Espinoza v. McDonald

Filing 32

ORDER Substituting Ron Barnes, Warden, as Respondent; FINDINGS and RECOMMENDATIONS to Deny the 1 Petition for Writ of Habeas Corpus, Deny Petitioner's Request for an Evidentiary Hearing, Enter Judgment for Respondent, and Decline to Issue a Certificate of Appealability, signed by Magistrate Judge Sheila K. Oberto on 9/24/12. Referred to Judge O'Neill. Ron Barnes added, Mike McDonald terminated. Objections Due in Thirty Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CORNELIO VEDOLLA ESPINOZA,
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Petitioner,
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v.
RON BARNES, Warden,

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Respondent.

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1:10-cv—01521-LJO-SKO-HC
ORDER SUBSTITUTING RON BARNES,
WARDEN, AS RESPONDENT
FINDINGS AND RECOMMENDATIONS TO
DENY THE PETITION FOR WRIT OF
HABEAS CORPUS (Doc. 1), DENY
PETITIONER’S REQUEST FOR AN
EVIDENTIARY HEARING, ENTER
JUDGMENT FOR RESPONDENT, AND
DECLINE TO ISSUE A CERTIFICATE OF
APPEALABILITY

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OBJECTIONS DEADLINE:
THIRTY (30) DAYS

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

The matter has been referred to the

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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local
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Rules 302 and 304.

Pending before the Court is the petition,

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which was filed on August 23, 2010, along with a request for an
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evidentiary hearing.

Respondent filed an answer with supporting

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documentation on March 7, 2011.

Petitioner filed a traverse on

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August 2, 2011.
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I.

Jurisdiction

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Because the petition was filed after April 24, 1996, the
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effective date of the Antiterrorism and Effective Death Penalty

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Act of 1996 (AEDPA), the AEDPA applies in this proceeding.

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v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008

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(1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

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A district court may entertain a petition for a writ of

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habeas corpus by a person in custody pursuant to the judgment of

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a state court only on the ground that the custody is in violation

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of the Constitution, laws, or treaties of the United States.

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U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362,

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375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13,

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16 (2010) (per curiam).

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the proceedings resulting in his conviction, he suffered

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violations of his Constitutional rights.

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judgment was rendered by the Tulare County Superior Court (TCSC),

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which is located within the territorial jurisdiction of this

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Court.

Lindh

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Petitioner claims that in the course of

Further, the challenged

28 U.S.C. §§ 84(b), 2254(a), 2241(a), (d).

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Respondent filed an answer on behalf of Respondent Mike

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McDonald, who was the warden at High Desert State Prison (HDSP),

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where Petitioner has been incarcerated at all pertinent times

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during this proceeding.

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person who had custody of the Petitioner within the meaning of 28

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U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254

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Cases in the District Courts (Habeas Rules).

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California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).

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Petitioner thus named as a respondent a

See, Stanley v.

Accordingly, this Court has jurisdiction over the subject
matter of this action and over the Respondent.

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II.

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The official website of the California Department of

Order Substituting Ron Barnes, Warden, as Respondent

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Corrections and Rehabilitation (CDCR) reflects that Ron Barnes is

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presently acting as warden of the HDSP.1

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Fed. R. Civ. P. 25(d) provides that an action does not abate

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when a public officer who is a party in an official capacity

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dies, resigns, or otherwise ceases to hold office while the

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action is pending; rather, the officer’s successor is

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automatically substituted as a party.

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that a court may at any time order substitution, but the absence

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of such an order does not affect the substitution.

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The rule further provides

Accordingly, it is ORDERED that Ron Barnes, Warden, is
SUBSTITUTED as Respondent.

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III.

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At a jury trial held in TCSC case number VCF188670,

Procedural Summary

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Petitioner was convicted on March 19, 2008, of having committed

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the offense of carjacking on or about March 3, 2007, in violation

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of Cal. Pen. Code § 215(a) (count one); assault with a semi-

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automatic firearm in violation of Cal. Pen. Code § 245(b) (count

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two); criminal threats in violation of Cal. Pen. Code § 422

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(count three); and possession of a firearm by a felon in

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violation of Cal. Pen. Code § 12021(a)(1) (count four).

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respect to the first three counts, Petitioner was found to have

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personally used a handgun within the meaning of Cal. Pen. Code §§

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12022.53(b) and 12022.5(a).

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court found that Petitioner had a prior serious felony conviction

With

In connection with all counts, the

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The Court may take judicial notice of facts that are capable of
accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned, including undisputed information posted on official
websites. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331,
333 (9th Cir. 1993); Daniels-Hall v. National Education Association, 629 F.3d
992, 999 (9th Cir. 2010). The address of the official website for the CDCR is
http://www.cdcr.ca.gov.

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within the meaning of Cal. Pen. Code

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§ 667(a)(1).

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July 24, 2008, to twenty-five years in state prison.

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79.)

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(LD 1, 85-86; 48-51.)2

Petitioner was sentenced on
(LD 1, 178-

Petitioner timely appealed to the California Court of

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Appeal, Fifth Appellate District (CCA).

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issued a decision affirming the judgment.

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However, it modified the verdict in count two to reflect a

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conviction pursuant to Cal. Pen. Code § 245(a)(2) instead of

On May 28, 2009, the CCA
(Doc. 14-1, 4.)

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§ 245(b), modified the firearm enhancement concerning count two

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to reflect a true finding under Cal. Pen. Code § 12022.5(a), and

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remanded the case for re-sentencing in accordance with the CCA’s

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decision.

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California Supreme Court in case number S174443 which was

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summarily denied on August 12, 2009.

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(Id.)

Petitioner filed a petition for review in the

(LD 8.)3

On September 29, 2009, the TCSC issued an amended abstract

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of judgment that reflected a conviction of assault with a firearm

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in violation of § 245(a)(2) (count two) with special allegations

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pursuant to §§ 12022.5(a) and 667(a)(1).

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sentenced to six years with a consecutive four-year enhancement

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pursuant to Cal. Pen. Code § 12022.5(b); a consecutive five years

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pursuant to § 667(a)(1) was stayed pursuant to Cal. Pen. Code

Petitioner was

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“LD” refers to documents lodged by Respondent in support of the answer.

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The Court may take judicial notice of facts that are capable of
accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned, including undisputed information posted on official
websites. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331,
333 (9th Cir. 1993); Daniels-Hall v. National Education Association, 629 F.3d
992, 999 (9th Cir. 2010). It is appropriate to take judicial notice of the
docket sheet of a California court. White v Martel, 601 F.3d 882, 885 (9th
Cir. 2010), cert. denied, 131 S.Ct. 332 (2010). The address of the official
website of the California state courts is www.courts.ca.gov.

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§ 654.

(LD 9.)

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IV.

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In a habeas proceeding, pursuant to § 2254(e)(1), a

Facts

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determination of a factual issue made by a state court shall be

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presumed to be correct applies to a statement of facts drawn from

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a state appellate court’s decision.

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742, 746 n.1 (9th Cir. 2009).

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Moses v. Payne, 555 F.3d

The following statement of facts is taken from the decision
of the CCA in People v. Cornelio Vedolla Espinoza, case number
F055956, which was filed on May 28, 2009:
FACTUAL AND PROCEDURAL SUMMARY
Alejandro Gil wanted to sell his car, a black Ford
Mustang, so he placed a “For Sale” sign in its window
and parked it in a lot on Olive Street in Porterville.
Gil received a telephone call from Espinoza who
indicated he was interested in purchasing the car.
Espinoza made arrangements to meet at Gil's home so he
could test drive the vehicle.
The afternoon of March 3, 2007, Espinoza arrived at
Gil's home and the two men walked to the lot where the
car was parked. Espinoza climbed into the driver's seat
and Gil sat in the passenger's seat. Espinoza drove for
several minutes, arriving at the outskirts of town. At
that point, Espinoza pulled a chrome gun from his
pocket, moved his hand back on the gun in a ratcheting
motion, and pointed the gun at Gil. Espinoza ordered
Gil out of the car, telling Gil to run or be killed.
Gil was afraid Espinoza would kill him, so he ran.
After getting away from Espinoza, Gil called the
police.

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On August 9, 2007, Espinoza and his girlfriend went to
the local California Highway Patrol (CHP) office to
obtain information regarding a car accident. The CHP
ran a check of the vehicle identification number (VIN)
and license plate of the car Espinoza was driving, a
Ford Mustang. The VIN listed for the license plate did
not match the VIN on the dash of the Mustang. The CHP
also noticed that while the exterior of the Mustang was
red, the interior of the vehicle and the area near the
rear license plate were black.

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Sheriff's Deputy Genaro Pinon arrived at the CHP office

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to interview Espinoza. Espinoza claimed his cousin had
given him the car. Initially, Espinoza stated he did
not know why the VIN and license plate did not match.
He then changed his story and stated he had swapped
license plates with another vehicle.

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During the course of the interview, Pinon received a
telephone call from Gil. Pinon left Espinoza at the CHP
office and went to pick up Gil for a field lineup. Gil
was riding in the back of Pinon's vehicle when they
returned to the CHP office. As Pinon drove into the
parking lot, and before Pinon could direct his
attention, Gil spotted and identified Espinoza as the
man who had stolen his car.

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After Gil identified Espinoza, Pinon again interviewed
Espinoza. Espinoza denied any involvement in a
carjacking and blamed his cousin. As Pinon was
handcuffing Espinoza, Espinoza remarked, “Okay,
okay, I'll tell you the truth.” Espinoza confessed
he had stolen the car, described specific details
about the crime, and claimed the gun he had pointed
at Gil was a fake. No gun, real or fake, was recovered.

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Espinoza was charged in count 1 with carjacking (§ 215,
subd. (a)); count 2, assault with a semiautomatic
firearm (§ 245, subd. (b)); count 3, making criminal
threats (§ 422); and count 4, felon in possession of a
firearm (§ 12021, subd. (a)(1)). It was further alleged
as to all counts that Espinoza had suffered a prior
strike conviction. As to counts 1 through 3, firearm
and prior serious felony enhancements were alleged.

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Espinoza presented an alibi defense at trial, claiming
that he had been with his brother and girlfriend at the
time of the carjacking. Espinoza also claimed that he
confessed to the crime only because he could hear his
girlfriend crying and he was afraid Pinon would arrest
her.

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The jury convicted Espinoza of all counts and returned
true findings on the firearm enhancements. Espinoza
waived a jury trial on the prior conviction allegation
and the trial court found it to be true as to all
counts.

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Espinoza moved for a new trial on the grounds of juror
misconduct. The motion was denied. On July 25, 2008,
Espinoza was sentenced to a term of 25 years in state
prison.

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(Doc. 14-1, 4-6.)
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V.

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Title 28 U.S.C. § 2254 provides in pertinent part:

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(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings unless
the adjudication of the claim–

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Standard of Decision and Scope of Review

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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.

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Clearly established federal law refers to the holdings, as
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opposed to the dicta, of the decisions of the Supreme Court as of
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the time of the relevant state court decision.

Cullen v.

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Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v.
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Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S.
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362, 412 (2000).

It is thus the governing legal principle or

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principles set forth by the Supreme Court at the pertinent time.
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Lockyer v. Andrade, 538 U.S. 71-72.
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A state court’s decision contravenes clearly established
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Supreme Court precedent if it reaches a legal conclusion opposite
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to, or substantially different from, the Supreme Court's or
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concludes differently on a materially indistinguishable set of
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facts.

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

The state court

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need not have cited Supreme Court precedent or have been aware of
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it, "so long as neither the reasoning nor the result of the
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state-court decision contradicts [it]."

Early v. Packer, 537

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U.S. 3, 8 (2002).

A state court unreasonably applies clearly

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established federal law if it either 1) correctly identifies the

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governing rule but applies it to a new set of facts in an

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objectively unreasonable manner, or 2) extends or fails to extend

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a clearly established legal principle to a new context in an

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objectively unreasonable manner.

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1132, 1142 (9th Cir. 2002); see, Williams, 529 U.S. at 407.

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application of clearly established federal law is unreasonable

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only if it is objectively unreasonable; an incorrect or

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inaccurate application is not necessarily unreasonable.

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Hernandez v. Small, 282 F.3d
An

Williams, 529 U.S. at 410.
A state court’s determination that a claim lacks merit

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precludes federal habeas relief as long as fairminded jurists

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could disagree on the correctness of the state court’s decision.

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Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786 (2011).

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Even a strong case for relief does not render the state court’s

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conclusions unreasonable.

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a state prisoner must show that the state court’s ruling on a

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claim was “so lacking in justification that there was an error

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well understood and comprehended in existing law beyond any

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possibility for fairminded disagreement.”

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§ 2254(d) standards are “highly deferential standard[s] for

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evaluating state-court rulings” which require that state court

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decisions be given the benefit of the doubt, and that Petitioner

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bear the burden of proof.

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1398.

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ground supporting the state court decision is examined and found

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to be unreasonable under the AEDPA.

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132 S.Ct. 1195, 1199 (2012).

Id.

To obtain federal habeas relief,

Id. at 786-87.

The

Cullen v. Pinholster, 131 S. Ct. at

Further, habeas relief is not appropriate unless each

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Wetzel v. Lambert, -–U.S.--,

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In assessing under section 2254(d)(1) whether the state

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court’s legal conclusion was contrary to or an unreasonable

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application of federal law, “review... is limited to the record

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that was before the state court that adjudicated the

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claim on the merits.”

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Evidence introduced in federal court has no bearing on review

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pursuant to § 2254(d)(1).

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§ 2254(e)(1) provides that in a habeas proceeding brought by a

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person in custody pursuant to a judgment of a state court, a

Cullen v. Pinholster, 131 S. Ct. at 1398.

Id. at 1400.

Further, 28 U.S.C.

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determination of a factual issue made by a state court shall be

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presumed to be correct.

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producing clear and convincing evidence to rebut the presumption

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of correctness.

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factual determination will not be overturned on factual grounds

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unless it was objectively unreasonable in light of the evidence

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presented in the state proceedings.

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U.S. 322, 340 (2003).

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The petitioner has the burden of

A state court decision on the merits based on a

Miller-El v. Cockrell, 537

The last reasoned decision must be identified in order to

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analyze the state court decision pursuant to 28 U.S.C.

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§ 2254(d)(1).

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Cir. 2005); Bailey v. Rae, 339 F.3d 1107, 1112-13 (9th Cir.

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2003).

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in which the state court adjudicated Petitioner’s claims on the

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merits.

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rejecting a federal claim, later unexplained orders upholding

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that judgment or rejecting the same claim are presumed to rest

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upon the same ground.

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(1991).

Barker v. Fleming, 423 F.3d 1085, 1092 n.3 (9th

Here, the CCA’s decision was the last reasoned decision

Where there has been one reasoned state judgment

Ylst v. Nunnemaker, 501 U.S. 797, 803

This Court will thus “look through” the unexplained
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decision of the California Supreme Court to the DCA’s last

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reasoned decision as the relevant state-court determination.

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at 803-04; Taylor v. Maddox, 366 F.3d 992, 998 n.5 (9th Cir.

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2004).

Id.

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VI.

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Petitioner argues that the evidence that Petitioner was the

Suggestive Identification

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perpetrator of the crimes was insufficient because a field

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identification of Petitioner by the victim was so impermissibly

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suggestive that it violated Petitioner’s right to due process of

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law guaranteed by the Fourteenth Amendment.
A.

The State Court Decision

The DCA's decision regarding Petitioner’s claim concerning

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the field identification and a related claim concerning trial

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counsel’s alleged ineffective assistance for failing to object to

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evidence of the identification is as follows:

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DISCUSSION
Espinoza contends that the pretrial identification
procedures used were procedurally flawed and therefore
the in-court identification also was flawed. Espinoza
further argues his convictions for assault with a
semiautomatic weapon and being a felon in possession of
a firearm must be reversed because the evidence failed
to establish that he had a semiautomatic or any real,
as opposed to a fake, weapon. He further contends that
his criminal threat conviction must be reversed for
insufficient evidence in that there was no “imminent
prospect of execution” because he told the victim to
run or else be killed, and the victim chose to run.

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I. Challenge to Identification Procedures
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Gil first identified Espinoza as the perpetrator when
officers brought Gil to the CHP office for a field
lineup. Officers had told Gil that his car had been
found and the officers wanted Gil to identify the
person found driving his car. As soon as the officer
drove into the CHP parking lot, with Gil riding in the
back seat, Gil pointed at Espinoza and said, “That's
him.” Gil identified Espinoza before the officer had an
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opportunity to direct Gil's attention to Espinoza. Gil
later identified Espinoza in court as his assailant.

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Espinoza maintains that the field lineup procedure was
unreliable and impermissibly suggestive. He also
contends the circumstances under which Gil identified
him were so suggestive as to taint the in-court
identification. At no time, however, did Espinoza ever
challenge the identification procedures in the trial
court. When a defendant fails to object to
identification procedures in the trial court, he or she
is barred from raising the issue on appeal. (People v.
Cunningham (2001) 25 Cal.4th 926, 989.) Having failed
to challenge the identification procedures in the trial
court, Espinoza is barred from challenging them on
appeal. (Ibid.)

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Anticipating a future claim by Espinoza that his
counsel was ineffective, we conclude any error in
failing to raise the issue was harmless beyond a
reasonable doubt. (Chapman v. California (1967) 386
U.S. 18, 24.) Espinoza was driving the stolen car and
confessed to the crime. His confession corroborated
several details of the crime when questioned by
officers, including the route driven, and the
expression on Gil's face when confronted with a gun.
Thus, any failure by Espinoza's counsel did not
prejudice him.

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(Doc. 14-1, 6-7.)
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B.

Analysis

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Respondent argues that the CCA’s determination that
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Petitioner’s failure to object to the identification barred him
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from challenging it constitutes an adequate and independent state
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procedural ground that forecloses this Court’s review of the
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decision.
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The doctrine of procedural default is a specific application
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of the more general doctrine of independent state grounds.

It

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provides that when a prisoner has defaulted a claim by violating
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a state procedural rule which would constitute adequate and
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independent grounds to bar direct review in the United States
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Supreme Court, the prisoner may not raise the claim in federal
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habeas absent a showing of cause and prejudice or that a failure

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to consider the claim will result in a fundamental miscarriage of

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justice.

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Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003).

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applies regardless of whether the default occurred at trial, on

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appeal, or on state collateral review.

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U.S. 446, 451 (2000).

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Coleman v. Thompson, 501 U.S. 722, 729-30 (1991);
This rule

Edwards v. Carpenter, 529

Because state procedural default is an affirmative defense,
the state has the obligation to plead the defense or lose the

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right to assert the defense thereafter.

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F.3d at 585.

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persuasion as to the adequacy and independence of the pertinent

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rule.

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the existence of an independent and adequate state procedural

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ground as an affirmative defense, the burden to place the defense

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in issue shifts to the petitioner.

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may satisfy the burden by asserting specific factual allegations

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that demonstrate the inadequacy of the state procedure, including

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citation to authority demonstrating inconsistent application of

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the rule.

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burden of proof of the defense is on the state.

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Bennett v. Mueller, 322

Further, the state bears the ultimate burden of

Id. at 585-86.

Id.

However, once the state adequately pleads

Id. at 586.

The Petitioner

Once the petitioner has done so, the ultimate
Id. at 586.

For a state procedural rule to be independent, the state law

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basis for the decision must not be interwoven with federal law.

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Bennett v. Mueller, 322 F.3d at 581.

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interwoven if the state has made application of the procedural

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bar depend on an antecedent ruling on federal law, such as the

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determination of whether federal constitutional error has been

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committed.

Id.

A state law ground is so

Independence is determined as of the date of the
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1

state court order that imposed the procedural bar.

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Kernan, 244 F.3d 702, 704 (9th Cir. 2001).

3

La Crosse v.

Here, the state court’s decision was based on People v.

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Cunningham, 25 Cal.4th 926, 989 (2001), which held that a

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contention that a photographic identification was suggestive was

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waived because the defendant failed to timely object to evidence

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of the identification at trial.

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relied on California Evidence Code § 353, which prohibited

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reversal of a judgment because of the erroneous admission of

Id.

The court in Cunningham

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evidence unless there was a timely objection, as well as on state

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cases that had applied § 353.

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of the state law requirement of a timely objection at the trial

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court level was not interwoven with federal law and was thus

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independent.

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Id.

The state court’s application

In the absence of exceptional circumstances, a procedural

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ground is “adequate” where it is firmly established and regularly

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followed.

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(2011).

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contemporaneous objection rule is adequate to support the

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judgment where a party has failed to make any objection to the

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admission of evidence.

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1125 (9th Cir. 2002) (citing Garrison v. McCarthy, 653 F.2d 374,

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377 (9th Cir. 1981), which held that the failure to object to a

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photographic identification during trial would bar review of a

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claim).

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different conclusion in the present case.

Walker v. Martin, –U.S.-, 131 S.Ct. 1120, 1127-28
The Ninth Circuit has long recognized that California’s

See, Melendez v. Pliler, 288 F.3d 1120,

There is nothing before this Court that would warrant a

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Mere negligence of counsel generally does not constitute

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cause sufficient to excuse procedural default; however, cause may
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be demonstrated by a showing that counsel’s failure rose to the

2

level of a constitutional violation under Strickland v.

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Washington, 466 U.S. 668 (1984).

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there is a reasonable probability that the outcome of the trial

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would have been different in the absence of counsel’s failings.

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See, Edwards v. Carpenter, 529 U.S. 446, 451 (2000).

This includes a showing that

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To demonstrate ineffective assistance of counsel in

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violation of the Sixth and Fourteenth Amendments, a convicted

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defendant must show that 1) counsel’s representation fell below

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an objective standard of reasonableness under prevailing

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professional norms in light of all the circumstances of the

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particular case; and 2) unless prejudice is presumed, it is

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reasonably probable that, but for counsel’s errors, the result of

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the proceeding would have been different.

15

Washington, 466 U.S. 668, 687-94 (1984); Lowry v. Lewis, 21 F.3d

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344, 346 (9th Cir. 1994).

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omissions of counsel that are alleged to have been deficient.

18

Strickland, 466 U.S. 690.

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applied on direct appeal and in a motion for a new trial.

20

Strickland, 466 U.S. 697-98.

21

Strickland v.

A petitioner must identify the acts or

This is the same standard that is

In determining whether counsel’s conduct was deficient, a

22

court should consider the overall performance of counsel from the

23

perspective of counsel at the time of the representation.

24

Strickland, 466 U.S. at 689.

25

counsel’s conduct was adequate and within the exercise of

26

reasonable professional judgment and the wide range of reasonable

27

professional assistance.

28

///

There is a strong presumption that

Strickland, 466 U.S. at 688-90.

14

1

In determining prejudice, a reasonable probability is a

2

probability sufficient to undermine confidence in the outcome of

3

the proceeding.

4

trial, the question is whether there is a reasonable probability

5

that, absent the errors, the fact finder would have had a

6

reasonable doubt respecting guilt.

7

This Court must consider the totality of the evidence before the

8

fact finder and determine whether the substandard representation

9

rendered the proceeding fundamentally unfair or its results

Strickland, 466 U.S. at 694. In the context of a

Strickland, 466 U.S. at 695.

10

unreliable.

11

address the deficiency and prejudice inquiries in any given order

12

and need not address both components if the petitioner makes an

13

insufficient showing on one.

14

Strickland, 466 U.S. at 687, 696.

A court need not

Strickland, 466 U.S. at 697.

Here, the evidence before the trier of fact included law

15

enforcement officers’ observations of Petitioner’s possession of

16

the car; Petitioner’s inconsistent statements to Deputy Pinon

17

concerning the license plate that did not match the VIN; Gil’s

18

testimony concerning the facts of the carjacking; and

19

Petitioner’s confession that he had stolen the car, which

20

included details of the offense, such as the route taken by

21

Petitioner and Gil as well as Gil’s extreme fright when

22

Petitioner pulled the gun and pointed it at Gil.

23

assuming counsel’s failure to object to the evidence of the

24

identification was objectively unreasonable, there is no showing

25

of the necessary resulting prejudice.

26

evidence of Petitioner’s guilt, it was not reasonably probable

27

that in the absence of counsel’s failings, the trier of fact

28

would have had a reasonable doubt as to Petitioner’s guilt.
15

(RT 57.)

Even

In light of the other

1
2

Thus, Petitioner has not established cause.
Likewise, Petitioner could not establish prejudice to

3

overcome the procedural default.

4

actual prejudice resulted from the inability to raise the issue.

5

Murray v. Carrier, 477 U.S. 478, 494 (1986).

6

showing that the errors worked to the petitioner’s “actual and

7

substantial disadvantage, infecting his entire trial with error

8

of constitutional dimensions.”

9

United States v. Frady, 456 U.S. 152, 170 (1982)); Leavitt v.

A petitioner must show that

This entails a

Murray, 477 U.S. at 494 (quoting

10

Arave, 383 F.3d 809, 830 (9th Cir. 2004); Correll v. Stewart, 137

11

F.3d 1404, 1415-16 (9th Cir. 1998).

12

As previously noted, the weight of the evidence of

13

Petitioner’s guilt precludes a conclusion that Petitioner

14

suffered actual prejudice or any actual and substantial

15

disadvantage.

16

Petitioner suffered any miscarriage of justice.

17

Likewise, there is no basis for a conclusion that

Accordingly, the Court concludes that procedural default

18

bars consideration of Petitioner’s due process claim concerning

19

allegedly suggestive identification evidence.

20

recommended that the Court decline to consider Petitioner’s due

21

process claim.

22

VII.

23

With respect to the state court’s decision that counsel’s

It will be

Ineffective Assistance of Counsel

24

failure to object to the identification evidence was not a

25

violation of Petitioner’s right to the effective assistance of

26

counsel guaranteed by the Sixth and Fourteenth Amendments, it

27

must be determined whether the decision was contrary to, or an

28

unreasonable application of, clearly established federal law.
16

1

In making this determination, this Court does not engage in

2

de novo review; instead, the Court will proceed pursuant to

3

§ 2254(d)(1).

4

presented by § 2254(d)(1) for prevailing on a claim of

5

ineffective assistance of counsel:

6
7
8
9
10
11

The Supreme Court has described the high bar

“To establish deficient performance, a person
challenging a conviction must show that ‘counsel's
representation fell below an objective standard of
reasonableness.’ [Strickland,] 466 U.S., at 688 [104
S.Ct. 2052]. A court considering a claim of ineffective
assistance must apply a ‘strong presumption’ that
counsel's representation was within the ‘wide range’ of
reasonable professional assistance. Id., at 689 [104
S.Ct. 2052]. The challenger's burden is to show ‘that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment.’ Id., at 687 [104 S.Ct. 2052].

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

“With respect to prejudice, a challenger must
demonstrate ‘a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.’ ...
“ ‘Surmounting Strickland's high bar is never an easy
task.’ Padilla v. Kentucky, 559 U.S. ----, ---- [130
S.Ct. 1473, 1485, 176 L.Ed.2d 284] (2010). An
ineffective-assistance claim can function as a way to
escape rules of waiver and forfeiture and raise issues
not presented at trial [or in pretrial proceedings],
and so the Strickland standard must be applied with
scrupulous care, lest ‘intrusive post-trial inquiry’
threaten the integrity of the very adversary process
the right to counsel is meant to serve. Strickland, 466
U.S., at 689-690 [104 S.Ct. 2052]. Even under de novo
review, the standard for judging counsel's
representation is a most deferential one. Unlike a
later reviewing court, the attorney observed the
relevant proceedings, knew of materials outside the
record, and interacted with the client, with opposing
counsel, and with the judge. It is ‘all too tempting’
to ‘second-guess counsel's assistance after conviction
or adverse sentence.’ Id., at 689 [104 S.Ct. 2052]; see
also Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843,
152 L.Ed.2d 914 (2002); Lockhart v. Fretwell, 506 U.S.
364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The
question is whether an attorney's representation
amounted to incompetence under ‘prevailing professional
norms,’ not whether it deviated from best practices or
most common custom. Strickland, 466 U.S., at 690, 104
S.Ct. 2052.
17

1
2
3
4
5
6
7
8
9

“Establishing that a state court's application of
Strickland was unreasonable under § 2254(d) is all the
more difficult. The standards created by Strickland and
§ 2254(d) are both ‘highly deferential,’ id., at 689
[104 S.Ct. 2052]; Lindh v. Murphy, 521 U.S. 320, 333,
n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when
the two apply in tandem, review is ‘doubly’ so,
Knowles, 556 U.S., at ----, 129 S.Ct., at 1420. The
Strickland standard is a general one, so the range of
reasonable applications is substantial. 556 U.S., at
---- [129 S.Ct., at 1420]. Federal habeas courts must
guard against the danger of equating unreasonableness
under Strickland with unreasonableness under § 2254(d).
When § 2254(d) applies, the question is not whether
counsel's actions were reasonable. The question is
whether there is any reasonable argument that counsel
satisfied Strickland's deferential standard.

10
Premo v. Moore, -U.S. -, 131 S.Ct. 733, 739-40 (2011) (quoting
11
Harrington v. Richter, –U.S.-, 131 S.Ct. 770 (2011)).
12
Here, the state court did not expressly cite to Strickland
13
or to federal standards in its decision on ineffective
14
assistance.

However, its decision was consistent with the

15
analysis customarily undertaken pursuant to Strickland.

The

16
state court reasonably concluded that even assuming counsel’s
17
failure to object to the identification evidence was objectively
18
unreasonable, Petitioner had not shown that in light of the
19
evidence against him, a different result was reasonably probable.
20
The state court’s decision was not “so lacking in justification
21
that there was an error well understood and comprehended in
22
existing law beyond any possibility for fairminded disagreement.”
23
Harrington v. Richter, 131 S.Ct. at 786–87.
24
Accordingly, it will be recommended that the Court deny
25
Petitioner’s claim that counsel’s failure to object to the
26
identification evidence violated his right to the effective
27
assistance of counsel.
28
18

1

VIII.

2

Petitioner challenges the sufficiency of the evidence to

3

Insufficiency of the Evidence

support his conviction of several substantive offenses.

4

A.

Assault with a Firearm

5

Petitioner contends that his conviction on count 2 for

6

assault with a firearm must be reversed because the evidence was

7

insufficient to establish the existence of a firearm.

8
9

1.

The State Court’s Decision

The CCA’s decision on Petitioner’s claim concerning the

10

insufficiency of the evidence to support his conviction of

11

assault with a firearm was the last reasoned decision from a

12

state court on the issue.

13

follows:

The state court’s decision is as

14

II. Evidence of Assault with a Semiautomatic Firearm

15

Espinoza claims the evidence was insufficient to
establish that he used a semiautomatic firearm. He also
contends the trial court did not instruct the jury on
the elements of a section 245, subdivision (b) offense.
He is correct.

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

Judicial Council of California Criminal Jury
Instructions (2007-2008) CALCRIM No. 875, revised June
2007, is the standard instruction used for instructing
a jury on section 245, subdivisions (a) and (b). That
instruction contains a definition of “firearm” and a
separate definition of “semiautomatic firearm.”
Depending upon the evidence and theory of the case,
different bracketed provisions of the instruction are
to be given.
We reject the People's contention that “semiautomatic
firearm” is a term of common meaning needing no definition.
(See People v. Griffin (2004) 33 Cal.4th 1015,
1022-1023.) Clearly, the term has a technical meaning
requiring definition, which is why CALCRIM No. 875
includes such a definition. (See In re Jorge M. (2000)
23 Cal.4th 866, 874-875, fn. 4.) The trial court,
however, failed to define “semiautomatic firearm” or
include the language necessary to instruct on the
offense of assault with a semiautomatic firearm.
Instead, the trial court defined “firearm” and
instructed only on the section 245, subdivision (a)
19

1

offense of assault with a firearm.

2

Furthermore, even if the jury had been instructed
properly on the section 245, subdivision (b) offense of
assault with a semiautomatic weapon, there was
insufficient evidence to support a conviction for this
offense.

3
4
5
6
7
8
9
10
11
12
13
14
15
16

In reviewing the sufficiency of the evidence, the
question is whether, after viewing the evidence in the
light most favorable to the judgment, any rational
trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. (Jackson v.
Virginia (1979) 443 U.S. 307, 319.) This court reviews
“the whole record in the light most favorable to the
judgment below to determine whether it discloses
substantial evidence-that is, evidence which is
reasonable, credible, and of solid value-such that a
reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.” (People v. Johnson
(1980) 26 Cal.3d 557, 578.)
In assessing a sufficiency of the evidence claim, we
presume in support of the judgment the existence of
every fact the trier reasonably could have deduced from
the evidence and draw all reasonable inferences in
support of the judgment. (People v. Rayford (1994) 9
Cal.4th 1, 23 (Rayford).) A judgment should not be
reversed on this ground unless it appears that under no
hypothesis is the evidence sufficient to support the
conviction. (People v. Sanchez (2003) 113 Cal.App.4th
325, 329 (Sanchez).)

17
18
19
20
21

Gil testified that during the carjacking Espinoza
pulled out a “chromed” gun and pointed it at him. When
Gil asked Espinoza to calm down, Espinoza responded by
moving his hand back on the gun and telling Gil to run
or else be killed. Under questioning from the
prosecutor, Gil demonstrated the motion. At the
prosecutor's request, the trial court noted for the
record that the motion demonstrated by Gil was
“ratcheting.”

22
23
24
25
26
27
28

The jury reasonably could have inferred from this
testimony that Espinoza used a weapon that required a
ratcheting motion to place a live round in the firing
chamber, as the People maintain. Nowhere in the record,
however, is there any testimony that established for
the jury that the hand motion described by Gil occurs
when a person chambers a live round in a semiautomatic
firearm, as opposed to cocking a firearm. The relevance
of the hand motion and the distinction between a
semiautomatic firearm and a firearm is a matter that
should have been the subject of testimony by someone
knowledgeable in firearms.
20

1
2
3

The evidence established that Espinoza used a firearm.
The evidence, however, did not establish that Espinoza
used a semiautomatic firearm. We note that the
prosecutor did not even argue to the jury that Espinoza
used a semiautomatic firearm. The prosecutor referred
to the offense as “assault with a firearm.”

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

As for Espinoza's contention that the conviction cannot
be sustained because the weapon was a fake, we
disagree. The jury was not required to credit
Espinoza's self-serving statement that the weapon used
in the carjacking was a fake gun. Furthermore, at the
time of the carjacking, Espinoza certainly acted as
though the firearm was a real working firearm, and the
jurors may have inferred from the circumstances and
Espinoza's own conduct that the weapon was a firearm
designed to be shot and capable of being fired. (People
v. Monjaras (2008) 164 Cal.App.4th 1432, 1436-1437
(Monjaras).)
There was no substantial evidence that Espinoza used a
semiautomatic firearm. (Sanchez, supra, 113 Cal.App.4th
at p. 329.) There was, however, substantial evidence
that Espinoza used a firearm within the meaning of
section 245, subdivision (a)(2), the offense addressed
in the jury instruction. The section 245, subdivision
(a)(2) offense is a lesser included offense of section
245, subdivision (b) because the greater offense cannot
be committed without also committing the lesser
offense. (People v. Birks (1998) 19 Cal.4th 108, 117;
People v. Miceli (2002) 104 Cal.App.4th 256, 271-272).
The jury was instructed on the section 245, subdivision
(a)(2) offense prior to returning its verdict.
Therefore, we will direct that the section 245,
subdivision (b) conviction be stricken and that the
judgment be modified to reflect a conviction for
assault with a firearm under section 245, subdivision
(a)(2). (§ 1181, subd. 6; People v. Bechler (1998) 61
Cal.App.4th 373, 378.)

21
(Doc. 14-1, 7-10.)
22
2.

Legal Standards

23
To determine whether a conviction violates the
24
constitutional guarantees of due process because of insufficient
25
evidence, a federal court ruling on a petition for writ of habeas
26
corpus must determine whether any rational trier of fact could
27
have found the essential elements of the crime beyond a
28
reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 20-21
21

1

(1979); Windham v. Merkle, 163 F.3d 1092, 1101 (9th Cir. 1998);

2

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

3

All evidence must be considered in the light most favorable

4

to the prosecution.

5

1008.

6

conflicting testimony, weigh evidence, and draw reasonable

7

inferences from the facts; thus, it must be assumed that the

8

trier resolved all conflicts in a manner that supports the

9

verdict.

Jackson v. Virginia, 443 U.S. at 319; Jones, 114 F.3d

10

at 1008.

The relevant inquiry is not whether the evidence

11

excludes every hypothesis except guilt, but rather whether the

12

jury could reasonably arrive at its verdict.

13

Mares, 940 F.2d 455, 458 (9th Cir. 1991).

14

evidence and the inferences reasonably drawn therefrom can be

15

sufficient to prove any fact and to sustain a conviction,

16

although mere suspicion or speculation does not rise to the level

17

of sufficient evidence.

18

820 (9th Cir. 1994); United States v. Stauffer, 922 F.2d 508, 514

19

(9th Cir. 1990); see, Jones v. Wood, 207 F.3d at 563.

20

Jackson, 443 U.S. at 319; Jones, 114 F.3d at

It is the trier of fact’s responsibility to resolve

United States v.

Circumstantial

United States v. Lennick, 18 F.3d 814,

The court must base its determination of the sufficiency of

21

the evidence from a review of the record.

22

Jackson standard must be applied with reference to the

23

substantive elements of the criminal offense as defined by state

24

law.

25

Jackson at 324.

The

Jackson, 443 U.S. at 324 n.16; Windham, 163 F.3d at 1101.
Further, under the AEDPA, federal courts must apply the

26

standards of Jackson with an additional layer of deference.

27

H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005).

28

thus asks whether the state court decision being reviewed
22

This Court

Juan

1

reflected an objectively unreasonable application of the Jackson

2

standards to the facts of the case.

3
4
5
6

3.

Id. at 1275.

Analysis

Here, the CCA expressly set forth the Jackson standard as
the applicable standard.
The state court also set forth the pertinent state law

7

definitions of the offenses.

8

court’s decision rested on state law, this Court accepts the

9

state court's interpretation of state law.

To the extent that the state

Langford v. Day, 110

10

F.3d 1380, 1389 (9th Cir. 1996).

11

this Court is bound by the California Supreme Court’s

12

interpretation of California law unless the interpretation is

13

determined to be clearly untenable and amounts to a subterfuge to

14

avoid federal review of a deprivation by the state of rights

15

guaranteed by the Constitution. See, Mullaney v. Wilbur, 421 U.S.

16

684, 691 n.11 (1975); Murtishaw v. Woodford, 255 F.3d 926, 964

17

(9th Cir. 2001).

18

clearly untenable interpretation of state law or any subterfuge

19

to avoid federal review.

20

In a habeas corpus proceeding,

Here, no party contends that there is any

Further, the state court applied the Jackson standard to the

21

facts, noting that the trier of fact could have concluded from

22

the Petitioner’s own behavior of affirmatively using the weapon

23

to threaten the victim that: 1) Petitioner used the weapon, which

24

was a firearm, and 2) the weapon was not a fake because

25

Petitioner acted as though the gun was a firearm that was not

26

only designed to be shot, but was capable of being fired.

27

state court thus applied the proper legal standard and reasonably

28

applied the Jackson standard to the facts.
23

The

1

Petitioner notes the insufficiency of the evidence to

2

support a conviction of assault with a semi-automatic firearm.

3

However, the state court acknowledged this insufficiency and

4

concluded that it was appropriate to modify the judgment to

5

reflect assault with a firearm in violation of Cal. Pen. Code

6 § 245(a) – a lesser included offense of § 245(b), assault with a
7 semi-automatic firearm.

Hence, Petitioner’s contention

8 concerning the insufficiency of the evidence to support a
9 conviction of violating § 245(b) is essentially moot.
10

In sum, the state court’s decision concerning Petitioner’s

11 claim of insufficiency of the evidence to support his conviction
12 of assault with a firearm in violation of Cal. Pen. Code § 245(a)
13 was not contrary to, or an unreasonable application of, clearly
14 established federal law within the meaning of 28 U.S.C. §
15 2254(d)(1).

Accordingly, it will be recommended that the

16 petition be denied with respect to this claim.
17
18

B.

Felon in Possession of a Firearm

Petitioner argues that the evidence is insufficient to

19 sustain his conviction of count 4, possession of a firearm by a
20 felon in violation of Cal. Pen. Code § 12021(a)(1) because the
21 evidence did not support an inference that he possessed an actual
22 firearm.

Petitioner challenges as insufficient the testimony of

23 the victim that Petitioner ordered him to exit the vehicle by
24 pulling out a gun.
25
26

1.

Further, he insists that the gun was fake.
The State Court Decision

The CCA’s decision in the direct appeal is the last reasoned

27 decision on Petitioner’s claim.

The decision of the CCA is as

28 follows:
24

1

III. Evidence of Felon in Possession of a Firearm

2

In a related argument, Espinoza contends the evidence
was insufficient to support the conviction for being a
felon in possession of a firearm. He argues the
evidence was insufficient because no gun was recovered,
the gun was fake, and Gil's limited testimony on the
characteristics of the gun was insufficient. He is
mistaken.

3
4
5
6
7
8
9

Although we concluded in Part II, ante, that the
evidence was insufficient to support a conviction for
assault with a semiautomatic weapon, we imposed a
conviction for the lesser included offense of assault
with a firearm because the evidence was sufficient to
establish that offense. Thus, we already have concluded
the evidence was sufficient to establish that Espinoza
used a firearm to assault Gil.

10
11
12
13
14

In order to sustain a conviction for being a felon in
possession of a firearm, it must be shown that the
defendant had a prior felony conviction, was in
possession of a firearm, and knew that he possessed a
firearm. (People v. Jeffers (1996) 41 Cal.App.4th 917,
922.) The prosecution also must prove the firearm was
designed to be shot and appeared capable of being
fired. (People v. Hamilton (1998) 61 Cal.App.4th 149,
153 (Hamilton).)

15
16
17
18
19

Here, Gil testified that Espinoza pulled out a chrome
gun and pointed it at him. Gil also testified that
Espinoza moved his hand over the gun in what was
determined to be a ratcheting motion. This evidence
established that Espinoza was in possession of a
firearm that was designed to be shot and appeared
capable of being fired. (Hamilton, supra, 61
Cal.App.4th at p. 153.) There is no dispute as to the
presence of the other elements of the offense.

20
21
22
23
24
25
26
27

That no gun was recovered is irrelevant. The testimony
of a single witness, in this case, Gil, is sufficient
to support a conviction. (Evid.Code, § 411; People v.
Young (2005) 34 Cal.4th 1149, 1181.)
Additionally, as noted in Part II, ante, Espinoza's
claim that the gun was a fake does not warrant
reversal. The jury was not required to credit this
self-serving comment and an appellate court does not
reweigh the evidence. (People v. Ferraez (2003) 112
Cal.App.4th 925, 931.) The jurors were permitted to
infer from the circumstances and Espinoza's own conduct
that the weapon was a firearm designed to be shot and
capable of being fired. (Monjaras, supra, 164
Cal.App.4th at pp. 1436-1437.)

28
(Doc. 14-1, 10-11.)
25

1
2

2.

Analysis

To the extent that the CCA relied on state law in its

3 decision, this Court is bound by the state court’s
4 interpretation.

The state court identified not only the state

5 law requirements for proof of the offense, but also the elements
6 in issue, namely, that defendant was in possession of a firearm
7 that was designed to be shot and appeared capable of being fired.
8

The state court reasonably applied the Jackson standard to

9 the evidence, concluding that Gil’s testimony that Petitioner
10 pulled out a chrome gun, pointed it at Gil, and moved his hand
11 over it established that Petitioner was in possession of a
12 firearm designed to be shot and fired.

Further, as previously

13 noted, the state court reasonably determined that the evidence
14 was sufficient to establish that Petitioner used a firearm to
15 assault Gil.

As the state court noted, the trier was entitled to

16 draw a reasonable inference that the gun was not a fake.

The

17 state court’s reasoning was consistent with the Jackson standard,
18 which recognizes that it is the trier of fact’s responsibility to
19 resolve conflicting testimony, weigh evidence, and draw
20 reasonable inferences from the facts, and thus that it must be
21 assumed that the trier resolved all conflicts in a manner that
22 supports the verdict.
23

Jackson v. Virginia, 443 U.S. at 319, 326.

The state court relied on Cal. Evid. Code § 411 and a state

24 case in concluding that the absence of a gun in evidence was
25 irrelevant and that the victim’s testimony was alone sufficient
26 to establish the necessary elements.

This Court is bound by the

27 state court’s interpretation of state law.
28 ///
26

1

In sum, the Court concludes that the state court’s decision

2 that the evidence was sufficient to support Petitioner’s
3 conviction of being a felon in possession of a firearm was not
4 contrary to, or an unreasonable application of, clearly
5 established federal law within the meaning of 28 U.S.C.
6 § 2254(d)(1).

Accordingly, it will be recommended that the

7 petition be denied with respect to this claim.
8
9

C.

Criminal Threats

Petitioner argues that the evidence is insufficient to

10 support his conviction of making criminal threats in violation of
11 Cal. Pen. Code § 422 because his threat was conditional and not
12 contingent on an act highly likely to occur.
13
14

1.

The State Court Decision

The decision of the CCA was the last reasoned decision on

15 Petitioner’s claim.

The decision of the CCA is as follows:

16

IV. Evidence of Criminal Threats

17

The elements of a violation of section 422 are (1) the
defendant willfully threatened to commit a crime that
would result in death or great bodily injury; (2) the
threat was made with the intent that it be taken
seriously; (3) under the circumstances in which the
threat was made, it conveyed a gravity of purpose and
an immediate prospect of execution of the threat; (4)
the person threatened was in sustained fear for his
safety; and (5) the threatened person's fear was
reasonable under the circumstances. (People v. Toledo
(2001) 26 Cal.4th 221, 227-228.)

18
19
20
21
22
23
24
25

Espinoza contends the evidence was insufficient to
support his conviction for making a criminal threat
because his statement to Gil to run or he would be shot
did not convey an imminent prospect of execution in
that Gil chose to exercise his option to run. We
disagree.

26
27

Frankly, we can think of no more perfect example of
this offense than what occurred here.

28

Espinoza drove Gil to the outskirts of town, pulled out
a gun, and pointed the gun at Gil. Espinoza then told
27

1
2
3
4
5
6
7
8
9
10
11
12

Gil to run or else be killed. Immediately after making
this comment, Espinoza then made a hand motion with the
gun, as though chambering a bullet and preparing to
fire. Gil was afraid of being killed and he got out of
the car as Espinoza drove away.
The California Supreme Court concluded over 10 years
ago that the use of conditional language to threaten a
victim does not shield a defendant from liability under
section 422. (People v. Bolin (1998) 18 Cal.4th 297,
338 (Bolin).) A conditional threat “‘may convey to the
victim a gravity of purpose and immediate prospect of
execution.’ [Citation.]” (Id. at p. 340.)
The jury was instructed on all the elements of the
section 422 offense. We presume in support of the
judgment the existence of every fact the trier
reasonably could have deduced from the evidence and
draw all reasonable inferences in support of the
judgment. (Rayford, supra, 9 Cal.4th at p. 23.) Here,
Gil's testimony provided sufficient evidence for the
jury to have determined that all elements of section
422 were met. Therefore, reversal is not warranted.
(Sanchez, supra, 113 Cal.App.4th at p. 329.)

13
(Doc. 14-1, 11-12.)
14
2.

Analysis

15
As previously noted, the state court identified and applied
16
the Jackson standard, under which it must be assumed that the
17
trier of fact drew all reasonable inferences and resolved all
18
conflicts in a manner that supported the verdict.

Jackson, 443

19
U.S. at 326.

The state court reviewed the pertinent evidence,

20
including that Petitioner drove Gil to the outskirts of town,
21
pulled out a gun, pointed the gun at Gil, instructed Gil to get
22
out of the car, and told Gil to run or be killed.

The record

23
reflected that Gil was afraid Petitioner would kill him, so he
24
ran and called the police.
25
A reasonable trier of fact could have concluded from this
26
evidence that Petitioner made a threat under circumstances that
27
the threat conveyed a gravity of purpose and an immediate
28
prospect of execution.

A rational trier could have concluded
28

1 that Petitioner's words expressed his intention to kill Gil if he
2 did not immediately exit the vehicle and flee.

A rational trier

3 could have further concluded that pointing the gun and making a
4 hand motion with the gun consistent with preparations to fire,
5 supported the conclusion that Petitioner expressed a gravity of
6 purpose and an immediate prospect of execution of the threat.
7

To the extent Petitioner argues that the conditional nature

8 of the threat precluded the conviction, this Court is bound by
9 the state court’s interpretation of state law that use of
10 conditional language to threaten a victim does not shield a
11 defendant from liability under § 422.
12

Petitioner argues that the state court’s decision was

13 inconsistent with the California Supreme Court’s later decision
14 in In re George T., 33 Cal.4th 620 (2004), which involved a high
15 school student’s poem that he gave to several fellow students to
16 read.

In the poem entitled “Dark Poetry,” the student stated,

17 inter alia, that he was evil and could be the next kid to bring
18 guns to kill students at school, and he warned parents to watch
19 their children.

Id. at 625.

The court in In re George T.

20 cautioned that the version of Cal. Pen. Code § 422 then in effect
21 required that the threat on its face, and under the circumstances
22 in which it was made, be so unequivocal, unconditional,
23 immediate, and specific as to convey to the person threatened a
24 gravity of purpose and an immediate prospect of execution of the
25 threat.

Id. at 630.

Because a First Amendment defense was

26 raised by the defendant in that case, the court engaged in an
27 independent review of the record and rejected the prosecution’s
28 invitation to apply the customary sufficiency of the evidence
29

1 standard.

Id. at 632-34.

The court reviewed the poem,

2 concluding that it expressed the writer’s feelings in which the
3 disturbing language was set forth in an introspective context
4 reflecting a mere potential of action that was devoid of any
5 actual threat of action.
6

Id. at 635-36.

Here, as Petitioner has not raised a First Amendment

7 defense, his case is governed by the Jackson standard.

Further,

8 Petitioner’s disturbing statements were not made in literary
9 form.

They were instead made to the victim’s face in an effort

10 to deprive the victim of his vehicle and were accompanied by
11 Petitioner’s aiming a gun at the victim.
12

In sum, the state court decision was not contrary to, or an

13 unreasonable application of, the Jackson standard.

It will be

14 recommended that with respect to his claim concerning criminal
15 threats, the petition be denied.
16
17

D.

Enhancement for Personal Use of a Firearm

Petitioner argues that modification of charges to permit the

18 trier to find an enhancement for personal use of a firearm
19 pursuant to Cal. Pen. Code § 12022.5(b) was an unauthorized act
20 because the initial charge was a violation of § 12022.5(a).
21 further contends that the enhancement was not supported by
22 sufficient evidence and should be stricken in its entirety.
23

1.

24

V. Firearm Enhancement

25

Espinoza contends the firearm enhancement appended to
count 2, the assault with a semiautomatic firearm
conviction, must be reversed because the use of a
firearm is an element of the offense. Additionally,
Espinoza again argues the evidence was insufficient to
support a finding that he used a firearm during the
carjacking. Finally, Espinoza challenges the
enhancement because the information alleged a section

26
27
28

The State Court Decision

30

He

1
2
3
4
5

12022.5, subdivision (a) enhancement and the verdict
form references a section 12022.5, subdivision (b) true
finding.
We previously addressed, and rejected, Espinoza's
argument that he did not use a firearm, or used only a
fake firearm. We therefore reject without further
discussion Espinoza's contention that the evidence was
insufficient to support a true finding that he used a
firearm.

6
7
8
9
10
11
12
13
14
15

We next address the contention that the true finding
that Espinoza used a firearm within the meaning of
section 12022.5, subdivision (b) must be stricken
because the information alleged use within the meaning
of subdivision (a) of that code section. The
distinction between subdivisions (a) and (b) of section
12022.5 is that subdivision (a) references use of a
firearm and subdivision (b) addresses use of an assault
weapon or machine gun. There is no evidence whatsoever
that Espinoza used an assault weapon or machine gun.
The error in the verdict form in referencing
subdivision (b) instead of subdivision (a) of section
12022.5 as stated in the information clearly was
typographical. The prosecution never asserted that
Espinoza had used a machine gun or assault weapon. The
jury's intent was clear-to find true that Espinoza used
a firearm. Technical defects can be corrected. (See
Bolin, supra, 18 Cal.4th at p. 331.)

16
17
18
19

Regardless of whether the reference to subdivision (b)
of section 12022.5 is viewed as a technical defect,
this court has the power to modify the finding to
conform to the evidence. (§ 1181, subd. 6.) Therefore,
we will direct that the verdict and the abstract of
judgment be modified to reflect a true finding under
section 12022.5, subdivision (a).

20
21
22

We also reject Espinoza's contention that the section
12022.5 enhancement must be stricken because use of a
firearm is an element of the offense of assault with a
firearm. Section 12022.5, subdivision (d) states in
relevant part:

23
24
25
26
27
28

“Notwithstanding the limitation in
subdivision (a) relating to being an element
of the offense, the additional term provided
by this section shall be imposed for any
violation of Section 245 if a firearm is
used....”
The California Supreme Court held in People v. Ledesma
(1997) 16 Cal.4th 90, 97, that “[section 12022.5]
subdivision (d) creates an exception to the proviso in
subdivision (a) and renders imposition of a use
31

1

3

enhancement mandatory for the enumerated offenses.”
Accordingly, imposition of the section 12022.5,
subdivision (a) enhancement appended to the section
245, subdivision (a)(2) offense of assault with a
firearm is mandatory.

4

DISPOSITION

2

5
6
7
8

The count 2 verdict is modified to reflect a conviction
pursuant to section 245, subdivision (a)(2). The
firearm enhancement appended to count 2 is modified to
reflect a true finding under section 12022.5,
subdivision (a). The matter is remanded for
resentencing in accordance with the modifications. In
all other respects the judgment is affirmed.

9 (Doc. 14-1, 12-14.)
10
11

2.

Analysis

Insofar as Petitioner challenges the authority of the state

12 court to modify the enhancement from § 12022.5(b) (as reflected
13 in the verdict form) to § 12022.5(a) (as reflected in the
14 information and the evidence), Petitioner is not entitled to
15 relief in this proceeding because the state court’s modification
16 of the verdict was undertaken pursuant to the state court’s
17 interpretation and application of state law.

The state court

18 proceeded pursuant to Cal. Pen. Code § 1181(6) and the ability to
19 correct technical defects pursuant to People v. Bolin, 18 Cal.4th
20 297, 330-31 (1998), which in turn relied on state law provisions.
21 This Court is bound by the state court’s decision on these state
22 law matters.
23

Likewise, the state court’s decision rejecting Petitioner’s

24 contention that the § 12022.5 enhancement must be stricken
25 because use of a firearm is an element of the offense of assault
26 with a firearm, was based on the provisions of § 12022.5(d), a
27 state statute, and People v. Ledesma, 16 Cal.4th 90, 97 (1997), a
28 decision that was premised entirely on state law.
32

This Court is

1 bound by the state court’s decision.
2

Finally, regarding Petitioner's contention that the

3 enhancement pursuant to § 12022.5(a) was not supported by
4 sufficient evidence, the state court simply reiterated its
5 previous conclusion that the evidence was sufficient to support a
6 finding that Petitioner used a firearm that was not fake.

As

7 previously noted, the state court reasonably applied clearly
8 established federal law in arriving at those conclusions.
9

Accordingly, it will be recommended that Petitioner’s claim

10 concerning the § 12022.5 enhancement be denied.
11

IX.

12

Petitioner raises what appear to be new claims for the first

New Claims Raised in the Traverse

13 time in the traverse.

Petitioner contends that his confession to

14 Detective Pinon was coerced because Pinon told him that because
15 Petitioner’s wife or girlfriend was driving when the car was
16 apprehended, Pinon was going to arrest and imprison her for
17 driving a stolen car unless Petitioner confessed.
18 doc. 25, 8.)

(Traverse,

Further, his trial counsel’s failure to impeach

19 Pinon with this information constituted prejudicial, ineffective
20 assistance of counsel in violation of Petitioner’s Sixth and
21 Fourteenth Amendment rights.

(Id. at 9.)

Thus, the evidence is

22 insufficient because without Petitioner’s confession, the state
23 has no case.
24

(Id.)

Petitioner also appears to claim that the prosecutor engaged

25 in misconduct in commenting on Gil’s testimony by providing the
26 only testimony that Petitioner’s alleged hand motion over the gun
27 was a ratcheting of a weapon.

(Id. at 2.)

It is improper to

28 raise substantively new issues or claims in a traverse, and a
33

1 court may decline to consider such matters; to raise new issues,
2 a petitioner must obtain leave to file an amended petition or
3 additional statement of grounds.

Cacoperdo v. Demosthenes, 37

4 F.3d 504, 507 (9th Cir. 1994), cert. den., 514 U.S. 1026 (1995).
5

Here, review of Petitioner’s brief in the CCA and his

6 petition for review in the CSC reflect that Petitioner did not
7 present these claims to the state courts.

Petitioner has not

8 sought to amend his petition and has not justified the
9 significant delay in raising claims based on facts which
10 necessarily were within Petitioner’s knowledge during the state
11 court proceedings.

Thus, the Court should decline to consider

12 Petitioner’s new claims raised for the first time in the
13 traverse.
14

X.

15

Petitioner moves for an evidentiary hearing.

Motion for an Evidentiary Hearing
(Traverse,

16 doc. 25, 3.)
17

The decision to grant an evidentiary hearing is generally a

18 matter left to the sound discretion of the district courts.

28

19 U.S.C. § 2254; Habeas Rule 8(a); Schriro v. Landrigan, 550 U.S.
20 465, 473 (2007).

To obtain an evidentiary hearing in federal

21 court under the AEDPA, a petitioner must allege a colorable claim
22 by alleging disputed facts which, if proved, would entitle him to
23 relief.
24

Schriro v. Landrigan, 550 U.S. at 474.

The determination of entitlement to relief is, in turn,

25 limited by 28 U.S.C. § 2254(d)(1), which requires that to obtain
26 relief with respect to a claim adjudicated on the merits in state
27 court, the adjudication must result in a decision that was either
28 contrary to, or an unreasonable application of, clearly
34

1 established federal law.

Schriro v. Landrigan, 550 U.S. at 474.

2 Further, in analyzing a claim pursuant to § 2254(d)(1), a federal
3 court is limited to the record before the state court that
4 adjudicated the claim on the merits.

Cullen v. Pinholster, 131

5 S.Ct. 1388, 1398 (2011).
6

Thus, when a state court record precludes habeas relief

7 under the limitations set forth in § 2254(d), a district court is
8 not required to hold an evidentiary hearing.

Cullen v.

9 Pinholster, 131 S.Ct. 1388, 1399 (2011) (citing Schriro v.
10 Landrigan, 550 U.S. 465, 474 (2007)).

An evidentiary hearing may

11 be granted with respect to a claim adjudicated on the merits in
12 state court where the petitioner satisfies § 2254(d)(1), or where
13 § 2254(d)(1) does not apply, such as where the claim was not
14 adjudicated on the merits in state court.

Cullen v. Pinholster,

15 131 S.Ct. at 1398, 1400-01.
16

Here, on the basis of the record before this Court,

17 Petitioner has not shown that he is entitled to relief under
18 § 2254(d)(1).

Accordingly, it will be recommended that

19 Petitioner’s motion for an evidentiary hearing be denied.
20

XI.

21

Unless a circuit justice or judge issues a certificate of

Certificate of Appealability

22 appealability, an appeal may not be taken to the Court of Appeals
23 from the final order in a habeas proceeding in which the
24 detention complained of arises out of process issued by a state
25 court.

28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537

26 U.S. 322, 336 (2003).

A certificate of appealability may issue

27 only if the applicant makes a substantial showing of the denial
28 of a constitutional right.

§ 2253(c)(2).
35

Under this standard, a

1 petitioner must show that reasonable jurists could debate whether
2 the petition should have been resolved in a different manner or
3 that the issues presented were adequate to deserve encouragement
4 to proceed further.

Miller-El v. Cockrell, 537 U.S. at 336

5 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

A

6 certificate should issue if the Petitioner shows that jurists of
7 reason would find it debatable whether the petition states a
8 valid claim of the denial of a constitutional right and that
9 jurists of reason would find it debatable whether the district
10 court was correct in any procedural ruling.

Slack v. McDaniel,

11 529 U.S. 473, 483-84 (2000).
12

In determining this issue, a court conducts an overview of

13 the claims in the habeas petition, generally assesses their
14 merits, and determines whether the resolution was debatable among
15 jurists of reason or wrong.

Id.

It is necessary for an

16 applicant to show more than an absence of frivolity or the
17 existence of mere good faith; however, it is not necessary for an
18 applicant to show that the appeal will succeed.

Miller-El v.

19 Cockrell, 537 U.S. at 338.
20

A district court must issue or deny a certificate of

21 appealability when it enters a final order adverse to the
22 applicant.
23

Rule 11(a) of the Rules Governing Section 2254 Cases.

Here, it does not appear that reasonable jurists could

24 debate whether the petition should have been resolved in a
25 different manner.

Petitioner has not made a substantial showing

26 of the denial of a constitutional right.
27

Accordingly, it will be recommended that the Court decline

28 to issue a certificate of appealability.
36

1

XII.

2

In accordance with the foregoing analysis, it is RECOMMENDED

Recommendations

3 that:
4

1)

The petition for writ of habeas corpus be DENIED; and

5

2)

Petitioner’s request for an evidentiary hearing be

6 DENIED; and
7

3)

Judgment be ENTERED for Respondent; and

8

4)

The Court DECLINE to issue a certificate of

9 appealability.
10

These findings and recommendations are submitted to the

11 United States District Court Judge assigned to the case, pursuant
12 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of
13 the Local Rules of Practice for the United States District Court,
14 Eastern District of California.

Within thirty (30) days after

15 being served with a copy, any party may file written objections
16 with the Court and serve a copy on all parties.

Such a document

17 should be captioned “Objections to Magistrate Judge’s Findings
18 and Recommendations.”

Replies to the objections shall be served

19 and filed within fourteen (14) days (plus three (3) days if
20 served by mail) after service of the objections.

The Court will

21 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C.
22 § 636 (b)(1)(C).

The parties are advised that failure to file

23 objections within the specified time may waive the right to
24 appeal the District Court’s order.

Martinez v. Ylst, 951 F.2d

25 1153 (9th Cir. 1991).
26 IT IS SO ORDERED.
27 Dated:
ie14hj
28

September 24, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

37