Wiley v. Peery

Filing 18

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 9/26/2017 RECOMMENDING the 1 habeas petition be denied. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

TEVYN ANTWYONE WILEY,

12

Petitioner,

13
14

No. 2:15-cv-1597 KJM DB P

v.

FINDINGS AND RECOMMENDATIONS

SUZANNE M. PEERY,

15

Respondent.

16
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a writ

17
18

of habeas corpus under 28 U.S.C. § 2254. He challenges a judgment of conviction entered

19

against him on April 6, 2012 in the Sacramento County Superior Court for, among other things,

20

shooting at an occupied vehicle and attempted murder. Petitioner seeks federal habeas relief on

21

five grounds: (1) an instruction about a witness’s plea agreement violated due process; (2) the

22

admission of out-of-court statements violated the Confrontation Clause; (3) the admission of

23

another trier of fact’s finding violated due process; (4) the trial court’s imposition of multiple

24

sentences for a single act or omission violated due process; and (5) the evidence was insufficient

25

to show that he was the shooter. For the reasons set forth below, the undersigned recommends

26

that the habeas petition be denied.

27

////

28

////
1

1

BACKGROUND
A. Factual background1

2
3

Early in the morning on October 12, 2008, defendant Christian was
driving his Chevy Cavalier and cut off a truck at a gas station that
was adjacent to his car. Behind his Cavalier was a Dodge Charger
with passenger Killa Mobb member Antonio Cornelius. A Lexus
driven by Killa Mobb member Ravneel Atwaal pulled into the gas
station and parked at a gas pump located on the passenger side of
the Charger. The people in the Cavalier were exchanging hard looks
with the people in the truck. Christian shouted “Killa Mobb.”
Somebody in the truck yelled out “‘FAB.’” Cornelius mentioned
something about a gun. Somebody in the truck said, “Hey, man, we
don't want to involve that.” Cornelius began shooting at the
truck.[fn 1] When Cornelius stopped shooting, the truck began
driving away. As the truck drove away, defendant Wiley, who was
in the front passenger's seat of the Cavalier and was also a member
of Killa Mobb, started shooting at the truck. The driver of the truck
was hit in the back and one of his passengers was hit in the neck.

4
5
6
7
8
9
10
11
12
13

Later that night at a friend's house, Atwaal was told by another
friend, Malachi Riley, who had been inside the Cavalier during the
shooting, that the shooting was between FAB and Killa Mobb.

14
15

A week or two after the shooting when Christian was at a party,
Christian said to one of the people at whom they fired, “you know
we had to fire shots at you, I'll do it again.”

16
17

At trial, Atwaal testified for the People under an agreement in
which Atwaal had to testify truthfully in this case in exchange for a
sentence of seven years and eight months in prison (rather than a
maximum exposure of approximately 23 years) in another case in
which he, Christian, and Whitfield assaulted a man at a gasoline
station.

18
19
20
21

Also testifying for the People was Brian Bell, a gang detective at
the Sacramento Police Department. The nature of gang culture was

22
23
24
25
26
27
28

1

The court takes the following factual summary from the California Court of Appeal for the
Third Appellate District’s unpublished opinion affirming petitioner’s conviction. People v.
Christian, No. C070838, 2014 WL 618255 (Cal. Ct. App. Feb. 18, 2014). The Court of Appeal’s
“[f]actual determinations . . . are presumed correct absent clear and convincing evidence to the
contrary.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (citing 28 U.S.C. § 2254(e)(1)).
Petitioner does not challenge the Court of Appeal’s factual findings. (Pet. (ECF No. 1) at 17;
Trav. (ECF No. 16) at 2.); see also Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009)
(presumption that appellate court’s factual findings are correct particularly appropriate if
petitioner has not challenged them).
2

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

such that gang members knew if they were going to go out and be
seen, there was a good chance that they might run into a rival gang
and if they did, they needed to have a gun on them to “prepare[ ]”
themselves “in case things were to go south.” A common theme in
gang-related crimes was they started when one gang member
claimed his gang to a rival gang and that claim would eventually
escalate into a violent crime. Respect was an integral aspect of gang
culture and something for which gang members strived. In his
experience, when a rival gang member yelled out his gang name
and the opposite party did not respond with some type of
confrontation (but only with a hand sign or the name of the rival
gang), the opposite party would lose respect, be perceived as weak,
and be unsuccessful in committing gang crimes.
In Bell's opinion, Christian was a Killa Mobb gang member
because, among other things, about two weeks after the crimes here,
Christian and Whitfield and about six to eight other Killa Mobb
gang members took part in a “beatdown of an individual at [a] Shell
gas station.”[fn 2] As a result of that incident, Christian was found
guilty of attempted murder committed for the benefit of Killa Mobb
and Whitfield was found guilty of assault with a deadly weapon
committed for the benefit of Killa Mobb.
In Bell's opinion, Wiley also was a Killa Mobb gang member
because, among other things, on November 8, 2008, he was with
Christian at Yager's bar in Folsom when Christian was arrested for
retrieving a handgun after Wiley had gotten in a fight there.
Based on a hypothetical mirroring the facts of the shooting here,
Bell was of the opinion the shooting here was committed for the
benefit of Killa Mobb.
[fn 1] Cornelius and other Killa Mobb gang members all
had just been together at a party where Cornelius was
“flashing” a gun in a “flamboyant manner” and either
Christian or the man who was driving the Charger, Xavier
Whitfield, told him to put the gun away.
[fn 2] This was the same incident about which Atwaal
testified.

24
25
26
27
28

People v. Christian, No. C070838, 2014 WL 618255, at **1-2 (Cal. Ct. App. Feb. 18, 2014).
B. Procedural History
The jury found the driver of one of the cars carrying Killa Mobb
members, defendant George Edward Christian, guilty of shooting at
an occupied vehicle and seven counts of attempted murder and
3

1

found that the crimes were committed for the benefit of the Killa
Mobb, all under an aiding and abetting or natural and probable
consequences theory. The jury also found defendant Tevyn
Antwyone Wiley guilty of those crimes and enhancements, along
with additional enhancements because he was a shooter.

2
3
4

Id. at 1. Petitioner was sentenced to 175 years to life in prison. (1 CT 178-82 (LD 1).2)

5

On February 18, 2014, the Court of Appeal affirmed the trial court’s judgment. Christian, 2014

6

WL 618255, at *1. Petitioner sought review from the California Supreme Court, which was

7

denied on May 14, 2015. (See Pet. at 2.)
On April 4, 2013, petitioner filed a habeas petition in the superior court. (LD 19.) He argued

8
9
10

that the court should reduce his restitution fine. (Id. at 5.) The superior court denied this petition
on the merits on May 23, 2013. (LD 20.)
On November 17, 2014, he filed a second habeas petition in the superior court. (LD 21.) In

11
12

this petition, he raised, for the first time, the fourth and fifth claims that he raises here. On

13

January 15, 2015, the superior court denied his second petition. (LD 22.) The court ruled that the

14

petition was successive and, hence, procedurally barred under California law. (Id. at 1–2.)
On February 26, 2015, the Court of Appeal summarily denied review. (LD 24.) On July 8,

15
16

2015, the California Supreme Court also denied review without comment. (LD 26.)
On July 24, 2015, petitioner filed this federal habeas petition. (ECF No. 1.) The state

17
18

answered on March 10, 2016. (ECF No. 14.) Petitioner filed a traverse. (ECF No. 16.)
STANDARDS OF REVIEW APPLICABLE TO HABEAS CORPUS CLAIMS

19

An application for a writ of habeas corpus by a person in custody under a judgment of a state

20
21

court can be granted only for violations of the Constitution or laws of the United States. 28

22

U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or

23

application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502

24

U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

25

////

26
27
28

2

Respondent lodged the state court record here. (See ECF No. 15.) The Clerk’s Transcript is
identified as “CT,” the record of transcript as “RT,” and each document is also identified by its
Lodged Document number, “LD,” assigned to it by respondent.
4

1
2
3
4
5
6
7
8
9

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
corpus relief:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim –
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

10

For purposes of applying § 2254(d)(1), “clearly established federal law” consists of holdings

11

of the United States Supreme Court at the time of the last reasoned state court decision. Greene v.

12

Fisher, 565 U.S. 34, 37 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing

13

Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent “‘may be persuasive

14

in determining what law is clearly established and whether a state court applied that law

15

unreasonably.’” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir.

16

2010)). However, circuit precedent may not be “used to refine or sharpen a general principle of

17

Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not

18

announced.” Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 567

19

U.S. 37 (2012)). Nor may it be used to “determine whether a particular rule of law is so widely

20

accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be

21

accepted as correct.” Id. at 1451. Further, where courts of appeals have diverged in their

22

treatment of an issue, it cannot be said that there is “clearly established Federal law” governing

23

that issue. Carey v. Musladin, 549 U.S. 70, 76-77 (2006).

24

A state court decision is “contrary to” clearly established federal law if it applies a rule

25

contradicting a holding of the Supreme Court or reaches a result different from Supreme Court

26

precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003)

27

(quoting Williams, 529 U.S. at 405-06). “Under the ‘unreasonable application’ clause of §

28

2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct
5

1

governing legal principle from th[e] [Supreme] Court's decisions, but unreasonably applies that

2

principle to the facts of the prisoner's case.’” Lockyer v. Andrade, 538 U.S. 63, 75 (2003)

3

(quoting Williams, 529 U.S. at 413); Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). “[A]

4

federal habeas court may not issue the writ simply because that court concludes in its independent

5

judgment that the relevant state-court decision applied clearly established federal law erroneously

6

or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 411;

7

see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (“It is not

8

enough that a federal habeas court, in its independent review of the legal question, is left with a

9

firm conviction that the state court was erroneous.” (Internal citations and quotation marks

10

omitted.)). “A state court's determination that a claim lacks merit precludes federal habeas relief

11

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

12

Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652,

13

664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a

14

state prisoner must show that the state court's ruling on the claim being presented in federal court

15

was so lacking in justification that there was an error well understood and comprehended in

16

existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.

17

There are two ways a petitioner may satisfy subsection (d)(2). Hibbler v. Benedetti, 693 F.3d

18

1140, 1146 (9th Cir. 2012). First, he may show the state court’s findings of fact “were not

19

supported by substantial evidence in the state court record” or he may “challenge the fact-finding

20

process itself on the ground it was deficient in some material way.” Id. (citing Taylor v. Maddox,

21

366 F.3d 992, 999-1001 (9th Cir. 2004)); see also Hurles v. Ryan, 752 F.3d 768, 790-91 (9th Cir.

22

2014) (If a state court makes factual findings without an opportunity for the petitioner to present

23

evidence, the fact-finding process may be deficient and the state court opinion may not be entitled

24

to deference.). Under the “substantial evidence” test, the court asks whether “an appellate panel,

25

applying the normal standards of appellate review,” could reasonably conclude that the finding is

26

supported by the record. Hibbler, 693 F.3d at 1146 (9th Cir. 2012).

27

The second test, whether the state court’s fact-finding process is insufficient, requires the

28

federal court to “be satisfied that any appellate court to whom the defect [in the state court’s fact6

1

finding process] is pointed out would be unreasonable in holding that the state court’s fact-finding

2

process was adequate.” Hibbler, 693 F.3d at 1146-47 (quoting Lambert v. Blodgett, 393 F.3d

3

943, 972 (9th Cir. 2004)). The state court’s failure to hold an evidentiary hearing does not

4

automatically render its fact finding process unreasonable. Id. at 1147. Further, a state court may

5

make factual findings without an evidentiary hearing if “the record conclusively establishes a fact

6

or where petitioner’s factual allegations are entirely without credibility.” Perez v. Rosario, 459

7

F.3d 943, 951 (9th Cir. 2006) (citing Nunes v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003)).

8

If a petitioner overcomes one of the hurdles posed by section 2254(d), this court reviews the

9

merits of the claim de novo. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also

10

Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) (“[I]t is now clear both that we may

11

not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we

12

must decide the habeas petition by considering de novo the constitutional issues raised.”). For the

13

claims upon which petitioner seeks to present evidence, petitioner must meet the standards of 28

14

U.S.C. § 2254(e)(2) by showing that he has not “failed to develop the factual basis of [the] claim

15

in State court proceedings” and by meeting the federal case law standards for the presentation of

16

evidence in a federal habeas proceeding. See Cullen v. Pinholster, 563 U.S. 170, 186 (2011).

17

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

18

judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).

19

“[I]f the last reasoned state court decision adopts or substantially incorporates the reasoning from

20

a previous state court decision, [this court] may consider both decisions to ‘fully ascertain the

21

reasoning of the last decision.’” Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en

22

banc) (quoting Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005)). “When a federal claim

23

has been presented to a state court and the state court has denied relief, it may be presumed that

24

the state court adjudicated the claim on the merits in the absence of any indication or state-law

25

procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption may be

26

overcome by showing “there is reason to think some other explanation for the state court's

27

decision is more likely.” Id. at 99-100 (citing Ylst, 501 U.S. at 803). Similarly, when a state

28

court decision on a petitioner's claims rejects some claims but does not expressly address a
7

1

federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was

2

adjudicated on the merits. Johnson v. Williams, 133 S. Ct. 1088, 1091 (2013).

3

A summary denial is presumed to be a denial on the merits of the petitioner's claims. Stancle

4

v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). Where the state court reaches a decision on the

5

merits but provides no reasoning to support its conclusion, a federal habeas court independently

6

reviews the record to determine whether habeas corpus relief is available under § 2254(d).

7

Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent

8

review of the record is not de novo review of the constitutional issue, but rather, the only method

9

by which we can determine whether a silent state court decision is objectively unreasonable.”

10

Himes, 336 F.3d at 853 (citing Delgado v. Lewis, 223 F.3d 976, 981 (9th Cir. 2000)). This court

11

“must determine what arguments or theories . . . could have supported, the state court's decision;

12

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

13

or theories are inconsistent with the holding in a prior decision of th[e] [Supreme] Court.”

14

Richter, 562 U.S. at 102. The petitioner bears “the burden to demonstrate that ‘there was no

15

reasonable basis for the state court to deny relief.’” Walker v. Martel, 709 F.3d 925, 939 (9th Cir.

16

2013) (quoting Richter, 562 U.S. at 98).

17

When it is clear, however, that a state court has not reached the merits of a petitioner's claim,

18

the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court

19

must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099,

20

1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

21

PETITIONER'S CLAIMS

22

I.

Plea Agreement Jury Instruction

23

At trial, prosecution witness Atwaal testified under an agreement that he testify “truthfully” in

24

exchange for a more lenient sentence in another case in which he, co-defendant Christian, and a

25

third man, Whitfield, assaulted a man at a gas station. Atwaal testified that petitioner fired the

26

shots from the Cavalier. (3 RT 624.) The court instructed the jury as follows: “You have heard

27

evidence that . . . Atwaal testified pursuant to a[ ] negotiated plea agreement with the district

28

attorney’s office. If there is a dispute about whether Mr. Atwaal has fulfilled the terms of the
8

1

agreement, it will be the Court that decides Mr. Atwaal’s compliance.” Christian, 2014 WL

2

618255, at *3 (alteration in original).

3

Petitioner argues this jury instruction violated due process because “the process for resolving

4

a dispute about the conditional plea agreement was not relevant to the jury’s task of deciding

5

whether the witness was credible, and the instruction could have confused the jury.” (Pet. at 19–

6

20.) He adds that it “made his trial unfair, particularly as to the crucial question of the identity of

7

the shooter from the Cavalier.” (Id. at 20.)

8
9

A. State Court Decision
Petitioner raised this claim on appeal. The Court of Appeal held that the trial court erred in

10

telling the jury that it would determine whether Atwaal complied with his plea agreement.

11

Christian, 2014 WL 618255, at *3 (citing People v. Fauber, 2 Cal. 4th 792, 823 (1992)). The

12

court reasoned that it was irrelevant for the jury to learn that the judge would determine Atwaal’s

13

credibility in the event of a dispute “because it arguably carried some slight potential for jury

14

confusion.” Id. The jury could have been confused because the instruction “did not explicitly

15

state what is implicit within it: that the need for such a determination would arise, if at all, in

16

connection with [Atwaal]’s sentencing, not in the process of trying defendant’s guilt or

17

innocence.” Id.

18

Nevertheless, relying on Fauber, the Court of Appeal held that the error did not prejudice

19

petitioner reasoning that the prosecutor “emphasized in closing argument that it was the jury who

20

decided Atwaal’s credibility[.]” Id. Further, the Court of Appeal noted that the court instructed

21

the jury that “[it] alone [had to] judge the credibility or believability of the witnesses.” Id.

22
23

B. Analysis
While the Court of Appeal did not explicitly state that it was addressing petitioner’s due

24

process claim, its reliance on Fauber indicates that it considered, and rejected, the federal

25

constitutional issue. In Fauber, the court noted that the petitioner raised claims challenging a

26

similar instruction on a plea agreement as violating his rights under the “Fifth, Sixth, Eighth, and

27

Fourteenth Amendments.” 2 Cal. 4th at 820. Therefore, the California Supreme Court’s analysis

28

in Fauber was a consideration of, and rejection of, the petitioner’s federal due process claim on
9

1

the grounds that the trial court’s error did not cause the petitioner prejudice. The Court of

2

Appeal’s adoption of this reasoning indicates that it too considered the due process challenge.

3

Accordingly, this court considers the reasonableness under § 2254(d) of the Court of Appeal’s

4

decision that there was no prejudice from the trial court’s error.

5

1.

6

Legal Standards for Claim of Instructional Error

In general, a challenge to jury instructions does not state a federal constitutional claim.

7

Estelle v. McGuire, 502 U.S. 62, 67–68 (1991); Engle v. Isaac, 456 U.S. 107, 119 (1982);

8

Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). To warrant federal habeas relief, a

9

challenged jury instruction cannot be “merely . . . undesirable, erroneous, or even ‘universally

10

condemned,’” but must violate “some right which was guaranteed to the defendant by the

11

Fourteenth Amendment.” Cupp v. Naughten, 414 U.S. 141, 146 (1973); see also Estelle, 502

12

U.S. at 72 (holding that to find constitutional error, there must be a “‘reasonable likelihood that

13

the jury has applied the challenged instruction in a way’ that violates the Constitution” (quoting

14

Boyde v. California, 494 U.S. 370, 380 (1990))); Donnelly v. DeChristoforo, 416 U.S. 637, 643

15

(1974).
To prevail on such a claim petitioner must demonstrate “that an erroneous instruction ‘so

16
17

infected the entire trial that the resulting conviction violates due process.’” Prantil v. California,

18

843 F.2d 314, 317 (9th Cir.1988) (quoting Darnell v. Swinney, 823 F.2d 299, 301 (9th Cir.

19

1987)); see also Middleton v. McNeil, 541 U.S. 433, 437 (2004) (“If the charge as a whole is

20

ambiguous, the question is whether there ‘is a reasonable likelihood that the jury has applied the

21

challenged instruction in a way’ that violates the Constitution.” (quoting Estelle, 502 U.S. at 72));

22

Henderson v. Kibbe, 431 U.S. 145, 156–57 (1977). In making this determination, the challenged

23

jury instruction “‘may not be judged in artificial isolation,’ but must be considered in the context

24

of the instructions as a whole and the trial record.” Estelle, 502 U.S. at 72 (quoting Cupp, 414

25

U.S. at 147); see also Prantil, 843 F.2d at 317 (The habeas court must evaluate the challenged jury

26

instructions “‘in the context of the overall charge to the jury as a component of the entire trial

27

process.’” (quoting Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir. 1984))).

28

////
10

1

2. Discussion

2

Both the instructions given at trial and the argument of the parties made clear to jurors that

3

they had the responsibility of determining the credibility of Atwaal. Jurors were instructed that

4

“[y]ou alone must judge the credibility or believability of the witnesses,” and “you must decide

5

whether an eyewitness gave truthful and accurate testimony.” (4 CT 1025, 1033.) They were

6

also given an extensive instruction about how to consider Atwaal’s testimony, including the

7

following instruction if they found Atwaal to be an accomplice:

8

Any statement or testimony of an accomplice that tends to
incriminate the defendant should be viewed with caution. You may
not, however, arbitrarily disregard it. You should give that
statement or testimony the weight you think it deserves after
examining it with care and caution in the light of all the other
evidence.

9
10
11

(Id. at 1040.) Both the prosecutor and defense counsel stressed that jurors were the ones to
12
13
14

determine Atwaal’s credibility. The prosecutor stated, “[a]nd at the end of the day, if all of you
say, we don’t believe Mr. Atwaal, that’s your option as a jury. And I’m not going to say really
anything to talk you out of that.” (6 RT 1559.) Defense counsel argued that about Atwaal’s plea

15
deal and the reasons jurors should look at his testimony with suspicion. (7 RT 1711-12.) `
16
17
18

The risk that jurors would have made several inferences from the challenged instruction – that
the judge was responsible for determining the truthfulness of Atwaal’s testimony and that that
determination meant jurors were somehow supposed to assume Atwaal’s testimony was true – is

19
simply too attenuated to override the clear instructions to jurors that they were the arbiters of
20
witness credibility. This court finds no reasonable possibility the erroneous instruction rendered
21

petitioner’s trial fundamentally unfair. The Court of Appeal’s determination that petitioner did

22
not suffer prejudice as a result of the erroneous instruction was not unreasonable.
23
II.

Confrontation Clause Violation for Out-of-court Statements

24
At trial, the prosecution offered Detective Bell as an expert on gang membership. Bell opined
25
that petitioner was a Killa Mobb member on October 12, 2008, the date on which he allegedly
26
committed the crimes at issue. Christian, 2014 WL 618255, at *4. One of the bases for his
27

opinion was that “on November 8, 2008, he was with Christian, who was another Killa Mobb

28
11

1

gang member, at a bar in Folsom when Christian was arrested for retrieving a handgun after

2

[petitioner] had gotten in a fight there.” Id. According to petitioner, Bell based the assertion that

3

petitioner was at the bar with Christian on “statements from persons who witnessed the incident.”

4

(Trav. (ECF No. 16) at 6.) These statements were contained in a police report that Bell reviewed.

5

(4 CT 1037.)

6

Petitioner argues the admission of this portion of Bell’s testimony violated the Confrontation

7

Clause. Petitioner contends the statements were inadmissible hearsay because they were admitted

8

for the truth of the matter asserted, i.e., that he was a gang member. (Pet. (ECF No. 1) at 25.) He

9

adds that the prosecution made no showing that the declarants were unavailable, and that he had

10

no opportunity to cross-examine them, whether prior to or during his trial. (See Pet. at 25.)

11

Petitioner largely bases his argument on the Supreme Court’s decision in Williams v. Illinois,

12

567 U.S. 50 (2012). (Id. at 23–25.) He cites Williams for the proposition that “information relied

13

upon by experts [is] . . . admitted for its truth.” (Id. at 23.)

14
15

A. State Court Decision
Petitioner also raised this issue on appeal. The Court of Appeal rejected petitioner’s

16

Confrontation Clause argument. Christian, 2014 WL 618255, at *4. It reasoned that “the [] bar

17

incident was offered to form the basis of [Bell’s] opinion that on the day of the current crimes,

18

[petitioner] was a member of the Killa Mobb gang.” Id. Further, it reasoned that “[s]o called

19

‘basis evidence’ does not implicate the confrontation clause because it is not introduced for the

20

truth of the matter, but rather, only to assist the jury in evaluating the expert’s opinion.

21

[Citation].” Id.

22
23

B. Analysis
1.

Legal Standards for Confrontation Clause Claim

24

“The Confrontation Clause of the Sixth Amendment states: ‘In all criminal prosecutions, the

25

accused shall enjoy the right . . . to be confronted with the witnesses against him.’” Michigan v.

26

Bryant, 562 U.S. 344, 352 (2011). “[T]his provision bars ‘admission of testimonial statements of

27

a witness who did not appear at trial unless he was unavailable to testify, and the defendant had

28

had a prior opportunity for cross-examination.’” Davis v. Washington, 547 U.S. 813, 821 (2006)
12

1

(quoting Crawford v. Washington, 541 U.S. 36, 51 (2004)). However, “[t]he Clause . . . does not

2

bar the use of testimonial statements for purposes other than establishing the truth of the matter

3

asserted.” Crawford, 541 U.S. 36, 59 n.9 (citation omitted).

4

“An expert may base his opinion at trial on inadmissible facts and data of a type reasonably

5

relied upon by experts in the field.” United States v. Gonzales, 307 F.3d 906, 910 (9th Cir. 2002)

6

(citing Fed. R. Evid. 703). “When inadmissible evidence used by an expert is admitted to

7

illustrate and explain the expert’s opinion, however, it is necessary for the court to instruct the

8

jury that the [otherwise inadmissible] evidence is to be considered solely as a basis for the expert

9

opinion and not as substantive evidence.” United States v. 0.59 Acres of Land, 109 F.3d 1493,

10

1496 (9th Cir. 1997) (citation omitted).

11

2.

Discussion

12

The Court of Appeal reasonably concluded that the admission of Bell’s testimony did not

13

offend the Confrontation Clause. The Court of Appeal found that the testimony about the bar

14

incident was offered as a basis of Bell’s opinion that petitioner was a member of Killa Mobb on

15

the day in question. As a matter of federal law, experts may base their opinions on inadmissible

16

hearsay on which experts in the field reasonably rely. See Gonzales, 307 F.3d at 910.

17

Petitioner has not argued, much less shown, that police reports containing witness statements

18

are not the sort of evidence upon which gang experts rely. Further, the trial court instructed the

19

jury not to consider the basis evidence (i.e., the police report) “as proof that the information

20

contained in that basis evidence is true.” (4 CT at 1037.) Further, the trial court instructed the

21

jury that “certain evidence was admitted for a limited purpose” and that it could “consider that

22

evidence only for that purpose and for no other.” (Id. at 1031.) On this record, the Court of

23

Appeal reasonably found that the witness statements on which Bell relied to opine that petitioner

24

was in a gang were not admitted for their truth. Because the witness statements were not

25

admitted for their truth, the Confrontation Clause is not implicated. See Crawford, 541 U.S. 36,

26

59 n. 9.

27
28

The Supreme Court’s decision in Williams is not to the contrary. In this rape case, the Court
considered whether an expert’s opinion testimony that the petitioner’s DNA was found on vaginal
13

1

swabs taken from the victim violated the Confrontation Clause because the expert relied on a

2

lab’s findings, which he assumed, but did not know, to be true. Petitioner contends that the

3

Supreme Court held in Williams that “information relied upon by experts [is] admitted for its

4

truth.” (Pet. at 23.)

5

However, that is not the holding of Williams. In Williams, a majority of the Supreme Court

6

found that the laboratory results from a nontestifying technician which informed the expert

7

witness were not testimonial in nature and therefore did not violate the Confrontation Clause.

8

Williams, 132 S. Ct. at 2240, 2242-43. Also, a plurality concluded that the laboratory results

9

were admitted for the nonhearsay purpose of “illuminating the expert's thought process” rather

10

than establishing the truth of the matter asserted. Id. at 2240. Because the Supreme Court has

11

provided no clear answer to this question, “it cannot be said that the state court unreasonabl[y]

12

appli[ed] clearly established Federal law.” Wright v. Van Patten, 552 U.S. 120, 126 (2008).

13

III.

Admission of Findings of Another Trier of Fact

14

At trial, evidence was admitted that, “weeks after the crimes here, Christian and Whitfield and

15

about six to eight other Killa Mobb gang members took part in a beatdown of an individual at [a]

16

Shell gas station.” Christian, 2014 WL 618255, at *5. “As a result of that incident, Christian was

17

found guilty of attempted murder committed for the benefit of Killa Mobb and Whitfield was

18

found guilty of assault with a deadly weapon committed for the benefit of Killa Mobb.” Id.

19

Thus, the jury in that case found Killa Mobb was a criminal street gang and applied a gang

20

enhancement. See id. This was one of the reasons that Bell opined that Christian was a Killa

21

Mobb member. Id. at *2.

22

Petitioner argues that the trial court erred in admitting this evidence because he was charged

23

with “gang enhancements” and, hence, the jury had to decide whether Killa Mobb was a criminal

24

street gang. (Trav. (ECF No. 16) at 7.) This alleged error, he contends, made his trial

25

fundamentally unfair. (Pet. (ECF No. 1) at 25.)

26
27
28

A. State Court Decision
[A] finding that the gasoline station crimes were committed for the
benefit of Killa Mobb had no bearing on whether the crimes here
14

1

were committed for the benefit of Killa Mobb. That a gang
enhancement may have been found true in one case does not mean
it must be found true in another. The evidence in each case is
different, including the evidence regarding the gang’s primary
activities or the pattern of criminal activity. And [], the evidence
here was not admitted for the truth of the matter (that Killa Mobb
was a criminal street gang). Rather, it was admitted to show part of
the basis for [] Bell’s opinion that Christian and Whitfield were
Killa Mobb gang members.

2
3
4
5
6

For these reasons, there was no error, constitutional or otherwise, in
admitting this evidence.

7
8
9

Christian, 2014 WL 618255, at *5.
B. Analysis

10

1.

11

Legal Standards for Admission of Evidence

It is well established that “federal habeas corpus relief does not lie for errors of state law.”

12
13

Estelle, 502 U.S. at 67 (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990)); see also Wilson, 562

14

U.S. at 5; Pulley v. Harris, 465 U.S. 37, 41 (1984). Thus, whether a petitioner’s “due process

15

rights were violated by the admission of evidence . . . . is [usually] no part of a federal court’s

16

habeas review of a state conviction.” Id.; see also Rhoades v. Henry, 638 F.3d 1027, 1034 n.5

17

(9th Cir. 2011) (“[E]videntiary rulings based on state law cannot form an independent basis for

18

habeas relief.”).
Nonetheless, the erroneous admission of evidence at trial may violate due process if “the

19
20

evidence so fatally infected the proceedings as to render them fundamentally unfair.” Jammal,

21

926 F.2d at 919; accord Gonzalez v. Knowles, 515 F.3d 1006, 1011 (9th Cir. 2008). However,

22

“[t]he Supreme Court has made very few rulings regarding the admission of evidence as a

23

violation of due process.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). Indeed,

24

the Supreme Court “has not yet made a clear ruling that admission of irrelevant or overtly

25

prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ.”

26

Id. (citation omitted); see also Munoz v. Gonzales, 596 F. App’x 588 (9th Cir. 2015) (same; citing

27

Holley, 568 F.3d at 1101).

28

////
15

1

2.

2

Discussion

Here, the Court of Appeal reasonably held that the admission of the finding that the separate

3

crimes were committed for Killa Mobb’s benefit did not offend due process. The gang

4

enhancement in this case required the state to prove that petitioner committed the crimes at issue

5

for the benefit of Killa Mobb. See Cal. Pen. Code § 186.22(b)(1); (see also 4 CT at 1052). As

6

the Court of Appeal correctly noted, “[t]he evidence in each case [was] different, including the

7

evidence regarding the gang’s primary activities or the pattern of criminal activity.” Christian,

8

2014 WL 618255, at *5. Just because other Killa Mobb members committed separate crimes for

9

the benefit of Killa Mobb, it does not follow that petitioner committed the crimes here for the

10

benefit of Killa Mobb. The trial court instructed the jury to base its decisions only on evidence

11

presented in petitioner’s trial, (4 CT at 1015, 1022), and the jury presumably followed this

12

instruction, Weeks, 528 U.S. at 234.

13

Furthermore, the Court of Appeal found that the evidence was admitted to show the basis for

14

Bell’s opinion that Christian and Whitfield were Killa Mobb members, not to prove that Killa

15

Mobb was a criminal street gang. Finally, as noted, the Supreme Court “has not yet made a clear

16

ruling that admission of . . . overtly prejudicial evidence constitutes a due process violation

17

sufficient to warrant issuance of the writ.” Holley, 568 F.3d at 1101. Petitioner has identified no

18

controlling cases holding that an alleged error of this type violates due process, and the court

19

knows of none. Accordingly, the Court of Appeal’s rejection of this claim was not contrary to, or

20

an unreasonable application of, clearly established federal law.

21

IV.

22

Multiple Sentences for Single Act or Omission
A. Background

23

In his second state habeas petition, petitioner argued that the trial court imposed multiple

24

sentences for a single act or omission, thus violating section 654 of the California Penal Code and

25

the Due Process Clause. (LD 21.) On January 15, 2015, the Superior Court denied his second

26

state petition. (LD 22.) The court ruled that the petition was successive and, hence, procedurally

27

barred under California law. (Id. at 1–2 (citing In re Robbins, 18 Cal. 4th 770, 811–12 (1998),

28

////
16

1

and In re Clark, 5 Cal. 4th 750, 774–75 (1993).) Alternatively, the court held that the claim failed

2

on the merits. The superior court reasoned as follows:

3

Petitioner does not show any constitutional violation, any Penal
Code § 654 violation, or any abuse of discretion in the court’s
choice to impose consecutive sentences on each attempted murder
count and their accompanying enhancements. Each count
concerned a different victim.

4
5
6
7

Id. at 2 (citing People v. King, 5 Cal. 4th 59 (1992); People v. Miller, 18 Cal. 3d 873 (1977);

8

People v. Williams, 14 Cal. App. 4th 601 (Cal. Ct. App. 1993).)
Petitioner argues that the trial court imposed multiple sentences for a single act or omission in

9
10

violation of Cal. Penal Code § 654(a) and due process. (Pet. (ECF No. 1) at 29.) While he

11

disputes that this claim is procedurally defaulted, his argument is unclear. (Trav. (ECF No. 16) at

12

7–8.)
B. Analysis

13
14

The superior court reasonably rejected petitioner’s fourth claim on the merits.3 Therefore, in

15

the interest of judicial economy, the undersigned declines to consider the question of procedural

16

default. See Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (stating that “procedural-bar issue

17

[need not] invariably be resolved”); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002)

18

(“Procedural bar issues are not infrequently more complex than the merits issues presented by the

19

appeal, so it may well make sense in some instances to proceed to the merits if the result will be

20

the same.”).
1.

21

Legal Standards for Claim of Unconstitutional Sentence

22

As noted, “federal habeas corpus relief does not lie for errors of state law.” Estelle, 502 U.S.

23

at 67. Consistent with this principle, “[t]he decision whether to impose sentences concurrently or

24

consecutively is [usually] a matter of state criminal procedure and is not within the purview of

25

federal habeas corpus.” Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (citation

26

3

27
28

While petitioner also sought habeas relief in the state appellate and supreme courts, because
those courts summarily denied petitioner’s claims on the merits, this court looks to the last
reasoned decision of the state court, which here is the habeas decision of the superior court. See
Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991).
17

1

omitted). Nevertheless, under narrow circumstances, the misapplication of state sentencing law

2

may violate due process if it “is so arbitrary or capricious as to constitute an independent due

3

process violation.” See Richmond v. Lewis, 506 U.S. 40, 50 (1992) (citation omitted); see also

4

Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) (“Absent a showing of fundamental

5

unfairness, a state court’s misapplication of its own sentencing laws does not justify federal

6

habeas relief.” (citations omitted).)

7

California Penal Code section 654(a) provides: “An act or omission that is punishable in

8

different ways by different provisions of law shall be punished under the provision that provides

9

for the longest potential term of punishment, but in no case shall the act or omission be punished

10

under more than one provision.” Section 654 generally prohibits the imposition of multiple

11

punishments for offenses committed during an indivisible course of conduct incident to a single

12

objective. See People v. Miller, 18 Cal.3d 873, 885 (2004); People v. Perez, 23 Cal. 3d 545, 550–

13

51 (1979). However, the California Supreme Court has “long held that the limitations of section

14

654 do not apply to crimes of violence against multiple victims.” People v. Oates, 32 Cal. 4th

15

1048, 1063 (2004) (citing People v. King, 5 Cal. 4th 59, 78 (1993)). Therefore, “even though a

16

defendant entertains but a single principal objective during an indivisible course of conduct, he

17

[ordinarily] may be convicted and punished for each crime of violence committed against a

18

different victim.” People v. Ramos, 30 Cal.3d 553, 587 (1982) (citation omitted), rev’d on other

19

grounds, California v. Ramos, 463 U.S. 992 (1983).

20

2.

Discussion

Here, the Superior Court reasonably rejected petitioner’s claim that the trial judge imposed

21
22

multiple sentences for a single act in violation of § 654(a) and due process. For starters, because

23

it is a question of state law, federal habeas relief is unavailable for his claim that the trial court

24

violated § 654(a). See Estelle, 502 U.S. at 67; Cacoperdo, 37 F.3d at 507; Watts v. Bonneville,

25

879 F.2d 685, 687 (9th Cir. 1989) (declining to review the contention that state court violated §

26

654 in imposing consecutive sentences because federal courts may grant “habeas corpus relief

27

only for violations of federal law”).

28

////
18

1

Moreover, as noted, California courts have long held that § 654(a) does not apply to crimes

2

of violence against multiple victims. Petitioner was convicted of several counts of attempted

3

murder, and the Superior Court noted that each count concerned a different victim. Thus, because

4

the trial court’s sentence was within the boundaries of state law, it was not so arbitrary or

5

capricious or fundamentally unfair as to violate due process. Cf. Lewis, 506 U.S. at 50 (1992);

6

Rhode, 41 F.3d at 469. Accordingly, the Superior Court’s rejection of petitioner’s fourth claim

7

was not contrary to, or an unreasonable application of, clearly established federal law.

8

V.

9

Sufficiency of the Evidence
A. Background

10

In his final claim, petitioner contends the evidence adduced at trial was insufficient to prove

11

he was the shooter. Petitioner raised this claim in his second state habeas petition. (LD 21.) Like

12

the prior claim, the court denied it because it was “barred by Robbins/Clark” as successive. (LD

13

22 at 2) The court further found petitioner did not qualify for an innocence exception to the

14

Robbins/Clark bar because he had not “shown ‘unerring innocence’” and because petitioner failed

15

“to attach any reasonably available documentary new evidence, not presented at trial, that would

16

show that he was not the shooter, other than his own self-serving declaration that he was not the

17

shooter.” (Id.) The court went on to note that even if petitioner’s claim were not barred, “[t]he

18

summary of the evidence introduced at trial, as set forth in the [Court of Appeal’s] decision

19

denying [p]etitioner’s direct appeal, clearly shows that the evidence was sufficient to support the

20

convictions.” (Id. at 2-3.)

21
22

Petitioner argues that codefendant Riley was the actual shooter from the Cavalier. (Pet. (ECF
No. 1) at 35–36.) To support this claim, he asserts as follows:


23

Taylor, the driver of the truck that was shot at, watched the surveillance video and told a

24

detective that the shooter had been in the front passenger seat of the Cavalier. He recalled

25

that the person was dark-skinned, skinny, wore a beanie, and had two-inch hair twisties.


26
27
28

Atwaal, at one point, stated that the shooter from the Cavalier was chubby with twisties
and that Riley was the shooter from that vehicle.

////
19



1

identification of persons’ faces or hairstyles.

2
3

Although the jury viewed video of the incident, it was of poor quality and did not permit

(Id.)

4

Based on these assertions, petitioner suggests that Riley was in the front passenger seat and

5

opened fired from there. Cf. id. Additionally, he asserts that this claim is not procedurally barred

6

because he is actually innocent. (Trav. (ECF No. 1 6) at 9–10.)

7

B. Analysis

8
9
10

Again, the undersigned declines to consider the question of procedural default. Addressing
the reasonableness of the Superior Court’s rejection of this claim promotes judicial economy.
See, e.g., Singletary, 520 U.S. at 525.

11

When reviewing the sufficiency of the evidence to support a criminal conviction, a federal

12

habeas court must “determine whether the record evidence could reasonably support a finding of

13

guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318 (1979). “But this

14

inquiry does not require a court to ask itself whether it believes that the evidence at the trial

15

established guilt beyond a reasonable doubt.” Id. at 318–19. “Instead, the relevant question is

16

whether, after viewing the evidence in the light most favorable to the prosecution, any rational

17

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id.

18

at 319 (citation omitted). The Supreme Court has “made clear that Jackson claims face a high bar

19

in federal habeas proceedings because they are subject to two layers of judicial deference.”

20

Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012) (per curiam).

21

Here, a rational trier of fact could have found beyond a reasonable doubt that petitioner was

22

the actual shooter from the Cavalier. Contrary to petitioner’s apparent contention that Riley was

23

in the front seat of the Cavalier, Atwaal testified that Riley was in the back seat and that petitioner

24

was in the front seat. (3 RT 697–98.) Likewise, the Court of Appeal found that petitioner was in

25

the front seat, and petitioner has not rebutted this finding by clear and convincing evidence. And,

26

even assuming that Riley was in the front seat at some point, Taylor and Atwaal testified that

27

petitioner exited the Cavalier when he shot at Taylor’s truck. (See 2 RT 450–51; 3 RT 698.)

28

////
20

1

Granted, Atwaal did state during a police interview before the trial that Riley, not petitioner,

2

was the shooter from the Cavalier. (3 RT 700.) However, Atwaal testified that that he did this

3

because the detective “kind of confused [him] when he was showing [him] the video[.]” (Id.)

4

Moreover, Atwaal testified that he was “a hundred percent” sure that petitioner was the shooter.

5

(Id. at 700–01.) And assessing Atwaal’s credibility was the jury’s responsibility. See, e.g.,

6

United States v. Barnard, 490 F.2d 907, 912 (9th Cir. 1973) (“Credibility . . . is for the jury—. . .

7

the lie detector in the courtroom.”).

8

For these reasons, under the highly deferential standard that Jackson and Coleman set, a

9

rational juror could have concluded that petitioner was the actual shooter from the Cavalier.

10

Accordingly, the Superior Court’s rejection of petitioner’s fifth claim was not contrary to, or an

11

unreasonable application of, clearly established federal law.

12

CONCLUSION

13

Petitioner has failed to establish that the Court of Appeal’s decision rejecting his claims was

14

contrary to, or an unreasonable application of, clearly established federal law or an unreasonable

15

determination of the facts. See 28 U.S.C. § 2254(d). Because he has not satisfied the

16

requirements of § 2254(d), the undersigned HEREBY RECOMMENDS that his habeas petition

17

be denied.

18

These findings and recommendations will be submitted to the United States District Judge

19

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

20

after being served with these findings and recommendations, any party may file written

21

objections with the court and serve a copy on all parties. The document should be captioned

22

“Objections to Magistrate Judge’s Findings and Recommendations.” In his objections, petitioner

23

may address whether a certificate of appealability should issue in the event he files an appeal of

24

the judgment in this case. See Rule 11, Rules Governing Section 2254 Cases (the district court

25

must issue or deny a certificate of appealability when it enters a final order adverse to the

26

applicant). A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant

27

has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(3).

28

Any response to the objections shall be filed and served within fourteen days after service of the
21

1

objections. The parties are advised that failure to file objections within the specified time may

2

result in waiver of the right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153,

3

1157 (9th Cir. 1991).

4

Dated: September 26, 2017

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

DLB:11/9
DLB1/prisoner-habeas/wile1597.fr final

25
26
27
28
22