(HC) Duenas v. Allen

Filing 23

FINDINGS and RECOMMENDATIONS Recommending Denial of Petition for Writ of Habeas Corpus signed by Magistrate Judge Stanley A. Boone on 03/06/2025. Referred to Judge Sherriff; Objections to F&R due within Thirty-Days. (Deputy Clerk EF)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GUSTAVO ADOLFO DUENAS,

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Case No. 1:24-cv-00335-KES-SAB-HC

Petitioner,

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v.

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TRENT ALLEN,

FINDINGS AND RECOMMENDATION
RECOMMENDING DENIAL OF PETITION
FOR WRIT OF HABEAS CORPUS

Respondent.

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

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16 pursuant to 28 U.S.C. § 2254.
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I.

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BACKGROUND
On March 1, 2018, Petitioner was convicted after a jury trial in the Fresno County

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20 Superior Court of two counts of second-degree murder. (2 CT 506, 508.) On December 9, 2019,
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21 Petitioner was sentenced to two consecutive terms of fifteen years to life. (17 RT 4808.) On

22 October 7, 2022, the California Court of Appeal, Fifth Appellate District remanded to the
23 sentencing court to amend the abstract of judgment to reflect the correct custody credit and
24 affirmed the judgment in all other respects. People v. Duenas, No. F080481, 2022 WL 5434451,
25 at *20 (Cal. Ct. App. Oct. 7, 2022). On December 21, 2022, the California Supreme Court denied
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26 the petition for review. (LDs 30, 31.)

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“CT” refers to the Clerk’s Transcript on Appeal lodged by Respondent on September 27, 2024. (ECF No. 21.)
“RT” refers to the Reporter’s Transcript on Appeal lodged Respondent on September 27, 2024. (ECF No. 21.)
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“LD” refers to the documents lodged by Respondent on September 27, 2024. (ECF No. 21.)
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On March 20, 2024, Petitioner commenced the instant action by filing a petition for writ

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2 of habeas corpus. (ECF No. 1.) On August 9, 2024, Petitioner filed a third amended petition
3 (“TAP”) raising a sufficiency of the evidence claim. (ECF No. 13.) On October 8, 2024,
4 Respondent filed an answer. (ECF No. 22.) To date, no traverse has been filed, and the time for
5 doing so has passed.
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II.

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STATEMENT OF FACTS4

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A jury acquitted defendant Gustavo Adolfo Duenas5 of first degree murder for his
role in the deaths of Calvin Lamar Reese and Jose Nunez Duenas on March 1,
2018, but convicted him of second degree murder as to both victims.

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....

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I. Prosecution evidence.

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A. Law Enforcement Response to Apartments at East Balch and South
Winery Avenues

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On December 6, 2014, Officers Miguel Archan and Michael Pierce, employed by
the Fresno Police Department, were leaving a domestic disturbance call at the
apartments located at East Balch and South Winery Avenues in Fresno (the
corner), when they were dispatched back to the same location at 7:30 p.m. to
respond to a shooting. When Archan received the call, the officers were a few
blocks away in their vehicle, having cleared the domestic disturbance call at 7:28
p.m.

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The officers responded to the earlier domestic disturbance call at 6:43 p.m.
Duenas was standing on the balcony outside the apartment when they arrived and
appeared to be under the influence but was not armed. Archan contacted Duenas’s
estranged wife and his son at the apartment.6 At the conclusion of the call,
defendant agreed to transport his father, Duenas, from the area. Archan followed
behind Duenas and defendant when they left, but not see them enter any vehicle.

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Upon returning to the area, Archan did not observe anyone running from the area.
The officers saw a group of people near a victim in the middle of the street on
East Balch Avenue. The officers were then advised of a second victim located
behind some rocks. Archan responded to the victim in the middle of the street,
later identified as 25-year-old Reese. Archan identified the area where he found

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The Court relies on the California Court of Appeal’s October 7, 2022 opinion for this summary of the facts of the

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We will refer to Gustavo Adolfo Duenas as defendant to avoid confusion with his father, victim Jose Nunez

25 crime. See Vasquez v. Kirkland, 572 F.3d 1029, 1031 n.1 (9th Cir. 2009).
26 Duenas, whom we shall refer to by his surname.
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Archan testified that Maricella G. (Duenas’s estranged wife), Duenas’s son, and a young woman were in the

27 apartment when he arrived, but he did know if defendant was the son. Defendant’s mother, Maricella, testified that
her son, Francisco, was at the apartment but did not include defendant when listing the individuals present during

28 the call. However, she did testify that defendant escorted Duenas from the apartment.
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Reese on East Balch Avenue, indicated on exhibit 1 by three circles labeled 11
through 13 as set forth below:

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Archan testified that Reese’s location was not illuminated by a streetlight and the
lighting conditions were moderate to minimal. Reese was lying face down, his
head pointing east, with blood coming out of his mouth. Archan heard Reese
make a noise and thought Reese was trying to talk. Reese’s shoes were near him
on the street. Reese was unresponsive and, when Archan turned Reese over,
Archan noticed that Reese had gunshot wounds to his shoulder and chest. Archan
began CPR and continued until another officer and emergency medical services
arrived.

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Pierce stayed with the victim near the large rocks on the southeast side of the
corner, later identified as Duenas, who was the subject of the domestic
disturbance call. Duenas was lying face down, his head near the rocks and
pointing southeast, and Pierce could see that Duenas had a hole in the back of his
head that was bleeding. Pierce commenced CPR when he could not find Duenas’s
pulse. During that time, Pierce heard someone say, “Why did you shoot my dad?”
Archan estimated that the two victims were lying approximately 20 to 30 yards
from each other. Ambulances transported both Reese and Duenas to a hospital.
Reese was pronounced dead at 8:56 p.m. on December 6, 2014. Duenas had no
brain activity and was on life support to preserve his organs for donation.

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According to Reese’s fiancé of five years, Shanika C., she and Reese shared an
apartment near the corner, east of the intersection on the south side of East Balch
Avenue. At approximately 7:30 p.m., on December 6, 2014, Reese left the
apartment to walk to the store to purchase something to drink for dinner. The
store was just a few minutes away, and Shanika expected Reese to be back after
approximately five minutes.7 Before Reese returned, Shanika heard two gunshots,
and she went outside. Although her apartment was located on East Balch Avenue,
she did not see anything and went back into her apartment to wait for Reese.

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Upon observing police cars in the street, Shanika walked to the corner and saw a
commotion and an older man (Duenas) lying on the ground. Shanika then noticed
paramedics surrounding someone else in the street in the other direction. She saw
that it was Reese, but officers prevented her from getting close to him. Later that
evening, Shanika learned that Reese had died. Shanika spoke with police and
initially thought Reese’s wallet had been taken but, a week later, she found the
wallet in Reese’s sweatpants at the apartment.

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B. Crime Scene Investigation
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Sergeant Daniel Vandersluis and crime scene technicians responded to the corner
to investigate, diagram and photograph the area, and collect evidence. During this
time, no members of the public were permitted into the area and no vehicles were
allowed to enter or leave. A diagram of the crime scene (exhibit 1, ante, p. 4) was
prepared and reflects the buildings, the locations and license plates of vehicles
parked on the street, and the locations of evidence stand numbers.

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Evidence stands 4 through 10 were placed on the southeast side of the corner near
the rocks where Duenas was found. Technicians recovered the casing from a ninemillimeter bullet near the curb, indicated by stand 4.

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Evidence stands 6 through 9 were placed on an embankment on the corner and
close to a puddle of blood near the area where Duenas’s head had been lying.
Technicians found a second nine-millimeter expended bullet casing, designated
by stand 7, and made by the same manufacturer as the casing found at stand 4.
The casings were found approximately three or four feet apart. No fingerprints
were found on either casing. No additional casings, bullet strikes, or bullets were
found during a later search of the crime scene.

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Michael Appel, a senior criminalist with the Department of Justice, testified that
he analyzed firearm and toolmark evidence and firearm ammunition components.
He examined the two nine-millimeter casings and concluded that they were fired
by the same weapon.

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Technicians also found a tire jack handle near Duenas’s blood, indicated by
evidence stand 6, and recovered DNA but no fingerprints from it. Mindy Crow,
another senior criminalist with the Department of Justice, identified Duenas’s
DNA on the handle.

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Technicians recovered eyeglasses and folded currency from this area but were
unable to recover any fingerprints from the money. Further away from the rock
area, but on the same corner, technicians found a bullwhip, identified by evidence
stand 10.

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Terry S. testified that the store was two blocks down Winery.

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Evidence stands 11, 12, and 13 indicate the location of clothing items found at the
scene in the area where Reese had been lying. Vandersluis observed blood, vomit,
and clothing in this area. The clothing included athletic shoes, sweatpants, a cut
T-shirt, a back brace, and a hat. The clothing had been torn or cut off and was
soaked in blood.
Crow examined Reese’s clothing to determine whether she could obtain DNA
from someone other than Reese because she had been advised to search for saliva.
She developed DNA profiles for Reese from a sample of his blood and profiles
for defendant and [codefendant Jorge M.] Rodriguez from cells obtained from
inside their mouths.
Crow examined Reese’s sweatpants, shoes, black T-shirt, baseball cap, and plaid
shirt. Due the presence of blood on the baseball cap, T-shirt, and plaid shirt, Crow
was unable to obtain a DNA stain for comparison. Crow did obtain three DNA
stains from Reese’s shoes and four DNA stains from his sweatpants. Crow was
able to exclude defendant and Rodriguez as contributing to one stain from the
sweatpants, but due to the clarity of the other DNA stains, she was unable to
conclusively interpret whose DNA was present.
Technicians photographed a white truck on South Winery Avenue, located just
north of the apartment’s main parking lot, and a broken glass bottle located near
the truck, identified by evidence stands 1 through 3. Sergeant Adrian Alvarez, the
Fresno Police Department lead detective on the case, testified he believed the
truck was registered to Duenas. Technicians observed a tire jack, indicated by
stand 14, behind the front seat and within the cab area of the truck. Vandersluis
removed the tire jack because a tire jack handle had been found near Duenas’s
body. Detective Vandersluis testified that it appeared that the handle found near
Duenas was a counterpart to the tire jack found in the white truck. The truck was
towed from the crime scene.

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Vandersluis also investigated the various lighting sources found throughout the
crime scene and documented a total of 15 sources. The streets were illuminated
with streetlights, which were all operational. The apartment buildings had
attached lights at the door and patio areas, although the lights were under the
occupants’ control so Vandersluis did not know if they were illuminated during
the murders. The only other light source was the apartment complex’s sign
located on the north side of the corner. The corner was fairly well lit. The area
where Reese was found was not as well lit as the corner.
Alvarez testified that lighting was minimal, but he could see the street and the
cars in the roadway and the lighting was sufficient to permit identification of
individuals within 25 yards. As part of his duties, Alvarez requested that
additional crime scene technicians respond to the crime scene and photograph the
area during daylight hours. Additional photographs were taken specifically to
obtain a view of the corner from the area where the white truck registered to
Duenas had been parked during the crime.
Alvarez identified surveillance cameras attached to the apartments and
determined that were not functioning. The manager of the apartment complex
testified that they had been inoperative for several years.
Alvarez also testified that Rodriguez stated that he was parked in a vehicle behind
the white truck at the time of the shooting.

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C. Shooting Witnesses
1. Miguel F.
Miguel F. testified that on December 6, 2014, he was in the back seat of a vehicle
with his brothers returning home after dinner. Miguel testified that they were
traveling north on South Winery Avenue and then east on East Balch Avenue and
identified the corner where the murders occurred in exhibit 1. He saw an AfricanAmerican male (Reese) lying face down in the middle of the road on East Balch
Avenue. Miguel checked on Reese and observed blood and a wound on Reese’s
chest. Reese spoke and told Miguel that he was cold. Miguel testified that Reese
was coughing. After seeing that Reese was bleeding, Miguel called 911.

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Miguel did not see a weapon near Reese and did not hear any gunshots. He did
not see anyone else near Reese. Miguel did not know that there was a second
victim until after the police arrived.

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2. Lucas E.
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Lucas E. testified that he lived with his brother and stepfather in a second-floor
apartment at 540 South Winery Avenue, on the corner, and identified the location
in exhibit 1. Lucas was sitting on the couch in the living room when he heard the
first shot on the night of the murders. He heard a second gunshot two or three
seconds later and went out to the balcony through the sliding glass door. He only
heard the two shots. The couch was next to the balcony door, which was already
open, and he was outside within five seconds. The balcony’s view was straight to
the corner.
From the balcony, Lucas saw one man running and then just drop (Reese) and a
man chasing Reese. The man was in his early twenties, thin, bald, and wearing a
red shirt. Lucas testified that he looked like he had shaved his head. The man
stood over Reese, looked at him, kicked him, spat on him, and called him “a bitch
ass nigga.” Lucas viewed the man from an angle and could clearly see he was
holding a gun in his hand.

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Lucas knew that the man spat on Reese because of the manner in which the man’s
head moved and the noise that resulted. Lucas knew the man kicked Reese
because he saw the man kick at Reese’s body.

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Lucas noticed a second man standing on the sidewalk but, because the man stood
outside of the light, Lucas could not see him very well. Lucas could see part of the
man’s body and that allowed him to conclude the individual was a man. The
second man stood the whole time and did not appear to pay attention to anyone
other than the first man holding the gun and Reese.
Lucas testified that the second man asked, “[D]id you get him?” The first man
responded, “[Y]eah, let’s go.” The second man on the sidewalk left first, followed
by the first man who had been standing in the street by Reese, and they both ran
close together in the same direction. The two men ran down South Winery
Avenue with space between them but not too far apart.

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Lucas did not see Reese move at any point. After he lost sight of the two men,
Lucas saw a few cars drive around Reese before seeing one stop; someone got out
and used their cell phone to call 911 for help. Lucas continued to watch as the
police and ambulances arrived. He never saw anyone take anything from Reese.

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Lucas did not see anyone else in the area besides Reese and the two men until
after the two men ran away. Lucas later learned that a second individual had been
shot on the corner, but he did not see that individual.
Using a diagram of the area, Lucas identified where Reese and the two men were
located when Lucas first saw them and the path they used to leave. According to
Lucas, Reese fell in the street at the corner. Defense counsel showed Lucas the
location where Reese’s body had been found on the diagram, but Lucas believed
the body was closer to the corner.
Alvarez identified Lucas as a witness on December 11, 2014, after visiting every
apartment that faced East Balch and South Winery Avenues. Lucas appeared
reluctant to speak with Alvarez but agreed to speak with Alvarez inside Lucas’s
apartment.

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3. Terry S.
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Terry S. testified that he lived in apartment 103 at 4941 East Balch Avenue, as
indicated in exhibit 1. While sitting on his couch, Terry heard two gunshots back
to back, got up, went outside, and ran to the corner. Terry thought he heard a third
shot as he was going outside. Terry saw an African-American man lying in the
middle of East Balch Avenue and two people running away. According to Terry,
the two individuals were both male, but he could not describe them further. The
man closest to Reese walked backwards and then turned and ran. He appeared to
be light-skinned and had his right arm extended as if pointing, although Terry did
not see if he had anything in his hands. The second man ran toward the gate
between 520 and 540 South Winery Avenue, and the first man ran toward the
parking lot just north of the gateway. Terry could not see the second man very
well but thought he appeared bigger than the first man. Terry did not see the two
men running together, they ran in different directions.

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Terry testified that the police arrived approximately 10 minutes later. Someone
turned Reese over to see if he was alive, but Reese did not move, and Terry
believed that Reese was dead. Cars drove by and some stopped to avoid hitting
Reese. Terry did not see anyone take anything either from or around Reese.
Terry’s sister came from the corner and told him that another individual had been
shot and was lying by the rocks at the corner.
Alvarez testified that when he interviewed Terry, Terry described the direction the
suspects ran differently than when he testified. During his testimony, Terry
indicated that one suspect ran north from the corner and the other individual ran
between the buildings on South Winery Avenue. When Alvarez interviewed Terry
the day after the murder, Terry indicated that one of the suspects ran from the area
of Reese’s body westward through the pedestrian gate between the buildings on
South Winery Avenue and the other suspect ran west and down South Winery
Avenue.

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D. Additional Investigation
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1. Defendant’s Text Messages from December 6, 2014
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Alvarez obtained a phone from defendant on the evening of the murders. Alvarez
provided the phone to James Lutter, a digital forensic analyst, and asked him to
extract its contents. Lutter searched the phone for text messages, photographed
the messages, and provided them to Alvarez.

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On December 6, 2014, Defendant communicated with an individual identified as
Marcos as follows:8

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“[1:32 p.m.] incoming: Lagger.

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“[1:33 p.m.] outgoing: Who ths

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“[1:34 p.m.] incoming: Marcos

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“[1:35 p.m.] outgoing: Today we could hit the jewelry store wasup u down

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“[1:37 p.m.] incoming: Yeaa. Who else

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“[1:39 p.m.] outgoing: I got some one

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“[1:40 p.m.] incoming: Im not that down to just ask fo one and dipp id rather do a
smash and grab

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“[1:41 p.m.] outgoing: Grab a lot

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“[1:43 p.m.] outgoing: Wats tp lets do ths rite now

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“[1:45 p.m.] incoming: Yeah cus if I ask ima be all nervous. Id rather be in and
out. [¶] Donex gonna do it wit me

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“[1:45 p.m.] outgoing: Smoker George

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“[1:46 p.m.] incoming: LOL

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“[1:46 p.m.] incoming: Id rather do it.wit the bird

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“[1:48 p.m.] outgoing: Wel I gota see wats gewd

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“[1:50 p.m.] incoming: Or ima hit gio up rn

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“[2:00 p.m.] outgoing: K

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“[2:32 p.m.] outgoing: Were u at

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“[2:39 p.m.] incoming: Ashos. That nigga gio said it’s a berner

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“[2:42 p.m.] outgoing: I done it m got cash out I do it again

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“[2:46 p.m.] incoming: Find stupid people to rob like last time im sure iknow a
few

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“[2:47 p.m.] outgoing: Wasgewd line them up

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“[2:48 p.m.] incoming: Fashoo then

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“[3:01 p.m.] incoming: Well find something out to come swoop yur paddd

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Alvarez prepared a summary chart of the text messages and their timestamps, reviewed the phone’s records, and

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“[3:02 p.m.] outgoing: Yea

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“[3:03 p.m.] incoming: Imight stay the nite anyways

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“[3:04 p.m.] outgoing: Were

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“[3:06 p.m.] incoming: At yur paddd”

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The text message thread continued into December 7, 2014, and Marcos texted that
he knew an individual that they could rob.

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The prosecutor introduced defendant’s phone records. The records do not contain
text content but do indicate the originating phone number for text messages and
the times the messages were sent or received. The records for phone calls indicate
the incoming and outgoing phone numbers, along with the times the calls were
made or received.

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2. Gunshot Residue
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Technician Matthew Shafer, employed by the Fresno Police Department, acquired
samples from defendant’s hands the evening of the murders in order to test for
gunshot residue (GSR). Using disks with a special adhesive, Shafer dabbed one
disk along defendant’s right hand along the index finger, web of the thumb, and
thumb and then used the second disk to do the same on defendant’s left hand.
Department of Justice Senior Criminalist Berklee Akutagawa examined the disks
to search for GSR.

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Akutagawa testified that microscopic particles originate from the primer when a
firearm is fired. The primer ignites, causing the gunpowder to burn, creating
pressure in the cartridge case that causes the bullet to fly out of the cartridge. The
bullet flies out in the primer, which has small metallic microscopic particles that
travel in the vicinity of where the firearm is discharged. Akutagawa can detect
these particles with an electron microscope. She then attempts to detect single
particles that contain lead, barium, and antimony.

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Akutagawa examined the samples collected from defendant’s hands. As to
defendant’s right hand, Akutagawa testified that she found three particles in the
sample that contained two of the three elements she sought, but since both
particles are commonly found in the environment, she could not conclude that the
particles were GSR, only that they were consistent with GSR. Defendant’s lefthand sample contained three particles consistent with GSR and seven particles
that contained all three elements and indicated the presence of GSR. Additionally,
three or more particles of GSR indicate that the GSR was not caused by incidental
contact such as might occur during transportation in a patrol vehicle. While seven
particles constitute a “fairly high level,” the presence of GSR cannot be used to
conclude whether an individual fired a gun or stood near while the gun was fired.

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When a firearm is discharged, GSR gets thrown out in the vicinity of the
discharge. GSR mainly travels downstream but it can also go behind the shooter
or next to the shooter, and GSR can settle on potentially anyone near the
discharge. An individual may acquire GSR by handling a firearm that was
recently fired, handling a firearm that was previously fired and not cleaned, or by
touching a gunshot victim or surface that had quite a bit of particles. While GSR
has been found on people 50 feet from the discharge, numerous variables prevent
predicting when GSR will be found and the manner in which GSR was placed on

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a person or object. GSR particles, similar to many other natural substances, can
fall off one’s hands through regular activities such as handling paper, touching
doorknobs, or putting one’s hands into one’s pockets.
3. Defendant and Rodriguez’s Physical Appearance on December 6,
2014

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The prosecutor introduced into evidence the photograph of Rodriguez that had
been taken when he was arrested by the Fresno Police Department on November
13, 2014, three weeks before the murder, and showed the length of Rodriguez’s
hair on that date. The photograph showed that Rodriguez’s hair was closely
shaven.

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The prosecutor also introduced photographs of defendant taken on December 6,
2014, after the murders. The photographs accurately depicted the length of
defendant’s hair and his physique on that day.

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4. Coroner’s Findings
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a) Calvin Lamar Reese
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Dr. Michael Chambliss, a forensic pathologist, performed the autopsy on Reese’s
body. He first X-rayed Reese’s body and determined that no bullets remained
inside. Chambliss identified an entrance gunshot wound in Reese’s right clavicle,
though it had been cut into during the surgical efforts to resuscitate Reese.
Chambliss observed the exit wound on Reese’s outer left arm. He also examined
Reese’s plaid shirt and detected tears in the shirt that correspond to the entrance
and exit wounds.

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During his internal examination of Reese, Chambliss determined that the bullet
entered Reese’s right shoulder at the right clavicle approximately 63¼ inches up
from his right heel and three and one-quarter inches right of his midline. The
bullet exited through Reese’s upper left arm, approximately 61¼ inches from his
left heel and 10 inches left of his midline. The bullet started from the right side,
moved left and slightly front to back, downward two inches, and exited his left
arm. As the bullet moved through Reese’s body, it passed through an area where
one major branch of the aorta on the right side splits into one major carotid artery,
up into the neck and subclavian artery, and then through the left common carotid
artery before exiting.
The bullet entered Reese’s body approximately two inches higher than it exited,
that is, at a downward angle. However, this discrepancy could also be caused by
rigor mortis, which affects accuracy in measuring the body, or because the bullet
deflected through the muscle. Chambliss’s observations only established that the
bullet passed through Reese in a downward position and could not be used to
determine the positioning of the firearm that fired the bullet.

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Chambliss testified that he did not see powder tattooing around the entrance
wound, which indicated the bullet was fired from a distance of more than 36
inches. An individual’s clothing can also filter the gunpowder and prevent its
appearance on the skin. Chambliss did not see any blackening on Reese’s clothing
around the bullet holes, although the color of Reese’s shirt and the amount of
blood prevented Chambliss being sure that the clothing was free of gunpowder.
He concluded that the absence of GSR indicated the gun was fired from a distance

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of more than 36 inches, but he could not absolutely make that conclusion in light
of the limitations of his examination.

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Chambliss also observed abrasions on Reese’s face, left knee, and right hand.
Reese had abrasions near his hairline, the outer corner of his left eyebrow, his left
cheek, the left corner of his mouth, and his chin. These abrasions, as well as the
abrasion on Reese’s left knee, were consistent with falling on the pavement.
Another abrasion was located on top of the pinky finger of his right hand.

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Chambliss concluded that Reese died due to injuries to the thoracic aorta caused
by a gunshot wound to the right shoulder and the manner of death was homicide.

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b) Jose Nunez Duenas

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Dr. Venu Gopal, chief forensic pathologist at the Fresno County Coroner’s Office,
performed the autopsy on Duenas’s body. During an external examination of
Duenas, Gopal observed a gunshot entrance wound in the hairline on the back of
Duenas’s head behind the left ear, approximately 631//2 inches up from the left
heel and two and one-half inches from the midline of his head. The bullet exited
through the right side of Duenas’s face, approximately 64 inches from the heel
and two and one-half inches from the midline of his head. Because the distance of
both wounds from the heel was almost the same, Gopal concluded that the bullet
traveled horizontally and slightly left to right through Duenas’s head.9 The bullet
was at least a medium caliber, either .380 or nine-millimeter, or larger.

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Gopal’s internal examination revealed that the bullet, upon entering Duenas’s
head, traveled through the back of his skull, then through the left lobe of the
cerebellum and brainstem, through the right maxillary bone, and exited through
the right side of Duenas’s face. A person who suffers this type of injury can
collapse and die rapidly.

14
15
16

Gopal testified that the entrance wound did not exhibit any blackening or powder
tattooing from GSR. The lack of stippling indicated that the muzzle of the gun
was more than 30 to 36 inches from the surface of the skin when fired.

17
18
19

Gopal concluded that Duenas was killed by the perforation of his brain due to a
gunshot wound to his head and classified it as a homicide.

20

E. Defendant’s Statements
1. Defendant’s December 7, 2014 Statement

21

Alvarez was the lead detective investigating Reese and Duenas’s murders. He
interviewed defendant at approximately 1:28 a.m. on December 7, 2014. The
video recording of defendant’s first interview with detectives was played for the
jury.

22
23
24

During the interview, defendant told the detectives that he was 19 years old and
lived with his mother at 540 South Winery, Apartment 205. Defendant said that

25
26
27
9

Gopal explained that his examination only described the bullet’s path with reference to the anatomy of Duenas’s

28 body.

11

he had his own cellphone and he had provided it to them but claimed that he could
only use it to send text messages.10

1
2

Defendant stated that he was home with his mother that day. When Duenas
arrived and started arguing with defendant’s mother, they called the police. The
police escorted Duenas from the property, and Duenas called defendant to obtain
a ride home because Duenas did not have a license. Defendant agreed and met
Duenas at the truck. Duenas got into the truck with the keys.

3
4
5

At the same time, Reese walked by the truck “minding his own business,” and
Duenas looked at Reese.11 Reese asked, “What Motherfucker?” Duenas told
defendant that he left something in the apartment, “his drink or something,” and
that he would be right back. Defendant looked out of the truck’s window and saw
that Reese continued to look at them, and then Reese said, “What motherfucker
you want something?” Defendant then heard something that sounded like “chkchk” and became scared that they would be shot. Defendant saw that Duenas was
crossing the street toward Reese and, as he got out of the truck, he heard gunshots
and ran to Duenas who was lying on the ground. Defendant also saw Reese fall
instantly. Defendant heard two different types of gunshots. He ran into his house
and told his mother what happened. His family came out and they determined that
someone had already called the police because the police came.

6
7
8
9
10
11

Defendant reiterated that the first thing Reese said to them was, “What ya’ll
lookin’ at motherfucker?” Defendant was in the driver’s seat of the truck at that
time and Duenas had not yet entered the truck but had the keys. After Reese
walked by, Duenas closed the door and left. Defendant did not see that Duenas
had anything in his hands and watched him cross the street through the rearview
mirror. Defendant drew a diagram to explain that the truck was parked near the
apartment complex’s entrance and facing south on South Winery Avenue.

12
13
14
15

Defendant explained again that Duenas was on the sidewalk when Reese passed
by them. Reese said, “What? What ya’ll—what ya’ll lookin’ at motherfuckas?”
Once Reese passed them, he walked into the street and asked, “What’s up?”
Defendant said, “I don’t want no problems, man.” Then Reese ducked behind a
red truck. Reese said, “Try something stupid motherfucker,” and defendant heard
the sound of a firearm racking. Defendant thought Reese intended to shoot him
and closed the window. Then Reese walked off.

16
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18
19

At that same time, Duenas closed the door to the truck and said he would be back.
Defendant “was, like, ‘Hey, nah, come on let’s go.’ And then ... [Duenas] goes, he
comes back and he just goes ‘((Spanish Spoken))’ ” and left. Defendant saw
Duenas cross the street at the corner where Reese had walked when defendant
looked in the rearview mirror. Defendant yelled, “Papa ... stop” or “Papa, no.”
However, Duenas was hard-headed and did not listen. Duenas was wearing his
white sombrero and “looked like he was prepared.” Defendant got out of the car
and heard three gunshots, two that sounded the same and another one that
sounded louder. As defendant ran to the corner, he saw Duenas lying on the
ground. Defendant also saw Reese running, gasp for air, and fall. Defendant did
not understand how both men got shot. Defendant said that he then saw “some

20
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22
23
24
25
26
27
28

10

Contrary to defendant’s claim, records for his phone indicate that it was used to make and receive telephone calls
both before and after the murders.
11
Defendant stated later in the interview that when Reese talked to them, “he didn’t only tell us something. He told
other people on the other side, too. Like, this—I think this black guy was mad or something.” However, defendant
never discussed any other individuals being present on the street during his encounter with Reese.

12

1

Mexican guy” running, as defendant informed the officers at the scene, and the
officers also saw the man running by a nearby store.

2
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27

Defendant explained that Duenas had problems with defendant’s mother, and he
used methamphetamine. Duenas sometimes saw things and defendant could not
calm Duenas down. Defendant also believed that Duenas was still angry about the
fight with defendant’s mother and reacted badly to Reese.
Defendant told the detectives that another woman claimed to have seen two men
wearing hoodies running away and that he told officers, but the officers were
paying attention to Duenas. A detective asked defendant if he was standing
outside for a long time before the police arrived and defendant replied, “No, um, I
went inside. That’s where they have—that’s where they took us out the house and
everything because they said that I’m a—I’m a wit—, uh, witness.”
Defendant said that Duenas did not “play with no weapons” and that defendant
regularly searched Duenas’s belongings for drugs and never found any guns.
Defendant denied that Duenas owned a whip. Defendant denied owning any
weapons or guns and said that no guns were in the apartment.
Defendant also told the detectives that he believed someone living in an upstairs
apartment on the corner saw the shootings. However, defendant was alone when
he found Duenas. The detectives questioned defendant as to how he failed to see
the person that shot Reese and Duenas. While discussing how Duenas could have
been shot by Reese, defendant asked the detectives where Duenas was shot.
Defendant stated that he was telling the truth. The detectives told defendant that
they did not locate any firearms at the murder scene, and defendant denied that he
had taken any firearms from the scene. Defendant did not see any guns near
Duenas.
Defendant claimed that he loved Duenas and that he would tell the police who
was responsible even if the person was a family member or a friend and it meant
being a snitch.
2. Defendant’s December 21, 2014 Statement
Alvarez interviewed defendant again on December 21, 2014, at 3:59 p.m., after
defendant was arrested for murder. The second interview was introduced into
evidence and played for the jury. Defendant agreed to speak to the detectives and
told them he had previously told them the truth as to what had happened. The
detectives provided a photograph of Marcos, the individual they believed text
messaged defendant concerning committing a robbery on December 6, 2014.
Defendant claimed that he did not know the individual in the photograph.
The detectives read defendant the text message from defendant’s phone that
discussed committing a robbery, but defendant denied that the messages had
anything to do with Duenas’s murder. Defendant explained that he was poor and
needed money and, though they thought about committing a robbery, it did not
happen because Duenas was killed. Defendant also claimed, “I thought I was
gonna go do some robbing man. I wasn’t gonna rob no one with no gun or
nothing but just snatch and run you know?” Defendant claimed that what
happened to Duenas had no relation to his plans to commit robbery. Defendant
claimed that he was down the street when Duenas was shot.

28

13

1
2
3
4
5
6

When asked who else was present during the murders, defendant replied, “Myself.
It was me and my dad. It was just me and my dad. My dad man.” The detectives
told defendant that a number of witnesses told them that defendant was not alone.
The detectives urged defendant to identify the individual who shot Reese and
Duenas. The detectives reviewed the evidence: “There was whip out there. There
was a crowbar out there. Then it was you. Not that—how did the crowbar get
there? From your truck. Your truck has the jack and the little thing that—that
cranks the tire up. And it’s no longer in your truck. It’s right there next to
[Duenas]’s blood. And I know [Duenas] didn’t run up there with a whip and a
crowbar.... That’s—that’s two people that walked over there with your dad. Or
[Duenas] grabbed the whip and you had the crowbar. Or your buddy had the
crowbar and you had the gun.”

7
8
9
10
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13
14
15
16

After several exhortations by the detectives to tell what happened, defendant
asked, “Who—who was—you guys gotta let me know something though first
man. I don’t wanna go to jail man.” The detective asked, “Who was the homie
that was with you?” Defendant replied, “His name’s Jorge. [¶] Rodriguez.”
Defendant did not know what kind of gun Rodriguez carried. Defendant then
explained, “We was gonna take off man. And this black guy comes. [Reese]—he
comes on the side of us and he—he—man he barely looked at us and we looked at
him and told us, ‘Wassup n—?’ He told us—he told us you know what I mean?
He told us like he confronted us.” Reese then walked behind a red truck across the
street, looked at them and said, “I swear to you man I could hear that shit Glock.
His gun Glocked [racked] and shit. He goes, ‘Try something stupid.’ ” Defendant
was going to get out of the truck but got scared and sat back in the truck.
Rodriguez was outside of the truck when Reese went by them, but after Reese
went behind the red truck, defendant did not see him anymore. However, Reese
continued to walk down the street. Defendant was still in the truck and saw
Duenas cross the street toward Reese, and he shouted, “No dad.” Defendant heard
the three gunshots “by the time I was gonna get out the car,” ran from the truck,
and “when I got there man I just seen [Reese] on the ground too and everything
man.”

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25
26
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Defendant told the detectives that he did not see Rodriguez at that time and
Rodriguez was gone. The detectives challenged defendant’s version of events and
accused defendant of knowing that Rodriguez shot the victims. Defendant denied
having seen the shooting and claimed that he did not know if Rodriguez was
responsible. The detective asked, “Who said—who said, ‘Let’s—let’s go get that
nigga?’ Who said that? ‘Cause I got a witness who heard you say that. Who said
it? Was it you or him?” Defendant replied, “It was probably him. It wasn’t me.”
Defendant tried to explain, “Just my dad though man.” “You know what I mean?
I’m not gonna just you know what I mean? I had to run to my dad man. You
know? I’m—I woulda gave my life up for my dad man.”
Defendant explained that he did not want to say anything about Rodriguez
because he did not want to “snitch on him” and did not “know if [Rodriguez] did
anything bad.... I [don’t] know if he shot anybody.” When asked about the
crowbar found at the scene, defendant replied, “Probably my dad had got it man.”
The detective pointed out that it had been behind defendant’s seat in the truck, but
defendant claimed not to know how Duenas got the crowbar and suggested that it
may have been in the back of the truck. The detectives asked about the bullwhip
and defendant replied, “The whip? I don’t know. That’s my dad’s whip.”
Defendant explained that he had previously prevented a fight that Duenas tried to
start because Duenas was “crazy” and “[s]ick in the head.”

28

14

Defendant explained again that after the police escorted Duenas from the
apartment, “I went to the truck and I was gonna give him a ride.... And then I
went to the truck and I got in and my dad was still outside. I was like, ‘Come on.
Let’s go.’ And my dad’s a hard headed man. I told him like three times ((Spanish
Spoken)). He didn’t listen to me. And that’s when that black guy comes.”
Defendant continued, “That’s when the shit starts happening like, you know, he
starts telling the—telling he probably all—for what I know he probably told my
dad shit. My dad didn’t understand him. So what I’m thinking that black guy went
around the truck and that’s when I heard him telling, ‘Try something stupid
motherfucker.’ And he Glocked it. And you could hear where the gun is. You
know what I mean? You could hear a gun, you know? You know how a gun
sounds.” “So when he did that I was like, ‘Oh shit.’ You know? Now I got—I got
scared, you know what I mean? ‘Cause I didn’t have a gun or nothin’ like that,
you know? And—and then it—that’s when he just like took off and went walking.
And I’m guessing my dad went like that.” “He probably tried to protect me or
something, you know?” Defendant said that Rodriguez was gone when everything
happened.

1
2
3
4
5
6
7
8
9

Defendant explained that he did not tell the detectives originally that Rodriguez
was present because “I was focused on my dad man. I was focused on tryin’ to
save his life man. But I couldn’t save his life. I didn’t save his life. Someone else.
I don’t know who the hell. It coulda been Rodriguez.” The detectives mentioned
that witnesses saw one of the suspects run through the gate to the apartments and
defendant admitted that he ran through that gate. Defendant responded, “But I
wasn’t—I was right there with my dad, you know? I was just like, you know,
tryin’ to wake him up,” and claimed that he was not paying attention to what
Rodriguez may have been doing to Reese. Defendant said that he was “at the
corner on my knees right there where [Duenas] was at.”

10
11
12
13
14
15

Defendant explained that Rodriguez never went into his apartment but had been
hanging around for two hours. They were about to leave with Duenas when
everything happened. Defendant described Rodriguez as his height and having a
little bit of hair growing just as short as defendant’s hair.12 The detective
questioned defendant as to whether he saw Rodriguez spit on and kick Reese, but
defendant denied that he saw that. When the detective asked, “Who was your
friend that was there with you at the corner?” defendant replied, “[Rodriguez]. It
was him. Pretty much sure that it was him.” Defendant clarified that he was
“pretty sure” it was Rodriguez, but he was not sure. The detectives did not
understand how defendant could not be sure given his familiarity with
Rodriguez’s appearance and asked, “Was it [Rodriguez] or not?” Defendant
replied, “Yeah.”

16
17
18
19
20
21

Defendant told the detectives that he did not say anything to Rodriguez after he
saw Duenas and that he was “right there with [his] dad.” When asked what he
thought when he saw Rodriguez fire the gun, defendant replied, “Probably he did
it,” and then said, “[A]ll I can tell you right now man is I heard the gunshots man
but I didn’t see nobody getting hit or nothing. When I ran there I seen my dad on
the ground man. That’s it.”

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12

The prosecutor introduced photographs of defendant on the night of the murders, which showed his hair to be
longer than Rodriguez’s hair, and at the time of the second interview, showing defendant’s hair to be closely
cropped. The prosecutor argued that Lucas’s description of the individual with the gun who stood over Reese
matched Rodriguez rather than defendant as Rodriguez was thinner and had cropped hair that could have been
mistaken for being bald (as shown in an arrest photograph three weeks before the murder).

15

1
2

Defendant admitted that the first time he spoke with the detectives he “just left out
a couple of things.” But he maintained that he was not sure who shot Reese and
that he “freaked ... out” when Duenas was shot and was trying to see if Duenas
had anything to tell him. Rodriguez was gone when defendant looked for him.

3
4
5
6

The detective asked defendant to tell him again who was present. At first
defendant said, “Just me,” but when challenged, defendant replied, “Just me and,
um, you guys could say [Rodriguez]. [Rodriguez] ay.” The detective replied that
defendant had said that Rodriguez was present, and defendant agreed. The
detective asked, “I asked you two weeks ago you said nobody. Today you’re
telling me it’s [Rodriguez]. Are you being honest with me?” Defendant replied,
“Yeah.”

7
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9
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12
13
14
15
16

The detective asked if Rodriguez was at defendant’s apartment complex because
they intended to rob someone. Defendant replied, “He didn’t come over. Nah. We
seen him right there. He was comin’ down the street ....” The detective reminded
defendant that he had already told them that he intended to do a robbery with
Rodriguez. Defendant agreed that was true and said, “We were plannin’ to rob
like a freakin,’ you know? Like somebody, you know? You feelin’ me? Or
something. You know?” The detective pointed out that defendant’s text messages
at 2:46 p.m. on the day of the murders indicated that defendant intended to “[f]ind
a nigga to rob” “[l]ike last time” and mentioned that Rodriguez would do it with
him. Defendant responded, “Wasn’t no plan to rob nobody right there.... I’m
tellin’ you what [Reese] did. He told—he confronted us.” Defendant speculated
that Duenas may have been trying to protect defendant.
Defendant said that he did not know whether Rodriguez carried a gun and
Rodriguez probably hid the gun from him. He claimed, “I swear man. I don’t
know if he had a gun on him. I don’t know if he had a gun on him. I wasn’t tryin’
to plan to rob no one with no gun. Nah. We were not gonna rob no—we were just
gonna snatch. Do somethin’ like that. But I don’t know about no carry no firearms
or nothin’ like that.”

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The detectives continued to question defendant as to how he could be with
Duenas, who lay on the ground, and not be aware of Rodriguez’s actions in
standing over Reese. Defendant replied, “Man I was cryin’ right there with my
dad man. I was cryin’ there man. I was cryin’ right there man.” “I was right there.
I was squeezin’ my dad like this man.” “Cryin’ man. I was like that. Tryin’ to
wake him up man.” “But he was gone man. Like you know what I mean?”
Defendant described his relationship with Rodriguez to the detectives. Defendant
said that Rodriguez was not at the apartments until after he took Duenas to the
truck, contradicting his earlier statement that Rodriguez had been there for
approximately two hours. Defendant and Duenas were hanging out on a rock near
the truck and Rodriguez came “out of nowhere.” They “chill[ed] ... for a little bit”
and then defendant tried to get Duenas into the truck to leave. Defendant
explained that Reese walked by, everything happened, and “I just heard gun shots.
I get out the car. I run over there. I seen my dad on the ground. I’m crying. I’m
holding him. Squeezing him. I wasn’t payin’ attention to the bl—I just seen
[Reese] ... fall.” Defendant agreed that he saw Reese run from the sidewalk to the
street where he fell to the ground. Defendant said that he first believed that Reese
was going to shoot him but then saw Reese fall and again denied seeing
Rodriguez, “I didn’t see [Rodriguez]. I was just ... payin’ attention to my dad
man.”

28

16

1
2
3

The detective asked defendant about a beanie found in the back of defendant’s
truck and explained that a witness described one of the suspects wearing a beanie.
At first, defendant denied that he was wearing a beanie but eventually admitted
the beanie was in his truck.

7

The detectives asked defendant how long he had been “chillin” with Rodriguez,
and defendant claimed that he did not like Rodriguez and that seeing him on the
day of the murders was a surprise. Rodriguez wanted to “chill” with him, and
defendant discouraged Rodriguez because he was with Duenas. One of the
detectives challenged defendant by telling him that the detective knew that
defendant was involved but the detective just did not know whether defendant or
Rodriguez fired the gun. Defendant replied, “Yeah I know that I’m involved
man.”

8

F. Defendant’s Escape

9

On December 21, 2014, Officer David Ponek was tasked with transporting
defendant from police headquarters to the jail. Ponek attempted to handcuff
defendant in preparation for transport, but defendant recently broke his arm, and
Ponek handcuffed defendant’s hands in front to avoid further injury. Ponek
escorted defendant to the transport vehicle that was parked close to the gate.
When Ponek attempted to unlock the vehicle, defendant turned and ran away from
police headquarters. Ponek was unable to catch defendant, broadcasted that
defendant had escaped, and set up a perimeter. Defendant was later apprehended
lying in a flower bed at a federal building nearby. Defendant struggled and pulled
away from the officers but was taken into custody.

4
5
6

10
11
12
13
14

II. Defense evidence.
15
A. Diane L.
16

18

Diane L. lived with her mother-in-law in an apartment at 520 South Winery
Avenue. The night of the murders, Diane heard gunshots and then a vehicle
parked near her window drove off. She heard one man yell to another man before
they drove off.

19

B. Maricella G.

20

Maricella G. is defendant’s mother. On December 6, 2014, Maricella was
decorating her home for Christmas with Francisco (her son), Sadae D.,
defendant’s girlfriend, and defendant’s baby. Duenas arrived and began arguing
with her. He was wearing a white sombrero. The police were called, and they told
Duenas to leave. Defendant agreed to drive Duenas from the area. At some point,
defendant came back to tell her that Duenas had been injured, and defendant was
scared. Maricella went to see what had happened. The family members went to
the police station later in the evening.

17

21
22
23
24

C. Ruben H.
25
26

Ruben H. testified that he lived in the apartments on East Balch and South Winery
Avenues. Ruben returned from taking his family to dinner and parked his white

27
28

17

truck on the street.13 Ruben was on the sidewalk removing tools from his truck
while his wife waited in the truck and his daughter sat on the grass. He saw a man
wearing a hat cross the street and meet with another man at the corner. The men
appeared to be hugging or greeting when he heard two or three gunshots. Ruben
saw sparks three times in the area of the two men. He believed that the two men
shot each other. The man wearing the hat fell to the ground.

1
2
3
4

After hearing the gunshots, Ruben placed his family in the truck and hid. He
heard someone coming toward his truck and saw an African-American man fall to
the ground before reaching the truck. He did not see anyone chasing the man but
heard someone run by after the man fell. Ruben thought he heard someone say,
“[R]un.” Ruben grabbed his daughter from the front seat of his truck and ran with
his wife into his apartment. Ruben also saw a person run along the apartments as
he was leaving but could not identify the person because it was dark.

5
6
7
8

Ruben returned to his truck to close the door approximately two minutes later and
did not see anyone near the two men who had been shot. Ruben later testified that
when he returned to close his truck door, a car had stopped to help the man in the
street. He never saw either of the men holding a gun.

9
10

Ruben initially told the police that he did not see anything but eventually agreed
to meet with detectives and describe what he saw. The men were hugging when
Ruben saw sparks, and he assumed they shot each other.

11
12

13 Duenas, 2022 WL 5434451, at *1–14 (footnotes in original).
14

III.

15

STANDARD OF REVIEW
Relief by way of a petition for writ of habeas corpus extends to a person in custody

16

17 pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws
18 or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor,
19 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed
20 by the U.S. Constitution. The challenged convictions arise out of the Fresno County Superior
21 Court, which is located within the Eastern District of California. 28 U.S.C. § 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act

22

23 of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its
24 enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th
25 Cir. 1997) (en banc). The instant petition was filed after the enactment of AEDPA and is
26 therefore governed by its provisions.
27
28

13

Ruben had two trucks parked on the street that night, one white and one red. He was hiding behind the white
truck. Based upon a review of photographs (exhibits 14, 15, & 109) and exhibit 1, Ruben was positioned behind the
second truck east of where Reese fell.

18

1

Under AEDPA, relitigation of any claim adjudicated on the merits in state court is barred

2 unless a petitioner can show that the state court’s adjudication of his claim:
3
4
5
6

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

7 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 97–98 (2011); Lockyer v. Andrade, 538
8 U.S. 63, 70–71 (2003); Williams, 529 U.S. at 413.
9

As a threshold matter, this Court must “first decide what constitutes ‘clearly established

10 Federal law, as determined by the Supreme Court of the United States.’” Lockyer, 538 U.S. at 71
11 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is “clearly established Federal law,” this
12 Court must look to the “holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as
13 of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. “In other words,
14 ‘clearly established Federal law’ under § 2254(d)(1) is the governing legal principle or principles
15 set forth by the Supreme Court at the time the state court renders its decision.” Id. In addition,
16 the Supreme Court decision must “‘squarely address [] the issue in th[e] case’ or establish a legal
17 principle that ‘clearly extend[s]’ to a new context to the extent required by the Supreme Court in
18 . . . recent decisions”; otherwise, there is no clearly established Federal law for purposes of
19 review under AEDPA. Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (quoting Wright v.
20 Van Patten, 552 U.S. 120, 125 (2008)); Panetti v. Quarterman, 551 U.S. 930 (2007); Carey v.
21 Musladin, 549 U.S. 70 (2006). If no clearly established Federal law exists, the inquiry is at an
22 end and the Court must defer to the state court’s decision. Musladin, 549 U.S. 70; Wright, 552
23 U.S. at 126; Moses, 555 F.3d at 760.
24

If the Court determines there is governing clearly established Federal law, the Court must

25 then consider whether the state court’s decision was “contrary to, or involved an unreasonable
26 application of, [the] clearly established Federal law.” Lockyer, 538 U.S. at 72 (quoting 28 U.S.C.
27 § 2254(d)(1)). “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the
28 state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question

19

1 of law or if the state court decides a case differently than [the] Court has on a set of materially
2 indistinguishable facts.” Williams, 529 U.S. at 412–13; see also Lockyer, 538 U.S. at 72. “The
3 word ‘contrary’ is commonly understood to mean ‘diametrically different,’ ‘opposite in character
4 or nature,’ or ‘mutually opposed.’” Williams, 529 U.S. at 405 (quoting Webster’s Third New
5 International Dictionary 495 (1976)). “A state-court decision will certainly be contrary to
6 [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the
7 governing law set forth in [Supreme Court] cases.” Id. If the state court decision is “contrary to”
8 clearly established Supreme Court precedent, the state decision is reviewed under the pre9 AEDPA de novo standard. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc).
10

“Under the ‘reasonable application clause,’ a federal habeas court may grant the writ if

11 the state court identifies the correct governing legal principle from [the] Court’s decisions but
12 unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413.
13 “[A] federal court may not issue the writ simply because the court concludes in its independent
14 judgment that the relevant state court decision applied clearly established federal law erroneously
15 or incorrectly. Rather, that application must also be unreasonable.” Id. at 411; see also Lockyer,
16 538 U.S. at 75–76. The writ may issue only “where there is no possibility fair minded jurists
17 could disagree that the state court’s decision conflicts with [the Supreme Court’s] precedents.”
18 Richter, 562 U.S. at 102. In other words, so long as fair minded jurists could disagree on the
19 correctness of the state court’s decision, the decision cannot be considered unreasonable. Id. If
20 the Court determines that the state court decision is objectively unreasonable, and the error is not
21 structural, habeas relief is nonetheless unavailable unless the error had a substantial and injurious
22 effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
23

The Court looks to the last reasoned state court decision as the basis for the state court

24 judgment. Wilson v. Sellers, 584 U.S. 122, 125 (2018); Stanley v. Cullen, 633 F.3d 852, 859 (9th
25 Cir. 2011). If the last reasoned state court decision adopts or substantially incorporates the
26 reasoning from a previous state court decision, this Court may consider both decisions to
27 ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir.
28 2007) (en banc). “When a federal claim has been presented to a state court and the state court has

20

1 denied relief, it may be presumed that the state court adjudicated the claim on the merits in the
2 absence of any indication or state-law procedural principles to the contrary.” Richter, 562 U.S. at
3 99. This presumption may be overcome by a showing “there is reason to think some other
4 explanation for the state court’s decision is more likely.” Id. at 99–100 (citing Ylst v.
5 Nunnemaker, 501 U.S. 797, 803 (1991)).
Where the state courts reach a decision on the merits but there is no reasoned decision, a

6

7 federal habeas court independently reviews the record to determine whether habeas corpus relief
8 is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853
9 (9th Cir. 2003). “Independent review of the record is not de novo review of the constitutional
10 issue, but rather, the only method by which we can determine whether a silent state court
11 decision is objectively unreasonable.” Himes, 336 F.3d at 853. While the federal court cannot
12 analyze just what the state court did when it issued a summary denial, the federal court must
13 review the state court record to determine whether there was any “reasonable basis for the state
14 court to deny relief.” Richter, 562 U.S. at 98. This Court “must determine what arguments or
15 theories . . . could have supported, the state court’s decision; and then it must ask whether it is
16 possible fairminded jurists could disagree that those arguments or theories are inconsistent with
17 the holding in a prior decision of [the Supreme] Court.” Id. at 102.
18

IV.

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REVIEW OF CLAIM
In his sole claim for relief, Petitioner asserts that there was insufficient evidence to

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21 support his convictions because “[n]o evidence was presented that a pre shooting plan existed to
22 rob or shoot anyone on that evening.” (ECF No. 13 at 5.14) Petitioner argues that it was the jury’s
23 duty to acquit because the circumstantial evidence was susceptible to two reasonable
24 interpretations, one which suggested guilt and the other innocence, and the jury did not follow
25 that instruction. (Id.) Respondent argues that the state court reasonably determined that the
26 evidence admitted at trial was sufficient to support Petitioner’s convictions. (ECF No. 22 at 31.)
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Page numbers refer to the page numbers stamped at the top of the page.

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This claim was raised on direct appeal to the California Court of Appeal, which denied

2 the claim in a reasoned opinion. The California Supreme Court summarily denied Petitioner’s
3 petition for review. As federal courts review the last reasoned state court opinion, the Court will
4 “look through” the summary denial and examine the decision of the California Court of Appeal.
5 See Wilson, 584 U.S. at 125.
6

In denying the sufficiency of the evidence claim, the California Court of Appeal stated:

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I. The evidence was sufficient to support the jury’s verdict convicting
defendant of second degree murder.

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In this case, the prosecutor’s primary theory at trial was that defendant and
Rodriguez attempted to rob Reese, Reese resisted, Duenas struggled with Reese,
and Rodriguez shot at Reese, killing Reese and accidentally killing Duenas. As
such, the prosecutor argued defendant was guilty of first degree felony murder.
The jury was also instructed regarding second degree murder with malice
aforethought (CALCRIM No. 520), aiding and abetting (CALCRIM No. 401),
and transferred intent (CALCRIM No. 562).
In acquitting defendant of first degree murder, the jury implicitly failed to find
that defendant engaged in an attempted robbery beyond a reasonable doubt.
Defendant argues that the evidence was also insufficient to sustain his conviction
for second degree murder under an aiding and abetting theory. We disagree.
A. Standard of Review and Applicable Law
Defendant challenges the sufficiency of the evidence supporting his convictions
for second degree murder. “To assess the evidence’s sufficiency, we review the
whole record to determine whether any rational trier of fact could have found the
essential elements of the crime or special circumstances beyond a reasonable
doubt. [Citation.] The record must disclose substantial evidence to support the
verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
[Citation.] In applying this test, we review the evidence in the light most
favorable to the prosecution and presume in support of the judgment the existence
of every fact the jury could reasonably have deduced from the evidence.
[Citation.] ‘Conflicts and even testimony [that] is subject to justifiable suspicion
do not justify the reversal of a judgment, for it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and the truth or falsity
of the facts upon which a determination depends. [Citation.] We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial evidence.
[Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted unless
it appears “that upon no hypothesis whatever is there sufficient substantial
evidence to support” ’ the jury’s verdict. [Citation.]
“The same standard governs in cases where the prosecution relies primarily on
circumstantial evidence. [Citation.] We ‘must accept logical inferences that the
jury might have drawn from the circumstantial evidence. [Citation.]’ [Citation.]
‘Although it is the jury’s duty to acquit a defendant if it finds the circumstantial
evidence susceptible of two reasonable interpretations, one of which suggests
guilt and the other innocence, it is the jury, not the appellate court that must be
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convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.]’
[Citation.] Where the circumstances reasonably justify the trier of fact’s findings,
a reviewing court’s conclusion the circumstances might also reasonably be
reconciled with a contrary finding does not warrant the judgment’s reversal.”
(People v. Zamudio (2008) 43 Cal.4th 327, 357–358, fourth, fifth, sixth, tenth &
twelfth bracketed insertions in original.)

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A person who aids and abets the commission of a criminal offense is considered a
principal in the crime. (§ 31.) “We have defined the required mental states and
acts for aiding and abetting as: ‘(a) the direct perpetrator’s actus reus—a crime
committed by the direct perpetrator, (b) the aider and abettor’s mens rea—
knowledge of the direct perpetrator’s unlawful intent and an intent to assist in
achieving those unlawful ends, and (c) the aider and abettor’s actus reus—conduct
by the aider and abettor that in fact assists the achievement of the crime.’ ”
(People v. Thompson (2010) 49 Cal.4th 79, 116–117.)
“ ‘Whether a person has aided and abetted in the commission of a crime ordinarily
is a question of fact.’ ” (People v. Nguyen (2015) 61 Cal.4th 1015, 1054.) “
‘Among the factors which may be considered in making the determination of
aiding and abetting are: presence at the scene of the crime, companionship, and
conduct before and after the offense.’ ” (Ibid.) “The ‘act’ required for aiding and
abetting liability need not be a substantial factor in the offense. ‘ “Liability
attaches to anyone ‘concerned,’ however slight such concern may be, for the law
establishes no degree of the concern required to fix liability as a principal.”
[Citation.]’ ‘It has been held, therefore, that one who is present for the purpose of
diverting suspicion, or to serve as a lookout, or to give warning of anyone seeking
to interfere, or to take charge of an automobile and to keep the engine running, or
to drive the “getaway” car and to give direct aid to others in making their escape
from the scene of the crime, is a principal in the crime committed.’ ” (People v.
Swanson-Birabent (2003) 114 Cal.App.4th 733, 743–744.)

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B. Analysis
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Defendant does not dispute that the evidence was sufficient to prove that
Rodriguez fired the bullets that killed Reese and Duenas with malice
aforethought. The evidence was sufficient to support the conclusion that
Rodriguez committed second degree murder by shooting Reese at a range close
enough and “ ‘in a manner that could have inflicted a mortal wound had the bullet
been on target is sufficient to support an inference of intent to kill.’ ” (People v.
Smith (2005) 37 Cal.4th 733, 741.) The parties assumed that Duenas, being
defendant’s father, was not the intended victim but killed accidentally by a bullet
intended for Reese. This argument finds support given the relationship of those
involved and because the evidence demonstrates that both bullets entered the
victims at approximately the same distance from their heels (roughly the same
distance from the ground) while both men were struggling with each other. “
‘Under the classic formulation of California’s common law doctrine of transferred
intent, a defendant who shoots with the intent to kill a certain person and hits a
bystander instead is subject to the same criminal liability that would have been
imposed had “ ‘the fatal blow reached the person for whom intended.’ ”
[Citation.] In such a factual setting, the defendant is deemed as culpable as if he
had accomplished what he set out to do.’ ” (People v. Bland (2002) 28 Cal.4th
313, 320–321.)

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Even if Rodriguez did not intend to kill Reese or Duenas, he intentionally fired a
gun at them while they were struggling. “[I]mplied malice may be found when a

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defendant, knowing that his or her conduct endangers life and acting with
conscious disregard of the danger, commits an act the natural consequences of
which are dangerous to life. [Citation.] Thus, to invoke a classic example, a
person who fires a bullet through a window, not knowing or caring whether
anyone is behind it, may be liable for homicide regardless of any intent to kill.”
(People v. Roberts (1992) 2 Cal.4th 271, 317; see, e.g., People v. Chun (2009) 45
Cal.4th 1172, 1205 [no juror could have found a defendant who participated in a
shooting, either as a perpetrator or aider or aider, did not act with implied malice
when shooting at a vehicle occupied by three people and gunshots fired at close
range; such an act was dangerous to life and performed knowing of the danger
and with conscious disregard for life], superseded by statute as stated in People v.
Lamoureux (2019) 42 Cal.App.5th 241, 247–249.)

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Addressing defendant’s culpability for aiding and abetting the shootings
committed by Rodriguez, no particular factor is dispositive in establishing
knowledge and intent; the court must look at the totality of the circumstances and
not on “ ‘ “ ‘isolated bits of evidence.’ ” ’ ” (People v. Medina (2009) 46 Cal.4th
913, 919.) Here, there was substantial evidence at trial to support the inference
that defendant knowingly and intentionally aided and abetted Rodriguez in
murder considering defendant’s presence at the scene of the crime, his
companionship with Rodriguez, and his conduct before and after the offense. (See
People v. Nguyen, supra, 61 Cal.4th at p. 1054.) Although an individual’s mere
presence at a crime scene or that person’s failure to prevent a crime is not
sufficient to prove guilt, such factors may be considered, together with other
evidence, in the determination as to a defendant’s guilt or innocence. (People v.
Durham (1969) 70 Cal.2d 171, 181; People v. Nguyen (1993) 21 Cal.App.4th 518,
529–530.)
Lucas, less than five seconds after the shooting, saw Reese run from the corner
while being chased by a man with a gun. Lucas testified that the man carrying a
gun chased Reese and stood over him, kicked him, spat on him, and called him “a
bitch ass nigga.” Similarly, Lucas testified that he saw a second man on the
sidewalk who asked the man with the gun, “[D]id you get him?” The man with
the gun replied, “[Y]eah, let’s go.”

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A jury reasonably could have inferred from this statement that the second man
was aware that Rodriguez intended to shoot Reese because he neither expressed
surprise or disapproval of the shooting. The question, “[D]id you get him?” also
expresses a shared intent and interest in the outcome as well as encouragement in
the result to “get him.” Given that Rodriguez was ending Reese’s life and Duenas
lay dying, it is not a reasonable inference that the man uttering the question,
“[D]id you get him?” was merely expressing detached curiosity. Furthermore,
Rodriguez’s response of, “[Y]eah, let’s go,” also evidences a concert of action
between the two men.

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Substantial evidence supports the jury’s conclusion that defendant was the man
that stood by as Rodriguez shot Reese and Duenas, ascertained whether their
objective was complete, and then ran off with Rodriguez. The evidence supports a
conclusion that defendant was at the corner during the shooting and not down the
street near his truck as he claimed to detectives. Defendant’s own initial statement
establishes that he was at the corner when Duenas and Reese were shot.
Defendant told police during his first interview that he saw Duenas lying next to
the corner and “then, uh, after that I just seen—I seen the other guy just running
right here, like, like, swear to God, like, I just seen him gaspin’ for air, you know?

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And he just falls.” Defendant even said that he first believed that Reese was going
to shoot him.

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The jury could reasonably have inferred that, given the specificity of defendant’s
description, he did see Reese run and fall to the ground after the shooting.
However, Lucas and Ruben described these events as happening seconds after the
shooting. Defendant would not have had time to run from his truck, down the
street, and to the corner to observe Reese gasping for air and falling to the ground.
Defendant also told police that he was near Duenas when he saw Reese fall.
Therefore, defendant must have been present near the corner during the shooting.

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Defendant repeatedly denied having seen the individual who shot Duenas and
Reese during both interviews with detectives. During his first interview,
defendant claimed he and Duenas were the only other individuals present with
Reese but then claimed to have seen “some Mexican guy” running. During his
second interview, defendant admitted that Rodriguez had been standing with them
when Reese approached but claimed that he did not see Rodriguez after the initial
encounter with Reese.

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Based on the evidence, the jury could reasonably have inferred that defendant lied
about knowing who shot Reese and Duenas. As we have discussed, Lucas
described Reese being chased by someone with a gun less than five seconds after
the shooting. Lucas heard the man with the gun call him “a bitch ass nigga.”
Having admitted to seeing Reese run from the corner and fall in the street,
defendant should have heard these statements if Lucas was able to hear them from
twice the distance away. Defendant admitted that he was present near the corner,
and Lucas did not see anyone else leaving the area, though he watched the events
until the ambulances took the victims from the scene.15 Therefore, defendant must
have been the man that Lucas saw on the sidewalk who asked the man with the
gun, “[D]id you get him?” Defendant was also the man who left with the armed
man when the armed man replied, “[Y]eah, let’s go.”

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Additionally, defendant had GSR on his left hand and particles consistent with
GSR on his right hand. Akutagawa testified that one acquires GSR by being in
proximity of a gun when fired or handling a gun after it has been fired, either
immediately or sometime thereafter if the gun has not been cleaned. The evidence
in this case demonstrates that it is unlikely that defendant handled the gun after
the shooting as no witness saw Rodriguez give the gun to defendant as they ran
from the scene. Additionally, a witness saw defendant enter the pedestrian gate
and saw Rodriguez continue to run down South Winery Avenue. Defendant
admitted that he went through this gate to notify family members. It is also
unlikely that defendant would take the gun from Rodriguez because he would
have had to explain his possession of it to family members. The jury could
reasonably have inferred that defendant acquired GSR either because he handled
the gun before the shooting (GSR remaining on the gun from having been fired at
an earlier time) and knew Rodriguez was armed, or was near Rodriguez at the
time of the shooting and knew Rodriguez had shot the two men.

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The evidence also demonstrates that Rodriguez and defendant were companions.
Defendant admitted that Rodriguez had been at the apartment complex for
approximately two hours before they prepared to leave with Duenas, although

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Ruben testified that he saw Reese running and heard a second individual running. He also believed that two
people left the scene because he saw a different individual running near the apartments and heard someone say,
“[R]un.”

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defendant also tried to claim that Rodriguez happened by just before Reese
arrived. The evidence also indicates that defendant and Rodriguez intended to act
in concert and support each other in criminal activity that evening. In addition to
being in Rodriguez’s company before the murders, defendant admitted that he did
intend to commit robbery as described in the text messages identified by the
detective. He also admitted that he had named Rodriguez as the individual to
accompany him during those crimes in the text messages. Defendant told
detectives that he and Rodriguez were leaving for that purpose when Reese
walked by them. While defendant claimed that they were not attempting to rob
Reese, the jury could reasonably have inferred that defendant lied about
Rodriguez’s presence during the first interview to hide Rodriguez’s involvement
in the murders, which would also implicate defendant given their intent to commit
robbery.
Defendant’s behavior after the shooting also supports an inference that he
attempted to delay reporting the incident to the police. Duenas had just been shot.
Defendant told officers that he saw Duenas lying on the corner, and the evidence
shows that he left Duenas alone rather than calling his family or seeking
assistance by calling 911. Defendant had a cellphone that he later turned over to
the police. One normally would take their cellphone with them if leaving for the
evening, and defendant’s phone records show the phone was used to make
outgoing calls at both 7:12 p.m. and 7:29 p.m. the evening of the murders. No
evidence was introduced as to the identity of the numbers called, but defendant
did not call 911. Defendant told officers that only the text message function of the
phone was operational, but this statement is contradicted by defendant’s phone
records, which show both texts and calls between December 5 and 7, 2014.

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Because police had seen defendant in the company of Duenas minutes before the
shooting as he left to drive Duenas from the location, defendant could not conceal
that he was present during the time of the shooting. By leaving the scene of the
shooting rather than calling 911 immediately, defendant gave Rodriguez time to
flee and provided at least a brief opportunity for them to coordinate their
responses.
As we discussed, defendant claimed that he was at the truck when the shootings
occurred and, when he reached the corner, he was too preoccupied with Duenas to
observe the shooter. He said, “I was focused on my dad man. I was focused on
tryin’ to save his life man.... I don’t know who the hell. It coulda been
[Rodriguez].” Later during the interview, he said, “But I wasn’t—I was right there
with my dad, you know? I was just like, you know tryin’ to wake him up ....”
Defendant said, “I was at the corner on my knees right there where my dad was
at.” Defendant described actions with regard to Duenas: “Man I was cryin’ right
there with my dad man,” “squeezin’ [Duenas] like this man,” “[c]ryin’ man,”
“[t]ryin’ to wake him up man.”

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Defendant’s description of his reaction to Duenas’s shooting is contradicted by
the evidence. As discussed, Lucas saw two men run from the scene but did not see
anyone else. In addition, photographs of defendant that evening show no blood on
his clothing, which one would expect to see if defendant knelt next to Duenas and
squeezed him while trying to save and wake him up. Furthermore, if defendant
had held Duenas and tried to wake him up, then defendant would have seen the
bullet wound in the back of Duenas’s head and the exit wound in Duenas’s cheek.
Defendant’s question to the detective as to where Duenas had been shot is
inconsistent with defendant’s claims that he grabbed Duenas and tried to save his
life.

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The jury may infer a consciousness of guilt from a defendant’s lies to police.
(People v. Dykes (1961) 198 Cal.App.2d 75, 80.) When manifestly and
deliberately false statements are made about matters within the defendant’s own
knowledge and which relate materially to the issue of his guilt or innocence,
“[s]uch falsifications cogently evidence consciousness of guilt and suggest that
there is no honest explanation for incriminating circumstances, and thus are
admissions of guilt.” (People v. Osslo (1958) 50 Cal.2d 75, 93.) In this matter,
defendant lied to the detectives about his location during the shooting, whether he
saw the shooter, his efforts to save Duenas, and whether he could use his cell
phone to make calls. In an interview with police, defendant claimed that he
concealed Rodriguez’s identity and presence during the shooting because he did
not know whether Rodriguez was responsible. But the reasonable response would
have been to identify Rodriguez as a potential witness if defendant did not believe
Rodriguez was responsible. Given the relationship between a father and son, a
jury could have found it unreasonable that defendant would lie to police and
conceal Duenas’s killer based only upon his companionship with Rodriguez. The
jury could have found it more reasonable to believe that defendant only lied to the
police concerning the death of his father because defendant was involved in
shooting Reese and Duenas and lied to protect himself.
The prosecutor also introduced evidence that after being arrested for the murders
of Reese and Duenas on December 21, 2014, defendant escaped while being
transported to jail. Defendant ran through the streets of Fresno while handcuffed
and wearing jail attire and hid in a flower bed to avoid detection. The jury could
have reasonably believed that defendant’s escape and flight after arrest also
evidenced consciousness of guilt. “[I]t is also probable that only one who expects
his guilt to be proved at trial will attempt an escape and that an innocent man will
stay for trial in order to clear his name and win lawful liberty.” (People v. Terry
(1970) 2 Cal.3d 362, 395, abrogated on other grounds as stated in People v.
Carpenter (1997) 15 Cal.4th, 312, 382.)

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Defendant argues that, at most, the evidence only showed that he was present and
knew a crime was being committed and no witness testified that he followed
Rodriguez and provided backup to the shooting. Relying upon Juan H. v. Allen
(9th Cir. 2005) 408 F.3d 1262, defendant argues that his mere presence is not
sufficient to prove aiding and abetting murder. In that case, the federal court
concluded the evidence was insufficient to support the defendant’s conviction of
first degree murder as an aider and abettor because it did not show that he knew
his brother planned to kill, nor that he “acted in a way intended to encourage or
facilitate these killings.” (Id. at p. 1277.) The 15-year-old defendant was present
when his brother shot one of the victims but “did not do or say anything before,
during or after the shootings from which a reasonable factfinder could infer an
intent or purpose to aid and abet in the murder of [one victim] and the attempted
murder of [the other victim].” (Id. at pp. 1266, 1278–1279.)

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However, unlike Juan H. v. Allen, defendant did say and do something that
evidenced his involvement in the shooting. Although no direct evidence
demonstrates that defendant instigated the murders before the shootings, as we
have discussed, substantial evidence encompasses circumstantial evidence and
any reasonable inferences to be drawn from such evidence (People v. Lopez
(2013) 56 Cal.4th 1028, 1069–1070, abrogated on other grounds as stated in
People v. Rangel (2016) 62 Cal.4th 1192, 1216). “ ‘[I]ntent is inherently difficult
to prove by direct evidence. Therefore, the act itself, together with its surrounding
circumstances must generally form the basis from which the intent of the actor
may legitimately be inferred.’ ” (People v. Edwards (1992) 8 Cal.App.4th 1092,

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1099.) Defendant’s question, “[D]id you get him?” is sufficient to support the
inference that defendant both knew of and participated in Rodriguez’s shooting of
Reese, and defendant’s question reflects his encouragement of Rodriguez’s
actions while the murder was still happening.

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An aider and abettor need not have instigated or advised the commission of the
offense if the evidence demonstrates that defendant was “ ‘present for the purpose
of assisting in its commission.’ ” (People v. Francis (1969) 71 Cal.2d 66, 72,
overruled on other grounds as explained in People v. Murphy (2007) 154
Cal.App.4th 979, 983–984.) “ ‘[T]he test [for an aider and abettor] is whether the
accused in any way, directly or indirectly, aided the perpetrator by acts or
encouraged him by words or gestures.’ ” (Ibid.) Defendant’s words provided such
encouragement as well as evidenced his involvement in the shooting itself. The
crime of murder is not complete until the victim dies, and “a person may aid and
abet a murder after the fatal blow is struck as long as the aiding and abetting
occurs before the victim dies.” (People v. Celis (2006) 141 Cal.App.4th 466, 474;
see id. at p. 471 [“Because the victim’s death is a sine qua non of murder, the
crime could not have been ‘completed’ until [the victim] had died. ‘[A] murder
ends with the death of the victim.’ ”], quoting People v. Esquivel, (1994) 28
Cal.App.4th 1386, 1397].)

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The jury could have inferred from defendant’s words, conduct, and relationship
with Rodriguez that defendant’s presence on the corner provided encouragement
and backup to Rodriguez and Duenas and was intended to deter Reese from
resistance. (See People v. Moore (1953) 120 Cal.App.2d 303, 306–307 [an aider
and abettor need not commit an overt act during the crime where his presence is
intended to provide encouragement to his companions, act as a lookout, or act as a
deterrent to any continued resistance on the part of the victim].)

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Substantial evidence demonstrates that Reese left his house to purchase a drink
for dinner and encountered defendant, Duenas, and Rodriguez as he returned
home. The parties confronted each other. The jury could have concluded the
broken glass near Duenas’s truck was evidence of a physical confrontation and
that Reese’s drink purchase ended up broken on the sidewalk. Defendant’s
statements to the detectives are evidence that Duenas confronted Reese on the
corner where he was killed. The prosecution offered evidence of robbery as a
possible motive, as proven by defendant’s admission that he and Rodriguez
intended to commit robbery that evening and defendant’s text messages earlier in
the day.16 However, based on the entirety of the evidence, other jurors could also
have reasonably inferred that Rodriguez, Duenas, and defendant provoked or were
provoked by Reese and Duenas attacked Reese using a tire jack handle. That
Rodriguez and defendant were also present on the corner supported an inference
that they participated in the attack and Rodriguez shot at Reese to prevent harm to
Duenas. GSR evidence on defendant’s hands is evidence that defendant either
handled the gun before the shooting or stood near Rodriguez during the shooting.
His question after the shooting, “[D]id you get him?” is sufficient to support the
inference that defendant joined in Rodriguez’s intent to shoot or kill Reese, and
then defendant left the scene to dispose of the firearm, protect Rodriguez, and

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While the jury acquitted defendant of felony murder based upon his participation in a conspiracy to rob Reese,

26 some jurors may have considered robbery as a motive for the Reese’s murder. When reviewing a conviction for
substantial evidence, we assess “ ‘whether the evidence adduced at trial could support any rational determination of

27 guilt beyond a reasonable doubt. [Citations.] This review should be independent of the jury’s determination that
evidence on another count was insufficient. ’ ” (People v. Palmer (2001) 24 Cal.4th 856, 863, quoting United States

28 v. Powell (1984) 469 U.S. 57, 67.)

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conceal his own participation in the shooting. A jury could have reasonably
inferred that Rodriguez would not render aid to Duenas unless he was assisting
defendant, who had the closer relationship with Duenas and would have assisted
Duenas in the attack on Reese.
Defendant argues that the question, “[D]id you get him?” could have been blurted
by him in a state of shock. However, the existence of “possible exculpatory
explanations, whether they are simply suggestions not excluded by the evidence
or even where they could be reasonably deduced from the evidence,” could not
justify this court’s rejecting the jury’s determination that defendant is guilty
unless there is no substantial evidence to support the conviction under any
hypothesis. (People v. Redrick (1961) 55 Cal.2d 282, 290.) Even if the evidence
of defendant’s guilt was not wholly persuasive, in reviewing the evidence in a
light most favorable to the prosecution, we conclude the record contains
substantial evidence from which the jury could have found beyond a reasonable
doubt that defendant aided and abetted Rodriguez in the murders of Reese and
Duenas.

10 Duenas, 2022 WL 5434451, at *14–20 (footnotes in original).
11

The Supreme Court has held that when reviewing a sufficiency of the evidence claim, a

12 court must determine whether, viewing the evidence and the inferences to be drawn from it in the
13 light most favorable to the prosecution, any rational trier of fact could find the essential elements
14 of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). A
15 reviewing court “faced with a record of historical facts that supports conflicting inferences must
16 presume—even if it does not affirmatively appear in the record—that the trier of fact resolved
17 any such conflicts in favor of the prosecution, and must defer to that resolution.” Id. at 326. State
18 law provides “for ‘the substantive elements of the criminal offense,’ but the minimum amount of
19 evidence that the Due Process Clause requires to prove the offense is purely a matter of federal
20 law.” Coleman v. Johnson, 566 U.S. 650, 655 (2012) (quoting Jackson, 443 U.S. at 319).
21

“‘After AEDPA, we apply the standards of Jackson with an additional layer of deference’

22 to state court findings.” Ngo v. Giurbino, 651 F.3d 1112, 1115 (9th Cir. 2011) (alteration
23 omitted) (quoting Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005)). As the Supreme Court
24 has stated,
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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

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with the state court. The federal court instead may do so only if the state court
decision was “objectively unreasonable.”

1
2

3 Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam) (quoting Renico v. Lett, 559 U.S. 766, 773
4 (2010)).
Petitioner argues that “[n]o evidence was presented that a pre shooting plan existed to rob

5

6 or shoot anyone on that evening,” “Rodriguez independently decided to shoot the handgun
7 thereby killing Reese and [Petitioner]’s father,” and Petitioner “was not present to aid or abet
8 Rodriguez.” (ECF No. 13 at 5.) However, “[c]ircumstantial evidence and inferences drawn from
9 it may be sufficient to sustain a conviction.” Ngo, 651 F.3d at 1114 (internal quotation marks
10 omitted) (quoting Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995)). As noted by the
11 California Court of Appeals, viewing the evidence and the inferences to be drawn from it in the
17
12 light most favorable to the prosecution, the “jury could have inferred from [Petitioner]’s words,
18
19
20
13 conduct, and relationship with Rodriguez that [Petitioner]’s presence on the corner provided

14 encouragement and backup to Rodriguez and Duenas and was intended to deter Reese from
15 resistance.” Duenas, 2022 WL 5434451, at *19 (footnotes added). “The jury in this case was
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A jury reasonably could have inferred from the question “[D]id you get him?” that Petitioner “was aware that
Rodriguez intended to shoot Reese because he neither expressed surprise or disapproval of the shooting.” Duenas,
2022 WL 5434451, at *16. “The question, ‘[D]id you get him?’ also expresses a shared intent and interest in the
outcome as well as encouragement in the result to ‘get him.’” Id. “Furthermore, Rodriguez’s response of, ‘[Y]eah,
let’s go,’ also evidences a concert of action between the two men.” Id.
18
“In this matter, defendant lied to the detectives about his location during the shooting, whether he saw the shooter,
his efforts to save Duenas, and whether he could use his cell phone to make calls.” Duenas, 2022 WL 5434451, at
*18. “Given the relationship between a father and son, a jury could have found it unreasonable that defendant would
lie to police and conceal Duenas’s killer based only upon his companionship with Rodriguez. The jury could have
found it more reasonable to believe that defendant only lied to the police concerning the death of his father because
defendant was involved in shooting Reese and Duenas and lied to protect himself.” Id. “The jury could have
reasonably believed that [Petitioner]’s escape and flight after arrest also evidenced consciousness of guilt.” Id.
19
Petitioner “admitted that he did intend to commit robbery as described in the text messages identified by the
detective. He also admitted that he had named Rodriguez as the individual to accompany him during those crimes in
the text messages.” Duenas, 2022 WL 5434451, at *17. Petitioner “told detectives that he and Rodriguez were
leaving for that purpose when Reese walked by them. While [Petitioner] claimed that they were not attempting to
rob Reese, the jury could reasonably have inferred that [Petitioner] lied about Rodriguez’s presence during the first
interview to hide Rodriguez’s involvement in the murders, which would also implicate [Petitioner] given their intent
to commit robbery.” Id.
20
“The evidence supports a conclusion that [Petitioner] was at the corner during the shooting and not down the
street near his truck as he claimed to detectives. [Petitioner]’s own initial statement establishes that he was at the
corner when Duenas and Reese were shot.” Duenas, 2022 WL 5434451, at *16. “The jury could reasonably have
inferred that, given the specificity of [Petitioner]’s description [during his first police interview], he did see Reese
run and fall to the ground after the shooting.” Id. Witnesses “described these events as happening seconds after the
shooting. [Petitioner] would not have had time to run from his truck, down the street, and to the corner to observe
Reese gasping for air and falling to the ground.” Id.
17

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1 convinced, and the only question under Jackson is whether that finding was so insupportable as
2 to fall below the threshold of bare rationality.” Coleman, 566 U.S. at 656.
3

Petitioner also argues that it was the jury’s duty to acquit because the circumstantial

4 evidence was susceptible to two reasonable interpretations, one suggesting guilt and the other
5 innocence. (ECF No. 13 at 5.) However, a reviewing state court “faced with a record of historical
6 facts that supports conflicting inferences must presume . . . that the trier of fact resolved any such
7 conflicts in favor of the prosecution, and must defer to that resolution,” Jackson, 443 U.S. at 326,
8 “and that [state court] determination in turn is entitled to considerable deference under AEDPA,”
9 Coleman, 566 U.S. at 656.
10

The Supreme Court has “made clear that Jackson claims face a high bar in federal habeas

11 proceedings because they are subject to two layers of judicial deference.” Coleman, 566 U.S. at
12 651. “When the deference to state court decisions required by § 2254(d) is applied to the state
13 court’s already deferential review,” Cavazos, 565 U.S. at 7, the Court finds that the state court’s
14 decision denying Petitioner’s sufficiency of evidence claims was not contrary to, or an
15 unreasonable application of, clearly established federal law, nor was it based on an unreasonable
16 determination of fact. The decision was not “so lacking in justification that there was an error
17 well understood and comprehended in existing law beyond any possibility for fairminded
18 disagreement.” Richter, 562 U.S. at 103. Petitioner has not demonstrated that “no ‘fairminded
19 juris[t]’ could have reached the same judgment as the state court.” Shinn v. Ramirez, 596 U.S.
20 366, 378 (2022) (alteration in original) (quoting Harrington, 562 U.S. at 102). Accordingly,
21 Petitioner is not entitled to habeas relief on his sufficiency of the evidence claim, and the petition
22 should be denied.
23

V.

24

RECOMMENDATION

25

Based on the foregoing, the Court HEREBY RECOMMENDS that the petition for writ of

26 habeas corpus be DENIED.
27

This Findings and Recommendation is submitted to the assigned United States District

28 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local

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1 Rules of Practice for the United States District Court, Eastern District of California. Within
2 THIRTY (30) days after service of the Findings and Recommendation, any party may file
3 written objections with the Court, limited to fifteen (15) pages in length, including any
4 exhibits. Such a document should be captioned “Objections to Magistrate Judge’s Findings and
5 Recommendation.” Replies to the objections shall be served and filed within fourteen (14) days
6 after service of the objections. The assigned District Judge will then review the Magistrate
7 Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file
8 objections within the specified time may waive the right to appeal the District Court’s order.
9 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d
10 1391, 1394 (9th Cir. 1991)).
11
12

IT IS SO ORDERED.

13 Dated:
14

March 6, 2025
STANLEY A. BOONE
United States Magistrate Judge

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