Garcia v. Montgomery

Filing 43

FINDINGS and RECOMMENDATIONS to Deny 22 First Amended Petition for Writ of Habeas Corpus signed by Magistrate Judge Michael J. Seng on 01/10/2018. Referred to Judge Drozd; Objections to F&R due by 2/12/2018.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD MIGUEL GARCIA,
Petitioner,

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v.
STUART SHERMAN, Warden

Case No. 1:14-cv-00980-DAD-MJS (HC)
FINDINGS AND RECOMMENDATION TO
DENY FIRST AMENDED PETITION FOR
WRIT OF HABEAS CORPUS
(ECF No. 22)

Respondent.

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Petitioner is a state prisoner proceeding pro se with a first amended petition for

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writ of habeas corpus under 28 U.S.C. § 2254. Stuart Sherman, Warden of California

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Substance Abuse Treatment Facility, is hereby substituted as the proper named

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respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Respondent

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is represented by Jeffrey White of the Office of the California Attorney General.

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The petition raises the following claims: (1) the trial court erred in failing to instruct

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the jury on the lesser offenses of voluntary and involuntary manslaughter; (2) the trial

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court gave erroneous instructions on the gang enhancement; (3) the instruction on

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aiding and abetting was erroneous; (4) there was insufficient evidence to support a

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conviction for aiding and abetting murder; (5) the trial court erroneously failed to stay a

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firearm enhancement; and (6) Petitioner was sentenced under the incorrect Penal Code

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provision for the gang enhancement. (ECF No. 22.)

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As discussed below, the undersigned recommends the petition be denied.
I.

Procedural History

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Petitioner is currently in the custody of the California Department of Corrections

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and Rehabilitation pursuant to a judgment of the Superior Court of California, County of

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Tulare convicting him of second degree murder with gang and firearm enhancements.

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Petitioner initially was convicted by a jury of conspiracy to commit murder and

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second degree murder, with gang and firearm enhancements. He received an aggregate

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sentence of fifty years to life. People v. Garcia, No. F062834, 2013 WL 3286207, at *1

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(Cal. Ct. App. June 27, 2013) (Lodged Doc. 4.) Petitioner appealed. (Lodged Doc. 1.)

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On June 27, 2013, the California Court of Appeal for the Fifth Appellate District

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reversed on the conspiracy count and remanded for a determination of whether

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Petitioner would be retried. (Lodged Doc. 4.) The court directed that, if Petitioner was not

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retried, the trial court would strike the conviction and sentence for the conspiracy count

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and amend the abstract of judgment to reflect that Petitioner was sentenced to 15 years

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to life for second degree murder, plus 25 years to life for the firearm enhancement, for an

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aggregate term of 40 years to life. (Lodged Doc. 4 at 52.) On October 16, 2013, the

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California Supreme Court denied Petitioner’s petition for review. (Lodged Docs. 5-6.)

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The state determined not to retry Petitioner on Count 1; he was resentenced on

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Count 2 to an indeterminate term of fifteen years to life, plus 25 years to life for the

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firearm enhancement, for an aggregate term of 40 years to life. (Lodged Doc. 11.)

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Following resentencing, Petitioner again appealed. (Lodged Doc. 7.)

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On June 23, 2014, while his appeal was pending, Petitioner filed his first petition

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for writ of habeas corpus along with a request to stay the proceedings pending resolution

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of his second appeal. (ECF Nos. 1, 3.) His motion to stay and abey was granted. (ECF

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No. 9.)

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On December 22, 2015, the Fifth District Court of Appeal modified the abstract of

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judgment to reflect the correct gang enhancement and to note that the enhancement

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was stayed. (Lodged Doc. 11.) In all other respects the judgment was affirmed. On

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February 24, 2016, the California Supreme Court denied review. (Lodged Docs. 12-13.)

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Thereafter, the stay in this court was vacated. (ECF No. 21.) Petitioner filed the

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first amended petition presently before the Court. (ECF No. 22.) On May 3, 2017,

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Respondent filed an answer. (ECF No. 36.) On July 19, 2017, Petitioner filed a traverse.

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(ECF No. 39.) On December 7, 2017, Petitioner filed a document styled as a “Points and

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Authorities in Support of Traverse.” (ECF No. 42.) The matter is submitted.

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II.

Factual Background

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The following facts regarding the underlying offense are taken from the Fifth

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District Court of Appeal’s June 27, 2013, opinion and are presumed correct. 28 U.S.C.

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§ 2254(e)(1).

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On the evening of August 28, 2009, two men wearing blue
were walking along Avenue 416 in Orosi. There were three
other people on the street who were not involved in the
shooting, but witnessed the following events.
As the two men in blue walked on the street, a green Honda
Accord appeared and pulled up to where the two men were
walking. There were four men in the Honda. Someone in the
car yelled the word “‘SuRat’” at the two men in blue.
One witness [J.R.] testified that the Honda's driver and the
man who was sitting in the front passenger seat got out of the
car. They threw cans at the two men in blue. [FN2]
[FN2: On cross-examination, this witness was
impeached with his prior statement to the deputies that
the man in the front passenger seat, later identified as
defendant, did not get out of the car.]
This same witness testified that the man sitting in the
Honda's back seat, behind the driver, got out of the car and
was holding a gun. The gunman initially aimed the gun at the
witness, but then realized the witness was not with the two
men in blue. The gunman then turned the weapon at the two
men in blue, and fired five or six shots. One of the men fell
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down. The other man appeared to be hit in the leg, but he
was able to escape.
Another witness [G.C.] testified that the gunman got out of
the Honda's back seat, and the other three men did not get
out of the car or open their doors. The gunman fired five or
six shots, one man fell down, and the second man ran away.
After firing the shots, the gunman got back into the car, and
the Honda left the area at a high rate of speed.
The initial investigation

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Around 7:50 p.m., deputies from the Tulare County Sheriff's
Department received a dispatch about a gunshot victim on
Avenue 416. The deputies found Arturo Bello lying on the
road. Bello was dead, and his head was in a pool of blood.
He had been wearing a blue tank top, a blue baseball cap,
and white tennis shoes with a blue emblem. There were no
weapons near him. There was a beer bottle found on the
street in the victim's general vicinity.

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Apprehension of suspects

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Shortly after the shooting, the deputies received the report
that a dark colored Honda was involved. Just after finding the
victim's body, the deputies saw a vehicle matching the
Honda's description. It was traveling in excess of 75 miles per
hour. The Honda passed two deputies traveling in an
unmarked patrol unit. The deputies immediately activated the
signal lights and siren to conduct a traffic stop. The Honda
slowed down and finally stopped.

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There were four people in the Honda. Josh Hernandez (Josh)
was the driver. Defendant was sitting in the front passenger
seat. Santos Hernandez (Santos), Josh's brother, and
Rodney “Lance” Zayas were in the back seat. [FN3]
[FN3: We will refer to Santos and Josh by their first
names for ease of reference; no disrespect is
intended.]
Josh was wearing a black baseball cap with a red letter “C,”
and had a red bandana hanging out of his back pocket. Josh
had a tattoo on his arm in red ink which said “Hernandez de
Catela.”
Zayas had a .22–caliber live bullet in his pocket. Zayas also
had “X4” and “TC” tattoos, which were gang-related. Santos

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had a “C” tattoo on his arm, which stood for Catela.
Defendant did not have any visible tattoos and was not
wearing any red or gang-related attire when he was arrested.
At an in-field showup, one of the witnesses identified Zayas
as the gunman, and said the three other suspects had been
in the Honda.

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Search of the car
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A Taurus nine-shot .22–caliber revolver was found on the
floorboard of the Honda's backseat. It contained one .22–
caliber live round but no expended shells. A plastic case was
also in the backseat, and it contained a single .22–caliber live
round and a cylinder lock. The live rounds which were found
in Zayas's pocket, the revolver, and the plastic case were the
same brand.
There were two CD cases in the car marked with the words
“NorCal” and other northern gang-related words. There were
beer bottles in the car.
Searches of the suspects' residences
The deputies searched defendant's bedroom in his mother's
house and found a Blackberry cell phone with gang
photographs; a school group photo which depicted one
person throwing a “four” sign and had derogatory phrases
about the southern gang written on it; and other papers with
gang letters on them. Defendant shared the bedroom with his
brother, and the cell phone belonged to his brother.
When the deputies searched Josh's house in Bakersfield,
they found a coffee mug with a drawing of the Huelga bird,
the words “Catela, BPC,” drawings of the “smile now, cry
later” masks, and it said: “‘F* * * those who oppose.’” There
was a photograph of Josh “throwing up” a “four” sign with a
red rag, signifying the Norteno gang.
Detective Crystal Derington testified that “Brown Pride
Catela” was a northern gang in Cutler, and the words on the
mug were “basically calling out their rival saying that they'll
take care of business and do what it takes to stand their
ground and take control of their territory....”
Zayas's house in Orosi was searched, and the deputies
found a .12–gauge Mossberg semiautomatic shotgun under
the dresser in Zayas's bedroom. It contained five shotgun

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shells. There was red clothing in Zayas's bedroom closet.
The deputies also found three letters from jail inmates and a
page of gang-rap lyrics.
The fatal gunshot wound
The victim suffered two gunshot wounds. The fatal wound
entered his upper lip, just below his nose. The bullet traveled
front to back, slightly downward, and slightly right to left. It
fractured the victim's teeth [FN4] on his upper jaw, continued
through the airway in the back of the mouth, severed the
brain stem from the spinal cord, and went through the base of
the skull. There was a fragment exit wound on the back of his
scalp. A small caliber bullet fragment with rifling marks was
recovered from his neck. This bullet wound was
“immediately” fatal.

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[FN4: Several teeth were found on the street near the
victim's body.]
The victim had a second gunshot wound which entered the
right side of his back. The bullet's trajectory was at an
angle—slightly back to front, upward, and slightly left to right.
The bullet hit the liver, entered the right chest cavity, and hit a
rib. There was no exit wound. A deformed, small caliber bullet
with rifling marks, and bullet fragments were recovered from
the victim's body.

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There were multiple abrasions on the victim's face and body.
The victim's blood-alcohol level was 0.18 percent, and there
was evidence that he had ingested marijuana.

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Defendant's first statement

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At 7:32 a.m. on August 29, 2009, Detective Zaragoza
conducted a videotaped interview with defendant. He advised
defendant of the warnings pursuant to Miranda v. Arizona
(1966) 384 U.S. 436 (Miranda), and defendant agreed to
answer questions about the homicide. [FN5] Defendant, who
was 23 years old, said Josh picked him up the previous day,
and Zayas and Santos were in the car. Josh drove them to a
cemetery, where they visited the grave of Josh's brother.
They stayed there for about two hours and drank beer.
Defendant said they left the cemetery in Josh's car. They
were driving through Orosi when defendant fell asleep.
Defendant said when he woke up, the deputies were behind
Josh's car to conduct the traffic stop. Defendant said he did
not know anything about a homicide, he did not do anything

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wrong, and he fell asleep after they left the cemetery. At the
end of the interview, Detective Zaragoza told defendant he
was going to be booked into jail and asked if he claimed
membership in a gang. Defendant said he was not involved in
any gangs, and he could be housed in general population in
the jail.
[FN5: The videotapes of defendant's two interviews
were played for the jury and not transcribed by the
court reporter. The prosecution apparently prepared
transcripts for the jury to review during trial, but the
transcripts were not introduced into evidence or
included in the record. Our summary is based on our
review of the videotapes themselves, introduced as
exhibit Nos. 69 and 70.]

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While not depicted on the videotape, Detective Zaragoza
testified that defendant was “dry heaving” into a waste basket
for about 10 to 15 minutes at the beginning of the interview,
but he was coherent and did not appear under the influence.
The videotape reflects that defendant was calm and polite
during the interview.

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Defendant's second statement

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Around 9:00 a.m. on the same day, defendant asked to
speak to the detectives again, and said he had been too
scared to tell the truth. Detective Zaragoza conducted
another videotaped interview. Defendant was again advised
of the Miranda warnings, and defendant said he wanted to
talk to Zaragoza. Defendant was very calm and polite during
the interview.

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Defendant said he lied during the first interview to protect
Zayas, and that Zayas fired the gun. Defendant said they left
the cemetery in Josh's car. Josh was driving, defendant was
in the front passenger seat, and Zayas and Santos were in
the back seat.
Defendant said there were two men walking on the street,
and they were wearing blue. Josh drove past them, then
turned the car around and pulled up right next to them.
Defendant said they did not yell at the men but “we all
recognized them.”
Detective Zaragoza asked defendant, “Who came up with the
idea to go mobbing?” [FN6] Defendant replied: “Well, we all
did but we never thought that that was going to happen.”
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Defendant said they had decided to have a barbeque, but
first they were going to do a little mobbing. They were driving
around and “one thing led to another.”
[FN6: As we will explain post, the prosecution's gang
expert testified that “mobbing” meant “to get together”
in a vehicle, look for a rival gang member, and take
action against that person.]
On further questioning, defendant said that Zayas was the
person who said they should go mobbing. Defendant said he
never agreed to go mobbing but admitted that he remained in
the car. Defendant said Zayas always had the gun, but
defendant claimed he did not know about the gun before the
shooting.
Detective Zaragoza asked defendant if going mobbing meant
they were going to look for southerners. Defendant said, “Not
necessarily,” and that it could mean that they were going to
look for someone or just drive around and cruise. Defendant
denied that the Surenos were their targets.
Defendant said Zayas started firing the gun. Defendant said
no one else got out of the car. Defendant thought Zayas fired
five or six shots. Defendant said everyone in the car was
stunned that Zayas had a gun and fired the shots.
Defendant said that after Zayas finished shooting, Zayas got
back in the car and said, “‘[L]et's get the f* * * out of here,’”
and “‘I got ‘em, I got ‘em.’” Josh took off for Orosi, but the
deputies stopped them.
Detective Zaragoza asked defendant if he was a Norteno.
Defendant said no. Defendant said he lived in Cutler, that
there were a lot of northerners, and some were his friends.
Defendant said some people were gangbangers, and he
“kicked it” with them, but claimed he was not in a gang.
Defendant said he “kicked it” with Santos, Josh, his brothers
and cousins. Defendant knew Santos and Josh were
northerners. Defendant was asked: “Do you kick it with
northerners?” Defendant nodded his head, “[Y]es” Defendant
was asked, “[W]hich clique?” Defendant said: “I was never in
a clique. I just hung around with them.”
Defendant said he hung around with Santos, Josh, and with
“BPC.” Defendant was asked, “[H]ow long you been kicking it

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with them?” Defendant replied: “A long time ... seven or eight
years.”
“Q. So you kick it with the BPC, the northerners?
“A. Yeah.”
Defendant was repeatedly asked if he knew Zayas had a gun
before the shooting. Defendant eventually admitted that “we
knew” Zayas had a gun before the shooting, because Zayas
picked up the gun at his house. Defendant explained they left
the cemetery and drove to Zayas's house. Zayas went into
the house and then returned to Josh's car. Defendant said
when Zayas got into the car, he showed them that he had a
gun, and it was a chrome .22– or .25–caliber revolver.
Defendant admitted he had seen Zayas with a gun on other
occasions. Defendant said they carried guns to feel safe from
the southerners.
Defendant repeatedly denied that he touched the gun. When
asked if his fingerprints could be on the gun, defendant said
they might be. Defendant then added there was a “big
possibility” that he touched the gun, but he could not
remember since he was drunk that night.
Defendant admitted that southerners had once shot at him.
He knew that southerners had shot Josh a couple of times.
Defendant also knew that Zayas's brother had been
murdered by a southerner in a gang-related shooting.
As the interview continued, defendant was asked if anyone in
the car said they should look for southerners. Defendant said
that Zayas said, “‘[H]ey, f* * *, let's go look for some scraps.’”
Defendant said they “ran into those guys,” and Zayas said
they were “scraps.” Defendant admitted that he said, “[F]* * *
‘em” when he saw the two men on the street.
Defendant said Zayas got out of the car, fired the shots, got
back into the car, and said, “‘I got ‘em, I got ‘em.’” Defendant
said Zayas meant he got the southerner he had shot. Josh
and Santos said, “‘[L]et's jam.’” Defendant said, “Let's get the
f* * * out of here.”
Defendant was asked what they talked about in the car
before the traffic stop. Defendant said they were all “tripping
out.” Zayas was scared, and he wanted defendant to run
away with the gun. Defendant said no because he didn't
shoot the gun.

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“Q. You've been a northerner for what, eight years ... ?

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“A. Not anymore since today. F* * * that. I don't need this shit,
man.”

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Defendant said he wanted “witness protection” and did not
want to be involved with gangs.
PROCEDURAL HISTORY

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Defendant, Josh, Santos, and Zayas were jointly charged
with count I, conspiracy to commit murder (§§ 182, subd.
(a)(1) & 187); count II, first degree murder of Bello (§ 187,
subd. (a)), with a special circumstance that the offense was
committed by active participants in a criminal street gang (§
190.2, subd. (a)(22)); and count III, attempted murder of the
second man (§§ 664/187, subd. (a)). [FN7]
[FN7: While defendant was charged with murder with a
special circumstance, the prosecutor announced that
she would not seek the death penalty.]
As to all counts, it was alleged that a principal personally and
intentionally discharged a firearm which proximately caused
death (§ 12022.53, subds.(d), (e)(1)); and the offenses were
committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)(C)). As to count II, murder, it was separately
alleged that codefendant Zayas personally used a firearm (§
12022.5, subd. (a)(1)).
Defendant pleaded not guilty. The court granted the
prosecutor's motions to sever defendant's trial from the three
codefendants, and to dismiss count III, attempted murder,
against defendant.

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After a separate jury trial, Zayas was found not guilty of first
degree murder, and guilty of the lesser included offense of
second degree murder with a firearm and gang
enhancements. He was found not guilty of attempted murder.
Zayas was sentenced to 40 years to life. (People v. Zayas
(F062556) filed 6/21/2012)

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Santos pleaded no contest to voluntary manslaughter and the
gang enhancement, with an indicated sentence of 16 to 21
years in prison. The record is silent as to the disposition of
the charges against Josh.
Defendant was tried separately for count I, conspiracy to
commit murder, and count II, first degree murder with a
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special circumstance, and the special allegations. Santos
testified for the prosecution at defendant's jury trial. Santos
stated that he was concerned for his safety and considered a
“rat” by the Nortenos because he was testifying against
defendant.
SANTOS'S TRIAL TESTIMONY

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Santos testified that he had been a member of the North Side
Cutler Norteno gang, but he was no longer in a gang. The
Nortenos lived in Cutler while the Surenos, their rivals, lived
in Orosi. Santos had an “X–4” tattoo on his arm which meant
14, the number claimed by the Nortenos.
Santos testified he did not know if his brother, Josh, had also
been a member of the Nortenos, but admitted that Josh hung
out with him, and he was involved with the Nortenos. Santos
and Josh had been shot at on previous occasions by
members of the Sureno gang. Santos testified that Zayas
was also a member of the Nortenos.

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Santos had known defendant for 10 years. They worked
together and frequently drank and went to parties together.
Santos did not know if defendant was involved with a gang.
Santos did not talk about his own gang status with defendant,
but “everybody knew that I was” in the gang.

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The cemetery

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Santos testified that on the morning of August 28, 2009, he
and his wife went to the cemetery in Sultana to visit the grave
of his younger brother, who had died in a car accident. Josh
arrived separately in his Honda. Santos's wife left, and
Santos and Josh remained at the cemetery. Santos and Josh
drank beer and cried about their brother.
While Santos was at the cemetery, he received a call from
Zayas. Santos told Zayas where they were. Around 1:00
p.m., Zayas arrived at the cemetery. Zayas's older brother
was also buried there. Santos knew that Zayas's brother had
been shot and killed by South Siders.

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Santos testified they called defendant while they were still at
the cemetery, because they wanted to arrange a barbeque.
They left the cemetery, drove to defendant's house, and
picked him up. They bought more beer, and then returned to
the cemetery.

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Santos testified the four men stayed at the cemetery and
drank beer. Zayas was angry and upset as he thought about
his brother.
Zayas retrieves the gun
Santos testified that around 6:00 p.m., they left the cemetery
in Josh's Honda. Josh was driving, defendant was in the front
seat, and Santos and Zayas were in the back seat.

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Josh drove the group to Zayas's house in Orosi so Zayas
could get some money for food. Zayas went into the house
while the other men stayed in the car and continued to drink.
Santos testified that when Zayas returned to the car, he had
a revolver in his waistband. Santos was surprised to see the
gun. Josh briefly took the gun from Zayas to make sure it was
not loaded. Santos and defendant did not hold the gun.

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Santos testified that Zayas said, “‘Let's go for a ride,’” and
used the term “mobbing.” Santos believed that Zayas was
“mad, looking for trouble” with South Siders. Santos knew the
term “Scrap hunting” meant mobbing with a gun. Santos
testified that everyone in the car knew Zayas had a gun.
Santos thought Zayas was just looking for a fight. Santos
testified none of them tried to get out of the car. Josh
continued driving, and they all agreed to drive to Orosi to go
mobbing.
The shooting
Santos testified they drove around Orosi looking for Scraps.
Zayas saw “two guys” wearing blue hats who were walking
on Avenue 416. Josh drove past the two men and Zayas
yelled something at them. Defendant swore at the two men.
The two men yelled something back, and they threw
something at Zayas.
Santos testified Josh turned the car around and drove up to
the two men. Zayas got out of the car and fired shots at them.
Santos testified it happened very quickly. Santos, Josh, and
defendant stayed in the car. Zayas fired five or six rounds.
Santos could not tell if he hit anyone.
Zayas got back into the car and said, “‘I think I got one.’”
Santos testified that he had no idea that Zayas was going to
shoot anyone. Josh and defendant were shocked about what

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Zayas did. Santos testified that Zayas shot a Sureno because
he was mad that a Sureno killed his brother.
Josh immediately drove away from Orosi. No one in the car
said anything. The deputies pursued them. When the
deputies appeared behind their car, Zayas looked scared and
told defendant to take the gun and run away. Defendant
refused and Josh stopped the car.

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Santos testified that after he was arrested, he was placed in a
patrol car with defendant. Santos told defendant that he was
going to claim he was drunk. Defendant did not say anything.
Santos testified that when he was initially interviewed, he
claimed he was drunk and passed out. However, he later told
the detectives what happened in the car.

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GANG EXPERT'S TESTIMONY

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Tulare County Sheriff's Detective Steven Sanchez was
assigned the North County Gang Violence Special Unit. He
testified the Norteno gang claimed the color red and the
number 14. The letters “TC” were a local Norteno tattoo
which meant Tulare County. Other Norteno tattoos included
“X4” for 14, and the Huelga bird.

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The Norteno subset gangs in Tulare County included the
Brown Pride Catela (BPC), North Side Catela, and East Side
Orosi. [FN8] There were over 150 Norteno gang members in
the Cutler–Orosi area. The primary activities of the Norteno
gang included homicide, attempted homicide, robbery,
carjacking, and felony graffiti. One of the goals of the gang
was to instill fear of retaliation.

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[FN8: Another officer testified that Brown Pride Catela
was the predominant Norteno gang in the area.]
The Surenos were the rivals of the Nortenos and claimed the
color blue and the number 13. A derogatory name for the
Surenos was Scraps.
Detective Sanchez testified that gang members gain respect
by being feared in the community. When they are
disrespected, they will be seen as weak unless they respond.
They could be disrespected by rival gang members yelling
their names or tagging graffiti in their turf. Gang members will
typically commit offenses in front of fellow gang members.
They will achieve greater status within their gang if they

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commit violent crimes. It is a sign of betrayal for a gang
member to testify against another gang member.
“Mobbing”
Detective Sanchez testified there was a Norteno turf war in
the Cutler–Orosi area. Surenos claimed Orosi while Nortenos
claimed Cutler, and the two towns were separated by one
street. The violence between the two gangs had escalated
within the past five years because each gang was trying to
claim the other city as their turf.
Sanchez explained that “mobbing” meant “to get together” in
a vehicle, look for a rival gang member, and take action
against that person. It was common for gang members to go
mobbing and look for their rivals. Detective Sanchez did not
know if it was common for gang members to have a weapon
while they were mobbing. “Scrap hunting” meant that a
Norteno was looking for a rival Sureno.
Predicate offenses

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Detective Sanchez testified about two predicate offenses
involving members of the Norteno gang in Tulare County.
Robert Clevenger and Enrique Gonzalez, members of BPC,
were convicted of committing an assault with a deadly
weapon in May 2007. They were driving around in the Orosi
area, confronted two Surenos, and Gonzalez opened fire on
the Surenos. The participants in the other predicate offense
were Javier Sahagun, Humberto Melchor, and George Lua,
also members of BPC, who were convicted of committing an
assault with a deadly weapon in October 2008. They had
been in a car which opened fire on a Sureno in Cutler.

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Gang status

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Detective Sanchez testified that in order to validate a person
as a gang member, law enforcement officers rely on certain
criteria. Based on such criteria, Zayas was a validated
member of the Norteno gang: he had previously associated
himself with the Nortenos when he was booked into jail, he
had gang-related tattoos, and gang-related items were found
at his house. Josh was also a validated Norteno and member
of BPC. Josh often associated with Zayas. Josh was wearing
Norteno clothing and colors when he was stopped after the
shooting, he had gang-related tattoos, and gang indicia was
found at his house. Santos was a validated gang member
and admitted being a member of North Side Catela.

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Detective Sanchez testified that defendant did not possess
any gang indicia when he was arrested in this case. The
officers did not find any weapons or gang-related attire when
they searched defendant's house. Defendant has a tattoo of
his last name on his leg. It was common for gang subjects to
have such tattoos, but Sanchez conceded it was not a gangrelated tattoo.

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Detective Sanchez conceded that as of the day before the
homicide in this case, defendant did not meet any of the
criteria used to validate a person as a gang member. He was
unable to locate any field interview or crime reports about
defendant.
However, Sanchez testified that someone could be validated
as a gang member by meeting the gang criteria based on one
actual crime committed by that person. Sanchez believed
defendant was a validated Norteno and part of BPC as of the
date of the shooting because he admitted gang membership
during his interview with Detective Zaragoza; he associated
with gang members; he was involved in a gang-related crime;
and he possessed gang indicia, gang writings, and gang
photographs at his house.
When defendant was booked in this case, defendant said he
did not have any known enemies. However, the intake officer
who interviewed defendant reported that defendant said he
was a Norteno dropout, and had known enemies in custody
from both southern and northern sides.
Detective Sanchez testified that when defendant was
interviewed by the officers about the homicide, he admitted
that he had been associated with BPC for approximately
eight years. He never claimed to be a dropout. Defendant
also admitted that he “kicked it” with “‘these guys,’” identified
as Santos, Josh, and their cousins. Defendant told the
detectives that Zayas picked up the gun from his house, that
it was Zayas's idea to go mobbing, and defendant knew they
were going to go out and “look for some Scraps.” Defendant
said that he saw the two men walking down the street, and he
thought they were Surenos. Defendant admitted that he said,
“‘[F]* * * ‘em.’” Detective Sanchez testified such a phrase
meant to assault the rivals.
Sanchez testified the items found in defendant's bedroom
were also indicative of Norteno gang membership, including
the photograph with “BPC” written on it, along with the words,
“‘gang that all his Scraps belong 6 feet under.’” Some of the
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people in the photograph were “X-ed” out in blue ink.
Sanchez testified it was common to find yearbooks which
belonged to gang members, where they had crossed out the
pictures of rival gang members. Sanchez admitted that he did
not know if defendant wrote the gang language on the
photograph. The Blackberrry cell phone, which belonged to
defendant's brother, contained a photograph that depicted
defendant with six individuals, posing with a marijuana plant.
Some of the subjects were flashing Norteno gang signs.
However, defendant was not flashing a gang sign.
Hypothetical question
The prosecutor asked Detective Sanchez a hypothetical
question about four Nortenos who visit the cemetery and talk
about a relative who was killed by a Surenos. They decide to
go mobbing, and the surviving relative picks up his gun. They
drive around and see two guys wearing Sureno blue. The
Nortenos shout out gang slurs, the two guys in blue yell
something in return. The driver makes a U-turn and pulls up
to where the two guys are walking. The gunman shoots at
both men in blue, and he kills one of them.
In response, Detective Sanchez testified that such a highprofile assault would be committed for the gang's benefit, and
boost the gang members' status within the gang. “Also, it
continues the war on the streets between the North and
South, especially in the Cutler–Orosi area[,]” and this one
incident would “fuel ten other incidents that happen in the
future because of this. It's going to continue the gang war. It
also sends a message to the rivals that one gang is
particularly responsible for doing the shooting.”
DEFENSE EVIDENCE
Scott LaFleur had been defendant's high school English
teacher in the late 1990s. LaFleur described defendant as a
great kid, and he was shocked to hear about the charges
against him.

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Manuel Lopez lived next to defendant in Cutler and had
known him for 15 years. Lopez described defendant as a
quiet person who was not violent. Lopez was also surprised
when he heard about this case. Lopez never knew defendant
to be involved with gangs.

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Defendant's trial testimony

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Defendant testified that he hung around with Josh and
Santos. He knew they were Nortenos, but testified that they
had a social relationship. On the day of the shooting, they
picked him up and drove to the cemetery where they drank
beer and smoked marijuana. Defendant said he did not know
Zayas's brother, but knew he had been shot by rival gang
members.

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Defendant testified that they drove to Zayas's house to pick
up money for a barbeque. Zayas returned to the car and
showed them a gun. Josh took the gun away from Zayas to
make sure it was not loaded. Defendant became concerned
and asked Josh to take him home. However, defendant did
not try to leave.

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Defendant testified that “mobbing” meant drinking, smoking
weed, and driving slowly. He admitted that mobbing could
lead to trouble. Defendant saw the two men in blue walking
down the street. Defendant pretended not to see them, but
Zayas started yelling and exchanging words with them.
Defendant told Josh to keep driving, but he did not tell Josh
to pull over and let him out.
Defendant testified Josh turned around and drove up to the
two men. Zayas got out of the car and started shooting.
Defendant never thought Zayas would shoot anyone, and he
was shocked when Zayas opened fire. After the shooting,
defendant said, “‘Let's get the f* * * out of here[,]’” because he
had nothing to do with it. Defendant did not want to wait for
the police to arrive, because he was afraid that Zayas might
believe he was a “rat” and kill him too.
Defendant testified that he was not completely honest when
he was initially interviewed in this case. He was shocked,
sick, and afraid, and he was trying to protect Zayas.
Defendant felt scared and pressured by the gang
investigators. Defendant decided to ask for the second
interview to clear things up.
Defendant admitted that he lied during his interviews with the
officers. During one of the interviews, he said that he might
have touched the gun in the car. He only said that because
he felt pressured by the officers. Defendant testified that he
never touched the gun. Defendant admitted that he also told
the officers that he said, “‘[F]* * * em,’” when he saw the two

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men walking on the street. However, defendant testified he
never actually said that when he was in the car.

2

Defendant knew Josh, Santos, and Zayas were Nortenos,
and he got into the car that day with three known Nortenos.
Defendant admitted that he said he “kicked it” with Josh and
Santos, but he never said he was a Norteno or in BPC, and
he had never been in a gang.

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Defendant testified the school photograph found in his
bedroom belonged to a friend, and someone else wrote on
the picture. Defendant claimed that the officers “labeled” him
as a Norteno dropout.

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Verdicts and sentence

7

Defendant was convicted of count I, conspiracy to commit
murder. In count II, he was found not guilty of first degree
murder, but guilty of second degree murder as a lesser
included offense. The jury found the firearm and gang
enhancements true. He was sentenced to 50 years to life.

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People v. Garcia, No. F062834, 2013 WL 3286207, at *1–10 (Cal. Ct. App. June 27,

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2013)

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III.

Jurisdiction and Venue

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Relief by way of a writ of habeas corpus extends to a prisoner under a judgment

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of a state court if the custody violates the Constitution, laws, or treaties of the United

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States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362,

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375 n.7 (2000). Petitioner asserts that he suffered a violation of his rights as guaranteed

20

by the U.S. Constitution. Petitioner was convicted and sentenced in this district. 28

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U.S.C. § 2241(d); 2254(a). The Court concludes that it has jurisdiction over the action

22

and that venue is proper.

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IV.

Applicable Law

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The petition was filed after April 24, 1996 and is governed by the Antiterrorism

25

and Effective Death Penalty Act of 1996 (“AEDPA”). Lindh v. Murphy, 521 U.S. 320, 326

26

(1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under AEDPA, federal

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

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proceedings if the state court's adjudication of the claim:

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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law,
as determined by the Supreme Court of the United States; or

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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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28 U.S.C. § 2254(d).
A.

Standard of Review

A state court decision is “contrary to” federal law if it “applies a rule that
contradicts governing law set forth in [Supreme Court] cases” or “confronts a set of facts
that are materially indistinguishable from” a Supreme Court case, yet reaches a different
result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-06).
“AEDPA does not require state and federal courts to wait for some nearly identical
factual pattern before a legal rule must be applied. . . . The statue recognizes . . . that
even a general standard may be applied in an unreasonable manner” Panetti v.
Quarterman, 551 U.S. 930, 953 (2007) (citations and quotation marks omitted). The
“clearly established Federal law” requirement “does not demand more than a ‘principle’
or ‘general standard.’” Musladin v. Lamarque, 555 F.3d 830, 839 (2009). For a state
decision to be an unreasonable application of clearly established federal law under
§ 2254(d)(1), the Supreme Court's prior decisions must provide a governing legal
principle (or principles) to the issue before the state court. Lockyer v. Andrade, 538 U.S.
63, 70-71 (2003).
A state court decision will involve an “unreasonable application of” federal law
only if it is “objectively unreasonable.” Id. at 75-76 (quoting Williams, 529 U.S. at 40910); Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). “[A]n unreasonable application of
federal law is different from an incorrect application of federal law.” Harrington v. Richter
562 U.S. 86, 101 (2011) (citing Williams, 529 U.S. at 410) (emphasis in original). “A state

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court's determination that a claim lacks merit precludes federal habeas relief so long as

2

‘fairminded jurists could disagree’ on the correctness of the state court's decision.” Id.

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(citing Yarborough v. Alvarado, 541 U.S. 653, 664 (2004)). Further, “[t]he more general

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the rule, the more leeway courts have in reading outcomes in case-by-case

5

determinations.” Id.; Renico v. Lett, 130 S. Ct. 1855, 1864 (2010). “It is not an

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unreasonable application of clearly established Federal law for a state court to decline to

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apply a specific legal rule that has not been squarely established by [the Supreme

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Court].” Knowles v. Mirzayance, 556 U.S. 111, 122 (2009).

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B.

Requirement of Prejudicial Error

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In general, habeas relief may only be granted if the constitutional error

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complained of was prejudicial. That is, it must have had “a substantial and injurious

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effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S.

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619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (holding that the

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Brecht standard applies whether or not the state court recognized the error and reviewed

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it for harmlessness). Some constitutional errors, however, do not require a showing of

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prejudice. See Arizona v. Fulminante, 499 U.S. 279, 310 (1991); United States v. Cronic,

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466 U.S. 648, 659 (1984). Furthermore, claims alleging ineffective assistance of counsel

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are analyzed under the Strickland prejudice standard; courts do not engage in a

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separate analysis applying the Brecht standard. Strickland v. Washington, 466 U.S. 668

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(1984); Avila v. Galaza, 297 F.3d 911, 918, n.7 (2002); Musalin v. Lamarque, 555 F.3d

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830, 834 (9th Cir. 2009).

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C.

Deference to State Court Decisions

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“[S]tate courts are the principal forum for asserting constitutional challenges to

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state convictions,” not merely a “preliminary step for a later federal habeas proceeding.”

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Richter, 562 U.S. at 103. Whether the state court decision is reasoned and explained, or

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merely a summary denial, the approach to evaluating unreasonableness under

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§ 2254(d) is the same: “Under § 2254(d), a habeas court must determine what

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arguments or theories supported or . . . could have supported, the state court's decision;

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then it must ask whether it is possible fairminded jurists could disagree that those

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arguments or theories are inconsistent with the holding in a prior decision of [the

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Supreme Court].” Id. at 102. In other words:

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

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Id. at 103. Thus, the Court may issue the writ only “in cases where there is no possibility

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fairminded jurists could disagree that the state court's decision conflicts with [the

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Supreme Court’s] precedents.” Id. at 102.

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7

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

13

later unexplained orders upholding that judgment or rejecting the claim rest on the same

14

grounds.” See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Thus, the court will “look

15

through” a summary denial to the last reasoned decision of the state court. Id. at 804;

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Plascencia v. Alameida, 467 F.3d 1190, 1198 (9th Cir. 2006). Furthermore, the district

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court may review a habeas claim, even where the state court’s reasoning is entirely

18

unexplained. Richter, 562 U.S. at 98. “Where a state court's decision is unaccompanied

19

by an explanation, the habeas petitioner's burden still must be met by showing there was

20

no reasonable basis for the state court to deny relief.” Id. (“This Court now holds and

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

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decision can be deemed to have been ‘adjudicated on the merits.’”).

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V.

Review of Petition

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A.

Claim One: Lesser Included Offense Instructions

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Petitioner argues that the trial court’s failure to give instructions on the included

26

offenses of voluntary and involuntary manslaughter violated his right to trial by jury and

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his right to due process as guaranteed by the United States Constitution.

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1.

Voluntary Manslaughter Instruction

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Petitioner contends that the trial court erred in failing to instruct the jury sua

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sponte on voluntary manslaughter based on the nonstatutory theory that a killing

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committed without malice during the course of an inherently dangerous assaultive felony

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constitutes voluntary manslaughter, rather than murder.

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a.

State Court Decision

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The California Supreme Court summarily denied this claim. Accordingly, the Court

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“looks through” the Supreme Court’s decision to the reasoned decision of the Fifth

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District Court of Appeal. See Ylst, 501 U.S. at 804. The Court of Appeal rejected

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Petitioner’s claim as follows:

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IV. Voluntary manslaughter instructions

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Defendant was charged with first degree murder, and the jury
received instructions on second degree murder as the only
lesser included offense. Defendant now contends the court
had a sua sponte duty to instruct the jury about both
voluntary and involuntary manslaughter as lesser included
offenses of second degree murder. In this section, we will
address
defendant's
contentions
about
voluntary
manslaughter.

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A. Sua sponte duty to instruct
“It is, of course, axiomatic that ‘in criminal cases, even in the
absence of a request, the trial court must instruct on the
general principles of law relevant to the issues raised by the
evidence. [Citations.] ... That obligation has been held to
include giving instructions on lesser included offenses when
the evidence raises a question as to whether all of the
elements of the charged offense were present [citations], but
not when there is no evidence that the offense was less than
that charged.’ [Citation.] Thus, it has long been settled that
the trial court need not, even if requested, instruct the jury on
the existence and definition of a lesser and included offense if
the evidence was such that the defendant, if guilty at all, was
guilty of the greater offense. [Citations.]” (People v. Kelly
(1990) 51 Cal.3d 931, 958–959; People v. Breverman (1998)
19 Cal.4th 142, 154–155.)

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“The failure to instruct on a lesser included offense in a
noncapital case does not require reversal ‘unless an
examination of the entire record establishes a reasonable
probability that the error affected the outcome.’ [Citation.]
‘Such posttrial review focuses not on what a reasonable jury
could do, but what such a jury is likely to have done in the
absence of the error under consideration. In making that
evaluation, an appellate court may consider, among other
things, whether the evidence supporting the existing
judgment is so relatively strong, and the evidence supporting
a different outcome is so comparatively weak, that there is no
reasonable probability the error of which the defendant
complains affected the result.’ [Citation.]” (People v. Thomas
(2012) 53 Cal.4th 771, 814, fn. omitted, italics in original.)
[FN10]
[FN10: This is a noncapital case for purposes of
appellate review: defendant was charged with first
degree murder with a special circumstance, but the
prosecutor announced that she would not seek the
death penalty, and defendant was ultimately convicted
of second degree murder. (See, e.g., People v.
Thomas, supra, 54 Cal.4th at p. 814, fn. 11.)]
B. Murder and manslaughter
As explained above, murder is an unlawful killing with malice
aforethought. (§ 187, subd. (a).) Malice is express when the
defendant manifests a deliberate intention to take away the
life of another. (People v. Blakeley (2000) 23 Cal.4th 82, 87,
96.) A defendant acts with implied malice when he acts with
an awareness of endangering human life. (People v. Knoller
(2007) 41 Cal.4th 139, 143, 153.)
Both voluntary and involuntary manslaughter are lesser
included offenses of murder. (People v. Thomas, supra, 53
Cal.4th at p. 813; People v. Rios (2000) 23 Cal.4th 450, 460.)
“The lesser included offense of manslaughter does not
include the element of malice, which distinguishes it from the
greater offense of murder. [Citation.]” (People v. Cook (2006)
39 Cal.4th 566, 596.)
Malice is presumptively absent, and the crime constitutes
voluntary manslaughter, when a defendant, acting with intent
to kill or conscious disregard for life, “kills ‘upon a sudden
quarrel or heat of passion’ (§ 192, subd. (a)), provided that
provocation is sufficient to cause an ordinarily reasonable
person to act rashly and without deliberation, and from
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passion rather than judgment. [Citation.] Additionally, when a
defendant kills in the actual but unreasonable belief that he or
she is in imminent danger of death or great bodily injury, the
doctrine of ‘imperfect self-defense’ applies to reduce the
killing from murder to voluntary manslaughter. [Citations.]”
(People v. Koontz (2002) 27 Cal.4th 1041, 1086.)
C. Garcia and Bryant
As to voluntary manslaughter, defendant does not contend
that lesser included offense instructions should have been
given based on either heat of passion or unreasonable self
defense. Instead, defendant asserts the trial court had a sua
sponte duty to instruct the jury on a new, nonstatutory theory
of voluntary manslaughter—a killing committed without
malice during the course of an inherently dangerous
assaultive felony—because the jury could have found that he
did not know of or share Zayas's “murderous intent.”
Defendant contends that “California courts have recognized a
non-statutory form of voluntary manslaughter: an
unintentional killing in the course of an aggravated assault.”

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Defendant's voluntary manslaughter argument is based on
People v. Garcia (2008) 162 Cal.App.4th 18 (Garcia). In that
case, the defendant assaulted the victim with the butt of a
gun, causing the victim to strike his head on the pavement
and suffer fatal head injuries. Defendant argued he had only
meant to hurt the victim and not to kill him. The jury was
instructed on murder, and the lesser included offense of
voluntary manslaughter based on provocation or imperfect
self-defense. The defendant was convicted of voluntary
manslaughter. On appeal, the defendant argued the trial
court had a sua sponte duty to instruct the jury on involuntary
manslaughter because there was substantial evidence the
victim was killed without malice, i.e., without an intent to kill or
conscious disregard for human life. (Id. at p. 26.)
Garcia rejected defendant's involuntary manslaughter
argument. In doing so, however, Garcia stated that “an
unlawful killing during the commission of an inherently
dangerous felony, even if unintentional, is at least voluntary
manslaughter.” (Garcia, supra, 162 Cal.App.4th at p. 31.)
In People v. Bryant (June 3, 2013, S196365) -- Cal.4th -[2013 WL 2372310] (Bryant), the Fourth District relied on this
language in Garcia and held the trial court erred in failing to
instruct the jury, sua sponte, that an unintentional killing
without malice during the course of an inherently dangerous
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assaultive felony constituted voluntary manslaughter. (Bryant,
supra, at pp. 2–3.)
When defendant filed his brief in his appeal, he relied on the
Fourth District's opinion in Bryant. Defendant argued the trial
court in this case also had a sua sponte duty to give the
same voluntary manslaughter instruction, based on Bryant's
interpretation of Garcia. At the time that defendant filed his
brief, however, the California Supreme Court had granted
review in Bryant and the case was not citable. (People v.
Bryant, review granted Nov. 16, 2011, S196365.)
Nevertheless, defendant insisted the trial court had a duty to
give the same type of sua sponte instruction on voluntary
manslaughter as the Fourth District formulated in Bryant, and
suggested in dicta in Garcia. [FN11]
[FN11: We note that defendant was tried and
convicted in this case in June 2011. The Fourth District
filed its appellate opinion in Bryant in August 2011,
and the California Supreme Court granted review in
November 2011. The trial court in this case could
hardly have acquired a sua sponte duty to instruct on a
theory that was dicta in Garcia, had not been raised by
defendant, and had not been addressed by an
appellate court at the time of defendant's jury trial. As
the California Supreme Court has explained, “the sua
sponte ‘rule seems undoubtedly designed to promote
the ends of justice by providing some judicial
safeguards for defendants from the possible vagaries
of ineptness of counsel under the adversary system.
Yet the trial court cannot be required to anticipate
every possible theory that may fit the facts of the case
before it and instruct the jury accordingly. The judge
need not fill in every time a litigant or his counsel fails
to discover an abstruse but possible theory of the
facts.’” (People v. Flannel (1979) 25 Cal.3d 668, 683.)]
In any event, the California Supreme Court has now issued
its opinion in Bryant, and rejected the Fourth District's
interpretation of voluntary manslaughter and Garcia. Bryant
explained: “A defendant commits voluntary manslaughter
when a homicide that is committed either with intent to kill or
with conscious disregard for life—and therefore would
normally constitute murder—is nevertheless reduced or
mitigated to manslaughter. [Citation.]” (Bryant, supra, -Cal.4th -- at p. 8.) “Although we have on occasion employed
somewhat different formulations to define the offense of
voluntary manslaughter, we have never suggested that it
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could be committed without either an intent to kill or a
conscious disregard for life.” (Id. at pp. 9–10.)
Bryant clarified that the court had never held “that a
defendant may be found guilty of voluntary manslaughter
when he kills unintentionally and without conscious disregard
for life.” (Bryant, supra, -- Cal.4th -- at p. 11.)
“A defendant who has killed without malice in the
commission of an inherently dangerous assaultive
felony must have killed without either an intent to kill or
a conscious disregard for life. Such a killing cannot be
voluntary
manslaughter
because
voluntary
manslaughter requires either an intent to kill or a
conscious disregard for life. To the extent that ...
Garcia ... suggested otherwise, it is now disapproved.
[¶] Because a killing without malice in the commission
of an inherently dangerous assaultive felony is not
voluntary manslaughter, the trial court could not have
erred in failing to instruct the jury that it was.” (Id. at
pp. 12.)

13
D. Analysis
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Defendant contends the trial court had a sua sponte duty to
instruct the jury with Garcia's “nonstatutory” theory of
voluntary manslaughter, based on an unintentional killing in
the course of an aggravated assault. Defendant argues the
jury could have found that defendant did not know or share
Zayas's intent to kill even if he knew Zayas was armed, and
the jury could have found that defendant only intended to aid
and abet an aggravated assault and did not appreciate the
danger to life.
Defendant's argument is meritless given the California
Supreme Court's complete rejection of the Fourth District's
interpretation of Garcia, and the possibility that such a theory
of voluntary manslaughter exists. We thus conclude the trial
court in this case did not have a sua sponte duty to instruct
the jury on any nonstatutory version of voluntary
manslaughter.
Garcia, 2013 WL 3286207, at *19–22.
b.

Applicable Law on Lesser Included Offense Instructions

“[T]he failure . . . to instruct on lesser included offenses in a non-capital case does
not present a federal constitutional question.” Windham v. Merkle, 163 F.3d 1092, 110526

1

06 (9th Cir. 1998). There is no Supreme Court authority holding that the Constitution

2

entitles a defendant in a non-capital case to jury instructions on lesser included offenses.

3

Beck v. Alabama, 447 U.S. 625, 638 n.14 (1980); Howell v. Mississippi, 543 U.S. 440,

4

445 (2005) (suggesting Beck does not apply in non-capital cases). Thus, a state court

5

could not have applied Supreme Court authority unreasonably in denying a claim based

6

on the failure to give a lesser included offense instruction in a non-capital case. 28

7

U.S.C. § 2254(d); Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (“[T]his Court has

8

held on numerous occasions that it is not an unreasonable application of clearly

9

established Federal law for a state court to decline to apply a specific legal rule that has

10

not been squarely established by this Court.”) (internal quotation omitted); see also

11

United States v. Rivera-Alonzo, 584 F.3d 829, 834 n.3 (9th Cir. 2009) (“In the context of

12

a habeas corpus review of a state court conviction, we have stated that there is no

13

clearly established federal constitutional right to lesser included instructions in non-

14

capital cases.”). Nonetheless, despite these holdings, the Ninth Circuit has stated,

15

without deciding, that a defendant in a non-capital case may be entitled to lesser

16

included offense instructions if those instructions encompass the defendant’s theory of

17

defense and are supported by substantial evidence. Solis v. Garcia, 219 F.3d 922, 929-

18

30 (9th Cir. 2000).1

19

Errors in instructing the jury can only support federal habeas relief if they “so

20

infected the entire trial that the resulting conviction violates due process.” Estelle v.

21

McGuire, 502 U.S. 62, 72 (1991)). Allegedly erroneous instructions “must be considered

22

in the context of the instructions as a whole and the trial record.” Id. at 72. Additionally, a

23

state court's reasoned interpretation that a petitioner was not entitled to an instruction

24

under state law binds this court. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per

25
1

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27
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However, subsequent Ninth Circuit cases have cited Solis for the absolute proposition that there is no
clearly established federal constitutional right to instructions on lesser-included offenses in non-capital
cases. Rivera-Alonzo, 584 F.3d at 834 n.3; Cervantez v. Pliler, 360 Fed. Appx. 737, 738 (9th Cir.2009).
District Courts have likewise questioned whether this statement in Solis is based on clearly established
Supreme Court precedent. E.g. Chaidez v. Knowles, 258 F. Supp. 2d 1069, 1096 n.15 (N.D. Cal. 2003)
(suggesting there is not clearly established Supreme Court authority for Solis proposition).

27

1

curiam) (“[A] state court's interpretation of state law, including one announced on direct

2

appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”); see

3

also Mullaney v. Wilbur, 421 U.S. 684, 691 & n.11 (1975) (holding that “state courts are

4

the ultimate expositors of state law” and federal courts are bound by their interpretations

5

of state law unless the holding “appears to be an obvious subterfuge to evade

6

consideration of a federal issue”) (citation and internal quotation omitted); see also Solis,

7

219 F.3d at 927 (“We accept, as we must, the California Supreme Court's identification

8

of the elements of the offense.”); Stanton v. Benzler, 146 F.3d 726, 728 (9th Cir. 1998)

9

(holding that state court's determination on what constitutes “an element of the offense

10

. . . is not open to challenge on habeas review”); Melugin v. Hames, 38 F.3d 1478, 1487

11

(9th Cir. 1994) (“[The Ninth Circuit] must accept a state court ruling on questions of state

12

law.”). A state court's determination that the evidence does not support a requested

13

instruction is entitled to a presumption of correctness from a federal habeas court. See

14

Menendez v. Terhune, 422 F.3d 1012, 1029 (9th Cir. 2005); see also Hartman v.

15

Summers, 120 F.3d 157, 161 (9th Cir. 1997)

16

Finally, a habeas petitioner is not entitled to relief unless the instructional error

17

“‘had substantial and injurious effect or influence in determining the jury's verdict.’”

18

Brecht v. Abrahamson, 507 U.S. 619 at 637, 113 S.Ct. 1710, 123 L.Ed.2d 353. In other

19

words, the error must have resulted in “actual prejudice.” Id.

20

c.

Analysis

21

As stated, there is no clearly established Supreme Court authority requiring that

22

lesser included offense instructions be given in non-capital cases. Thus, the state court’s

23

rejection of this claim was not unreasonable.

24

In any event, Petitioner contends that he was entitled to a voluntary manslaughter

25

instruction based on the Courts of Appeals’ reasoning in Garcia and Bryant. However,

26

the elements of the offense of manslaughter are a question of state substantive law. The

27

California Supreme Court is the final arbiter of state law, and has rejected the existence

28
28

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of a non-statutory form of voluntary manslaughter predicated on a killing without malice

2

in the course of an inherently dangerous assaultive felony. People v. Bryant, 56 Cal. 4th

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959, 970, 301 P.3d 1136, 1142 (2013). That decision is binding on this court. To the

4

extent Petitioner contends this ruling is in error, a challenge to a jury instruction based

5

solely on an error of state law is not cognizable. Estelle v. McGuire, 502 U.S. 62, 71-72

6

(1991). The Court’s habeas jurisdiction extends only to a claim that the conviction

7

violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28

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U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000). Here,

9

Finally, the failure to give the instruction did not violate due process. The

10

instruction was inapplicable under state law, and there was therefore no substantial

11

evidence to support giving it. Nor was Petitioner prejudiced, given that the jury could not

12

have found him guilty of voluntary manslaughter in light of Bryant.

13
14

Petitioner is not entitled to relief on this claim.
2.

Involuntary Manslaughter Instruction

15

Petitioner argues that the state court erred in failing to sua sponte give an

16

involuntary manslaughter instruction on the ground that the jury could have concluded

17

he had only the intent to aid and abet assault and battery, rather than murder.

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a.

State Court Decision

The Fifth District Court of Appeal rejected this claim as follows:
V. Involuntary manslaughter instructions
Defendant separately contends the court had a sua sponte
duty to instruct on involuntary manslaughter as another lesser
included offense of murder. “Involuntary manslaughter is
manslaughter during ‘the commission of an unlawful act, not
amounting to a felony,’ or during ‘the commission of a lawful
act which might produce death, in an unlawful manner, or
without due caution and circumspection.’ (§ 192, subd. (b).)
‘The offense of involuntary manslaughter requires proof that a
human being was killed and that the killing was unlawful.
[Citation.] A killing is “unlawful” if it occurs (1) during the
commission of a misdemeanor inherently dangerous to
human life, or (2) in the commission of an act ordinarily lawful
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but which involves a high risk of death or bodily harm, and
which is done “without due caution or circumspection.”’
[Citation.]” (People v. Murray (2008) 167 Cal.App.4th 1133,
1140.) There also exists a nonstatutory form of the offense,
which is based on the predicate act of a noninherently
dangerous felony committed without due caution and
circumspection. (People v. Butler (2010) 187 Cal.App.4th
998, 1007 .)
“[C]riminal negligence is the governing mens rea standard for
all three forms of committing the offense. [Citations.]” (People
v. Butler, supra, 187 Cal.App.4th at p. 1007.) Criminal
negligence consists of “‘aggravated, culpable, gross, or
reckless' conduct that creates a high risk of death or great
bodily injury and that evidences a disregard for human life or
indifference to the consequences of the conduct. [Citations.]”
(Garcia, supra, 162 Cal.App.4th at pp. 27–28.)
As explained in section IV, ante, Garcia addressed whether
the trial court in that case had a sua sponte duty to instruct on
involuntary manslaughter as a lesser included offense of
murder, where the defendant hit the victim in the face with the
butt of a shotgun. (Garcia, supra, 162 Cal.App.4th at p. 22.)
Garcia clarified that an unlawful killing during the commission
of an inherently dangerous felony was not involuntary
manslaughter. (Id. at p. 31.) Garcia concluded the court did
not have a sua sponte duty to give involuntary manslaughter
instructions because the defendant's conduct constituted
either assault with a deadly weapon or assault with a firearm,
and both offenses were inherently dangerous felonies. (Id. at
pp. 22, 31–32.)
Defendant argues that the court should have instructed on
involuntary manslaughter in this case because the jurors
could have had a reasonable doubt whether defendant knew
Zayas was armed with a loaded gun. Defendant asserts that
if he “only intended to aid and abet a simple assault or battery
and acted with criminal negligence, he would be guilty of
involuntary manslaughter at most.”
While Bryant rejected the Fourth District's discussion of
Garcia and voluntary manslaughter, the majority opinion
declined to address Garcia's analysis of involuntary
manslaughter. (People v. Bryant, supra, -- Cal.4th -- at p. 12.)
We note that Justice Kennard filed a concurring opinion and
found an assault with a deadly weapon can constitute the
unlawful act that makes a killing which occurs during the
assault an involuntary manslaughter. (Id. at pp. 4–5 [Conc.
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Opn., Kennard J.].) Justice Kennard believed “a killing
committed during an unlawful act amounting to a felony is
involuntary manslaughter, notwithstanding the appearance of
the phrase ‘not amounting to felony’ in section 192's
subdivision (b)....” (Id. at p. 6.) In reaching this conclusion,
however, Justice Kennard further found the trial court in
Bryant did not have a sua sponte duty to instruct on this
theory of involuntary manslaughter, because it was based “on
a legal principle that has been so ‘obfuscated by infrequent
reference and inadequate elucidation’ that it cannot be
considered a general principal of law. [Citation.].” (Id. at pp.
6–7.)
In any event, while a homicide may constitute involuntary
manslaughter if it occurs during the commission of a
misdemeanor inherently dangerous to human life, that
definition would not apply in this case. Both assault with a
deadly weapon and assault with a firearm are inherently
dangerous felonies. (Garcia, supra, 162 Cal.App.4th at p. 28,
fn. 4.) Defendant admitted that he knew Zayas had retrieved
a gun, Zayas was angry and upset about his brother's death
at the hands of southerners, and defendant agreed with
Zayas and the others to drive around and look for
southerners. Defendant also admitted that he and his
associates carried weapons to feel safe from southerners
because of past shooting incidents.
An involuntary manslaughter instruction was not warranted
under the facts of this case. An instruction on a lesser
included offense is not required if the evidence was such that
the defendant, if guilty at all, was guilty of the greater offense.
(People v. Kelly, supra, 51 Cal.3d at p. 959.) A manslaughter
theory requires the killing be committed without malice
(People v. Cook, supra, 39 Cal.4th at p. 596), whereas the
evidence in this case showed implied malice. As explained
ante, malice is implied “ ‘when the killing results from an
intentional act, the natural consequences of which are
dangerous to life, which act was deliberately performed by a
person who knows that his conduct endangers the life of
another and who acts with conscious disregard for life’
[citation]....” (People v. Lasko, supra, 23 Cal.4th at p. 107;
Swain, supra, 12 Cal.4th at p. 602.) A defendant acts with
implied malice when he acts with an awareness of
endangering human life. (People v. Knoller, supra, 41 Cal.4th
at pp. 143 & 153.)
Defendant's own statements established implied malice in
this case. During his second interview with Detective
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Zaragoza, defendant admitted he knew Zayas was upset
about his brother's death, and that Zayas retrieved the gun
from his house and returned to the car with it. Defendant had
seen Zayas with a gun on previous occasions, defendant had
been shot at by southerners before, and they carried guns to
feel safe from the southerners.
When asked who came up with the idea to go mobbing,
defendant replied: “Well, we all did but we never thought that
that was going to happen.” Defendant also said that “mobbing
meant they were going to look for someone or just drive
around and cruise, and denied that they were looking for
Surenos.
On further questioning, however, defendant said that Zayas
said they should go mobbing and “look for some scraps.”
Defendant said they “ran into those guys” who were wearing
blue, and Zayas said they were “scraps.” Defendant admitted
that he said, “[F]* * * ‘em” when he saw the two men on the
street, and Zayas got out of the car and fired the gunshots.
The prosecution's gang expert testified that “mobbing” meant
“to get together” in a vehicle, look for a rival gang member,
and take action against that person. It was common for gang
members to go mobbing and look for their rivals. Detective
Sanchez did not know if it was common for gang members to
have a weapon while they were mobbing. “Scrap hunting”
meant that a Norteno was looking for a rival Sureno. The
expert further testified that when defendant saw the two men
on the street and said, “‘[F]* * * ‘em,’“ such a phrase meant to
assault their rivals.
The court did not have a sua sponte duty to instruct on
involuntary manslaughter as a lesser included offense of
murder. To be culpable as an aider and abettor, the
defendant must have acted with knowledge of the criminal
purpose of the perpetrator, and with an intent or purpose
either of committing, or of encouraging or facilitating
commission of, the offense. (McCoy, supra, 25 Cal.4th at p.
1118.) Defendant's admission that he made such statements
when he knew that Zayas had a gun, Zayas was upset about
his brother's gang-related death, and Zayas was looking for
“scraps,” showed his intent to encourage or facilitate Zayas's
intent to kill, and that he acted with an awareness of
endangering human life. (People v. Knoller, supra, 41 Cal.4th
at pp. 143 & 153.)
Garcia, 2013 WL 3286207, at *22-25.
32

1

b.

Analysis

2

Again, because there is no clearly established Supreme Court authority requiring

3

that lesser included offense instructions be given in non-capital cases, the state court’s

4

rejection of this claim was not unreasonable. Additionally, there was no substantial

5

evidence to support giving the instruction.

6

Involuntary manslaughter is the killing without malice in the commission of an

7

unlawful act not amounting to a felony. Cal. Penal Code § 192(b). Here, the Court of

8

Appeal concluded that the evidence implied malice, making an involuntary manslaughter

9

instruction unavailable. This conclusion was not unreasonable. Petitioner knew Zayas

10

was upset about his brother’s death at the hands of Surenos, knew that Zayas retrieved

11

a gun, and knew that Zayas wanted to “look for some scraps,” i.e., Surenos. When

12

Petitioner saw the men on the street, he stated, “[F]* * * ‘em.” The Court of Appeal was

13

not unreasonable in determining that these facts were sufficient to demonstrate that

14

Petitioner acted with implied malice, i.e., with an awareness of endangering human life.

15

Because the evidence implied malice, an involuntary manslaughter instruction

16

was precluded. See Solis, 219 F.3d at 930. There was not substantial evidence to

17

support giving the instruction, and therefore no possible constitutional error occurred.

18

Petitioner is not entitled to relief on this claim.

19

B.

20

Petitioner contends that the jury was not properly instructed on the gang

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Claim Two: CALCRIM No.1401

enhancement in CALCRIM No. 1401.
1.

State Court Decision

The Fifth District Court of Appeal rejected this claims as follows:
Defendant was convicted of second degree murder and the
jury found the gang enhancement true. Defendant contends
the jury's true finding on the gang enhancement must be
stricken because CALCRIM No. 1401, which defined the
gang enhancement, omitted elements of the enhancement
and “confusingly” referred the jury to other instructions.

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As with his other instructional challenges, defendant failed to
object to CALCRIM No. 1401, but we will address and reject
his contentions.
A. CALCRIM No. 736
As explained above, defendant was charged with conspiracy
to commit murder, and first degree murder with the gang
special circumstance (§ 190.2, subd. (a)(22)). The gang
enhancement was alleged as to both counts. (§ 186.22, subd.
(b)(1)(C).)
As to the gang allegations, the jury first received CALCRIM
No. 736, which defined the gang special circumstance.
“The defendant is charged with a special circumstance of
committing murder while an active participant in a criminal
street gang. To prove that this special circumstance is true,
the People must prove that, one, did defendant intend to kill
Arturo Bello.
“Two, at the time of the killing, the defendant was an active
participant in a criminal street gang.
“Three, the defendant knew that members of the gang
engaged in or have engaged in a pattern of criminal gang
activity.
“And four, the [murder] was carried out to further the activities
of the criminal street gang.
“Active participation means involvement with a criminal street
gang in a way that is more than passive or in name only.
“The People do not have to prove that the defendant devoted
all or a substantial part of his time or efforts to the gang or
that he was an actual member of the gang.
“A criminal street gang is any ongoing organization,
association, or group of three or more persons whether
formal or [informal], one, that has a common name or
common identifying sign or symbol.
“Two, that has as one or more of its primary activities the
commission of murder, attempted murder, vandalism, terrorist
threats, witness intimidation [,] carjacking, assault with [a]
deadly weapon, or entering an inhabited dwelling.

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“Three, whose members when acting alone or together
engage in or have engaged in a pattern of criminal gang
activity.
“In order to qualify as a primary activity, the crime must be
one of the group's chief or principal activities rather than an
occasional act committed by one or more persons who
happen to be members of the group.
“A pattern of criminal gang activity is [sic] used here means,
one, the commission of, the attempted commission of, or
conviction of any combination of two or more of the following
crimes or two or more of the occurrence of one or more of the
following crimes: Murder, attempted murder, or assault with a
deadly weapon.
“Two, at least one of those crimes was committed after
September 26, 1988.
“Three, the most recent crime occurred within three years of
one of the earlier crimes.
“Four, the crimes were committed on separate occasions or
by two or more persons. The crimes, if any, that established a
pattern of criminal gang activity need not be established.

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“If you find the defendant guilty of a crime in this case, you
may consider that crime in deciding whether one of the
group[']s primary activities was commiss[ion] of that crime
and whether a pattern of criminal gang activity has been
proved. You may not find that there was a pattern of criminal
gang activity unless all of you agree that two or more crimes
that satisfy these requirements were committed, but you do
not have to all agree on which crimes were committed.
“Other instructions explain what is necessary for the People
to prove that a member of the gang or defendant committed
murder, attempted murder, or assault with a deadly weapon.”
(Italics added.)
B. CALCRIM No. 1401

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Immediately after receiving CALCRIM No. 736, the jury
received CALCRIM No. 1401, to define the elements of the
gang enhancement. This instruction advised the jury that if it
found defendant guilty of the charged offenses, or the lesser
included offense of second degree murder, it had to decide
whether, for each crime, “the People have proved the

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additional allegation” that the crime was committed for the
benefit of, at the direction of, or in association with a criminal
street gang, and “decide whether the People have proved this
allegation for each crime and return a separate finding for
each crime.”
“To prove this allegation, the People must prove that, one,
the defendant committed the crime for the benefit of, at the
direction of, or in association with a criminal street gang.
“And, two, the defendant intended to assist, further, or
promote criminal conduct by gang members. A criminal street
gang is defined in another instruction to which you should
refer.
“The crimes, if any, that establish a pattern of criminal gang
activity need not be gang-related. The People need not prove
the defendant is an active or current member of the alleged
criminal street gang.
“If you find the defendant guilty of a crime in this case, you
may consider that crime in deciding whether one of the
group's primary activities was commission of that crime, and
whether a pattern of criminal gang activity has been proved.
“The People have the burden of proving each allegation
beyond a reasonable doubt. If the People have not met this
burden, you must find the allegation has not been proved.”
(Italics added.)
The italicized phrase is consistent with one of the options
provided by the pattern instruction, if the elements of a
criminal street gang are given to the jury in another
instruction.
C. Analysis
Defendant contends the jury was not correctly instructed on
the elements of the gang enhancement because CALCRIM
No. 1401 omitted the definitions of a gang's “primary activity”
and “pattern of criminal gang activity.”

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We must view the instructions as a whole and determine their
correctness from the entire charge to the jury, not from a
consideration of one instruction alone. (People v. Wilson,
supra, 3 Cal.4th at p. 943.) CALCRIM No. 1401 specifically
instructed the jury that a “criminal street gang” was defined in
“another instruction to which you should refer.” The identity of

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that other instruction could not have been a mystery, since
the court had just read CALCRIM No. 736 to the jury
immediately before it read CALCRIM No. 1401. While
CALCRIM No. 736 began with the definition of the elements
for the gang special circumstance, that instruction also
contained separate and correct definitions of a “criminal
street gang,” a gang's “primary activities,” and the “pattern of
criminal gang activity.” The entirety of the instructions thus
reflects that the jury was correctly instructed on the elements
of the gang enhancement.
Defendant concedes that CALCRIM No. 1401 referred the
jury to “other instructions,” but asserts that the jury would not
have understood that it needed to “look at” CALCRIM No.
736 for the definitions of “primary activities” and “pattern of
criminal gang activity,” and the jury would have been
confused by CALCRIM No. 736's discussion of the gang
special circumstance and the active participation requirement
for that special circumstance. The references between the
two instructions are clear. Moreover, defendant did not
request clarification of the otherwise adequate instructions,
and he may not complain here. (People v. Alvarez (1996) 14
Cal.4th 155, 223.)
Defendant further argues the jury would have been confused
by the inclusion of assault with a deadly weapon and
conspiracy to commit murder in CALCRIM No. 736's list of
predicate offenses, because the gang expert did not testify
those offenses were a primary activities, and jury was not
otherwise instructed on the elements of assault with a deadly
weapon.
The prosecution's gang expert testified the primary activities
of the Norteno gang included homicide, attempted homicide,
robbery, carjacking, and felony graffiti. The expert testified
about two predicate offenses, based on convictions of
Norteno gang members for committing the offense of assault
with a deadly weapon on members of the Sureno gang in the
Orosi area. As noted above, defendant did not request
clarification of the otherwise adequate instructions, and he
may not complain here. (People v. Alvarez, supra, 14 Cal.4th
at p. 223.) Moreover, any error is necessarily harmless since
the parties never disputed the existence of the Nortenos as a
criminal street gang, or challenged the evidence about the
predicate offenses. (Chapman v. California, supra, 386 U.S.
at pp. 23–24; People v. Wilson (2008) 44 Cal.4th 758, 804.)
[FN12]

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1

[FN12: For similar reasons, we also reject defendant's
separate contention that the jury's true finding on the
section
12022.53,
subdivision
(e)
firearm
enhancement
must be
stricken
since
that
enhancement was based on the true finding on the
gang enhancement.]

2
3
4
5
6

Garcia, 2013 WL 3286207, at *25–28.
2.

Procedural Default

7

The state court determined that the gang enhancement instruction was adequate

8

under state law. Moreover, as to Petitioner’s claim that the instruction was confusing or

9

unclear, the state court noted that Petitioner did not object to the instruction in the trial

10

court and therefore “may not complain here.” Garcia, 2013 WL 3286207, at *27-28.

11

Respondent contends that the state court's imposition of a procedural bar forecloses

12

federal review of the claim. The Court agrees.

13

State courts may decline to review a claim based on a procedural default.

14

Wainwright v. Sykes, 433 U.S. 72, 86–87 (1977). In turn, federal courts “will not review a

15

question of federal law decided by a state court if the decision of that court rests on a

16

state law ground that is independent of the federal question and adequate to support the

17

judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991); LaCrosse v. Kernan, 244

18

F.3d 702, 704 (9th Cir. 2001); see Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991); Park

19

v. California, 202 F.3d 1146, 1150 (2000) (“A district court properly refuses to reach the

20

merits of a habeas petition if the petitioner has defaulted on the particular state's

21

procedural requirements. . . .”). This concept has been commonly referred to as the

22

procedural default doctrine. This doctrine of procedural default is based on concerns of

23

comity and federalism. Coleman, 501 U.S. at 730-32. If the court finds an independent

24

and adequate state procedural ground, “federal habeas review is barred unless the

25

prisoner can demonstrate cause for the procedural default and actual prejudice, or

26

demonstrate that the failure to consider the claims will result in a fundamental

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28
38

1

miscarriage of justice.” Noltie v. Peterson, 9 F.3d 802, 804-805 (9th Cir. 1993); Coleman,

2

501 U.S. at 750; Park, 202 F.3d at 1150.

3

The procedural default doctrine will apply only if the application of the state

4

procedural rule provides “an adequate and independent state law basis” on which the

5

state court can deny relief. Park, 202 F.3d at 1151 (quoting Coleman, 501 U.S. at 729–

6

30). “For a state procedural rule to be ‘independent,’ the state law basis for the decision

7

must not be interwoven with federal law.” LaCrosse, 244 F.3d at 704 (citing Michigan v.

8

Long, 463 U.S. 1032, 1040-41 (1983)); Morales v. Calderon, 85 F.3d 1387, 1393 (9th

9

Cir. 1996) (“Federal habeas review is not barred if the state decision ‘fairly appears to

10

rest primarily on federal law, or to be interwoven with federal law.’ ” (quoting Coleman,

11

501 U.S. at 735). “A state law is so interwoven if ‘the state has made application of the

12

procedural bar depend on an antecedent ruling on federal law [such as] the

13

determination of whether federal constitutional error has been committed.’” Park, 202

14

F.3d at 1152 (quoting Ake v. Oklahoma, 470 U.S. 68, 75 (1985)).

15

To be deemed adequate, the state law ground for decision must be well-

16

established and consistently applied. Poland v. Stewart, 169 F.3d 573, 577 (9th Cir.

17

1999) (“A state procedural rule constitutes an adequate bar to federal court review if it

18

was ‘firmly established and regularly followed’ at the time it was applied by the state

19

court.”) (quoting Ford v. Georgia, 498 U.S. 411, 424 (1991)). Although a state court's

20

exercise of judicial discretion will not necessarily render a rule inadequate, the discretion

21

must entail “‘the exercise of judgment according to standards that, at least over time, can

22

become known and understood within reasonable operating limits.’” Id. at 377 (quoting

23

Morales, 85 F.3d at 1392).

24

To overcome a procedural default a prisoner must ‘demonstrate cause for the

25

default and actual prejudice as a result of the alleged violation of federal law, or

26

demonstrate that failure to consider the claims will result in a fundamental miscarriage of

27

justice.‘ Coleman, 501 U.S. at 750. “‘[C]ause' under the cause and prejudice test must

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be something external to the petitioner, something that cannot fairly be attributed to him:

2

'[W]e think that the existence of cause for a procedural default must ordinarily turn on

3

whether the prisoner can show that some objective factor external to the defense

4

impeded counsel's efforts to comply with the State's procedural rule.’” Id. at 753 (citing

5

Murray v. Carrier, 477 U.S. 478, 488 (1986)).

6

The Ninth Circuit has recognized and applied the California contemporaneous

7

objection rule in affirming denial of a federal petition for procedural default where there

8

was a complete failure to object at trial. See e.g., Paulino v. Castro, 371 F.3d 1083,

9

1092-93 (9th Cir. 2004) (barring review of jury instruction error claim because no

10

contemporaneous objection). Here, the state appellate court pointed out that Petitioner

11

failed to object to or seek clarification of the challenged instructions as given. Garcia,

12

2013 WL 3286207, at *27-28. Petitioner's failure to object at trial to the use of CALCRIM

13

Nos. 736 and 1401 bars his claim that their use violated his right to due process.

14

However, even if the Court overlooks the procedural default, this claim fails on the merits

15

as discussed next.

16

3.

Merits Analysis

17

Instructional error warrants federal habeas relief only if the “ailing instruction by

18

itself so infected the entire trial that the resulting conviction violates due process[.]”

19

Waddington v. Saruasad, 555 U.S. 179, 191 (2009) (quoting Estelle v. McGuire, 502

20

U.S. 62, 72 (1991)). “[N]ot every ambiguity, inconsistency, or deficiency in a jury

21

instruction rises to the level of a due process violation.” Dixon v. Williams, 750 F.3d

22

1027, 1032 (9th Cir. 2014) (citation omitted). To warrant relief, the erroneous instruction

23

must have had a substantial and injurious effect or influence in determining the jury’s

24

verdict. Hedgpeth v. Pulido, 555 U.S. 57, 61-62 (2008) (per curiam) (citing Brecht, 507

25

U.S. at 623). The instruction “may not be judged in artificial isolation,” but instead must

26

be considered “in the context of the instructions as a whole and the trial record.”

27

McGuire, 502 U.S. at 72.

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40

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First here, the state court determined that the instruction as given was correct

2

under state law. A state court's interpretation of state law, including one announced on

3

direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.

4

See Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Hicks v. Feiock, 485 U.S. 624, 629

5

(1988). Therefore, the state appellate court's determination—that the challenged

6

instruction was correct as a matter of state law—is binding on this Court. See id.

7

Next, Petitioner contends that the instruction was deficient and violated due

8

process because CALCRIM No. 1401 did not define “primary activity” and “pattern of

9

criminal gang activity.” However, it is undisputed that these terms were defined in

10

CALCRIM No. 736, which was given immediately before CALCRIM No. 1401. When

11

viewed “in the context of the instructions as a whole and the trial record,” McGuire, 502

12

U.S. at 72, the instructions cannot be said to have violated due process in this regard.

13

The state court was not unreasonable in rejecting this claim.

14

Petitioner also contends that the instructions were confusing because CALCRIM

15

No. 736 states that the prosecution was required to prove “the defendant was an active

16

participant in a criminal street gang,” while CALCRIM No. 1401 states that the

17

prosecution “need not prove the defendant is an active or current member of the alleged

18

criminal street gang.” This contention was not addressed by the state court. Regardless,

19

the instructions accurately defined the gang special circumstance and gang

20

enhancement, respectively. Compare Cal Penal Code § 190.2(a)(22) (gang special

21

circumstance applicable to “an active participant in a criminal street gang”), with Cal.

22

Penal Code § 186.22(b)(1) (active participation not required for gang sentencing

23

enhancement). The instructions do not raise due process concerns in this regard. See

24

Estelle, 502 U.S. at 72; Dixon, 750 F.3d at 1032.

25

Petitioner next contends that the instructions were flawed because CALCRIM No.

26

736 did not track precisely the prosecution’s gang expert’s testimony. Specifically, the

27

instruction identified assault with a deadly weapon as a primary activity of the gang, but

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the gang expert did not testify that assault with a deadly weapon was a primary activity.

2

Petitioner also complains that assault with a deadly weapon was not defined. The

3

instruction identified the following primary activities of a gang: “the commission of

4

murder, attempted murder, vandalism, terrorist threats, witness intimidation[,] carjacking,

5

assault with [a] deadly weapon, or entering an inhabited dwelling.” Garcia, 2013 WL

6

3286207, at *26. The gang expert testified that the primary activities of the Norteno gang

7

included homicide, attempted homicide, robbery, carjacking, and felony graffiti. He also

8

identified assault with a deadly weapon and conspiracy to commit murder as predicate

9

offenses, based on prior convictions of Norteno gang members. The Court fails to see

10

how the instructions were deficient in this regard such that they violated due process.

11

Furthermore, the state court determined that any error in this regard was

12

harmless under Chapman v. California, 386 U.S. 18 (1967). Under Chapman, “the test

13

for determining whether a constitutional error is harmless . . . is whether it appears

14

‘beyond a reasonable doubt that the error complained of did not contribute to the verdict

15

obtained.’” Neder v. United States, 527 U.S. 1, 15 (1999) (quoting Chapman, 386 U.S. at

16

24). However, when a state court's Chapman decision is reviewed under AEDPA, a

17

habeas Petitioner must establish that the trial court’s error resulted in “actual prejudice.”

18

Davis v. Ayala, 135 S. Ct. 2187, 2197 (2015) (quoting Brecht v. Abrahamson, 507 U.S.

19

619, 637 (1993)). This requires more than a “reasonable possibility” that the error was

20

harmful. Brecht, 507 U.S. at 637. Instead, the petitioner must show that the state court's

21

harmless error determination “was so lacking in justification that there was an error well

22

understood and comprehended in existing law beyond any possibility of fairminded

23

disagreement.” Davis, 135 S.Ct. at 2199 (quoting Harrington v. Richter, 562 U.S. 86, 103

24

(2011)). In other words, “a federal court may not award habeas relief under § 2254

25

unless the harmlessness determination itself was unreasonable.” Id. (quoting Fry v.

26

Pliler, 551 U.S. 112, 119 (2007)). Here, the state court’s harmlessness determination

27

was not unreasonable. The state court noted that “the parties never disputed the

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existence of the Nortenos as a criminal street gang, or challenged the evidence about

2

the predicate offenses.” Garcia, No. 2013 WL 3286207, at *28. Thus, the potential for

3

confusion complained of by Petitioner is unlikely to have had any effect on the jury’s

4

verdict.

5

Finally, Petitioner complains that the instructions would have permitted the jury to

6

improperly consider conspiracy to commit murder as a primary activity or predicate

7

offense. However, as the Court of Appeal acknowledged separately, the conspiracy to

8

commit murder instruction was flawed and the conviction on that ground could not be

9

sustained. Garcia, 2013 WL 3286207, at *15. Accordingly, Petitioner argues, the gang

10

enhancement also must be reversed because the instructions advised the jury: “If you

11

find the defendant guilty of a crime in this case, you may consider that crime in deciding

12

whether one of the group[’]s primary activities was commiss[ion] of that crime and

13

whether a pattern of criminal gang activity has been proved.” However, conspiracy to

14

commit murder was not listed as a qualifying primary activity under CALCRIM No. 736.

15

Furthermore, as stated, there was no dispute at trial that the Nortenos constituted a

16

criminal street gang.

17

Accordingly, Petitioner is not entitled to relief on this claim.

18

C.

19

Petitioner contends that the use of the phrase “equally guilty” in CALCRIM No.

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Claim Three: CALCRIM No. 400

400 was erroneous.
1.

State Court Decision

The Fifth District Court of Appeal rejected Petitioner’s claim as follows:
At trial, the parties did not dispute that Zayas was the
gunman. Defendant was charged with first degree murder as
an aider and abettor, and convicted of second degree murder
as a lesser included offense.
The jury received the following version of CALCRIM No. 400,
on aiding and abetting:

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“A person may be guilty of a crime in two ways: One,
he may have directly committed the crime. I will call
that person the perpetrator. Two, he may have aided
and abetted a perpetrator, who directly committed the
crime.
“A person is equally guilty of the crime whether he
committed it personally or aided and abetted the
perpetrator who committed it.” (Italics added.)
Defendant argues his conviction for second degree murder
must be reversed because of the inclusion of the italicized
phrase “equally guilty” in CALCRIM No. 400. Defendant
argues this phrase has been repeatedly criticized as
confusing, and it has been removed from subsequent
versions of CALCRIM No. 400. Defendant further argues the
inclusion of the phrase in this case was prejudicial because
defendant did not share the same intent as the gunman,
since defendant allegedly did not know that Zayas's gun was
loaded or he intended to shoot someone.

17

The People contend that defendant has forfeited review of
this issue since he did not object to CALCRIM No. 400.
However, defendant's claim that the instruction misstated the
law or violated his right to due process “is not of the type that
must be preserved by objection. [Citations.]” (People v.
Smithey, supra, 20 Cal.4th at p. 976, fn. 7; see also § 1259;
People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.) We thus
turn to the merits of defendant's argument.

18

A. Aiding and Abetting

19

As explained above, murder is an unlawful killing committed
with malice aforethought. (People v. Cravens (2012) 53
Cal.4th 500, 507.) Malice may be either express or implied.
(Ibid.)

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16

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A defendant may be culpable for a crime as a direct
perpetrator or as an aider and abettor. To be culpable as an
aider and abettor, the defendant must have acted with
knowledge of the criminal purpose of the perpetrator, and
with an intent or purpose either of committing, or of
encouraging or facilitating commission of, the offense.
(People v. McCoy (2001) 25 Cal.4th 1111, 1118 (McCoy).)
With respect to the target offense intended by the aider and
abettor, the aider and abettor's mens rea is the intent
associated with the target offense. (McCoy, supra, 25 Cal.4th
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at p. 1118 & fn. 1.) “Generally, a person who is found to have
aided another person to commit a crime is ‘equally guilty’ of
that crime. [Citations.]” (People v. Lopez (2011) 198
Cal.App.4th 1106, 1118 (Lopez), italics in original.) In some
circumstances, however, the aider and abettor may be found
guilty of a target offense that is greater or lesser than the
offense attributed to the perpetrator, depending on the
particular states of mind of the aider and abettor and the
perpetrator and the availability of defenses to a particular
crime. (McCoy, supra, 25 Cal.4th at pp. 1114, 1118–1120;
People v. Nero (2010) 181 Cal.App.4th 504, 507, 513–517
(Nero); People v. Samaniego (2009) 172 Cal.App.4th 1148,
1164 (Samaniego); Lopez, supra, 198 Cal.App.4th at p.
1118.) In the context of a target offense, aider and abettor
liability is premised on the combined acts of all the
participants, and “on the aider and abettor's own mens rea.”
(McCoy, supra, 25 Cal.4th at p. 1120, italics added.)
An aider and abettor may be guilty of a target offense that is
lesser than the perpetrator's offense, depending on the aider
and abettor's state of mind and the availability of defenses.
(See Nero, supra, 181 Cal.App.4th at pp. 513–517;
Samaniego, supra, 172 Cal.App.4th at pp. 1163–1164.) As a
result, it has been recognized that the “equally guilty”
language in CALCRIM No. 400 can be confusing or
misleading. (People v. Loza (2012) 207 Cal.App.4th 332,
348, fn. 8 (Loza); Lopez, supra, 198 Cal.App.4th at pp. 1118–
1119 & fn. 5; Samaniego, supra, 172 Cal.App.4th at pp.
1163–1165; Nero, supra, 181 Cal.App.4th at pp. 510 & 518.)
The “equally guilty” language creates the risk that the jury
might think that if it finds the defendant in some way aided
the perpetrator with the criminal conduct, it necessarily must
find the defendant guilty of the same offense as the
perpetrator, without determining the aider and abettor's
particular state of mind. (See Loza, supra, 207 Cal.App.4th at
p. 356; Nero, supra, 181 Cal.App.4th at p. 518; Samaniego,
supra, 172 Cal.App.4th at p. 1165.)
B. Analysis
As defendant correctly points out, the word “equally” has
been removed from the “equally guilty” phrase in the pattern
instruction on aiding and abetting. (Loza, supra, 207
Cal.App.4th 332, 348, fn. 8.) Defendant argues the court
erroneously included the phrase in the version of CALCRIM
No. 400 given to the jury, and that error requires reversal of
his murder conviction. However, even assuming the inclusion
of the phrase was erroneous, the record demonstrates that
45

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any error was harmless beyond a reasonable doubt pursuant
to Chapman v. California, supra, 386 U.S. 18. (Samaniego,
supra, 172 Cal.App.4th at p. 1165 [applying Chapman test to
erroneous inclusion of “equally guilty” in CALCRIM No. 400];
Lopez, supra, 172 Cal.App.4th at pp. 1119–1120.)
In this case, the jury received both the general aiding and
abetting instruction containing the “equally guilty” language
(CALCRIM No. 400), and the more specific instruction
(CALCRIM No. 401) that explained in detail the mental state
necessary to impose culpability on the basis of aiding and
abetting rather than direct perpetration of a crime. CALCRIM
No. 401 stated that for defendant to be culpable as an aider
and abettor, the prosecution had to prove that the defendant
knew “the perpetrator intended to commit the crime,” the
defendant intended to aid and abet the perpetrator in
committing the crime, and the “defendant's words or conduct
did, in fact, aid and abet the perpetrator's commission of the
crime.” CALCRIM No. 401 correctly explained that
“[s]omeone aids and abets a crime if he knows of the
perpetrator's unlawful purpose, and he specifically intends to
and does, in fact, aid, facili[tate], promote, encourage, or
instigate the perpetrator's commission of that crime.”
More importantly, the verdict in this case indicates that the
jury was not confused by the “equally guilty” language.
Defendant was charged with first degree premeditated
murder with a special circumstance, based on the
prosecution's theory that defendant shared Zayas's alleged
premeditated, deliberate, and willful intent to kill southerner
gang members. The jury found defendant not guilty of the
charged offense, and guilty of second degree murder as a
lesser included offense, thus rejecting the prosecution's
theory that defendant and Zayas shared the same intent.
In addition, this case is dissimilar from Nero and Loza, which
deemed the “equally guilty” language confusing and
prejudicial. Nero and Loza found the inclusion of the phrase
was prejudicial because the juries in both cases asked
questions during the deliberations which reflected confusion
about whether an aider and abettor could have a less
culpable state of mind, and the trial courts failed to clarify the
confusion. (Nero, supra, 181 Cal.App.4th at pp. 507, 510–520
[jurors asked if aider and abettor could be less culpable; court
re-read instruction containing “equally guilty” language]; Loza,
supra, 207 Cal.App.4th at pp. 349, 352, 355–357 [jurors
asked if they should consider the aider and abettor's state of
mind; court referred jury back to the instructions].)
46

1

In contrast, the instructions in this case directed the jury to
examine defendant's own particular mental state, and the jury
did not ask any questions suggesting it did not fully
understand this requirement. The jury was also correctly
instructed as to the definitions of willful, premeditated, and
deliberate attempted murder, and the mental state of malice.
The entirety of the instructions properly informed the jury as
to the intent required for aider and abettor culpability. We
thus conclude that the inclusion in this case of the phrase
“equally guilty” in CALCRIM No. 400 was harmless beyond a
reasonable doubt. (Samaniego, supra, 172 Cal.App.4th at p.
1165.)

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People v. Garcia, No. F062834, 2013 WL 3286207, at *17–19 (Cal. Ct. App. June 27,
2013)
2.

Analysis

The California Court of Appeal noted that the inclusion of the “equally guilty”
language in CALCRIM No. 400 can be confusing and misleading, but stopped short of
determining that the instruction was erroneous. Instead, the state court concluded that
any error was harmless under Chapman. This determination was not unreasonable.
Davis, 135 S.Ct. at 2199.
The state court considered the challenged portion of CALCRIM No. 400 in the
context of the jury instructions as a whole. The state court noted that the jury was given
other instructions on how to evaluate Petitioner’s potential liability. Immediately following
CALCRIM No. 400, the jury was instructed with CALCRIM No. 401 which provided a
more detailed explanation of the mens rea required for aiding and abetting liability,
specifically that the aider and abettor must have intended to aid and abet the perpetrator
in the commission of the crime, and that mere presence at the crime scene or knowledge

23

of the perpetrator’s intend, standing alone, is insufficient to support liability. (RT vol. 4 at

24

484.) Based on the instructions as a whole, the state court determined that the “equally

25

guilty” language was harmless. This decision is not “so lacking in justification that there

26
27

was an error well understood and comprehended in existing law beyond any possibility
of fairminded disagreement.” Richter, 562 U.S. at 103.

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1

Accordingly, Petitioner is not entitled to relief on this claim.

2

D.

3

Petitioner argues that there is insufficient evidence to support his conviction for

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Claim Four: Sufficiency of the Evidence

aiding and abetting murder.
1.

State Court Decision

The Fifth District Court of Appeal rejected Petitioner’s claim as follows:
Defendant contends there is insufficient evidence to support
his conviction for second degree murder as an aider and
abettor because there is no evidence that he had the
requisite malice, he did not take “any concrete action” to
assist Zayas (the gunman) as he fired the fatal shots, and
defendant's mere presence at the scene does not constitute
aiding and abetting.
In section II, ante, we set forth the standard of review to
determine whether a conviction is supported by substantial
evidence. In section III, ante, we explained that to be culpable
as an aider and abettor, the defendant must have acted with
knowledge of the criminal purpose of the perpetrator, and
with an intent or purpose either of committing, or of
encouraging or facilitating commission of, the offense.
(McCoy, supra, 25 Cal.4th at p. 1118.)
We have also explained that the trial court did not have a sua
sponte duty to instruct on voluntary and involuntary
manslaughter as lesser included offenses of murder because
defendant, if guilty at all, was guilty of the greater offense of
implied malice second degree murder. (People v. Kelly,
supra, 51 Cal.3d at p. 959.) Malice is implied “‘when the
killing results from an intentional act, the natural
consequences of which are dangerous to life, which act was
deliberately performed by a person who knows that his
conduct endangers the life of another and who acts with
conscious disregard for life’ [citation]....” (People v. Lasko,
supra, 23 Cal.4th at p. 107; Swain, supra, 12 Cal.4th at p.
602.) A defendant acts with implied malice when he acts with
an awareness of endangering human life. (People v. Knoller,
supra, 41 Cal.4th at pp. 143 & 153.)
As explained in sections III(D) and IV, ante, there is
overwhelming evidence to support defendant's conviction as
an aider and abettor for second degree murder under an
implied malice theory. We need not restate this analysis and
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find that defendant's conviction for second degree murder is
supported by overwhelming evidence.
In reaching this conclusion, we note that during his interviews
with law enforcement officers, defendant sought to present an
image of a bystander—one who, by happenstance of
residence was left little choice but to be in the company of
gang members without actual affiliation with their enterprise,
and who just happened to be in the wrong place (Josh's car),
with the wrong people (Josh, Santos, and Zayas) at the
wrong time (when Zayas murdered the victim). Indeed, there
may be slight ring of truth to the defendant's contention about
the unfortunate circumstances that led to the tragic events on
one fateful day. Yet, while the social conditions that
contributed to defendant's decisions may provide some
explanation, they do not constitute excuse. Moreover, as the
second interview continued, defendant admitted that he knew
much more about the events which led up to the murder than
he had previously indicated. Indeed, defendant essentially
conceded he was not an idle bystander that day. Among
other things, we learned from the defendant's police
interview, that he was aware of Zayas's purposeful retrieval
and possession of a gun that day. Defendant explained that
he and his friends had previously been shot at, the shots
were fired by Southerners, and that was why he felt they
needed to carry weapons. Defendant knew that Zayas was
very upset about his brother's murder at the hands of
southerners, and that they all agreed to go mobbing. When
defendant saw the two men dressed in blue, he yelled out,
“F* * * ‘em,” and Zayas started shooting. The consequences
of the activities of defendant and his compatriots on the day
in question were not fortuitous, and the law imposes
accountability on the defendant notwithstanding that he did
not pull the trigger.
Garcia, 2013 WL 3286207, at *24–25.
2.

Legal Standard

23

The Due Process Clause “protects the accused against conviction except upon

24

proof beyond a reasonable doubt of every fact necessary to constitute the crime with

25

which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). There is sufficient

26

evidence to support a conviction if, “after viewing the evidence in the light most favorable

27

to the prosecution, any rational trier of fact could have found the essential elements of

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the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

2

“[T]he dispositive question under Jackson is ‘whether the record evidence could

3

reasonably support a finding of guilt beyond a reasonable doubt.’” Chein v. Shumsky,

4

373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 U.S. at 318). Put another way,

5

“a reviewing court may set aside the jury's verdict on the ground of insufficient evidence

6

only if no rational trier of fact could have agreed with the jury.” Cavazos v. Smith, 565

7

U.S. 1, 132 S.Ct. 2, *4, 181 L.Ed. 2d 311 (2011).

8

In conducting federal habeas review of a claim of insufficient evidence, “all

9

evidence must be considered in the light most favorable to the prosecution.” Ngo v.

10

Giurbino, 651 F.3d 1112, 1115 (9th Cir. 2011). “Jackson leaves juries broad discretion in

11

deciding what inferences to draw from the evidence presented at trial,” and it requires

12

only that they draw “'reasonable inferences from basic facts to ultimate facts.”' Coleman

13

v. Johnson, 132 S.Ct. 2060, 2064 (2012) (citation omitted). “'Circumstantial evidence

14

and inferences drawn from it may be sufficient to sustain a conviction.”' Walters v.

15

Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) (citation omitted).

16

“A petitioner for a federal writ of habeas corpus faces a heavy burden when

17

challenging the sufficiency of the evidence used to obtain a state conviction on federal

18

due process grounds.” Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). In order to

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grant relief, the federal habeas court must find that the decision of the state court

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rejecting an insufficiency of the evidence claim reflected an objectively unreasonable

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application of Jackson and Winship to the facts of the case. Ngo, 651 F.3d at 1115; Juan

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H., 408 F.3d at 1275 & n.13. Thus, when a federal habeas court assesses a sufficiency

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of the evidence challenge to a state court conviction under AEDPA, “there is a double

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dose of deference that can rarely be surmounted.” Boyer v. Belleque, 659 F.3d 957, 964

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(9th Cir. 2011). The federal habeas court determines sufficiency of the evidence in

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reference to the substantive elements of the criminal offense as defined by state law.

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Jackson, 443 U.S. at 324 n.16; Chein, 373 F.3d at 983.

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Petitioner's claim is whether there was sufficient evidence to satisfy the elements

2

of second degree murder under California law. Under California law, murder is an

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unlawful killing with malice aforethought. Cal. Penal Code § 187(a). Malice is express

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when the defendant manifests a deliberate intention to take away the life of another.

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People v. Blakeley, 23 Cal. 4th 82, 87, 96 (2000). A defendant acts with implied malice

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when he acts with an awareness of endangering human life. People v. Knoller 41 Cal.

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4th 139, 143, 153 (2007). More specifically, malice is implied “‘when the killing results

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from an intentional act, the natural consequences of which are dangerous to life, which

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act was deliberately performed by a person who knows that his conduct endangers the

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life of another and who acts with conscious disregard for life’” To be culpable as an aider

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and abettor, the defendant must have acted with knowledge of the criminal purpose of

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the perpetrator, and with an intent or purpose either of committing, or of encouraging or

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facilitating commission of, the offense. People v. McCoy, 25 Cal. 4th 1111, 1118 (2001).

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3.

Analysis

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The state court was not unreasonable in determining that substantial evidence

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supports Petitioner’s conviction as an aider and abettor to second degree murder. As the

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state court noted, there is a “slight ring of truth” to Petitioner’s contention that he was in

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the wrong place, with the wrong people, at the wrong time. Garcia, 2013 WL 3286207, at

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*25. Nevertheless, the evidence showed that Petitioner knew Zayas was upset about his

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brother’s death at the hands of Surenos, knew that Zayas retrieved a gun, and knew that

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Zayas wanted to “look for some scraps,” i.e., Surenos. When Petitioner saw the men on

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the street, he stated, “[F]* * * ‘em.” As concluded above, the Court of Appeal was not

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unreasonable in determining that these facts were sufficient to demonstrate that

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Petitioner acted with implied malice, i.e., with an awareness of endangering human life.

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In light of these facts, the Court cannot say that “no rational trier of fact could have

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agreed with the jury.” Cavazos, 565 U.S. 1 (2011). Petitioner is not entitled to relief on

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this claim.

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E.

2

Petitioner challenges his firearm enhancement on several grounds. First, he

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contends that his constitutional rights were violated when the trial court failed to stay the

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firearm enhancement under California Penal Code section 654. Second, he claims that

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the firearm enhancement was unproven. Lastly, he contends that the sentence on the

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firearm enhancement constitutes cruel and unusual punishment in violation of the Eighth

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Amendment.

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Claim Five: Failure to Stay Firearm Enhancement

1.

State Court Decision

The Fifth District Court of Appeal rejected this claim as follows:
Defendant contends the court improperly sentenced him to
15 years to life for second degree murder plus a consecutive
term of 25 years to life for the firearm enhancement.
Defendant argues the court should have stayed the term for
the section 12022.53 firearm enhancement pursuant to
section 654 because the firearm was used to commit the
murder, he was not the gunman, and he was only convicted
as an aider and abettor.
A.

Section 12022.53 and Aiders and Abettors

Section 12022.53 establishes mandatory sentence
enhancements for persons convicted of specified felonies,
including murder, who discharge a firearm in the commission
of the offense. (§ 12022.53, subds. (b)(e).) Subdivision (d) of
section 12022.53 mandates a consecutive enhancement of
25 years to life for any person who personally and
intentionally discharges a firearm causing death in the
commission of one of the specified felonies. Subdivision
(e)(1) imposes vicarious liability on an aider or abettor who
committed the specified offense for the benefit of, at the
direction of, or in association with a criminal street gang.
(People v. Garcia (2002) 28 Cal.4th 1166, 1171.)
Section 12022.53, subdivisions (d) and (e)(1), read together,
require the imposition of a consecutive sentence
enhancement of 25 years to life when a defendant is
convicted of a murder committed for the benefit of a criminal
street gang, and any principal in the offense “‘personally and
intentionally discharges a firearm’” that causes death to any
person other than an accomplice. (People v. Hernandez
(2005) 134 Cal.App.4th 474, 480.)
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In order to find an aider and abettor subject to the sentence
enhancements of section 12022.53, the aider and abettor
must be convicted of the underlying offense (i.e., murder),
and the gang enhancement found true. There is no
requirement that the principal who intentionally and
personally discharged the firearm must be convicted of the
offense. (People v. Garcia, supra, 28 Cal.4th at p. 1174.)

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B.

Section 654

In People v. Hutchins (2001) 90 Cal.App.4th 1308 (Hutchins),
the court rejected the application of section 654 to a section
12022.53, subdivision (d) enhancement, in a case where the
defendant committed a murder using a gun. The defendant
argued that the trial court punished him twice for firing the
shots that killed the victim by sentencing him to 15 years to
life for second degree murder plus 25 years to life for the
section 12022.53, subdivision (d) firearm enhancement.
Hutchins rejected the defendant’s argument that imposition of
the firearm enhancement violated section 654. “Clearly, in
enacting this provision the Legislature intended to mandate
the imposition of substantially increased penalties where one
of a number of crimes, including homicide, was committed by
the use of a firearm. In so doing, the express language of the
statute indicates the Legislature’s intent that section 654 not
apply to suspend or stay execution or imposition of such
enhanced penalties….” (Hutchins, supra, at p. 1313, italics in
original.) Thus, “where imposition of a firearms use
enhancement is made mandatory notwithstanding other
sentencing laws and statutes, it is error to apply section 654
to stay imposition of such an enhancement. [Citations.]” (Id.
at p. 1314, italics in original; see also People v. Sanders
(2003) 111 Cal.App.4th 1371, 1375.)
In People v. Palacios (2007) 41 Cal.4th 720, the court cited
Hutchins with approval, noted that the Legislature mandated
that section 12022.53 enhancements “shall be imposed
‘[n]otwithstanding any other provision of law,’” and held that
“in enacting section 12022.53, the Legislature made clear
that it intended to create a sentencing scheme unfettered by
section 654.” (Palacios, supra, at pp. 728, 733, italics added.)
“Nothing in the statute suggests the Legislature intended to
override section 654 as to some applications of section
12022.53, but not others.” (Id. at p. 733.)

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C.

2

Defendant argues section 654 may be applied to his case,
and the reasoning in Palacios and Hutchins is inapplicable to
these facts, because he was not the gunman, he did not
personally use or discharge the firearm, and the
enhancement was imposed based on his liability as an aider
and abettor pursuant to section 12022.53, subdivision (e)(1).
This is a distinction without a difference. As explained above,
the firearm enhancement was pleaded and proved pursuant
to section 12022.53, subdivisions (d) and (e)(1). Section
12022.53, subdivision (d) mandates a consecutive term of 25
years to life if a person convicted of an enumerated felony
“intentionally and personally discharged a firearm and
proximately caused great bodily injury ... or death ....”
“Section 12022.53, subdivision (e)(1), imposes vicarious
liability under this section on aiders and abettors who commit
crimes in participation of a criminal street gang. [Citation.]”
(People v. Garcia, supra, 28 Cal.4th at p. 1171, italics
added.)

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Analysis

“Under this sentencing regime an aider and abettor who is
found guilty of murder is subject to the 25 years to life
enhancement even though he or she did not personally and
intentionally discharge a firearm causing death if the murder
was committed for the benefit of a criminal street gang and
‘any principal’ in the offense personally and intentionally
discharged a firearm causing death.” (People v. Hernandez,
supra, 134 Cal.App.4th at p. 480, fn. omitted.)
The imposition of the indeterminate enhancement on a
defendant convicted as an aider and abettor to a murder
committed for the benefit of a criminal street gang, pursuant
to section 12022.53, subdivision (e), does not violate the
defendant’s equal protection or due process rights, or
constitute cruel and/or unusual punishment. (People v.
Gonzales (2001) 87 Cal.App.4th 1, 12-18; People v.
Hernandez, supra, 134 Cal.App.4th at pp. 480-483.)
We conclude the court properly imposed the consecutive
term of 25 years to life pursuant to section 12022.53,
subdivisions (d) and (e)(1), and section 654 was not
applicable.
(Lodged Doc. 11 at 5-8 (record citations omitted).)

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2.

2

Analysis
a.

Applicability of Section 654

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The state court determined that section 654 was inapplicable in Petitioner’s case.

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Petitioner contends this ruling was erroneous. However, the Court is bound by the

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California Court of Appeal's interpretation of the state penal code. See Bradshaw v.

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Richey, 546 U.S. 74, 76 (2005) (per curiam) (“[A] state court's interpretation of state law,

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including one announced on direct appeal of the challenged conviction, binds a federal

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court sitting in habeas corpus.”); see also Christian v. Rhode, 41 F.3d 461, 469 (1994)

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(“Absent a showing of fundamental unfairness, a state court's misapplication of its own

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sentencing laws does not justify federal habeas relief.”). More specifically, a claim in

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federal court that multiple punishment violates section 654 fails to state a federal

12

question. See Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir.1989) (holding petitioner's

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claim that the state court violated Penal Code section 654 was not cognizable under

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AEDPA). The state court's application of state sentencing law is not cognizable on

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habeas review unless the error is so arbitrary or capricious as to constitute an

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independent due process or Eighth Amendment violation. Lewis v. Jeffers, 497 U.S. 764,

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780 (1990).

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b.

Eighth Amendment

19

Petitioner makes a cursory claim that his firearm enhancement violates the Eighth

20

Amendment. This claim was not presented to the California Supreme Court and it is

21

therefore unexhausted. (Lodged Doc. 12.) 28 U.S.C. § 2254(b)(1). Regardless, the claim

22

may be denied on the merits because it is not colorable. 28 U.S.C. § 2254(b)(2); Cassett

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v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005).

24

The United States Supreme Court has held that the Eighth Amendment includes a

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“narrow proportionality principle” that applies to terms of imprisonment. See Harmelin v.

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Michigan, 501 U.S. 957, 996 (1991) (Kennedy, J., concurring). However, outside the

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context of capital punishment, successful challenges to the proportionality of particular

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sentences are “exceedingly rare.” Solem v. Helm, 463 U.S. 277, 289–90 (1983). “The

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Eighth Amendment forbids only extreme sentences that are ‘grossly disproportionate’ to

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the crime.” Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring) (citing Solem, 463 U.S.

4

at 288, 303). Thus, in Lockyer v. Andrade, 538 U.S. 63, 75 (2003), the United States

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Supreme Court held that it was not an unreasonable application of clearly established

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federal law for the California Court of Appeal to affirm a “Three Strikes” sentence of two

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consecutive 25 year-to-life imprisonment terms for a petty theft with a prior conviction

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involving theft of $150.00 worth of videotapes. In Ewing v. California, 538 U.S. 11, 29

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(2003), the Supreme Court held that a “Three Strikes” sentence of 25 years-to-life in

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prison imposed on a grand theft conviction involving the theft of three golf clubs from a

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pro shop was not grossly disproportionate and did not violate the Eighth Amendment.

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More recently, in Crosby v. Schwartz, 678 F.3d 784, 791–92 (9th Cir.2012), the Ninth

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Circuit held that a “Three Strikes” sentence of 26 years to life for failure to annually

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update sex offender registration and failure to timely register a change of address did not

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violate the Eighth Amendment.

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Here, Petitioner was sentenced to an aggregate term of forty years to life for his

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participation as an aider and abettor in a murder involving the use of a firearm. This

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sentence does not lead to an inference of gross disproportionality and therefore does not

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amount to cruel and unusual punishment under the Eighth Amendment.

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c.

Insufficient Evidence

21

Finally, Petitioner argues that the firearm enhancement is not supported by the

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evidence. This claim likewise was not presented to the California Supreme Court and is

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unexhausted. (Lodged Doc. 12.) 28 U.S.C. § 254(b)(1). Regardless, it is not colorable.

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28 U.S.C. § 2254(b)(2); Cassett, 406 F.3d at 623-24. The argument is premised on

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Petitioner’s contention that he is not subject to the enhancement as an aider and abettor.

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The Fifth District Court of Appeal’s analysis forecloses such a determination on state law

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grounds.

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Accordingly, Petitioner is not entitled to relief on this claim.

2

F.

3

Petitioner argues that his constitutional rights were violated at resentencing when

4

the trial court stayed the sentence on the gang enhancement pursuant to California

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Penal Code § 186.22(b)(1)(C) rather than § 186.22(b)(5). (ECF No. 26 at 18.) Petitioner

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raised this claim in his second appeal to the Fifth District Court of Appeal (Lodged Doc. 7

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at 13-14), and the Court of Appeal granted Petitioner relief. (Lodged Doc. 11 at 8-9.)

8

Specifically, the Court of Appeal directed that the abstract of judgment be modified to

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delete the reference to § 186.22(b)(1)(C) and to indicate Petitioner was sentenced

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pursuant to § 186.22(b)(5) and that the enhancement under that section was stayed.

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(Id.)

Claim Six: Failure to Stay Sentence on Gang Enhancement

12

Because Petitioner has been granted relief on this claim, it is moot. Bailey v. Del

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Papa, 237 F. App’x 280, 281 (9th Cir. 2007) (finding adjudication of habeas claim

14

unnecessary where state court had already granted relief). Thus, even assuming the

15

claim is cognizable in a federal habeas proceeding, he is not entitled to relief on this

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clam.

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VI.

Points and Authorities in Support of Traverse

18

Almost five months after filing his traverse, Petitioner filed a document styled,

19

“Points and Authorities in Support of Traverse.” (ECF No. 42.) However, the document

20

does not address arguments raised in the petition or traverse, and instead asserts that

21

Petitioner is entitled to resentencing due to recent changes in California law.

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This claim is not contained in the petition. Furthermore, it appears to be

23

unexhausted and raises only questions of state law. It is not cognizable on federal

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habeas review. Petitioner is not entitled to relief on this claim and instead must seek any

25

available remedy in state court.

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VII.

2

Based on the foregoing, it is HEREBY RECOMMENDED that the petition for writ of

3

habeas corpus be DENIED.

Conclusion and Recommendation

4

The findings and recommendation are submitted to the United States District

5

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within

6

thirty (30) days after being served with the findings and recommendation, any party may

7

file written objections with the Court and serve a copy on all parties. Such a document

8

should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.”

9

Any reply to the objections shall be served and filed within fourteen (14) days after

10

service of the objections. The parties are advised that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772

12

F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.

13

1991)).

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IT IS SO ORDERED.
Dated:

January 10, 2018

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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