Stone v. Lopez

Filing 26

FINDINGS And RECOMMENDATIONS Regarding Petition For Writ Of Habeas Corpus, signed by Magistrate Judge Michael J. Seng on 5/24/2013. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 7/1/2013. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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NICHOLAS SCOTT STONE,
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Petitioner,
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v.
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R. LOPEZ, Warden,
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Respondent.
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1:10-cv-01335 LJO-MJS HC
FINDINGS AND RECOMMENDATION
REGARDING PETITION FOR WRIT OF
HABEAS CORPUS

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254.
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I.

BACKGROUND

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Petitioner is currently in the custody of the California Department of Corrections
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pursuant to a judgment of the Superior Court of California, County of Kings, following his
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conviction by jury trial on October 13, 2006, for attempted murder, three counts of assault with
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a firearm and various enhancements. (Clerk's Tr. at 251-52.) Petitioner was sentenced to a
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term of 25 years to life, plus three consecutive sentences of seven years to life. (Id.)
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On March 4, 2008, the California Court of Appeal, Fifth Appellate District (hereinafter
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“Fifth DCA”), reversed Petitioner's attempted murder conviction and modified the three counts
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of assault with a firearm to three counts of attempt to dissuade a witness. (Lodged Doc. B.)

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Petitioner filed a petition for review in the California Supreme Court. On April 23, 2009, the

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California Supreme Court reversed the decision of the Fifth DCA and remanded the matter for

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further adjudication. (Lodged Doc. D, "Stone II.") On October 20, 2009, the Fifth DCA struck

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the firearm enhancement, made other technical corrections, bu otherwise affirmed the

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judgment of conviction. (Lodged Doc. E.) Petitioner again sought review from the California

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Supreme Court, which was summarily denied on January 21, 2010. (Lodged Docs. F-G.)

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On July 6, 2010, Petitioner filed the instant federal habeas corpus petition. Petitioner

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raised two claims for relief: (1) the variance between attempted murder theory at trial and the

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theory articulated by the California Supreme Court deprived Petitioner of constitutionally

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adequate notice, and (2) the conviction of Petitioner using an alternative legal theory set forth

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by the California Supreme Court would constitute double jeopardy. On April 11, 2011,

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Respondent filed an answer to the petition. Petitioner did not file a traverse to the answer.

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II.

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STATEMENT OF THE FACTS1
At approximately 8:30 p.m. on the evening of October 21, 2005, police
officers Mark Pescatore, Jeffrey McCabe, and Sergeant Pat Jerrold were on
duty at a parking lot carnival when Officer Pescatore noticed a group of 10 to 25
youths blocking the pathways and moving about the carnival area. About half of
those in the group were wearing red, a color associated with Norteno street
gangs. It appeared to Officer McCabe that the group was “looking for trouble.”
Sixteen-year-old Joel F., as well as Gerardo A. and “Jamal” were included in the
group. Both Gerardo and Jamal were members of a Norteno street gang.

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Sixteen-year-old Camilo M. also was at the carnival, with his friend Abel
Rincon. Camilo was a member of a Sureno street gang. Seeing them there,
several members of the Norteno gang called Camilo “scrapa,” a derogatory term
for a Sureno, and challenged Camilo and Rincon to a fight. When Camilo and
Rincon decided not to fight and to leave the carnival, a group of Nortenos
followed them into the parking lot. Jamal kicked Rincon's truck as Camilo and
Rincon drove away.

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Camilo and Rincon went back home, contacted several people including
Petitioner, and told them what had occurred at the carnival. Camilo and
Petitioner were “good friends.” About a half-hour to an hour after the original
encounter at the carnival, Camilo and Rincon, along with Julio L., Roselynn M.,
Pedro Gomez, and Petitioner, returned to the carnival in Rincon's truck. Camilo

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The Fifth District Court of Appeal’s summary of the facts in its October 20, 2009 opinion is presumed
correct. 28 U.S.C. §§ 2254(e)(1).

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and the others armed themselves with “metal pipes,” because “[the Nortenos]
hit the truck.” Rincon drove, while Gomez sat in the center and Petitioner on the
passenger side of the front seat. The others sat in the bed of the truck.
Meanwhile, at the carnival, the officers directed the Norteno group to
leave, and about 10 of them went to a grassy area in the parking lot. When
Rincon and his companions arrived back at the carnival, he drove his truck past
the group of Nortenos, and the two groups “mad dogged” each other. Rincon
drove past the Nortenos twice and, on the third time, stopped the truck 10 to 15
feet from the group. While Rincon held up three fingers, denoting a gang sign,
Petitioner rolled down his window and was “throwing fingers out and he said 13.”
Petitioner then pulled out a handgun, which he fired “immediately,” and the truck
left the scene.
Joel F., who was named as the attempted murder victim in count 1,
testified for the prosecution at trial. On direct examination, Joel described the
position of the gun in Petitioner's hand as “pointed up” “slightly” and extended
toward the group when he fired. Joel did not think Petitioner had pointed the gun
at anyone in particular, but he acknowledged that when the gun fired, he
“ducked behind the car” because he was worried about being shot. The group
“scattered” and “[e]veryone kind of ducked.” Joel was “more to the back” of the
truck at the time of the shooting.

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On cross-examination, when defense counsel asked Joel if the weapon
had been pointed at him, he said, “not directly,” but it was “near me.” When
reminded that he had been near the back of the truck at the time, Joel stated the
gun “was pointing behind,” and even if he was at the back of the truck, “[t]hat's
still near me.”

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On redirect, the prosecutor asked Joel whether he remembered telling an
officer at the scene that the gun was pointed over their heads but low enough
that someone could have been shot. Joel replied, “Just to scare us. I don't really
think he was trying to shoot anybody.”
Officer Pescatore, who was 60 feet from the truck at the time, observed
“an arm come out of the passenger window, and then saw a muzzle flash and
heard a gunshot.” He described the arm as “pointing straight out the window” at
the group of individuals on the grassy island of the parking lot, about four to five
feet away.
Officer McCabe, who was standing by Officer Pescatore, also heard the
gunshot, and the two followed the truck - McCabe on foot and Pescatore in his
patrol car - as it headed out of the parking area. Pescatore soon stopped the
truck and ordered the six occupants out of the truck one at a time. As Petitioner
backed toward the officer, he whispered to Roselynn, Camilo, and Julio, “If one
of you guys rat on me like I'll make sure when I get out I'll kill you guys. If not, I'll
send someone to kill you.”
Investigator Steven Rossi testified that he spoke to Joel F. in the parking
lot after the incident and then took him to the police station. Joel was not able
to identify Petitioner as the shooter, but he told Rossi an hour or so after the
shooting that “he just got shot at and he was scared, and that's why he ducked
behind the car because he feared for his life, that he was going to get shot.”
Rossi described Joel as visibly shaken.

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(Lodged Doc. E at 2-5.)

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III.

DISCUSSION

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A.

Jurisdiction and Standard of Review

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On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act

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of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its

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enactment. Lindh v. Murphy, 521 U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484,

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1499 (9th Cir. 1997). The instant petition was filed after the enactment of the AEDPA; thus,

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it is governed by its provisions.

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Under AEDPA, an application for a writ of habeas corpus by a person in custody under

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a judgment of a state court may be granted only for violations of the Constitution or laws of the

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United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. at 375 n. 7 (2000). Federal

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habeas corpus relief is available for any claim decided on the merits in state court proceedings

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if the state court's adjudication of the claim:

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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d).
1.

Contrary to or an Unreasonable Application of Federal Law

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A state court decision is "contrary to" federal law if it "applies a rule that contradicts

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governing law set forth in [Supreme Court] cases" or "confronts a set of facts that are

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materially indistinguishable from" a Supreme Court case, yet reaches a different result."

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Brown v. Payton, 544 U.S. 133, 141 (2005) citing Williams, 529 U.S. at 405-06. "AEDPA

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does not require state and federal courts to wait for some nearly identical factual pattern

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before a legal rule must be applied. . . . The statue recognizes . . . that even a general

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standard may be applied in an unreasonable manner" Panetti v. Quarterman, 551 U.S. 930,

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953 (2007) (citations and quotation marks omitted). The "clearly established Federal law"

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requirement "does not demand more than a ‘principle' or ‘general standard.'" Musladin v.

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Lamarque, 555 F.3d 830, 839 (2009). For a state decision to be an unreasonable application

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of clearly established federal law under § 2254(d)(1), the Supreme Court's prior decisions

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must provide a governing legal principle (or principles) to the issue before the state court.

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Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003). A state court decision will involve an

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"unreasonable application of" federal law only if it is "objectively unreasonable." Id. at 75-76,

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quoting Williams, 529 U.S. at 409-10; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). In

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Harrington v. Richter, the Court further stresses that "an unreasonable application of federal

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law is different from an incorrect application of federal law." 131 S. Ct. 770, 785 (2011), (citing

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Williams, 529 U.S. at 410) (emphasis in original). "A state court's determination that a claim

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lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the

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correctness of the state court's decision." Id. at 786 (citing Yarborough v. Alvarado, 541 U.S.

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653, 664 (2004)). Further, "[t]he more general the rule, the more leeway courts have in reading

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outcomes in case-by-case determinations." Id.; Renico v. Lett, 130 S. Ct. 1855, 1864 (2010).

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"It is not an unreasonable application of clearly established Federal law for a state court to

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decline to apply a specific legal rule that has not been squarely established by this Court."

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Knowles v. Mirzayance, 556 U.S. 111, 129 S. Ct. 1411, 1419 (2009), quoted by Richter, 131

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S. Ct. at 786.

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2.

Review of State Decisions

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"Where there has been one reasoned state judgment rejecting a federal claim, later

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unexplained orders upholding that judgment or rejecting the claim rest on the same grounds."

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See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). This is referred to as the "look through"

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presumption. Id. at 804; Plascencia v. Alameida, 467 F.3d 1190, 1198 (9th Cir. 2006).

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Determining whether a state court's decision resulted from an unreasonable legal or factual

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conclusion,"does not require that there be an opinion from the state court explaining the state

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court's reasoning." Harrington, 131 S. Ct. at 784-85. "Where a state court's decision is

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unaccompanied by an explanation, the habeas petitioner's burden still must be met by

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showing there was no reasonable basis for the state court to deny relief." Id. ("This Court now

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holds and reconfirms that § 2254(d) does not require a state court to give reasons before its

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decision can be deemed to have been ‘adjudicated on the merits.'").

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Harrington instructs that whether the state court decision is reasoned and explained,

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or merely a summary denial, the approach to evaluating unreasonableness under § 2254(d)

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is the same: "Under § 2254(d), a habeas court must determine what arguments or theories

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supported or, as here, could have supported, the state court's decision; then it must ask

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whether it is possible fairminded jurists could disagree that those arguments or theories are

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inconsistent with the holding in a prior decision of this Court." Id. at 786. Thus, "even a strong

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case for relief does not mean the state court's contrary conclusion was unreasonable." Id.

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(citing Lockyer v. Andrade, 538 U.S. at 75). AEDPA "preserves authority to issue the writ in

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cases where there is no possibility fairminded jurists could disagree that the state court's

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decision conflicts with this Court's precedents." Id. To put it yet another way:

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As a condition for obtaining habeas corpus relief from a federal court, a
state prisoner must show that the state court's ruling on the claim being
presented in federal court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.

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Id. at 786-87. The Court then explains the rationale for this rule, i.e., "that state courts are the

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principal forum for asserting constitutional challenges to state convictions." Id. at 787. It

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follows from this consideration that § 2254(d) "complements the exhaustion requirement and

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the doctrine of procedural bar to ensure that state proceedings are the central process, not just

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a preliminary step for later federal habeas proceedings." Id. (citing Wainwright v. Sykes, 433

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U.S. 72, 90 (1977).

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3.

Prejudicial Impact of Constitutional Error

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The prejudicial impact of any constitutional error is assessed by asking whether the

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error had "a substantial and injurious effect or influence in determining the jury's verdict."

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Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 121-22

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(2007) (holding that the Brecht standard applies whether or not the state court recognized the

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error and reviewed it for harmlessness). Some constitutional errors, however, do not require

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that the petitioner demonstrate prejudice. See Arizona v. Fulminante, 499 U.S. 279, 310

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(1991); United States v. Cronic, 466 U.S. 648, 659 (1984). Furthermore, where a habeas

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petition governed by AEDPA alleges ineffective assistance of counsel under Strickland v.

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Washington, 466 U.S. 668 (1984), the Strickland prejudice standard is applied and courts do

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not engage in a separate analysis applying the Brecht standard. Avila v. Galaza, 297 F.3d

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911, 918, n. 7 (2002); Musalin v. Lamarque, 555 F.3d at 834.

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IV.

REVIEW OF CLAIMS

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A.

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In his first ground for relief Petitioner contends that variance between the theory of

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attempted murder pled and argued at trial and that articulated in Stone II deprived him of

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adequate notice of the charges. Petitioner argues that there was no way to determine what

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Lack of Adequate Notice of Charges

theory the jury relied upon for conviction. (Pet. at 8.)

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Petitioner presented this claim on appeal to the Fifth DCA after its original decision was

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reversed and remanded California Supreme Court. Upon remand, the claim was denied in a

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reasoned decision by the Fifth DCA and summarily denied by the California Supreme Court.

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(See Lodged Docs. E-G.) Because the California Supreme Court’s opinion is summary in

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nature, this Court “looks through” that decision and presumes it adopted the reasoning of the

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California Court of Appeal, the last state court to have issued a reasoned opinion. See Ylst

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v. Nunnemaker, 501 U.S. 797, 804-05 & n.3 (1991) (establishing, on habeas review, “look

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through” presumption that higher court agrees with lower court’s reasoning where former

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affirms latter without discussion); see also LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th

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Cir. 2000) (holding federal courts look to last reasoned state court opinion in determining

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whether state court’s rejection of petitioner’s claims was contrary to or an unreasonable

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application of federal law under 28 U.S.C. § 2254(d)(1)).

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In denying Petitioner’s claim, the Fifth DCA explained:

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DISCUSSION

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Appellant was charged with the attempted murder of Joel F., one of the
people in the crowd he shot at. On appeal, appellant argued that the trial court
incorrectly instructed on attempted murder by giving a "kill zone" instruction; that
the prosecutor misstated the law on that subject during argument, exacerbating
the erroneous instruction; and that the evidence was insufficient to support the
attempted murder conviction. We agreed and reversed, finding prejudicial
instructional error and insufficient evidence that appellant specifically intended
to kill Joel F. The Supreme Court agreed with our conclusions that the kill zone

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instruction was given in error and, implicitly, that the evidence did not
demonstrate a specific intent to kill Joel F. The court also held, however, that a
person who intends to kill can be guilty of attempted murder even if the person
has no specific target in mind. (Stone II, supra, 46 Cal.4th at p. 140.) It
suggested that this is the theory upon which appellant was tried and that it is
what the evidence showed.

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The court remanded the case to us because both of our conclusions--that
error in instructing on the kill zone theory, combined with the prosecutor's
argument, was prejudicial, and that insufficient evidence supported the
attempted murder conviction--may have been based, at least in part, on the
understanding that attempted murder required the intent to kill a particular
person. (Stone II, supra, 46 Cal.4th at p. 139.) The court acknowledged that, in
hindsight, it would have been better had the case been charged differently. (Id.
at p. 141.) In its remand, the court stated:
"The Court of Appeal should reconsider the issues of this case in
light of the views expressed in this opinion. In doing so, the court
should consider any issues regarding the variance between the
information--alleging [appellant] intended to kill Joel F.--and the
proof at trial--[appellant] intended to kill someone although not
specifically Joel F. (See … § 956.)" (Stone II, supra, at p. 142.)

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1. Theory for Attempted Murder Conviction

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On remand, appellant argues that the record is inadequate to determine
whether the jury found him guilty of attempted murder on a legally supportable
theory. As argued by appellant, he was tried on two theories: (1) the specific
intent to kill Joel F., which was not supported by sufficient evidence; and (2) the
kill zone theory, which was both legally and factually inapposite. Appellant claims
he was not tried on a pleading or theory "that he specifically intended to kill one
member of a group of persons gathered together in [a] parking lot … on October
21, 2005." "[T]his court cannot," he claims, "determine whether appellant was
convicted on this theory, or on one of the other two [unsupported] theories." We
disagree.

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First, we disagree with the proposition that appellant was tried on the
theory that he specifically intended to kill Joel F. While the information did name
Joel F. as the victim of the attempted murder, this theory was not pursued by the
prosecutor at trial. In his opening argument, the prosecutor noted that
"when [appellant] got that gun and went to the carnival, … he
wasn't thinking [about] Joel F[.] … hadn't singled out Joel F[.] …
as an individual. He was looking for a group of that rival gang, a
Norteno. [P] … [A]nd he went back with that gun to find one of
them …. [P] … [P] When [appellant] is shooting, … he's going to
kill somebody within that 'kill zone'. Joel F[.] was one of them.
There were others there as well …. [P] … [P] He didn't specifically
go for Joel F[.] He was just one in that 'kill zone' and he intended
to kill someone in there …."
In his closing argument, the prosecutor pressed the same theme:
"There's no evidence [appellant] even knew Joel F[.] by name. He

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was just one of that group that was in that 'kill zone'. Okay? And
that's why he fired. He was, Joel F[.] was in that zone and so were
others…."
Neither would it be reasonable to think that the jury, despite the
prosecutor's argument, might have reached the conclusion that appellant did
specifically intend to kill Joel F. when he fired a shot into the group of which Joel
was a part. As noted by our Supreme Court in People v. Guiton (1993) 4 Cal.4th
1116, appellate courts must
"'proceed on the assumption that [juries] reasonably,
conscientiously, and impartially apply[] the standards that govern
the[ir] decision.' (Strickland v. Washington (1984) 466 U.S. 668,
695.) Thus, if there are two possible grounds for the jury's verdict,
one unreasonable and the other reasonable, we will assume,
absent a contrary indication in the record, that the jury based its
verdict on the reasonable ground." (Id. at p. 1127.)
We make that assumption here and conclude the jury did not convict based on
the theory that appellant specifically intended to kill Joel F.

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For similar reasons, we also reject the proposition that the jury convicted
appellant on the theory embodied in the kill zone paragraph of CALCRIM No.
600, even as the instruction was modified here. That theory posits that a
defendant may be found to have had the intent to kill multiple victims when, in
an effort to kill a targeted victim, he or she employs means that create a zone
of danger to all persons within the zone. (People v. Bland (2002) 28 Cal.4th 313,
330.) As explained in Stone II, "[t]hat theory addresses the question of whether
a defendant charged with the murder or attempted murder of an intended target
can also be convicted of attempting to murder other, nontargeted, persons."
(Stone II, supra, 46 Cal.4th at p. 138.)
As we noted in our original opinion in this matter, the kill zone instruction
contains an ambiguity in that it refers in one sentence to the accused's intent to
kill "anyone within the kill zone" and in the next sentence to harming "everyone
in the kill zone." If a jury instruction is ambiguous, we inquire whether there is a
reasonable likelihood that the jury understood and applied the instruction in the
asserted manner. (People v. Hernandez (2003) 111 Cal.App.4th 582, 589; see
also People v. Bland, supra, 28 Cal.4th at p. 333.) One of the ways in which we
can make that determination is to examine the prosecutor's argument to the jury.
(People v. Bland, supra, at p. 333; see also People v. Guiton, supra, 4 Cal.4th
at p. 1130; People v. Brown (1988) 45 Cal.3d 1247, 1256.) We have already
quoted at length from the prosecutor's argument here. We also have reviewed
the entire record. Suffice it to say that there was never any suggestion to this
jury that it should or could convict appellant on the theory that, in an effort to kill
a targeted victim, he employed a means that created a zone of harm for all
persons within it, including the targeted victim. The theory simply did not apply
to the facts, and it would be unreasonable for us to assume the jury tried to
make it fit.
Rather, it is clear now and has always been clear that the jury convicted
appellant on the theory upon which the prosecution relied: that appellant fired
a single bullet into a group of people, intending to kill any one of them. The jury's
verdict clearly demonstrates its finding that appellant did intend to kill when he
fired that single shot. The question presented now is whether that finding can be

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allowed to stand or, instead, must fall because it was attached to the erroneous
second step of the prosecutor's theory--that a finding that appellant intended to
kill a person, any person, from the group, was sufficient to support a conviction
for the attempted murder of Joel F. We agree with the Supreme Court that the
answer depends upon principles relating to variance between the pleading and
proof; for, it seems clear to us, if the prosecutor could have moved, at the end
of trial but before the jury's verdict, to amend the information to substitute "a
human being" as the victim, deleting Joel F., then appellant suffers no prejudice
should we in effect allow such an amendment now.
We proceed to consider that question.

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2. Variance Between Pleading and Proof at Trial

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In remanding this case, the Supreme Court found it "problematic" that the
information alleged that appellant intended to kill an identified victim, Joel F., but
the prosecution "ultimately could not prove that [appellant] targeted a specific
person rather than simply someone within the group." (Stone II, supra, 46
Cal.4th at p. 141.) The court ordered us to consider any issues arising from the
variance between the allegation of the information that appellant intended to kill
Joel F. and the proof at trial that he "intended to kill someone although not
specifically Joel F. (See … § 956.)" (Id. at p. 142.)

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Appellant now contends that to ignore the variance between the pleading
and proof, by allowing his conviction on count 1 to stand, would in effect deprive
him of constitutionally adequate notice of the charges and the opportunity to
prepare his defense. Specifically, appellant contends that, based on the
information, he was called upon only to defend against a charge that he
attempted to kill Joel F., and the expansion of the possible victims to include
anyone within the targeted group was a material variance and, therefore,
prejudicial. We disagree.
The due process guarantees of the state and federal Constitutions
require that a criminal defendant "receive notice of the charges adequate to give
a meaningful opportunity to defend against them." (People v. Seaton (2001) 26
Cal.4th 598, 640.) "No accusatory pleading is insufficient, [however,] nor can the
trial, judgment or other proceeding thereon be affected by reason of any defect
or imperfection in matter of form which does not prejudice a substantial right of
the defendant upon the merits." (§ 960.) Section 956, cited to us in the Supreme
Court's remand order, is as follows:

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"When an offense involves the commission of, or an attempt to
commit a private injury, and is described with sufficient certainty
in other respects to identify the act, an erroneous allegation as to
the person injured, or intended to be injured, or of the place where
the offense was committed, or of the property involved in its
commission, is not material." (Italics added.)
If the information charges the offense in such manner that the defendant
is apprised of the act with which he or she is charged with sufficient certainty to
enable the defendant to make a defense thereto, if the defendant is not misled
by any statement contained in the information, and the transaction is so
identified that the defendant, by a proper plea, may protect himself or herself
against another prosecution for the same offense, it must be held that the
allegations are sufficient to sustain the conviction when an attack is made upon

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the ground of variance. (People v. Silverman (1939) 33 Cal.App.2d 1, 4-5.)

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In order to obtain reversal of a conviction on the ground there was a
variance between the allegations of an information and the proof at trial, the
variance must be "material." (4 Witkin & Epstein, Cal. Criminal Law (3d ed.
2000) Pretrial Proceedings, § 191, p. 398.)

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"[A]n information plays a limited but important role: it tells a
defendant what kinds of offenses he is charged with (usually by
reference to a statute violated), and it states the number of
offenses (convictions) that can result from the prosecution. But the
time, place and circumstances of charged offenses are left to the
preliminary hearing transcript; it is the touchstone of due process
notice to a defendant." (People v. Gordon (1985) 165 Cal.App.3d
839, 870 (conc. opn. of Sims, J.), disapproved on other grounds
in People v. Frazer (1999) 21 Cal.4th 737, 765, overruled on
another ground in Stogner v. California (2003) 539 U.S. 607, 610,
632-633.)

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14
15
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19
20
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23
24
25
26
27
28

"The test of the materiality of a variance [between the accusatory pleading and
the proof] is whether the indictment or information so fully and correctly informs
the defendant of the criminal act with which he is charged that, taking into
consideration the proof which is introduced against him, he is not misled in
making his defense, or placed in danger of being twice put in jeopardy for the
same offense." (People v. LaMarr (1942) 20 Cal.2d 705, 711.)
For instance, it has been held that, provided the information correctly
alleges the county in which the offense occurred, a mistake in the address of the
site of a burglary is an immaterial variance that does not require reversal of a
conviction. (People v. Williams (1945) 27 Cal.2d 220, 226.) And it has frequently
been held that convictions may be affirmed notwithstanding that the information
stated erroneous names as owners of stolen property. (People v. Larrabee
(1931) 113 Cal.App. 745, 747; People v. Cloud (1929) 100 Cal.App. 792, 794;
People v. Nunley (1904) 142 Cal. 105, 107-109; People v. Leong Quong (1882)
60 Cal. 107, 108.)
In People v. Powell (1974) 40 Cal.App.3d 107, the information charged
the defendants with murdering a Los Angeles police officer in Los Angeles
County. But the evidence at trial showed that the defendants kidnapped the
officer in Los Angeles and drove him to Kern County, where they murdered him.
(Id. at pp. 116-118.) The appellate court rejected the defendants' claim that the
variance between the evidence and the information prejudiced them. The court
found the claim "specious," noting that the defendants had previously been tried
for the same offense and had the benefit of a preliminary hearing transcript and
a full trial transcript. "In no way could they or their counsel have been misled as
to the nature of the evidence that the prosecution would offer." (Id. at pp.
123-124.)
And in In re Michael D. (2002) 100 Cal.App.4th 115, a minor pointed a
replica firearm at a student at an elementary school playground. An office
manager saw the minor threatening the student and alerted staff and the police.
(Id. at pp. 119-120.) The petition alleged the minor violated section 417.4 by
brandishing a replica firearm, causing the office manager, not the student, to be
in fear. Although the minor raised the issue as one of insufficiency of the
evidence, the court addressed it as a variance between the petition and the
proof and found it to be inconsequential. (In re Michael D., at p. 128.)

U.S. District Court
E. D. California

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1
2
3
4
5

Here, the time, place, and circumstances of the charged offense appear
in the transcript of the preliminary hearing. At that hearing, Officer Pescatore
testified that, after observing some gang members congregating at a street
carnival parking lot, he observed a truck drive towards the group of Nortenos,
slow down, "and at that time I saw an arm come out the [passenger side]
window and I heard and saw a gunshot." When asked where the weapon was
being pointed, Pescatore said, "To me it appeared the weapon was being
pointed at the group of Nortenos." He estimated the truck was four feet from the
Norteno group at that point. The truck was subsequently stopped and appellant
was in the front right passenger-side seat.

6
7
8
9
10
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12
13

Investigator Rossi testified at the preliminary hearing that he spoke with
"some of the victims or the Nortenos that were shot at," specifically "one of those
individuals Joel F[.]" Joel F. denied being a gang member but acknowledged
some of the people he was with were Nortenos. Joel F. told Investigator Rossi
that the group in the truck and the people in his group were "mad-dogging" each
other and someone in the truck shouted "X3" and "threw up three fingers," both
gang identifications. The truck then drove by the group slowly and the right front
passenger held out a handgun in the direction of the group "aimed slightly over
their heads" but low enough that somebody in the group could have been shot.
Joel F. feared for his safety and hid behind a parked car.
Investigator Rossi also testified that he spoke to Jamal, who told him he
saw the right front passenger raise his right hand and point a gun out the
window in the direction of the group. Jamal hid behind a car and then heard a
shot.

14
15
16
17
18

At the conclusion of the preliminary hearing, counsel for appellant asked
to address the court on the issue of the attempted murder:
"It's a very serious charge and I think it's going to take more than
just an individual saying, and I quote, 'He pointed the gun in our
direction, he thought it was a little bit high but it may have been--it
could have possibly shot someone in our group.' [P] I think that's
an assault with a deadly weapon, I do not think that's specific
intent to commit murder on an individual."

19
The prosecutor argued defense counsel's concern was an issue for trial.
20
21
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24
25
26
27
28

Thus, the information notified appellant that he was charged with a single
count of attempted murder. The testimony at the preliminary hearing described
"with sufficient certainty" that the offense was committed on October 21, 2005,
while appellant was seated in a pickup truck and fired a single shot from a
handgun at a group of Nortenos together in a grassy area of the parking lot.
After this, the evidence at trial presented no surprises.
At least as far as we are aware, appellant registered no objection, at trial
or otherwise, to the prosecutor's theory of guilt. That is, defense counsel gave
no indication that he was taken by surprise by that theory of guilt. Defense
counsel simply attempted to work around that theory. Appellant presented no
defense that depended upon the identity of Joel F. as the intended victim.
Appellant's defense was that he was not the shooter, and that, if he was, he
aimed above the heads of the entire group and was not "trying to shoot
anybody." Defense counsel specifically stated that the prosecution had failed to
prove not only that appellant intended to kill Joel F. but also that appellant
intended to kill anyone. "[I]f he intended to kill Joel [F.], according to Joel [F.]'s

U.S. District Court
E. D. California

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1

statement, if he intended to kill anybody, if he intended to shoot anybody he
would have. Didn't happen. It didn't happen."

2
3

The issue in appellant's trial was not who he intended to kill but whether
he intended to kill. We perceive no possibility of prejudice to appellant in the
identification of the victim as Joel F. and conclude that any error was harmless.

4
(See Lodged Doc. E at 5-14.)
5
1.

Legal Standard

6
"The Sixth Amendment guarantees a criminal defendant the fundamental right to be
7
informed of the nature and cause of the charges made against him so as to permit adequate
8
preparation of a defense." Gautt v. Lewis, 489 F.3d 993, 1002 (9th Cir. 2007); see also U.S.
9
CONST. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right . . . to be
10
informed of the nature and cause of the accusation . . . ."); Cole v. Arkansas, 333 U.S. 196,
11
201 (1948) ("It is as much a violation of due process to send an accused to prison following
12
conviction of a charge on which he was never tried as it would be to convict him upon a charge
13
that was never made."). "No principle of procedural due process is more clearly established
14
than that notice of the specific charge, and a chance to be heard in a trial of the issues raised
15
by that charge, if desired, are among the constitutional rights of every accused in a criminal
16
proceeding in all courts, state or federal." Cole, 333 U.S. at 201. To satisfy the Sixth
17
Amendment, "an information [must] state the elements of an offense charged with sufficient
18
clarity to apprise a defendant of what he must be prepared to defend against." Gautt, 489 F.3d
19
at 1003 (citation omitted); James v. Borg, 24 F.3d 20, 25 (9th Cir. 1994) ("An information is not
20
constitutionally defective if it states the elements of an offense charged with sufficient clarity
21
to apprise a defendant of what to defend against.") (internal quotation marks and citations
22
omitted).
23
Even assuming the prosecution's charges amounted to a variance of proof, "[t]he true
24
inquiry, . . . is not whether there has been a variance in proof, but whether there has been
25
such a variance as to affect the substantial rights of the accused." Berger v. United States,
26
295 U.S. 78, 82, 55 S. Ct. 629, 79 L. Ed. 1314 (1935) (internal quotation marks omitted).
27
Making that determination brings the Court back to the "obvious requirements" that the
28
defendant must be informed of the charges so as to avoid surprise, be able to present a
U.S. District Court
E. D. California

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1

defense, and be protected against another prosecution for the same offense. Id.

2

To determine whether a defendant has received fair notice of the charges, "the court

3

looks first to the information." James, 24 F.3d at 24. Thus, as a threshold matter, the Court first

4

considers the constitutional adequacy of the information.

5

2.

Analysis

6

Here, as explained in detail by the state courts, the information clearly stated that

7

Petitioner was charged with the attempted murder of Joel F., rather than the attempted murder

8

of any individual in the crowd of people that Joel F. was with. The California Court of Appeals

9

found that the jury convicted Petitioner of attempted murder of any individual in the crowd,

10

rather than just Joel F., and proceeded to address the issue of variance:

13

The question presented now is whether that finding can be allowed to
stand or, instead, must fall because it was attached to the erroneous second
step of the prosecutor's theory--that a finding that appellant intended to kill a
person, any person, from the group, was sufficient to support a conviction for the
attempted murder of Joel F.

14

(Lodged Doc. E at 8-9.) Upon review of the information and testimony and evidence presented

15

at the preliminary hearing, the state court held that Petitioner was clearly informed that he was

16

being charged with attempted murder for the act of firing a shot at the crowd of people. (Id. at

17

13.) The evidence at the preliminary hearing described in detail that Petitioner, while seated

18

in a pickup truck, shot at a group of Nortenos in the parking lot on the date in question. (Id.)

19

The state court held that the error in the charging document was harmless because Petitioner

20

presented no defense that depended on the identity of Joel F. as the intended victim. Instead,

21

Petitioner argued that he shot above the heads of everyone in the group, and did not have the

22

intent to kill anyone. (Id. at 13-14.) ("The issue in appellant's trial was not who he intended to

23

kill but whether he intended to kill. We perceive no possibility of prejudice to appellant in the

24

identification of the victim as Joel F. and conclude that any error was harmless.")

11
12

25

In this case, the state appellate court decision was not unreasonable. The

26

determination that the variance between the charging document and theory of the crime was

27

harmless because Petitioner's defense focused solely on his lack of intent to kill anyone was

28

a reasonable determination by the state court.

U.S. District Court
E. D. California

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1

Petitioner fails to demonstrate that the state court rejection of his claim "resulted in a

2

decision that was contrary to, or involved an unreasonable application of, clearly established

3

Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d).

4

The claim should be denied.

5

B.

Double Jeopardy

6

The Fifth Amendment to the United States Constitution guarantees that no person shall

7

"be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. Amend

8

V. The Double Jeopardy Clause protects against three distinct abuses: a second prosecution

9

for the same offense after conviction, a second prosecution for the same offense after

10

acquittal, and multiple punishments for the same offense. Schiro v. Farley, 510 U.S. 222, 229

11

(1994).

12

The Supreme Court has made clear that the "general prohibition against successive

13

prosecutions does not prevent the government from retrying a defendant who succeeds in

14

getting his first conviction set aside . . . because of some error in the proceedings leading to

15

conviction." Lockhart v. Nelson, 488 U.S. 33, 38 (1988). The Supreme Court has recognized

16

an exception to this general rule "when a defendant's conviction is reversed by an appellate

17

court on the sole ground that the evidence was insufficient to sustain the jury's verdict." Id. at

18

39 (citing Burks v. United States, 437 U.S. 1, 18 (1978)). In Montana v. Hall, 481 U.S. 400, 404

19

(1987), the Supreme Court made clear "that the Constitution permits retrial after a conviction

20

is reversed because of a defect in the charging document."

21

Petitioner argues here, as he did on direct appeal, that the "variance between the

22

pleading, proof, and the unspecified victim theory of attempted murder dictates that retrial is

23

double jeopardy barred." (Pet. at 11.) Upon direct review, the Fifth DCA found that there was

24

insufficient evidence to convict Petitioner of attempted murder of Joel F. However, the

25

California Supreme Court reversed and remanded the matter, finding that the Fifth DCA erred

26

in finding that Petitioner could not be convicted of attempted of any individuals in the crowd.

27

Upon remand, the Fifth DCA found that "it is clear now and has always been clear that the jury

28

convicted appellant on the theory upon which the prosecution relied: that appellant fired a

U.S. District Court
E. D. California

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1

single bullet into a group of people, intending to kill any one of them. The jury's verdict clearly

2

demonstrates its finding that appellant did intend to kill when he fired that single shot." (Lodged

3

Doc. E at 8.) Petitioner was only tried once, and the finding that there was insufficient evidence

4

to support the conviction was reversed by the California Supreme Court. Accordingly,

5

Petitioner was not retried nor the conviction vacated based on insufficient evidence.

6

Because Petitioner's original convictions were not reversed on the grounds that the

7

evidence was insufficient to support the jury's verdict nor was Petitioner retried, the state

8

courts properly rejected Petitioner's double jeopardy claim. Petitioner identifies no clearly

9

established federal law which mandates a different result. Accordingly, Petitioner's double

10

jeopardy claim should be denied. Petitioner is not entitled to habeas corpus relief and it is

11

recommended that his petition be dismissed.

12

V.

FINDINGS AND RECOMMENDATIONS

13

Accordingly, it is hereby recommended that the petition for a writ of habeas corpus be

14

DENIED with prejudice. It is further recommended that the Clerk of Court be directed to enter

15

judgment.

16

This Findings and Recommendation is submitted to the assigned District Judge,

17

pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) days after being

18

served with the Findings and Recommendation, any party may file written objections with the

19

Court and serve a copy on all parties. Such a document should be captioned "Objections to

20

Magistrate Judge's Findings and Recommendation." Any reply to the objections shall be

21

served and filed within fourteen (14) days after service of the objections. The parties are

22

advised that failure to file objections within the specified time may waive the right to appeal the

23

District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

24
25
26

IT IS SO ORDERED.

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Dated:
ci4d6

May 24, 2013

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

28
U.S. District Court
E. D. California

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