Gonzales v. Spearman
Filing
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FINDINGS and RECOMMENDATIONS to Deny 17 Petition for Writ of Habeas Corpus and Decline to Issue Certificate of Appealability, signed by Magistrate Judge Sheila K. Oberto on 8/6/18. 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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GABRIEL GONZALES,
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Petitioner,
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v.
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M. ELIOT SPEARMAN, Warden, High
Desert State Prison,
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No. 1:16-cv-01224-AWI-SKO HC
FINDINGS AND RECOMMENDATIONS
TO DENY PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINE TO
ISSUE CERTIFICATE OF
APPEALABILITY
(Doc. 17)
Respondent.
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Petitioner, Gabriel Gonzales, is a state prisoner proceeding pro se with a petition for writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner alleges seven grounds for habeas relief: (1)
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the trial court improperly refused to sever counts related to Petitioner’s co-defendant; (2) the
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prosecutor improperly divulged Petitioner’s juvenile court file; (3) jury instruction error; (4)
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insufficient evidence;1 (5) the trial court improperly admitted text messages;2 (6) the trial court
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improperly admitted gang expert testimony; (7) the trial court improperly imposed a sentence
enhancement in violation of Petitioner’s right to equal protection of the law. The Court referred
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Petitioner broke his insufficient evidence claim into three separate claims. The Court has combined them for clarity,
but will address all three claims individually.
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Petitioner separated his claim that the trial court improperly admitted text messages into two separate claims. The
Court combined them for clarity, but will address both of Petitioner’s claims individually.
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the matter to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304.
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Having reviewed the record as a whole and applicable law, the undersigned recommends that the
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Court deny the habeas petition.
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I.
Factual and Procedural Background3
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Petitioner and three co-defendants, Emmanuel Toscano (“Toscano”), Hilario Aguero
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(“Aguero”), and Fernando Garcia-Santos (“Garcia-Santos”) were charged with and tried together
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before a jury for crimes that were committed over the course of two days, August 28, 2010 and
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April 30, 2011.4 Only Aguero was charged with committing crimes on August 28, 2010. However,
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because Petitioner argued the trial court erred in not severing the charges from the August 28, 2010
crimes, the Court will detail the events of both days.
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Ramzee Johnson (“Johnson”), an African American man in his mid-thirties, lived with his
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family in a predominately Hispanic neighborhood in northeast Bakersfield, California.
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approximately 3:00 a.m. on August 28, 2010, Johnson left his apartment to walk to the market.
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Shortly after leaving his apartment, Johnson saw Aguero and Francisco Castro (“Castro”)
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standing about a block and a half away from him. When Aguero and Castro started walking towards
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him, Johnson became nervous and turned around to walk back to his apartment.
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Aguero and Castro caught up to Johnson, stood in front of him, and started asking him “gang
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questions” like “where are you from?” and “where you at?” Johnson replied that he was “not from
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anywhere” and stated he lived on the street where they were standing and that they were in front of
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his residence.
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The factual background, taken from the opinion of the California Court of Appeal, Fifth Appellate District, People v.
Toscano et al., (F065808) (Cal. App. Aug. 27, 2015), is presumed to be correct. 28 U.S.C. § 2254(e)(1).
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Christian Albarran (“Albarran”) was originally named as a defendant. However, Albarran entered a no contest plea
prior to trial and did not otherwise participate directly in trial.
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Castro pulled out a .25-caliber, semiautomatic firearm and Johnson heard a clicking sound,
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indicating the gun had been cocked. Believing he was about to be killed, Johnson grabbed for the
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gun. The gun fired as soon as he grabbed it, but the shot missed him. Johnson twisted the gun out
of Castro’s hand and fired back at Castro. Aguero and Castro fell to the ground and then quickly
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got up and ran away. Johnson fired the gun in their direction several times until he heard a click
and the gun appeared to be empty. Johnson called 911 and the police arrived.
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When the police arrived, individuals in front of a nearby residence yelled at the officers that
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their friends were inside, shot and bleeding. Officers found Aguero and Castro inside the residence,
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both with gunshot wounds.
Aguero and Castro were transported to the hospital for treatment. When a police officer
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returned to the hospital two days later to transport Aguero to jail for booking, the officer discovered
that nursing staff had accidentally released him from custody. The police could not locate Aguero
prior to the events of April 30, 2011.
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On April 30, 2011, Gerardo V. (“Gerardo”) was fatally shot in a church parking lot in west
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Bakersfield, California. The parking lot was located next to a restaurant where Gerardo and some
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of his high school friends were attending a quinceañera.
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At trial, the prosecutor argued that the shooting was an act of gang-related retaliation for a
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shooting that occurred six days earlier on April 24, 2011. On that day, the perpetrators shouted
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either “Westside” or “Southside” and shot at one of Petitioner’s co-defendants, Toscano, and his
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brother, Jacob Toscano (“Jacob”). Jacob was injured.
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Toscano told a deputy that responded to the scene that he and his brother were walking
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home from a 7-Eleven on April 24, 2011, when a car pulled up next to them. Several African
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American males exited the car and shot at Toscano and his brother. When the assailants shouted
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“Southside,” Toscano responded by “gangbanging back at them” and yelling “Hillside.”5
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In the days after the April 24, 2011 shooting, Melina M. (“Melina”), a 16-year-old who
knew Toscano overheard Toscano talking about Jacob being shot. Toscano appeared very angry
and she heard him say “something about the Westside.”
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On the afternoon of April 30, 2011, Melina saw Toscano and invited him to attend her
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friend’s quinceañera. Petitioner’s co-defendant, Aguero, was standing with Toscano at the time
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Melina invited Toscano. Toscano, Petitioner, and the other co-defendants showed up at the
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restaurant where the quinceañera was being held, and Melina went out to meet the men.
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Melina became upset with Toscano when he started leading the others in his group in
“pretending” to be members of the Westside Bakers gang. Melina knew Toscano was actually an
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“Eastsider” and member of the rival Loma Bakers gang. Toscano and his friends were shouting
“Westside” and directing Westside hand signals towards other men at the quinceañera, who were
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socializing around the restaurant and in an adjacent minimarket. Toscano warned Melina in front
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of the others not to tell anyone that his group was from “the East.” He also showed her that he was
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armed by lifting his shirt and exposing the handle of a firearm tucked inside his waistband.
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Melina asked Toscano to leave and went back inside the restaurant. From inside the
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restaurant, she saw Petitioner and his three co-defendants leave. The men crossed in front of the
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restaurant and then headed towards the church parking lot. The murder victim, Gerardo, and three
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of his friends were in the church parking lot waiting to get into a car. Petitioner and his co-
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defendants surrounded Gerardo and his friends.
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Led by Toscano, the group asked Gerardo and his friends where they were from. Gerardo’s
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friends responded that “we don’t bang.” Maintaining the pretense that they were West Side Bakers,
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Toscano and his group started making derogatory comments about Eastsiders and asked Gerardo’s
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“Hillside” refers to a sect of the Loma Bakers gang in the Hillside area of Bakersfield.
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group where they could find some Eastsiders.
Eventually, both groups shook hands and Petitioner’s group appeared to be preparing to
leave. Gerardo and his friends got into their car, with Gerardo in the front passenger’s seat. The
front passenger-side door was still open, when Toscano said “Keep it Westside,” to which Gerardo
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replied, “I’m Westside, too.”
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When Gerardo stated he was Westside, Petitioner came up to the car and asked Gerardo
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what he had said. Gerardo repeated that he was from the Westside too, Petitioner replied, “You’re
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not from my hood,” and challenged Gerardo to get out of the car and fight him.
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Petitioner’s co-defendants were saying things to “pump up” Petitioner, including: “Just
fight him. Just fight him.” Gerardo’s friends told him to just be quiet and started the car up to
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leave; however, they could not drive away without hitting someone in Petitioner’s group, who had
all surrounded the car.
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While recollections differed as to the details of events, Gerardo’s group remembered seeing
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Petitioner reach into the car and grab Gerardo’s cell phone from his hands or from his lap. As
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Petitioner grabbed the cell phone, someone heard him call Gerardo a “bitch” and say “give me your
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fucking phone.”
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Gerardo begged Petitioner to return his phone. Petitioner responded by saying something
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to the effect that he would return Gerardo’s phone, but first Gerardo would have to get out of the
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car and fight him. Petitioner’s group continued to challenge Gerardo to get out of the car and fight
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with Petitioner.
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Remaining inside the car, Gerardo continued imploring Petitioner to return his cell phone
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and repeating that he did not want to fight Petitioner. Gerardo also expressed some confusion,
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asking Petitioner why they were supposed to be fighting when they were from the “same hood.”
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Petitioner reached into the car again and grabbed Gerardo’s hat from off his head. Gerardo
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told Petitioner to keep the hat, but given him back his phone. Gerardo finally closed his door and
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said, “I’m going to call the big [homeys].”
Toscano walked back up to the car and opened Gerardo’s door. Toscano then pulled out
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the gun and shot Gerardo. After shooting Gerardo, Petitioner and his group ran away together
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towards a nearby alley, shouting something as they ran. Meanwhile, Gerardo got out of the car and
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started running toward the restaurant. Gerardo collapsed outside the restaurant and died shortly
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thereafter from the gunshot wound to his left shoulder.
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The pathologist who performed the autopsy explained that Gerardo suffered extensive blood
loss due to the laceration of vital organs, including a major vein in his hear and the upper lobes of
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both his lungs.
At trial, Kern County Sheriff’s Deputy Richard Hudson (“Hudson”) testified as a gang
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expert for the prosecution. Hudson opined that, at the time of their offenses, Petitioner and his co-
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defendants were all members of, and active participants in, the Loma Bakers criminal street gang.
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Presented with hypotheticals based on the August 2010 and April 2011 incidents underlying
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the charged offenses, Hudson opined the offenses were committed for the benefit of, at the direction
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of, or in association with a criminal street gang. With respect to the gang-benefit of the April 2011
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offenses, Hudson opined that the scenario presented was an act of retaliation and explained:
When an individual is put in a situation where a gang is going to require retaliation,
when they conduct that retaliation they’re going to create status, fear within the
neighborhood, because this incident will be talked about. It will be discussed.
People will hear about it in schools. They’ll hear about it in the neighborhood. It
will get around.
So the information will get out to other gangs, as well as the neighborhood, that
these individuals, when disrespected, will, in this case, kill you, and by doing that
they’re going to limit the amount that people will be willing testify; that other gang
members will be willing to come to their neighborhood and disrespect them.
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Regarding his opinion that the offenses were committed in association with a criminal street
gang, Hudson specifically testified:
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Based on the hypothetical, all the members acted together to accomplish a goal.
They traveled together to rival territory. They all pretended to be Westside
together. They all took part in that. They attempted to identify – through the
hypothetical attempted to identify rivals. Once they did they all acted together by
moving as a group from one point to another to confront those individuals that they
perceived to be rivals. They also confronted them by both words, surrounding, and
then this violence escalated tougher as they continued to support each other. And
then when the cell phone and hat was taken, while the others were present, they
continued to be verbally and physically supportive and backing that individual,
continuing to say different statements. And then the mere numbers of surrounding
is an intimidation. And then during the shooting all the other individuals were still
present by the shooter and they all fled together.
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Harlan Hunter (“Hunter”), a private investigator, testified as a gang expert on behalf of
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Petitioner. Hunter opined that on April 30, 2011, Petitioner was not a member of, or an active
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participant in, the Loma Bakers criminal street gang.
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Assuming the same hypothetical facts based on the April 2011 incident, as those addressed
by the prosecution’s gang expert, Hunter opined that the shooting was a “personal incident” and
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was
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not done for the benefit of a gang, but . . . was actually done for the benefit of the
shooter, who basically had come there already upset about a previous shooting of
his brother, and at that particular time decided that he was going to shoot the victim.
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Harlan further opined:
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[T]here’s nothing in that hypothetical that supports any notion, idea, [or] knowledge
that the other parties who were with the shooter had knowledge that the shooter was
going to shoot the victim. . . .
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And so again, it’s my opinion on that particular day that this was not done for the
benefit and in association with these other individuals, but done by an individual
who basically was angered by this threat of don’t make me get my big homeys,
which is akin to don’t make me go get my friends and come back and deal with
you, became upset and shot the victim.
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At trial, the court gave a jury instruction regarding aiding and abetting that is
relevant to the case at bar. As read to the jury, CALCRIM No. 400 stated:
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A person may be guilty of a crime in two ways. One, he or she may have directly
committed the crime. I will call that person the perpetrator. Two, he or she may
have aided and abetted a perpetrator, who directly committed the crime. A person
is equally guilty of the crime whether he or she committed it personally or aided
and abetted the perpetrator who committed it.
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On April 11, Petitioner was convicted of first degree premeditated murder, with robbery and
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gang special circumstance findings (Cal. Penal Code §§ 187, 189, 190.2(a)(17), (22)); second
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degree robbery (Cal. Penal Code § 211); shooting at an occupied motor vehicle (Cal. Penal Code
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§ 246); and active participation in a criminal street gang (Cal. Penal Code § 186.22(a)). With regard
to the murder, robbery, and shooting into an occupied vehicle counts, the jury found true the
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allegations that a principal discharged a firearm during the crime causing death. (Cal. Penal Code
§§ 12022.53(d), (e)(1)).
Petitioner was sentenced to life without the possibility of parole, plus
twenty-five years to life.
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On August 27, 2015, the Court of Appeal for the Fifth Appellate District (“Court of
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Appeal”) affirmed Petitioner’s conviction.6 On November 24, 2015, the California Supreme Court
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denied review.
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On January 9, 2017, Petitioner filed a first amended petition for writ of habeas corpus before
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this Court. Respondent filed a response on May 17, 2017 and Petitioner filed a reply on July 24,
2017.
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On September 15, 2015, the Court of Appeal filed a modified opinion to correct an error in the original opinion, but
did not change the judgment.
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II.
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Standard of Review
A person in custody as a result of the judgment of a state court may secure relief through a
petition for habeas corpus if the custody violates the Constitution or laws or treaties of the United
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States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 (2000). On April 24, 1996,
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Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which
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applies to all petitions for writ of habeas corpus filed thereafter. Lindh v. Murphy, 521 U.S. 320,
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322-23 (1997). Under the statutory terms, the petition in this case is governed by AEDPA's
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provisions because it was filed 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
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(1979) (Stevens, J., concurring). Habeas corpus relief is intended to address only "extreme
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:
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(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States; or
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(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
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28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at
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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. Richter,
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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, 538
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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
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must apply the presumption that state courts know and follow the law. Woodford v. Visciotti, 537
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U.S. 19, 24 (2002). The 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
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independent judgment that the relevant state-court decision applied clearly established federal
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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Harrington, 562 U.S. at 101 (quoting
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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III.
The State Court Did Not Err in Rejecting Petitioner’s Motion to Sever Claims
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In his first ground for habeas relief, Petitioner contends the trial court erred when it denied
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his motion to sever the counts against co-defendant Aguero that related to the August 28, 2010
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shooting, from his counts related to the April 30, 2011 shooting. (Doc. 17 at 25.) Petitioner admits
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that joining the counts met “the legal requirements of joinder[; however], the joinder was highly
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prejudicial,” because it was only based on “gang allegations.” Id. (citing People v. Miller, 50 Cal.
3d 954, 987 (1990); People v. Stitely, 35 Cal. 4th 514, 531 (2005)). Respondent counters “the
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United States Supreme Court has never clearly held that improper joinder of charges violates the
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Constitution,” and the state court’s rejection of the claim was not contrary to clearly established
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Supreme Court law. (Doc. 23 at 27.)
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A. State Court of Appeal Opinion
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The Court of Appeal rejected Petitioner’s claim, finding:
[Petitioner] concedes the offenses in this case were of the same class, and, therefore
their joinder was permissible under the applicable statute. (§ 945 [two or more
offenses of same class may be joined in accusatory pleading]; People v. Ochoa
(2001) 26 Cal.4th 398, 423; People v. Bradford (1997) 15 Cal.4th 1229, 1315;
People v. Arias (1996) 13 Cal.4th 92, 126 (Arias) [“[w]hen exercising its discretion,
the court must balance the potential prejudice of joinder against the state’s strong
interest in the efficiency of a joint trial”].) Because the statutory requirements for
joinder were met, we may reverse only if a clear showing of resulting prejudice has
been made. (Williams v. Superior Court (1984) 36 Cal.3d 441, 447 (Williams).)
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In Williams, supra, 36 Cal.3d 441, our Supreme Court stated several factors to be
considered in deciding whether charges should be severed: (1) the lack of crossadmissibility of evidence; (2) the prejudicial effect of joining one charge with a
more inflammatory charge; (3) the prejudicial effect of joining a weak case with a
strong case; and (4) whether the People sought to join a charge with a capital
offense. (Id. at p. 453.) [Petitioner’s] challenge focuses on the first two factors.
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With respect to the first factor, the trial court in this case observed that the joined
charges shared common elements “at least with respect to the gang allegations.”
Consequently, the court found cross-admissibility of evidence “as to the testimony
of the gang expert, who . . . outline[d] the defendants’ gang contacts with law
enforcement in order to give opinions in this case.”
Relying heavily on Williams, supra, 36 Cal.3d 441, where joinder was found to be
improper, [Petitioner] suggest the trial court erred in finding the gang evidence
cross-admissible. In Williams, the court concluded that just because the two
murders were gang related did not render the gang evidence cross-admissible under
[California] Evidence Code section 1101. (Williams, at p. 450.)
However, Williams, supra, 36 Cal.3d 1441, was a capital case, where “it is the
joinder itself which gives rise to the special circumstances allegation of multiple
murder.” (Id. at p. 454.) Therefore, “the court [had to] analyze the severance issue
with a higher degree of scrutiny and care than is normally applied in a noncapital
case.” (Ibid.) Williams also predated section 186.22, so its treatment of gang
evidence is inapposite. Unlike in Williams, the relevant gang evidence here was
clearly cross-admissible to prove the gang-related charges and special allegations
in both cases (§§ 186.22, subds. (a), (b)(1), 190.2, subd. (a)(22), 12022.53, (subd.
(e)(1)).
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In any event, the issue of whether the evidence relevant to the joined charges was
cross-admissible is not determinative. (§ 954.1 [evidence need not be crossadmissible before jointly charged offenses may be tried together]; Arias, supra, 13
Cal.4th at pp. 126-127; People v. Marquez (1992) 1 Cal.4th 553, 572-573 [the clear
prejudice has not been shown in this case. (People v. Marquez, supra, at p. 572
[the burden is on the defendant to show prejudice].)
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[Petitioner’s] reliance on Calderon v. Superior Court (2001) 87 Cal.App.4th 933 is
misplaced because the facts of that case are completely different than the facts here.
There, an attempted murder charge against Calderon and a codefendant was joined
with an “execution-style” murder charge against the codefendant and another man.
The appellate court found that the trial court abused its discretion in consolidating
the cases because, with one exception, none of the evidence related to the
“execution-style” murder was admissible against Calderon, the “execution-style”
murder was likely to inflame the jury, and the evidence against Calderon was weak
but the evidence against his codefendant was strong. (Id. at pp. 939-941.)
Notwithstanding [Petitioner’s] assertions to the contrary, there was nothing
particularly inflammatory about the joined charges. It certainly cannot be said that
the evidence of Aguero’s August 2010 crimes – which ended with the uninjured,
adult victim successfully grabbing his assailants’ weapon and firing it on them as
they fled – was likely to inflame the jury unduly with regard to [Petitioner’s] and
the other appellants’ April 2011 crimes, which ended with the fatal shooting of an
unarmed, 16-year-old high school student as he was sitting in his friend’s car in a
church parking lot.
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(Lodged Doc. 13 at 11-14.)
B. The State Court Did Not Err in Rejecting Petitioner’s Motion to Sever Claims
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To the extent Petitioner’s claim involves the trial court’s misapplication of California’s laws
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regarding severance, the claim is not cognizable on federal habeas review, because it involves only
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an alleged error in state law. “It is not the province of a federal court to reexamine state court
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determinations of state law questions.” Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Habeas
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relief is not available for an alleged error in the application of state law. Id. at 68.
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Petitioner’s federal due process challenge to the trial court’s refusal to sever these claims
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also fails, because the United States Supreme Court “has not held that a state or federal trial court’s
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denial of a motion to sever can” violate constitutional rights. Grajeda v. Scribner, 541 F. App’x
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776, 778 (9th Cir. 2013), cert. denied, 134 S. Ct. 1899 (2014).
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Indeed, the Supreme Court has
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held that “[i]mproper joinder does not, in itself, violate the Constitution.” United States v. Lane,
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474 U.S. 438, 446 n.8 (1986).
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However, the Supreme Court has stated that “misjoinder would rise to the level of a
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constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth
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Amendment right to a fair trial.” Id. The Ninth Circuit has held this statement from Lane is only
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dicta. Collins v. Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010). Consequently, Lane does not set
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forth a governing legal principle, and does not constitute clearly established federal law, with regard
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to when severance is constitutionally mandated. Id.; see also Carey v. Musladin, 549 U.S. 70, 74
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(2006) (restricting “clearly established federal law” under § 2254 to holdings of the Supreme Court,
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rather than dicta). For these reasons, the Court of Appeal’s rejection of Petitioner’s severance claim
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could not have been an unreasonable application of clearly established federal law.
Prior to Collins, the Ninth Circuit held undue prejudice from misjoinder existed only “if the
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permissible joinder had a substantial and injurious effect or influence in determining the jury’s
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verdict.” Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir. 2000). “In evaluating prejudice, the
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Ninth Circuit focuses particularly on cross-admissibility of evidence and the danger of ‘spillover’
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from one charge to another, especially where one charge or set of charges is weaker than another.”
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Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). The risk of prejudice increases “whenever
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joinder of counts allows evidence of other crimes to be introduced in a trial where the evidence
would otherwise be inadmissible.” Sandoval, 241 F.3d at 772.
23
Here, the Court of Appeal reasonably concluded that Petitioner suffered no prejudice from
24
the trial’s court decision not to sever the counts against Aguero from counts against Petitioner. As
25
the Court explained, the testimony of the gang expert, who described “the defendants’ gang contacts
26
with law enforcement,” was cross-admissible. (Lodged Doc. 13 at 12.) Specifically, evidence from
27
either crime would have been admissible in both cases to show that the defendants were active
28
13
1
participants in a criminal street gang, the crimes were carried out to further the activities of the
2
gang, and to show the crimes were committed for the benefit of, at the direction of, or in association
3
with the gang.
4
The Ninth Circuit was also concerned that joinder would allow a weak case to join a strong
5
6
one. However, the case against Petitioner was not weak. Eyewitnesses and videotape established
7
Petitioner’s involvement in the murder of Gerardo. This evidence was sufficient to support the
8
charges, even without the evidence from the April 30, 2001 incident.
9
10
11
Finally, the jury was instructed to consider the evidence as applied to each defendant
separately and decide each individual charge for each defendant separately, pursuant to CALCRIM
No. 203.7 (Clerk’s Transcript Vol. 8 at 2295). Based on the foregoing, the Court recommends
12
13
14
finding that the Court of Appeal’s rejection of Petitioner’s claim was neither contrary to, nor
involved an unreasonable application of, clearly established federal law. Consequently, federal
15
habeas relief is not warranted on this claim.
16
IV.
17
The Trial Court Did Not Err in Rejecting the Claimed Violation of California Welfare
and Institutions Code § 827
In his second ground for habeas relief, Petitioner alleges the prosecutor violated California
18
19
Welfare and Institutions Code § 827 (“§ 827”) by improperly revealing Petitioner’s juvenile court
20
file. (Doc. 17 at 27.) Section 827(a)(1) provides, “a case file may be inspected only by the
21
following: (E) The attorneys for the parties, judges, referees, other hearing officers, probation
22
23
officers, and law enforcement officers who are actively participating in criminal or juvenile
proceedings involving the minor.”
24
The prosecutor obtained juvenile reports from a search of Petitioner’s residence and gave
25
26
the reports to counsel for Petitioner’s co-defendants and Hudson, the gang expert. Id. At trial,
27
Pursuant to CALCRIM No. 203, the jury was instructed, in part: “You must separately consider the evidence as it
applies to each defendant. You must decide each charge for each defendant separately.”
7
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14
1
Petitioner moved to exclude the reports, arguing the prosecutor failed to obtain permission from
2
the juvenile court to distribute them. Id. Respondent counters that the United States Supreme Court
3
has never held there is a right of privacy for juvenile records; therefore, the Court of Appeal’s
4
decision is not contrary to clearly established Supreme Court precedent. (Doc. 23 at 32-33.)
5
A. State Court of Appeal Opinion
6
The Court of Appeal denied Petitioner’s claim, holding:
7
During in limine proceedings, [Petitioner] objected to the admission of evidence
concerning juvenile probation searches conducted on him and his brother in 2008
and 2010, which uncovered evidence of their mutual gang membership.
[Petitioner] objected on the ground the details of the probation searches came from
juvenile probation reports, which were part of his confidential juvenile court case
file and which were unlawfully disseminated by the prosecutor to Deputy Hudson,
the prosecution’s gang expert, and appellants’ trial attorneys without first
petitioning for a juvenile court order as required by Welfare and Institution Code
section 827 (hereafter, section 827).
8
9
10
11
12
13
Section 827, subdivision (a)(1) provides, in relevant part:
14
“[A juvenile] case file may be inspected only by the following: [¶] . . . [¶]
(B) The district attorney . . . [¶] . . . [¶] (E) The attorneys for the parties,
judges, . . . and law enforcement officers who are actively participating in
criminal or juvenile proceedings involving the minor. [¶] . . . [¶] (P) Any
other person who may be designated by court order of the judge of the
juvenile court upon filing a petition.”
15
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17
18
In overruling [Petitioner’s] objections, the trial court found, inter alia, that no
violation of section 827 occurred because the prosecutor undisputedly obtained
copies of the probation reports directly from the sheriff’s department, not from
[Petitioner’s] juvenile court case file. On appeal, [Petitioner] argues this was error
because a juvenile probation report falls “within the [statutory] definition of ‘a
juvenile case file.’” FN4 Therefore, [Petitioner] contends, even though the
prosecutor was entitled to inspect his juvenile case file on her own without a
juvenile court order under subdivision (a)(1)(B) of section [827],8 subdivision
(a)(1)(P) of the statute required her to petition the juvenile court for an order before
disseminating copies of the contents of his case file to Hudson and other attorneys
in the case.
19
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21
22
23
24
25
26
27
28
8
The Court of Appeal appears to have made a clerical error in the opinion as the opinion cites to section 387, instead
of section 827. Section 387 of the California Welfare and Institutions Code governs “Dependent Children –
Modification of Juvenile Court Judgments and Order.”
15
1
2
3
4
FN4 [Petitioner] relies on section 827, subdivision (e), which provides: “For
purposes of this section, a ‘juvenile case file’ means a petition filed in any
juvenile court proceeding, reports of the probation officer, and all other
documents filed in that case or made available to the probation officer in
making his or her report, or to the judge, referee, or other hearing officer,
and thereafter retained by the probation officer, judge, referee, or other
hearing officer.” (Italics added.)
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Assuming arguendo the trial court erred in finding the juvenile probation reports
were not subject to section 827, we agree with the People that the trial court
correctly concluded no violation of the statute occurred because, contrary to
[Petitioner’s] assertions, none of the persons with whom the prosecutor shared
copies of his probation reports was required to petition the juvenile court for an
order before inspecting his juvenile court case file. [Petitioner] interprets the
reference to the minor in section 827, subdivision (a)(1)(E), to mean the gang expert
and trial attorneys involved in the instant proceedings would be entitled to inspect
his juvenile court case file without a court order but only if he were still a minor.
Because he was not a minor, [Petitioner] asserts section 827 subdivision (a)(1)(P)
was applicable and they were required to petition the juvenile court for an order to
inspect his juvenile court case file and the prosecutor could not lawfully circumvent
this requirement by providing them with copies of his juvenile probation reports
she obtained from the sheriff’s department.
[Petitioner’s] interpretation of section 827, subdivision (a)(1)(E), as creating
different requirements depending on the current age of the person whose juvenile
case file is at issue, is unpersuasive and unsupported by the plain language of the
statute. Upon reaching adulthood, [Petitioner] did not cease being the person
designated as the minor in his juvenile court case records. Because appellants’ trial
counsel and the prosecution’s gang expert were “actively participating in criminal
. . . proceedings involving the minor [i.e., [Petitioner]]” they were statutorily
entitled to inspect his juvenile court case file without first obtaining a juvenile court
order. It cannot be said, therefore, that the prosecutor violated section 827 by
providing them with copies of records they were already permitted to inspect on
their own without a court order.
(Lodged Doc. 13 at 14-16.)
23
B. The State Court Did Not Err in Allowing the Distribution of Petitioner’s Juvenile
File
24
To the extent Petitioner’s claim involves the trial court’s violation of § 827, the claim is not
25
cognizable on federal habeas review because it involves only an alleged error in state law. Estelle,
26
27
502 U.S. at 71-72 (“It is not the province of a federal court to reexamine state court determinations
of state law questions.”). Here, the Court of Appeal held the trial court “correctly concluded no
28
16
1
violation of the statute occurred because . . . none of the persons with whom the prosecutor shared
2
copies of [Petitioner’s] probation reports was required to petition the juvenile court for an order
3
4
before inspecting” the file. (Lodged Doc. 13 at 15-16.) This Court will not reexamine the accuracy
of the state court’s analysis of state law. Estelle, 502 U.S. at 67-68 (“it is not the province of a
5
6
federal habeas court to reexamine state court determinations on state law questions”); Langford v.
7
Day, 110 F.3d 1380, 1389 1389 (9th Cir. 1997) (“We accept a state court’s interpretation of state
8
law, . . . and alleged errors in the application of state law are not cognizable in federal habeas
9
corpus.”).
10
11
Petitioner may not “transform a state-law issue into a federal one merely by asserting a
violation of due process.” Langford, 110 F.3d at 1389 (citing Melugin v. Hames, 38 F.3d 1478,
12
13
14
1482 (9th Cir. 1994)). Here, Petitioner alleges his “federal due process right to a fair trial and to
procedural due process” were violated. (Doc. 17 at 30) (citing U.S. Const. amend. V, XIV; Estelle,
15
502 U.S. at 73; Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); Matthews v. Eldridge, 424
16
U.S. 319, 333 (1976); however, case law Petitioner cites does not support his due process claim.
17
See Donnelly, 416 U.S. at 643 (“When specific guarantees of the Bill of Rights are involved, this
18
19
Court has taken special care to assure that prosecutorial conduct in no way impermissibly infringes
on them.”); Matthews, 424 U.S. at 333 (“This Court consistently has held that some form of hearing
20
21
22
is required before an individual is finally deprived of a property interest.”). Petitioner has not cited
any federal authority to support a due process right to privacy for juvenile court records.
23
Section 827 establishes a right to confidentiality of juvenile records under state law, but
24
there is no corresponding federal due process right. Rigsby v. Cty. of Los Angeles, Civ. No. 11-
25
02766, 2011 WL 13143544, at *3 (E.D. Cal., Aug. 2, 2011), aff’d 531 F. App’x 811 (9th Cir. 2011)
26
27
(“There is no ‘right of privacy’ for juvenile records expressly guaranteed by the United States
Constitution.”); Maldonado v. Sec’y of California Dep’t of Corrs. & Rehab., Civ. No. 06-2696,
28
17
1
2007 WL 4249811, at *5 (E.D. Cal. Nov. 30, 2007) (Section 827 “could not purport to bind the
2
federal courts. . . . [C]omity required that the state law be respected if at all possible. . . .”). Because
3
there is no clearly established Supreme Court precedent, the Court of Appeal’s decision was not
4
contrary to or an unreasonable application of clearly established federal law. Petitioner is not
5
6
7
entitled to habeas relief and the Court recommends denying Petitioner’s claim.
V.
A Jury Instruction Error Does Not Present Cognizable Federal Claim
In his third ground for habeas relief, Petitioner alleges that CALCRIM No. 400,9 the jury
8
9
instruction on aiding and abetting, incorrectly instructed the jury on aiding and abetting. (Doc. 17
10
at 30.) Petitioner contends the instruction was “misleading because it [incorrectly] told the jury an
11
aider and abettor is ‘equally guilty’ with the principal.” Id. Respondent counters that this claim is
12
13
14
procedurally defaulted, because the Court of Appeal found the claim was forfeited due to
Petitioner’s failure to object to the instruction during the trial. (Doc. 23 at 36-37.) Respondent also
15
argues that the Court of Appeal’s decision was not an unreasonable factual determination and did
16
not contravene clearly established federal precedent. Id. at 37.
17
A. Standard of Review for Alleged Errors in Jury Instructions
18
19
Generally, claims of instructional error are questions of state law and are not cognizable
on federal habeas review. “[T]he fact that [an] instruction was allegedly incorrect under state law
20
21
is not a basis for habeas relief.” Estelle, 502 U.S. at 71-72 (1991) (citing Marshall v. Lonberger,
22
459 U.S. 422, 438, n.6 (1983) (“[T]he Due Process Clause does not permit the federal courts to
23
engage in a finely tuned review of the wisdom of state evidentiary rules”)). A petitioner may not
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9
As read to the jury, CALCRIM No. 400 provides:
A person may be guilty of a crime in two ways. One, he or she may have directly committed the
crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a
perpetrator, who directly committed the crime. A person is equally guilty of the crime whether he
or she committed it personally or aided and abetted the perpetrator who committed it.
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1
“transform a state-law issue into a federal one merely by asserting a violation of due process.”
2
Langford, 110 F.3d at 1389 (citing Melugin v. Hames, 38 F.3d 1478, 1482 (9th Cir. 1994)).
3
To prevail on a collateral attack of state court jury instructions, a petitioner must do more
4
that prove that the instruction was erroneous. Henderson v. Kibbe, 431 U.S. 145, 154 (1977).
5
6
Instead, the petitioner must prove that the improper instruction “by itself so infected the entire
7
trial that the resulting conviction violated due process.” Estelle, 502 U.S. at 72 (internal citations
8
omitted). Even if there were constitutional error, habeas relief cannot be granted absent a
9
“substantial and injurious effect” on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
10
11
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
A federal court’s review of a claim of instructional error is highly deferential. Masoner
12
13
14
v. Thurman, 996 F.2d 1003, 1006 (9th Cir. 1993). A reviewing court may not judge the
instruction in isolation but must consider the context of the entire record and of the instructions
15
as a whole. Id. The mere possibility of a different verdict is too speculative to justify a finding
16
of constitutional error. Henderson, 431 U.S. at 157. “Where the jury verdict is complete, but
17
based upon ambiguous instructions, the federal court, in a habeas petition, will not disturb the
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19
verdict unless there is a reasonable likelihood that the jury has applied the challenged instruction
in a way that violates the Constitution.” Solis v. Garcia, 219 F.3d 922, 927 (9th Cir. 2000)
20
21
(quoting Estelle, 502 U.S. at 72) (internal quotation marks omitted).
22
If a trial court has made an error in an instruction, a habeas petitioner is only entitled to
23
relief if the error “had a substantial and injurious effect or influence in determining the jury’s
24
verdict.” Brecht, 507 U.S. at 637 (quoting Kotteakos, 328 U.S. at 776) (internal quotation marks
25
omitted). A state prisoner is not entitled to federal habeas relief unless the instructional error
26
resulted in “actual prejudice.” Id. A violation of due process occurs only when the instructional
27
error results in the trial being fundamentally unfair. Estelle, 502 U.S. at 72-73; Duckett v. Godinez,
28
19
1
67 F.3d 734, 746 (9th Cir. 1995). If the court is convinced that the error did not influence the jury,
2
or had little effect, the judgment should stand. O’Neal v. McAninch, 513 U.S. 432, 437 (1995).
3
4
B. State Court of Appeal Opinion
The Court of Appeal denied Petitioner’s claim, holding that he forfeited the claim because
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he failed to object to the instruction at trial. In the alternative, the Court of Appeal found any
mistake in the instruction harmless.
Prior to 2010, CALCRIM No. 400, defining the general principles of aiding and
abetting, advised that a person is “equally guilty” of a crime whether he or she
committed the crime personally or aided and abetted the perpetrator. (People v.
Samaniego (2009) 172 Cal.App.4th 1148, 1165 (Samaniego), citing former
CALCRIM No. 400 (2009 rev.).) The “equally guilty” language has since been
removed from the instruction. (See CALCRIM No. 400 [“A person is guilty of a
crime whether he or she committed it personally or aided and abetted the
perpetrator”].) Although the proceedings below were conducted in 2012, the jury
was instructed pursuant to an outdated version of CALCRIM No. 400. Aguero,
Garcia-Santos, and [Petitioner] allege instructional error based on the “equally
guilty” language that was used in the trial court’s explanation of the law concerning
accomplice liability. FN10
FN10 “The relevant text of the instruction read: ‘A person is equally guilty
of the crime whether he or she committed it personally or aided and abetted
the perpetrator.’”
None of the appellants objected to, nor requested modification or clarification of,
the challenged instruction. This failure to act should be fatal to their claim since
there are several published opinions which hold that a challenge to the “equally
guilty” language in former versions of CALCRIM No. 400 is forfeited by a failure
to object and/or request clarifying language at the time of trial. (E.g., People v.
Mejia (2012) 211 Cal.App.4th 586, 624 [addressing challenge to the “equally
guilty” language in CALJIC No. 3.00]; People v. Lopez (2011) 198 Cal.App.4th
788, 809]; Samaniego, supra, 172 Cal.App.4th at p. 1163.). Forfeiture aside, we
find the alleged error to be harmless under any standard of prejudice.
23
24
25
26
27
28
The challenged version of CALCRIM No. 400 did not contain an incorrect
statement of law. “All principals, including aiders and abettors, are ‘equally guilty’
in the sense that they are criminally liable.” (People v. Bryant, Smith and Wheeler
(2014) 60 Cal.4th 335, 433; accord, § 31 [“All persons concerned in the
commission of a crime, . . . whether they directly commit the act constituting the
offense, or aid and abet in its commission, or, not being present, have advised and
encouraged its commission, . . . are principals in any crime so committed”].)
Nevertheless, a number of appellate decisions hold that under extraordinary
circumstances, the aider and abettor may have a mental state which reflects a lesser
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7
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level of culpability than that of the direct perpetrator. (See, e.g., Samaniego, supra,
172 Cal.App.4th at pp. 1164-1165 [“while generally correct in all but the most
exceptional circumstances, [CALCRIM No. 400] is misleading here and should
have been modified”].)
According to the California Supreme Court, it is possible for an aider and abettor
to be convicted of a crime greater than the offense for which the actual perpetrator
is liable. (People v. McCoy (2001) 25 Cal.4th 1111, 1118-1119, 1122.) In light of
this holding, appellate courts have reasoned that the opposite must be true, i.e., an
aider and abettor can theoretically be convicted of a lesser crime than the offense
for which the actual perpetrator is liable. (Lopez, supra, at p. 1118; Nero, supra,
181 Cal.App.4th at pp. 513-518; Samaniego, supra, 172 Cal.App.4th at pp. 11631164.) Given these possible outcomes, the “equally guilty” language is potentially
misleading insofar as it suggests that the direct perpetrator and the aider and abettor
must be found guilty, if at all, of the same crime(s) and degree(s) thereof. However,
reversible error stemming from the use of this language has only been found in
cases where jurors informed the trial court that they were confused by the
instruction, and the court failed to provide adequate clarification in response to their
inquiries on the subject. (People v. Loza (2012) 207 Cal.App.4th 332, 352-355
(Loza); Nero, supra, 181 Cal.App.4th at pp. 517-520.)
We do not presume a jury has been misled by an erroneous instruction. To the
contrary, “[a] defendant challenging an instruction as being subject to erroneous
interpretation by the jury must demonstrate a reasonable likelihood that the jury
understood the instruction in the way asserted by the defendant.” (People v. Cross
(2008) 45 Cal.4th 58, 67-68.) Otherwise, we adhere to the presumption that jurors
are “able to understand and correlate instructions,” and follow the instructions that
they are given. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) This presumption
was rebutted in Loza and Nero, supra, through evidence which clearly showed that
the jurors were confused as to what mental state was required to establish aider and
abettor liability. (Loza, supra, 207 Cal.App.4th at p. 355 [“the questions this jury
asked indicated that despite having been provided instructions from which they
should have understood that they were required to consider the intent of the person
accused of aiding and abetting the perpetrator the jury remained confused as to this
issue”]; Nero, supra, 181 Cal.App.4th at p. 518 [“where, as here, the jury asks the
specific question whether an aider and abettor may be guilty of a lesser offense, the
proper answer is ‘yes,’ she can be. The trial court, however, by twice rereading
CALJIC No. 3.00 [containing the ‘equally guilty’ language] in response to the
jury’s questions, misinstructed the jury”].) Here, in contrast, the record is devoid
of any indication that the jury was confused by the aiding and abetting instructions.
24
25
26
27
28
“In assessing a claim of instructional error or ambiguity, we consider the
instructions as a whole to determine whether there is a reasonable likelihood the
jury was misled.” (People v. Tate (2010) 49 Cal.4th 635, 696.) A jury instruction
is not judged in artificial isolation, but rather from the entire charge of the court and
the overall trial record. (People v. Solomon (2010) 49 Cal.4th 792, 822; People v.
Moore (1996) 44 Cal.App.4th 1323, 1330-1331.) In this case, the instruction given
under CALCRIM No. 400 was immediately followed by a more detailed
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6
7
8
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explanation of the required mens rea for aiding and abetting liability as set forth in
CALCRIM No. 401. FN11
FN11 CALCRIM No. 401 instructed the jury: “To prove that defendant is
guilty of a crime based on aiding and abetting that crime, the People must
prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant
knew that the perpetrator intended to commit the crime; [¶] 3. Before or
during the commission of the crime, the defendant intended to aid and abet
the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant’s
words or conduct did, in fact, aid and abet the perpetrator’s commission of
the crime. [¶] Someone aids and abets a crime if he or she knows of the
perpetrator’s unlawful purpose and he or she specifically intends to, and
does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s
commission of that crime. [¶] If all of these requirements are proved, the
defendant does not need to have actually been present when the crime was
committed to be guilty as an aider and abettor. [¶] If you conclude that the
defendant was present at the scene of the crime or failed to prevent the
crime, you may consider that fact in determining whether the defendant was
an aider and abettor. However, the fact that a person is present at the scene
of a crime or fails to prevent the crime does not, by itself, make him or her
an aider and abettor. [¶] A person who aids and abets a crime is not guilty
of that crime if he or she withdraws before the crime is committed. . . .”
Considering that the jury was properly instructed under CALCRIM No. 401 and
expressed no confusion regarding the “equally guilty” language in CALCRIM No.
400, we are not persuaded that a miscarriage of justice occurred through the use of
the latter instruction. (See Lopez, supra, 198 Cal.App.4th at pp. 1119-1120 [any
error in CALCRIM No. 400’s “equally guilty” language was harmless where jury
was also instructed with CALCRIM No. 401].) The entirety of the instructions
properly informed the jury as to the intent required for aider and abettor culpability.
We thus conclude that the conclusion of the phase, “equally guilty” in CALCRIM
No. 400 did not constitute reversible error.
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21
(Lodged Doc. 13 at 35-39.)
22
C. The Court Did Not Err in Instructing the Jury on Aiding and Abetting
23
A federal court cannot review claims in a petition for writ of habeas corpus if a state court
24
denied relief on the claims based on state law procedural grounds that are independent of federal
25
law and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 750 (1991). “A
26
27
district court properly refuses to reach the merits of a habeas petition if the petitioner has
defaulted on the particular state’s procedural requirements.” Park v. California, 202 F.3d 1146,
28
22
1
1150 (2000).
2
3
4
A petitioner procedurally defaults his claim if he fails to comply with a state procedural
rule or fails to raise his claim at the state level. Peterson v. Lampert, 319 F.3d 1153, 1156 (9th
Cir. 2003) (citing O’Sullivan v. Boerckel, 562 U.S. 838, 844-45 (1999)). The procedural default
5
6
doctrine applies when a state court determination of default is based in state law that is both
7
adequate to support he judgment and independent of federal law. Ylst v. Nunnemaker, 501 U.S.
8
797, 801 (1991). An adequate rule is one that is "firmly established and regularly followed." Id.
9
(quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)); Bennett v. Mueller, 322 F.3d 573, 583
10
11
(9th Cir. 2003). An independent rule is one that is not "interwoven with federal law." Park, 202
F.3d 1146 at 1152 (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)).
12
When a state prisoner has defaulted on his federal claim in state court pursuant to an
13
14
independent and adequate state procedural rule, federal habeas review of the claim is barred,
15
unless the prisoner can demonstrate cause for the default and actual prejudice as a result of an
16
alleged violation of federal law, or demonstrate that failure to consider the claims will result in a
17
fundamental miscarriage of justice. Coleman, 501 U.S. at 750.10
18
19
In California, “an appellate court will not consider a claim of error if an objection could
have been, but was not, made in the lower court.” People v. French, 43 Cal. 4th 36, 46 (2008)
20
21
(citing People v. Saunders, 5 Cal. 4th 580, 589-90 (1993)). The rule is in place because “[i]t is both
22
unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of
23
the trial court, could have been easily corrected or avoided.” Id. (quoting People v. Vera, 15 Cal.
24
4th 269, 276 (1997) (internal quotation marks omitted)). This forfeiture rule applies to a Petitioner
25
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27
28
In this case, the state court found the jury instruction claim was procedurally barred, but also, in the alternative,
adjudicated the claim on the merits. The procedural bar stands regardless of the Court’s decision to also adjudicate the
claim on the merits. See Harris, 489 U.S. 255, 264 (1989) (“[A] state court need not fear reaching the merits of a
federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine
requires the federal court to honor a state holding that is a sufficient basis for the state court’s judgment, even when the
state court also relies on federal law.”).
23
1
who fails to object to a jury instruction.
2
“Defendant’s failure to object to the instruction below . . . forfeits the claim on appeal.”). Indeed,
3
4
People v. Virgil, 51 Cal. 4th 1210, 1260 (2011)
in this case, the Court of Appeal noted published opinions that held “a challenge to the ‘equally
guilty’ language in former versions of CALCRIM No. 400 is forfeited by a failure to object and/or
5
6
request clarifying language at the time of trial.” (Lodged Doc. 13 at 36) (internal citations omitted).
7
The Ninth Circuit has held that California’s contemporaneous objections doctrine is clear-
8
well-established, and has been consistently applied. Melendez v. Pliler, 288 F.3d 1120, 1125 (9th
9
Cir. 2002.) This bar is independent and adequate, and applied consistently by California courts;
10
therefore, Petitioner’s claim is procedurally barred. Vansickel v. White, 166 F.3d 953 (9th Cir.
11
1999).
12
The Court of Appeal found an independent and adequate state procedural ground.
13
14
Therefore, “federal habeas review is barred unless the prisoner can demonstrate cause for the
15
procedural default and actual prejudice, or demonstrate that the failure to consider the claims will
16
result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.
17
Petitioner does not argue “cause for the procedural default,” but instead argues there was
18
actual prejudice. Petitioner states he was prejudiced by the instruction “because there was evidence
19
[Petitioner] was not guilty of the same crime as co-[defendant] Toscano.” (Doc. 17 at 31.) To show
20
21
prejudice, a petitioner “must show ‘not merely that the errors at . . . trial created a possibility of
22
prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial
23
with error of constitutional dimensions.’” Murray v. Carrier, 477 U.S. 478, 494 (1986) (quoting
24
United States v. Frady, 456 U.S. 152, 170 (1982)) (emphasis in original).
25
//
26
//
27
//
28
24
1
2
3
4
Here, the Court of Appeal determined that Petitioner was not prejudiced by the “equally
guilty” language in CALCRIM No. 400, because “[t]he challenged version of CALCRIM No. 400
did not contain an incorrect statement of law.” (Lodged Doc. 13 at 36.) The California Supreme
5
6
Court has found the “equally guilty” phrase to be accurate “in all but the most exceptional
7
circumstances.” See, e.g., People v. Samaniego, 172 Cal. App. 4th 1148, 1164-65 (2009) (“[A]n
8
aider and abettor could be guilty of a greater offense than the direct perpetrator, . . . [thus] an aider
9
and abettor’s guilt may also be less than the perpetrator’s, if the aider and abettor has a less culpable
10
mental state. Consequently CALCRIM No. 400’s direction that ‘a person is equally guilty of the
11
crime . . .,” while generally correct in all but the most exceptional circumstances, [can be]
12
13
14
misleading.”) (internal citations and quotation marks omitted) (emphasis in original); People v.
Nero, 181 Cal. App. 4th 504, 517-18 (2010).
15
The Court of Appeal noted that “reversible error stemming from” this language has only
16
been found where “jurors informed the trial court that they were confused by the instruction, and
17
the court failed to provide adequate clarification in response to their inquiries on the subject.”
18
(Lodged Doc. 13 at 37) (internal citations omitted). That is not the case here, as the jury did not
19
have questions about the instruction, and the jury is presumed to follow the instructions they are
20
21
given. Weeks v. Angelone, 528 U.S. 225, 234 (2000).
22
For the Court to grant habeas relief based upon an error in a jury instruction, there must be
23
a “reasonable likelihood” the jury applied the instruction in a way that violated the Constitution.
24
Solis, 219 F.3d at 927 (quoting Estelle, 502 U.S. at 72). The instruction may not be construed in
25
isolation, but rather, in the context of all the other jury instructions and the trial record as a whole.
26
27
Estelle, 502 U.S. at 72. The Court of Appeal found that considering all of the instructions given to
the jury, including CALCRIM No. 401, the jury was “properly informed . . . as to the intent required
28
25
1
for aider and abettor culpability.” (Lodged Doc. 13 at 39.) Based on the foregoing, Petitioner is
2
unable to show there was a “reasonably likelihood” the jury misapplied the instruction. Therefore,
3
the Court recommends denying the claim.
4
VI.
The State Court Did Not Err in Denying Petitioner’s Insufficient Evidence Claim
5
In his fourth ground for habeas relief, Petitioner alleges there was insufficient evidence to
6
7
convict him of robbery and first degree murder.
8
insufficient evidence to support: (1) the force or fear element of the robbery conviction and robbery-
9
murder special circumstance finding; (2) the jury’s finding of guilt on the substantive gang crimes
10
11
Specifically, Petitioner alleges there was
and true findings on the gang special circumstances allegations and the gang enhancement; and (3)
first degree murder conviction. Respondent counters that the Court of Appeal’s rejection of
12
13
Petitioner’s claims was reasonable because there was evidence to support the jury’s findings.
A. Standard of Review for Insufficient Evidence Claims
14
15
To determine whether the evidence supporting a conviction is so insufficient that it violates
16
the constitutional guarantee of due process of law, a court evaluating a habeas petition must
17
carefully review the record to determine whether a rational trier of fact could have found the
18
essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Windham
19
v. Merkle, 163 F.3d 1092, 1101 (9th Cir. 1998). It must consider the evidence in the light most
20
21
favorable to the prosecution, assuming that the trier of fact weighed the evidence, resolved
22
conflicting evidence, and drew reasonable inferences from the facts in the manner that most
23
supports the verdict. Jackson, 443 U.S. at 319; Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir.
24
1997).
25
26
After AEDPA, a federal habeas court must apply the standards of Jackson with an
additional layer of deference. Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). The United
27
States Supreme Court has explained the highly deferential standard of review in habeas
28
26
1
2
3
4
5
6
7
8
proceedings, noting that Jackson
makes clear that it is the responsibility of the jury – not the court – to decide what
conclusions should be drawn from evidence admitted at trial. A reviewing court
may set aside the jury’s verdict on the ground of insufficient evidence only if no
rational trier of fact could have agreed with the jury. What is more, a federal court
may not overturn a state court decision rejecting a sufficiency of the evidence
challenge simply because the federal court disagrees with the state court. The
federal court instead may do so only if the state court decision was “objectively
unreasonable.”
Because rational people can sometimes disagree, the inevitable consequence of this
settled law is that judges will sometimes encounter convictions that they believe to
be mistaken, but that they must nonetheless uphold.
9
10
11
12
Cavazos v. Smith, 565 U.S. 1, 3-4 (2011).
B. Force or Fear Element of Robbery Conviction and Robbery -Murder Special
Circumstance Finding
In Petitioner’s first insufficient evidence claim, he contends there was insufficient evidence
13
14
to convict him of second degree robbery and the robbery-murder special circumstance. (Lodged
15
Doc. 13 at 32.) He alleges there was insufficient evidence that Gerardo’s hat and phone were taken
16
by force or fear or that it was done with the intent to permanently deprive Gerardo of his property.
17
Id. at 32-34.
18
19
20
21
22
23
24
25
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27
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1. State Court of Appeal Opinion
The Court of Appeal rejected Petitioner’s claim:
“Robbery is the felonious 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.) Thus, the elements of robbery are: (1) the taking
of personal property (2) from a person or the person’s immediate presence (3) by
means of force of fear, (4) with the intent to permanently deprive the person of the
property. (Ibid.; People v. Marshall (1997) 15 Cal.4th 1, 34.) Appellants contend
the evidence was insufficient to establish the third or fourth elements of robbery.
With respect to the third element appellants assert that [Petitioner’s] simple act of
reaching inside the car and grabbing or snatching Gerardo’s cell phone and hat was
insufficient to prove [Petitioner] accomplished the taking of Gerardo’s property by
means of force or fear. However, “the requisite force or fear need not occur at the
time of the initial taking. The use of force or fear to escape or otherwise retain even
temporary possession of property constitutes robbery.” (People v. Flynn (2000) 77
27
1
Cal.App.4th 766, 771-772, italics added.)
2
Even assuming the requisite force or fear did not occur at the time of the initial
taking, the record discloses substantial evidence that [Petitioner] used force or fear
to retain possession of Gerardo’s property and therefore the evidence was sufficient
to satisfy the third element of robbery. It is evident from the record that Gerardo
dearly wished to recover possession of his cell phone and the jury here could have
wished to recover possession of his cell phone and the jury here could have
reasonably inferred from all the circumstances that he would have attempted to
reclaim his phone but fear prevented him from doing so. Gerardo’s fear was evident
his obvious reluctance to leave the shelter of Francis’s car to try to reclaim his
phone, and the evidence supports a reasonable inference that [Petitioner] and the
other appellants intentionally engaged in intimidating behavior to instill fear in
Gerardo to help [Petitioner] retain possession of, and eventually carry away after
the shooting, the items he initially snatched away from Gerardo. Such behavior
included standing together in close proximity to the car and encouraging and
participating in [Petitioner’s] continuing challenges to the victim to get out of the
car and fight.
3
4
5
6
7
8
9
10
11
12
13
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15
16
17
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We likewise conclude there was sufficient circumstantial evidence from which the
jury could reasonably infer that [Petitioner] intended to permanently deprive
Gerardo of his property and thus satisfy the fourth element of robbery. It is well
established that the intent with which a person acts is rarely susceptive of direct
proof and usually is inferred from the factual circumstances of the offense. (Former
§ 21, subd. (a), § 29.2; People v. Massie (2006) 142 Cal.App.4th 365, 371.)
Although out of the car to fight him, the jury was not required to credit, and could
have reasonably doubted the sincerity of, [Petitioner’s] statements, especially in
light of members of a rival gang) to target the victim, and conclude that [Petitioner]
intended to deprive the victim permanently of his property whether or not he
succeeded in luring the victim out of the car.
(Lodged Doc. 17-18.)
2. Denial of Petitioner’s Insufficient Evidence of Robbery Claim Was Not
Objectively Unreasonable
20
21
22
Petitioner presents the same argument before this Court as before the Court of Appeal and
23
is asking this Court to reweigh the evidence in his favor. However, on habeas review, this Court
24
does not reweigh the evidence presented at trial. Instead, the Court must review the record to
25
determine whether a rational trier of fact could have found Petitioner took Gerardo’s hat and phone
26
27
with force or fear and that it was done with the intent to permanently deprive Gerardo of his
property.
28
28
1
2
3
4
The Court of Appeal set forth the statute defining robbery and determined that the evidence
satisfied each element, principally the third and fourth elements which are disputed by Petitioner.
Petitioner argues the Court of Appeal “engage[d] in its own speculation” when it found Petitioner
5
6
7
used force or fear to retain the phone and hat. (Doc. 17 at 33.) Petitioner’s argument is unavailing
given the evidence in the record.
8
The force or fear needed to commit a robbery does not have to occur only at the time of the
9
taking. People v. McKinnon, 52 Cal. 4th 610, 686 (2011). The force or fear used to retain the
10
11
property also qualifies. People v. Gomez, 43 Cal.4th 249, 256 (2008). Consequently, a theft
becomes a robbery “if [a] perpetrator, having gained possession of the property without use of force
12
13
14
or fear, resorts to force or fear while carrying away the loot.” Id. at 257.
The “force” required “is such force as is actually sufficient to overcome the victim’s
15
resistance. . . .” People v. Anderson, 51 Cal. 4th 989, 995 (2009). However, it must be more than
16
the force that is “necessary to accomplish the mere seizing of the property.” Id. For “fear,” an
17
express threat is not required; mere intimidation is sufficient. People v. Morehead, 191 Cal. App.
18
4th 765, 775 (2011). “So long as the perpetrator uses the victim’s fear to accomplish the retention
19
of the property, it makes no difference whether the fear is generated by the perpetrator’s specific
20
21
22
words or actions designed to frighten, or by circumstances surrounding the taking itself.” Flynn,
77 Cal. App. 4th at 772.
23
Here, Petitioner and his co-defendants shouted gang slogans and made gang hand signals at
24
Gerardo and his friends. Petitioner’s group harassed and intimidated Gerardo and his three friends
25
who were younger and smaller—throughout the night. When Gerardo’s group tried to leave the
26
27
parking lot in their car, Petitioner’s group, composed of six men surrounded the car and continued
to harass and intimidate Gerardo’s group.
28
29
1
Co-defendant Toscano challenged Gerardo to fight, which Gerardo refused. Toscano
2
continued to pressure Gerardo to fight, and the Petitioner and his co-defendants encouraged the
3
behavior. When the driver of the car attempted to back his car up, Petitioner’s group blocked his
4
path.
5
6
After harassing Gerardo’s group and pressuring Gerardo to fight, Petitioner called Gerardo
7
“a bitch,” and grabbed Gerardo’s phone from his lap. Gerardo begged for his phone back, but
8
Toscano stated he would only get it back if Gerardo fought Petitioner. Petitioner then took
9
Gerardo’s hat off his head. As Gerardo tried to shut the car door and leave, Toscano shot him.
10
11
Considering these facts, force was used to take and retain the property. Petitioner said
“[g]ive me your fucking phone,” before grabbing Gerardo’s phone off his lap. Petitioner also used
12
13
14
force to retain both the phone and the hat. Petitioner’s group intimidated and harassed Gerardo and
ultimately challenged him to a fight to get his property back. The evidence also reveals that
15
Petitioner used fear to take and retain Gerardo’s property. The group surrounded the car, and
16
taunted and challenged Gerardo.
17
18
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
19
determination of the facts in light of the evidence presented. For these reasons, the Court
20
21
22
recommends denying Petitioner’s claim that there was insufficient evidence to support the robbery
conviction and robbery special circumstance.
23
C. Substantive Gang Findings and Gang Special Enhancements
24
In Petitioner’s second insufficient evidence claim, he contends there was insufficient
25
26
27
evidence to support the jury’s finding of guilt on the substantive gang crimes and true findings on
the gang special circumstance allegations and the gang enhancements. (Doc. 17 at 43-45.)
Petitioner alleges the prosecutor “failed to offer evidence which specified exactly who, when,
28
30
1
where, and under [what] circumstances gang crimes were committed,” and presented insufficient
2
evidence to prove the “primary activities” element of the statutory definition of a criminal street
3
gang. Id. at 44.
4
Petitioner was alleged to be a member of the Loma Bakers gang and convicted of being an
5
6
active participant in a criminal street gang (Cal. Penal Code § 186.22(a)). Further, the jury found
7
true the allegation that the murder was committed while Petitioner was an active member of the
8
gang (Cal. Penal Code § 190.2(a)(22)). As to the murder, robbery, and shooting into an occupied
9
vehicle counts, the jury found true the allegations that the crimes were committed for the benefit
10
11
of, at the direction of, or in association with a criminal street gang (Cal. Penal Code § 186.22(b)(1)).
Pursuant to California Penal Code § 186.22(f), “‘criminal street gang’ means any ongoing
12
13
14
organization, association, or group of three or more persons, whether formal or informal, having as
one of its primary activities the commission of one or more of the criminal acts enumerated . . . .”
15
As the Court of Appeal stated, to establish a group is a “criminal street gang,” one element the
16
prosecutor must prove is that the group’s “primary activities” is the commission of enumerated
17
crimes. See Cal. Penal Code § 187.22(e). Petitioner alleges there was insufficient evidence to
18
establish the “primary activities” element of the definition for a criminal street gang.
19
1. State Court of Appeal Opinion
20
21
22
23
24
25
26
27
28
The Court of Appeal denied Petitioner’s claim that there was insufficient evidence to
establish the primary activities of the Loma Bakers gang:
Aguero and [Petitioner] challenge the sufficiency of the evidence to support the
gang-related special allegations and substantive gang offense on the ground the
prosecution presented insufficient evidence to prove the “primary activities” (§
186.22, subd. (f)) element of the statutory definition of a criminal street gang
because, throughout his testimony, the prosecution’s gang expert, Deputy Hudson,
primarily used the phase primary criminal activities rather than primary activities
in describing the activities of the Loma Bakers gang. . . .
To establish that a group is a “criminal street gang” within the meaning of the
relevant statute, the prosecution must prove, among other elements, that one of the
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3
4
5
6
7
8
9
10
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12
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15
group’s primary activities is the commission of one or more offenses listed in
section 186.22. subdivision (e), and that the group’s members engage in, or have
engaged in, a pattern of criminal gang activity. (§ 186.22, subd. (f); People v.
Duran (2002) 97 Cal.App.4th 1448, 1457.)
The term “‘primary activities’ . . . implies that the commission of one or more of
the statutorily enumerated crimes is one of the group’s ‘chief’ or ‘principal’
occupations. [ ] That definition would necessarily exclude the occasional
commission of those crimes by the group’s members.” (People v. Sengpadychith
(2001) 26 Cal.4th 316, 323.) Sufficient proof of these “primary activities [may]
consist of evidence that the group’s members consistently and repeatedly have
committed criminal activity listed in the gang statute,” or testimony from a police
gang expert, who bases his or her opinion on conversations with gang members,
personal investigations of crimes committed by gang members, and information
from law enforcement colleagues. (Id. at p. 324, italics omitted.) We may consider
both past and currently charged offenses as part of the gang’s “‘primary activities.’”
(Id. at p. 323.)
Aguero and [Petitioner] do not dispute that the jury instructions given in this case
correctly defined a “criminal street gang” pursuant to CALCRIM No. 736, in
relevant part, as a group having “as one or more of its primary activities, the
commission of Murder, Assault with a Deadly Weapon, Narcotics Trafficking, and
Possession of Firearm by a Felon. . . .” Nor do they dispute that there was sufficient
evidence to show they were active members of a group known as the Loma Bakers
or otherwise challenge any of the other elements of the relevant gang statute.
16
17
18
19
20
21
22
23
24
25
26
27
28
Instead, as mentioned above, Aguero and [Petitioner] contend the prosecution
presented insufficient evidence the Loma Bakers gang had, as one or more of its
primary activities, the commission of the qualifying offenses listed in the jury
instruction based on Hudson’s use of the phrase primary criminal activities in his
testimony instead of primary activities. Aguero thus asserts “[t]he jury could not
infer that the primary criminal activities were also the primary activities without
committing the logical fallacy of composition, assuming that what was true for the
part (criminal activities) was also true for the whole (all activities).”
This argument fails because the jury was not required to commit any logical
fallacies in order to find that the commission of crimes Hudson described (and listed
in his accompanying PowerPoint presentation) as constituting the Loma Bakers
“primary criminal activities” also constituted the gang’s “primary activities”
because the prosecutor pointedly elicited testimony from the gang expert
confirming this to be the case and adding, “[the Loma Bakers] have been consistent
that way since I’ve been in law enforcement here.”
Moreover, we see little support in the record for Aguero’s assertion that the
“noncriminal activities” of the Loma Bakers might “predominate, so that
commission of a particular crime would not be a primary activity even though,
when only the organization’s criminal activities are taken into account, it is a
32
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7
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10
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28
primary activity within the subset.” Hudson’s testimony describing how the Loma
Bakers benefitted from the commission of crimes he listed as their “primary
criminal activities” actually helped to illustrate the fundamentally criminal purpose
of the group and to show how the crimes it committed were not only primary
activities of the group but necessary to its existence. For example, Hudson testified
that one of the gang’s primary criminal activities was the sale of controlled
substances, explaining that, because most gang or relatives, and relied on illegal
drug sales to raise money to purchase “whatever they may need to commit their
next crime.”
Aguero’s argument on appeal, ironically, relies heavily on Hudson’s testimony that
Loma Baker gang members commonly congregated and spent their days hanging
out at Jefferson Park as evidence the gang functioned as a social association “quite
apart from any criminal purpose.” This reliance ignores or overlooks earlier
testimony by the gang expert indicating it was largely the gang members’
involvement in criminal activity which influenced their selection of Jefferson Park
as a meeting place in the first place, specifically because of the opportunities the
park provided to evade apprehension by law enforcement officers. Hudson thus
explained that “there’s large areas that are hilly, so it’s very difficult to catch people
in that park” and “very easy to get away and evade law enforcement.”
Aguero further claims that Hudson’s opinion regarding the Loma Bakers’ primary
activities lacked adequate foundation because the expert’s testimony revealed it
was based on an incorrect legal conclusion entitled to no weight. Thus, he asserts
that “the expert made it clear that in his opinion a crime qualified as a primary
criminal activity of the gang even if, to his knowledge, there was only a single
instance of commission of that crime” and “[o]f course this is flatly contrary to the
Supreme Court’s admonition that a primary activity must be one of the ‘chief’ or
‘principal’ activities of the gang, not an ‘occasional,’ activity, must less a one-time
episode.”
Assuming Aguero did not forfeit his foundational challenge by failing to raise it
below, we reject it on the merits. As a general matter, we note that Aguero’s
arguments challenging the foundation of Hudson’s opinions are based on isolated
statements taken out of context from his cross-examination testimony. When read
in context with the expert’s testimony as a whole, we conclude these statements do
not support his arguments.
Contrary to Aguero’s assertions, Hudson’s cross-examination testimony did not
demonstrate Hudson erroneously believed a single commission of murder by a
Loma Baker gang member would suffice to establish the commission of murder
was a primary activity of the gang. [FN7] In his testimony and PowerPoint “slide”
addressing the Loma Bakers primary activities, Hudson referred to the commission
of crimes in the plural; i.e. “murders, robberies, assault with deadly weapons, sales
of controlled substances,” and “illegal weapons possessions.” The expert’s
testimony further established that the opinions he rendered in this case were based
not only on the “hundreds” of gang-related investigations he had personally been
involved in, but also on his extensive training and conversations with other officers
33
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2
3
4
5
6
7
8
9
10
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12
13
14
15
16
17
18
19
and actual gang members. Therefore, a reasonable interpretation of the crossexamination testimony cited by Aguero is not that the expert believed his
knowledge of a single murder committed by a Loma Baker gang member would be
sufficient by itself to satisfy the primary activities element of the gang statute, but
rather that, even if he was personally aware of only one such murder, he would still
consist murder to be a primary activity of the gang based, not on his personal
knowledge of one murder, but on his training and all the other sources of
information he properly reviewed and relied on in rendering his expert opinions in
this case.
FN7 Aguero specifically relies on this exchange during Hudson’s cross
examination by Garcia-Santos’s trial attorney: “Q. Do you use the number
of the types of crimes in determining whether or not it’s a primary criminal
activity? [¶] A. The number – [¶] Q. The number of that certain crime
committed. [¶] A. Okay. I don’t specifically. I just use crimes that I’m
aware of myself. [¶] Q. Okay. So let’s say, for example, you’re aware of
one crime, a certain crime. Let’s say, for example, you’re aware of one
murder committed by the Loma Bakers. [¶] A. Okay. [¶] Q. With one
murder committed by the Loma Bakers. [¶] A. consider that to be a primary
criminal activity? [¶] A. With one murder? [¶] Q. Yes. [¶] A. I could
still consider it being a primary criminal activity. I’m aware of it.”
We have likewise reviewed and reject similar arguments Aguero raises challenging
the adequacy of the gang expert’s opinion based on isolated statements taken out
of context from his lengthy testimony. We conclude the evidence in this case was
more than sufficient to sustain the primary activities element of the statutory
definition of a criminal street gang and we do not find any of Aguero’s or
[Petitioner’s] contrary arguments to be persuasive.
(Lodged Doc. 13 at 22-27.)
2. Denial of Petitioner’s Insufficient Evidence of Gang Activity Claim Was
Not Objectively Unreasonable
20
21
Petitioner argues the prosecutor did not present sufficient evidence to prove the “primary
22
activities” element for the definition of a criminal street gang. Pursuant to California Penal Code
23
§ 186.22(f), a requirement for a criminal street gang is that the group must have, as one of its
24
primary activities, one or more of the crimes specified in subdivision (e). “Sufficient proof of the
25
gang’s primary activities might consist of evidence that the group’s members consistently and
26
27
repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be
expert testimony.” People v. Sengpadychith, 26 Cal.4th 316, 324 (2001).
28
34
1
The California Supreme Court has found that an expert witness’s opinion, based on
2
conversations with gang members, personal investigation of crimes committed by gang members,
3
4
and information from colleagues, is sufficient evidence of the “primary activity” element to proving
an association was a “criminal street gang.” People v. Gardeley, 14 Cal. 4th 605, 620 (1996).
5
6
Here, Hudson, the gang expert, testified that the primary activities of Loma Bakers gang
7
members included “murders, robberies, assault with deadly weapons, sales of controlled
8
substances, methamphetamine, heroin, cocaine, marijuana. They’re also going to include weapons
9
and other violations.” (Reporter’s Transcript 24 at 4377.) The prosecutor asked, “the primary
10
11
criminal activities that you listed, murder, robbery, narcotic sales, those crimes, were those the
primary activities of the Loma Bakers gang members in 2011?” Id. at 4380. Hudson responded,
12
13
14
“Yes, ma’am, they have been consistent that way since I’ve been in law enforcement here.” Id.
After the prosecutor asked, “From August 1st of 2010 through May 15th of 2011, in your opinion,
15
. . . was the gang involved in primary criminal activities that you mentioned?”; Hudson again
16
confirmed that they were involved in those primary activities. Id. at 4489.
17
Petitioner contends the testimony provided by Hudson was not sufficient to prove the
18
“primary activities” of the gang. (Doc. 17 at 44-45.) Petitioner primarily relies on In re Leland D.,
19
where the Court of Appeal held that “‘expert testimony’ based on nonspecific hearsay and arrest
20
21
22
information does not constitute substantial evidence that the [group is] a criminal street gang.” 223
Cal. App. 3d 251, 259 (1990). Leland is distinguishable from the case at bar.
23
Here, Hudson testified he is a deputy in the Kern County Sheriff’s Department, where he
24
had been assigned to the gang unit for six years at the time he testified. (Reporter’s Transcript 24
25
at 4345-46.) He testified he knows of the activities of the Loma Bakers gang based on “[n]umerous
26
27
investigations. I’ve testified against them. I’ve had numerous contacts with them. I’ve been at the
scene of crimes involving them. I’ve made numerous arrests of Loma Baker gang members.” Id.
28
35
1
at 4367. Hudson further testified that he has read reports concerning the Loma Bakers, and spoke
2
with other people in the sheriff’s department and rival gang members and non-rival gang members
3
4
about the Loma Bakers. Id. at 4367-68. Hudson’s knowledge is based on far more than the
“nonspecific hearsay and arrest information” that the Court of Appeal found did not constitute
5
6
substantial evidence in Leland.
7
In addition to Hudson’s testimony about the primary activities of the Loma Bakers gang,
8
Petitioner’s gang expert, Hunter, testified about the gang. Hunter testified that he had known the
9
Loma Bakers gang since the 1980’s, and had interviewed members, listened to testimony, and
10
11
reviewed police reports, probation reports, court transcripts, and other documents about them.
(Reporter’s Transcript 26 at 4864.) Hunter testified that “[a]t the present time it is my opinion that
12
13
14
15
[the Loma Bakers gang is] a criminal street gang.” Id. at 4866. Based on Hunter’s testimony that
the Loma Bakers gang is a “criminal street gang,” the “primary activities” of the gang are the ones
enumerated in § 186.22(e).
16
Considering the foregoing, there was sufficient evidence of the Loma Bakers’ “primary
17
activities” to sustain the substantive gang crimes and true findings on the gang special circumstance
18
allegations and the gang enhancements. The Court of Appeal’s decision was not an objectively
19
unreasonable application of clearly established federal law nor did it result in a decision that was
20
21
based on an unreasonable determination of the facts in light of the evidence presented. For these
22
reasons, the Court recommends denying Petitioner’s claim that there was insufficient evidence to
23
support the gang convictions.
24
D. First Degree Murder
25
In his third insufficient evidence claim, Petitioner contends there was insufficient evidence
26
to support his first degree murder conviction. (Doc. 17 at 45.) Petitioner claims the evidence was
27
insufficient to show that he was guilty of first degree murder under a felony murder theory, aiding
28
36
1
2
3
or abetting theory, or natural and probable consequences theory. Id. at 45-47.
1. State Court of Appeal Opinion
The Court of Appeal found Petitioner’s claim that there was insufficient evidence to support
4
the first degree murder charge was unavailing:
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Aguero and [Petitioner] both contend there was insufficient evidence to support
their convictions of premeditated first degree murder. . . . Although Aguero and
[Petitioner] challenge the sufficiency of the evidence to support their murder
convictions on the various theories presented to the jury, we need only address the
sufficiently of the evidence to support their convictions under one of those theories.
. . . [T]he jury’s findings on the gang special circumstance (§ 190.22, subd. (a)(2))
make clear the jury found appellants . . . and [Petitioner] guilty of first degree
premeditated murder under a theory of direct aiding and abetting. Substantial
evidence supports appellants’ convictions under this theory.
“Aiders and abettors may . . . be convicted of first degree premeditated murder
based on direct aiding and abetting principles. [ ] Under those principles, the
prosecution must show that the defendant aided or encouraged the commission of
the murder with knowledge of the unlawful purpose of the perpetrator and with the
intent or purpose of committing, encouraging, or facilitating its commission.”
(Chiu, supra, 59 Cal.4th at pp. 166-167.) “An aider and abettor who knowingly
and intentionally assists a confederate to kill someone could be found to have acted
willfully, deliberately, and with premeditation, having formed his own culpable
intent. Such an aider and abettor, then, acts with the mens rea required for first
degree murder.” (Id. at p. 167.)
Notwithstanding Aguero’s and [Petitioner’s] contrary arguments, which are based
on selective readings of the record, we conclude the evidence was more than
sufficient to show that they and Garcia-Santos knowingly and intentionally assisted
Toscano’s commission of premeditated murder. The circumstances surrounding
the shooting, combined with the gang expert’s testimony, gave rise to a reasonable
inference that appellants, acting as a group, purposefully set out together to the
location of the quinceañera, and pretended to be members of the rival Westside
Bakers gang, with the intent of finding and killing a member of the rival gang in
retaliation for the shooting of Toscano’s brother just six days earlier. As reflected
by the gang expert’s testimony regarding the hypothetical based on the underlying
incident, there was evidence showing appellants acted as a group throughout the
incident, including by coming back to surround or at least remaining in close
proximity to the car when Toscano went back to shoot [Gerardo]. The gang
expert’s testimony and [other] testimony also supported a reasonable inference that
the other appellants knew Toscano was armed, and knew what he was deliberating
and intending to do when he returned to the car, opened the door, and shot Gerardo,
and that they intended to back him up in his commission of the murder.
(Lodged Doc. 13 at 21-22.)
37
1
2
3
2. Denial of Petitioner’s Insufficient Evidence of First Degree Murder Claim
Was Not Objectively Unreasonable
Petitioner states the evidence adduced at trial was insufficient to prove he was guilty of first
4
degree murder under a felony murder theory, aiding and abetting theory, or natural and probable
5
consequences theory. (Doc. 17 at 45-47.)
6
The Court of Appeal found there was sufficient evidence to convict Petitioner under an
7
aider and abettor theory. However, Petitioner maintains “there was no evidence [he] knew that co-
8
[defendant] Toscano intended to commit murder. The text messages which the prosecutor relied
9
10
on as evidence of premeditation were not directed to [Petitioner], and there is no evidence he knew
11
about them.” Id. at 46. Instead, the Court of Appeal “impute[d] knowledge of Toscano’s mens rea
12
to [Petitioner] based solely upon gang membership, but this is legal error.” Id.
13
An individual is guilty of first degree murder under an aiding and abetting theory,
14
if the person aids and abets the commission of a crime when he or she, (i) with
knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or
purpose of committing, facilitating, or encouraging commission of the crime, (iii)
by act or advice, aids, promotes, encourages or instigates the commission of the
crime.
15
16
17
18
People v. Cooper, 53 Cal. 3d 1158, 1164 (1991) (citing People v. Beeman, 35 Cal. 3d 547,
19
561(1984)). “Among the factors which may be considered in making the determination of aiding
20
and abetting are: presence at the scene of the crime, companionship, and conduct before and after
21
the offense.” In re Lynette G., 54 Cal. App. 3d 1087, 1094 (1976).
22
23
Petitioner specifically contends that in affirming Petitioner’s conviction for first degree
murder, the Court of Appeal improperly relied on “the gang expert’s testimony that, in gang culture,
24
25
26
gangs operate in groups to retaliate against rivals.” (Doc. 17 at 45.) Petitioner cites People v.
Killebrew, for the proposition that the gang expert cannot offer evidence on Petitioner’s mental
27
state. Id. at 45-46 (People v. Killebrew, 103 Cal. App. 4th 644, 658 (2002)). Petitioner states that
28
“[w]hile the evidence of gang culture was admissible, [Petitioner] had to be convicted of first degree
38
1
murder based upon evidence that he personally had the intent to kill [Gerardo],” which the
2
prosecution did not prove. Id. at 46.
3
4
In Killebrew, the Court of Appeal held that a gang expert may not testify “that a specific
individual had specific knowledge or possessed a specific intent.” 103 Cal. App. at 658. However,
5
6
“[i]t would be incorrect to read Killebrew as barring the questioning of expert witnesses through
7
the use of hypothetical questions regarding hypothetical persons. . . . [T]he use of hypothetical
8
questions is proper.” People v. Vang, 52 Cal. 4th 1038, 1047 (2011) (citing People v. Gonzalez,
9
126 Cal. App. 4th 1539, 1551 n. 4 (2005)) (emphasis omitted).
10
11
Petitioner appears to take issue with the Court of Appeal’s statements that, “[a]s reflected
by the gang expert’s testimony regarding the hypothetical based on the underlying incident, there
12
13
14
15
was evidence showing appellants acted as a group throughout the incident . . . .,;” as well as,
[t]he gang expert’s testimony . . . also supported a reasonable inference that the
other appellants knew Toscano was armed, and knew what he was deliberating and
intending to do when he returned to the car, opened the door, and shot Gerardo, and
that they intended to back him up in his commission of the murder.
16
17
18
(Lodged Doc. 13 at 22.)
Contrary to Petitioner’s contentions, the record shows that the prosecutor posed
19
hypothetical questions based on Gerardo’s shooting that Hudson, the gang expert, answered. For
20
instance, when the prosecutor asked Hudson, “What’s expected of a gang member when a fellow
21
gang member is involved in a verbal confrontation?” Hudson answered,
22
23
24
25
26
[I]f one gang member is involved in a verbal confrontation, you’ll see the other
gang members position themselves generally in a position where they can and if
the altercation becomes physical, and commonly you’ll see them in the background
also reiterating things that are said by the primary offender.
(Reporter’s Transcript 24 at 4434-35.)
Therefore, the prosecutor questioned Hudson using
hypotheticals, which is proper in California.
27
28
39
1
Further, the Court of Appeal did not base its opinion solely on Hudson’s opinion, but on the
2
circumstances surrounding the shooting and testimony of other witnesses. (Lodged Doc. 13 at 22.)
3
4
Text messages between members of the gang showed their intent to retaliate for the shooting of
Jacob, co-defendant Toscano’s brother, which occurred six days before Gerardo was killed.
5
6
Albarran11 and a Loma Bakers gang member, Sicko, texted:
7
Albarran:
“You heard what happened to Lil J?”12
8
Sicko:
“Yea I did. I wanna get them fools who did it, dog. You down or
what?”
Albarran:
Hell, yeah, I’m down. I don’t know who. Lil E13 told me they were
Weaksiders.”
9
10
11
(Reporter’s Transcript 23 at 4256-57.)
12
In a later conversation between the two,
13
Sicko:
“What did Lil E say? Are we gonna get them foos or what?”
15
Albarran:
“Kosher said yea.”14
16
Sicko:
“Cool. I’m ready whenever”
17
Albarran:
“That’s right, G.”
14
18
Id. at 4258
19
In a text message exchange between co-defendant Garcia-Santos and his girlfriend on the
20
21
day of the murder, Garcia-Santos told his girlfriend he could not attend an event with her because,
22
“I got things to handle to by tonight.” Id. at 4239. Later, when his girlfriend asked if he was ok,
23
Garcia-Santos replied, “Yeah, but we’re going to the west side in a bit.” Id. at 4239-40. At 6:00
24
p.m., Garcia-Santos texted Jacob that he was with Joseph Gonzales, a Loma Bakers gang member,
25
Albarran was originally named as a defendant, but entered a plea of no contest prior to Petitioner’s trial. (Lodged
Doc. 13 at 2.)
12
“Lil J” refers to Jacob Toscano, brother of Petitioner’s co-defendant Toscano. As described fully in section I, supra,
Jacob was shot on April 24, 2011.
13
“Lil E” refers to co-defendant Toscano.
14
“Kosher” is an older Loma Bakers gang member. (Reporter’s Transcript 24 at 4486.)
11
26
27
28
40
1
Albarran, and co-defendant Aguero. Id. at 4242. At 8:16 p.m., when he was at the restaurant where
2
the quinceañera was being held, Garcia-Santos texted his girlfriend that he did not know what time
3
he would be home and “We’re waiting.” Id. at 4243. Gerardo was killed at 9:03 p.m. Id.
4
Based on these test messages, it would be reasonable to conclude that Petitioner and his co5
6
defendants went to the quinceañera to retaliate for the shooting of Jacob. When they arrived at the
7
quinceañera, Petitioner’s group tried to identify members of their rival gang, the Westside gang, by
8
pretending to be Westside gang members. One of the co-defendants, believed to be Toscano, asked
9
a quinceañera attendee where the “Westies” were. The attendee pointed to the table where Gerardo
10
11
and his friends were sitting, even though he was not sure that they were Westside gang members.
Petitioner’s group acted together to find potential victims.
12
Before the shooting and while the co-defendants were standing in a circle near each other,
13
14
Toscano lifted his shirt to show Melina, the woman who had invited him to the quinceañera, a gun
15
tucked into the waist band of his shorts.
Therefore, it was reasonable to infer that all the co-
16
defendants knew that Toscano was carrying a gun.
17
Once Gerardo and his friends walked to their car, Petitioner’s group followed them.
18
Toscano’s hand was underneath his sweatshirt as he followed Gerardo. When Petitioner’s group
19
surrounded Gerardo’s car, as a group, they continued to pretend they were part of the Westside
20
21
gang. When Gerardo told Petitioner’s group, “I’m from the West Side, too,” Petitioner responded,
22
“You not from my hood.” At that point, Petitioner’s group began to harass and intimidate Gerardo
23
and, as a group, blocked the car so that Gerardo could not get away from them. Petitioner stole
24
Gerardo’s phone and hat and the co-defendants taunted Gerardo and his friends, calling them “little
25
bitches.”
26
//
27
//
28
41
1
Hudson also testified that a gang would retaliate if one of their gang members was shot,
2
with an equal or greater use of violence. (Reporter’s Transcript 24 at 4430-32.) He also testified
3
that the retaliation would be led by a family member who was also in the gang. Id. at 4432-33.
4
Here, after Jacob was shot, his brother, co-defendant Toscano, brought his gun to the quinceañera
5
6
and killed Gerardo.
7
It appears, based on this evidence, that the co-defendants acted together to find a victim,
8
knowing that they wanted to seek revenge for Jacob’s death and knowing that Toscano was carrying
9
a gun, and while harassing and taunting Gerardo, encouraged the crimes of robbery and then
10
11
shooting Gerardo. In view of these facts, it was reasonable for the Court of Appeal to find that
Petitioner knew of Toscano’s unlawful purpose, and intended to commit, facilitate, or encourage
12
13
14
the commission of the crime by acting, aiding, promoting, encouraging, or instigating the
commission of the crime.
15
Therefore, the Court of Appeal’s decision was not an objectively unreasonable application
16
of clearly established federal law, nor did it result in a decision that was based on an unreasonable
17
determination of the facts in light of the evidence presented. For these reasons, the Court
18
recommends denying Petitioner’s claim that there was insufficient evidence to support the robbery
19
conviction and robbery special circumstance.
20
21
VII.
The State Court Did Not Err in Allowing the Introduction of Text Message Evidence
22
In his fifth ground for habeas relief, Petitioner contends the trial court improperly admitted
23
text messages, after finding they qualified as admissions of co-conspirators. (Doc. 17 at 35-38.)
24
Respondent counters the claim is not cognizable on federal habeas review, because Petitioner is
25
asserting a violation of state law. (Doc. 23 at 52-60.)
26
27
28
42
1
A. Text Messages Between Members of the Loma Bakers Gang
2
Petitioner argues that text messages exchanged between members of the Loma Bakers gang
3
should not have been admitted as proof of a conspiracy, because there was no evidence that
4
Petitioner was a member of the conspiracy when the messages were created. (Doc. 17 at 35.)
5
1. State Court of Appeal Opinion
6
The Court of Appeal rejected Petitioner’s claim that the trial court erred in admitting text
7
8
messages exchanged between members of the Loma Bakers gang.
9
[Petitioner] contends that the trial court erred in admitting evidence of certain text
message exchanges between codefendant Albarran and another Loma Baker gang
member known as “Sicko” as statements of a coconspirator under Evidence Code
section 1232.15 . . .
10
11
Regarding Albarran’s text message exchanges with Sicko, [Petitioner] complains
the trial court erred in overruling his objections to the following two exchanges and
finding them admissible as statements of a coconspirator.
12
13
14
The first exchange occurred on April 24, 2011, around 5:00 p.m.:
15
Albarran:
“u herd what happen 2 lil j?”16
Sicko:
Albarran:
“Yea I did I wana get them foos who did it dawg, u down or what?”
Hell yeah I’m down. I don’t know who. lil e [Toscano] told me
they were weeksiders.
19
Sicko:
“I heard that same thing.” (Some punctuation added.)
20
The second exchange occurred the same day around 6:00 p.m.:
21
Sicko:
“Where did j get shot at?”
Albarran:
“Like w[h]ere i[n] the st[reet] or w[h]ere on his body?
16
17
18
22
23
24
25
15
The Court of Appeal opinion appears to contain an error as California Evidence Code 1232 does not exist, but
California Evidence Code 1223 states:
Evidence of a statement offered against a party is not inadmissible by the hearsay rule if:
26
(a) The statement was made by the declarant while participating in a conspiracy to commit a
crime or civil wrong and in furtherance of the objective of that conspiracy.
27
28
16
“lil j” refers to Jacob Toscano, brother of Petitioner’s co-defendant Toscano. .
43
1
Sicko:
“The spot where at.?
2
Albarran:
“by jumbugs pad on [K]notts.”
Sicko:
“Is that right im pretty sure it had something to do with those
niggers.”
5
Albarran:
“I don’t think they live there kus I haven’t been seeing them.”
6
Sicko:
“what did lil e say r we gona get them foos or what?”
Albarran:
“Kosher sead yea.”
Sicko:
“Koo im ready wenever.”
Albarran:
“That’s right g.” (Some punctuation added.)
3
4
7
8
9
10
11
...
12
Regarding the first set of text messages between Albarran and Sicko, Petitioner
contends the trial court erred in finding them admissible against him as statements
of coconspirators because there was insufficient evidence that he ([Petitioner])
participated in a conspiracy to commit murder. We need not reach the merits of
this contention because assuming, arguendo, the trial court erred admitting the
evidence of the text messages, [Petitioner] cannot establish prejudice under the
applicable Watson[FN8] standard or the Chapman [FN9] standard he claims should
apply. The text exchange was cumulative of the properly admitted evidence
showing that Toscano held Westsiders responsible for the shooting that injured his
brother Jacob and that appellants planned and committed the offenses in retaliation
for the shooting.
13
14
15
16
17
18
FN8 People v. Watson (1956) 46 Cal.2d 818, 836.17
FN9 Chapman v. California (1967) 386 U.S. 18, 24.18
19
20
21
(Lodged Doc. 13 at 30-32.)
22
23
24
25
The California Supreme Court held “that a ‘miscarriage of justice’ should be declared only when the court, . . . is of
the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached
in the absence of error.” People v. Watson, 46 Cal. 2d 818, 836 (1956).
18
In Chapman, the United States Supreme Court determined that “admitting plainly relevant evidence which possibly
influenced the jury adversely to a litigant cannot, . . ., be conceived of as harmless.” Chapman v. Cal., 386 U.S. 19, at
24-25 (1967).
17
26
27
28
44
1
2. Admission of the Text Messages Between Loma Bakers Gang Members Did
Not Violate Petitioner’s Due Process Rights
2
3
Issues regarding the admission of evidence are matters of state law, generally outside the
4
purview of a federal habeas court. Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009).
5
"The admission of evidence does not provide a basis for habeas relief unless it rendered the trial
6
fundamentally unfair in violation of due process." Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir.
7
1995). "[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned
8
review of the wisdom of state evidentiary rules." Marshall v. Lonberger, 459 U.S. 422, 438 n. 6
9
10
11
(1983).
"Although the [U.S. Supreme] Court has been clear that a writ should be issued when
12
constitutional errors have rendered the trial fundamentally unfair, see Williams, 529 U.S. at 375
13
. . ., it has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence
14
15
constitutes a due process violation sufficient to warrant issuance of the writ." Holley, 568 F.3d at
1101. Therefore, the Court of Appeal could not have contravened federal law through the
16
17
18
admission of the text message evidence when federal law is not clearly established. Knowles v.
Mirzayance, 556 U.S. 111, 122 (2009) ([T]his Court has held on numerous occasions that it is not
19
‘an unreasonable application of’ ‘clearly established Federal law’ for a state court to decline to
20
apply a specific legal rule that has not been squarely established by this Court.”).
21
22
23
Here, the Court of Appeal did not reach the merits of whether the text messages were
admissible, but found that any error in admitting them was harmless. Under federal habeas review,
habeas relief cannot be granted absent a “substantial and injurious effect” on the verdict. Brecht,
24
25
507 U.S. at 637 (quoting Kotteakos, 328 U.S. at 776). When a state court finds harmless error,
26
this Court must determine whether the finding was objectively unreasonable. Davis v. Ayala, 135
27
S.Ct. 2187, 2198 (2015). The Court will apply the Brecht test, but will do so “with due
28
consideration of the state court’s reasons for concluding that the error was harmless beyond a
45
1
2
3
4
reasonable doubt.” Garcia v. Long, 808 F.3d 771, 782 (2015).
The Court of Appeal found the “text exchange was cumulative of other properly admitted
evidence showing that Toscano held Westsiders responsible for the shooting that injured his
brother and that” Petitioner and his co-defendants “planned and committed the offenses in
5
6
retaliation for the shooting.” (Lodged Doc. 13 at 32.) Petitioner maintains the text messages were
7
prejudicial because they “were the basis for an uncharged conspiracy instruction,” and “[w]ithout
8
the uncharged conspiracy instruction, the jury likely would not have convicted [Petitioner] of
9
murder since there was no evidence [Petitioner] had any warning of co-appellant Toscano’s
10
11
decision to shoot at [Gerardo].” (Doc. 17 at 35.)
Petitioner’s argument is unavailing. As the Court has already explained, there was
12
13
14
sufficient evidence to convict Petitioner of first degree murder under an aiding and abetting theory
based on the text messages, as well as his actions on the night of the shooting. Because the
15
evidence presented at trial without the text messages was sufficient to convict Petitioner of first
16
degree murder under an aiding and abetting theory, Petitioner has not shown that the admission of
17
the text messages had a “substantial and injurious effect” on the verdict. Consequently, the Court
18
recommends denying this claim.
19
20
B. Admission of Text Messages Between Co-Defendant Garcia-Santos and His
Girlfriend
21
Petitioner additionally alleges that the trial court erred in admitting text messages between
22
co-defendant Garcia-Santos and his girlfriend as declarations against penal interest, because they
23
violated his right to a fair trial. (Doc. 17 at 2728.) Specifically, Petitioner argues the text messages
24
25
26
were ambiguous because the term “we” was used in them, but not defined, and they were
untrustworthy. Id. at 37-38.
27
28
46
1
1. State Court of Appeal Opinion
2
3
The Court of Appeal rejected Petitioner’s argument that it was improper to admit text
messages between Garcia-Santos and his girlfriend:
4
[Petitioner] contends that the trial court erred in admitting evidence of certain text
message[s] . . . between [co-defendant] Garcia-Santos and his girlfriend “Viri” as
declarations against penal interest under Evidence Code section 1230.19
5
6
7
...
8
Regarding evidence of text messages exchanged between Garcia-Santos and Viri,
the first one he challenges concerned a car wash held to raise money for Toscano
after he had been arrested for Gerardo’s murder. In his text, Garcia-Santos wrote:
“No [the car wash is] for the homie th[ ]at got locked up lil E he was with us when
we did that.”
9
10
11
The second text exchange [Petitioner] challenges took place several days after
Toscano’s arrest. Viri asked Garcia-Santos why it took him so long to text her
back, to which he responded: “Cause we[’]re all talking about our [alibis].”
12
13
...
14
With respect to the second set of text messages at issue, between Garcia-Santos and
Viri, [Petitioner] argues the trial court erred in admitting them under the hearsay
exception for statements against penal interest because they were ambiguous and
therefore untrustworthy. A reviewing court may overturn the trial court’s
determination only if that discretion was abused. (People v. Frierson (1991) 53
Cal.3d 730, 745.) The court here did not abuse its discretion in finding that GarciaSantos’s statements to his girlfriend were sufficiently trustworthy for purposes of
admitting them as statements against penal interest.
15
16
17
18
19
Garcia-Santos’s use of the personal pronouns “us,” “we,” and “our” in his text
messages, without specifically identifying the persons to whom he was referring,
did not render his statements too ambiguous to be trustworthy for purposes of the
hearsay exception at issue under any authority [Petitioner] cites or of which we are
aware. Presumably, Garcia-Santos and Viri knew to who Garcia-Santos was
referring and his statements would not have been ambiguous to them. Moreover,
they were specific enough to indicate Garcia-Santos was involved in the underlying
shooting incident for which Toscano had been, in Garcia-Santos’s words, “locked
up.” Whether Garcia-Santos’s self-implicating statements were, in fact, referring
20
21
22
23
24
25
19
26
27
28
Pursuant to California Evidence Code 1230,
Evidence of a statement by a declarant having sufficient knowledge of the subject is not made
inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when
made, . . . so far subjected him to the risk of civil or criminal liability, . . . that a reasonable man in
his position would not have made the statement unless he believed it to be true.
47
1
2
3
4
5
6
7
to the shooting incident or the other appellants was a question for the jury to decide;
however, there was certainly enough circumstantial evidence for the jury to answer
that question in the affirmative. It was not an abuse of discretion, therefore, for the
trial court to conclude that Garcia-Santos’s text messages were not too ambiguous
but sufficiently trustworthy for purposes of admitting them as declarations against
penal interest.
Lodged Doc. 13 at 31-33.
2. Admission of the Text Messages Between Co-Defendant Garcia-Santos and
His Girlfriend Did Not Violate Petitioner’s Due Process Rights
8
Issues regarding the admission of evidence are matters of state law, generally outside the
9
purview of a federal habeas court. Holley, 568 F.3d at 1101. "The admission of evidence does
10
11
not provide a basis for habeas relief unless it rendered the trial fundamentally unfair in violation
of due process." Johnson, 63 F.3d at 930. "[T]he Due Process Clause does not permit the federal
12
13
14
courts to engage in a finely tuned review of the wisdom of state evidentiary rules." Marshall v.
Lonberger, 459 U.S. at 438 n. 6.
15
"Although the [U.S. Supreme] Court has been clear that a writ should be issued when
16
constitutional errors have rendered the trial fundamentally unfair, see Williams, 529 U.S. at 375 .
17
. ., it has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence
18
constitutes a due process violation sufficient to warrant issuance of the writ." Holley, 568 F.3d at
19
1101. Therefore, the Court of Appeal could not have contravened federal law through the
20
21
admission of the text message evidence when federal law is not clearly established. Knowles, 556
22
U.S. at 122 ([T]his Court has held on numerous occasions that it is not ‘an unreasonable application
23
of’ ‘clearly established Federal law’ for a state court to decline to apply a specific legal rule that
24
has not been squarely established by this Court.”).
25
26
27
Petitioner also contends, “[a]lthough these statements did not qualify as testimonial hearsay
under Crawford v. Washington[‘s] . . . Sixth Amendment Analysis, nevertheless as part of
[Petitioner’s] basic right to a fair trial, these should not have been admitted because they were not
28
48
1
trustworthy.” (Doc. 17 at 37-38) (internal citation omitted). The Sixth Amendment to the United
2
States Constitution grants a criminal defendant the right “to be confronted with the witnesses
3
against him.” The Confrontation Clause bars “admission of testimonial statements of a witness
4
who did not appear at trial unless he was unavailable to testify, and the defendant . . . had a prior
5
6
opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54 (2004).
7
The Supreme Court has also interpreted the Confrontation Clause to permit admission of
8
out-of-court statements by an unavailable witness, if the statements bore “adequate indicia of
9
reliability.” Ohio v. Roberts, 448 U.S. 56, 66 (1980). “Reliability can be inferred without more in
10
a case where the evidence falls within a firmly rooted hearsay exception,” or there is a showing of
11
“particularized guarantees of trustworthiness.” Id.
12
13
14
Here, the Court of Appeal’s determination that the statements were trustworthy was not
unreasonable. Petitioner argues the text messages were not trustworthy because Garcia-Santos
15
wrote, “he was with us when we did that,” and “Cause we[’]re all talking about our [alibis],” but
16
did not identify who he was referring to when he wrote “we.” (Lodged Doc. 13 at 31.) Petitioner
17
does not explain why the text messages are not trustworthy because the “we” was not identified.
18
19
Nor does Petitioner cite any federal cases involving the Confrontation Clause. See Jones v. Gomez,
66 F.3d 199, 204 (1995) (“It is well-settled that conclusory allegations which are not supported by
20
21
22
a statement of specific facts do not warrant habeas relief.”) (internal quotation marks and alteration
omitted).
23
In any event, admission of the text messages did not render Petitioner’s trial fundamentally
24
unfair. As with the text messages between the Loma Bakers gang members, the text messages
25
between Garcia-Santos and his girlfriend were cumulative of other evidence adduced at trial. The
26
text messages showed that Toscano was present when the shooting took place, that Garcia-Santos
27
was with him, and that Garcia-Santos was talking with other people about an alibi. Petitioner has
28
49
1
not shown that the admission of the text messages had a “substantial and injurious effect” on the
2
verdict. Consequently, the Court recommends dismissing this claim.
3
4
VIII. Admission of Gang Expert Testimony
In his sixth ground for habeas relief, Petitioner alleges that Hudson, the gang
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6
7
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expert, gave improper testimony that Petitioner must have known co-defendant Toscano had a gun.
(Doc. 17 at 38.) Specifically, Petitioner contends Hudson “may not opine that a specific individual
has a specific knowledge or possessed a specific intent. Id. (citing People v. Killebrew, 103 Cal.
App. 4th 644, 658 (2002)).20 Respondent counters there is no clearly established authority from
the United States Supreme Court holding that expert testimony on a defendant’s subjective intent
is unconstitutional. (Doc. 23 at 60-61.)
12
A. State Court of Appeal Opinion
13
The Court of Appeal denied Petitioner’s claim that Hudson’s testimony was improper:
14
Garcia[-]Santos and [Petitioner] contend that the trial court erred in permitting the
prosecution’s gang expert to render, over defense objections, an improper opinion
about their subjective knowledge of Toscano’s weapon in violation of principles
set forth in this court’s opinion in Killebrew, supra, 103 Cal.App.4th at page 657.
Hudson testified in relevant part as follows:
15
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19
“[THE PROSECUTOR:] Q. Do you have any training about whether or not when
one person has a firearm, whether the other gang
members know about it?
20
“[HUDSON:]
21
“Q.
What’s that training?
22
“A.
Training would include the conferences I spoke about earlier when we go
to gang conferences, information passed along during meetings. I’ve also
had training directly related to when I’ve spoken to actual gang members
about whether or not they would be aware of other members possessing
guns, what would they expect, what would they do in that situation.
18
23
24
A. Yes, ma’am.
25
26
27
The Court of Appeal held that a gang expert may not testify “that a specific individual had specific knowledge or
possess a specific intent.” Killebrew, 103 Cal. App. at 658.
20
28
50
1
“Q.
About how many gang members do you think you’ve talked to about that?
2
“A.
Dozens. I couldn’t give you an exact number, ma’am but I’ve talked to –
that’s one of the primary questions I ask gang members when I speak with
them if I can get to that point with talking to them.
“Q.
So that’s a pretty important concept.
“A.
To me it is, yes.
“Q.
So you’ve been trained about that concept and you’ve talked to gang
members about that concept?
“A.
Yes, ma’am.
“Q.
And have you previously testified about that concept?
11
“A.
Yes ma’am. [¶] . . . [¶]
12
“Q.
I’d like you to assume the following: That we have one gang member going
with other gang members to commit a crime, so they’re traveling together.
“A.
Okay.
“Q.
And one gang member is armed. Do rules govern as to whether that gang
member who is armed has to tell the other that he is armed?
“A.
Yes.
“Q.
Tell us about those rules that govern that type of concept.
“A.
From my contacts with gang members, they would expect to be told about
the firearm to know where it is in case of a defensive or offensive is needed,
they would be able to acquire that gun if the person that had it was unable
to use it.
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“Not only further, they would also expect them to tell them because if they
get stopped, they need to know about that gun. Someone in the car might
be on parole, might get charged with it. They’re going to discuss that.
24
“And further, they’re going to expect each other to know about it.
22
25
“Q.
All right. So if one person is armed, generally the other gang members are
going to know about it. [¶] . . . [¶]
“A.
Hypothetically. Generally, yes. [¶] . . . [¶]
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1
“Q.
Would it be considered, sir, hypothetically, of course, disrespectful if the
person who is carrying a gun didn’t tell the others about it?
“A.
If they were going somewhere together in that situation as I described, yes,
it would be considered disrespectful.
“Q.
Why would it be disrespectful?
“A.
Because you could put the other people in the car in a situation without their
knowledge of it.
“Q.
And this applies to something – does it apply to more than cars?
“A.
Sure. It could apply to if they were all going to a specific location together
or meeting somewhere, commonly if someone goes somewhere, especially
when you’re dealing with a gang, usually the – my experience has been that
the individuals, even without having to tell them, will know that they have
a gun because they’ve told them in the past because they usually will brag
about it. So everyone’s going to know they have a gun in that clique
anyways, but they’re generally going to tell the people that are in the gang
that don’t know hey, I’ve got a gun on me, we’re going here. If something
happens, this is where it’s at.
“Q.
Is this true in Sureno street gangs?
“A.
Yes, ma’am.
“Q.
And specifically the Loma [Baker gang]?
“A.
Yes ma’am.”
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7
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The trial court properly admitted this testimony. “The requirements for expert
testimony are that it relate to a subject sufficiently beyond common experience as
to assist the trier of fact and be based on matter that is reasonably relied upon by an
expert in forming an opinion on the subject to which his or her testimony relates. [
] Such evidence is admissible even though it encompasses the ultimate issue in the
case.” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1371.) “Since at least 1980,
our courts have recognized that evidence of gang sociology and psychology is
beyond common experience and thus a proper subject for expert testimony. [ ] [¶]
The People are entitled to ‘introduce evidence of gang affiliation and activity where
such evidence is relevant to an issue of motive or intent.’” (People v. Gonzalez
(2005) 126 Cal.App.4th 1539, 1550; see also People v. Olguin, supra, at pp. 13691370.)
Garcia-Santos and [Petitioner] contend that, although masked as a hypothetical,
Hudson’s testimony essentially opined that they each had specific knowledge of
Toscano’s weapon, as ruled improper in Killebrew, supra, 103 Cal.App.4th at pages
657-658. However, in Killebrew, this court drew the crucial distinction between
52
permissible expert testimony as to “the expectations of gang members in general
when confronted with a specific action” (id. at p. 658) and impermissible testimony
as to what a defendant was actually thinking during commission of a crime – the
expert “testified to the subjective knowledge and intent of each occupant in each
vehicle.” (Id. at p. 658, italics omitted.) The record does not support appellants’
position because, in the challenged instances, Hudson was testifying as to the
expectations of a typical gang member in various situations as permitted under
Killebrew. As this court explained: “Testimony that . . . gangs would travel in large
groups if expecting trouble, that in a confrontation more than one gang member
may share a gun in some identified circumstances, and that oftentimes gang
members traveling together may know if one of their group is armed, would have
been admissible.” (Killebrew, supra, 103 Cal.App.4th at p. 658.) The same is true
of Hudson’s testimony in this case.
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5
6
7
8
9
Lodged Doc. 13 at 27-30.
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B. Admission of the Hudson’s Testimony Did Not Violate Petitioner’s Due Process
Rights
12
Issues regarding the admission of evidence are matters of state law, generally outside the
13
purview of a federal habeas court. Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009).
14
15
"The admission of evidence does not provide a basis for habeas relief unless it rendered the trial
fundamentally unfair in violation of due process." Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir.
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1995). "[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned
review of the wisdom of state evidentiary rules." Marshall v. Lonberger, 459 U.S. 422, 438 n. 6
(1983).
"Although the [U.S. Supreme] Court has been clear that a writ should be issued when
constitutional errors have rendered the trial fundamentally unfair, see Williams, 529 U.S. at 375
. . ., it has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence
23
constitutes a due process violation sufficient to warrant issuance of the writ." Holley, 568 F.3d at
24
25
1101. Therefore, the Court of Appeal could not have contravened federal law through the
26
admission of the text message evidence when federal law is not clearly established. Knowles v.
27
Mirzayance, 556 U.S. 111, 122 (2009) ([T]his Court has held on numerous occasions that it is not
28
‘an unreasonable application of’ ‘clearly established Federal law’ for a state court to decline to
53
1
apply a specific legal rule that has not been squarely established by this Court.”).
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3
Petitioner is entitled to habeas relief if the admission of evidence “is so extremely unfair
that its admission violates fundamental conceptions of justice.” Perry v. New Hampshire, 565 U.S.
4
228, 237 (2012). A due process violation occurs only if there are no permissible inferences that the
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6
jury may draw from the evidence. Id. Here, Hudson did not testify to Petitioner’s subjective
7
knowledge or intent regarding whether co-defendant Toscano was armed. Instead, he testified
8
about the customs of gang members in general, and whether it would be expected for a gang
9
member to advise other gang members if he were armed. Because there was no due process
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violation, the Court recommends denying the claim.
IX.
The State Court Did Not Err in Rejecting Petitioner’s Equal Protection Claim
12
In his seventh claim for relief, Petitioner contends the imposition of sentencing
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14
enhancements violated his right to equal protection of the law. (Doc. 17 at 40-43.) Specifically,
15
Petitioner alleges California Penal Code §§ 12022.53(d) and (e)21 denied him “equal protection of
16
the law because they impose drastically greater punishment upon aiders and abettors of street gang
17
crimes than on those who aid and abet other crimes.” Id. at 40-41. Respondent counters that the
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Court of Appeal was not objectively unreasonable in rejecting Petitioner’s equal protection claim.
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(Doc. 23 at 67.)
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Pursuant to California Penal Code § 12022.53(d),
any person who, in the commission of a felony specified . . ., personally and intentionally discharges
a firearm and proximately causes great bodily injury, . . ., to any person other than an accomplice,
shall be punished by an additional and consecutive term of imprisonment in the state prison for 25
years to life.
California Penal Code § 12022.53(e)(1) provides,
The enhancements provided in this section shall apply to any person who is a principal in the
commission of an offense if both of the following are pled and proved:
(A) The person violated subdivision (b) of Section 186.22.
(B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).
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1
A. State Court of Appeal Opinion
2
The Court of Appeal rejected Petitioner’s equal protection claim:
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No evidence was presented at trial that any of the appellants other than Toscano
shot Gerardo. Nevertheless, the sentence of each was enhanced by a term of 25
years to life in prison pursuant to section 12022.53, subdivisions (d) and (e)(1).
FN15 [Petitioner] now contends subdivision (e)(1) of section 12022.53 violates his
right to equal protection of the laws by treating aiders and abettors of shootings
committed for the benefit of a criminal street gang differently from aiders and
abettors of shootings committed in concert by criminal organizations or groups not
defined as street gangs. . . . As we shall explain, the courts in People v. Gonzales
(2001) 87 Cal.App.4th 1 (Gonzales) and People v. Hernandez (2005) 134
Cal.App.4th 474 (Hernandez) have already rejected [Petitioner’s] argument, and
we find no basis to depart from this established authority. FN16
FN15 Section 12022.53 provides, in pertinent part: “(d) Notwithstanding
any other provision of law, any person who, in the commission of a
[specified felony including murder], personally and intentionally discharges
a firearm and proximately causes . . . death, to any person other than an
accomplice, shall be punished by an additional and consecutive term of
imprisonment in the state prison for 25 years to life. [¶] (e) [¶] (1) The
enhancements provided in this section shall apply to any person who is a
principal in the commission of an offense if both of the following are pled
and proved: [¶] (A) The person violated subdivision (b) of Section 186.22.
[¶] (B) Any principal in the offense committed any act specified in
subdivision . . . (d).”
FN16 This type of challenge to the constitutionality of a statute may be
raised for the first time on appeal. (People v. Letner and Tobin (2010) 50
Cal.4th 99, 200; see also People v. Lord (1994) 30 Cal.App.4th 1718, 1722,
fn. 2.) Accordingly, we reject the People’s argument the claim was forfeited
by appellants’ failure to object in the trial court.
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“The constitutional guaranty of equal protection of the laws has been judicially
defined to mean that no person or class of persons shall be denied the same
protection of the laws which is enjoyed by other persons or other classes in like
circumstances in their lives, liberty and property and in their pursuit of happiness.
[ ] The concept recognizes that persons similarly situated with respect to the
legitimate purpose of the law receive like treatment, but it does not, however,
require absolute equality. [ ] Accordingly, a state may provide for differences as
long as the result does not amount to invidious discrimination.” (People v. Romo
(1975) 14 Cal.3d 189, 196.)
“‘“The first prerequisite to a meritorious claim under the equal protection clause is
a showing that the state has adopted a classification that affects two or more
similarly situated groups in an unequal manner.”’” (People v. Miranda (2011) 199
Cal.App.4th 1403, 1427.) “If persons are not similarly situated for purposes of the
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law, an equal protection claim fails at the threshold.” (People v. Buffington (1999)
74 Cal.App.4th 1149, 1155.) The court in Gonzalez, supra, 87 Cal.App.4th at page
13 rejected the argument that an aider and abettor of a gang member who discharges
a firearm is similarly situated to an aider and abettor of a firearm user who is not a
member of a criminal street gang. The court explained that “[u]nlike other aiders
and abettors who have encouraged the commission of a target offense resulting in
a murder, defendants committed their crime with the purpose of promoting and
furthering their street gang in its criminal conduct. . . . [¶] Defendants were not
similarly situated with other aiders and abettors, and on that basis, their equal
argument fails.” (Ibid.)
But even if [Petitioner] could show that he was similarly situated with aiders and
abettors of nongang members, “‘a second level of analysis is required. If the law
in question impinges on the exercise of a fundamental right, it is subject to strict
scrutiny and will be upheld only if it is necessary to further a compelling state
interest. All other legislation satisfies the requirements of equal protection if it
bears a rational relationship to a legitimate state purpose.’” (Gonzalez, supra, 87
Cal.App.4th at pp. 12-13.) Though [Petitioner] contends aiding and abetting a gang
shooting involves the exercise of a fundamental right subject to strict scrutiny, the
court in Hernandez, supra, 134 Cal.App.4th at page 483 determined that rational
basis review was the appropriate test to resolve an equal protection challenge to
section 12022.53, subdivision (e)(1). The rational basis test typically applies to an
equal protection challenge to a criminal statutory scheme where there is no claim
that the classification at issue involves a suspect class or harsher treatment for a
juvenile than an adult. (People v. Wilkinson (2004) 33 Cal.4th 821, 838
(Wilkerson).)
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The court in Hernandez, supra, 134 Cal.App.4th at page 483, further concluded
that the enhancement provided by section 12022.53, subdivision (e)(1) satisfied the
rational basis test: “Clearly the Legislature had a rational basis for imposing a 25years-to-life enhancement on one who aids and abets a gang-related murder in
which the perpetrator uses a gun, regardless of the relationship between the aider
and abettor and the perpetrator. As we previously observed, the purpose of this
enhancement is to reduce through punishment and deterrence ‘the serious threats
posed to the citizens of California by gang members using firearms.’ One way to
accomplish this purpose is to punish equally with the perpetrator a person who,
acting with knowledge of the perpetrator’s criminal purpose, promotes, encourages
or assists the perpetrator to commit the murder.” (Hernandez, at p. 483, fn.
omitted.)
Citing People v. Olivas (1976) 17 Cal.3d 236 (Olivas), [Petitioner] argues that we
should not adopt the rational basis test endorsed by Hernandez, supra, 134
Cal.App.4th 474. [Petitioner’s] argument is contrary to law. In Wilkinson, supra,
33 Cal.4th 821, the California Supreme Court held that the statutory scheme
governing the offense of battery on a custodial officer did not violate equal
protection principles. (Id. at pp. 838-841.) In reaching its conclusion, the court
rejected the defendant’s argument that strict scrutiny was required according to
Olivas, a case involving an equal protection challenge to a statute which gave the
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8
trial court discretion to commit a defendant, convicted as an adult and between the
ages of 16 and 21, to the California Youth Authority for a longer term than the
defendant would have received if he or she had been sentenced as an adult. (See
Wilkinson, at p. 837.) The scrutiny is required for an equal protection challenge on
the grounds a penal statute authorizes different sentences for comparable offense.
The court explained that justice systems be rigorously maintained. We do not read
Olivas as requiring the courts to subject all criminal classifications to strict scrutiny
requiring the showing of a compelling state interest therefor.’ [ ] Other courts
similarly have concluded that a broad reading of Olivas, as advocated by defendant
here, would ‘intrude[ ] too heavily on the police power and the Legislature’s
prerogative to set criminal justice policy.’” (Wilkinson, at pp. 837-838.)
Accordingly, the rational basis test applied in Hernandez is applicable and results
in the conclusion that section 12022.53, subdivision (e)(1) does not violate equal
protection principles.
9
10
Lodged Doc. At 45-49.
11
B. Denial of Petitioner’s Equal Protection Claim Was Not Objectively Unreasonable
12
Petitioner claims California Penal Code § 12022.53(d), which requires the imposition of a
13
consecutive term of twenty-five years to life for any defendant who personally and intentionally
14
discharged a firearm that causes the victim’s death, violates his right to equal protection.
15
The Equal Protection Clause “is essentially a direction that all persons similarly situated
16
17
18
should be treated alike.” Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Pyler
v. Doe, 457 U.S. 202, 216 (1982)). “If a legislative classification or distinction ‘neither burdens a
19
fundamental right nor targets a suspect class, we will uphold [it] so long as it bears a rational relation
20
to some legitimate end.’” Vacco v. Quill, 521 U.S. 793, 799 (1997) (quoting Romer v. Evans, 517
21
U.S> 620, 631 (1996)).
22
“For statutory challenges made on Equal Protection grounds, ‘the general rule is that
23
legislation is presumed to be valid and will be sustained if the classification drawn by the statute is
24
25
rationally related to a governmental interest.’” Robinson v. Marshall, 66 F.3d 249, 251 (9th Cir.
26
1995) (quoting United States v. Harding, 971 F.2d 410, 42 (9th Cir. 1992)). A legislative
27
distinction made for sentencing purposes “must be upheld against [an] equal protection challenge
28
if there is any reasonably conceivable state of facts that could provide a rational basis for the
57
1
classification.” United States v. Ellsworth, 456 F.3d 1146, 1150 (9th Cir. 2006) (quoting FCC v.
2
Beach Commc’ns, 508 U.S. 307, 313 (1993)) (internal quotation marks omitted) (emphasis in
3
original).
4
Even assuming Petitioner has shown he is subject to different treatment than defendants
5
6
similarly situated to him under California Penal Code § 12022.53, Petitioner has not satisfied the
7
heavy burden of showing that the statutory distinction lacked a rational basis. As the Court of
8
Appeal observed, California has a legitimate interest in reducing the use of firearms by gang
9
members. See People v. Garcia, 28 Cal. 4th 1166, 1172 (2002) (in drafting § 12022.53(e)(1), the
10
California legislature intended to “severely punish aiders and abettors to crimes by a principal
11
armed with a gun committed in furtherance of the purposes of a criminal street gang” and did so
12
13
14
“in recognition of the serious threats posed to the citizens of California by gang members using
firearms”) (quoting People v. Gonzales, 87 Cal. App. 4th 1, 19 (2001)).
15
California could have rationally concluded that the use of firearms by gang members could
16
be reduced by punishing and deterring those who aid and abet murders committed by gang members
17
in which the perpetrator uses a gun. Hernandez v. Haws, No. CV 07-2140 CJC (CW), 2011 WL
18
1898205, at *11 (C.D. Cal. Feb. 9, 2011) (citing People v. Hernandez, 134 Cal. App. 4th 474, 483
19
(2005)).
20
The Court of Appeal’s rejection of Petitioner’s Equal Protection Clause claim was neither
21
22
contrary to nor an unreasonable application of clearly established Supreme Court law; therefore,
23
the Court recommends denying Petitioner’s claim.
24
X.
25
26
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. Cockrell,
27
537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate
28
58
1
of appealability is 28 U.S.C. § 2253, which provides:
2
(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.
3
4
(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.
5
6
7
(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—
8
9
(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
10
(B) the final order in a proceeding under section 2255.
11
(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.
12
13
15
(3) The certificate of appealability under paragraph (1) shall indicate which
specific issues or issues satisfy the showing required by paragraph (2).
If a court denies a habeas petition, the court may only issue a certificate of appealability "if
16
jurists of reason could disagree with the district court's resolution of his constitutional claims or that
17
jurists could conclude the issues presented are adequate to deserve encouragement to proceed
14
18
further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the
19
petitioner is not required to prove the merits of his case, he must demonstrate "something more than
20
21
22
the absence of frivolity or the existence of mere good faith on his . . . part." Miller-El, 537 U.S.
at 338.
23
Reasonable jurists would not find the Court's determination that Petitioner is not entitled to
24
federal habeas corpus relief to be debatable or wrong, or conclude that the issues presented required
25
further adjudication. Accordingly, the Court recommends declining to issue a certificate of
26
appealability.
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XI.
2
3
Conclusion and Recommendation
Based on the foregoing, the undersigned recommends that the Court deny the Petition for
writ of habeas corpus with prejudice and decline to issue a certificate of appealability.
4
These Findings and Recommendations will be submitted to the United States District Judge
5
6
assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty (30) days
7
after being served with these Findings and Recommendations, either party may file written
8
objections with the Court. The document should be captioned AObjections to Magistrate Judge=s
9
Findings and Recommendations.@ Replies to the objections, if any, shall be served and filed within
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11
fourteen (14) days after service of the objections. The parties are advised that failure to file
objections within the specified time may constitute waiver of the right to appeal the District Court's
12
13
14
order. Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v. Sullivan, 923
F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
August 6, 2018
/s/
Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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