Konepachit v. State of California

Filing 11

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 9/15/16 RECOMMENDING that petitioner's application for a writ of habeas corpus be denied; and this case be closed. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID KONEPACHIT,

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Petitioner,

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No. 2:16-cv-0454 JAM CKD P

v.

FINDINGS AND RECOMMENDATION

DAVID DAVEY,1

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Respondent.

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

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corpus under 28 U.S.C. § 2254. On November 4, 2013, petitioner was convicted in Sacramento

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County of second degree robbery and battery. He is serving a sentence of 16 years imprisonment.

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For the reasons set forth below, it is hereby recommended that his petition be denied.

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I. Background
On direct appeal, the California Court of Appeal summarized the facts presented at trial as

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follows (pp. 2-4):2

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Bryan Brown became intoxicated while drinking with friends at his
friend’s apartment and at a bar. He and his friends subsequently

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Warden Davey, the warden at petitioner’s current place of incarceration, is hereby substituted
as the respondent in this action. See Rule 2, Rules Governing Section 2254 Cases.
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Respondent lodged the Court of Appeal opinion with the court on May 12, 2016.
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went to a Denny’s restaurant around 1:50 a.m. Defendant was at a
table in the restaurant with three women and a Hispanic man.
Brown entered the men’s restroom at the restaurant around 2:25
a.m. Restaurant video cameras recorded activity in the dining room
but not in the restroom. The restroom was unoccupied when Brown
entered, but defendant and the Hispanic man at his table soon
moved toward the men’s restroom about 40 seconds apart.

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Brown was at the urinal and heard the door open, then shut, then
open again. When Brown turned his head to look, he was struck on
the side of the head. Brown fell against the bathroom stall divider
and turned to face his attacker. A second man grabbed Brown and
threw him into a toilet stall. Brown was hit two or three times in
the head, fell to the ground, and was kneed or kicked in the ribs.
One of the assailants got on Brown’s back and repeatedly hit him in
the back of his head.
The assailants went through Brown’s pockets and then resumed the
attack. Brown tried to get up, but one of the men yelled “stay
down” and kicked Brown on the left side of his face. One of the
men said “he’s done” and the assailants left the bathroom. The
assailants left the restaurant together; the women in their group also
left.

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Brown never lost consciousness but he did not get a good look at
the faces of his assailants. He asked his friends if they had seen
“those guys.” Two of his friends rushed outside; one obtained a
license plate number and called 911. The license plate number was
assigned to a vehicle registered at the address where defendant
lived. Defendant was arrested at his home at around 3:45 a.m. on
May 25, 2013. His clothing matched that worn by one of the men
in the Denny’s video. Defendant had $793 in cash when he was
arrested.

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Brown did not realize anything was taken until the responding
officer asked him whether anything was missing. He noticed that
his wallet, cell phone, and portable cell phone charger were taken.
Brown first thought he only had $5 in cash, but was reminded that
two of his friends had given him $200 while at Denny’s to pay their
share of the tab at the Mix bar earlier that evening.
Brown was taken to the emergency room where he received five
stitches for a one centimeter laceration under his right eye. His
right eye was completely swollen shut and there was swelling
around his left eye. The emergency room doctor described the
injury to the right eye as significant. Brown told the doctor his pain
level was an eight out of 10. He had contusions on his face
consistent with being hit in the head. Several days later, Brown had
bruising caused by the broken blood vessels under the eye. He did
not sustain a skull fracture or concussion.
Defendant called a friend from the Sacramento County Main Jail on
May 25, 2013, at around noon. He said the police had taken his
money and the victim had little, if anything, in his pockets.
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Testifying on his own behalf, defendant said he went to the
Denny’s restaurant with a girl and had just met the Hispanic man
seated next to him. Defendant paid the tab for the table. He went
to the restroom, where he saw Brown and the Hispanic man talking
trash to each other. Defendant said he went into the disabled access
stall and heard the sounds of fighting.

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Defendant said he saw the Hispanic man on top of Brown, who was
on all fours. Defendant was shocked but did not intervene because
it was none of his business. The Hispanic man took something
from Brown’s back pocket. As defendant left, the Hispanic Man
continued to punch Brown. As defendant walked to the front exit,
he noticed the Hispanic man behind him. Defendant walked rapidly
out of the restaurant because he had just witnessed a fight.

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The Hispanic man ran past defendant and threw something in a
trash can. Defendant and his date got in his car and left. After
dropping off his date, defendant went home.

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Defendant said he obtained the cash in his possession from his
father after helping with construction work. He said his comment
in jail about the content of Brown’s pockets reflected his belief that
the Hispanic man had taken everything from Brown’s pockets.

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II. Standard For Habeas Corpus Relief
An application for a writ of habeas corpus by a person in custody under a judgment of a

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

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U.S.C. § 2254(a).3 Also, federal habeas corpus relief is not available for any claim decided on the

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merits in state court proceedings unless the state court’s adjudication of the claim:

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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States; or

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(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

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28 U.S.C. § 2254(d) (referenced herein in as “§ 2254(d).” It is the habeas petitioner’s burden to

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show he is not precluded from obtaining relief by § 2254(d). See Woodford v. Visciotti, 537 U.S.

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19, 25 (2002).
The “contrary to” and “unreasonable application” clauses of § 2254(d)(1) are different.

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As the Supreme Court has explained:

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The court does not have jurisdiction over any claim arising under state law.
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A federal habeas court may issue the writ under the “contrary to”
clause if the state court applies a rule different from the governing
law set forth in our cases, or if it decides a case differently than we
have done on a set of materially indistinguishable facts. The court
may grant relief under the “unreasonable application” clause if the
state court correctly identifies the governing legal principle from
our decisions but unreasonably applies it to the facts of the
particular case. The focus of the latter inquiry is on whether the
state court’s application of clearly established federal law is
objectively unreasonable, and we stressed in Williams [v. Taylor,
529 U.S. 362 (2000)] that an unreasonable application is different
from an incorrect one.

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Bell v. Cone, 535 U.S. 685, 694 (2002). A state court does not apply a rule different from the law

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set forth in Supreme Court cases, or unreasonably apply such law, if the state court simply

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fails to cite or fails to indicate an awareness of federal law. Early v. Packer, 537 U.S. 3, 8 (2002).
The court will look to the last reasoned state court decision in determining whether the

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law applied to a particular claim by the state courts was contrary to the law set forth in the cases

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of the United States Supreme Court or whether an unreasonable application of such law has

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occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Here, the last reasoned opinion

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was rendered by the California Court of Appeal on direct appeal.
When a state court rejects a federal claim without addressing the claim, a federal court

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presumes the claim was adjudicated on the merits, in which case § 2254(d) deference is

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applicable. Johnson v. Williams, 133 S. Ct. 1088, 1096 (2013). This presumption can be

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rebutted. Id.

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It is appropriate to look to lower federal court decisions to determine what law has been

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“clearly established” by the Supreme Court and the reasonableness of a particular application of

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that law. “Clearly established” federal law is that determined by the Supreme Court. Arredondo

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v. Ortiz, 365 F.3d 778, 782-83 (9th Cir. 2004). At the same time, it is appropriate to look to

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lower federal court decisions as persuasive authority in determining what law has been “clearly

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established” and the reasonableness of a particular application of that law. Duhaime v.

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Ducharme, 200 F.3d 597, 598 (9th Cir. 1999); Clark v. Murphy, 331 F.3d 1062 (9th Cir. 2003),

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overruled on other grounds, Lockyer v. Andrade, 538 U.S. 63 (2003); cf. Arredondo, 365 F.3d at

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782-83 (noting that reliance on Ninth Circuit or other authority outside bounds of Supreme Court

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precedent is misplaced).

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III. Arguments and Analysis

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A. Sufficiency Of Evidence For Robbery

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In his first claim, petitioner argues that the evidence presented at trial is not sufficient

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under the Constitution to sustain his robbery conviction. Specifically, petitioner argues there was

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no evidence presented at trial that either he, or the Hispanic male referenced above, intended to

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steal Brown’s property before Brown was physically attacked or during the attack.

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This claim was addressed by the California Court of Appeal on direct appeal. First, the

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Court of Appeal identified the correct legal standard for Constitutional sufficiency of the evidence

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claims: “the relevant question is whether, after viewing the evidence in the light most favorable

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

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beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in

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original). The court then went on to analyze petitioner’s claim:

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Robbery is the taking of personal property from a person or the
person’s immediate presence by means of force or fear, with the
intent to permanently deprive the person of the property. (§ 211;
People v. Harris (1994) 9 Cal.4th 407, 415.) To support a robbery
conviction, the evidence must show that the intent to steal arose
either before or during the commission of the act of force,
otherwise the taking will at most constituted a theft. (People v.
Bolden (2002) 29 Cal.4th 515, 556.)

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Defendant relies on Brown’s trial testimony, noting that Brown said
he did not realize he was missing any items until the police asked
him if he was missing anything. Defendant also points to consistent
testimony from the officer who initially interviewed Brown.
Defendant concludes it is not clear when the property was taken
from Brown.

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Defendant acknowledges that Brown told another officer in a later
interview4 that the men told him to stay down and then went
through his pockets. According to defendant, however, if the theft
occurred at that point, it would not prove that the intent to steal was
formed prior to the assault. Defendant argues it is “equally likely
that the intent to steal was formed when Mr. Brown was on the
ground and after the assault had concluded.”

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Brown’s first interview with an officer was on the day of the incident, May 25, 2013. The
second interview took place on June 6, 2013.
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But [Mr. Brown] told the officer the men resumed beating him after
one of them went through his pockets. A robbery is not complete
until the robber “has won his way to a place of temporary safety.”
(People v. Carroll (1970) 1 Cal.3d 581, 585; People v. Fierro
(1991) 1 Cal.4th 173, 226.) Beating defendant after the property
was taken could reasonably be construed as part of the robbery: an
attempt to help the assailants escape before Brown could respond.
Because the assailants took Brown’s property between beatings, the
property was taken during the application of force, providing the
appropriate nexus to support the robbery conviction.

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Other evidence supports an inference that defendant formed the
intent to steal before the use of force. Brown did not know
defendant or interact with him or his associates before entering the
restroom. Defendant was in the Denny’s restaurant before Brown.
While at the restaurant, but before Brown entered the restroom,
Brown’s friends gave Brown $200 for their share of the bar tab
earlier that evening. The assailants entered the restroom soon after
Brown entered, and Brown was attacked as he was turning his head
to see who had entered the restroom. There is no evidence that the
assailants had any other motive to follow a stranger into the
restroom and attack him.

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In reviewing for sufficiency of the evidence, we must make every
reasonable inference in support of the conviction. And if a fact
could support both guilt and innocence, we must affirm the
conviction. Here we conclude the robbery conviction is supported
by substantial evidence.

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After reviewing relevant Supreme Court authority, the decision of the California Court of

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Appeal, the arguments of the parties and the relevant portions of the record, the court finds that

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the Court of Appeal’s decision with respect to petitioner’s sufficiency of the evidence claim is not

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contrary to, nor does it involve an unreasonable application of, clearly established federal law as

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determined by the Supreme Court of the United States. Furthermore, the Court of Appeal’s

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decision is not based upon an unreasonable determination of the facts. For these reasons,

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petitioner is precluded from obtaining relief as to his sufficiency of evidence claim by 28 U.S.C. §

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2254(d).

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B. Failure To Instruct On Theft

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In his second claim, petitioner asserts the trial court violated his right to due process under

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the Fourteenth Amendment by failing, sua sponte, to instruct jurors regarding the elements of

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theft, a lesser included offense of robbery. To date, the Supreme Court has never found that a

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judge in a non-death penalty case has any obligation to instruct jurors regarding a lesser included
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offense if neither party has requested the instruction. See Beck v. Alabama, 447 U.S. 625, 638 n.

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14 (1980) (reserving the question of whether the Due Process Clause would ever require the

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giving of a lesser included offense instruction in a non-capital case). Accordingly, the court

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cannot find that the Court of Appeal’s rejection of this claim is contrary to, or involves an

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unreasonable application of, clearly established federal law as determined by the Supreme Court

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of the United States. Again, petitioner is precluded from obtaining relief by 28 U.S.C. § 2254(d).

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For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that:

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1. Petitioner’s application for a writ of habeas corpus be denied; and

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2. This case be closed.

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These findings and recommendations are submitted to the United States District Judge

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

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

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

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

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

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

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

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applicant). Any response to the objections shall be served and filed within fourteen days after

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

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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Dated: September 15, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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