Salas v. McDowell

Filing 18

FINDINGS and RECOMMENDATIONS That the Court Deny Petition for Writ of Habeas Corpus signed by Magistrate Judge Sheila K. Oberto on 3/30/18. Objections to F&R Due Within Thirty Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BENITO SANCHEZ SALAS,

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No. 1:15-cv-00766-DAD-SKO HC

Petitioner,
v.
NEIL McDOWELL, Warden,
Respondent.

FINDINGS AND RECOMMENDATION
THAT THE COURT DENY PETITION
FOR WRIT OF HABEAS CORPUS
(Doc. 1)

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Petitioner, Benito Sanchez Salas, is a state prisoner proceeding, with counsel, with a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Petitioner
presents five claims for habeas relief: (1) insufficient evidence of specific intent to kill for the

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charge of attempted murder; (2) insufficient evidence of premeditation and deliberation for the
charge of attempted murder; (3) insufficient evidence of premeditation and deliberation for the

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charge of first degree murder; (4) the first degree murder convictions were inconsistent, in

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violation of the Fifth, Sixth, and Fourteenth Amendments; and (5) ineffective assistance of

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counsel. Petitioner requested the Court hold an evidentiary hearing on his claims. The Court

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

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and 304. Having reviewed the record and applicable law, the undersigned recommends that the
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Court deny habeas relief and decline to hold an evidentiary hearing on Petitioner’s claims.
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I.

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Procedural and Factual Background1
This case arises out of an altercation between members of two families, the Mendez

family and the Salas family, who lived on the 4600 block of East Turner Avenue in Fresno.
Petitioner is a member of the Salas family. The Mendez family, Maria Arceli Mendez (“Maria

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M.”) and her husband, Jose Mendez (“Jose M.”), lived at 4677 East Turner Avenue with their

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children. The Salas family lived two addresses directly east of the Mendez family residence.

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Petitioner lived in the guest house of 4681 East Turner Avenue. Petitioner’s father, Alberto

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Salas, Sr. (“Alberto S.”), his mother, Maria Nativad Sanchez (“Maria S.”), and one of Petitioner’s

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brothers lived in the main house at 4681 East Turner Avenue. Two of Petitioner’s brothers,

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Fabian Salas (“Fabian S.”) and Antonio Sanchez Salas (“Antonio S.”) and a nephew lived at 4687

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East Turner Avenue.
The Mendez and Salas families had been neighbors for years, but the relationship

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between the families began to deteriorate in late 2008 or early 2009 largely due to problems

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between a Mendez son and Fabian and Antonio S. On March 8, 2009, a fight broke out between

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Fabian S. and a Mendez son and ended with Petitioner becoming involved and hitting and kicking

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Jose M. The Mendez son was hospitalized after Antonio S. struck him in the head. During this
fight, the police were called, but no arrests were made.

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At trial, Petitioner testified that on March 8, 2009, he was sitting on his front porch and

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saw Fabian S. exchange words with members of the Mendez family. The individuals began

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fighting. During the fight, Jose M. threw a beer bottle at Petitioner, who was standing next to

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Alberto S, Petitioner’s father, which caused Petitioner to join the fight. Petitioner knocked Jose

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M. down and Jose M. threatened Petitioner, stating he was going to kill Fabian S., Alberto S.,

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Maria S., and Petitioner.

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The factual and procedural background is taken from the opinion of the California Court of Appeal, Fifth Appellate
District, People v. Salas, (No. F063978) (Cal. Ct. App. Dec. 16, 2013), and review of the record.

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Feeling threatened after this fight, Petitioner borrowed a gun from a friend. Petitioner
stored the gun in his house, but later hid it in a cabinet in his mother’s, Maria S.’s, kitchen.

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After the fight, Maria M. unsuccessfully attempted to obtain a restraining order against

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Petitioner, Fabian S., and Antonio S. Trouble between the families continued and the Mendezes
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called the police on multiple occasions.

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On June 11, 2009, children from both families participated in an elementary school

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graduation. Members of each family were present at the ceremony. After the ceremony, Fabian

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S. approached a Mendez son and the two began arguing. Fabian S. called the son names and

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threated him, telling the Mendez son he was going to kill him and he should “watch” when he got

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home. Maria M. called the police, and Fabian S. accused her of being a snitch.

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After the graduation ceremony, Maria M. arrived home with several of her children,

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planning to hold a barbecue to celebrate her daughter’s graduation. Fabian S. and his parents,

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Alberto S. and Maria S., were standing in front of the Salas home when Maria M. arrived, but did

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not engage with her. However, when Jose M. arrived home, Fabian S. insulted him and told him

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“I’m going to fuck you guys all up. You guys are done.” Jose M. refused to fight with Fabian S.

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and told him to calm down. Maria M. called the police, who arrived, talked to both families, and
left.

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Once the police left, Fabian S. yelled at the Mendezes, called them names and tried to get

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them to come outside of their house to fight. While standing on his front porch, Fabian S. waived

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a gun around and told Jose M. that the gun was for him. Maria M. called the police again.

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Officers arrived, spoke with the Salases, and then told Maria M. everything was going to be fine,

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her family should continue their barbecue, and police would be patrolling the area.

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The Mendezes continued their barbecue. Family members and friends arrived and entered

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the backyard for the barbeque. After eating, many of the Mendez family and friends moved to the

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front yard to talk and watch their children play.

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Due to the large number of individuals involved in the events and the chaos surrounding
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the events on that day, witness testimony varied as to what happened once the Mendezes moved

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from the backyard to the front yard of the Mendez family home. The Court will summarize

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relevant witness testimony.

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Several Mendez family members saw Petitioner’s father, Alberto S., arrive at the Salas

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house either carrying a gun, or carrying a bag that the Mendezes suspected contained guns.2

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After Alberto S.’s arrival at the Salas family house, members of the Mendez family and the Salas

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family started arguing in the street. Members of the Mendez family claimed to see Antonio S.
holding a gun during this argument, while others claimed to see Fabian S. holding a gun.

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Juan Mendez (“Juan M.”) asked for Fabian S. to put the guns down and “fight like a

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man.” Fabian S. replied, “fine, we’ll fight,” and handed his gun to Antonio S. Fabian S. lunged

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towards Jose M., the two started fighting, and others joined in. Shortly after the fight began,

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shots were fired.

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According to one witness, after the fight began, Petitioner shot into the air approximately
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four times as he walked toward the crowd. As Petitioner walked toward the street where the

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crowd was gathered, the Mendez family moved toward him, looking angry. The Mendez family

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surrounded Petitioner, he fired the gun, and two people dropped to the ground.

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According to Maria S., she, Alberto S., and one of their sons worked that day harvesting oranges. They started at
6:00 a.m. and returned in Alberto S.’s van around noon. They brought some oranges home in a plastic bag, which
one of them took inside the house. Maria S. did not See Alberto S. with a bag full of guns.

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By contrast, Maria M. testified her husband, Jose M., was on top of Fabian S. when

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Antonio S. came up and shot Jose M. and another Mendez family member, Pablo Mendez (“Pablo

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M.”). Antonio S. then handed Petitioner the gun. Petitioner immediately began firing “at all the

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people.” While Petitioner was firing, his mother, Maria S., yelled at her sons to kill everybody,

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including Maria M., and not let anybody live.
A different witness saw Fabian S. hovering over one of the Mendezes, hitting him, when
Petitioner ran up with a gun. Petitioner was “shooting all over the place” as he ran.

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During the shooting, a Mendez family guest, Hector Balladeres (“Hector”), retrieved his

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shotgun from his vehicle. Hector saw two people with guns and heard three shots, but did not

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see who fired them. Hector heard someone say “Shoot the mom” or “Get the mom,” then saw
Petitioner trying to shoot first Eulalia Mendez (“Eulalia M.”) and then Juan M. Wanting to stop
Petitioner from firing his gun, Hector fired his shotgun up into the air.

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In sum, witness accounts varied as to whether Antonio S. shot Jose M. and Pablo M. and

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then handed the gun to Petitioner, or whether Petitioner shot Jose M. and Pablo M himself.

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Nonetheless, after Jose M. and Pablo M. were shot, witnesses saw Petitioner trying to shoot

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Eulalia M. and then Juan M, as the two tried to help victims of the shooting.
Eulalia M. saw Antonio S. shoot Jose M. and Pablo M. As Jose M. lay on the ground,

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Eulalia M. ran to him, and heard Maria S. say “kill the mother,” referring to Maria M. Eulalia M.

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saw Petitioner pointing a gun at her. As he fired, Eulalia M. turned her head, and the shot flew by

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her, between her shoulder and her ear.

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Juan M. was lying face down on the ground when he heard three shots and then a big

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boom. He looked up and saw people running everywhere and Pablo M. lying next to him. As

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Juan M. got up from the ground, he saw Petitioner point a gun at him. He looked away, heard a

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bang, and thought he was hit, but he was not. He did not remember if Petitioner specifically fired
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at him, but Petitioner was firing towards all the people at the Mendez home. Juan M. later told

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police that Petitioner shot at him, but Juan M. ducked and was not hit.

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Officers arrived after receiving a report of men arguing, and were led by members of the

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Mendez family to Petitioner, who was standing in the front yard of the Salas house, without a
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weapon. A gunshot residue examination that was subsequently conducted on Petitioner was
consistent with Petitioner having fired a firearm.

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Jose M. and Pablo M. died from their gunshot wounds. Pablo M. was shot in the left side

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of the head. A bullet also grazed the left side of his back. Pablo M.’s cause of death was listed as

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“perforation of the brain due to gunshot wound to the head.” Jose M. suffered a gunshot wound

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to the left frontal region of his head. His cause of death was listed as “penetration of the brain
due to gunshot wound to the head.”

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At trial, Petitioner testified that on June 11, he arrived home after running some errands

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and spoke to Fabian S. about the confrontation Fabian S. had with members of the Mendez family

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at the elementary school graduation. Later in the afternoon, Petitioner noticed a lot of male

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family members and friends at the Mendez house, which concerned him based on the volatile

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history between the two families.

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That evening, Petitioner walked out of the Salas family home and saw a group of 40
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people he believed were heading to the Salas family home to kill Alberto S. Petitioner also saw

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Fabian S. in the middle of the street with seven to eight people surrounding him. The group was

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arguing and appeared ready to fight. Petitioner did not see anyone with a weapon, and walked

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toward the group that was arguing. As Petitioner got closer to the group, he noticed a male with

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what Petitioner believed was a rifle, walking by the cars.3

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Presumably, Petitioner saw Hector Balladeres with his shotgun. At trial, Petitioner explained that he was not
familiar with guns and could not distinguish between a shotgun and a rifle.

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Afraid for Fabian S.’s life, Petitioner ran back to the Salas house and grabbed the gun he

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had previously stowed in Maria M.’s kitchen cabinet. As Petitioner ran back outside, he fired two

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or three shots in the air. Looking for the individual with the rifle, Petitioner saw Fabian S. being

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beaten up and fired at Jose M. and another individual who was kicking Fabian S. Petitioner
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believed he fired five or six rounds at the people beating up Fabian S., but he wasn’t sure as to the
exact number of times he fired, because he “was just shooting.”

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After firing his first five or six shots, Petitioner told everyone to get back and panned the

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gun so people knew he was serious. Petitioner did not want anyone around him and was looking

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for the man with the rifle.

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As Petitioner was panning the gun, he saw the man with the rifle. The man came from
behind Hector’s truck, lifted the rifle, and fired it at Petitioner. Petitioner fired back three or four

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times in the direction of the man. Petitioner believed he may have fired one or two more shots
afterwards, but did not remember firing at Eulalia M. or Juan M.

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Petitioner stated if he had not started shooting, Fabian S. would have died. Petitioner did

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not know where Antonio S. was at the time of the shooting, but did not believe Antonio S. had a

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gun.
After the shooting, Petitioner ran to Antonio S.’s house and hid the gun in the back of the

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garage. Petitioner came back out into the front yard when police officers arrived and turned
himself in.

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Antonio S. testified that he was not able to attend the graduation ceremony, because he

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was working, so Fabian S. attended in his place. Fabian S. telephoned Antonio S. several times

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during the course of the day to tell Antonio S. that Fabian S. was having problems with the

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Mendez family.

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When Antonio S. arrived home that evening, his son told him that the Mendez family was

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beating up Fabian S. Antonio S. grabbed his gun and ran outside. As he was running out of his

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house, he heard shooting. Antonio S. saw a group of people and smoke when he got outside, but

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did not see who was shooting or know if anybody was shot. Antonio S. threw his gun in the
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garage and ran away from the scene with his son. He did not stay to find out what was

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happening, because there were a lot of people around and he did not know who was shooting.

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The day after the shooting, someone told Antonio S. that the police were looking for him, so

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Antonio S. turned himself in to the police.

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Antonio S. denied shooting anyone or passing a gun to Petitioner. Antonio S. stated that
he and Petitioner “didn’t talk” and did not have any kind of relationship. Antonio S. was unaware

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that Petitioner had a gun.
A jury convicted Petitioner of the first degree murders of Jose M. and Pablo M. (Cal.

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Penal Code § 187(a)); and the attempted premeditated murders of Eulalia M. and Juan M. (Cal.

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Penal Code §§ 187(a), 664).4 As to the murder counts, the jury found true a multiple-murder

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special circumstance (Cal. Penal Code § 190.2(a)(3)). As to all counts, the jury found Petitioner

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personally and intentionally discharged a firearm (Cal. Penal Code § 12022.53(c)). Petitioner
was sentenced to two consecutive terms of life in prison without the possibility of parole, plus

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two consecutive terms in prison with the possibility of parole, plus 80 years.

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Antonio S. was jointly charged with Petitioner on the murder counts, and was alleged to

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have personally and intentionally discharged a firearm, proximately causing death (Cal. Penal

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Code § 12022.53(d)). Antonio S. was also charged with the attempted premeditated murder of a

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Mendez family friend. At Antonio S. and Petitioner’s trial, the jury was unable to reach a verdict

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on any of the charges against Antonio S., and a mistrial was declared.

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Petitioner was acquitted of the attempted murder of a Mendez family friend.

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On December 16, 2013, the California Court of Appeal for the Fifth Appellate District

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affirmed Petitioner’s conviction.

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Petitioner’s Petition for Review.

On March 5, 2014, the California Supreme Court denied

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On May 18, 2015, Petitioner, through counsel, filed a petition for writ of habeas corpus
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before this Court. Respondent filed a response on August 17, 2015, and Petitioner filed a reply
on September 2, 2015.
II.

Standard of Review

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A person in custody as a result of the judgment of a state court may secure relief through

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a petition for habeas corpus if the custody violates the Constitution or laws or treaties of the

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United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 (2000). On April 24,

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1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
which applies to all petitions for writ of habeas corpus filed thereafter. Lindh v. Murphy, 521

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U.S. 320, 322-23 (1997). Under the statutory terms, the petition in this case is governed by

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AEDPA's provisions because it was filed after April 24, 1996.

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Habeas corpus is neither a substitute for a direct appeal nor a device for federal review of
the merits of a guilty verdict rendered in state court. Jackson v. Virginia, 443 U.S. 307, 332 n. 5
(1979) (Stevens, J., concurring). Habeas corpus relief is intended to address only "extreme

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malfunctions" in state criminal justice proceedings. Id. Under AEDPA, a petitioner can obtain
habeas corpus relief only if he can show that the state court's adjudication of his claim:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.

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28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 413.
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"By its terms, § 2254(d) bars relitigation of any claim 'adjudicated on the merits' in state

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court, subject only to the exceptions set forth in §§ 2254(d)(1) and (d)(2)." Harrington v.

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Richter, 562 U.S. 86, 98 (2011).

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As a threshold matter, a federal court must first determine what constitutes "clearly
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established Federal law, as determined by the Supreme Court of the United States." Lockyer,

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538 U.S. at 71. In doing so, the Court must look to the holdings, as opposed to the dicta, of the

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Supreme Court's decisions at the time of the relevant state-court decision. Id. The court must

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then consider whether the state court's decision was "contrary to, or involved an unreasonable

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application of, clearly established Federal law." Id. at 72. The state court need not have cited

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clearly established Supreme Court precedent; it is sufficient that neither the reasoning nor the

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result of the state court contradicts it. Early v. Packer, 537 U.S. 3, 8 (2002). The federal court
must apply the presumption that state courts know and follow the law. Woodford v. Visciotti,

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537 U.S. 19, 24 (2002). Petitioner has the burden of establishing that the decision of the state

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court is contrary to, or involved an unreasonable application of, United States Supreme Court

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precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).

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"A federal habeas court may not issue the writ simply because the court concludes in its
independent judgment that the relevant state-court decision applied clearly established federal

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law erroneously or incorrectly." Lockyer, 538 U.S. at 75-76. "A state court's determination that

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a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree'

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on the correctness of the state court's decision."

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Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, the AEDPA standard is difficult to

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satisfy since even a strong case for relief does not demonstrate that the state court's determination

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was unreasonable. Harrington, 562 U.S. at 102.

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Harrington, 562 U.S. at 101 (quoting

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The State Court Did Not Err in Denying Petitioner’s Insufficient Evidence
Claims.

III.

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In his first three grounds for habeas relief, Petitioner alleges that the evidence adduced at

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trial was insufficient to support his convictions for attempted murder and first degree murder.

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(Doc. 1 at 25-39, 56-70.) Specifically, Petitioner contends that the evidence failed to prove

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Petitioner had the specific intent to kill or show premeditation and deliberation. Id. Respondent

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counters that the California Court of Appeal’s rejection of Petitioner’s claims was reasonable
because there was evidence to support the jury’s finding that Petitioner was guilty of attempted

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murder and first degree murder. (Doc. 10 at 9.)
A. Standard of Review for Insufficient Evidence Claims

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To determine whether the evidence supporting a conviction is so insufficient that it

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violates the constitutional guarantee of due process of law, a court evaluating a habeas petition

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must carefully review the record to determine whether a rational trier of fact could have found
the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319;

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Windham v. Merkle, 163 F.3d 1092, 1101 (9th Cir. 1998). It must consider the evidence in the
light most favorable to the prosecution, assuming that the trier of fact weighed the evidence,

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resolved conflicting evidence, and drew reasonable inferences from the facts in the manner that

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most supports the verdict. Jackson, 443 U.S. at 319; Jones v. Wood, 114 F.3d 1002, 1008 (9th

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Cir. 1997).

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B. Attempted Murder – Specific Intent to Kill

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In his first ground for habeas relief, Petitioner contends that the evidence adduced at trial
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did not support his convictions for attempted murder because the evidence failed to prove he had
the specific intent to kill. (Doc. 1 at 25-33.)

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Pursuant to the California Penal Code, murder is “the unlawful filling of a human being . .

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. with malice aforethought.”5 (Cal. Penal Code § 187(a)). Attempted murder requires a specific

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intent to kill and a direct but ineffectual act toward accomplishing the intended killing. People v.

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Smith, 37 Cal. 4th 733, 739 (2005).
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1. State Court of Appeal Opinion

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The Court of Appeal explained “[a]n attempt to commit a crime occurs when the

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perpetrator, with the specific intent to commit the crime, performs a direct but ineffectual act

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towards its commission. [ ].” People v. Salas, (No. F063978) (Cal. Ct. App. Dec. 16, 2013), at

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22 (quoting People v. Marshall, 15 Cal. 4th 1, 36 (1997)). The Court of Appeal defined the

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requirements of attempted murder:

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Attempted murder “‘requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the killing.’ [ ].” (People v. Smith
(2005) 37 Cal. 4th 733, 739.) Implied malice – a conscious disregard for life –
does not suffice, even though it would for murder itself. (People v. Stone (2009)
46 Cal. 4th 131, 139-140; Smith, supra, at p. 739.)

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A defendant’s intent is rarely provable by direct evidence. Rather, such intent
“‘must usually be derived from all the circumstances, including the defendant’s
actions. [ ].’” (People v. Smith, supra, 37 Cal. 4th at p. 741.) This is so even
with respect to the intent to kill (express malice) required to convict a defendant
of attempted murder. [ ]. The California Supreme Court has explained: “[T]he
act of purposefully firing a lethal weapon at another human being at close range,
without legal excuse, generally gives rise to an inference that the shooter acted
with express malice. That the shooter had no particular motive for shooting the
victim is not dispositive, although . . ., where motive is shown, such evidence will
usually be probative of proof of intent to kill. . . . [T]he very act of firing a
weapon “‘in a manner that could have inflicted a mortal wound had the bullet

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The California Penal Code provides:
malice may be express or implied. It is express when there is manifested a deliberate intention
unlawfully to take away the life of a fellow creature. It is implied, when no considerable
provocation appears, or when the circumstances attending the killing show an abandoned and
malignant heart.

Cal. Penal Code § 188.

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been on target’” is sufficient to support an inference of intent to kill. [ ]. (Id. at p.
742.)
“‘Whether a defendant possessed the requisite intent to kill is, of course, a
question for the trier of fact. While reasonable minds may differ on the resolution
of that issue, our sole function is to determine if any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. [ ].’ [
].” (People v. Gonzalez (2005) 126 Cal. App. 4th 1539, 1552.)
Id. at 22-23.
The Court of Appeal analyzed the statements witnesses made to police officers, which
detailed how Petitioner was shooting “at the victims.” Id. at 23 (emphasis in original). Eulalia

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M. testified that Petitioner pointed his gun at her and fired from a distance of five to six feet

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away. Id. Eulalia M. testified that after shooting at her, Petitioner pointed the gun at Juan M.’s

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head, but police arrived at that moment. Id. Juan M. testified that Petitioner pointed a gun at

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him. Id. Although Juan M. did not recall if Petitioner fired the gun at him, he testified that

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Petitioner was shooting toward all the people at the Mendezes’s house. Id.

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The Court of Appeal found this evidence to be “sufficient to permit a rational trier of fact

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to conclude [Petitioner] specifically intended to kill Eulalia [M.] and Juan [M.].” Id. Petitioner
argued before the Court of Appeal that the “weight of the testimonial evidence” established that

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he was “firing wildly, without any particular aim.”

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supporting that scenario,

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The Court of Appeal found evidence

or at least supporting the notion [Petitioner] was firing randomly into the crowd
associated with the Mendezes. However, “[o]ur task is not to determine, for
example, whether the weight of the evidence might favor [a lesser verdict] for
either or both victims. Our task is to determine whether there was sufficient
evidence by which a rational jury could decide” [Petitioner] harbored a specific
intent to kill both victims. (People v. Nazeri (2010) 187 Cal. App. 4th 1101,
1111.)
Id. at 23-24 (emphasis in original).

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The Court of Appeal, however, noted the California Supreme Court “has determined that a

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person who intends to kill can be guilty of attempted murder even if the person has no specific

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target in mind.” Id. at 24. Indeed, “[a]n indiscriminate would-be killer is just as culpable as one

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who targets a specific person.” Id. (quoting Stone, 46 Cal. 4th at 140) (internal quotation marks

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omitted).

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The Court of Appeal held that “[t]he evidence to which [Petitioner] now points was before

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the jury – as was the evidence supporting a finding he specifically intended to kill Eulalia [M.]

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and Juan [M.],” and “[c]onflicts and even testimony which is subject to justifiable suspicion do

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not justify the reversal of a judgment.” Id. (internal citations omitted). This is because “it is the

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exclusive province of the trial judge or jury to determine the credibility of a witness and the truth
or falsity of the facts upon which a determination depends.” Id. at 24-25. The Court of Appeal
declined Petitioner’s request to reweigh evidence.
2. Denial of Petitioner’s Specific Intent Argument Was Not Objectively
Unreasonable

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Petitioner contends that the evidence presented at trial was insufficient to prove he had
the specific intent to kill, because after Antonio S. handed him the gun, Petitioner fired the gun

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“wildly, randomly, [and] in all directions.” (Doc. 1 at 25.) Petitioner acknowledges that intent to

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kill has been found where a defendant fires a gun toward a victim at close range. Id. at 29 (citing

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Smith, 37 Cal. 4th 733; People v. Ramos, 193 Cal. App. 4th 43, 48 (2011); People v. Woods, 226

22

Cal. App. 3d 1037 (1991)). However, Petitioner argues that the forensic evidence presented at

23
trial showed Petitioner fired wildly, without aiming at anyone. Id.
24
25

Petitioner is asking this Court to reweigh the evidence in favor of him. However, on

26

habeas review, this Court does not reweigh the evidence presented at trial. Instead, the Court

27

must review the record to determine whether a rational trier of fact could have found the

28

Petitioner had the specific intent to kill beyond a reasonable doubt. Jackson, 443 U.S. at 319.
14

1
2
3

Witnesses testified at trial that Petitioner was shooting at victims.

These witnesses

included Eulalia M. and Juan M., who Petitioner was accused of attempting to murder. The jury
was also presented with forensic evidence that showed bullets hit unoccupied vehicles at heights

4
ranging from bumpers to windshield height, which Petitioner argues shows he was firing
5
6

randomly and not at individuals. However, Petitioner’s due process rights are not violated

7

because there is contrary evidence that can be gleaned from the record. Id. at 326. Evidence is

8

considered in the light most favorable to the prosecution, and it is assumed that the jury weighed

9

the evidence, resolved conflicting evidence, and drew reasonable inferences from the facts in a

10

manner that supports the verdict. Id. at 319. When this standard is applied to this case, the Court

11
12
13
14

cannot say that there was insufficient evidence to support the jury’s conclusion.
The Court of Appeal’s decision was not an objectively unreasonable application of clearly
established federal law nor did it result in a decision that was based on an unreasonable

15

determination of the facts in light of the evidence presented. For these reasons, the Court

16

recommends denying Petitioner’s claim that there was insufficient evidence to support a finding

17

of specific intent to kill.

18
19
20
21
22
23

C. Attempted Murder and First Degree Murder – Premeditation and
Deliberation
In his second and third grounds for habeas relief, Petitioner argues that there was
Insufficient evidence of premeditation and deliberation to convict Petitioner of murder and
attempted murder. (Doc. 1.) As to the attempted murder charge, Petitioner states that if the Court
finds sufficient evidence of Petitioner’s intent to kill, there was not enough evidence of

24
25
26
27

premeditation and deliberation for the attempted murder convictions. (Doc. 1 at 34-39.)
Under California law, first degree murder is defined, in part, as a “willful, deliberate, and
premeditated killing.” Cal. Penal Code. § 189.

28
15

1
2
3
4

1. State Court of Appeal Opinion
The Court of Appeal noted that in the context of murder, “premeditated means considered
beforehand, and deliberate means formed or arrived at or determined upon as a result of careful
thought and weighing of considerations for and against the proposed course of action.” Salas,

5
6
7

(No. F063978), at 25 (quoting People v. Mayfield, 14 Cal. 4th 668l 767 (1997) (internal quotation
marks omitted)).

8

Therefore,

9

[a]n intentional killing is premeditated and deliberate if it occurred as the result of
reflection rather than unconsidered or rash impulse. [ ]. However, the requisite
reflection need not span a specific or extended period of time. Thoughts may
follow each other with great rapidity, and cold, calculated judgment may be
arrived at quickly. [ ]. (People v. Nelson, supra, 51 Cal. 4th at p. 213.) Evidence
concerning motive, planning, and the manner of killing are pertinent to the
determination of premeditation and deliberation, but these factors are not
exclusive nor are they invariably determinative. [ ]. (People v. Silva (2001) 25
Cal. 4th 345, 368.) Rather, they are merely a framework for appellate review,
and need not be present in any particular combination or afforded special weight.
(People v. Brady (2010) 50 Cal. 4th 547, 562.)

10
11
12
13
14
15
16
17
18
19

Id. at 25-26 (internal quotation marks omitted).
The Court of Appeal determined that the evidence adduced at trial “showed a strong
motive for both the murders and the attempted murders, specifically the bad blood between the
Mendez and Salas families. Although perhaps not the instigator, [Petitioner] was an active

20
21

participant in previous conflicts between family members.” Id. at 26. Evidence showed that

22

Petitioner borrowed the gun used in the shooting before the shooting and retrieved the gun from

23

his parents’ house before opening fire. Id. Additionally,

24
25
26
27

[a] rational trier of fact [ ] could have found – with respect both to the murders
and the attempted murders – that the gun was deliberately aimed at the victims’
heads from a distance close enough to produce a mortal wound, either when the
victims were not looking at the shooter (in the case of Jose [M.] and Pablo [M.])
or when they were in a position of disadvantage vis-à-vis [Petitioner] because
they were trying to assist other victims or were on the ground (in the case of
Eulalia [M.] and Juan [M.]).

28
16

1
2
3

Id. at 26-27. For these reasons, the Court of Appeal affirmed the convictions.
2. Denial of Petitioner’s Premeditation and Deliberation Arguments Was
Not Objectively Unreasonable

4

Petitioner contends that the confrontation between the two families on the day of the

5

shooting was spontaneous; therefore, the evidence cannot show premeditation and deliberation on

6

the part of Petitioner to satisfy the requirements of attempted murder or first degree murder.

7
8

(Doc. 1 at 36-39, 59-69.) Petitioner argues he fired his gun “in an uncalculated, frenzied response
to the chaos[,]” and Petitioner’s “behavior defied the particularized and exacting conduct

9
10

characteristic of a calculated design to insure death.” Id. at 38.

11

Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact

12

could have found premeditation and deliberation in this case. Jackson, 443 U.S. at 319. As the

13

Court of Appeal observed, Petitioner participated in the conflicts between the two families. Prior

14
15

to the shooting, Petitioner borrowed the gun that was used in the shooting to protect his family.
On the day of the shooting, Petitioner admitted to retrieving the gun from where he hid it and

16
17
18

opening fire on the crowd outside the Salas family house. Further, there was evidence that
Petitioner aimed the gun at his victims’ heads.

19

While Petitioner presents evidence that the murders and attempted murders were the

20

product of provocation, specifically seeing Fabian S. being beaten up, rather that premeditation,

21

the Court is not permitted to reweigh the evidence. On federal habeas review, it is the Court’s job

22

to decide whether, construing all the evidence in the light most favorable to the prosecution, any

23
rational trier of fact could have found the essential elements of the crime beyond a reasonable
24
25

doubt. Jackson, 443 U.S. at 319.

26

As the Court of Appeal noted, premeditation does not requires an extended period of

27

time. Salas, (No. F063978), at 27. A reasonable juror could find that arming oneself with a gun

28

and pointing that gun at individuals indicates premeditation and deliberation. Accordingly, the
17

1

state court’s adjudication was objectively reasonable and the Court recommends rejecting

2

Petitioner’s claim of insufficient evidence.

3

IV.

The State Court Did Not Err in Rejecting Petitioner’s Inconsistent Verdict Claim

4
In his fourth ground for habeas relief, Petitioner claims that his murder convictions were
5
6

“unreliable,” because the prosecution argued Petitioner aided and abetted Antonio S. in the

7

murders of Jose and Pablo M., but the jury deadlocked on the charges against Antonio S. (Doc. 1

8

at 40.) Petitioner maintains the trial court should have “refused the verdicts” as to Petitioner “to

9

insure the homicide verdicts rested on a lawful theory of liability, as required by the Fifth, Sixth,

10

and Fourteenth Amendments.” Id. at 40-41. Petitioner is arguing that the verdicts on the murder

11
12

charges were inconsistent because he could not have aided and abetted Antonio S. in committing
the murders when the jury deadlocked on Antonio S.’s guilt.

13
14
15

A. Standard of Review for Inconsistent Verdict Claims
The Due Process Clause of the Fourteenth Amendment requires that “no person shall be

16

made to suffer the onus of a criminal conviction except upon sufficient proof – defined as

17

evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every

18

element of the offense.” Jackson, 443 U.S. at 316. However, an inconsistent verdict does not

19
mean that a conviction is unconstitutional. United States v. Powell, 469 U.S. 57, 65 (1984). This
20
21

is even the case with an individual convicted as an aider and abettor when the principal was

22

acquitted. See Standefer v. United States, 447 U.S. 10, 20 (1980) (dictum) (“[A]ll participants in

23

conduct violating a federal criminal statute are ‘principals.’ As such, they are punishable for their

24

criminal conduct; the fate of other participants is irrelevant.”)

25
26
27
28
18

1
2
3

B. State Court of Appeal Opinion
At trial, the prosecutor’s theory of the case was Antonio S. was the actual shooter and
Petitioner aided and abetted him in the murders. Salas, (No. F063978), at 28. By contrast,

4
Petitioner proceeded on the theory that Petitioner acted alone in killing Jose M. and Pablo M.
5
6
7

Petitioner argued, however, the killings were either justified because they were committed in
defense of a family member or constituted no more than voluntary manslaughter. Id.

8

The jury instructions informed jurors:

9

a person is guilty of a crime whether he or she committed it personally, or aided
and abetted the perpetrator, and they were instructed on all applicable theories of
liability with respect to [Petitioner]. They were not told the direct perpetration
instructions applied only to Antonio [S.] and the aiding and abetting instructions
only to [Petitioner]. Rather, they were told that, with specified exceptions not
pertinent here, all instructions applied to each trial defendant. Jurors deadlocked
on all charges against Antonio [S.], and the trial court declared a mistrial as to
him. The court subsequently accepted verdicts with respect to [Petitioner]; as
previously described, the jury found him guilty of first degree murder for both
homicides.

10
11
12
13
14
15

Id. at 28-29.

16
17
18

Before the Court of Appeal, Petitioner argued that the jury’s deadlock as to Antonio S.
rendered the homicide verdicts against Petitioner unreliable. Id. at 29. Petitioner contended that

19

once the jury deadlocked, aiding and abetting was no longer a proper theory of liability as to

20

Petitioner and the trial court should have “refused the verdict.” Id. He reasoned that if “there was

21

no homicide committed by Antonio [S.], there was no predicate act committed by Antonio [S.]

22

and, hence, [Petitioner] could not have aided and abetted Antonio [S.]” Id. Petitioner believed

23

that the aider and abettor theory of liability should have been withdrawn from the jury’s

24
25

consideration. Id.

26

The Court of Appeal noted,

27

[i]nconsistent verdicts – whether on separate charges against one defendant or
with respect to codefendants in a joint trial – are not rendered unreliable, or
otherwise infirm, by virtue of their inconsistency. Moreover, although the jury
19

28

1
2
3
4
5
6
7

must unanimously agree the defendant is guilty of a specific crime, as long as
each juror is convinced beyond a reasonable doubt that defendant is guilty of
murder as that offense is defined by statute, [the jury] need not decide
unanimously by which theory he is guilty. More specifically, the jury need not
decide unanimously whether defendant was guilty as the aider and abettor or as
the direct perpetrator. This rule of state law passes constitutional muster. Not
only is there no unanimity requirement as to the theory of guilty, the individual
jurors themselves need not choose among the theories, so long as each is
convinced of guilt. Sometimes, as probably occurred here, the jury simply cannot
decide beyond a reasonable doubt exactly who did what. There may be a
reasonable doubt that the defendant was the direct perpetrator, and a similar doubt
that he was the aider and abettor, but no such doubt that he was one or the other.

8
Id. at 30 (internal citations and quotation marks omitted).
9
10

A trial court has a duty to instruct a jury on “general legal principles raised by the

11

evidence and necessary for the jury’s understanding of the case.” Id. (internal citation and

12

quotation marks omitted).

13

instruction must be given “when such derivative culpability forms a part of the prosecution’s

14

theory of criminal liability and substantial evidence supports the theory.” Id. at 30-31 (internal

15

Specifically with an aiding and abetting theory of liability, an

citation and quotation marks omitted). Here, the Court of Appeal found, based on the evidence,

16
17
18

the trial court had “a sua sponte duty to instruct [the jury] on aiding and abetting liability as a
general legal principle raised by the evidence and necessary for the jury’s understanding of the

19

case.” Id. at 30 (internal citation and quotation marks omitted). The Court of Appeal determined,

20

based on the evidence in this case, it was appropriate for the trial court to instruct the jury on an

21

aiding and abetting theory of liability.

22

California Penal Code § 1161 provides “[w]hen there is a verdict of conviction, in which

23
it appears to the Court that the jury may have mistaken the law, the Court may explain the reason
24
25

for that opinion and direct the jury to reconsider their verdict. . . .” However, apart from this

26

circumstance, “a trial court may not decline to accept a jury verdict, or refuse to hear the verdict,

27

simply because it is inconsistent with another verdict rendered by the same jury in the same case.”

28

Salas, (No. F063978), at 31 (internal citations and quotation marks omitted). The Court of
20

1

Appeal determined that in this case there was no suggestion that the jury mistook the law. Id.

2

Further, the Court of Appeal determined that the jury’s deadlock on the charges against

3

Antonio [S] did not “somehow transform aiding and abetting into an improper theory as to

4
[Petitioner]. Jurors were not constrained by the fact the prosecution chose to focus on a particular
5
6

theory.” Id. (internal citations omitted). The jurors found Petitioner unanimously guilty of

7

murdering Jose [M.] and Pablo [M.]. Id. Whether an individual juror believed Petitioner was

8

guilty as the direct perpetrator or as an aider and abettor is inconsequential. Id.

9

If the trial court had refused the verdicts on the homicide and instructed the jury to

10

deliberate again on only the theory that Petitioner was the direct perpetrator, it “would have given

11
12
13
14
15
16
17
18

[Petitioner] a windfall to which he was not entitled. It would have had the effect of requiring
juror unanimity on [one] theory, when the law does not require such unanimity.” Id. at 34. For
these reasons, the Court of Appeal found the trial court did not err in failing to “refuse the
verdict.”
C. Denial of Petitioner’s Inconsistent Verdict Claim Was Not Objectively
Unreasonable
Petitioner contends that his convictions on the murder charges were inconsistent with the

19

jury’s acquittal of Antonio S. on his murder charges. (Doc. 1 at 41.) Petitioner states that

20

because the prosecutor argued that Petitioner aided and abetted Antonio S. in the murders,

21

Petitioner could not be guilty of aiding and abetting once the jury deadlocked on Antonio S.’s

22

guilt. Id. Petitioner contends the trial court should have “refuse[d] to accept the homicide

23
verdicts as to [Petitioner], reinstruct[ed] the jury to ignore the aiding and abetting instructions,
24
25

and direct[ed] the jury to deliberate under the corrected instructions.” Id. at 46.

26

“[I]t is well established that inconsistent verdicts may stand, even when a conviction is

27

rationally incompatible with an acquittal, provided there is sufficient evidence to support a guilty

28

verdict.” United States v. Suarez, 682 F.3d 1214, 1218 (9th Cir. 2012) (quoting United States v.
21

1

Guzman, 849 F. 2d 447, 448 (9th Cir. 1988)) (internal quotation marks omitted). As discussed,

2

supra, the evidence in this case was sufficient to support a guilty verdict on the murder charges,

3

as Petitioner admitted to shooting the victims and witnesses identified Petitioner as the shooter.

4

While Petitioner admits that a jury is not required to agree on a theory of liability –

5
6

whether Petitioner was the actual perpetrator or an aider and abettor – Petitioner argues that this is

7

not the usual case of inconsistent verdicts, because the prosecutor specifically alleged that

8

Petitioner was not the primary shooter, but instead, aided and abetted Antonio S. (Doc. 1 at 49.)

9

Despite Petitioner’s claim, however, he continues to rely on the argument that the verdicts were

10

inconsistent because the prosecution’s theory was that Antonio S. was the shooter and Petitioner

11

aided and abetted Antonio S. Id. at 50. “Whether the jury’s verdict was the result of carelessness

12
13
14

or compromise or a belief that the responsible individual should suffer the penalty . . . is
immaterial.

Juries may indulge in precisely such motives or vagaries.”

United States v.

15

Dotterweich, 320 U.S. 277, 279 (1943). As the Court of Appeal noted, the jurors found Petitioner

16

guilty of murder and it does not matter under which theory of liability they found Petitioner

17

guilty. The jury instructions did not delineate which instructions applied to Petitioner and which

18
19

applied to Antonio S.; therefore, the jury could have reasonably concluded that Petitioner was the
perpetrator.

20
For these reasons, the evidence presented to the jury, viewed in the light most favorable to

21
22

the government, was sufficient for a rational trier of fact to find Petitioner guilty of murder. The

23

Court recommends that Petitioner’s inconsistent verdict claim be denied.

24
25
26

V.

The State Court Did Not Err in Rejecting Petitioner’s Ineffective Assistance of
Counsel Claim
In his fifth ground for habeas relief, Petitioner contends his trial counsel provided

27

ineffective assistance of counsel by failing to “correct” the jury instructions after the jury

28

deadlocked on the murder charge for Antonio S. (Doc. 1 at 48.) Petitioner states “defense
22

1

counsel let [Petitioner] suffer a verdict likely based on the incorrect theory of law that he aided

2

and abetted Antonio [S.] in the commission of the homicides.” Id.

3

A. Standard of Review for Ineffective Assistance of Counsel Claims

4
The purpose of the Sixth Amendment right to counsel is to ensure that the defendant
5
6

receives a fair trial. Strickland v. Washington, 466 U.S. 668, 686 (1984). "[T]he right to counsel

7

is the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14

8

(1970). "The benchmark for judging any claim of ineffectiveness must be whether counsel's

9

conduct so undermined the proper functioning of the adversarial process that the trial cannot be

10
11

relied on as having produced a just result." Strickland, 466 U.S. at 686.
To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate

12
13
14

that his trial counsel's performance "fell below an objective standard of reasonableness" at the
time of trial and "that there is a reasonable probability that, but for counsel's unprofessional

15

errors, the result of the proceeding would have been different." Id. at 688, 694. The Strickland

16

test requires Petitioner to establish two elements: (1) his attorney's representation was deficient

17

and (2) he suffered prejudice as a result of the deficient representation. Both elements are mixed

18
19

questions of law and fact. Id. at 698.
These elements need not be considered in order.

Id. at 697.

"The object of an

20
21

ineffectiveness claim is not to grade counsel's performance." Id. If a court can resolve an

22

ineffectiveness claim by finding a lack of prejudice, it need not consider whether counsel's

23

performance was deficient. Id.

24
25
26

B. State Court of Appeal Opinion
Petitioner argued that if the Court of Appeal found the trial court did not err in failing to
“refuse the verdict” on first degree murder, the Court should find that Petitioner’s counsel was

27
ineffective for not objecting to the verdict. The Court of Appeal held:
28
23

1

[i]n light of our conclusion [regarding the first degree murder verdict],
[Petitioner’s] alternative claim – that, if the trial court had no sua sponte
obligation to take corrective action, then defense counsel was ineffective for not
doing so – fails. [Petitioner] can show neither deficient performance nor
prejudice, both of which he would have to establish in order to prevail on this
claim. (People v. Cunningham (2001) 25 Cal. 4th 926, 1006; People v. Pope
(1979) 23 Cal. 3d 412, 425; see generally Strickland v. Washington (1984) 466
U.S. 668, 687-694).

2
3
4
5
6

Salas, (No. F063978), at 35.

7

C. Rejecting the Ineffective Assistance of Counsel Claim Was Not Objectively
Unreasonable

8
9

Petitioner maintains trial counsel was ineffective for failing to request that the jury

10

deliberate on the murder charge again after the jury was unable to arrive at a verdict regarding

11
12

the murder charge against Antonio S. However, the jury was properly instructed on the law and
unanimously determined that Petitioner was guilty of first degree murder. “Failure to raise a

13
14

meritless argument does not constitute ineffective assistance of counsel.” Boag v. Raines, 769

15

F.3d 1341, 1344 (9th Cir. 1985) (citing Cooper v. Fitzharris, 551 F.2d 1162, 1166 (9th Cir.

16

1977)); see also Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (“[T]he failure to take a

17

futile action can never be deficient performance.”). Because Petitioner’s claim is meritless, the

18

Court recommends denying Petitioner’s ineffective assistance of trial counsel claim.

19
VI.

The Court Recommends Declining to Hold an Evidentiary Hearing

20
21

Petitioner requests the Court hold an evidentiary hearing. In habeas proceedings, "an

22

evidentiary hearing is not required on issues that can be resolved by reference to the state court

23

record." Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998). "It is axiomatic that when issues

24

can be resolved with reference to the state court record, an evidentiary hearing becomes nothing

25

more than a futile exercise." Id. at 1176. Here, all of Petitioner's claims can be resolved by

26

reference to the state court record. Accordingly, the Court recommends denying Petitioner’s

27
request for an evidentiary hearing.
28
24

1
2
3

VII.

Certificate of Appealability

A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a
district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v.

4
Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a
5
6
7
8
9
10
11

certificate of appealability is 28 U.S.C. § 2253, which provides:
(a) In a habeas corpus proceeding or a proceeding under section 2255
before a district judge, the final order shall be subject to review, on appeal, by
the court of appeals for the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to
test the validity of a warrant to remove to another district or place for
commitment or trial a person charged with a criminal offense against the United
States, or to test the validity of such person's detention pending removal
proceedings.

12
13
14
15
16
17
18
19
20
21

(c)
(1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals from—
(A) the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1)
only if the applicant has made a substantial showing of the denial of a
constitutional right.
(3) The certificate of appealability under paragraph (1) shall
indicate which specific issues or issues satisfy the showing required by
paragraph (2).

22

If a court denies a habeas petition, the court may only issue a certificate of appealability

23

"if jurists of reason could disagree with the district court's resolution of his constitutional claims

24

or that jurists could conclude the issues presented are adequate to deserve encouragement to

25

proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000).

26

Although the petitioner is not required to prove the merits of his case, he must demonstrate

27
"something more than the absence of frivolity or the existence of mere good faith on his . . .
28
25

1

part." Miller-El, 537 U.S. at 338.

2
3

Reasonable jurists would not find the Court's determination that Petitioner is not entitled
to federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed

4
further. Accordingly, the Court should decline to issue a certificate of appealability.
5
6

VIII. Recommendations and Conclusions
Based on the foregoing, the undersigned recommends that the Court dismiss the petition

7
8

for writ of habeas corpus with prejudice and decline to issue a certificate of appealability.

9
10
11

These Findings and Recommendations will be submitted to the United States District
Judge assigned to the case, pursuant to the provisions of 28 U.S.C

636(b)(1). Within thirty

(30) days after being served with these Findings and Recommendations, either party may file

12
13
14

written objections with the Court. The document should be captioned Objections to Magistrate
Judge’s Findings and Recommendations. Replies to the objections, if any, shall be served and

15

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

16

failure to file objections within the specified time may constitute waiver of the right to appeal the

17

District Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.

18

Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

19
20
21
22
23

IT IS SO ORDERED.
Dated:

March 30, 2018

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

24
25
26
27
28
26

.