Jackio v. Pfeiffer

Filing 27

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 1/7/2019 RECOMMENDING that 1 Petition for Writ of Habeas Corpus be denied in its entirety, and a certificate of appealability should be issued only for the Faretta advisement issue. Referred to Judge William B. Shubb. Objections due within 21 days after being served with these findings and recommendations. (Huang, H)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

LAWRENCE L. JACKIO,

12

Petitioner,

13
14

No. 2:16-cv-2812 WBS GGH

v.

FINDINGS AND RECOMMENDATIONS

CHRISTIAN PFEIFFER,

15

Respondent.

16
17
18

Introduction and Summary

19

Petitioner was convicted, inter alia, of attempted murder on one house resident, and

20

assault with a firearm and causing great bodily injury on another in an armed robbery/burglary

21

gone bad. He raises several issues, the most difficult of which involve Faretta1 issues. For the

22

reasons set forth below, the undersigned recommends that the petition be denied.

23

Factual Background

24

The undersigned finds the factual background set forth by the California Third District

25

Court of Appeal (“Court of Appeal”) to be an accurate summary of the facts:

26

////

27
28

1

Faretta v. California, 422 U.S. 806 (1975).
1

1

FACTS

2

We recount the evidence in the light most favorable to the jury’s
verdicts. For example, even though neither of the victims was able
to identify defendant as one of the assailants, we refer to him by
name from the outset because there was ample evidence that he was
one of the assailants.

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

Early in the morning on June 16, 2011, defendant and Rashid
Deary–Smith entered the garage of a house where Martez Laster
and Antonia Branch lived together with their one-year-old son.
Between 2:00 and 3:00 a.m., Branch, who had been out that night,
approached the residence in her car with her son in the backseat.
She opened the garage door with a remote control from her car and
drove into the garage. In the garage, Branch closed the garage door
with the remote control and went around her car to get her son out
of the backseat. Defendant and Deary–Smith approached her,
pointed guns at her, and told her to open the door leading into the
house. One of the men, probably Deary–Smith, hit Branch in the
head with his gun, opening up a wound that required five staples to
close.
Laster, who was inside the house, heard the commotion in the
garage and grabbed his .40–caliber handgun. He went to the door
that connects the garage to the interior of the house, unlocked it,
and began to open it. As he was opening the door, he was rushed by
defendant and Deary–Smith. Laster took a couple of steps back and
was shot in the side, so he returned fire. Defendant and Deary–
Smith retreated into the garage.
Both defendant and Deary–Smith had been hit by gunfire from
Laster. Deary–Smith was hit in the head and fell to the floor of the
garage, and defendant, who was hit in the leg, escaped out the side
door of the garage. Meanwhile, Branch got back into her car, put
the car in reverse, and backed up through the closed garage door.
A neighbor saw defendant flee. Defendant limped along, leaving a
trail of blood and dragging himself to a car. He got into the car and
drove away. A subsequent medical examination revealed that
defendant was hit twice in the leg, with one of the bullets breaking
his femur. Defendant had gunshot residue on his hands and pants.
The DNA in the trail of blood from the house to the car matched
defendant’s DNA profile. Also along the trail of blood between the
house and the car, defendant dropped a nine-millimeter handgun.

23
24
25
26

When law enforcement arrived at the house, Deary–Smith was still
on the floor of the garage. He had zip ties in his pocket, and a
loaded .45–caliber semiautomatic handgun was on the ground next
to his head. No spent .45–caliber casings were found at the
house—evidence that Deary–Smith did not fire the gun. Separate
DNA samples from the gun matched Deary–Smith’s and Branch’s
DNA profiles.

27
28

Later that day, when the owner of the car that defendant had driven
away from the house looked into her car, she found blood and
2

1

defendant’s wallet. The blood was also identified as defendant’s
through DNA testing.

2
Two expended casings from a nine-millimeter gun were found, one
in the house and one in the garage. They matched the gun left by
defendant as he dragged himself to the car after the shootings.

3
4

Defendant testified in his own defense. He admitted that he was at
the house in question when the gunfire erupted. He claimed,
however, that he had taken Deary–Smith there to meet Deary–
Smith's cousin. While defendant was waiting in front of the house,
he saw someone back out through the garage door, heard gunshots,
and realized he had been hit. He dragged himself to the car and
drove away.

5
6
7
8

PROCEDURE
9
A jury convicted defendant of first degree burglary (Pen. Code, §
459; count one); two counts of assault with a firearm (Pen. Code, §
245, subd. (a)(2); counts two and four); attempted murder (Pen.
Code, §§ 664, 187, subd. (a); count three); two counts of attempted
first degree robbery (Pen. Code, §§ 664, 211; counts five and six);
and being a felon in possession of a firearm (Pen.Code, § 12021,
subd. (a)(1); count seven). The jury also found true various arming,
discharge, and great bodily injury allegations. In a bifurcated
proceeding, the trial court found that defendant had a prior serious
felony conviction. The court sentenced defendant to a determinate
term of 19 years four months in state prison, with a consecutive
indeterminate term of 50 years to life.

10
11
12
13
14
15
16

People v. Jackio, 236 Cal. App. 4th 445, 447-449 (2015).

17

Issues

18

Petitioner raises the following three issues:

19

1. Whether the trial court’s advisement as to the “range of penalties,” prior to accepting

20

the Faretta waiver and permitting petitioner to represent himself, was adequate;
2. Whether petitioner’s desire to represent himself was born from an incompatible

21
22

relationship with his attorney—presenting petitioner with a “Hobson’s Choice” of representing

23

himself or continuing with counsel; and
3. Insufficient Evidence: Petitioner being inside the house (garage area) at the time of the

24
25

attempted robbery, attempted murder, etc., and a participant in the robbery/burglary/attempted

26

murder, etc. in any event.

27

////

28

////
3

1

AEDPA Standards

2

The statutory limitations of the power of federal courts to issue habeas corpus relief for

3

persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and

4

Effective Death Penalty Act of 1996 (“AEDPA”). The text of § 2254(d) provides:

5
6
7
8
9
10
11
12

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

13

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

14

Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir.2013) (citing Greene v. Fisher, 565 U.S. 34,

15

39 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529

16

U.S. 362, 405-406 (2000)). Circuit precedent may not be “used to refine or sharpen a general

17

principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has

18

not announced.” Marshall v. Rodgers, 569 U.S. 58, 63-64 (2013) (citing Parker v. Matthews,

19

587 U.S. 37, 48 (2012)). Nor may it be used to “determine whether a particular rule of law is so

20

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

21

be accepted as correct. Id.

22

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

23

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

24

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

25

Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the

26

writ if the state court identifies the correct governing legal principle from the Supreme Court’s

27

decisions, but unreasonably applies that principle to the facts of the prisoner’s case. Lockyer v.

28

Andrade, 538 U.S. 63, 75 (2003); Williams, supra, 529 U.S. at 413; Chia v. Cambra, 360 F.3d
4

1

997, 1002 (9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ simply

2

because that court concludes in its independent judgment that the relevant state-court decision

3

applied clearly established federal law erroneously or incorrectly. Rather, that application must

4

also be unreasonable.” Williams, supra, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S.

5

465, 473 (2007); Lockyer, supra, 538 U.S. at 75 (it is “not enough that a federal habeas court, ‘in

6

its independent review of the legal question,’ is left with a ‘firm conviction’ that the state court

7

was ‘erroneous.’” “A state court’s determination that a claim lacks merit precludes federal habeas

8

relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s

9

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

10

U.S. 652, 664 (2004). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal

11

court, a state prisoner must show that the state court’s ruling on the claim being presented in

12

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

13

comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington,

14

supra, 562 U.S. at 103.

15

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

16

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

17

2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning

18

from a previous state court decision, this court may consider both decisions to ascertain the

19

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

20

banc). “[Section] 2254(d) does not require a state court to give reasons before its decision can be

21

deemed to have been ‘adjudicated on the merits.’” Harrington, supra, 562 U.S. at 100. Rather,

22

“[w]hen a federal claim has been presented to a state court and the state court has denied relief, it

23

may be presumed that the state court adjudicated the claim on the merits in the absence of any

24

indication or state-law procedural principles to the contrary.” Id. at 99. This presumption may be

25

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

26

decision is more likely.” Id. at 99-100. Similarly, when a state court decision on a petitioner’s

27

claims rejects some claims but does not expressly address a federal claim, a “federal habeas court

28

must presume (subject to rebuttal) that the federal claim was adjudicated on the merits.” Johnson
5

1

v. Williams, 568 U.S. 289, 293 (2013). When it is clear, however, that a state court has not

2

reached the merits of a petitioner’s claim, the deferential standard set forth in 28 U.S.C. § 2254(d)

3

does not apply and a federal habeas court must review the claim de novo. Stanley, supra, 633

4

F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d

5

1052, 1056 (9th Cir. 2003).

6

The state court need not have cited to federal authority, or even have indicated awareness

7

of federal authority in arriving at its decision. Early v. Packer, 537 U.S. 3, 8 (2002). Where the

8

state court reaches a decision on the merits but provides no reasoning to support its conclusion, a

9

federal habeas court independently reviews the record to determine whether habeas corpus relief

10

is available under § 2254(d). Stanley, supra, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848,

11

853 (9th Cir. 2003). “Independent review of the record is not de novo review of the constitutional

12

issue, but rather, the only method by which we can determine whether a silent state court decision

13

is objectively unreasonable.” Id. at 853. Where no reasoned decision is available, the habeas

14

petitioner still has the burden of “showing there was no reasonable basis for the state

15

court to deny relief.” Harrington, supra, 562 U.S. at 98. A summary denial is presumed to be a

16

denial on the merits of the petitioner’s claims. Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir.

17

2012). While the federal court cannot analyze just what the state court did when it issued a

18

summary denial, the federal court must review the state court record to determine whether there

19

was any “reasonable basis for the state court to deny relief.” Harrington, supra, 562 U.S. at 98.

20

This court “must determine what arguments or theories ... could have supported, the state court’s

21

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

22

arguments or theories are inconsistent with the application was unreasonable requires considering

23

the rule’s specificity. The more general the rule, the more leeway courts have in reaching

24

outcomes in case-by-case determinations.’” Id. at 101 (quoting Knowles v. Mirzayance, 556 U.S.

25

111, 122 (2009)). Emphasizing the stringency of this standard, which “stops short of imposing a

26

complete bar of federal court relitigation of claims already rejected in state court proceedings[,]”

27

the Supreme Court has cautioned that “even a strong case for relief does not mean the state

28

////
6

1

court’s contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer v. Andrade, 538 U.S.

2

63, 75 (2003).

3
4

With these principles in mind the court turns to the merits of the petition.
Discussion

5

A. Faretta Advisement About the “Range of Potential Penalties

6

A criminal defendant seeking to represent himself must be advised of the pitfalls which he

7

may well encounter in a criminal proceeding along with the possible downside in terms of

8

penalty, i.e., upon conviction the “range” of punishment risks involved in self-representation.

9

Faretta, supra. A failure of the trial court to perform both advisements may result in an

10

involuntary/unknowing waiver of the right to counsel. Because this case takes place in the

11

AEDPA setting, the focus of petitioner’s inquiry must be whether the Court of Appeal, the last

12

state court with a reasoned explanation, unreasonably applied established Supreme Court binding

13

precedent. The Court of Appeal divided the analysis into two issues: (1) whether the Supreme

14

Court authority requiring advisement on the “range of penalties” applied in a trial setting as

15

opposed to a guilty plea setting; and (2) whether advisement of the maximum potential penalty

16

without more was adequate advisement. The undersigned finds below that binding Supreme

17

Court precedent does not permit the analysis of the Court of Appeal to apply to the first issue, but

18

that as to the second, advice of “up to life” in prison as the maximum punishment suffices to

19

satisfy the requirement to give the “range” of penalties.

20

The Court of Appeal found the following on the first issue:

21

Faretta Waiver

22

Before trial, defendant decided to represent himself, which
prompted the trial court to warn defendant of the dangers of selfrepresentation, including the possibility that he faced, in the trial
court’s words, “life in prison.” Defendant contends that, when he
moved to represent himself, the trial court failed to give him an
adequate breakdown of what punishment he was facing if
convicted. He argues that, under these circumstances, his waiver of
the right to counsel was not knowing and voluntary under Faretta v.
California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562
(Faretta).

23
24
25
26
27
////
28

7

1

Defendant’s contention raises two issues.

2

First, what notice does the Sixth Amendment require concerning
the penalty faced if the defendant is convicted? Does it require a
breakdown of the full range of sentencing options with respect to
the crimes and enhancements charged? Or does it simply require
the court to notify the defendant concerning the maximum penalty
he faces? We conclude that it is the latter—that the court need
notify the defendant only of the maximum penalty he faces.

3
4
5
6

And second, did the trial court’s waiver colloquy in this case
adequately notify this defendant of the maximum penalty he faced
if convicted? We conclude that, by informing defendant that he
faced life in prison as a penalty for the crimes and enhancements
charged, the court adequately notified defendant of the possible
penalty he faced if convicted.

7
8
9

11

Because the trial court’s advisement concerning the penalty was
adequate, defendant’s waiver of the right to counsel was knowing
and voluntary, and there was no violation of his Sixth Amendment
right to counsel.

12

A. Procedural Background

13

On March 23, 2012, defendant signed a Faretta waiver form which
included the following statement: “Penalties for offense if found
guilty are life in prison.” The underscored part of the statement was
handwritten. After a preliminary hearing on April 16, 2012,
however, defendant requested and was granted appointment of
counsel.

10

14
15
16

On May 18, 2012, defendant appeared before the court on a new
Faretta motion. Defendant said that he was a high school graduate
and had finished almost a year of college. The court went through
the normal litany of admonitions about representing oneself in a
criminal action. (Defendant does not claim on appeal that the
admonitions were deficient, except as discussed here.) The relevant
colloquy is as follows:

17
18
19
20

“THE COURT: ... You do understand the penalties for the offenses
for which you’ve been charged could carry up to a life sentence[?]
[¶] Do you understand that?

21
22

“THE DEFENDANT: Yes.” (Italics added.)
23
The court provided another Faretta waiver form, which defendant
signed, with the following statement: “Penalties for offense if found
guilty are life.” Again, the underlined portion was handwritten. The
form listed the code sections for the crimes charged in the
information, but it did not list any code sections for enhancements.

24
25
26

The court found that defendant had made a knowing and voluntary
waiver of his right to counsel.

27
28

////
8

1

B. Sixth Amendment Jurisprudence

2

The Sixth Amendment of the United States Constitution guarantees
a defendant both (1) the right to be represented by counsel at
critical stages of the prosecution and (2) the right to represent
himself, if he so elects. (Faretta, supra, 422 U.S. at p. 819, 95 S.Ct.
2525; People v. Koontz (2002) 27 Cal.4th 1041, 1069, 119
Cal.Rptr.2d 859, 46 P.3d 335 (Koontz).) However, we must indulge
every reasonable inference against a defendant’s waiver of the right
to counsel. (Brewer v. Williams (1977) 430 U.S. 387, 404, 97 S.Ct.
1232, 51 L.Ed.2d 424; Koontz, supra, 27 Cal.4th at p. 1069, 119
Cal.Rptr.2d 859, 46 P.3d 335.)

3
4
5
6
7
8
9
10
11

A valid waiver includes: (1) a determination by the court that the
defendant has the mental capacity to understand the proceedings
(which is not an issue in this case) and (2) a finding that the waiver
is knowing and voluntary, which entails a finding that the defendant
understands the consequences of the decision and is not being
coerced. (Godinez v. Moran (1993) 509 U.S. 389, 400–401 & fn.
12, 113 S.Ct. 2680, 2687–2688 & fn. 12, 125 L.Ed.2d 321, 332–
333; Koontz, supra, 27 Cal.4th at pp. 1069–1070, 119 Cal.Rptr.2d
859, 46 P.3d 335.)

12
13
14
15
16
17

“In order to make a valid waiver of the right to counsel, a defendant
‘should be made aware of the dangers and disadvantages of selfrepresentation, so that the record will establish that “he knows what
he is doing and his choice is made with eyes open.” [Citation.]’
(Faretta, supra, 422 U.S. at p. 835 [95 S.Ct. 2525].) No particular
form of words is required in admonishing a defendant who seeks to
waive counsel and elect self-representation; the test is whether the
record as a whole demonstrates that the defendant understood the
disadvantages of self-representation, including the risks and
complexities of the particular case. [Citation.]” (Koontz, supra, 27
Cal.4th at pp. 1070, 119 Cal.Rptr.2d 859, 46 P.3d 335.)

18

21

Our role on appeal after a defendant has defended himself under
Faretta and now claims that his waiver of the right to counsel was
made without being adequately advised of the dangers and
disadvantages of self-representation is to examine the whole record
to determine de novo whether the waiver was valid. (Koontz,
supra, 27 Cal.4th at pp. 1070, 119 Cal.Rptr.2d 859, 46 P.3d 335.)

22

C. Analysis

19
20

23

1. What does the Sixth Amendment require?

24

As noted, defendant was warned that he could be sentenced up to
life in prison if convicted. On appeal, he claims, however, that the
advisement was inadequate because the trial court was required to
advise him of the full range of punishments he could face for the
crimes and enhancements charged.

25
26
27
28

Defendant relies primarily on a decision of the Ninth Circuit of the
United States Court of Appeals in making his contention that the
advisements here were inadequate. But we are not bound by that
9

1
2
3
4
5
6
7

decision. (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3, 36
Cal.Rptr.2d 474, 885 P.2d 887.) Therefore, although we will
discuss the Ninth Circuit decision later, we start with the
jurisprudence of the California Supreme Court and the United
States Supreme Court.
No case of the California Supreme Court directly answers the
specific question posed in this case: whether a defendant wishing to
represent himself at trial must be advised of the full range of
punishments he could face if convicted. However, in 2002, the
court held that a trial court did not err in giving advisements when it
instructed a defendant who wanted to represent himself at trial that
he faced the death penalty. (Koontz, supra, 27 Cal.4th at pp. 1069–
1073, 119 Cal.Rptr.2d 859, 46 P.3d 335.

8
9
10
11
12
13
14

Obviously, the sentence could have been life without parole, even if
he was convicted of all the crimes, because the death penalty is not
mandatory for any crime in California. (See Pen.Code, § 190.) But
in Koontz, the court did not discuss specifically the advisement
concerning the possible penalty if the defendant was convicted.
Instead, it rejected the defendant’s contentions that (1) the trial
court did not adequately warn him of the disadvantages of not
having an attorney represent him and (2) the defendant was
mentally unfit to comprehend the risks of representing himself.
(Koontz, supra, 27 Cal.4th at pp. 1072–1073, 119 Cal.Rptr.2d 859,
46 P.3d 335.) A case is not authority for a proposition not
considered. (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2, 39
Cal.Rptr. 377, 393 P.2d 689.)

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

A 2009 California Supreme Court case summarized the law
generally applicable in these circumstances:
“ ‘A defendant seeking to represent himself “should be made aware
of the dangers and disadvantages of self-representation, so that the
record will establish that ‘he knows what he is doing and his choice
is made with eyes open.’ [Citation].” (Faretta, supra, 422 U.S. at p.
835, 95 S.Ct. 2525.) “No particular form of words is required in
admonishing a defendant who seeks to waive counsel and elect selfrepresentation.” [Citation.] Rather, “the test is whether the record as
a whole demonstrates that the defendant understood the
disadvantages of self-representation, including the risks and
complexities of the particular case.” [Citations.]’ [Citation.] Thus,
‘[a]s long as the record as a whole shows that the defendant
understood the dangers of self-representation, no particular form of
warning is required.’ [Citations.]” (People v. Burgener (2009) 46
Cal.4th 231, 240–241, 92 Cal.Rptr.3d 883, 206 P.3d 420
(Burgener).)
Likewise, no decision of the United States Supreme Court answers
the specific question presented by defendant here. However, in
2004, the high court provided guidance concerning the necessary
advisements in a different procedural setting—when a defendant
desires to represent himself to enter a guilty plea. (Iowa v. Tovar
(2004) 541 U.S. 77, 124 S.Ct. 1379, [158 L.Ed.2d 209] (Tovar).)

28
10

1
2
3
4
5
6
7
8
9
10

In Tovar, the defendant said during pretrial proceedings that he
wanted to represent himself and to plead guilty. The trial court
engaged in a guilty plea colloquy, advising the defendant of the
rights he must waive to plead guilty, but the court did not advise the
defendant under Faretta of the dangers and disadvantages of selfrepresentation. The Iowa Supreme Court found that the trial court’s
advisements were deficient because the court did not warn the
defendant that by representing himself he might overlook viable
defenses and would not have the opportunity to obtain an
independent opinion of whether he should plead guilty. (Tovar,
supra, 541 U.S. at pp. 81–84, 124 S.Ct. 1379.)
On review, the Tovar court held that the advisements required by
the Iowa Supreme Court are not required by the United States
Constitution. Instead, “[t]he constitutional requirement is satisfied
when the trial court informs the accused of the nature of the charges
against him, of his right to be counseled regarding his plea, and of
the range of allowable punishments attendant upon the entry of a
guilty plea.” (Tovar, supra, 541 U.S. at p. 81, 124 S.Ct. 1379, italics
added.)

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The Tovar court emphasized that the central component for a valid
waiver is that the defendant knows what he is doing because he has
been warned of the hazards ahead. But there is no prescribed script.
(Tovar, supra, 541 U.S. at pp. 88–89, 124 S.Ct. 1379.)
The difference in procedural settings of this case and Tovar is
significant. In Tovar, the defendant was pleading guilty. Here, a
trial lay ahead.
Tovar’s requirement that a defendant desiring to represent himself
in order to enter a guilty plea be advised of “the range of allowable
punishments attendant upon the entry of a guilty plea” cannot
practically be applied to a defendant desiring to represent himself at
trial. The essential difference is that, while in a guilty plea setting
the crimes and enhancements for which the defendant can be
punished are known, in a case such as ours where the defendant is
going to trial the jury may or may not convict the defendant of the
crimes or find true the enhancement allegations. This makes it
impractical to try to predict the possible terms and enhancements
that will eventually be available to the trial court at sentencing.
When a defendant represents himself, he may be acquitted, which
means he will not be subject to punishment. On the other hand, he
may be convicted of all the crimes charged, with true findings on all
the enhancements. In that case, the court may impose the
maximum punishment for the crimes and enhancements charged.
Also, the jury may convict on some counts and acquit on others or
convict of lesser included crimes, and the jury may do the same
with the enhancement allegations. If the defendant is convicted and
enhancements are found true, the court may strike or stay some of
the punishment or select lower terms. In other words, a requirement
that a trial court advise a defendant desiring to represent himself at
trial of the full range of possible punishments would require the
trial court to start with no punishment for acquittal and work its
11

1
2

way through the virtually endless permutations and combinations of
terms, ending with the maximum possible punishment. Merely to
state it demonstrates the unworkability of requiring the court to
advise the defendant as to every possible punishment.

3
4
5
6
7
8
9
10

Instead, the most reasonable solution consistent with case law and
the United States Constitution is to require the trial court to advise a
defendant desiring to represent himself at trial of the maximum
punishment that could be imposed if the defendant is found guilty
of the crimes, with enhancements, alleged at the time the defendant
moves to represent himself. By so advising, the trial court puts the
defendant on notice that, by representing himself, he is risking
imposition of that maximum possible punishment. The defendant
who decides to represent himself after this advisement proceeds
with his “ ‘eyes open’ ” and understands the dangers of selfrepresentation, at least with respect to the possible punishment.
(Faretta, supra, 422 U.S. at p. 835, 95 S.Ct. 2525; Burgener, supra,
46 Cal.4th at p. 241, 92 Cal.Rptr.3d 883, 206 P.3d 420.) Neither the
Constitution nor interpretive case law requires more.

11

People v. Jackio, 236 Cal. App. 4th at 451-455.

12

The Court of Appeal continued:

13

2. Was the advisement in this case adequate?

14

With this understanding, that an advisement of the maximum
possible punishment satisfies the federal Constitution’s
requirements with respect to a Faretta colloquy, we turn to the
advisement given in this case. Defendant contends that it was
deficient because the trial court’s statement that he faced life in
prison was ambiguous. We disagree.

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

On appeal, defendant argues: “The court’s advisement that
[defendant] faced ... ‘life’ is too ambiguous in light of the various
meanings of life, as well as the fact that [defendant] was in fact
facing onerous 25–to–life sentences, along with doubled sentences
under the Three Strikes statutes.”
The focus of our review of the adequacy of a specific Faretta
advisement is what the defendant understood from the advisement.
(See People v. Welch (1999) 20 Cal.4th 701, 733, 85 Cal.Rptr.2d
203, 976 P.2d 754.) We conclude that the advisement here
successfully apprised defendant that, if he were convicted, he could
spend the rest of his life in prison.
Three statements are at issue here. The first Faretta waiver form
instructed defendant that “[p]enalties for offense if found guilty are
life in prison.” (Underscoring omitted.) Later, during the second
Faretta proceedings, defendant expressly stated that he understood
he could be sentenced “up to a life sentence.” And finally, the
second Faretta waiver form instructed defendant that “[p]enalties
for offense if found guilty are life.” (Underscoring omitted.)

28
12

1
2

These statements, taken together, were clear that defendant’s
punishment could amount to “life in prison,” meaning incarceration
for the rest of his life. Nothing in the record leads us to conclude
otherwise.

3
4
5

However, defendant asserts that, because a “life” term under
California law can mean so many different things, we must
conclude that the advisement was ambiguous and did not
successfully convey to defendant that a conviction might result in
incarceration for the rest of his life.

6
7
8
9
10

Defendant seeks to equate the court’s use of the word “life” with
the statutory indeterminate term of life with parole, which allows
for parole after seven years. Penal Code section 3046 provides that
a prisoner “under a life sentence” may be paroled after seven years.
But defendant gives no good reason for us to believe that he
reasonably understood the court’s advisement to refer to Penal
Code section 3046. The advisement did not refer to that code
section but instead made a very simple statement about the length
of time defendant could be incarcerated.

11
12
13
14

We also see no relevance of the fact that defendant was facing
possible determinate and indeterminate terms or that he could be
subject to consecutive terms of 25 years to life for the firearm
discharge allegations. Defendant argues that the trial court was
required to provide these details, but the United States Constitution
does not require an advisement concerning these permutations and
combinations, as we already discussed.

15
16
17
18
19
20
21

Finally, we consider defendant’s primary cited authority—United
States v. Erskine (9th Cir.2004) 355 F.3d 1161 (Erskine). That
Ninth Circuit decision is different on its facts and distinguishable
on the law, in addition to not being binding on us. In Erskine, the
trial court mistakenly informed the defendant during a Faretta
colloquy that he faced a possible one-year incarceration, even
though it was possible that the punishment for his crimes would be
five years. (Id. at p. 1165.) The Ninth Circuit held that it could not
conclude that the defendant’s Faretta waiver was knowing and
voluntary because of this error in the Faretta colloquy. (Erskine,
supra, 355 F.3d at p. 1171.) Here, on the other hand, there was no
error in the Faretta colloquy; therefore, the holding of Erskine does
not support reversal in this case.

22
23
24

We conclude that the Faretta colloquy in this case did not violate
defendant’s Sixth Amendment right to counsel.
People v. Jackio, 236 Cal. App. 4th at 455-456.

25

As the Court of Appeal found, petitioner’s cited case of Erskine v. United States is quite

26

distinguishable from the present case. It is one thing during a Faretta advisement to not address,

27

or incorrectly address, a defendant’s maximum penalty exposure, and quite another not to address

28

a minimum exposure. Erskine, aside from not being an AEDPA case, does not help petitioner
13

1

even if the merits were addressed without AEDPA deference. Moreover, petitioner’s case which

2

he requested this court to apply, Najero-Gordillo v. United States, No. CIV 09-397WBS, 2009

3

WL 2730879 (E.D. Cal. Aug. 25, 2009), also is not apposite. Federal habeas cases brought

4

pursuant to 28 U.S.C. section 2255, by definition do not apply the AEDPA deference required by

5

section 2254, and the district judge was not attempting to expound upon clearly established law as

6

set forth by the United States Supreme Court. But more importantly, like Erskine, the Najero-

7

Gordillo case involved an understatement on the maximum penalty. Petitioner’s cases do not

8

involve an understatement of the maximum penalty. Rather petitioner contends that the minimum

9

penalty (ies) was not addressed so as to not set forth the “range” of penalties.

10

Respondent cites to Arrendondo v. Neven, 763 F.3d 1122 (9th Cir. 2014), which is the

11

controlling case here, but it is a closer case than set forth by respondent. This case involved an

12

application of Iowa v. Tovar, 541 U.S. 77 (2004) in the trial context. Initially setting forth the

13

general principle that a Faretta advisement did not require any formulaic advisement,

14

Arrendondo, 763 F.3d at 1130, the court went on to hold that:

15
16
17
18
19
20
21
22
23
24
25
26
27
28

Faretta itself did not specifically address the defendant’s awareness
of his possible punishments. But Tovar, 541 U.S. 77, 124 S.Ct.
1379, did. That case explained that a defendant, before waiving his
right to counsel for the purpose of entering a guilty plea, must be
aware “of the nature of the charges against him, of his right to be
counseled regarding his plea, and of the range of allowable
punishments attendant upon the entry of a guilty plea.” Id. at 81,
124 S.Ct. 1379 (emphasis added); see also Von Moltke v. Gillies,
332 U.S. 708, 724, 68 S.Ct. 316, 92 L.Ed. 309 (1948) (plurality
opinion) (stating that a valid waiver of counsel for the purpose of
entering a guilty plea requires “an apprehension of ... the range of
allowable punishments,” among other matters). [footnote 2
omitted]
The requirement recounted in Tovar complements the requisites for
a valid waiver of the right to counsel described in Faretta.3
[footnote 3 omitted] As the common law of torts long ago
recognized, the rational calculation of risk requires multiplying the
magnitude of a threatened loss by the probability of its occurrence.
See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d
Cir. 1947). Tovar supplies the first of these terms; Faretta, the
second. By requiring awareness of the range of possible penalties,
Tovar ensures that defendants understand the magnitude of the loss
they face. Faretta, meanwhile, emphasizes awareness of “the
dangers and disadvantages of self-representation”—that is, the
specific, tactical liabilities of going to trial without trained counsel.
Faretta, 422 U.S. at 835, 95 S.Ct. 2525 (emphasis added). That
14

1
2
3

knowledge relates to the probability that a defendant will be
convicted, not the consequences of conviction. In short, the
requirements of Faretta and Tovar enrich one another. Taken
together, they outline the minimum necessary knowledge for a
defendant to calculate knowingly and intelligently the risk of
proceeding to trial pro se.

4
5
6
7

Arrendondo 763 F.3d at 1131.
The Ninth Circuit went on to hold:

8

Tovar’s statement concerning the defendant’s knowledge of
possible punishments is clearly established Supreme Court law, and
was at the time of the Court’s decision on the merits.

9

***

10

Tovar, unlike this case, concerned an uncounseled guilty plea, not a
defendant who represented himself at trial. But Tovar addressed
the relationship between waiver at the plea phase and waiver at
trial, stating that at the plea stage, “a less searching or formal
colloquy” is needed to gauge the defendant’s knowledge than is
necessary with regard to waiver of trial counsel. Tovar, 541 U.S. at
89, 124 S.Ct. 1379 (emphasis added) (citing Patterson, 487 U.S. at
299, 108 S.Ct. 2389). This difference is “not because pretrial
proceedings are ‘less important’ than trial, but because, at that
stage, ‘the full dangers and disadvantages of self-representation ...
are less substantial and more obvious to an accused than they are at
trial.’ ” Tovar, 541 U.S. at 90, 124 S.Ct. 1379 (emphasis added)
(quoting Patterson, 487 U.S. at 299, 108 S.Ct. 2389).

11
12
13
14
15
16
17
18
19
20
21
22

The risk calculation involved in determining whether to represent
oneself at trial differs from that at the plea stage with regard to the
number of tactical dangers of proceeding without counsel—that is,
the probability that proceeding without counsel will affect the
outcome. But there is no difference at all in the two circumstances
with regard to the other component of risk calculation—namely,
knowledge of the magnitude of the risk faced. And, given the
Court’s express declaration that the requirements for a guilty plea
waiver of counsel are less rigorous than those applicable to a trial
waiver, excising any of Tovar’s requirements in the trial context
would be an unreasonable interpretation of clearly established
Supreme Court law.

23
24
25

Arrendondo, 763 F.3d at 1132 (emphasis added)
Firstly, Arrendondo is an AEDPA case in which the Ninth Circuit expressly held that it

26

was applying established Supreme Court precedent. Id. at 1132. The undersigned recognizes that

27

he is not bound by Ninth Circuit authority in an AEDPA case when the issue decided is simply

28

based on Circuit precedent, or when the Circuit case is an extension or refinement of Supreme
15

1

Court authority. See AEDPA standards set forth above. But it is quite another situation when the

2

Circuit case expressly holds that it is applying established Supreme Court authority. In the latter

3

situation, the undersigned is bound by the Circuit case. See Pierce v. Sherman, No. 15-CV-05568

4

LHK (PR), 2017 WL 600099, at *7 (N.D. Cal. Feb. 13, 2017). Thus, the Court of Appeal’s

5

attempted distinction of Tovar in this case, i.e., Tovar only applies to guilty plea situations, but

6

not during trial, is AEDPA error. Pierce, supra at *6 (citing Arrendondo 763 F.3d at 1132).

7
8
9
10
11
12
13
14
15
16
17

Because the state Court of Appeal committed AEDPA error, the usual deference accorded
to state court decisions does not apply here. But such does not end the issue here.
[T]he trial court informed Arrendondo of the maximum penalties
carried by conviction for the charged offenses, possession of a
stolen vehicle and possession of stolen property, and Arrendondo
confirmed that he understood the court’s statement. See
Nev.Rev.Stat. §§ 205.273(4), 205.275(2)(c). We generally presume
that defendants seeking to waive their right to counsel understand
what they are told regarding that choice. See, e.g., Patterson, 487
U.S. at 296, 108 S.Ct. 2389; United States v. Mohawk, 20 F.3d
1480, 1484 (9th Cir.1994). In holding valid Arrendondo’s waiver
of counsel, the Nevada Supreme Court noted, correctly, that
Arrendondo’s understanding of his potential penal exposure
accurately reflected the charging documents before the trial court
at the time of his waiver.
Arrendondo, 763 F.3d at 1133 (emphasis added).
Although petitioner’s logical belief that a range of penalties is one that has a beginning

18

and end point on the spectrum of penalties, Arrendondo finds that the range of penalties is

19

sufficiently given if the outer end of the high spectrum is advised. And it may well be true in a

20

practical sense that a defendant will be most concerned with a maximum penalty and not the

21

varying potential for lesser penalties when deciding whether it is “worth it” to forego counsel.

22

An advisement of “up to life imprisonment” certainly conveys the idea that there is a possibility

23

of punishment less than life, i.e. a range of punishments.

24
25
26
27
28

Moreover, petitioner had been advised throughout the prosecution that lesser than life
punishments were available:
THE COURT: What’s he looking at?
***
THE COURT: What’s the exposure in this case? Is it significant?
16

1

MR. WISE: Yeah.

2

I mean his offer was 49 years at the intake level. And I think it’s 53
years now and he’s looking at life I mean.

3
4

ECF No. 24 at 44.
He was also told of the “potential” for life in prison. Id. at 45. “Potential” certainly

5
6

connotes that a lesser punishment was possible. Thus, it cannot be found here that an advisement

7

of “up to life imprisonment,” but a failure to give e.g., a specific “25 years-life” range,

8

constitutionally impacted petitioner’s decision to forego counsel and represent himself. “Up to

9

life imprisonment” or “potential for life” adequately conveys the range of penalties for all of

10

petitioner’s crimes. Moreover, petitioner was well aware that his “minimums” were fairly close

11

in range to his “maximums.” This claim should be denied.

12

B. Petitioner was given a “Hobson’s Choice” When the Trial Court Denied his Oral

13

Motion to Substitute Counsel Which “Compelled” Him to Represent Himself
During his second request to represent himself, petitioner made an oral “Marsden” motion

14
15

to obtain new counsel in lieu of representing himself.

16
17

MR. WISE: “Your Honor, I would be willing—like if my Marsden
motion would be granted and I get another attorney appointed me
there (sic), I would be willing to have an attorney.

18

But—

19

THE COURT: Doesn’t work that way.

20

THE DEFENDANT: Okay.

21

Right.

22

THE COURT: No.

23

THE DEFENDANT: I get it.

24

Sorry.

25

ECF No. 24 at 49.2
Petitioner now asserts that he was incorrectly given the “Hobson Choice” of representing

26
27
28

2

The transcript indicates that the attorney (Mr. Wise) initiated the comment about the Marsden
motion, but given the context, it is clearly petitioner who is speaking.
17

1

himself or being “stuck” with his present counsel.” Therefore, he argues, his Faretta waiver was

2

not voluntary. Petitioner raised this issue, not on direct review, but for the first time in a later

3

filed state habeas petition. The California Supreme Court issued two citations in denying the

4

state habeas petition: In re Waltreus, 62 Cal. 2d 218, 225 (1965) and In re Dixon, 41 Cal. 2d 756,

5

759 (1953). Waltreus stands for the proposition that one cannot seek state habeas review of

6

issues which were addressed already on direct appeal, and Dixon, just the opposite—one cannot

7

seek habeas review of issues which should have been raised on direct review.

8
9

Waltreus does not affect federal adjudication of the issue for exhausting “too much” is
not a valid procedural default. Hill v. Roe, 321 F.3d 787, 789 (9th Cir. 2003).

Petitioner raised

10

several issues on direct review which he repeated in state habeas, e.g, the punishment issue

11

addressed above. Clearly, the Waltreus procedural bar (default) applies to those issues.

12

However, the Dixon bar is another matter. Clearly, this case citation applied to the

13

present issue in that petitioner should have raised this issue on direct review but he did not. See

14

ECF 12 at 39-61 (Exhibit A). After decades of implicit disapproval of this bar (procedural

15

default) by the Ninth Circuit, the Supreme Court declared that the bar was regularly followed and

16

consistently applied. Johnson v. Lee, 136 S.Ct. 1802, 1805-06 (2016).

17

The undersigned now looks to cause and prejudice to excuse the procedural default. In

18

essence, petitioner provides none. He does argue that: Petitioners [involuntary] claim is not

19

procedurally default (sic) since it is based substantially on facts and evidence that was not in the

20

record on direct appeal.” ECF No. 17 at 8. But that begs the issue here—why did not petitioner

21

appeal on this ground and support it with record citations. Petitioner cannot simply claim that his

22

appellate counsel was ineffective. See Davila v. Davis, __U.S.__, 137 S.Ct. 2058 (2017) (limiting

23

Martinez v. Ryan, 566 U.S.1 (2012), to claims of trial counsel’s ineffectiveness to overcome a

24

procedural default.)

25

The claim is clearly defaulted and it need not be addressed on the merits.

26

C. Sufficiency of the Evidence

27

In the petition and the traverse, petitioner expressly contests the sufficiency of the

28

evidence for his convictions. He claims he happened to be at the scene of the crime outside the
18

1

victims’ house, but that the evidence is insufficient in every way to prove that he participated in

2

the robbery/attempted murder, etc., i.e., he was an unlucky bystander. This claim factually

3

reprises his overarching claimed defense at trial. In that petitioner vaguely weaves various sub-

4

themes under the overarching issue set forth above, respondent addresses other specific or

5

subsidiary sufficiency of the evidence issues which were raised on direct review, and claims that

6

the overarching issue is not exhausted. Although such subsidiary issues are not fairly set forth in

7

the petition, the undersigned will address them as the evidence for the overarching issue is the

8

same as for the subsidiary issues. The asserted lack of exhaustion on the overarching issue need

9

not deter the undersigned here as that claim is clearly unmeritorious on its merits. See 28 U.S.C.

10
11

section 2254 (b)(2).
Petitioner makes the mistake of concluding all of the circumstantial evidence that pointed

12

to his guilt was “speculative” in that no eyewitness directly implicated him in the crime. He

13

theorizes (without evidence) other possible inferences from the circumstantial evidence. Thus,

14

for example, if he was shot, it was because he caught a bullet in the street that must have come

15

through the house. Petitioner, without any evidence actually pointing to his innocence, fails to

16

see the strong, overwhelming inferences that point to his guilt.

17

Petitioner does not contest the fact per se of the attempted robbery and murder, he just

18

contests his participation at all. As pointed out above in the Court of Appeal published decision,

19

both assailants were hit with gunfire from the homeowner who fired into the garage area. The

20

overwhelming inference to be drawn is that petitioner was in the proximate area of his soon-to-

21

be-deceased co-assailant, i.e., in the garage. The inference petitioner would have drawn, that the

22

homeowner fired into the garage killing his co-assailant and then wildly through the house walls

23

and into the street hitting the “innocent” petitioner is speculation without any corroborating

24

evidence. Petitioner’s inference is inconsistent with the blood trail evidence left from the house

25

to petitioner’s borrowed car. A neighbor identified petitioner limping down the street (from his

26

gunshot wound), and driving away in his car. The correct inference is that petitioner was fleeing

27

the scene. The bullet which hit the homeowner was traced to a 9-millimeter (“9mm”), which the

28

vanished, “unknown” assailant (according to petitioner) dropped in an area proximate to
19

1

petitioner’s DNA proven blood trail on the way to a petitioner’s borrowed car. Forensic analysis

2

proved that the bullet which hit the homeowner, had to have been fired from inside the garage

3

area just inside the house because bullet casings from 9mm weapon were found in the garage and

4

the house proper; and these casings came from the discarded 9mm weapon. Petitioner had

5

gunshot residue found on his person (hands and pants) after arrest—the most logical inference is

6

that this residue was left on petitioner as he fired the weapon, not petitioner’s inference that

7

residue was deposited all over petitioner from a stray bullet which had gone some distance

8

through house/garage walls or some highly fortuitous route outside the then closed garage at the

9

time of the shooting. Petitioner’s blood and wallet were found in the car which he had used to

10

flee the scene. And, of course, if petitioner’s story were to be believed, one of the co-assailants

11

had vanished into thin air. Petitioner’s asserted defense that he had dropped off two people at the

12

victims’ home at night and was simply waiting outside (for something) does not pass the straight

13

face test much less his burden to show AEDPA unreasonableness.

14

The standards governing petitioner’s insufficient evidence argument are as follows. “A

15

petitioner for a federal writ of habeas corpus faces a heavy burden when challenging the

16

sufficiency of the evidence used to obtain a state conviction on federal due process grounds.”

17

Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). Sufficient evidence supports a conviction

18

if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

19

could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.

20

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “After AEDPA, we apply the

21

standards of Jackson with an additional layer of deference.” Juan H. v. Allen, 408 F.3d 1262,

22

1274 (9th Cir. 2005). See also the AEDPA standards set forth above. Moreover, petitioner's

23

challenge to the sufficiency of evidence based on credibility of the witnesses is not cognizable in

24

an insufficient evidence claim. See McMillan v. Gomez, 19 F.3d 465, 469 (9th Cir.1994); see also

25

Schlup v. Delo, 513 U.S. 298, 330 (1995) (recognizing that the credibility of witnesses is

26

generally beyond the scope of sufficiency of the evidence review).

27
28

Therefore, when a challenge is brought alleging insufficient evidence, federal habeas
corpus relief is available if it is found that upon the record evidence adduced at trial, viewed in
20

1

the light most favorable to the prosecution, no rational trier of fact could have found “the essential

2

elements of the crime” proven beyond a reasonable doubt. Jackson, supra, 513 U.S. at 319. In

3

Jackson the Supreme Court articulated a two-step inquiry for considering a challenge to a

4

conviction based on sufficiency of the evidence. United States v. Nevils, 598 F.3d 1158, 1164

5

(9th Cir. 2010) (en banc).

6

First, a reviewing court must consider the evidence presented at
trial in the light most favorable to the prosecution. Jackson, 443
U.S. at 319, 99 S.Ct. 2781 [...] [W]hen “faced with a record of
historical facts that supports conflicting inferences” a reviewing
court “must presume—even if it does not affirmatively appear in
the record—that the trier of fact resolved any such conflicts in favor
of the prosecution, and must defer to that resolution.” Id. at 326, 99
S.Ct. 2781; see also McDaniel [v. Brown], 130 S.Ct. [120,] 673–74
[(2010)].

7
8
9
10
11

Second, after viewing the evidence in the light most favorable to
the prosecution, the reviewing court must determine whether this
evidence, so viewed, is adequate to allow “any rational trier of fact
[to find] the essential elements of the crime beyond a reasonable
doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781.

12
13
14

***

15

At this second step, we must reverse the verdict if the evidence of
innocence, or lack of evidence of guilt, is such that all rational fact
finders would have to conclude that the evidence of guilt fails to
establish every element of the crime beyond a reasonable doubt.

16
17
18

Nevils, 598 F.3d at 1165.

19

And, where the trier of fact could draw conflicting inferences from the facts presented,

20

one favoring guilt and the other not, the reviewing court will assign the one which favors

21

conviction. McMillan, 19 F.3d at 469.3

22

Finally, the above analysis is filtered through the prism of AEDPA unreasonableness, i.e.,

23

the conclusions about sufficient evidence drawn from by an appellate court could not reasonably

24

have been found given the evidence because fairminded jurists could not have reached the

25

3

26
27
28

Of course, the mere fact that an inference can be assigned in favor of the government's case does
not mean that the evidence on a disputed crime element is sufficient—the inference, along with
other evidence, must demonstrate that a reasonable jury could find the element beyond a
reasonable doubt, i.e., “'[a] reasonable inference is one that is supported by a chain of logic, rather
than mere speculation dressed up in the guise of evidence.'” United States v. Katakis, 800 F.3d
1017, 1024 (9th Cir. 2015).
21

1

conclusions. Juan H. v. Allen supra. The foregoing authorities make it impossible for petitioner

2

to meet his burden in this habeas petition given the above facts.

3

On direct review, petitioner raised other subsidiary sufficiency issues. Even if the

4

undersigned believed the petition to have raised the specific subsidiary sufficiency issues, the

5

Court of Appeal opinion is clearly AEDPA reasonable:

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

II. Sufficiency of Evidence of Gun Discharge and Personal
Infliction of Injury
The jury found that, in connection with his attempted robbery of
Branch (count five), defendant personally and intentionally
discharged a weapon (Pen. Code,§ 12022.53, subd. (c)) and
personally and intentionally discharged a weapon causing great
bodily injury (Pen. Code, § 12022.53, subd. (d)). Defendant
contends that the evidence was insufficient to sustain these
enhancements because there was no evidence that he shot at Branch
or that her injuries constituted great bodily injury. The contention
is without merit because it is based on a false premise - that is, that
the true findings on these enhancements required that defendant
shot at Branch and inflicted on her great bodily injury. To the
contrary, defendant's shooting at Laster and inflicting great bodily
injury on him was sufficient because defendant did so in the course
of his attempted robbery of Branch. (People v. Frausto (2009) 180
Cal.App.4th 890, 897-903 (Frausto).) In his reply brief, defendant
invites us to disagree with the 2009 holding in Frausto. We decline.
"In reviewing a sufficiency of evidence claim, the reviewing court’s
role is a limited one. ' "The proper test for determining a claim of
insufficiency of evidence in a criminal case is whether, on the entire
record, a rational trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citations.] On appeal, we must view
the evidence in the light most favorable to the People and must
presume in support of the judgment the existence of every fact the
trier could reasonably deduce from the evidence. [Citation.]" '
[Citations.]" (People v. Smith (2005) 37 Cal.4th 733, 738-739.) We
must accept any reasonable inference the jury might have drawn
from the evidence. (People v. Rodriguez (1999) 20 Cal.4th l, 11.)
In Frausto, the court held that, where a defendant was convicted of
one count of murder and two counts of attempted murder, the death
of one victim supported imposition of the Penal Code section
12022.53 enhancement with respect to the attempted murder of the
other two victims because "[a] reasonable trier of fact could find
that the shootings were part of one continuous transaction."
(Frausto, supra, 180 Cal.App.4th at p. 903.) The court relied on
People v. Oates (2004) 32 Cal.4th 1048, 1052-1056, which held
that a single injury supports multiple Penal Code section 12022.53,
subdivision (d) enhancements because the enhancement applies to
the great bodily injury or death of "any person" and is not limited to
the harm done to a particular victim.
22

1
2

Here, defendant's crimes were part of one continuous transaction.
Therefore, his shooting of Laster, with resulting great bodily injury,
sufficed to sustain the enhancements for discharging a firearm and
inflicting great bodily injury as to the attempted robbery of Branch.

3
III. Sufficiency of Evidence of Assault and Attempted Robbery
4

7

Defendant contends that, because there was no aiding and abetting
instruction and there was no evidence that he personally assaulted
Branch, the evidence was insufficient to sustain the jury's verdict
that he assaulted Branch with a firearm (count two) and intended to
rob her (count five). To the contrary, there was evidence that he
personally assaulted Branch with a firearm and intended to rob her.

8

A. Assault with a Firearm

9

"An assault is an unlawful attempt, coupled with a present ability,
to commit a violent injury on the person of another." (Pen. Code, §
240.) "'Assault with a deadly weapon can be committed by pointing
a gun at another person [citation], but it is not necessary to actually
point the gun directly at the other person to commit the crime."
(People v. Raviart (2001) 93 Cal.App.4th 258, 263.)

5
6

10
11
12
13
14
15

After Branch got out of her car in the garage, two men with guns
approached her. She testified that she saw them "pull weapons to
[her] head." One of the men told her to open the door, then he hit
her in the head with his gun. Branch also testified that the one who
pistol-whipped her was the one who got away, not the one who was
shot and remained in the garage, although she said that it was "very
possible" that she was wrong about that.

16
17
18
19
20

Despite this evidence, defendant asserts that the evidence was
insufficient because Branch could not identify him as one of the
assailants and her DNA was found on the gun that lay next to
Deary-Smith on the floor of the garage after defendant had fled.
This argument merely highlights conflicting testimony. The
evidence, as a whole, established that defendant and Deary-Smith
were the two men in the garage. And Branch's testimony that the
men pointed their guns at her head was sufficient to sustain the
conviction for assault with a firearm.

21
B. Intent to Rob
22
23
24

Intent to take personal property in possession of another is an
element of attempted robbery. (Pen. Code, §§ 211, 664.) This
intent need not be directly proved but may be inferred from all of
the circumstances of the case. (People v. Gilbert (1963) 214
Cal.App.2d 566, 567.)

25
26
27
28

Defendant argues: "In the instant case, there are only unsupported
speculative assumptions that the perpetrator's intent in this count
was to rob Branch, who was never asked to tum over any property.
There were no demands for money or property, and no facts
suggested that the perpetrator's intent was to do anything but get her
unexpected presence resolved, so they could go forward with the
23

1

apparent intent to enter the residence."

2

The evidence was sufficient that defendant intended to take
personal property from Branch, as she was in her own residence
during the time of the crimes. A person's personal property in the
residence may be in that person’s immediate possession even if the
property is in a different room because the person exercises some
physical control over the property. (People v. Gomez (2008) 43
Cal.4th 249, 257.) Here, the jury could have reasonably inferred
that defendant and Deary-Smith were trying to get into the house to
commit theft. Indeed, there seems to be no other motive for the
attempt to get into the house. Also, zip ties were found in DearySmith's pocket, indicating an intent to subdue the residents while
defendant and Deary-Smith committed the theft. Under this

3
4
5
6
7
8
9

factual scenario, it was unnecessary for defendant to attempt to take
anything that Branch was carrying with her. The evidence that he
intended to rob Branch was sufficient.

10
IV. Sufficiency of Proximate Cause Evidence
11
12
13

Defendant contends that the evidence was insufficient to sustain the
Penal Code section 12022.53, subdivision (d) enhancements on the
attempted murder (count three) and attempted robbery (count six)
of Laster because the causation requirement was not met. This
contention is frivolous.

14
15
16

Penal Code section 12022.53, subdivision (d) provides for a
sentencing enhancement of 25 years to life if the defendant
"personally and intentionally discharges a firearm and proximately
causes great bodily injury ... to any person other than an
accomplice….”

17
18
19
20
21
22
23
24
25
26
27

Defendant claims that the jury could not rationally conclude that he
was the one who shot Laster. To the contrary, the evidence showed
that: (1) defendant had a nine-millimeter handgun, while DearySmith had a .45-caliber handgun, (2) two nine-millimeter casings
were found at the scene, while no .45-caliber casings were found,
(3) defendant had gunshot residue on his hands, and (4) Laster was
shot by one of the assailants. Under this factual scenario, the jury
easily inferred that defendant shot Laster.
Defendant cites People v. Bland (2002) 28 Cal.4th 313 for the
proposition that, where there are two assailants and it cannot be
determined who shot the victim, there is insufficient evidence to
sustain the enhancement for personally discharging the firearm and
inflicting great bodily injury. (Id. at pp. 337-338.) But reference to
Bland is unhelpful to defendant because, here, the evidence
established that defendant shot Laster.
ECF No. 12 at 50-54 (Exhibit A).
The exhaustive analysis of the Court of Appeal, given the facts, speaks for itself in terms

28
24

1

of reasonableness. There is not more for the undersigned to do but to find it AEDPA reasonable.

2

Conclusion

3

Accordingly, IT IS HEREBY RECOMMENDED that:

4

1.

The petition be denied in its entirety.

5

2.

A certificate of appealability should be issued only for the Faretta advisement

6

issue (Ground 1), i.e, on “range of punishment.”

7

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

8

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

9

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

10
11

objections with the court and serve a copy on all parties. Such a document should be captioned
“Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the

12

objections shall be served and filed within fourteen days after service of the objections. The

13

parties are advised that failure to file objections within the specified time may waive the right to

14

appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

15

DATED: January 7, 2019

16

/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
25