Anaya v. Peery

Filing 19

FINDINGS and RECOMMENDATIONS to Deny 1 Petition for Writ of Habeas Corpus signed by Magistrate Judge Michael J. Seng on 09/10/2017. Referred to Judge Ishii. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ADAM DANIEL ANAYA,

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Petitioner,
v.
M. Eliot Spearman, Warden
Respondent.

Case No. 1:15-cv-01285-AWI-MJS (HC)
FINDINGS AND RECOMMENDATION TO
DENY PETITION FOR WRIT OF HABEAS
CORPUS
(ECF NO. 1)
THIRTY (30) DAY OBJECTION DEADLINE

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas

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corpus under 28 U.S.C. § 2254. M. Eliot Spearman, Warden of High Desert State Prison,

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is hereby substituted as the proper named respondent pursuant to Rule 25(d) of the

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Federal Rules of Civil Procedure. Respondent is represented by Lewis Albert Martinez of

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the Office of the California Attorney General.

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The petition raises the following claims: (1) instructional error unfairly bolstered

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the credibility of prosecution witnesses; (2) instructional error unfairly impeached

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Petitioner‘s credibility; and (3) there was insufficient evidence to support a conviction for

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extortion. (ECF No. 1.)

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

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I.

Procedural History

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In 2011, Petitioner was convicted after a jury trial in the Superior Court of

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California, County of Tulare, of extortion, burglary, home invasion robbery, battery,

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dissuading a witness or victim, participation in a criminal street gang, and receiving

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stolen property. The jury also found true the special allegation that the offenses were

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committed for the benefit of a street gang. In bifurcated proceedings, the court found

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prior strike and serious felony special allegations to be true. On October 21, 2011,

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Petitioner was sentenced to a term of 35 years to life for the home invasion robbery and

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prior felony conviction, with additional concurrent or stayed terms for the remaining

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counts. (Lodged Doc. 4 at 991-992.)

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On January 10, 2012, prior to briefing on his direct appeal, Petitioner filed a

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petition for writ of habeas corpus in the Fifth District Court of Appeal. (Lodged Doc. 24.)

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The petition was denied on the ground Petitioner had failed to show the issues raised

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were not cognizable on appeal. (Lodged Doc. 25.)

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On October 7, 2013, the California Court of Appeal, Fifth Appellate District,

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reversed the conviction for receiving stolen property. The case was remanded for

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resentencing on the convictions for extortion and dissuading a witness or victim. The trial

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court also was directed to amend the judgment as to some of the enhancements.

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(Lodged Doc. 22 at 65.) Petitioner filed a petition for review in the California Supreme

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Court. (Lodged Doc. 26). On February 11, 2014, the California Supreme Court denied

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Petitioner's petition for review. (Lodged Doc. 27).

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On April 30, 2014, Petitioner was resentenced in the Tulare County Superior
Court to a term of thirty-five years to life. (Lodged Doc. 23.)

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On April 20, 2015, Petitioner filed a petition for writ of habeas corpus in the

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California Supreme Court. (Lodged Doc. 28.) On July 8, 2015, the petition was

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summarily denied. (Lodged Doc. 29.)

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Petitioner filed the instant petition on August 21, 2015. (ECF No. 1.) On

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November 19, 2015, Respondent filed an answer. (ECF No. 14.) On January 22, 2016,

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Petitioner filed a traverse. (ECF No. 18.) 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 opinion, filed on October 7, 2013, and modified and partially

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published on November 5, 2013. They and are presumed correct. 28 U.S.C.

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§ 2254(e)(1).

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Facts Specific to the January 2010 Incident
Eric Dahlberg lived across the street from his friend Roy
Gomez in Tulare. On January 31, 2010, Dahlberg called 911
after he became concerned about a number of people he
observed at Gomez's home. He had never seen these six or
so men at his neighbor's home before. Gomez and the others
were standing near the driveway and appeared to be talking.
But then Gomez started backing up and the others were
getting closer, ―kind of circling around him.‖ Dahlberg thought
it was a ―little suspicious.‖ Gomez had backed up to the
garage door and put his hands up. Shortly thereafter,
Gomez's cousin came out from inside the house.
Although Dahlberg could not hear what was being said, he
could see clearly. He focused on one person who appeared
older and ―darker.‖ That individual stood out and seemed like
he was telling the others what to do. He made lots of hand
gestures: when he pointed to the curb, two individuals went to
the curb; when he pointed to the house, everyone else went
inside.[FN4] That individual also used his cell phone a couple
of times. The individual ―was in Roy's face,‖ while the others
were behind him. Dahlberg did not witness any physical
altercation.
[FN4: Two individuals stayed at the curb when the
others went inside. They looked up and down the
street.]

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By the time the police arrived in response to his call,
Dahlberg was at the back of his house. Because he could not
clearly see individual faces, he could not identify anyone
other than Gomez and his cousin. Later, Gomez came to

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Dahlberg's door. He was ―breathing hard‖ and was ―acting
shocked.‖
Another neighbor, Richard Hernandez, was outside working
on his truck that same day. He recalled seeing ―a bunch of
guys‖ pull up in a couple of cars. He figured they were friends
of Gomez's. It was not unusual until he noticed the group had
Gomez backed up against the garage door. There were six or
seven men, most of whom were young. Two were older and
one stood out because he was the only one talking and
everyone else surrounded him. Hernandez could not decide if
that man was African–American or a dark complexioned
Hispanic. That man was loud, ―running his mouth,‖ yelling
and screaming.

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Hernandez became concerned because Gomez was
standing against the garage and everyone was ―surrounding
him.‖ They no longer looked like friends. Although he did not
talk to Gomez's cousin much, he knew who he was and he
recognized him when he came outside. The group's focus
then shifted to Gomez's cousin and they all went inside.
About 10 minutes later, the police arrived.
When Hernandez gave his statement to police, his memory
was fresh; he told the truth. He told Detective Jesus Guzman
that the darker man had told Gomez's cousin, ―This doesn't
concern you. Get out of here.‖ He recalled seeing the darker
man on his cell phone; he wore a red hat. Gomez's cousin
told the darker man that he did not have much money, but
that he could take what he had. Hernandez recalled telling
the detective that he saw ―a larger white guy try to strike‖
Gomez.
In January 2010, Norteño gang member A.T. was living with
his aunt, uncle, and cousin Roy Gomez in Tulare. In
response to a midmorning knock, A.T. answered the door to
find a man he believed to be John Delgado [FN5] asking to
speak with his cousin. He knew who Delgado was because
Delgado had visited Gomez in the past. A.T. noted there
were other people waiting outside near a white truck and a
white car, but he did not recognize the others. Gomez
stepped outside with Delgado.
[FN5: ―John‖ Delgado was actually Steven Delgado.]

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A.T. resumed speaking on the telephone with his girlfriend.
Eventually, he heard people talking loudly or shouting. He

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hung up the telephone, assuming there was an argument,
and went outside.
Once outside, A.T. found his cousin with his back to the
garage. About seven people were encircling him. Gomez's
hands were out (palms out at shoulder height) in front of him.
He seemed scared and confused. Those surrounding Gomez
were later identified as [Co-Defendant Eric Thomas] Wolfe,
Anaya, Steven Delgado, Robert Pompa and others. Wolfe
was standing ―kind of offset‖; A.T. had never met Wolfe but
knew who he was.
Realizing the argument was about a debt [FN6] he himself
owed, A.T. asked what was going on. Wolfe told A.T. to mind
his own business and continued to confront Gomez over the
fact he ―owed the homies money.‖ Eventually, A.T. was able
to tell Wolfe that it was not Gomez they were looking for,
rather it was him. Wolfe made a phone call. He then
apologized to Gomez and pointed to A.T., saying, ―You are
the one.‖
[FN6: A.T.'s debt was incurred as a result of borrowing
money or drugs from the gang (then selling the drugs
for profit). A.T. borrowed from the gang on two
occasions, fell behind on payments, and had not
repaid that debt plus ―tithe‖ and interest.]
Anaya, who had been standing near the sidewalk, said
―cops,‖ and pointed down the street. In response to this news,
everyone went inside the house. Once inside, A.T. was
surrounded by Wolfe, Delgado, Pompa and another
individual. Anaya and a second individual stayed at the
window as lookouts. Pompa struck him in the face and he
was verbally harassed. Wolfe told A.T. he owed money and
began grabbing items in the house. A.T. tried to explain that
the house belonged to his aunt and that the property in the
home was not his. He offered to pay what he owed, and also
offered the $200 he had in his possession. In the room A.T.
shared with his cousin, Wolfe and Anaya were ―taking things
apart‖; A.T. again explained most of the property belonged to
his aunt. Wolfe or Delgado told him to shut up.
About this same time, the police knocked on the door. The
officers had everyone exit the back room with their hands up.
Identification was checked and names were taken. A.T. gave
the officers a false name because he had violated his
parole.[FN7] Ultimately, no one was arrested and the police

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left. A.T. did not say anything to the police then because he
had been told to shut up.
[FN7: In 2006, A.T. was convicted of second degree
burglary and receiving stolen property.]
After the police left, Wolfe, who did most of the talking, told
A.T. what was going to happen. Wolfe said A.T. owed
$5,000, it needed to be paid, and they would be taking items
with them. He was reminded that he knew ―what happens‖ to
people who do not ―pay up.‖ He would be given a phone
number for ―Pablo.‖ He was to call Pablo in an hour to receive
additional information about whom to pay. A.T. told Wolfe he
would do his best to pay the debt. Thereafter, A.T.'s
belongings were loaded into a white or cream-colored
Chevrolet Blazer, including computers, printers, hard drives
and keyboards. He did not give anyone permission to take
the items.
After Wolfe, Anaya and the others left, A.T. called the
telephone number he was given for Pablo. He recognized the
voice on the other end as that of Wolfe. A.T. was told to call
the number the following day about a meeting. The next day,
he called Pablo's number again; Wolfe answered. Wolfe
advised A.T. that he would be picked up in 30 minutes;
however, a few moments later, Wolfe called back. A.T. was
advised they were waiting for him outside.
A.T. went outside and got into the car as requested. Wolfe
was driving, Pompa was the front seat passenger, and
Delgado was in the back. They went to what A.T. assumed
was Pompa's home. Pompa offered him a beer, but he
declined. He was nervous and fearful. Wolfe advised him he
had 29 days within which to pay back $5,000. Although A.T.
had borrowed $3,000, the amount increased significantly
because of ―fines.‖ A.T. asked that his belongings be
returned, but Wolfe denied the request. A.T. also asked if he
could have ―assistance‖ in repaying the debt. After making a
telephone call, Wolfe denied A.T.'s request for assistance.
Despite having no job [FN8] or other financial resources, A.T.
understood that if he did not repay the debt, he would be
―done,‖ as stated by Wolfe. A.T. understood ―done‖ as
meaning he would ―be whacked‖ or killed. A.T. was further
advised that if he loved his kids, he would pay the money
within the timeframe provided. He was then taken home.

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[FN8: When in good standing, A.T. sold drugs on
behalf of the Norteño gang. He is no longer a Norteño
gang member.]
Three or four days later, A.T. was arrested for absconding
from parole and was taken to jail. Although he did not want to
tell police about what had happened, and knew he was
risking his life by doing so, A.T. also feared what would
happen when the debt repayment deadline expired. He gave
a statement to Detective Guzman and received protective
custody.[FN9]
[FN9: Once he was released from custody, A.T. was
provided with additional protection in the form of
housing, utilities, and food assistance, and was
provided a cell phone as well. He received that
assistance between February and September 2010,
but was ultimately asked to leave the program after
breaking a rule.]
While serving time in jail, A.T. was transported to the Bob
Wiley Detention Facility. On a bus returning from court, Wolfe
was seated behind him. Wolfe told him ―not to do it,‖ and that
he could fix everything, including A.T.'s status with the gang.
Wolfe offered A.T. a car and some money not to say
anything. A.T. did not believe him. On another occasion, as
he and Detective Guzman passed Wolfe in a cell, Wolfe said,
―Don't do it A[.].‖[FN10] That meant A.T. should not talk to the
police.
[FN10: Jesus Flores, a correctional deputy with the
Tulare County Sheriff's Department, testified that on
February 5, 2010, he was working at the main jail. He
and Detective Guzman were escorting A.T. toward an
interview room. As the group passed cell No. 7, Flores
heard someone say, ―A[.], don't do it, don't do it.‖
Flores looked back and saw Wolfe.]

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A.T. is still afraid because he still owes money. By testifying,
he is considered to be ―telling on‖ defendants and ―the whole
rest of the gang.‖
Tulare Police Officer Jeremy Faiman testified that on January
31, 2010, about 1:10 p.m., he responded in a marked K9
patrol unit to a possible home invasion in progress. As he
approached the home, he observed two subjects standing out
front, looking up and down the street. After calling for
additional units, he contacted those subjects, who were
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identified as Manuel Rubio and Mario Duarte. As he directed
Rubio and Duarte to sit down with their hands in sight, Roy
Gomez exited the home, quickly shutting the door behind
him. Gomez consented to a look around the house, indicating
a couple of ―homies‖ were inside. He was nervous.
Officer Faiman and an undercover officer approached the
unlocked door. They entered and cleared the home. Several
people exited a bedroom. Everyone was ―really calm. It was
almost a scary calm.‖ Wolfe, Anaya, Pompa, Delgado, Jaime
Rodriguez, and Adrian Vasquez were identified. Other than a
legal folding pocketknife, no weapons were found on anyone
located in the home. When asked for identification, A.T.
provided a false name. Later, Officer Faiman learned A.T.'s
true name and that he was wanted for a parole violation.
While the police were present, no one in the home said
anything about a crime being committed. They said
―everything was cool, they didn't need any police assistance.‖
Officer Faiman did not notice any computer equipment, but
he was not looking for it. His focus was on the people inside.
The television was not on, there was no beer in view, nor was
there any food being prepared or grilled at the home.
Thereafter, the investigation concluded and the officers left
the residence.
Roy Gomez testified that he was living with his parents and
cousin in January 2010. He recalled the day the police came
to the house. A couple of friends had come over to watch
football and ―hang out.‖ He could not recall everyone's
name.[FN11] Wolfe was there; he and Wolfe would get
together now and then to watch football. Gomez could not
recall how often Wolfe had been to his home; he had never
been to Wolfe's house. Anaya was also there, arriving with
Wolfe. Gomez had been introduced to Anaya previously
through a friend whose name he did not remember. There
were five or six people total.

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[FN11: Later, Gomez testified that he knew who
Delgado and Pompa were. He thought he knew who
Mario Duarte, Manuel Rubio and Jaime Rodriguez
were as well. He claimed hearing the names of the
others present that day ―refreshed [his] mind.‖]
Everyone arrived at the same time because Gomez recalled
hearing the doorbell. He believed he answered the door and
went outside to speak with them first. Everyone greeted one
another, ―nothing really serious.‖ Then, with the exception of
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a few people who had stayed outside to smoke, the group
headed inside. They had only been sitting down and watching
television for two to three minutes when the police arrived.
Gomez could see through the front window when the police
arrived, and he went outside to see what the problem was.
The police advised him they had been sent about ―a burglary
or something going on.‖ Gomez did not want the police to go
inside his home, but he did acknowledge he was on parole
and thus subject to search. He told the police there was no
reason for them to go inside. He sat outside on the curb while
the house was searched. After the police left, the group
stayed at the house ―for a little bit, watched TV and stuff, you
know, and then everybody took off.‖

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His cousin A.T. had a lot of computers. A.T. tried to sell
everything he had that day, and did sell a computer to Wolfe
after the police left. A.T. carried the computer he sold to
Wolfe out to Wolfe's white Blazer.
Gomez stated there had not been any dispute or argument
that day, nor did any physical violence occur. He did not
know if he talked to Detective Guzman after his cousin's
arrest. At the police station, Gomez ―pled the right to remain
silent,‖ so he did not give a statement.[FN12] He denied
telling the detective there had been a little misunderstanding
and it had been straightened out and was not gang related.
He did not tell Guzman he was struck or hit, nor did he tell
Guzman that he did not know Wolfe. Neither did he recall
telling Guzman anything about computers.

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[FN12: Detective Guzman interviewed Gomez on
February 4, 2010, at the Tulare Police Department.
The videotaped interview was played for the jury.]
Although he used to be a gang member, Gomez was no
longer a gang member because he ―grew out of it.‖ And he
just ―hung out‖ with the West Side Tulare Norteños. Gomez
has three felony convictions, the last in 2005.

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Jaime Rodriguez testified for the defense. In January 2010,
he recalled walking on the street in Tulare on his way to see
his friend Isabel. He saw two friends standing outside a
house he later learned belonged to Gomez. He stopped to
say hello to Manuel Rubio and Mario Duarte. They spoke for
a few minutes and then Gomez invited them inside to watch
the polo game and to barbeque. There were no arguments,
fights, or disagreements. They watched the polo game for a
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few minutes before the police arrived. They had gone into a
back room to smoke the marijuana Rodriguez had with him.
They also looked at some computers; A.T. offered to sell the
computers. The police arrived, but after checking everyone's
identification, they left. Rodriguez then left because he was
nervous. He was on probation and did not want to go back
into custody.[FN13]

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[FN13: On cross-examination, Rodriguez qualified the
group was only discussing a barbeque. Detective
Guzman testified he took Rodriguez's statement, and
Rodriguez had told him there was a barbeque going
on in the backyard. Rodriguez made no mention of
marijuana.]

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On February 4, 2010, Tulare police officers conducted a
probation compliance check at a residence in Tulare. The
officers were going to attempt to take Wolfe into custody. No
one responded to the front door. Helicopter surveillance,
however, noted someone leaving through the back. After a
vehicle pulled out of the garage, a traffic enforcement stop
was conducted on a white Chevrolet Blazer. Wolfe's girlfriend
Desiree Villareal was contacted. She reported that Wolfe was
at work. A subsequent probation search was conducted and
numerous computer parts and equipment were located in the
garage.
Detective Guzman with the Tulare County Police Department
was assigned to investigate an incident involving A.T.
Related thereto, on February 4, 2010, Wolfe and Anaya were
taken into custody. Following Miranda (Miranda v. Arizona
(1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694)
warnings, Anaya gave a recorded statement. He indicated he
was helping his girlfriend's uncle—Robert Pompa—pick up
and load some computer equipment. He recalled carrying out
a monitor and keyboard from inside a home. Anaya admitted
knowing Delgado. He denied being a gang member himself,
but acknowledged associating with Northerners, or Norteños.
On February 5, 2010, Detective Guzman responded to the
main jail. He and Deputy Flores were walking with A.T.
Passing Wolfe's cell, he heard Wolfe say, ―[D]on't do it A[.],
don't do it.‖
During the investigation Detective Guzman listened to more
than 10 calls made from the Tulare County Sheriff's
Department pretrial facility. He recognized the persons
speaking in those phone calls as Wolfe, his girlfriend Desiree
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Villareal, and Wolfe's stepbrother Dexter Rabadan. Several of
the recorded phone calls were played for the jury.[FN14]
[FN14: An investigator aide with the Tulare Police
Department downloaded recordings of inmate phone
calls made from the Tulare County jail to a particular
telephone number provided by Detective Guzman.
Phone calls were made on January 16, February 14,
February 18 and February 25, 2010. The same
telephone number was associated with all four calls.]
Facts Relevant to the Gang Allegations
Patrick O'Donohoe is a peace officer with the City of Tulare.
While on duty on November 20, 2006, O'Donohoe came into
contact with Anaya. At the time, Anaya was wearing blue
jeans, a gray sweatshirt, and white shoes with red shoe
laces, a red belt, and a red and black '49ers beanie.
Tony Espinoza is a detective with the Tulare Police
Department assigned to the gang unit. On July 16, 2009, the
detective came into contact with Mario Duarte and Manuel
Rubio. Duarte and Rubio, accompanied by Johnny
Hernandez, were sitting on a park bench in Tulare. Duarte
was photographed wearing various items of red clothing.
There was writing or gang graffiti on the table in red ink, and
each of the individuals had a red permanent ink marker in his
possession.
On January 29, 2010, Detective Espinoza was on duty and
conducted a traffic stop of a vehicle; the front license plate
was not fully secured. Wolfe was the driver and Steven
Delgado was the passenger. In a photo taken during the
traffic stop, Wolfe was photographed wearing various items of
red clothing. A few days later, on February 4, 2010, Detective
Espinoza assisted with the search of a residence. The car he
had pulled over a few days earlier containing Wolfe was
located at the home.
Detective Guzman was designated a gang expert. He
estimated there were over 400 active gang members in
Tulare. He described the formation of the Norteño gang and
the signs and symbols related to the gang. The gang's
activities included assaults, assaults with a deadly weapon,
robberies, drug sales, and weapons possession. Guzman
also testified to predicate offenses, gang packets, and the
gang modules at the Bob Wiley Detention Facility.

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In Detective Guzman's opinion, Wolfe is an active
―Northerner‖ gang member and was on January 31, 2010. His
opinion is based upon police reports, arrests, contacts, jail
housing assignments, and information known to the
department.
It is also the detective's opinion that Anaya is an active
Northerner gang member and was on January 31, 2010.
Guzman's opinion is based on the fact he asked Anaya if he
was a gang member and Anaya responded, ―‗I guess so.‘‖
His opinion is also based on Anaya's jail housing assignment
and the fact that San Francisco '49ers clothing is typically
worn as a symbol of the Northern gang.
Detective Guzman was also of the opinion that Delgado,
Pompa, Duarte, Rubio and Rodriguez were all active gang
members. Further, the detective believed A.T. was a gang
member until January 31, 2010. He was no longer a gang
member because he failed to pay his debt and because A.T.
was considered a ―rat‖ for telling the police about a crime
committed by a fellow gang member.

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Presented with a hypothetical situation involving similar facts,
Detective Guzman believed the type of crimes alleged to
have been committed would have been committed at the
direction of and for the benefit of the Norteño criminal street
gang. Additionally, those crimes would have been committed
in association with the Norteño criminal street gang and
furthered its objectives.
Defense expert Albert Ochoa, a behavioral interventionist,
worked at a charter school in Visalia. He met with students,
including those involved in gangs, every day. His past
experience as executive director of a community center and
mental health specialist at a youth services agency also put
him in contact with young people involved in gangs, either as
members or as associates. Ochoa has a certificate in basic
counseling and psychology from La Puente Bible College. He
is regularly contacted regarding his opinion on gang issues
and has been previously certified as a gang expert in Tulare
County.
Following his interviews with Wolfe and Anaya, and his
review of the materials provided by Wolfe's attorney, Ochoa
concluded that Wolfe and Anaya associate with the gang. In
his opinion, they are not active gang members.

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On cross-examination, Ochoa indicated that a photograph of
Anaya wearing items of red clothing, taken during a 2006
contact with law enforcement, would not change his opinion
that Anaya was not a gang member because the photo was
six years old. Ochoa indicated he had not listened to the
phone call between Wolfe and his half brother so that fact
was not considered for purposes of his opinion. Ochoa
acknowledged that he is paid to testify. He further
acknowledged that were he to have found Wolfe and Anaya
to be active gang members, he would not have been paid.
Ochoa could not opine as to whether Delgado, Pompa and
the others were gang members because he did not interview
them. Ochoa agreed that an associate of the gang does not
―call shots.‖ He further agreed that if someone ―pleads to a
crime‖ and admits a related gang enhancement, he would
opine that individual is an active gang member.

2
3
4
5
6
7
8
9
10
11
12
13

People v. Anaya, 221 Cal. App. 4th 252, 257-65, 164 Cal. Rptr. 3d 216, 219–25 (2013),
as modified on denial of reh'g (Nov. 5, 2013); (Lodged Doc. 22).
III.

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

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

Jurisdiction and Venue

of a state court if the custody violates the Constitution, laws, or treaties of the United
States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362,
375 n.7 (2000). Petitioner asserts that he suffered a violation of his rights as guaranteed
by the U.S. Constitution. Petitioner was convicted and sentenced in this district. 28
U.S.C. § 2241(d); 2254(a). The Court concludes that it has jurisdiction over the action
and that venue is proper.
IV.

Standard of Review
The instant petition was filed after April 24, 1996 and is governed by the

Antiterrorism and Effective Death Penalty Act of 1996 (―AEDPA‖). Lindh v. Murphy, 521
U.S. 320, 326 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). Under
AEDPA, a petition for a writ of habeas corpus by a prisoner in custody under a judgment
of a state court may be granted only for violations of the Constitution or laws of the
United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. at 375 n.7 (2000).

28
13

1

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

2

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

3
4
5
6
7

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

8
1.
9
10
11
12
13

Contrary to or an Unreasonable Application of Federal Law

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

14
factual pattern before a legal rule must be applied. . . . The statue recognizes . . . that
15

even a general standard may be applied in an unreasonable manner‖ Panetti v.

16
Quarterman, 551 U.S. 930, 953 (2007) (citations and quotation marks omitted). The
17
18

―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

19
decision to be an unreasonable application of clearly established federal law under
20
§ 2254(d)(1), the Supreme Court's prior decisions must provide a governing legal
21
principle (or principles) to the issue before the state court. Lockyer v. Andrade, 538 U.S.
22
63, 70-71 (2003).
23
24

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 409-

25
10); Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). In Harrington v. Richter, the Court
26
27

further stressed that ―an unreasonable application of federal law is different from an
incorrect application of federal law.‖ 131 S. Ct. 770, 785 (2011) (citing Williams, 529 U.S.

28
14

1

at 410) (emphasis in original). ―A state court's determination that a claim lacks merit

2

precludes federal habeas relief so long as ‗fairminded jurists could disagree‘ on the

3

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

4

U.S. 653, 664 (2004)). Further, ―[t]he more general the rule, the more leeway courts

5

have in reading outcomes in case-by-case determinations.‖ Id.; Renico v. Lett, 130 S. Ct.

6

1855, 1864 (2010). ―It is not an unreasonable application of clearly established Federal

7

law for a state court to decline to apply a specific legal rule that has not been squarely

8

established by this Court.‖ Knowles v. Mirzayance, 556 U.S. 111, 122, 129 S. Ct. 1411,

9

1419 (2009) (quoting Richter, 131 S. Ct. at 786).

10

2.

Review of State Decisions

11

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

12

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

13

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

14

―look through‖ presumption. Id. at 804; Plascencia v. Alameida, 467 F.3d 1190, 1198

15

(9th Cir. 2006). Determining whether a state court's decision resulted from an

16

unreasonable legal or factual conclusion, ―does not require that there be an opinion from

17

the state court explaining the state court's reasoning.‖ Richter, 131 S.Ct. at 784-85.

18

―Where a state court's decision is unaccompanied by an explanation, the habeas

19

petitioner's burden still must be met by showing there was no reasonable basis for the

20

state court to deny relief.‖ Id. (―This Court now holds and reconfirms that § 2254(d) does

21

not require a state court to give reasons before its decision can be deemed to have been

22

‗adjudicated on the merits.‘‖).

23

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

24

or merely a summary denial, the approach to evaluating unreasonableness under

25

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

26

arguments or theories supported or, as here, could have supported, the state court's

27

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

28
15

1

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

2

Court.‖ Id. at 786. Thus, ―even a strong case for relief does not mean the state court's

3

contrary conclusion was unreasonable.‖ Id. (citing Lockyer, 538 U.S. at 75). AEDPA

4

―preserves authority to issue the writ in cases where there is no possibility fairminded

5

jurists could disagree that the state court's decision conflicts with this Court's

6

precedents.‖ Id. To put it yet another way:

7

10

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.

11

Id. at 786-87. This is because ―state courts are the principal forum for asserting

12

constitutional challenges to state convictions.‖ Id. at 787. It follows from this

13

consideration that § 2254(d) ―complements the exhaustion requirement and the doctrine

14

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

15

preliminary step for later federal habeas proceedings.‖ Id. (citing Wainwright v. Sykes,

16

433 U.S. 72, 90 (1977)).

8
9

17

3.

Prejudicial Impact of Constitutional Error

18

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

19

the error had ―a substantial and injurious effect or influence in determining the jury's

20

verdict.‖ Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551

21

U.S. 112, 121-22 (2007) (holding that the Brecht standard applies whether or not the

22

state court recognized the error and reviewed it for harmlessness). Some constitutional

23

errors, however, do not require that the petitioner demonstrate prejudice. See Arizona v.

24

Fulminante, 499 U.S. 279, 310 (1991); United States v. Cronic, 466 U.S. 648, 659

25

(1984). Furthermore, where a habeas petition governed by AEDPA alleges ineffective

26

assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), the

27

Strickland prejudice standard is applied and courts do not engage in a separate analysis

28
16

1

applying the Brecht standard. Avila v. Galaza, 297 F.3d 911, 918, n.7 (2002); Musalin v.

2

Lamarque, 555 F.3d 830, 834 (9th Cir. 2009).

3

IV.

Review of Petition

4

A.

5

Petitioner contends an improper jury instruction unfairly bolstered the credibility of

6
7

Claim One: Bolstering Credibility of Prosecution Witnesses

a prosecution witness. (ECF No. 1 at 5.)
1.

State Court Decision

8

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

9

―looks through‖ the Supreme Court‘s decision to the reasoned decision of the Fifth

10

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

11

Petitioner‘s claim as follows:

12

15

Defendants contend the trial court erred when it instructed
the jury with a portion of CALCRIM No. 226 that was
inapplicable and, as a result, their rights to due process and
the right to a jury assessment of the credibility of witnesses
have been violated. Further, they assert the error was not
harmless.

16

A. Applicable Standards

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14

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18
19
20
21
22
23

―‗It is well established in California that the correctness
of jury instructions is to be determined from the entire
charge of the court, not from a consideration of parts
of an instruction or from a particular instruction.
[Citations.] ―[T]he fact that the necessary elements of a
jury charge are to be found in two instructions rather
than in one instruction does not, in itself, make the
charge prejudicial.‖ [Citation.] ―The absence of an
essential element in one instruction may be supplied
by another or cured in light of the instructions as a
whole.‖ [Citation.]‘ [Citation.]‖ (People v. Bolin (1998)
18 Cal.4th 297, 328.)

24
25
26

―It is fundamental that jurors are presumed to be intelligent
and capable of understanding and applying the court's
instructions. [Citation.]‖ (People v. Gonzales (2011) 51
Cal.4th 894, 940.)

27
28
17

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2
3
4
5
6
7
8
9
10
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12

―In reviewing the purportedly erroneous instructions,
‗we inquire ―whether there is a reasonable likelihood
that the jury has applied the challenged instruction in a
way‖ that violates the Constitution.‘ [Citations.] In
conducting this inquiry, we are mindful that ― ‗a single
instruction to a jury may not be judged in artificial
isolation, but must be viewed in the context of the
overall charge.‖ ‘ [Citations.]‖ (People v. Frye (1998)
18 Cal.4th 894, 957, overruled on other grounds in
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
We consider the instructions as a whole, along with the jury's
findings and the closing arguments of counsel. (People v.
Cain (1995) 10 Cal.4th 1, 36; People v. Eid (2010) 187
Cal.App.4th 859, 883.) We will find error only if it is
reasonably likely the instructions as a whole caused the jury
to misunderstand the applicable law. (Estelle v. McGuire
(1991) 502 U.S. 62, 74; People v. Kelly (1992) 1 Cal.4th 495,
525-527.)
B. The Language of CALCRIM No. 226

13
The jury was instructed with CALCRIM No. 226 as follows:
14
15
16
17
18
19
20
21
22

―You alone must judge the credibility or believability of
the witnesses. In deciding whether testimony is true and
accurate use your common sense and experience. You must
judge the testimony of each witness by the same standards
setting aside any bias or prejudice you may have. You may
believe all, part or none of any witness's testimony. Consider
the testimony of each witness and decide how much of it you
believe.
―In evaluating a witness's testimony you may consider
anything that reasonably tends to prove or disprove the truth
or accuracy of that testimony. Among the factors that you
may consider are: How well could the witness, see, hear, or
otherwise perceive the things about which the witness
testified.

23
24
25
26
27

―How well was the witness able to remember and
describe what happened?
―What was the witness's behavior while testifying?
―Did the witness understand the questions and answer
them directly?

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18

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

―Was the witness's testimony influenced by a factor
such as bias or prejudice, a personal relationship with some
one involved in the case or a personal interest in how the
case is decided?
―What was the witness's attitude about the case or
about testifying?
―Did the witness make a statement in the past that is
consistent or inconsistent with his or her testimony?
―How reasonable is the testimony when you consider
all the other evidence in the case? Did other evidence prove
or disprove any fact upon which the witness testified?
―Did the witness admit to being untruthful? Has the
witness been convicted of a felony?
―Was the witness promised immunity or leniency in
exchange for his testimony?
―Do not automatically reject testimony just because of
inconsistencies or conflicts. Consider whether the differences
are important or not. People sometimes honestly forget things
or make mistakes about what they remember.
―Also, 2 people may witness the same event yet see or
hear it differently. If the evidence establishes that a witness's
character for truthfulness has not been discussed among the
people who know him or her you may conclude from a lack of
discussion that the witness's character for truthfulness is
good.

24

―If you do not believe a witness's testimony that he or
she no longer remembers something that testimony is
inconsistent with the witness's earlier statement on that
subject. If you decide that a witness deliberately lied about
something significant in this case you should consider not
believing anything that witness says. Or, if you think the
witness lied about some things but told the truth about others,
you may simply accept the part that you think is true and
ignore the rest.‖

25

C. Analysis

26

CALCRIM No. 226 instructs the jury on factors that it may
consider in judging the credibility of a witness. We agree the
trial court read to the jury an inapplicable portion of the
instruction concerning character evidence: ―If the evidence
19

20
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23

27
28

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2
3
4
5
6
7
8
9
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22
23
24
25
26
27

establishes that a witness's character for truthfulness has not
been discussed among the people who know him or her you
may conclude from a lack of discussion that the witness's
character for truthfulness is good.‖ This portion of the
instruction was simply not relevant or applicable in light of the
testimony at trial. ―It is error for a court to give an ‗abstract‘
instruction, i.e., ‗one which is correct in law but irrelevant[.]‘
[Citation.]‖ (People v. Rowland (1992) 4 Cal.4th 238, 282.)
Indeed, the Bench Notes to CALCRIM No. 226 instruct that
the challenged language should be given only ―if relevant
based on the evidence.‖ The challenged portion of the
instruction, addressing circumstances in which the jury could
assume good character for truthfulness from the absence of a
discussion among character witnesses about the witness's
character for honesty, was irrelevant because no evidence
supported it. Thus, the court erred in giving it.
However, this error did not prejudice defendants. We look to
other instructions given to the jury in assessing prejudice.
(People v. Sanders (1995) 11 Cal.4th 475, 536-537.) Here,
the jurors were thoroughly instructed on how to evaluate the
testimony of witnesses, which in addition to CALCRIM No.
226 included the following: CALCRIM Nos. 301 (Single
Witness's Testimony), 302 (Evaluating Conflicting Evidence),
316 (Additional Instructions on Witness Credibility—Other
Conduct), 318 (Prior Statements as Evidence), 332 (Expert
Witness Testimony) and 333 (Opinion Testimony of Lay
Witness). Significantly, too, the jury was instructed with
CALCRIM No. 200, which provided in pertinent part: ―Some
of these instructions may not apply, depending on your
findings about the facts of the case. After you have decided
what the facts are, follow the instructions that do apply to the
facts as you find them.‖ Thus, it is most likely the jury ignored
the challenged portion of the instruction after correctly
determining it was not relevant or applicable. (People v.
Gonzales, supra, 51 Cal.4th at p. 940.) Additionally, as the
Attorney General argues, the challenged language applied to
all witnesses, not just the victim. Given the number of
credibility factors and instructions, nothing suggests the
verdicts obtained here were the result of any consideration of
the challenged language. Notably too, neither party
mentioned nor emphasized the challenged language in
closing arguments to the jury, further reducing the likelihood
of prejudice.
We find it is not reasonably likely the instructions as a whole
caused the jury to misunderstand the applicable law. (Estelle

28
20

1

v. McGuire, supra, 502 U.S. at p. 74; People v. Kelly, supra, 1
Cal.4th at pp. 525-527.) In sum, the error was harmless
under either the state or federal constitutional standard of
error. (See Chapman v. California (1967) 386 U.S. 18, 24;
People v. Watson (1956) 46 Cal.2d 818, 836.)

2
3
4

(Lodged Doc. 22 at 14-18.)

5

3.

6
7
8
9
10

Analysis

The California Court of Appeal found that the trial court erred under state law by
instructing the jury with an irrelevant portion of CALCRIM No. 226. However, this error of
state law is not a basis for federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 71-72
(1991) (holding that a challenge to a jury instruction solely as an error under state law
does not state a claim cognizable in federal habeas corpus proceedings).

11

Instead, a federal court's inquiry on habeas review is limited to whether the

12

challenged jury instruction ―violated some right which was guaranteed to the defendant

13

by the Fourteenth Amendment.‖ Cupp v. Naughten, 414 U.S. 141, 146 (1973). ―[N]ot

14

every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a

15

due process violation.‖ Id. On federal review, the pertinent question is whether the

16

challenged instruction ―so infused the trial with unfairness as to deny due process of

17

law.‖ Estelle, 502 U.S. at 75. Relevant to this inquiry is ―‗whether there is a reasonable

18

likelihood that the jury has applied the challenged instruction in a way‘ that violates the

19

Constitution.‖ Id. (quoting Boyde v. California, 494 U.S. 370, 380 (1990)). The Court of

20

Appeal applied this federal standard and concluded that such error was ―not reasonably

21

likely,‖ and that, in any event, any error was harmless under Chapman. (Lodged Doc. 22

22

at 18.)

23

Under Chapman, ―the test for determining whether a constitutional error is

24

harmless . . . is whether it appears ‗beyond a reasonable doubt that the error complained

25

of did not contribute to the verdict obtained.‘‖ Neder v. United States, 527 U.S. 1, 15

26
27

(1999) (quoting Chapman, 386 U.S. at 24). However, when a state court's Chapman
decision is reviewed under AEDPA, a habeas Petitioner must establish that the trial

28
21

1

court‘s error resulted in ―actual prejudice.‖ Davis v. Ayala, 135 S. Ct. 2187, 2197 (2015)

2

(quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). This requires more than a

3

―reasonable possibility‖ that the error was harmful. Brecht, 507 U.S. at 637. Instead, the

4

petitioner must show that the state court's harmless error determination ―was so lacking

5

in justification that there was an error well understood and comprehended in existing law

6

beyond any possibility of fairminded disagreement.‖ Davis, 135 S.Ct. at 2199 (quoting

7

Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words, ―a federal court may not

8

award habeas relief under § 2254 unless the harmlessness determination itself was

9

unreasonable.‖ Id. (quoting Fry v. Pliler, 551 U.S. 112, 119 (2007)).

10

Here, the Fifth District Court of Appeal's harmlessness determination was not

11

unreasonable. The state court considered the challenged portion of CALCRIM No. 226

12

in the context of the jury instructions as a whole. The state court noted that the jury was

13

given multiple instructions on how to evaluate the testimony of witnesses, including

14

CALCRIM No. 200, which specifically points out that some of the given instructions may

15

be inapplicable. The court concluded that the jury most likely ignored the challenged

16

portion of the instruction since it was irrelevant. This decision is not ―so lacking in

17

justification that there was an error well understood and comprehended in existing law

18

beyond any possibility of fairminded disagreement.‖ Richter, 562 U.S. at 103.

19

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

20

B.

21

Petitioner contends that his due process rights were violated by a jury instruction

22

regarding consciousness of guilt. Petitioner contends that the instruction was not

23

warranted and improperly impugned Petitioner‘s credibility.

24
25
26
27

Claim Two: Undermining Petitioner’s Credibility

The instruction at issue reads as follows:
If defendant ERIC THOMAS WOLFE and ADAM DANIEL
ANAYA made a false or misleading statement before this trial
relating to the charged crime, knowing the statement was
false or intending to mislead, that conduct may show he was
aware of his guilt of the crime and you may consider it in

28
22

1

determining his guilt. You may not consider the statement in
deciding any other defendant‘s guilt.

2

If you conclude that the defendant made the statement, it is
up to you to decide its meaning and importance. However,
evidence that the defendant made such a statement cannot
prove guilt by itself.

3
4
5

(ECF No. 1 at 7; Lodged Doc. 4 at 878.)
6
7
8
9
10
11
12

Petitioner argues that this instruction was inapplicable because there was no
evidence of false statements by Petitioner. (ECF No. 1 at 22.) He nonetheless opines that
the jury may have inferred from this instruction that Petitioner had been untruthful. He
suggests that the jury may have found this instruction applicable based on Petitioner‘s
statements to detectives that he had gone to the house to collect computer equipment that
had been sold to his co-defendant Wolfe, a statement that was inconsistent with other
evidence adduced at trial.

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

1.

State Court Decision

Petitioner presented this claim in his petition for writ of habeas corpus to the
California Supreme Court. (Lodged Doc. 28.) The Supreme Court denied the claim
without comment. (Lodged Doc. 29.) Nevertheless, whether the state court decision is
reasoned and explained, or merely a summary denial, the approach to evaluating
unreasonableness under § 2254(d) is the same: "Under § 2254(d), a habeas court must
determine what arguments or theories supported or, as here, could have supported, the
state court's decision; then it must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent with the holding in a prior
decision of this Court." Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 178 L. Ed. 2d
624 (2011).
2.

Analysis

The analysis of this claim is essentially the same as that for Petitioner‘s first claim.
Here, a reasonable jurist could conclude that the jury had no basis to apply the
challenged instruction in a way that violates the Constitution. Estelle, 502 U.S. at 75. The

28
23

1

jury was free to accept or reject the defendants‘ version of the facts. The challenged

2

instruction clearly states that it is the province of the jury to determine the ―meaning and

3

importance‖ of any statement made by the defendant that the jury determines to be

4

false.

5

Additionally, a reasonable jurist could conclude that any error in giving the

6

instruction was harmless beyond a reasonable doubt under Chapman. Chapman, 386

7

U.S. at 24). Certainly, such a conclusion would not be so unreasonable as to meet the

8

extremely deferential standard applicable on federal review. Davis, 135 S.Ct. at 2199. As

9

stated above, the jury was given multiple instructions on how to evaluate the testimony

10

of witnesses, including CALCRIM No. 200, which specifically points out that some of the

11

given instructions may be inapplicable. The Court cannot say that, in rejecting this claim,

12

the California Supreme Court‘s decision was ―so lacking in justification that there was an

13

error well understood and comprehended in existing law beyond any possibility of

14

fairminded disagreement.‖ Richter, 562 U.S. at 103.

15

C.

16

Petitioner claims there was insufficient evidence to support his conviction for

17

extortion. More specifically, Petitioner argues that the victim‘s statement that he felt he

18

had no choice but to hand over his money was insufficient to support an extortion

19

conviction. Instead, these allegations support a robbery charge and, under state law,

20

should have been aggregated into the single robbery charge Petitioner was convicted

21

under.

22

Claim Three: Insufficient Evidence

1.

State Court Decision

23

The Fifth District Court of Appeal rejected this claim in a reasoned opinion.

24

(Lodged Doc. 22.) Petitioner then petitioned for review to the California Supreme Court

25

(Lodged Doc. 26), and his petition was summarily denied (Lodged Doc. 27). However,

26

Petitioner‘s Supreme Court petition arguably presented the issue more narrowly than it is

27

presented here. There, Petitioner argued only that the evidence was insufficient to

28
24

1

support an extortion conviction ―because there is insufficient proof that the victim‘s cash

2

was given with consent induced by force or threat.‖ (Lodged Doc. 26 at 12.) Petitioner

3

challenged the Court of Appeal‘s finding that the testimony of the victim, A.T., was

4

sufficient to support a finding of coerced consent because he testified he felt he had no

5

choice. (Id.) Thus, there may be some question as to the extent to which this claim is

6

exhausted. Nevertheless, the Court will address this claim on the merits because it is

7

clear Petitioner‘s potentially unexhausted claims do not raise a colorable federal claim.

8

Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005)

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

The Fifth District Court of Appeal rejected this claim as follows:
Defendants contend there is insufficient evidence to support
their convictions pertaining to extortion because there is no
evidence the victim ―was placed in the position of having the
choice of paying money or being killed before [he] handed
over the cash he had on his person‖ and because the victim
―testified he had no choice.‖ Additionally, defendants assert
that because the ―takings were both accomplished with the
use of the same force, from the [victim]‘s immediate
presence, and the evidence demonstrated that the takings
were both committed with intent to permanently deprive [the
victim] of his money and property … there was but a single
episode of robbery under the Bailey doctrine,‖ requiring
reversal of the convictions for extortion.
―Extortion is the obtaining of property from another, with his
consent, … induced by a wrongful use of force or fear ….‖
(§ 518.) Relevant here, section 519 further provides that
―Fear, such as will constitute extortion, may be induced by a
threat, either: [¶] … To do an unlawful injury to the person or
property of the individual threatened or of a third person ….‖
Section 520 provides as follows:
―Every person who extorts any money or other
property from another, under circumstances not
amounting to robbery or carjacking, by means of force,
or any threat, such as is mentioned in Section 519,
shall be punished by imprisonment pursuant to
subdivision (h) of Section 1170 for two, three or four
years.‖

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1. Relevant Testimony and Argument
The following colloquy concerned the testimony about money
and property taken from A.T.:
―[PROSECUTOR:] Q. Okay. Now let‘s back up
because that was a lot of information. So you get
punched, some of the guys in there are saying get
back in the circle and [defendant] Wolfe says round
everything up, this guy owes money and he is pointing
at you pretty much?
―[A.T.:] A. Yeah.
―Q. Well obviously. How, was that right after the punch
pretty much?
―A. Yeah, yeah.

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―Q. Okay. And do people start going and taking
property at that point?

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―A. Yes.

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―Q. Do they start going through the house?

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―A. Yes.

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―Q. Okay. And did you have any property at the
house?

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―A. Some, yes.

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―Q. Okay. And but most would it be fair to say that
most of the items in there were your aunt‘s and your
uncle‘s?

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―A. Yes, her house, it is her house, of course.
―Q. Now did you have any money on you as well?
―A. Yes.

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―Q. And if you recall approximately how much money?
―A. I believe it was 200? 200 something.

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―Q. 200 some dollars?

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―A. Yes.
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―Q. Did you try to give that money to them?

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―A. Yes.

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―Q. Now was that taken from you or did you hand it
over?

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―A. It was taken. It was handed over.

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―Q. All right. You handed it over?

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―A. Yes.

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―Q. Did you feel at that moment that you had any
choice?

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―A. No. No.
―Q. Okay. And the property, now you didn‘t obviously,
did you hand it to them or did they just go back in the
room and take it?
―A. They went back in the room and as I followed them
they were like on me like whoa, what are you trying to
grab? I am not trying to grab nothing. What are you
trying to get? And I was, I don‘t have no weapon,
dudes. I am not trying to get nothing.‖
During closing argument, the People argued as follows with
regard to the extortion counts:
―[PROSECUTOR:] Now Count 1, extortion, now you
could say that the computer fall[s] in this category as
well and convict for the computer as well. However I
think Count 1, extortion, the money is more
appropriate because [A.T.] testified that he handed
over the money. The defendant threatened to
unlawfully injure or use force against another person
or a third person. Well we have the Roy Gomez, we
have the force against [A.T.], we have the encircling of
Roy Gomez, there is all sorts of displays of force or
fear going on out there. When making the threat the
defendant intended to use that fear or force to obtain
the other person‘s consent to give the money or
property. In that case he consented to hand over the
property. When the other person consented to give the
defendant money or property and as a result of the
threat or use of force the other person then gave the

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defendant money or property. And that would be
handing the money to [defendant] Wolfe.
―Now [defendant] Wolfe was very active in carrying out
this and demanding money and telling him that he is
going to pay up. [Defendant] Anaya was there
standing look out while all this is going on and you
remember [A.T.‘s] testimony that well initially when
they are outside [defendant] Anaya stood on the curb
and announced, ‗cops‘ and that is when they went
inside. And when they are inside and when he got
punched standing in the living room he then,
[defendant] Anaya was standing at the window looking
out. [¶] … [¶]

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―Now consent for extortion can be coerced or unwilling
as long as it is given as a result of the wrongful use of
force and is cut off the fear [sic]. Both the defendants,
[defendant] Anaya, [defendant] Wolfe are guilty of
extortion. They came there to get money, they used
force or fear and … [A.T.] because of that force or fear
consented to hand over his money.‖

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2. Choice or Lack of Consent

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Because the victim testified he had no choice, defendants
contend there is insufficient proof of extortion.[FN15] For
purposes of establishing extortion, the victim‘s consent is
―coerced and unwilling.‖ (People v. Goodman (1958) 159
Cal.App.2d 54, 61.) ―The victim of an extortioner might openly
consent to the taking of his money ‗and yet protest in his own
heart‘ against its being taken.‖ (People v. Goldstein (1948) 84
Cal.App.2d 581, 586.) Therefore, the victim of extortion does
not, in actuality, ―consent‖ to the taking of his property. That
element is more precisely a ―coerced consent,‖ which
amounts to no consent at all. (See People v. Davis (1998) 19
Cal.4th 301, 305, fn. 3.) It is the use of force or threat to
induce consent that sets extortion apart from theft. (People v.
Goldstein, supra, at pp. 585-586.) Here, defendants and
others, by their behavior and words, coerced the victim into
handing over the money then in his possession. The victim
had already observed the group harassing his cousin outside,
he himself had been struck in the face and verbally harassed
once the group had moved inside the house, his aunt‘s
possessions were being rifled through, and he was
repeatedly advised that he owed a debt that must be repaid
in the near future in order to avoid further harm. The victim
offered his own money while his relatives‘ property was also
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being identified for collection toward repayment of his debt.
His offering or handing over the cash amounted to coerced
consent. The force and fear employed by defendants and
others induced the victim to hand over the cash. There is
sufficient evidence of extortion. The individuals then went into
the room the victim shared with his cousin. The victim‘s own
property, computers, were taken without his consent. That
conduct forms the basis of the robbery convictions. We find
coerced consent to be the equivalent of a lack of choice.
Therefore, when A.T. testified he felt as though he had no
choice, that testimony spoke to the element of coerced
consent.
[FN15] In popular parlance, extortion is ―sometimes
called ‗blackmail.‘‖ (People v. Sales (2004) 116
Cal.App.4th 741, 748.)
To the degree defendants can be understood to argue that
because the elements of extortion when applied factually may
also meet the elements of robbery, and thus only the crime of
robbery has been committed, they are incorrect.
Robbery is the ―taking of personal property in the possession
of another, from his person or immediate presence, and
against his will, accomplished by means of force or fear.‖
(§ 211.) Extortion, however, is the obtaining of property from
another with his or her consent induced by force or fear.
(§ 518.) The offenses are ―structurally similar‖ and are rooted
in the common law of larceny. (People v. Kozlowski (2002) 96
Cal.App.4th 853, 866; People v. Hesslink (1985) 167
Cal.App.3d 781, 790.) Robbery and extortion share a
comment element: the taking of property with force or fear.
Nevertheless, they are distinguishable. Robbery requires a
taking against the victim‘s will. Extortion requires a taking with
the victim‘s consent. (People v. Torres (1995) 33 Cal.App.4th
37, 50.)
In
Torres,
the
defendant
was
a
―rent
collector for a Los Angeles street gang. While performing his
collection duties, the defendant shot and killed a drug dealer.
The defendant also attempted to obtain money at gunpoint
from a passerby who was not a drug dealer. (People v.
Torres, supra, 33 Cal.App.4th at p. 42.) At trial, a police
officer with the gang unit testified without objection that the
defendant attempted to rob both of his victims; he also
testified as to his interpretation of the crimes of robbery and
extortion. The jury found the defendant guilty of first degree
murder in perpetration of an attempted robbery, in addition to
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two counts of attempted robbery. On appeal, the defendant
alleged error regarding the officer‘s opinions on the crimes
committed and the defendant‘s guilt associated with those
crimes. (Id. at pp. 42-44.) The court agreed with the
defendant that a witness may not express an opinion
regarding the definition of a crime, and may not express an
opinion regarding the defendant‘s guilt or innocence. (Id. at
pp. 45-48.) In addressing the ineffectiveness of the
defendant‘s trial counsel for his failure to object to the
expert‘s testimony, the court noted the following:
―One distinction between robbery and extortion
frequently noted by courts and commentators is that in
robbery property is taken from another by force or fear
‗against his will‘ while in extortion property is taken
from another by force or fear ‗with his consent.‘ The
two crimes, however, have other distinctions. Robbery
requires a ‗felonious taking‘ which means a specific
intent to permanently deprive the victim of the
property. [Citation.] Robbery also requires the property
be taken from the victim‘s ‗person or immediate
presence.‘ [Citation.] Extortion does not require proof
of either of these elements. [Citations.] Extortion does,
however, require the specific intent of inducing the
victim to consent to part with his or her property.‖ (Id.
at p. 50, fn. omitted.)
Even if the facts meet the elements of the crime of robbery,
because extortion requires the specific intent to induce the
victim to consent to part with his property, defendants‘ crime
in taking A.T.‘s cash amounts to extortion, not robbery.
In sum, after reviewing the entire record in the light most
favorable to the judgment, there is substantial evidence to
support the extortion convictions.

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3. The Bailey Rule
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More than 50 years ago, the California Supreme Court
decided People v. Bailey (1961) 55 Cal.2d 514. There, the
defendant committed welfare fraud and received a number of
payments, none of which alone sufficed to constitute grand
theft. Collectively, however, the fraud would serve to
constitute grand theft. The court determined the defendant
was properly convicted of grand theft rather than a series of
petty thefts. It authorized the aggregation of separate acts of
theft into a single offense for the purpose of bringing a felony
allegation when the thefts were committed pursuant to a
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single intent, impulse, and plan. (Id. at pp. 518–519.) This
holding has become known as the Bailey rule. The Bailey rule
has been extended to prevent a defendant from being
convicted of more than one count of grand theft where the
takings were committed against a single victim and the
evidence discloses only one general intent. (People v.
Richardson (1978) 83 Cal.App.3d 853, 866, disapproved on
other grounds in People v. Saddler (1979) 24 Cal.3d 671,
682, fn. 8; People v. Packard (1982) 131 Cal.App.3d 622,
626; People v. Kronemyer (1987) 189 Cal.App.3d 314, 363364.) For the next 47 years, the Bailey rule was limited to
theft cases. (People v. Neder (1971) 16 Cal.App.3d 846, 852
[not extended to forgery]; People v. Drake (1996) 42
Cal.App.4th 592, 596 [not extended to fraud]; People v.
Washington (1996) 50 Cal.App.4th 568, 575, 577–578 [not
extended to burglary].)
Defendants contend that the ―multiple convictions of robbery
and extortion committed against [the victim are] an indivisible
transaction with the single intent and objective of collecting a
debt owed to the gang.‖ Thus, because the Bailey doctrine
precludes ―multiple takings from the same victim [in] a single
theft if the takings are pursuant to one continuing impulse,
intent, plan, or scheme,‖ defendants contend their convictions
must be reversed.
The question of whether multiple takings are committed
pursuant to one intention, general impulse, and plan is a
question of fact for the jury based on the particular
circumstances of each case. (People v. Packard, supra, 131
Cal.App.3d at p. 626.) On appeal, we uphold the fact finder‘s
conclusion if it is supported by substantial evidence. (People
v. Tabb (2009) 170 Cal.App.4th 1142, 1149-1150.) Where the
evidence supports only one reasonable conclusion, the
question may be resolved as a matter of law. (Packard,
supra, at pp. 626-627.)
Defendants rely upon a number of authorities in support of
their assertion that because there was a single intent and
objective in collecting a debt owed to the gang, their ―multiple
convictions of robbery and extortion‖ should be reversed.
However, there are factual distinctions present in those cases
that are not present here. In Bailey, the defendant engaged in
multiple acts of petty theft (People v. Bailey, supra, 55 Cal.2d
at p. 518); in Richardson, the defendant engaged in multiple
acts of attempted grand theft (People v. Richardson, supra,
83 Cal.App.3d at p. 857); in Packard, the defendant engaged
in multiple acts of grand theft (People v. Packard, supra, 131
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Cal.App.3d at p. 625); and in Kronemyer, the defendant
engaged in multiple acts of grand theft (People v. Kronemyer,
supra, 189 Cal.App.3d at p. 324). Here, in contrast, instead of
being convicted of multiple counts of the same offense,
defendants were convicted of different offenses, albeit theftrelated offenses.
We note that unlike the aforementioned authorities where it
was plain the defendant had a single intent and objective, in
light of the particular circumstances here, the contrary can be
reasonably inferred. The intent and objective of the visit to the
Gomez residence did involve collection of a gang debt. But
the takings here are distinct, and that sets them apart.
Because robbery and extortion are distinguishable regarding
the manner of the takings involved—one with coerced
consent and one in the absence of consent—it follows that
the intent and objectives of those crimes can be different. An
objective of the crime of extortion involves inducing consent;
no such objective is present in a robbery. Said another way,
the takings in the cases finding the Bailey rule applicable did
not involve different objectives. Notably too, the evidence
establishes that the crime of extortion arose during the
course of the robbery. It can be inferred that because the
offer to pay the cash was made by A.T. in the first instance,
instead of in response to a request by defendants or anyone
else present, that particular crime was not planned. Thus,
while the objective was to collect a gang debt by way of a
home invasion robbery, there is no evidence to suggest the
gang planned and intended to collect upon its debt by way of
extortion.
Thus, we find the Bailey rule does not apply to bar
defendants‘ convictions for both robbery and extortion.
(Lodged. Doc. 22 at 19-27.)
2.

Analysis
a.

Bailey

23

To the extent Petitioner argues that Bailey required he be convicted of only one

24

offense, rather than convicted of both extortion and robbery, he raises an issue of

25

California state law that is not cognizable in federal habeas proceedings. See Wilson v.

26

Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (―[I]t is only noncompliance with federal law

27

that renders a State's criminal judgment susceptible to collateral attack in the federal

28
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1

courts.‖); Estelle, 502 U.S. at 67–68 (―[I]t is not the province of a federal habeas court to

2

reexamine state-court determinations on state-law questions.‖). He is not entitled to relief

3

on this basis.

4
5
6

b.

Double Jeopardy

Construed liberally, the Petition may be read to claim that convicting Petitioner of
both robbery and extortion violated double jeopardy.

7

The Double Jeopardy clause of the Fifth Amendment provides that no person

8

shall ―be subject for the same offence to be twice put in jeopardy of life or limb.‖ ―The

9

applicable rule is that where the same act or transaction constitutes a violation of two

10

distinct statutory provisions, the test to be applied to determine whether there are two

11

offenses or only one, is whether each provision requires proof of an additional fact which

12

the other does not.‖ Blockburger v. United States, 284 U.S. 299, 304 (1932):

13

Under California law, the offenses of robbery and extortion each require elements

14

that the other does not. The California Penal Code defines extortion as ―the obtaining of

15

property from another, with his consent . . . induced by a wrongful use of force or fear.‖

16

Cal. Penal Code § 518. Robbery is defined as ―the felonious taking of personal property

17

in the possession of another, from his person or immediate presence, and against his

18

will, accomplished by means of force or fear.‖ Cal. Penal Code § 211. As noted by the

19

Fifth District Court of Appeal in this case, the California courts have explained:

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22
23
24
25
26

One distinction between robbery and extortion frequently
noted by courts and commentators is that in robbery property
is taken from another by force or fear ―against his will‖ while
in extortion property is taken from another by force or fear
―with his consent.‖ The two crimes, however, have other
distinctions. Robbery requires a ―felonious taking‖ which
means a specific intent to permanently deprive the victim of
the property. Robbery also requires the property be taken
from the victim's ―person or immediate presence.‖ Extortion
does not require proof of either of these elements. Extortion
does, however, require the specific intent of inducing the
victim to consent to part with his or her property.

27
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33

1

(Lodged Doc. 22 (quoting People v. Torres, 33 Cal. App. 4th 37, 50 (Cal. Ct. App. 1995)

2

(citations and footnote omitted)).

3

Robbery and extortion are separate crimes and separate sentences may be

4

imposed for each violation without violating double jeopardy. Cf. Eckert v. Tansy, 936

5

F.2d 444, 450 (9th Cir. 1991) (holding that convictions for robbery and extortion under

6

Nevada law did not violate double jeopardy).

7

c.

Sufficiency of the Evidence

8

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

9

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

10

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

11

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

12

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

13

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

14

―[T]he dispositive question under Jackson is ‗whether the record evidence could

15

reasonably support a finding of guilt beyond a reasonable doubt.‘‖ Chein v. Shumsky,

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

only that they draw ―'reasonable inferences from basic facts to ultimate facts.‖' Coleman

25

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

26

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

27

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

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

2

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

3

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

4

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

5

rejecting an insufficiency of the evidence claim reflected an objectively unreasonable

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

As applicable here, ―[e]xtortion is the obtaining of property from another, with his

14

consent . . . induced by a wrongful use of force or fear.‖ Cal. Penal Code § 518. In other

15

words, ―[t]o constitute extortion the victim must consent, albeit it is a coerced and

16

unwilling consent.‖ People v. Goodman, 159 Cal. App. 2d 54, 61 (Cal. Ct. App. 1958).

17

See also People v. Goldstein, 84 Cal. App. 2d 581, 586 (1948) (―The victim of an

18

extortioner might openly consent to the taking of his money ‗and yet protest in his own

19

heart‘ against its being taken.‖ (quoting People v. Peck, 43 Cal. App. 638, 645 (Cal. Ct.

20

App. 1919))).

21

A.T. testified he was encircled by several individuals and hit in the face. Shortly

22

thereafter, he ―handed over‖ his money to these individuals, feeling that he had no

23

choice. (Lodged Doc. 12, RT7 165-66, 169-70.) The Fifth District Court of Appeal found

24

these facts sufficient for a jury to find the victim was induced to consent to part with his

25

property. Viewing the record in the light most favorable to the prosecution, the state

26

court‘s sufficiency determination was not objectively unreasonable. A rational trier of fact

27

could have found true beyond a reasonable doubt that A.T. consented to the taking of

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the money, by way of a coerced and unwilling consent, and that Petitioner therefore

2

committed extortion.

3
4
5
6

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

Conclusion and Recommendation
Based on the foregoing, it is HEREBY RECOMMENDED that the petition for writ

of habeas corpus be DENIED.

7

The findings and recommendation are submitted to the United States District

8

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

9

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

10

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

11

should be captioned ―Objections to Magistrate Judge‘s Findings and Recommendation.‖

12

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

13

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

14

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

15

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

16

1991)).

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IT IS SO ORDERED.
Dated:

September 10, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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