rptr. 2d 255, 957 P.2d

25

945 (1998).

26

Penal Code section 654 in imposing consecutive sentences for each

27

robbery of each separate victim, Petitioner has shown no Due Process

28

violation.

People v. Oates, 32 Cal. 4th 1048, 12 Cal. Rptr. 3d 325, 88
Under the

People v. Ramos, 30

Robbery is a
See

Because the sentencing court did not violate California

See Warren v. Adams, 2009 WL 3698512, at *8 (E.D. Cal.
41

1

Nov. 4, 2009), aff’d, 444 Fed. App’x 204 (9th Cir. 2011).

2

Accordingly, Petitioner is not entitled to habeas relief on Ground

3

Five of the Petition.

4
5

D.

Refusal to Recommend “Fire Camp” Placement

6
7

Prior to imposing sentence, the court heard statements by

8

Petitioner’s mother and by the mother of one of Petitioner’s children

9

testifying to Petitioner’s alleged good qualities (R.T. 497-98).

The

10

court also indicated it had read and considered the probation report

11

(R.T. 496).

12

probation in light of the fact that Petitioner committed the offenses

13

shortly after completing parole for a prior offense (R.T. 499).

14

court observed that the aggravating and mitigating factors “seem to be

15

evenly balanced,” noting that while Petitioner did not have a “very

16

serious record,” the crime was “fairly sophisticated” (R.T. 499).

17

court further observed that the probation report showed Petitioner

18

continued to deny culpability and also denied having known the other

19

defendant “before that day” (R.T. 503).

20

belief that Petitioner still did not understand the nature of his

21

actions, had not accepted responsibility for his actions, and hence

22

was a danger to society (R.T. 503).

The court stated that Petitioner was not eligible for

The

The

The court expressed its

23
24

Following imposition of sentence, Petitioner’s counsel requested

25

that the court recommend Petitioner for commitment to “Fire Camp”

26

///

27

///

28

///
42

1

(R.T. 504).5

2

comfortable doing that given the fact that he didn’t really make any

3

try that has been revealed to the Court that would indicate that he’s

4

interested in straightening out his life.

5

willing to do that.” (R.T. 504).

The court denied the request, stating: “I’m not

So I’m sorry.

I’m just not

6
7

Petitioner claims the court abused its discretion in refusing to

8

recommend “Fire Camp” placement.

Petitioner acknowledges that, in

9

California, the manner of execution of sentence, including a

10

determination of the place of incarceration, is vested in correctional

11

officials, not the sentencing court (Traverse, p. 24).

12

Superior Court (Peterson), 12 Cal. App. 4th 16, 26, 14 Cal. Rptr. 2d

13

685 (1993) (sentencing court lacked authority to order sheriff to

14

place defendant in a work furlough program); People v. Lara, 155 Cal.

15

App. 3d 570, 575-76, 202 Cal. Rptr. 262 (1984) (sentencing court erred

16

in directing correctional officials to transfer defendant to a federal

17

program); Bradshaw v. Duffy, 104 Cal. App. 3d 475, 478, 163 Cal. Rptr.

18

559 (1980) (court may recommend, but not require, honor camp

19

placement).

20

failing to recommend a “Fire Camp” placement based on certain

21

purported mitigating factors, including factors reflected in the

See People v.

Petitioner contends, however, that the court erred in

22
23
24
25
26
27
28

5

The California Department of Corrections and
Rehabilitation (“CDCR”) operates various “Conservation Camps”
whereby selected inmates participate in programs for the
conservation of natural and human resources, including fire
fighting programs. See Cal. Pub. Res. Code § 4952; CDCR
Departmental Operations Manual, Chapter 5, Article 14 (January 1,
2013) (available on the CDCR website at www.cdcr.ca.gov.).
Inmates are assigned to a camp “from approved departmental
lists.” Id., § 51130.8.
43

1

probation report (Traverse, pp. 24-25).6

2

this contention, noting that Petitioner: (1) had prior convictions for

3

disturbing the peace and carrying a concealed weapon; (2) had been

4

sent to prison on a probation revocation; (3) later violated parole

5

and was returned to prison; and (4) committed the instant offenses

6

within two weeks of his discharge from parole (Respondent’s Lodgment

7

5, p. 16).

The Court of Appeal rejected

8
9

Petitioner has failed to demonstrate that the sentencing court’s

10

refusal to recommend “Fire Camp” placement was arbitrary, capricious,

11

or fundamentally unfair.

12

on Ground Six of the Petition.

Petitioner is not entitled to habeas relief

13
14
15

For all of the foregoing reasons, Petitioner is not entitled to
habeas relief on any of his claims of sentencing error.

16
17

RECOMMENDATION

18
19

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

20

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

21

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

22
23

DATED: May 22, 2014.

24
25

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

26
27
6

28

The present record does not contain the probation

report.
44

1
2

NOTICE
Reports and Recommendations are not appealable to the Court of

3

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

4

objections as provided in the Local Rules Governing the Duties of

5

Magistrate Judges and review by the District Judge whose initials

6

appear in the docket number.

7

Federal Rules of Appellate Procedure should be filed until entry of

8

the judgment of the District Court.

No notice of appeal pursuant to the

9

If the District Judge enters judgment adverse to Petitioner, the

10

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

11

appealability.

12

and Recommendation, the parties may file written arguments regarding

13

whether a certificate of appealability should issue.

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

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