Zamora v. Frauenheim

Filing 21

ORDER SUBSTITUTING Warden Scott Frauenheim as Respondent; FINDINGS and RECOMMENDATIONS to Dismiss and Deny the 1 Petition for Writ of Habeas Corpus, Deny Petitioner's Motion for an Evidentiary Hearing, Direct the Entry of Judgment for Respondent, and Decline to Issue a Certificate of Appealability, signed by Magistrate Judge Sheila K. Oberto on 5/19/15, referred to Judge O'Neill. Objections to F&R Due Within Thirty Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 RENE J. ZAMORA,

Case No. 1:12-cv-00943-LJO-SKO-HC

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ORDER SUBSTITUTING WARDEN SCOTT
FRAUENHEIM AS RESPONDENT

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Petitioner,
v.

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16 SCOTT FRAUENHEIM, Warden,
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Respondent.

FINDINGS AND RECOMMENDATIONS TO
DISMISS AND DENY THE PETITION FOR
WRIT OF HABEAS CORPUS (DOC. 1),
DENY PETITIONER’S MOTION FOR AN
EVIDENTIARY HEARING (DOC. 1),
DIRECT THE ENTRY OF JUDGMENT FOR
RESPONDENT, AND DECLINE TO ISSUE A
CERTIFICATE OF APPEALABILITY
OBJECTIONS DEADLINE:
THIRTY (30) DAYS

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Petitioner is a state prisoner proceeding pro se and in forma

21 pauperis with a petition for writ of habeas corpus pursuant to 28
22 U.S.C. § 2254.

The matter has been referred to the Magistrate Judge

23 pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304.
24 Pending before the Court is the petition, which was filed on June
25 11, 2012.

Respondent filed an answer on October 3, 2012, and

26 Petitioner filed a traverse on December 10, 2012.
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I.

Jurisdiction and Order Substituting Respondent

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Because the petition was filed after April 24, 1996, the
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1 effective date of the Antiterrorism and Effective Death Penalty Act
2 of 1996 (AEDPA), the AEDPA applies in this proceeding.

Lindh v.

3 Murphy, 521 U.S. 320, 327 (1997); Furman v. Wood, 190 F.3d 1002,
4 1004 (9th Cir. 1999).
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The challenged judgment was rendered by the Superior Court of

6 the State of California, County of Tulare (TCSC), located within the
7 jurisdiction of this Court.
8 (d).

28 U.S.C. §§ 84(b), 2254(a), 2241(a),

Petitioner claims that in the course of the proceedings

9 resulting in his conviction, he suffered violations of his
10 constitutional rights.

Accordingly, the Court concludes it has

11 subject matter jurisdiction over the action pursuant to 28 U.S.C.
12 §§ 2254(a) and 2241(c)(3), which authorize a district court to
13 entertain a petition for a writ of habeas corpus by a person in
14 custody pursuant to the judgment of a state court only on the ground
15 that the custody is in violation of the Constitution, laws, or
16 treaties of the United States.

Williams v. Taylor, 529 U.S. 362,

17 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. - , -, 131 S.Ct. 13, 16
18 (2010) (per curiam).
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An answer was filed on behalf of Respondent Martin Biter whohad

20 custody of Petitioner at Petitioner’s institution of confinement
21 when the petition and answer were filed.

(Docs. 1 & 16.)

22 Petitioner thus named as a respondent a person who had custody of
23 Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of
24 the Rules Governing Section 2254 Cases in the District Courts
25 (Habeas Rules).

See Stanley v. California Supreme Court, 21 F.3d

26 359, 360 (9th Cir. 1994).

The fact that Petitioner was transferred

27 to Pleasant Valley State Prison (PVSP) after the petition was filed
28 does not affect this Court’s jurisdiction.
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Jurisdiction attaches on

1 the initial filing for habeas corpus relief, and it is not destroyed
2 by a transfer of the petitioner and the accompanying custodial
3 change.

Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990) (citing

4 Smith v. Campbell, 450 F.2d 829, 834 (9th Cir. 1971)).
Accordingly, the Court concludes that it has jurisdiction over

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6 the person of the Respondent.

However, in view of the fact that the

7 warden at PVSP is Scott Frauenheim, it is ORDERED that Scott
8 Frauenheim, Warden of Pleasant Valley State Prison, be SUBSTITUTED
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9 as Respondent pursuant to Fed. R. Civ. P. 25.

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II.

Background

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In a habeas proceeding brought by a person in custody pursuant

12 to a judgment of a state court, a determination of a factual issue
13 made by a state court shall be presumed to be correct; the
14 petitioner has the burden of producing clear and convincing evidence
15 to rebut the presumption of correctness.

28 U.S.C. § 2254(e)(1);

16 Sanders v. Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004).

This

17 presumption applies to a statement of facts drawn from a state
18 appellate court’s decision.
19 (9th Cir. 2009).

Moses v. Payne, 555 F.3d 742, 746 n.1

The following procedural history and statement of

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Fed. R. Civ. P. 25(d) provides that when a public officer who is a party to a

22 civil action in an official capacity dies, resigns, or otherwise ceases to hold
office while the action is pending, the officer’s successor is automatically

23 substituted as a party. It further provides that the Court may order substitution
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at any time, but the absence of such an order does not affect the substitution.
The Court takes judicial notice of the identity of the warden from the
official website of the California Department of Corrections and Rehabilitation
(CDCR), http://www.cdcr.ca.gov. 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).

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1 facts is taken from the opinion of the Court of Appeal of the State
2 of California, Fifth Appellate District (CCA) affirming the judgment
3 on direct appeal, in People v. Zamora, case number F059292, filed on
4 March 25, 2011.
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In March 2008, Rene Zamora (Zamora), Angel Carrasco
(Carrasco) and Derek Romero (Romero) were active Surenos
gang members.FN1 Around midnight on March 12, they
participated in the fatal shooting of Vincent Chapa (the
victim). The victim was not gang-affiliated.

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FN1. Unless otherwise specified all dates refer
to 2008.

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An indictment was returned charging Zamora, Carrasco and
Romero with murder (count 1) and discharging a firearm
from a motor vehicle at a person (count 2). (Pen.Code, §§
187, subd. (a), 12034, subd. (c).) FN2 Special
circumstances of lying-in-wait murder, drive-by murder,
and street gang murder were alleged. (§ 190.2, subd.
(a)(15), (21)-(22).) Firearm discharge and street gang
allegations were attached to both counts. (§§ 12022.53,
subds.(d) & (e)(1), 186.22, subd. (b)(1)(C).)

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FN2. All further statutory references are to the
Penal Code unless otherwise indicated.

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In June 2009, Romero entered into a negotiated plea
agreement. It limited Romero's prison exposure to 27 years
in exchange for his guilty plea to lesser offenses and
truthful testimony at trial of his codefendants.
Zamora and Carrasco were jointly tried in November 2009.
The jury found them guilty on both counts and it found all
of the special allegations to be true.
Zamora and Carrasco were sentenced to life without the
possibility of parole, plus a consecutive term of 25 years
to life.
....
Zamora argues the trial court erroneously admitted
evidence that he attempted to escape from jail while
awaiting trial. Also, he contends the trial court failed
to instruct on some lesser included offenses to counts 1
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and 2. Finally, he argues the judgment must be reversed
because the verdict forms incorrectly referred to the
charging document as an information. None of these
arguments is persuasive. We will affirm.

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FACTS

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I. T.R.'s Testimony.

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T.R. testified that he and the victim lived on the north
side of Visalia. They spent the evening at the victim's
house playing video games. Around 11:00 p.m., they drove
to T.R.'s house and T.R. checked in with his mother. T.R.
snuck out of the house and the two of them started to walk
back to the victim's house.

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A van passed them, made a U-turn and came back towards
them. They ran into a field and hid by lying down in the
tall grass. The driver of the van parked and turned the
van's headlights off. About five minutes later, the driver
of the van started the vehicle and began to drive
northbound.
T.R. said to the victim, “Now is our chance. Let's make a
run for your house.” They began running towards the
victim's house. The victim was overweight and could not
run quickly. Although they started out together, the
victim soon lagged behind T.R.
The van sped up and headed towards them. T.R. was
approximately 15 feet ahead of the victim. T.R. turned
around and saw the van slow as it approached the victim.
The passenger side of the van was closest to the victim.
When the van was alongside the victim, T.R. heard the
sound of five gunshots. Then he saw the victim on the
ground. The van drove away.
T.R. did not see how many people were inside the van and
could not identify any of its occupants. T.R. did not see
who was firing the gun. He did not hear anyone in the van
say anything.
II. Romero's Testimony.
Romero testified that in 2008 he and Carrasco were members
of Vicky's Town (VST). Zamora belonged to a different
gang, but associated with VST members.
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Romero, Zamora and Carrasco attended a party on the
evening of March 11. Zamora brought a gun to the party. He
tucked it into the waistband of his pants.
Around 9:00 p.m., they decided to go “tagging.” They got
into a van. Zamora drove and Carrasco sat in the front
passenger seat. Romero sat in the rear passenger seat.
Zamora wore black leather gloves. He brought the gun with
him.
After tagging a few places, they decided to drive around
Visalia to “go catch somebody slipping.” This meant they
would “go find somebody walking around and see if we can
jump them.” They drove around for about two hours and did
not find anyone to jump. They were about to give up when
Carrasco spotted two people close to a grocery store.
Zamora drove into the parking lot and made a U-turn so
they could catch the two people. The two people ran
towards a field across the street and hid in some shrubs.
Zamora stopped the van and turned off its lights. They
waited for approximately 10 minutes. Eventually, they
decided to leave.
As Zamora started to drive away, two people ran out of the
bushes. They were both male. One, later identified as the
victim, was chubby; the other, later identified as T.R.,
was skinny. T.R. ran faster than the victim and soon was
in front of him. Romero was getting ready to jump out of
the van because he thought they were going to jump the two
men by “throw[ing] blows.” Romero saw a white truck coming
towards them so he tried to convince the others to leave.
He almost convinced Zamora, but Carrasco said, “No. Drive
up close to them.” Carrasco said something else to Zamora
that Romero did not hear. Then Zamora handed Carrasco the
gun. Carrasco placed it on his lap.
Zamora drove the van towards the victim, who was walking
now. Zamora slowed the van as it neared the victim.
Zamora, Carrasco and Romero all said “South Side. South
Side” to the victim because they thought “he was northern”
and they wanted to intimidate him. Carrasco asked the
victim where he was from. The victim did not respond so
Carrasco repeated the question. The victim “mumbled North
Side.” Carrasco said, “[F]uck that. This is South Side.”
Carrasco stuck his head and right arm out the front
passenger window and fired a shot at the victim. The shot
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missed the victim. Then Carrasco fired two or three shots
at the victim. Romero knew the victim was hit “because he
screamed.” Then Zamora “peeled out” and drove away.
Zamora and Romero shook Carrasco's hand and congratulated
him. They parked for a short time. Carrasco gave the gun
to Zamora. Zamora examined the gun to determine if there
was any ammunition left because “they wanted to do it
again.” Zamora was still wearing gloves. They were out of
ammunition so they decided to go back to Hanford.
On the way to Hanford, they noticed a patrol car following
behind them. Carrasco threw the gun, gloves, bandana and
spray paint can out the passenger window. Shortly
thereafter, the patrol car pulled the van over and they
were all arrested.
About five months after the murder, Romero decided to drop
out of the gang. He thought Zamora was planning to kill
him.
Romero admitted he wrote poems about gang murders prior to
the shooting. He intended to put the poems on his MySpace
page to intimidate rival gang members and increase
recognition of VST.

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The jury was instructed that if it found the charged
crimes were committed, then Romero was an accomplice.

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III. Other Testimonial and Physical Evidence.

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The victim was shot twice in the chest and died at the
scene. A lead slug was removed from the victim's body. A
criminalist determined it was consistent with a .38–
caliber bullet.

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A neighbor, F.G., testified he heard “burning of tires on
the street” and five gunshots. He looked outside and saw a
van speeding away and a person lying on the ground.
Another neighbor testified he/she heard at least five
gunshots.

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T.R. and F.G. were driven by police officers to the
location where Zamora's van was stopped. They identified
this van as the vehicle they saw.

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A can of spray paint, a pair of black leather gloves and a

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5–shot revolver with a blue bandana wrapped around the
handle (the revolver) were found near the area where the
van was traveling before it was pulled over. The revolver,
which was a Rossi Interarms brand .38–caliber special,
contained five spent cartridge casings of various brands.
Carrasco's fingerprints were lifted from the spray paint
can. Carrasco's fingerprints were lifted from the van's
exterior rear passenger sliding door. Romero's
fingerprints were lifted from the exterior hood on the
passenger side of the van.
Gunshot residue (GSR) was found on both of Carrasco's and
Romero's hands. GSR was not found on either of Zamora's
hands. GSR was found on the interior of the van.
Zamora's bedroom was searched. A small bag containing two
.38–caliber rounds was found inside a dresser drawer.
These bullets were capable of being fired by the revolver.
A photo of Zamora posted on his MySpace page depicted him
flashing a gang sign while holding a gun that had its
handle wrapped in a blue bandana.

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A gang expert testified VST is a fast-growing clique of
the Surenos gang. The Surenos' primary activities include
homicide and assault with a deadly weapon. In the gang
expert's opinion, Carrasco, Zamora and Romero were all
active Surenos members on March 12. Neither the victim nor
T.R. had any gang affiliations. Based on a hypothetical, a
gang expert opined the shooting was committed in
furtherance of and for the benefit of a criminal street
gang.

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IV. The Defense.

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Carrasco and Zamora both rested without calling any
witnesses.

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24 People v. Zamora, no. F059292, 2011 WL 1088548, at *1-*3 (Mar. 25,
25 2011).
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III.

Verdict and Accusatory Pleading

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Petitioner alleges that the verdict returned by the jury was

28 based on a nonexistent accusatory pleading and violated his right to
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1 due process and a fair trial protected by the Sixth and Fourteenth
2 Amendments as well as specified provisions of California’s
3 constitution.

He also contends that under state law, the verdict is

4 of no effect.

Petitioner bases this claim on the jury’s return of

5 verdicts referring to charges in an information, whereas Petitioner
6 was accused by way of a grand jury’s indictment.

Although

7 Petitioner concedes that the findings and verdicts actually returned
8 by the jury correspond exactly with the counts and enhancement
9 allegations in the indictment, he nevertheless contends that the
10 verdicts are void.

He contends that the protection against double

11 or former jeopardy provided by the Fifth Amendment shields him from
12 retrial on the charges because after jeopardy attached, the jury was
13 dismissed before reaching a verdict on the actual charges.

(Pet.,

14 doc. 1 at 3, 7-16, 69, 74.)
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A.

Standard of Decision and Scope of Review

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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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(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

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(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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28 opposed to the dicta, of the decisions of the Supreme Court as of
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1 the time of the relevant state court decision.

Cullen v.

2 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. 362,
412 (2000).
A state court’s decision contravenes clearly established

7 Supreme Court precedent if it reaches a legal conclusion opposite
8 to, or substantially different from, the Supreme Court's or
9 concludes differently on a materially indistinguishable set of
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facts.

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

A state court

unreasonably applies clearly established federal law if it either 1)
correctly identifies the governing rule but then applies it to a new

14 set of facts in an objectively unreasonable manner, or 2) extends or
15 fails to extend a clearly established legal principle to a new
16 context in an objectively unreasonable manner. Hernandez v. Small,
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282 F.3d 1132, 1142 (9th Cir. 2002); see, Williams, 529
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U.S. at 407. An application of clearly established federal law is
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21 inaccurate application is not necessarily unreasonable.
22 529 U.S. at 410.
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Williams,

A state court’s determination that a claim lacks

merit precludes federal habeas relief as long as fairminded jurists
could disagree on the correctness of the state court’s decision.
Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786 (2011).

Even

27 a strong case for relief does not render the state court’s
28 conclusions unreasonable.

Id.

To obtain federal habeas relief, a
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1 state prisoner must show that the state court’s ruling on a claim
2 was “so lacking in justification that there was an error well
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understood and comprehended in existing law beyond any possibility
for fairminded disagreement.”

Id. at 786-87.

The standards set by § 2254(d) are “highly deferential

7 standard[s] for evaluating state-court rulings” which require that
8 state court decisions be given the benefit of the doubt, and the
9 Petitioner bear the burden of proof.
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S.Ct. at 1398.

Cullen v. Pinholster, 131

Habeas relief is not appropriate unless each ground

supporting the state court decision is examined and found to be
unreasonable under the AEDPA.

Wetzel v. Lambert, -–U.S.--, 132

14 S.Ct. 1195, 1199 (2012).
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In assessing under section 2254(d)(1) whether the state court’s

16 legal conclusion was contrary to or an unreasonable application of
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federal law, “review... is limited to the record that was before the
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state court that adjudicated the claim on the merits.” Cullen v.
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20 Pinholster, 131 S.Ct. at 1398. Evidence introduced in federal court
21 has no bearing on review pursuant to § 2254(d)(1).

Id. at 1400.

22 Further, 28 U.S.C. § 2254(e)(1) provides that in a habeas proceeding
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brought by a person in custody pursuant to a judgment of a state
court, a determination of a factual issue made by a state court
shall be presumed to be correct; the petitioner has the burden of

27 producing clear and convincing evidence to rebut the presumption of
28 correctness.

A state court decision on the merits based on a
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1 factual determination will not be overturned on factual grounds
2 unless it was objectively unreasonable in light of the evidence
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presented in the state proceedings.

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

322, 340 (2003).
With respect to each claim raised by a petitioner, the last
reasoned decision must be identified to analyze the state court
decision pursuant to 28 U.S.C. § 2254(d)(1).

Barker v. Fleming, 423

F.3d 1085, 1092 n.3 (9th Cir. 2005); Bailey v. Rae, 339 F.3d 1107,
1112-13 (9th Cir. 2003).

The deferential standard of § 2254(d)

applies only to claims the state court resolved on the merits; de
novo review applies to claims that have not been adjudicated on the
merits.

Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir. 2004);

Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004).
Pursuant to § 2254(d)(2), a habeas petition may be granted only
if the state court’s conclusion was based on an unreasonable
determination of the facts in light of the evidence presented in the
state court proceeding.
(9th Cir. 2004).

Taylor v. Maddox, 366 F.3d 992, 999-1001

The court must find that the trial court’s factual

determination was such that a reasonable fact finder could not have
made the finding; that reasonable minds might disagree with the
determination or have a basis to question the finding is not
sufficient.
B.

Rice v. Collins, 546 U.S. 333, 340-42 (2006).
The State Court’s Decision

The California Supreme Court (CSC) denied Petitioner’s petition
for review of the decision of the CCA on direct appeal that affirmed
the judgment.

(Pet., doc. 1, 154.)

The decision of the CCA was

thus the last reasoned decision concerning Petitioner’s claim.
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The

1 CSC’s denial of review was not accompanied by a statement of
2 reasons.

Where there has been one reasoned state judgment rejecting

3 a federal claim, later unexplained orders upholding that judgment or
4 rejecting the same claim are presumed to rest upon the same ground.
5 Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).

Accordingly, the

6 Court will look through the decision of the CSC to the decision of
7 the CCA, which in pertinent part is as follows:
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III. Appellate Review of the Alleged Error in the Verdict
Forms was Forfeited.
A. Facts.
The accusatory pleading in this case is a true bill of
indictment returned by a Tulare County special grand jury.
It charged Zamora with first degree murder (count 1) and
shooting at an occupied vehicle (count 2).
In relevant part, the verdict form for count 1 read, “We,
the Jury, find the defendant Guilty as charged in Count 1
of the Information, of MURDER IN THE FIRST DEGREE, in
violation of Penal Code section 187(a), VICTIM VINCENT
CHAPA.” In relevant part, the verdict for count 2 read,
“We, the Jury, find the defendant, Guilty as charged in
Count 2 of the Information, of SHOOTING FROM A MOTOR
VEHICLE, in violation of Penal Code section 12034(c),
victim being VINCENT CHAPA.”
During the instructional conference, no one objected to
the phrasing of the verdict forms. No one alerted the
trial court to the erroneous reference in these verdict
forms to an information as the charging document before
the jury was discharged.
After conclusion of evidence, the trial court instructed
the jury that Zamora was “charged in Count 1 with murder.”
It instructed the jury on the elements of first degree
murder, second degree murder and manslaughter. Then the
court told the jury that it would “be given verdict forms
for guilty and not guilty of first degree murder, second
degree murder and voluntary manslaughter.” The jury was
further instructed, “In Count 2, the defendant is charged
with shooting from a motor vehicle at another person in
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violation of Penal Code Section 12034.” Then it instructed
on the elements of this crime.
B. Failure to object to the wording of the verdict forms
forfeited appellate review of the erroneous references to
an indictment.
Zamora argues the verdicts are void “because they are
verdicts for charges and allegations in a nonexistent
accusatory pleading,” and since he was “found guilty and
sentenced based on charges in a nonexistent information,”
he was denied his right to due process of law and to a
jury trial under the state and federal constitutions and
unspecified California statutes. Respondent contends
Zamora forfeited appellate consideration of this point
because he did not object on this ground below. We agree
with respondent.
An objection to jury verdict forms is generally deemed
waived if not raised in the trial court. [Citations.]”
(People v. Toro (1989) 47 Cal.3d 966, 976, fn. 6.) Failure
to interpose a timely objection to an alleged defect in
the verdict “precludes consideration of appellate
challenge thereto. [Citations.]” (People v. Lewis (1983)
147 Cal.App.3d 1135, 1142.) When there is an unmistakable
intent to convict, a defect in the form of the verdict is
disregarded as immaterial absent objection by the
defendant in the trial court. (People v. Radil (1977) 76
Cal.App.3d 702, 710.)

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In People v. Webster (1991) 54 Cal.3d 411 (Webster), the
defendant argued the verdicts finding him guilty of murder
were “were neither general nor special, and were thus
unauthorized.” (Id. at p. 446.) Our Supreme Court found
“the point was waived by defendant's persistent failure to
object or seek corrective measures below. We reject it for
that reason alone.” (Ibid.) Then it explained, “[i]n any
event, technical defects in a verdict may be disregarded
if the jury's intent to convict of a specified offense
within the charges is unmistakably clear, and the
accused's substantial rights suffered no prejudice.
[Citations.]” (Id. at p. 447.) It cited section 1404 which
provides, “Neither a departure from the form or mode
prescribed by this code in respect to any pleading or
proceeding, nor an error or mistake therein, renders it
invalid, unless it has actually prejudiced the defendant,
or tended to his prejudice, in respect to a substantial
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right.” The high court reasoned the jury's intent to
convict the defendant of first degree murder was
conclusively shown. The defendant's substantial rights
were not affected by the alleged defect in the verdicts
and he did not suffer any cognizable prejudice. “[A]n
undifferentiated verdict would not have changed the
appellate outcome.” (Webster, supra, at p. 447.)
Following and applying Webster, we likewise conclude
Zamora's challenge to the erroneous reference to an
information as the charging document in the verdict forms
was forfeited by the absence of objection below. If Zamora
had objected to this error either when the verdict forms
were discussed during the instructional conference or when
the verdicts were read out loud in open court, the trial
court easily could have corrected the error. Zamora's
attempt to characterize this defect in the verdicts as
judicial error is unconvincing. This was merely a clerical
error in naming the type of accusatory pleading. The
mistake is not transformed into judicial error simply
because the court discharged the jury. By failing to
object at any time below, Zamora forfeited appellate
consideration of the defect. (Webster, supra, 54 Cal.3d at
pp. 446–447.)

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

In any event, Zamora's due process rights were not
affected by the error in the verdict forms. Zamora was
provided with legally adequate notice of the charges
against him and given a full and fair opportunity to
defend against those charges. The jury was correctly
instructed on the charges contained in the indictment and
his guilt or innocence on those charges was determined by
the jury. The offenses and enhancements decided by the
jury in its verdicts were identical to the charges and
enhancements contained in the indictment. None of Zamora's
substantial rights were affected by the misidentification
of the charging document as an information instead of an
indictment. The jury's intent to convict Zamora of first
degree murder and shooting from a motor vehicle was
unmistakably clear. The verdicts express with reasonable
certainty findings that are fully supported by the
evidence. The error did not prejudice Zamora in any way.
Therefore, the technical defect in the verdicts may be
disregarded and the judgment upheld. (Webster, supra, 54
Cal.3d at pp. 446–447; see also, e.g., People v. Radil,
supra, 76 Cal.App.3d at pp. 709–710; People v. Jones
(1997) 58 Cal.App.4th 693, 710–711; People v. Allen (1985)
15

1
2
3

165 Cal.App.3d 616, 627–628; People v. Sheik (1925) 75
Cal.App. 421, 425–426.)
People v. Zamora, 2011 WL 1088548, at *8-*9.
C.

4
5

State Law Claims

Petitioner’s contention that he has a right to relief for

6 alleged violations of California’s constitution or other provisions
7
of state law lacks merit. Federal habeas relief is available to
8
state prisoners only to correct violations of the United States
9
10 Constitution, federal laws, or treaties of the United States. 28
11 U.S.C. ' 2254(a).

Federal habeas relief is not available to retry a

12 state issue that does not rise to the level of a federal
13
14

constitutional violation.

Wilson v. Corcoran, 131 S.Ct. at 16;

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

Alleged errors in

15
16

the application of state law are not cognizable in federal habeas

17 corpus.

Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002).

This

18 Court accepts a state court's interpretation of state law, Langford
19 v. Day, 110 F.3d 1180, 1389 (9th Cir. 1996), and it is bound by the
20

California Supreme Court=s interpretation of California law unless it

21
22
23

is determined that the interpretation is untenable or a veiled
attempt to avoid review of federal questions, Murtishaw v. Woodford,

24 255 F.3d 926, 964 (9th Cir. 2001).
25

Here, there is no indication that the state court’s

26 interpretation of state law was an attempt to avoid review of
27 federal questions.

Thus, this Court is bound by the state court’s

28 interpretation and application of state law, including its rulings
16

1 on the legal effect of the error in the verdicts and of Petitioner’s
2 failure to raise the issue before discharge of the jury.
D.

3

Due Process and Right to Trial by Jury

Although Respondent alleges that review of Petitioner’s due

4

5 process claim may be foreclosed because of Petitioner’s procedural
2
6 default in state court, Respondent nevertheless addresses the

7 merits of Petitioner’s claim.

In a habeas case, it is not necessary

8 that the issue of procedural bar be resolved if another issue is
9 capable of being resolved against the petitioner.
10 Singletary, 520 U.S. 518, 525 (1997).

Lambrix v.

Likewise, the procedural

11 default issue, which may necessitate determinations concerning cause
12 and miscarriage of justice, may be more complex than the underlying
13 issues in the case.

In such circumstances, it may make more sense

14 to proceed to the merits.

See Franklin v. Johnson, 290 F.3d 1223,

15 1232 (9th Cir. 2002).
Here, to avoid a lengthier analysis and to facilitate

16

17 determination of related claims regarding ineffective assistance of
18 counsel (IAC), the Court will proceed to the merits of Petitioner’s
19 claim.
20
2

The doctrine of procedural default is a specific application of the more general
It provides that when state court decision
on a claim rests on a prisoner=s violation of either a state procedural rule that
bars adjudication of the case on the merits or a state substantive rule that is
dispositive of the case, and the state law ground is independent of the federal
question and adequate to support the judgment such that direct review in the
United States Supreme Court would be barred, then the prisoner may not raise the
claim in federal habeas absent a showing of cause and prejudice or that a failure
to consider the claim will result in a fundamental miscarriage of justice. Walker
v. Martin, - U.S. -, 131 S.Ct. 1120, 1127 (2011); Coleman v. Thompson, 501 U.S.
722, 729-30 (1991); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003); Wells
v. Maass, 28 F.3d 1005, 1008 (9th Cir. 1994). The doctrine applies regardless of
whether the default occurred at trial, on appeal, or on state collateral review.
Edwards v. Carpenter, 529 U.S. 446, 451 (2000).

21 doctrine of independent state grounds.
22
23
24
25
26
27
28

17

1

To the extent that Petitioner’s objection is based on the state

2 court’s conclusion that the verdict was valid because Petitioner
3 forfeited his claim, this Court is bound by the state court’s
4 decision as to the legal effect of the verdict.
5

To the extent that Petitioner contends that the verdict

6 procedures constituted a denial of Petitioner’s right to a jury
7 trial, the Sixth Amendment of the U.S. Constitution provides that
8 “[i]n all criminal prosecutions, the accused shall enjoy the right
9 to a speedy and public trial, by an impartial jury....”
10 amend. VI.

U.S. Const.

This includes, as its “most important element,” the

11 “right to have the jury, rather than the judge, reach the requisite
12 finding of ‘guilty.’”
13 (1993).

Sullivan v. Louisiana, 508 U.S. 275, 277

However, a trial court may correct clerical and inadvertent

14 errors in a verdict form to reflect the jury's true intent even
15 after the jury has been discharged.

See, e.g., United States v.

16 Stauffer, 922 F.2d 508, 513–14 (9th Cir. 1990) (holding on direct
17 criminal appeal that the trial court's correction of a jury verdict
18 from acquittal to guilty to correct clerical error and reflect the
19 jury’s true intent did not violate the Double Jeopardy Clause); Fed.
20 R. Crim. P. 36 (allowing courts to correct clerical errors in a
21 judgment at any time after giving notice); Moorehead v. Cate, no. CV
22 11–5879–JHN (JPR), 2011 WL 7416510, at *5-*7 (C.D.Cal., Dec. 13,
23 2011) (finding no violation of a state prisoner’s right to jury
24 trial where the petitioner was sentenced to an offense charged and
25 argued to the jury but mistakenly described in the verdict); Camacho
26 v. Rosa, no. 09–5527–RSWL(RZ), 2010 WL 3952873, at *2–3 (C.D.Cal.
27 Aug. 18, 2010) (rejecting a state prisoner's claim that he suffered
28 due process and double jeopardy violations from the trial court's
18

1 error of giving the wrong verdict form to the jury on one count
2 where the jury’s true intent was clear, both counsel and the judge
3 referred to the correct count throughout trial, and the jury was
4 properly instructed).

There is no clearly established Supreme Court

5 precedent that formal errors on a verdict form invalidate a
6 conviction or sentence because of inconsistency with the charging
7 document where the jury instructions and argument were correct, and
8 the jury’s intention was clearly expressed.

Cf. Goines, 2009 WL

9 4048601 at *6, *11.
10

Petitioner acknowledges the existence of the indictment that

11 charged the precise offenses that were considered by the jury and
12 were the subject of the jury’s verdicts.

Thus, to the extent that

13 Petitioner’s claim is based on the right to have a jury determine
14 guilt of each element of the charge beyond a reasonable doubt,
15 Petitioner has not shown how any element was withdrawn from the
16 jury’s consideration.
17

Insofar as Petitioner bases his right to relief on a

18 generalized right to due process of law, Petitioner concedes that
19 the verdicts match the substantive charges and enhancement
20 allegations in the indictment.

Petitioner does not challenge the

21 objective reasonableness of the state court’s decision that
22 Petitioner was provided with legally adequate notice of the charges
23 against him, was given a full and fair opportunity to defend against
24 those charges, had the benefit of correct jury instructions on the
25 charges in the indictment (except as to lesser included offenses, as
26 discussed below), and was found guilty after the jury determined his
27 guilt on the charges.

The record supports the state court’s

28 findings that none of Petitioner’s substantial rights were affected
19

1 by the misidentification of the charging document as an information
2 instead of an indictment, and that the jury's intent to convict
3 Petitioner of first degree murder and shooting from a motor vehicle
4 was unmistakably clear.
5

The Court, therefore, concludes that Petitioner suffered no

6 prejudice.

In a proceeding pursuant to § 2254(d), constitutional

7 errors in a state court criminal trial are evaluated under the
8 standard of Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) -9 whether the error had a substantial and injurious effect or
10 influence in determining the jury verdict.
11 112, 121–22 (2007).

Frye v. Pliler, 551 U.S.

Here, the jury was correctly instructed on the

12 charges and enhancements, and there was no evidence of jury
13 confusion.

Petitioner has failed to demonstrate that the erroneous

14 reference to an information instead of an indictment on the verdict
15 form had a substantial and injurious effect or influence in
16 determining the jury's verdict.

Brecht, 507 U.S. at 637.

Because

17 the verdicts of conviction were valid, Petitioner’s claim that the
18 judgment violated the protection against Double Jeopardy is also
19 without merit.
20

Accordingly, it will be recommended that Petitioner’s claim or

21 claims concerning the erroneous verdict form be denied.
22

IV.

Failure to Instruct on Voluntary Manslaughter

23

Petitioner argues that with respect to the murder charge, he

24 was denied his right to due process of law guaranteed by the
25 Fourteenth Amendment by the trial court’s failure to instruct on its
26 own motion on the lesser included offense of involuntary
27 manslaughter.

Petitioner contends there was substantial evidence

28 supporting a defense of Petitioner’s having committed only
20

1 misdemeanor manslaughter based on the group’s stated purpose of
2 merely injuring (as distinct from killing) persons that evening,
3 Carrasco’s having only brandished a weapon by shooting out the
4 window to intimidate the victims, and Petitioner’s limited knowledge
5 and understanding of the type of misconduct planned as being to
6 inflict merely non-fatal injuries.
7

(Pet., doc. 1 at 3, 17-34.)

The CCA issued a reasoned decision on this claim in the direct

8 appeal, and the CSC denied review summarily.

(Pet., doc. 1, 154.)

9 Petitioner raised the same claim in a habeas corpus petition filed
10 in the CSC, citing to the state court appellate record in support;
11 the CSC summarily denied the petition.

(LD 12, LD 18-19.)

12 Accordingly, the Court will review the CCA’s decision as the last
13 reasoned decision.
14

A.

The State Court’s Decision

15

The decision of the CCA is as follows:

16

II. Zamora was not Prejudiced by the Failure to Instruct
on Involuntary Manslaughter as a Lesser Included Offense
to Count 1 or Discharging a Firearm from a Motor Vehicle
as a Lesser Included Offense to Count 2.

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

Next, Zamora argues the court erred by failing to
instruct, with respect to count 1, on the lesser offense
of misdemeanor involuntary manslaughter based on the crime
of brandishing a firearm under section 417, subdivision
(a)(2), or the crime of being a driver who knowingly
allows a person to bring a firearm into a motor vehicle
under section 12034, subdivision (a). He also argues the
court erred by failing to instruct, with respect to count
2, on the lesser offense of discharging a firearm from a
motor vehicle under section 12034, subdivision (c). As we
will explain, these claims fail because Zamora was not
prejudiced by the absence of instruction on these lesser
offenses.
A. The trial court has a sua sponte obligation to instruct
on all lesser included offenses when there is substantial
evidence supporting the instruction.
21

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

A trial court has a sua sponte obligation to instruct on
all lesser included offenses “when there is substantial
evidence to support the instruction, regardless of the
theories of the case proffered by the parties.” (People v.
Barton (1995) 12 Cal.4th 186, 203.) Substantial evidence
is evidence from which reasonable jurors could conclude
the lesser offense, but not the greater offense, was
committed. (People v. Manriquez (2005) 37 Cal.4th 547,
584.) “ ‘In deciding whether there is substantial evidence
of a lesser offense, courts should not evaluate the
credibility of witnesses, a task for the jury.’
[Citation.]” (Id. at p. 585.) “ ‘Doubts as to the
sufficiency of the evidence to warrant instructions should
be resolved in favor of the accused.’ [Citations .]”
(People v. Flannel (1979) 25 Cal.3d 668, 685.)
As will be explained, we need not decide whether the trial
court erred by failing to instruct on involuntary
manslaughter or shooting at a motor vehicle because the
verdicts establish the jury determined Zamora personally
possessed the intent to kill and it is not reasonably
probable that more favorable verdicts would have been
returned if the jury and been instructed on these lesser
crimes. (People v. Polley (1983) 147 Cal.App.3d 1088, 1092
(Polley).)
B. Failure to instruct on the identified lesser included
offenses is harmless.

18
19
20
21
22
23
24
25
26
27
28

“[I]n a noncapital case, error in failing sua sponte to
instruct, or to instruct fully, on all lesser included
offenses and theories thereof which are supported by the
evidence must be reviewed for prejudice exclusively under
[People v.] Watson [(1956) 46 Cal.2d 818]. A conviction of
the charged offense may be reversed in consequence of this
form of error only if, ‘after an examination of the entire
cause, including the evidence’ (Cal Const., art. VI, §
13), it appears ‘reasonably probable’ the defendant would
have obtained a more favorable outcome had the error not
occurred [citation].” (People v. Breverman (1998) 19
Cal.4th 142, 178, fn. omitted.) In assessing prejudice, we
examine “the entire record, including the evidence, to
determine whether it was reasonably probable the error
affected the outcome.” (Ibid.) There is also a line of
authority holding error in instructing the jury concerning
lesser forms of culpability is harmless when it can be
22

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

shown that the jury properly resolved the question under
the instructions, as given. (People v. Hart (2009) 176
Cal.App.4th 662, 673–674; People v. Sedeno (1974) 10
Cal.3d 703, 721; Polley, supra, 147 Cal.App.3d at pp.
1091–1092.) When the jury finds the defendant guilty of
first degree murder, this verdict necessarily reflects a
determination of defendant's intent. (Polley, supra, 147
Cal.App.3d at pp. 1091–1092; People v. DeJesus (1995) 38
Cal.App.4th 1, 21–22.)
Polley is instructive. There, the defendant was convicted
of first degree murder and burglary; a firearm allegation
was found true. In relevant part, the defendant argued the
trial court erred by refusing to instruct on involuntary
manslaughter based on a brandishing theory. The appellate
court concluded that it “need not decide whether either of
those two theories is valid, because the verdict shows the
jury rejected the first prerequisite to an involuntary
manslaughter verdict: the absence of malice. Any error in
the failure to give the involuntary manslaughter
instruction, therefore, was harmless.” (Polley, supra, 147
Cal.App.3d at p. 1091.) It reasoned, “[T]he jury was
instructed on second degree murder and voluntary
manslaughter as well as first degree murder and was
correctly told the role malice plays in the definitions of
those crimes. The first degree murder verdict, therefore,
shows the jury found Polley acted with malice; any error
in not giving the involuntary manslaughter instruction was
harmless.” (Id. at p. 1092.) Here, as in Polley, the jury
was instructed on first and second degree murder and
voluntary manslaughter. The questions whether the killing
was intentional, accidental, or the product of the
negligent use of a firearm, were necessarily resolved
adverse to Zamora by the jury's first degree murder
verdict. (Polley, supra, 147 Cal.App.3d at pp. 1091–1092;
People v. DeJesus, supra, 38 Cal.App.4th at p. 21.)
Zamora argues the jury was not given the opportunity to
find him guilty of crimes that do not involve malice or
intent to kill. This contention fails because the jury was
presented with three special circumstance allegations and
it found all of them true. The jury was instructed that it
could not find a special circumstance allegation true for
a defendant who was not the actual killer unless the
People proved beyond a reasonable doubt that he possessed
the intent to kill. (CALCRIM No. 702.) In relevant part,
CALCRIM No. 702 provided: “In order to prove this special
23

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

circumstance for a defendant who is not the actual killer
but who is guilty of first degree murder as an aider and
abettor, the People must prove that the defendant acted
with the intent to kill.” Thus, in finding the special
circumstances allegations true, the jury necessarily
resolved the factual question of Zamora's mens rea (i.e.,
his intent to kill) adverse to him. Under the instructions
given to it, the jury could not have found the special
allegations true as to Zamora if it did not believe he
personally possessed the intent to kill. If the jurors had
been persuaded by defense counsel's argument that Romero
was the shooter or his argument Zamora did not know
Carrasco was going to shoot at the victim, the jurors
would not have unanimously found all of the special
circumstances true.
Additionally, we agree with respondent that the evidence
in this case so strongly proves Zamora's guilt of all of
the charged offenses and special allegations that the
omission of instruction on the identified lesser included
offenses was harmless. The evidence amply supports the
jury's finding that Zamora personally possessed an intent
to kill. The murder weapon was linked to Zamora through a
MySpace photo depicting him holding a revolver with a
handle wrapped in a blue bandanna and .38–caliber bullets
found in Zamora's bedroom. No evidence was presented
directly linking a gun or bullets to either Carrasco or
Romero. No evidence was presented contradicting Romero's
testimony that Zamora brought the gun to the party and had
it with him when they drove around looking for someone “to
jump.” Romero testified Zamora handed the gun to Carrasco,
who fired two or three shots directly at the victim. It
can reasonably be inferred from Romero's testimony that
the gun was loaded when Zamora handed it to Carrasco.
Zamora did not demonstrate any surprise or dismay that
Carrasco shot the victim. Instead, Romero testified that
after the shooting, he and Zamora congratulated Carrasco
and shook his hand. Romero also testified that Zamora and
Carrasco wanted to shoot someone else but did not have
enough ammunition.
Zamora argues Romero was not a credible witness. By
finding all counts and special allegations true as to both
defendants, the jury demonstrated that they found Romero
believable. We find no basis to overturn this credibility
determination. Apart from the discrepancy between Romero's
testimony that Carrasco fired two or three shots when the
24

revolver had five spent cartridges in it and neighbors
heard five shots, Romero's testimony is largely consistent
with the other evidence.

1
2
3

For these reasons, we hold the absence of instruction on
involuntary manslaughter and discharging a firearm from a
motor vehicle did not affect the verdicts and is harmless
under the Watson FN3 standard of prejudice. (Polley,
supra, 147 Cal.App.3d at pp. 1091–1092.) We find the
evidence of Zamora's guilt to be compelling and,
therefore, further find the instructional omissions to be
harmless under the stringent Chapman standard of harmless
beyond a reasonable doubt. (Chapman v. California (1967)
386 U.S. 18, 24.)

4
5
6
7
8
9

FN3. People v. Watson, supra, 46 Cal.2d 818.

10

11 People v. Zamora, 2011 WL 1088548, at *5-*8.
B.

12

State Law Claims

To the extent Petitioner alleges the instructional claim

13

14 violated state law, Petitioner’s claim is not cognizable in this
15
16
17
18

proceeding.

The Supreme Court has held that a challenge to a jury

instruction solely as an error under state law does not state a
claim cognizable in federal habeas corpus proceedings.

19 McGuire, 502 U.S. at 71-72.

Estelle v.

A claim that an instruction was

20 deficient in comparison to a state model or that a trial judge
21 incorrectly interpreted or applied state law governing jury
22

instructions does not entitle one to relief under § 2254, which

23
24
25

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

26

28 U.S.C. §§ 2254(a), 2241(c)(3).

Accordingly, to the extent that Petitioner raises state law

27 claims, his claims should be dismissed.
28 ///
25

C.

1
2
3
4
5
6

Due Process

Although the Supreme Court has held that the failure to
instruct on lesser included offenses can constitute constitutional
error in capital cases, Beck v. Alabama, 447 U.S. 625 (1980), it has
reserved decision on whether such an omission in non-capital cases

7 constitutes constitutional error, id. at 638 n.7.

When the Supreme

8 Court has expressly reserved consideration of an issue, there is no
9 Supreme Court precedent creating clearly established federal law
10
11
12
13

relating to a petitioner’s habeas claim.
F.3d 860, 864 (9th Cir. 2006).

Alberni v. McDaniel, 458

Therefore, a petitioner cannot rely

on circuit authority, and there is no basis for relief pursuant to §

14 2254(d)(1) for an unreasonable application of clearly established
15 federal law.

Alberni v. McDaniel, 458 F.3d at 864; Brewer v. Hall,

16 378 F.3d 952, 955-57 (9th Cir. 2004).
17
Accordingly, there is no clearly established federal law within
18
the meaning of § 2254(d) concerning a state court’s rejection of a
19
20 claim that Sixth and Fourteenth Amendment rights in a non-capital
21 case were violated by a failure to instruct on a lesser included
22 offense.
23
24
25
26
27
28

Thus, such a claim is not cognizable in a proceeding

pursuant to 28 U.S.C. § 2254 and is subject to dismissal.

Windham

v. Merkle, 163 F.3d 1092, 1105-06 (9th Cir. 1998).
Further, the absence of the instruction did not result in any
fundamental unfairness.

The only basis for federal collateral

relief for instructional error is that an infirm instruction or the
26

1 lack of instruction by itself so infected the entire trial that the
2 resulting conviction violates due process.

Estelle v. McGuire, 502

3 U.S. at 71-72; Cupp v. Naughten, 414 U.S. 141, 147 (1973); see
4 Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) (it must be
5 established not merely that the instruction is undesirable,
6 erroneous or even “universally condemned,” but that it violated some
7 right guaranteed to the defendant by the Fourteenth Amendment).

The

8 Court in Estelle emphasized that the Court had very narrowly defined
9 the category of infractions that violate fundamental fairness, and
10 that beyond the specific guarantees enumerated in the Bill of
11 Rights, the Due Process Clause has limited operation.

502 U.S. at

12 at 72-73.
13

The Supreme Court has held that harmless error analysis applies

14 to instructional errors as long as the error at issue does not
15 categorically vitiate all the jury's findings.

Hedgpeth v. Pulido,

16 555 U.S. 57, 61 (2008) (citing Neder v. United States, 527 U.S. 1,
17 11 (1999) (quoting in turn Sullivan v. Louisiana, 508 U.S. 275
18 (1993) concerning erroneous reasonable doubt instructions as
19 constituting structural error)).

In Hedgpeth v. Pulido, the Court

20 cited its previous decisions that various forms of instructional
21 error were trial errors subject to harmless error analysis,
22 including errors of omitting or misstating an element of the offense
23 or erroneously shifting the burden of proof as to an element.
24 Hedgpeth, 555 U.S. 60-61.

To determine whether a petitioner

25 proceeding pursuant to § 2254 suffered prejudice from an
26 instructional error, a federal court must determine whether the
27 petitioner suffered actual prejudice by assessing whether, in light
28 of the record as a whole, the error had a substantial and injurious
27

1 effect or influence in determining the jury’s verdict.

Hedgpeth,

2 555 U.S. at 62; Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).
3

Here, the state court proceeded to determine whether Petitioner

4 had suffered any prejudice from the omission of the instruction.
5 The jury was instructed regarding special circumstances with CALCRIM
6 702, which required a finding that any person guilty of first degree
7 murder as an aider and abettor have the specific intent to kill.
8 The jury’s finding that Petitioner had the specific intent to kill
9 demonstrates that the omission of the instruction did not have a
10 substantial and injurious effect or influence in determining the
11 jury’s verdict because the jury had independently determined that
12 Petitioner individually had the intent to kill.
13

Under the Due Process Clause of the Fourteenth Amendment and

14 the Compulsory Process Clause and Confrontation Clause of the Sixth
15 Amendment, criminal defendants must be afforded a meaningful
16 opportunity to present a complete defense.

Crane v. Kentucky, 476

17 U.S. 683, 690 (1986); California v. Trombetta, 467 U.S. 479, 485
18 (1984).

The Supreme Court has not recognized a generalized

19 constitutional right to have a jury instructed on a defense
20 available under state law.
21 (1993).

See Gilmore v. Taylor, 108 U.S. 333, 343

However, when habeas is sought under 28 U.S.C. § 2254, a

22 failure to instruct on the defense theory of the case constitutes
23 error if the theory is legally sound and evidence in the case makes
24 it applicable.

Clark v. Brown, 450 F.3d 898, 904 (9th Cir. 2006);

25 see Mathews v. United States, 485 U.S. 58, 63 (1988) (reversing a
26 conviction and holding that even if a defendant denies one or more
27 elements of the crime, he is entitled to an entrapment instruction
28 whenever there is sufficient evidence from which a reasonable jury
28

1 could find entrapment, and the defendant requests such an
2 instruction).
However, a failure to instruct on a defense theory is harmless

3

4 under the Brecht standard where other instructions permitted
5 consideration of the pertinent defensive matter.

Beardslee v.

6 Woodford, 358 F.3d 560, 576 (9th Cir. 2004) (failure to instruct on
7 manslaughter was not error and was harmless because it had no
8 substantial or injurious effect or influence in determining the
9 jury’s verdict where numerous instructions allowed the jury to
10 consider the effect of threats upon the accused’s mental state, both
11 as an absolute defense to all charges and as a factor in choosing
12 between first and second degree murder; the jury had been given more
13 than the simple all or nothing choice at issue in Beck v. Alabama,
14 447 U.S. 625, 638-46; and the jury's decision to reject second
15 degree murder meant that they would not have accepted the lesser
16 charge of manslaughter).

Such a determination is appropriate here,

17 where the jury clearly expressed a finding that Petitioner
18 personally harbored the intent to kill, and where the evidence of
19 Petitioner’s intent to kill was strong.

The jury accepted this

20 evidence.
Petitioner has not shown that he suffered any fundamental

21

22 unfairness or that the omission had any substantial or injurious
23
24
25
26

effect or influence in determining the jury’s verdict.

Accordingly,

it will be recommended that the Court deny Petitioner’s claim
concerning the failure to instruct on the lesser included offense of

27 involuntary manslaughter.
28 ///
29

1
2
3

V.

Failure to Instruct on the Lesser Included Offense of
Shooting from a Vehicle

Petitioner alleges that the trial court committed an error

4 under state law and denied Petitioner his right to due process of
5 law when with respect to count two, maliciously discharging a
6 firearm at a person from a motor vehicle, it failed to instruct sua
7
sponte on the lesser included offense of discharging a firearm from
8
a motor vehicle. (Pet., doc. 1 at 3, 26-39.)
9
A. The State Court’s Decision
10
11

The last reasoned decision is the decision of the CCA, in which

12 the court considered Petitioner’s two grounds of omitted
13
14

instructions on lesser included offenses together.

The CCA again

proceeded directly to consider the presence or absence of prejudice

15
16
17
18
19
20

that resulted from the omitted instruction:
[Petitioner] also argues the court erred by failing to
instruct, with respect to count 2, on the lesser offense
of discharging a firearm from a motor vehicle under
section 12034, subdivision (c). As we will explain, these
claims fail because Zamora was not prejudiced by the
absence of instruction on these lesser offenses.

21 People v. Zamora, 2011 WL 1088548, at *6.
22
23
24
25
26
27
28

B.

Analysis

To the extent that Petitioner relies on state law, Petitioner
fails to state a cognizable claim.
With respect to a due process claim, there is no clearly
established federal law that required the state court to instruct on
the lesser offense.

In view of the jury’s finding that Petitioner
30

1 personally harbored the intent to kill, any failure to instruct on
2 the lesser offense of simply and non-maliciously shooting out of a
3 vehicle was also harmless.

Accordingly, it will be recommended that

4 Petitioner’s due process claim based on failure to instruct on
5 simple shooting out of a vehicle be denied.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

VI.

Admission of Evidence of Escape and Related Claim of
Ineffective Assistance of Counsel

Petitioner alleges that the trial court abused its discretion
and committed error under state law, and violated Petitioner’s right
to due process of law protected by the Fourteenth Amendment, when it
admitted evidence that Petitioner had attempted to escape from a
jail facility approximately nine months after his arrest, including
notes in which he wrote he had unsuccessfully attempted to escape,
had no reason not to try, and had nothing to lose.

Petitioner

contends the evidence was ambiguous and remote, irrelevant, and so
prejudicial that it should have been excluded under state law.

Its

admission was also unfair because Petitioner has a liberty interest
in the correct application of state law.

Petitioner argues the

evidence did not reflect consciousness of guilt and functioned as
evidence of Petitioner’s having committed another crime, which
raised a risk that the finder of fact would infer that Petitioner
therefore was more likely to have committed the charged murder.
(Pet., doc. 1, at 3, 40-47.)
Alternatively, Petitioner argues that if counsel failed to
preserve his due process claim by failing to lodge an objection, he
suffered a violation of his right to the effective assistance of
counsel protected by California law and the Sixth and Fourteenth
Amendments.

(Pet, doc. 1, 47-50.)
31

A.

1
2

The last reasoned decision was the opinion of the CCA on direct

3 appeal.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

The State Court’ Decision

The decision of the CCA is as follows:

I. Evidence of Zamora's Attempted Escape was Properly
Admitted.
A. Facts.
During motions in limine, the People sought to introduce
evidence that Zamora attempted to escape from jail on
December 24, and subsequently wrote a note referencing the
escape attempt. Defense counsel objected, arguing that the
attempted escape was “too far removed,” and neither the
escape attempt nor the contents of the note necessarily
evidenced a consciousness of guilt. Defense counsel also
contended the note was vague and its contents did not
necessarily relate to the escape attempt. Finally, he
asserted, “[i]t's too broad and prejudicial as well.” The
court found this evidence was admissible “under the theory
of consciousness of guilt.” It concluded the probative
value of the evidence outweighed its prejudicial effect.
A correctional officer at the Bob Wiley Detention Facility
testified on December 24, he saw Zamora lying on the floor
underneath the bunk bed. Zamora's cellmate was asleep.
Zamora told the officer that he was cleaning the floor.
The cell was searched. A hole had been dug in the cell
wall about six inches above the floor. A piece that goes
along the side of the air vent was found in the cell.
Zamora said he did not know how the hole got into the
wall. Zamora was moved to a single-person cell. On
December 30, Zamora's cell was searched. Officers found a
handwritten note and a replica of a small metal wall plate
made out of soap and another substance to color it brown.
In relevant part, the note read: “But I was on a little
mission to escape but I didn't make it too far. But this
fool ain't got shit to lose so I had to give it a try.”

24
25

The jury was instructed on flight with CALCRIM No. 372.

27

B. Admission of this evidence was not an abuse of
discretion and did not infringe Zamora's federal
constitutional due process right.

28

Zamora argues testimony about his attempted escape was

26

32

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

irrelevant and should have been excluded under Evidence
Code section 352. We are not convinced. “We apply the
deferential abuse of discretion standard when reviewing a
trial court's ruling under Evidence Code section 352.
[Citation.]” (People v. Kipp (2001) 26 Cal.4th 1100, 1125–
1126 (Kipp).) Applying this standard, we discern no abuse
of discretion in the ruling admitting evidence of Zamora's
attempted escape.
“Evidence is relevant if it has ‘any tendency in reason to
prove or disprove any disputed fact that is of consequence
to the determination of the action.’ [Citations.]” (People
v. Wallace (2008) 44 Cal.4th 1032, 1058.) In assessing
relevance, the test “ ‘ “is whether the evidence tends ‘
“logically, naturally, and by reasonable inference” to
establish material facts such as identity, intent, or
motive.’ “ ’ [Citation.]” (Ibid.)
Evidence of an attempt or plan to escape from jail pending
trial ordinarily is relevant to establish consciousness of
guilt. (Kipp, supra, 26 Cal.4th at p. 1126; People v.
Terry (1970) 2 Cal.3d 362, 395 (Terry).) Zamora argues
this general rule is not applicable because his escape
attempt occurred several months after his arrest. This
contention was rejected by our Supreme Court in Terry,
supra, 2 Cal.3d 362. In Terry, the high court explained
that while it is possible a person who has been
incarcerated for several months escapes because he cannot
bear further incarceration, “it is also probable that only
one who expects his guilt to be proved at trial will
attempt an escape and that an innocent man will stay for
trial in order to clear his name and win lawful liberty.”
(Id. at p. 395, fn. omitted.) Further, “the question of
time of escape goes to the weight to be given evidence of
escape pending trial, not to its admissibility.” (Ibid.)
Thus, the timing of Zamora's attempted escape went to the
weight of the evidence and not its admissibility. (Ibid.;
Kipp, supra, 26 Cal.4th at pp. 1126–1127.)
We agree with the trial court that the probative value of
this evidence was not substantially outweighed by concerns
of undue consumption of time or risk of unfair prejudice.
Testimony about the escape “was brief and matter of fact.”
(People v. Wallace, supra, 44 Cal.4th at p. 1059.) The
escape attempt did not involve any overt violence. (Kipp,
supra, 26 Cal.4th at p. 1126.) The circumstances
surrounding the victim's murder are so senselessly
33

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

horrific that the escape attempt pales in comparison to
the charged offenses. The jurors were not likely to be
shocked or impassioned by the escape attempt or contents
of Zamora's handwritten note. “The trial court could
reasonably conclude, in the exercise of its broad
discretion, that this evidence would not so inflame the
jurors' emotions as to interfere with their fair and
dispassionate assessment of the evidence of defendant's
guilt.” (Ibid.) Therefore, we conclude the trial court did
not abuse its discretion in admitting evidence of Zamora's
escape. (Kipp, supra, 26 Cal.4th at pp. 1125–1127
[evidence of escape attempt while defendant was under
judgment of death for murder was properly admitted];
Terry, supra, 2 Cal.3d at p. 395 [evidence of escape
several months after arrest on two counts of murder
properly admitted].)
Zamora also argues evidence of his attempted escape was so
unfairly prejudicial that its admission violated his
federal constitutional due process right and his trial
counsel was ineffective because he did not object on this
basis. We are not persuaded.
Although defense counsel did not object on due process
grounds, the due process argument presented by Zamora on
appeal is cognizable. To consider on appeal an argument
that admission of evidence, which was disputed on Evidence
Code section 352 grounds at trial, was an error so serious
that it violates due process “ ‘entails no unfairness to
the parties,’ who had the full opportunity at trial to
litigate whether the court should overrule or sustain the
trial objection. [Citation.]” (People v. Partida (2005) 37
Cal.4th 428, 436 (Partida); People v. Yeoman (2003) 31
Cal.4th 93, 118.)

21
22
23
24
25
26
27
28

Admission of disputed evidence violates a defendant's
federal constitutional due process right only if it
rendered the trial fundamentally unfair. (Partida, supra,
37 Cal.4th at p. 436.) In view of our determination that
evidence of the attempted escape was relevant to show
consciousness of guilt and was not excessively
prejudicial, we further conclude that admission of this
evidence did not render the trial unfair. Therefore,
Zamora's due process right was not infringed. (People v.
Burgener (2003) 29 Cal.4th 833, 872–873.) Since an
objection on this ground would not have been successful,
Zamora's defense counsel was not ineffective because he
34

1

did not object on this basis. (Ibid.)

2 People v. Zamora, 2011 WL 1088548, at *3-*5.
3
4
5
6
7
8

B.

State Law Evidentiary Rulings

Because federal habeas relief is available to state prisoners
only to correct violations of the United States Constitution,
federal laws, or treaties of the United States, federal habeas
relief is not available to retry a state issue that does not rise to

9 the level of a federal constitutional violation.

28 U.S.C.

10 § 2254(a); Wilson v. Corcoran, 131 S.Ct. at 16; Estelle v. McGuire,
11 502 U.S. at 67-68.
12
13
14
15

A federal court reviewing a habeas petition

pursuant to 28 U.S.C. § 2254 has no authority to review alleged
violations of a state’s evidentiary rules.
926 F.2d 918, 919 (9th Cir. 1991).

Jammal v. Van de Kamp,

The primary federal safeguards

16 applicable to relevant evidence are provided by the Sixth
17 Amendment’s rights to counsel, compulsory process to obtain defense
18 witnesses, and confrontation and cross-examination of prosecution
19
witnesses; otherwise, admission of evidence in state trials is
20
ordinarily governed by state law. Perry v. New Hampshire, - U.S. -,
21
22 132 S.Ct. 716, 723 (2012) (Due Process Clause does not require a
23 trial judge to conduct a preliminary assessment of the reliability
24 of an eyewitness identification made under suggestive circumstances
25
26
27
28

not arranged by the police).

The reliability of relevant testimony

typically falls within the province of the jury to determine.
at 728-29.

Id.

Absent improper police conduct or other state action, it
35

1 is sufficient to test the reliability of evidence through the normal
2 procedures, including the right to counsel and cross-examination,
3
4
5
6

protective rules of evidence, the requirement of proof of guilt
beyond a reasonable

doubt, and jury instructions.

Id.

Here, there is no indication that the state court’s evidentiary

7 rulings were associated with an attempt to avoid federal question
8 review.

Accordingly, this Court is bound by the California court’s

9 application of state evidentiary law, including its determination
10
11
12
13

that the evidence was relevant and admissible under the California
Evidence Code.

Any claim of misapplication or misinterpretation of

state evidentiary law is subject to dismissal because it is not a

14 cognizable basis for relief in this proceeding.
15
16
17

C.

Federal Due Process Limitations on the Admission of
Evidence

With respect to Petitioner’s claim that the admission of the

18 evidence of his escape was fundamentally unfair, the introduction of
19 evidence alleged to be prejudicial violates the Due Process Clause
20

if the evidence was so arbitrary or prejudicial that its admission

21
22
23

rendered the trial fundamentally unfair and violated fundamental
conceptions of justice.

Perry v. New Hampshire, 132 S.Ct. at 723;

24 Estelle v. McGuire, 502 U.S. at 67-69; Holley v. Yarborough, 568
25 F.3d 1091, 1101 (9th Cir. 2009).
26
27

Further, where a state court has rendered a decision on a
federal claim, under the AEDPA even the clearly erroneous admission

28
36

1 of evidence that renders a trial fundamentally unfair may not permit
2 the grant of habeas relief unless forbidden by clearly established
3
4
5
6

federal law as established by the Supreme Court.
Yarborough, 568 F.3d at 1101.

Holley v.

The Supreme Court has not yet held

that admission of irrelevant or overtly prejudicial evidence

7 constitutes a due process violation sufficient to warrant issuance
8 of the writ.

See Estelle, 502 U.S. at 75 n.5.

Absent such clearly

9 established federal law, it cannot be concluded that a state court’s
10
11
12
13

ruling was contrary to or an unreasonable application of Supreme
Court precedent under the AEDPA.

Holley, 568 F.3d at 1101

(citing Carey v. Musladin, 549 U.S. 70, 77 (2006)); see also Alberni

14 v. McDaniel, 458 F.3d 860, 866-67 (9th Cir. 2006) (denying a due
15 process claim concerning the use of propensity evidence for want of
16 a “clearly established” rule from the Supreme Court); Mejia v.
17
Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008).
18
Admission of evidence violates due process only if there are no
19
20 permissible inferences that a jury may draw from it, and the
21 evidence is of such quality as necessarily prevents a fair trial.
22 Boyde v. Brown, 404 F.3d 1159, 1172-73 (9th Cir. 2005) (quoting
23
24
25
26

Jammal v. Van de Kamp, 926 F.2d at 920).

To the extent the CCA

decided the federal due process issue, there is no clear Supreme
Court holding that introduction of analogous evidence violates due

27 process and requires habeas relief.
28 ///
37

1

Considering more generally whether Petitioner’s due process

2 right to a fair trial was violated by admission of the evidence of
3 Petitioner’s escape, the evidence was relevant because one inference
4 was a consciousness of guilt, which tended to show Petitioner’s
5 culpability of the charged offenses.

The conduct and statements

6 associated with the escape attempt were not unduly provocative,
7 gruesome, or otherwise inflammatory, and they were arguably less
8 serious than the charged offenses.
9

Under the circumstances, the state court’s determination that

10 admission of the evidence was not fundamentally unfair was not
11 contrary to, or an unreasonable application of clearly established
12 federal law.

Accordingly, it will be recommended that the Court

13 deny Petitioner’s due process claim concerning admission of evidence
14 of his escape.
15
16

D.

Ineffective Assistance of Counsel

With respect to Petitioner’s claim that failure to exclude the

17 evidence was ineffective assistance of counsel, the law governing
18 claims concerning ineffective assistance of counsel is clearly
19 established for the purposes of the AEDPA deference standard set
20 forth in 28 U.S.C. ' 2254(d).

Premo v. Moore, 131 S.Ct. 733, 737-38

21 (2011); Canales v. Roe, 151 F.3d 1226, 1229 n.2 (9th Cir. 1998).
22

To demonstrate ineffective assistance of counsel in violation

23 of the Sixth and Fourteenth Amendments, a convicted defendant must
24 show that 1) counsel=s representation fell below an objective
25 standard of reasonableness under prevailing professional norms in
26 light of all the circumstances of the particular case; and 2) unless
27 prejudice is presumed, it is reasonably probable that, but for
28 counsel=s errors, the result of the proceeding would have been
38

1 different.

Strickland v. Washington, 466 U.S. 668, 687-94 (1984);

2 Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994).

A petitioner must

3 identify the acts or omissions of counsel that are alleged to have
4 been deficient. Strickland, 466 U.S. 690.

This standard is the same

5 standard that is applied on direct appeal and in a motion for a new
6 trial.
7

Strickland, 466 U.S. 697-98.

In determining whether counsel=s conduct was deficient, a court

8 should consider the overall performance of counsel from the
9 perspective of counsel at the time of the representation.
10 Strickland, 466 U.S. at 689.

There is a strong presumption that

11 counsel=s conduct was adequate and within the exercise of reasonable
12 professional judgment and the wide range of reasonable professional
13 assistance.
14

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

In determining prejudice, a reasonable probability is a

15 probability sufficient to undermine confidence in the outcome of the
16 proceeding.

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

17 the question is whether there is a reasonable probability that,
18 absent the errors, the fact finder would have had a reasonable doubt
19 respecting guilt.

Strickland, 466 U.S. at 695.

This Court must

20 consider the totality of the evidence before the fact finder and
21 determine whether the substandard representation rendered the
22 proceeding fundamentally unfair or the results thereof unreliable.
23 Strickland, 466 U.S. at 687, 696.
24

A court need not address the deficiency and prejudice inquiries

25 in any given order and need not address both components if the
26 petitioner makes an insufficient showing on one.
27 U.S. at 697.
28
39

Strickland, 466

1

Here, because there has been no showing of either error or

2 fundamental unfairness with respect to admission of the evidence,
3 counsel’s failure to seek to exclude the evidence was not
4 objectively unreasonable, and could not constitute ineffective
5 assistance of counsel in violation of the Sixth Amendment.

Cf.

6 James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994) (failure to make a
7 motion which would not have been successful or was otherwise futile
8 does not constitute ineffective assistance of counsel and does not
9 result in prejudice).

The state court also considered the due

10 process claim to be cognizable on appeal; thus, the record does not
11 reflect that counsel’s conduct or omissions resulted in any injury
12 or negative effect.
13

Accordingly, if it is necessary to reach Petitioner’s IAC

14 claim, the Court should conclude that Petitioner has not shown that
15 he suffered prejudicially ineffective assistance of counsel.
16

VII.

Restitution

17

Petitioner alleges he suffered violations of his rights under

18 state law and his right to due process of law protected by the
19 Fourteenth Amendment when the trial court imposed restitution fines
20 without various procedural protections, including but not limited to
21 not holding a hearing on Petitioner’s ability to pay.
22

Habeas relief shall be granted to a person in custody pursuant

23 to the judgment of a state court only on the ground that the custody
24 violates the Constitution, laws, or treaties of the United States.
25 28 U.S.C. § 2254.

The “in custody” requirement for a habeas

26 petition pursuant to § 2254(a) is jurisdictional and thus is the
27 first question a habeas court must consider.
28 F.3d 976, 978 (9th Cir. 2010).

Bailey v. Hill, 599

The requirement has two aspects: 1)
40

1 the petitioner must be in custody at the time the petition is filed,
2 and 2) the custody must be under the conviction or sentence under
3 attack at the time the petition is filed.

Id.

“Custody” includes

4 physical imprisonment as well as other significant or severe
5 restraints on liberty, but it does not include mere collateral
6 consequences of a conviction.

Id. at 978-80.

The imposition of a

7 fine, by itself, is not sufficient to meet the jurisdictional
8 requirements of § 2254.

Id. at 979 (quoting Williamson v. Gregoire,

9 151 F.3d 1180, 1183 (9th Cir. 1998)).

Further, liability under a

10 restitution order is not a sufficiently serious restraint on liberty
11 to warrant habeas relief.

Bailey v. Hill, 599 F.3d at 979.

The

12 mere fact that a petitioner is physically in custody when
13 challenging a restitution order is insufficient to render the claim
14 cognizable where the petitioner is not challenging the lawfulness of
15 his custody under federal law.
16 984.

Bailey v. Hill, 599 F.3d at 979-980,

Mere physical custody does not provide the required nexus

17 between a petitioner’s claim and the unlawful nature of the custody;
18 instead, § 2254(a) requires that the substance of the claim being
19 asserted must challenge the legality of the custody on the ground
20 that it is, or was imposed, in violation of the Constitution, laws,
21 or treaties of the United States.
22

Id. at 980-81.

Further, the remedy for restitution claims, namely, eliminating

23 or altering a money judgment, has no direct impact upon, and is not
24 directed at the source of the restraint upon, the Petitioner’s
25 liberty.

Instead, it would affect only the fact or amount of the

26 restitution that has to be paid.

Id. at 981.

27
28
41

1

Accordingly, it will be recommended that Petitioner’s

2 restitution claim or claims be dismissed as not cognizable in this
3 proceeding.
4

VIII.

Ineffective Assistance of Appellate Counsel

5

Petitioner alleges he suffered a violation of his right

6 protected by the Sixth and Fourteenth Amendments to the effective
7 assistance of appellate counsel because appellate counsel failed to
8 raise crucial issues, including the ineffective assistance of trial
9 counsel, procedural due process violations associated with the
10 restitution order, and the insufficiency of the evidence to support
11 Petitioner’s conviction of homicide.
12

(Pet., doc. 1 at 5, 54-57.)

Here, neither trial nor appellate counsel was ineffective.

13 Further, as the following discussion reflects, the evidence is
14 sufficient to support the judgment.

Thus, Petitioner has not shown

15 that any conduct of counsel was objectively unreasonable and
16 prejudicial as required by the Strickland standard.

Accordingly, it

17 will be recommended that Petitioner’s claims of ineffective
18 assistance of appellate counsel be denied.
19

IX.

Sufficiency of the Evidence

20

Petitioner alleges that the evidence is insufficient to support

21 his conviction of being the shooter of the homicide victim because
22 gunshot residue tests of Petitioner were negative, whereas tests of
23 Carrasco and Romero were positive; the only evidence Petitioner wore
24 gloves all night was unreliable because it came from Romero; the
25 government failed to test the gloves for gunshot residue or for DNA;
26 and there was no evidence of Petitioner’s DNA on the gun.
27 doc. 1 at 5, 57-64.)
28
42

(Pet.,

Alternatively, Petitioner contends that if the issue of the

1

2 sufficiency of the evidence was not preserved for review,
3 Petitioner’s appellate counsel was ineffective for failing to raise
4 it.
5
6

A. The State Court Decision
On state habeas filed in the CSC, Petitioner argued that there

7 was insufficient evidence to support his conviction of first degree
8 murder. (LD 18, 55-62.)

The California Supreme Court summarily

9 denied the claim. (LD 19.)
10
11

B.

Analysis

To determine whether a conviction violates the constitutional

12 guarantee of due process of law because of insufficient evidence, a
13
14

federal court ruling on a petition for writ of habeas corpus must
determine whether any rational trier of fact could have found the

15
16

essential elements of the crime beyond a reasonable doubt.

Jackson

17 v. Virginia, 443 U.S. 307, 319, 20-21 (1979); Windham v. Merkle, 163
18 F.3d 1092, 1101 (9th Cir. 1998); Jones v. Wood, 114 F.3d 1002, 1008
19 (9th Cir. 1997).
20

All evidence must be considered in the light most favorable to

21
22
23

the prosecution.

Jackson, 443 U.S. at 319; Jones, 114 F.3d at 1008.

It is the trier of fact’s responsibility to resolve conflicting

24 testimony, weigh evidence, and draw reasonable inferences from the
25 facts; thus, it must be assumed that the trier resolved all
26 conflicts in a manner that supports the verdict. Jackson v.
27
Virginia, 443 U.S. at 319; Jones, 114 F.3d at 1008. The relevant
28
43

1 inquiry is not whether the evidence excludes every hypothesis except
2 guilt, but rather whether the jury could reasonably arrive at its
3
4
5
6

verdict.

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

Circumstantial evidence and the inferences reasonably drawn
therefrom can be sufficient to prove any fact and to sustain a

7 conviction; however, mere suspicion or speculation does not rise to
8 the level of sufficient evidence.

United States v. Lennick, 18 F.3d

9 814, 820 (9th Cir. 1994); United States v. Stauffer, 922 F.2d 508,
10
11
12
13
14

514 (9th Cir. 1990); see Jones v. Wood, 207 F.3d at 563.

The court

must base its determination of the sufficiency of the evidence from
a review of the record.

Jackson at 324.

The Jackson standard must be applied with reference to the

15 substantive elements of the criminal offense as defined by state
16 law. Jackson, 443 U.S. at 324 n.16; Windham, 163 F.3d at 1101.
17
However, the minimum amount of evidence that the Due Process Clause
18
requires to prove an offense is purely a matter of federal law.
19
20 Coleman v. Johnson, - U.S. -, 132 S.Ct. 2060, 2064 (2012) (per
21 curiam).

For example, under Jackson, juries have broad discretion

22 to decide what inferences to draw and are required only to draw
23
24
25
26
27
28

reasonable inferences from basic facts to ultimate facts.

Id.

Under the AEDPA, federal courts must apply the standards of
Jackson with an additional layer of deference.

Coleman v. Johnson,

- U.S. -, 132 S.Ct. 2060, 2062 (2012); Juan H. v. Allen, 408 F.3d
1262, 1274 (9th Cir. 2005).

This Court thus asks whether the state

court decision being reviewed reflected an objectively unreasonable
44

1 application of the Jackson standard to the facts of the case.
2 Coleman v. Johnson, 132 S.Ct. at 2062; Juan H. v. Allen, 408 F.3d at
3 1275.

The determination of the state court of last review on a

4 question of the sufficiency of the evidence is entitled to
5 considerable deference under 28 U.S.C. § 2254(d).

Coleman v.

6 Johnson, 132 S.Ct. at 2065.
7
8 in

Here, the state court reasonably applied the Jackson standard
concluding

9 Petitioner’s
10 abetter.

that

the

conviction

of

evidence
first

was

degree

sufficient
murder

as

to
an

support

aider

and

Where, as here, the state court interpreted and applied

11 state law, this Court is bound by the state court’s interpretation
12 and application.
13

Langford v. Day, 110 F.3d at 1389.

Under California law, "All murder which is perpetrated... by

14 any... kind of willful, deliberate, and premeditated killing... is
15 murder of the first degree."

Cal. Pen. Code § 189.

In the context

16 of first degree murder, "'[t]he word "deliberate" means formed or
17 arrived at or determined upon as a result of careful thought and
18 weighing of considerations for and against the proposed course of
19 action.

The word "premeditated" means considered beforehand.'"

20 People v. Perez, 2 Cal.4th 1117, 1123, (1992) (quoting CALJIC No.
21 8.20).

"Premeditation and deliberation do not require an extended

22 period of time, merely an opportunity for reflection.”
23 Cook, 39 Cal.4th 566, 603 (2006).

People v.

In People v. Anderson, 70 Cal.2d

24 15, 27 (1968), the CSC articulated factors to consider in assessing
25 the sufficiency of evidence to prove that a murder was premeditated
26 and deliberate.

"[T]he Anderson court identified three categories

27 of evidence pertinent to the determination of premeditation and
28 deliberation: 1) planning activity, 2) motive, and 3) manner of
45

1 killing."

People v. Perez, 2 Cal.4th at 1125.

The court

2 emphasized, however, that "[t]he Anderson factors, while helpful for
3 purposes of review, are not a sine qua non to finding first degree
4 premeditated murder, nor are they exclusive."
5

Id.

Here, evidence that Petitioner armed himself, planned with his

6 cohorts to “jump” someone, drove around looking for someone to jump,
7 provided the loaded gun to the shooter, wore gloves throughout the
8 evening, congratulated the shooter after the shooting, drove the
9 getaway car, and disposed of the gun warranted a conclusion that
10 Petitioner intended to kill the victim and deliberated with respect
11 to the killing of the victim.
12

Further, the evidence supports a conclusion that under state

13 law, Petitioner was guilty as an aider and abettor.

An aider and

14 abettor is one who acts with both knowledge of the perpetrator's
15 criminal purpose and the intent of encouraging or facilitating
16 commission of the offense.

(LD 10 at 417 [CALCRIM No. 400].)

When

17 the evidence is viewed most favorably to the judgment, at least one
18 fairminded jurist could find that the CSC’s denial of the claim was
19 not inconsistent with Supreme Court precedent.
20

The evidence demonstrated that Petitioner and his cohorts

21 intended to kill the victim because together they stalked the
22 victims with a lethal weapon and then made it possible for one of
23 their group to shoot the victim repeatedly and then to flee and
24 attempt to dispose of evidence.

Petitioner’s knowledge and intent

25 were demonstrated by his possession of the weapon before the
26 offense, planning and searching activity, providing the lethal
27 weapon at the critical time, driving the getaway car, and
28 congratulating the shooter.

In light of the evidence warranting an
46

1 inference that Petitioner aided and abetted the homicide, the state
2 court properly concluded that in light of the pertinent state law,
3 the fact that Petitioner might not personally have been the one to
4 shoot the homicide victim did not render the evidence insufficient
5 to support Petitioner’s conviction.

As such, the state court’s

6 rejection of Petitioner’s claim that appellate counsel was
7 ineffective for failing to raise a sufficiency of the evidence claim
8 on direct appeal must also fail.
9

Accordingly, it will be recommended that Petitioner’s IAC

10 claims be denied.
11

IX.

Evidentiary Hearing

12

Petitioner requests an evidentiary hearing.

(Pet., doc. 1 at

13 74.)
14

The decision to grant an evidentiary hearing is generally a

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

28

16 U.S.C. ' 2254; Habeas Rule 8(a); Schriro v. Landrigan, 550 U.S. 465,
17 473 (2007).

To obtain an evidentiary hearing in federal court under

18 the AEDPA, a petitioner must allege a colorable claim by alleging
19 disputed facts which, if proved, would entitle him to relief.
20 Schriro v. Landrigan, 550 U.S. at 474.
21

The determination of entitlement to relief is, in turn, is

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

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

In analyzing a

27 claim pursuant to ' 2254(d)(1), a federal court is limited to the
28 record before the state court that adjudicated the claim on the
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1 merits.
2

Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011).

Thus, when a state court record precludes habeas relief under

3 the limitations set forth in ' 2254(d), a district court is not
4 required to hold an evidentiary hearing.

Cullen v. Pinholster, 131

5 S.Ct. 1388, 1399 (2011) (citing Schriro v. Landrigan, 550 U.S. 465,
6 474 (2007)).

An evidentiary hearing may be granted with respect to

7 a claim adjudicated on the merits in state court where the
8 petitioner satisfies ' 2254(d)(1), or where ' 2254(d)(1) does not
9 apply, such as where the claim was not adjudicated on the merits in
10 state court.
11

Cullen v. Pinholster, 131 S.Ct. at 1398, 1400-01.

An evidentiary hearing is not required where the state court

12 record resolves the issues, refutes the application=s factual
13 allegations, or otherwise precludes habeas relief.
14 Landrigan, 550 U.S. at 474.

No evidentiary hearing is required for

15 claims based on conclusory allegations.
16 662, 679 (9th Cir. 1994).

Schriro v.

Campbell v. Wood, 18 F.3d

Likewise, an evidentiary hearing is not

17 required if the claim presents a purely legal question, there are no
18 disputed facts, or the state court has reliably found the relevant
19 facts.

Beardslee v. Woodford, 358 F.3d 560, 585-86 (9th Cir. 2004);

20 Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir. 1992).
21

Here, Petitioner has not alleged disputed facts which, if

22 proved, would entitle him to relief.

As the foregoing analysis

23 reflects, the state court record precludes relief pursuant to 28
24 U.S.C. § 2254(d).

Accordingly, it will be recommended that

25 Petitioner’s request for an evidentiary hearing be denied.
26

X.

Certificate of Appealability

27

Unless a circuit justice or judge issues a certificate of

28 appealability, an appeal may not be taken to the Court of Appeals
48

1 from the final order in a habeas proceeding in which the detention
2 complained of arises out of process issued by a state court.

28

3 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
4 (2003).

A district court must issue or deny a certificate of

5 appealability when it enters a final order adverse to the applicant.
6 Habeas Rule 11(a).
7

A certificate of appealability may issue only if the applicant

8 makes a substantial showing of the denial of a constitutional right.
9 ' 2253(c)(2).

Under this standard, a petitioner must show that

10 reasonable jurists could debate whether the petition should have
11 been resolved in a different manner or that the issues presented
12 were adequate to deserve encouragement to proceed further.

Miller-

13 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.
14 473, 484 (2000)).

A certificate should issue if the Petitioner

15 shows that jurists of reason would find it debatable whether: (1)
16 the petition states a valid claim of the denial of a constitutional
17 right, and (2) the district court was correct in any procedural
18 ruling.
19

Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

In determining this issue, a court conducts an overview of the

20 claims in the habeas petition, generally assesses their merits, and
21 determines whether the resolution was debatable among jurists of
22 reason or wrong.

Id.

An applicant must show more than an absence

23 of frivolity or the existence of mere good faith; however, the
24 applicant need not show that the appeal will succeed.

Miller-El v.

25 Cockrell, 537 U.S. at 338.
26

Here, it does not appear that reasonable jurists could debate

27 whether the petition should have been resolved in a different
28 manner.

Petitioner has not made a substantial showing of the denial
49

1 of a constitutional right.

Accordingly, it will be recommended that

2 the Court decline to issue a certificate of appealability.
3

XI.

Recommendations

4

Based on the foregoing, it is RECOMMENDED that:

5

1)

Insofar as Petitioner raises state law claims or claims

6 regarding restitution, the petition be DISMISSED without leave to
7 amend;
8

2)

Petitioner’s motion for an evidentiary hearing be DENIED;

9

3)

The petition for writ of habeas corpus be DENIED;

10

4)

Judgment be ENTERED for Respondent; and

11

5)

The Court DECLINE to issue a certificate of appealability.

12

These findings and recommendations are submitted to the United

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

Within thirty (30) days after being served

17 with a copy, any party may file written objections with the Court
18 and serve a copy on all parties.

Such a document should be

19 captioned AObjections to Magistrate Judge=s Findings and
20 Recommendations.@

Replies to the objections shall be served and

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

The Court will then review

23 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C).
24 The parties are advised that failure to file objections within the
25 specified time may result in the waiver of rights on appeal.
26 ///
27 ///
28
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1 Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing
2 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
3
4
5 IT IS SO ORDERED.
6
7

Dated:

May 19, 2015

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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