Benjamin Solis v. R.T.C. Grounds

Filing 25

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Philip S. Gutierrez. 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) (sp)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14
15

BENJAMIN SOLIS,

) NO. SA CV 15-796-PSG(E)
)
Petitioner,
)
)
v.
) REPORT AND RECOMMENDATION OF
)
R.T.C. GROUNDS, Warden,
) UNITED STATES MAGISTRATE JUDGE
)
Respondent.
)
______________________________)

16
17
18

This Report and Recommendation is submitted to the Honorable

19

Philip S. Gutierrez, United States District Judge, pursuant to 28

20

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

21

District Court for the Central District of California.

22
23

PROCEEDINGS

24
25

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

26

Person in State Custody” on March 30, 2015, in the United States

27

District Court for the North District of California.

28

the United States District Court for the Northern District of

On May 19, 2015,

1

California transferred the action to this Court.

On July 2, 2015,

2

Respondent filed an Answer and a supporting memorandum (“Answer

3

Mem.”).

Petitioner failed to file a Reply within the allotted time.

4
5

BACKGROUND

6
7

A jury found Petitioner guilty of kidnapping (count 1), domestic

8

violence battery (count 3), aggravated assault with a deadly weapon

9

(count 5), child abuse and endangerment (count 6), and making,

10

possessing, and uttering fictitious instruments (count 4) (Reporter’s

11

Transcript [“R.T.”] 658-61; Clerk’s Transcript [“C.T.”] 255-62; see

12

also C.T. 198-201 (Amended Information)).

13

not guilty of making criminal threats or attempted criminal threats

14

(count 2), and not guilty of domestic battery with corporal injury

15

(count 3) (R.T. 659; C.T. 256-58).

16

trial court found that Petitioner had suffered a prior conviction

17

qualifying as both a strike within the meaning of California’s Three

18

Strikes Law, California Penal Code sections 667(b) - (i) and

19

1170.12(a) - (d),1 and a “prior serious felony” conviction within the

20

meaning of California Penal Code section 667(a)(1) (R.T. 72-75, 670-

21

74).

22

conviction for which he had served a prison term within the meaning of

The jury found Petitioner

In a bifurcated proceeding, the

The trial court also found that Petitioner had suffered a prior

23
1

24
25
26
27
28

The Three Strikes Law consists of two nearly identical
statutory schemes. The earlier provision, enacted by the
Legislature, was passed as an urgency measure, and is codified as
California Penal Code section 667(b) - (i) (eff. March 7, 1994).
The later provision, an initiative statute, is embodied in
California Penal Code section 1170.12 (eff. Nov. 9, 1994). See
generally People v. Superior Court (Romero), 13 Cal. 4th 497,
504-05, 53 Cal. Rptr. 2d 789, 917 P.2d 628 (1996). The State
charged Petitioner under both versions (C.T. 200).
2

1

California Penal Code section 667.5(b) (R.T. 674).

The trial court

2

sentenced Petitioner to 18 years and four months in state prison (R.T.

3

678-83; C.T. 323-24).

4
5

The California Court of Appeal affirmed in a reasoned decision

6

(Respondent’s Lodgment 7; see People v. Solis, 2013 WL 5827668 (Cal.

7

App. Oct. 30, 2013)).

8

Petitioner’s petition for review summarily (Respondent’s Lodgment 9).

9

The California Court of Appeal and the California Supreme Court

The California Supreme Court denied

10

summarily denied Petitioner’s habeas corpus petitions (Respondent’s

11

Lodgments 11, 13).

12
13

SUMMARY OF TRIAL EVIDENCE

14
15

The following summary is taken from the opinion of the California

16

Court of Appeal in People v. Solis, 2013 WL 5827668, at *1-3.

17

Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual

18

summary from state appellate decision).

19

///

20

///

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

///
3

See

1

Counts 3 and 5: Domestic Violence Battery and Aggravated

2

Assault

3
4

Around August 7, 2011, defendant lived at his mother’s

5

home with his girlfriend, Neary Eng,2 and his seven-year-old

6

son, Marc.

7

girls.”

8

she ran away.

9

bat at her.

10

Eng accused defendant of “kicking it with some

Defendant, angered by Eng’s nagging, chased her as
He swung a 15-inch wooden Angel’s souvenir
Marc saw defendant hit Eng twice with the bat

and heard her scream.

11
12

Defendant’s sister stopped him from chasing Eng and

13

drove her away.

14

Calma’s house.

15

“she had been in a domestic violence incident where she was

16

hit with a bat by [defendant].”

17

right shoulder.

Eng’s friend, Marilen Calma, took Eng to
Eng told Calma’s boyfriend, Paul Khap, that

Khap saw a bruise on Eng’s

18
19

Count 1: Kidnapping

20
21

Two days later, defendant texted Calma that he was

22

coming over to pick up Eng (who had stayed at Calma’s

23

house).

Calma told defendant to wait before coming over.

24
25
26
27
28

2

Eng did not testify at trial. Instead, her preliminary
hearing testimony was read to the jury under California Evidence
Code sections 1290 and 1291, after the court found she was absent
from the trial despite the prosecutor’s reasonable diligence to
procure her attendance by the court’s process. See Cal. Evid.
Code § 240(a)(5).
4

1

Instead of waiting, defendant went to Calma’s house with

2

Marc.

3
4

Eng went in a bedroom and stayed there.

She told Calma

5

she did not want to talk to defendant, so Calma relayed the

6

message to defendant.

7
8
9

Defendant, who was angry, went in the house and said to
Eng, “Let’s go home.”

Eng replied, “I don’t want to go home

10

yet.”

“I don’t have a home.”

Defendant and Eng argued and

11

yelled at each other.

12

Eng’s hands or wrists.

13

defendant away.

14

would happen to her if she didn’t go home with him.”

Defendant grabbed one or both of
Eng tried to break free by pushing

Defendant told Eng that “she knew what

15
16

Defendant picked up Eng, threw her over his shoulder,

17

and carried her out to his truck.

On the way, Eng struggled

18

with defendant, hit him in the back and called him an

19

“ass,” and angrily told him several times to put her down,

20

but he did not.

21

where she felt safe.

22

what defendant would do.

Eng did not want to leave Calma’s house,
Eng feared for her safety, not knowing

23
24

Defendant threatened Calma by saying that “if anybody

25

got in his way, . . . he would slash them.”

26

fear because defendant was “a big man” and “capable of

27

following through with the threat.”

28

her house with Eng and Marc, Calma phoned 911 to report the
5

Calma was in

Once defendant had left

1

incident.

2
3

Defendant put Eng in the back seat of his truck next to

4

Marc, and drove toward a gas station.

While defendant was

5

driving, Eng asked him to stop and let her out, but

6

defendant did not stop.

7

though the truck was moving, Eng tried to open the door

8

several times.

9

getting out.

Defendant and Eng argued.

Even

Defendant tried to pull Eng to keep her from
Defendant pulled the truck over, got out,

10

opened Eng’s door, grabbed her by her shirt, and ripped her

11

shirt and bra in the process.

12

twice grabbed and ripped her shirt apart.

13

chest with her arms so Marc would not see her exposed body.

Eng screamed as defendant
Eng covered her

14
15

Defendant got back in the driver’s seat and drove to

16

the gas station.

Before they arrived at the station, Eng

17

promised defendant she would not leave.

18

made up at the gas station.

Defendant and Eng

19
20

Defendant drove them back to his mother’s house.

Eng

21

put on a new shirt and then she and Marc got back in the

22

truck to run an errand with defendant.

23

the truck.

24

green lace blouse in the vehicle.

25

Marc, defendant told Marc not to say anything.

26

police station, a female employee examined Eng and observed

27

no visible marks on her body.

28

The police stopped

An officer saw half a pink bra and a shredded

///
6

When an officer spoke to
At the

1

Count 4: Possession of Fictitious Instruments

2
3

In defendant’s wallet, an officer found a $100 bill

4

that appeared to be counterfeit. When officers searched

5

defendant’s bedroom, they found three $100 bills in a safe.

6

All four $100 bills were counterfeit.

7
8

Count 6: Child Abuse and Endangerment

9
10

During trial, defense counsel conceded that defendant

11

committed misdemeanor child abuse against Marc by exposing

12

him to these experiences.

13
14

Uncharged Acts

15
16

Maria Gomez is Marc’s mother and defendant’s former

17

girlfriend of six or seven years.

Gomez testified at trial

18

about three prior acts of domestic violence defendant

19

committed against her.

20
21

On July 4, 2003, defendant and Gomez argued while they

22

were at Gomez’s ex-sister-in-law’s home.

When Gomez and

23

defendant returned to Gomez’s home, defendant searched

24

Gomez’s purse and found an old phone number.

25

questioned Gomez, who told him it was an old friend’s phone

26

number.

27

told her to get her stuff and get out.

28

leave, defendant grabbed her arm and dragged her by her hair

Defendant

Defendant accused Gomez of lying, insulted her, and

7

When Gomez tried to

1

to the front yard.

Gomez’s sister-in-law tried to calm

2

defendant down, but he said, “No, ‘F’ this.”

3

sister-in-law got into a car.

4

and slashed a tire.

5

was in the car.

6

pleaded guilty to criminal charges.

Gomez and her

Defendant pulled out a knife

He tried to “get at” Gomez while she

As a result of this incident, defendant

7
8
9

On June 9, 2005, defendant, Gomez, and Marc were living
in defendant’s mother’s home.

Marc, who was a baby at the

10

time, woke up crying.

Defendant, who had just woken up, was

11

cranky and said, “[S]hut that kid up.”

12

Gomez to make him lunch, but Gomez refused.

13

“You [fucking bitch], you better make me my lunch.”

14

Gomez again refused, defendant grabbed the back of her neck

15

and said, “[W]hat’s your problem [bitch?]”

16

get away, but defendant threw her and she hit her head on

17

Marc’s crib.

18

squeezed, making it difficult for her to breathe.

19

sustained bruising on the neck and forehead.

20

this incident, defendant pleaded guilty to criminal charges.

Defendant asked
Defendant said,
After

Gomez tried to

Defendant grabbed her by the throat and
Gomez

As a result of

21
22

On September 15, 2005, Gomez and Marc, not defendant,

23

were living at defendant’s mother’s house.

Defendant went

24

there to see Marc who was a baby.

25

argued in the bedroom.

26

sister took Marc out of the bedroom.

27

on the ground and on the bed, and kicked, punched, insulted,

28

and spit on her, as well as getting on top of her on the

Defendant and Gomez

Marc started to cry.

8

Defendant’s

Defendant threw Gomez

1

bed.

Afterwards, defendant apologized to Gomez.

Gomez

2

sustained some bruises, and reported the incident to the

3

police.

4
5

(Respondent’s Lodgment 7, pp. 1-6; People v. Solis, 2013 WL 5827668,

6

at *1-3.

7
8

PETITIONER’S CONTENTIONS

9
10

Petitioner contends:

11
12
13

1.

The trial court allegedly erred by admitting evidence of

Petitioner’s prior acts of domestic violence (Ground One); and

14
15
16

2.

The evidence allegedly was insufficient to support the

conviction for assault with a deadly weapon (Ground Two).

17
18
19

STANDARD OF REVIEW

20
21

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

22

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

23

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

24

any claim that was adjudicated on the merits in state court

25

proceedings unless the adjudication of the claim: (1) “resulted in a

26

decision that was contrary to, or involved an unreasonable application

27

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

28

Court of the United States”; or (2) “resulted in a decision that was
9

1

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

2

evidence presented in the State court proceeding.”

3

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

4

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

5

(2000).

28 U.S.C. §

6
7

“Clearly established Federal law” refers to the governing legal

8

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

9

state court renders its decision on the merits.

Greene v. Fisher, 132

10

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

11

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

12

law if: (1) it applies a rule that contradicts governing Supreme Court

13

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

14

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

15

different result.

16

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

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

17
18

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

19

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

20

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

21

the case in which the principle was announced.”

22

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

23

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

24

application” of clearly established federal law if it identifies the

25

correct governing Supreme Court law but unreasonably applies the law

26

to the facts).

27

///

28

///
10

Lockyer v. Andrade,

1

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

2

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

3

decision must have been more than incorrect or erroneous.”

4

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

5

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

6

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

7

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

8

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

9

habeas court must determine what arguments or theories supported,

Wiggins v.

“The state
Id.

“Under § 2254(d), a

10

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

11

must ask whether it is possible fairminded jurists could disagree that

12

those arguments or theories are inconsistent with the holding in a

13

prior decision of this Court.”

14

101 (2011).

15

2254(d)(1).”

16

Habeas relief may not issue unless “there is no possibility fairminded

17

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

18

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

19

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

20

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

21

in federal court was so lacking in justification that there was an

22

error well understood and comprehended in existing law beyond any

23

possibility for fairminded disagreement.”

Harrington v. Richter, 562 U.S. 86,

This is “the only question that matters under §
Id. at 102 (citation and internal quotations omitted).

Id.

“As a condition

Id. at 103.

24
25

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

26

state court decision.

27

(9th Cir. 2008).

28

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

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

Where no reasoned decision exists, as where the

11

1

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

2

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

3

fairminded jurists could disagree that those arguments or theories are

4

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

5

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

6

quotations and brackets omitted).

7
8
9

Additionally, federal habeas corpus relief may be granted “only
on the ground that [Petitioner] is in custody in violation of the

10

Constitution or laws or treaties of the United States.”

11

2254(a).

12

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

13

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

14

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

28 U.S.C. §

In conducting habeas review, a court may determine the issue

15
16

DISCUSSION

17
18

I.

19

The Introduction of Evidence of Petitioner’s Prior Bad Acts Does
Not Merit Federal Habeas Relief.

20
21

Petitioner asserts that the introduction of evidence of his prior

22

bad acts violated due process (Petition, pp. 5-22 through 5-25).

23

trial court admitted testimony from Petitioner’s ex-girlfriend

24

concerning three prior acts of domestic violence.

25

80 (trial court rulings), 333-45 (relevant testimony); see also C.T.

26

186-94 (People’s motion to admit priors).

27

pursuant to California Evidence Code section 1109, which authorizes

28

///
12

The

See R.T. 17-31, 75-

The trial court did so

1

the admission of propensity evidence in domestic violence cases.3

2

Petitioner argues that the admission of propensity evidence violates

3

due process (Petition, pp. 5-24 - 5-25).

4
5

The Court of Appeal rejected this argument, agreeing with the

6

“uniform appellate holdings” that section 1109 does not violate due

7

process (Respondent’s Lodgment 7, pp. 6-9 (citing, inter alia, People

8

v. Falsetta, 21 Cal. 4th 903, 89 Cal. Rptr. 2d 847, 986 P.2d 182

9

(1999), cert. denied, 529 U.S. 1089 (2000) (finding constitutional a

10

“parallel” California statute permitting propensity evidence in sex

11

offense cases); People v. Hoover, 77 Cal. App. 4th 1020, 92 Cal. Rptr.

12

2d 208 (2000) (finding that section 1109 does not violate due

13

process)).

14

///

15
3

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

California Evidence Code Section 1109 provides that in
cases where a defendant is accused of domestic violence, evidence
of a defendant’s commission of other acts of domestic violence is
not inadmissible unless the probative value of the evidence is
substantially outweighed by the danger of undue prejudice. See
Cal. Evid. Code § 1109 (citing Cal. Evid. Code §§ 352, 1101).
Here, the trial court found that: (1) the prior offenses were
“very similar” to the facts of Petitioner’s case; (2) the prior
offenses were relevant propensity evidence that were “relatively
close in time”; (3) the natures of the prior offenses were such
that they would not inflame the jury; (4) there was nothing about
the prior incidents that would prevent a jury from being fair in
Petitioner’s case; (5) Petitioner’s pleas of guilt in the prior
cases would take away any speculation about whether the incidents
happened; and (6) with the court’s limitations to only
testimonial evidence from the witness concerning three specific
events, the evidence was more probative than prejudicial. See
R.T. 76-80. The trial court instructed the jury that the
evidence of Petitioner’s alleged prior acts of domestic violence
was not sufficient by itself to prove that Petitioner was guilty
of the charged offenses. See C.T. 240. The jury is presumed to
have followed its instructions. See Weeks v. Angelone, 528 U.S.
225, 226 (2000).
13

1

Under the AEDPA standard of review, Petitioner is not entitled to

2

federal habeas relief on his due process claim.

The United States

3

Supreme Court has never held clearly that the introduction of

4

propensity evidence or other allegedly prejudicial evidence violates

5

due process.

6

express no opinion on whether a state law would violate the Due

7

Process Clause if it permitted the use of ‘prior crimes’ evidence to

8

show propensity to commit a charged crime”); Holley v. Yarborough, 568

9

F.3d 1091, 1101 (9th Cir. 2009) (the United States Supreme Court “has

See Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991) (“we

10

not yet made a clear ruling that admission of irrelevant or overly

11

prejudicial evidence constitutes a due process violation sufficient to

12

warrant issuance of the writ”); Mejia v. Garcia, 534 F.3d 1036, 1046

13

(9th Cir. 2008), cert. denied, 555 U.S. 1117 (2009) (rejecting habeas

14

petitioner’s challenge to introduction of propensity evidence, where

15

petitioner could point to no Supreme Court precedent establishing that

16

admission of otherwise relevant propensity evidence violated the

17

Constitution); Alberni v. McDaniel, 458 F.3d 860, 864 (9th Cir. 2006),

18

cert. denied, 549 U.S. 1287 (2007) (rejecting challenge to admission

19

of propensity evidence in light of Supreme Court’s express refusal to

20

consider the issue in Estelle v. McGuire); see also Foy v. Gipson,

21

2015 WL 1516051, at *3 (9th Cir. Apr. 6, 2015) (unpublished decision

22

reaffirming same); Chavarria v. Hamlet, 472 Fed. Appx. 749, 750 (9th

23

Cir. 2012), cert. denied, 133 S. Ct. 931 (2013) (unpublished decision

24

denying habeas relief on due process challenge to California Evidence

25

Code section 1109).

26

habeas relief on this claim.

27

556 U.S. 111, 122 (2009) (“it is not an unreasonable application of

28

clearly established Federal law for a state court to decline to apply

Accordingly, Petitioner cannot obtain federal
See id.; see also Knowles v. Mirzayance,

14

1

a specific legal rule that has not been squarely established by this

2

Court”) (citations and internal quotations omitted); Wright v. Van

3

Patten, 552 U.S. 120, 126 (2008) (“Because our cases give no clear

4

answer to the question presented, . . . it cannot be said that the

5

state court unreasonably applied clearly established Federal law”)

6

(citation, internal brackets and quotations omitted); Moses v. Payne,

7

555 F.3d 742, 758-59 (9th Cir. 2009) (habeas relief unavailable where

8

the Supreme Court had articulated no “controlling legal standard” on

9

the issue); Larson v. Palmateer, 515 F.3d 1057, 1066 (9th Cir.), cert.

10

denied, 555 U.S. 871 (2008) (where Supreme Court “expressly left [the]

11

issue an ‘open question,’” habeas relief unavailable).

12
13

To the extent Petitioner argues that the admission of the

14

challenged evidence violated state law because the evidence assertedly

15

was more prejudicial than probative, such argument fails to raise an

16

issue cognizable on federal habeas corpus.

17

562 U.S. 1, 5 (2010) (“it is only noncompliance with federal law that

18

renders a State’s criminal judgment susceptible to collateral attack

19

in the federal courts”) (original emphasis); Estelle v. McGuire, 502

20

U.S. at 67-68 (mere errors in the application of state law are not

21

cognizable on federal habeas review).

22

found that the trial court did not abuse its discretion under

23

California law in admitting the propensity evidence.

24

Lodgment 7, pp. 9-10.

25

law.

26

repeatedly held that it is not the province of a federal habeas court

27

to reexamine state-court determinations on state-law questions”)

28

(citation and internal quotations omitted); Mullaney v. Wilbur, 421

See Wilson v. Corcoran,

The California Court of Appeal

See Respondent’s

This Court cannot redetermine an issue of state

See Waddington v. Sarausad, 555 U.S. at 192 n.5 (“we have

15

1

U.S. 684, 691 (1975) (“state courts are the ultimate expositors of

2

state law”) (citations omitted).4

3
4

In sum, because the Court of Appeal’s rejection of Ground One was

5

not contrary to, or an unreasonable application of, any “clearly

6

established Federal law as determined by the Supreme Court of the

7

United States,” Petitioner is not entitled to federal habeas relief.

8

See 28 U.S.C. § 2254(d).

9
10
11

II.

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

12
13

Petitioner argues that there was insufficient evidence to support

14

his conviction for assault with a deadly weapon.

15

there was no evidence the 15-inch wooden “souvenir” baseball bat was:

16

(a) inherently dangerous; (b) used in a way capable of causing great

17

bodily injury; or (c) productive of any injuries to Eng (Petition, pp.

18

5-33 - 5-38).

Petitioner claims

19
20

The Court of Appeal ruled the evidence sufficient to support the

21

jury’s conclusion that the bat was a “deadly weapon” (Respondent’s

22

Lodgment 7, pp. 11-13).

23

reasonably could have so inferred from the way Petitioner wielded the

According to the Court of Appeal, the jury

24
4

25
26
27
28

Petitioner does not contend, and the record does not
show, that this is the “highly unusual case” in which a state
court’s interpretation of state law was “clearly untenable and a
subterfuge to avoid federal review of a constitutional
violation.” See Butler v. Curry, 528 F.3d 624, 642 (9th Cir.),
cert. denied, 555 U.S. 1089 (2008) (citations and internal
quotations omitted).
16

1

bat, evidence that the bat did not break on contact with Eng and

2

evidence that the bat’s contact with Eng had caused Eng to scream in

3

pain (id.).

4

actually suffered injury was immaterial, because one may commit

5

assault without making actual physical contact with the victim (Id.,

6

p. 12, citing People v. Aguilar, 16 Cal. 4th 1023, 1028, 68 Cal. Rptr.

7

2d 655, 945 P.2d 1204 (1997)).

The Court of Appeal further observed that whether Eng

8
9

A.

Governing Legal Principles

10
11

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

12

evidence is limited.

13

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

14

conviction unconstitutional under the Due Process Clause of the

15

Fourteenth Amendment.”

16

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

17

omitted).

18

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

19

essential elements of the crime beyond a reasonable doubt.”

20

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

21

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

22

rationality.”

Evidence is sufficient unless the charge was “so

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).

23
24

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

25

challenge to the sufficiency of the evidence.

26

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

27

reviewing court must consider the evidence in the light most favorable

28

to the prosecution.”

United States v.
“First, a

Id. (citation omitted); see also McDaniel v.
17

1

Brown, 558 U.S. 120, 133 (2010).5

2

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

3

resolved the conflicts, made the inferences, or considered the

4

evidence at trial.”

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

5

(citation omitted).

“Rather, when faced with a record of historical

6

facts that supports conflicting inferences a reviewing court must

7

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

8

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

9

prosecution, and must defer to that resolution.”

At this step, a court “may not

Id. (citations and

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

State need not rebut all reasonable interpretations of the evidence or

19

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

20

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

21

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

22

Circumstantial evidence and the inferences drawn therefrom can be

23

sufficient to sustain a conviction.

24

1114-15 (9th Cir. 2011).

The

United States v.

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

25
26
5

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). The Court has conducted such an independent review.
18

1

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

2

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

3

to find the essential elements of the crime beyond a reasonable

4

doubt.”

5

internal quotations omitted; original emphasis).

6

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

7

established guilt beyond a reasonable doubt.”

8

internal quotations omitted; original emphasis).

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

Id. (citations and

9
10

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

11

substantive elements of the criminal offense, but the minimum amount

12

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

13

purely a matter of federal law.”

14

2064.

Coleman v. Johnson, 132 S. Ct. at

15
16

B.

Analysis

17
18

Assault is “an unlawful attempt, coupled with a present ability,

19

to commit a violent injury on the person of another.”

20

Code § 240.

21

contact with the person of the victim. . . .”

22

Cal. 4th at 1028 (citation omitted).

23

specific intent to cause injury or a subjective awareness of the risk

24

that an injury might occur.

25

intentional act and actual knowledge of those facts sufficient to

26

establish that the act by its nature will probably and directly result

27

in the application of physical force against another.”

28

Williams, 26 Cal. 4th 779, 790, 111 Cal. Rptr. 2d 114, 29 P.3d 197

See Cal. Penal

“One may commit an assault without making actual physical
People v. Aguilar, 16

“[A]ssault does not require a

Rather, assault only requires an

19

People v.

1

(2001).

“Holding up a fist in a menacing manner, [or] drawing a sword

2

or bayonet . . . have been held to constitute an assault.

3

other similar act, accompanied by such circumstances as denote an

4

intention existing at the time . . . of using actual violence against

5

the person of another, will be considered an assault.”

6

McMakin, 8 Cal. 547, 548 (1857).

So, any

People v.

7
8
9

There was sufficient evidence to establish that Petitioner
assaulted Eng by intentionally swinging the bat at Eng.

Eng testified

10

that Petitioner swung the bat at her twice (R.T. 124-25).

11

to Eng’s testimony, Petitioner “almost” hit Eng with the bat, but did

12

not actually touch her with it (R.T. 124-25, 140-41; see also R.T.

13

182-83, 191-92, 245-46 (Marilen Calma testifying that Eng was not

14

physically hurt and claiming that Eng never told Calma that Petitioner

15

hit her with a bat); R.T. 400-01 (responding police officer testifying

16

that Eng told him Petitioner was holding a wooden baseball bat that

17

was about 15 inches long, but Petitioner supposedly did not swing it

18

at her); but see C.T. 327, 332-33 (transcript of Calma’s 911 call

19

during which Calma reported that Eng came to Calma afraid of

20

Petitioner because Petitioner “already hit her with a bat” at their

21

home, and that Eng arrived at Calma’s place “hurt”)).

22

did not develop any bruises (R.T. 125).

23

told her sister-in-law’s boyfriend Paul that Petitioner had hit her

24

with the bat (R.T. 138; see also R.T. 252, 260, 269-70 (Paul claiming

25

that he did not see any bruises on Eng and did not recall telling

26

police that he saw bruises on Eng’s shoulder); R.T. 401, 426-28

27

(responding police officer testifying that he saw no bruises on Eng);

28

but see R.T. 370-71, 380-81 (another responding police officer
20

According

Eng claimed she

Eng also claimed she never

1

testifying that Paul told her Paul had seen a bruise on Eng’s shoulder

2

and that Eng had told Paul Petitioner had hit Eng with a bat)).

3

Petitioner’s son, who was seven years old at the time of trial,

4

testified that he heard Eng screaming and saw Petitioner hit Eng twice

5

“a little bit soft” and “a little bit hard” in the back with the bat

6

(R.T. 274, 276, 310-13, 324-26, 328-29).

7

away and, when hit, yelled like she was hurt (R.T. 313-14, 329).6

Reportedly, Eng was running

8
9

While appearing to concede the sufficiency of the evidence to

10

prove an assault, Petitioner argues there was no evidence that the bat

11

was a “deadly weapon,” or that Petitioner assaulted Eng “in such a

12

way” that the bat was “capable of causing . . . great bodily injury.”

13

See Petition, pp. 5-33 - 5-38; see also Cal. Penal Code § 245(a).

14

“All that is required to sustain a conviction of assault with a deadly

15

weapon is proof that there was an assault, that it was with a deadly

16

weapon, and that the defendant intended to commit violent injury on

17

another.”

18

650 (1996) (quoting People v. Lee, 28 Cal. App. 4th 1724, 1734, 34

19

Cal. Rptr. 2d 723 (1994)).

20

requirement of physical contact to prove assault with a deadly weapon.

21

See People v. Brown, 210 Cal. App. 4th 1, 7, 147 Cal. Rptr. 3d 848

22

(2012) (“Because [section 245] speaks to the capability of inflicting

23

significant injury, neither physical contact nor actual injury is

24

required to support a conviction.”) (citation omitted).

People v. Tran, 47 Cal. App. 4th 253, 261, 54 Cal. Rptr. 2d

As with simple assault, there is no

25
26
6

27
28

Eng was “skinny,” standing 5'3" tall and weighing 120
pounds (R.T. 201). Calma, who was also 5'3" tall, described
Petitioner as “a big man” who was “much bigger” than Calma (R.T.
197, 441).
21

1

“[A] ‘deadly weapon’ is ‘any object, instrument, or weapon which

2

is used in such a manner as to be capable of producing and likely to

3

produce, death or great bodily injury.’

4

been held to be deadly weapons as a matter of law; the ordinary use

5

for which they are designed establishes their character as such.

6

Other objects, while not deadly per se, may be used, under certain

7

circumstances, in a manner likely to produce death or great bodily

8

injury.”

9

citations omitted).

Some few objects . . . have

People v. Aguilar, 16 Cal. 4th at 1028-29 (internal
“Great bodily injury is bodily injury which is

10

significant or substantial, not insignificant, trivial or moderate.”

11

People v. Armstrong, 8 Cal. App. 4th, 1060, 1067, 10 Cal. Rptr. 2d

12

839, 841 (1992).

13

deadly or dangerous is used as such, the trier of fact may consider

14

the nature of the object, the manner in which it is used, and all

15

other facts relevant to the issue.”

16

1028-29 (internal citations omitted).

“In determining whether an object not inherently

People v. Aguilar, 16 Cal. 4th at

17
18

Objects which are not deadly per se, but which have been found to

19

be “deadly weapons” under particular circumstances, have included a

20

screwdriver (People v. Simons, 42 Cal. App. 4th 1100, 1107, 50 Cal.

21

Rptr. 2d 351 (1996)), a straight pin (In re Jose R., 137 Cal. App. 3d

22

269, 276, 186 Cal. Rptr. 898 (1982)), a pillow (People v. Helms, 242

23

Cal. App. 2d 476, 486-87, 51 Cal. Rptr. 484 (1966)), a rock (People v.

24

White, 212 Cal. App. 2d 464, 465, 28 Cal. Rptr. 67 (1963)), and a

25

fingernail file (People v. Russell, 59 Cal. App. 2d 660, 665, 139 P.2d

26

661 (1943)).

27

///

28

///
22

1

Considering the evidence in the light most favorable to the

2

prosecution, a rational jury could have found beyond a reasonable

3

doubt that the bat, as used by Petitioner in his assault on Eng, was a

4

“deadly weapon.”

5

Petitioner chased Eng, swinging the bat at her and hitting her twice

6

in the back as she ran, causing her to scream.

7

could have inferred from this evidence that if Petitioner (who was

8

much bigger than Eng) had made solid contact with Eng as Petitioner

9

swung the bat, the likely result would have been a “not insignificant”

As summarized above, there existed evidence that

A jury reasonably

10

bodily injury.

11

187, 320 P.2d 531, 532-33 (1958) (upholding assault with a deadly

12

weapon conviction; issue of whether an approximately foot long

13

“policeman’s club” was a “deadly weapon” was “at most a mixed question

14

of law and fact, to be determined by the jury” where evidence showed

15

that defendant struck his victim’s head with enough force to cause a

16

cut); People v. Petters, 29 Cal. App. 2d 48, 49, 52, 84 P.2d 54 (1938)

17

(evidence was sufficient to support conviction for assault with a

18

deadly weapon where defendant “picked up a wooden club and hit the

19

complaining witness on the head with such force as to almost sever his

20

ear from his head”; “evidence as to the manner of use of the wooden

21

club and the injury inflicted thereby” was such that the only rational

22

conclusion was that the club was a “deadly weapon”); see also State v.

23

Pope, 1990 WL 157268, at *4 (Ohio App. 1990) (wooden handle of a

24

toilet plunger was a “deadly weapon”); compare In re Brandon T., 191

25

Cal. App. 4th 1491, 1497, 120 Cal. Rptr. 3d 637 (2011) (butter knife

26

that caused only a small scratch before breaking was not “capable” of

27

producing death or great bodily injury); People v. Beasley, 105 Cal.

28

App. 4th 1078, 1087-88, 130 Cal. Rptr. 2d 717 (2003) (broomstick

See, e.g., People v. Copeland, 157 Cal. App. 2d 185,

23

1

which, from the evidence, may have been hollow, fiberglass or plastic

2

was not a “deadly weapon,” although “[i]t is certainly conceivable

3

that a sufficiently strong and/or heavy broomstick might be wielded in

4

a manner capable of producing, and likely to produce, great bodily

5

injury, e.g., forcefully striking a small child or a frail adult or

6

any person’s face or head.”).

7
8

Although there was conflicting evidence regarding whether

9

Petitioner actually hit Eng with the bat, as discussed above, the jury

10

was not required to find that Petitioner actually hit Eng with the bat

11

or inflicted any injury on Eng.

12

to resolve the conflicts in the evidence, and this Court must presume

13

the jury resolved the conflicts in favor of the prosecution.

14

Court will not disturb the jury’s determination.

15

Virginia, 443 U.S. 307, 326 (1979); United States v. Nevils, 598 F.3d

16

at 1104.

17

the threshold of bare rationality.

18

2065.

19

rejection of Petitioner’s claim of insufficiency of the evidence was

20

not contrary to, or an unreasonable application of, any “clearly

21

established Federal law as determined by the Supreme Court of the

22

United States.”

23

to federal habeas relief on Ground Two of the Petition.

24

///

25

///

26

///

27

///

28

///

Moreover, it was the jury’s province

The

See Jackson v.

The jury’s verdict was not so unsupportable as to fall below
Coleman v. Johnson, 132 S. Ct. at

For the same reason, at a minimum, the Court of Appeal’s

See 28 U.S.C. § 2254(d).

24

Petitioner is not entitled

1

RECOMMENDATION

2
3

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

4

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

5

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

6
7

DATED:

August 10, 2015.

8
9
10

/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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

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