Medina v. Pfeiffer
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 9/25/2018 RECOMMENDING the 1 petition for writ of habeas corpus be denied. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ANTHONY MEDINA,
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No. 2:17-cv-1837-MCE-EFB P
Petitioner,
v.
FINDINGS AND RECOMMENDATIONS
C. PFEIFFER,
Respondent.
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Petitioner is a California state prisoner proceeding pro se with an application for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. On October 27, 2011 and in the Sacramento County
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Superior Court, he was convicted of: (1) two counts of attempted first degree murder (Pen. Code,
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§§ 664, 187, subd. (a)) with two enhancements for discharging a firearm and causing great bodily
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injury (former § 12022.53, subd. (d)); (2) one count of shooting at an occupied vehicle (§ 246)
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with identical enhancements; (3) unlawful possession of a firearm (former § 12021, subd. (a)); (4)
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attempted robbery (§§ 664, 211), and (5) one count of first degree murder (§ 187, subd. (a)) with
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an attempted robbery special circumstance (§ 190.2, subd. (a)(17)(A)). Those convictions stem
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from two separate incidents. The two counts of attempted murder, one count for shooting into an
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occupied vehicle, and one count of unlawful possession of a firearm arose out of the events of
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May 2, 2008, described in the next section. The counts for attempted robbery and first degree
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murder arose out of the events of May 5, 2008.
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Petitioner raises the following claims in the immediate petition: (1) there was insufficient
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evidence to support the attempted robbery special circumstance (i.e., the May 5 events); and (2)
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the trial court erred when it excluded “gang evidence with regard to the May 2nd shooting” which
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negated petitioner’s intended defense. Respondent filed an answer to these claims. ECF No. 13.
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BACKGROUND1
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I.
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Events of May 2, 2008
A.
Prosecution Case
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Early in the morning of May 2, 2008, appellant departed a liquor store on Florin Road in
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Sacramento. He was driving a Silver Impala belonging to Brittany Sarantis, his then fifteen year
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old girlfriend. Sarantis was seated beside petitioner in the front passenger seat. Also in the car
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were David Whitehead, Brandon Morton, and Waylon Rocha, all of whom were riding in the
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back seat.
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While petitioner and the others drove from the liquor store, a black Lexus approached
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them and began driving erratically. Morton stated that if they pulled up to the Lexus he would
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“get them.” Sarantis would later tell law enforcement that, after Morton made this comment, he
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handed petitioner a gun from the back seat. Sarantis reclined horizontally in her seat and, as the
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two cars pulled alongside one another, petitioner fired the gun out of the front passenger window.
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The Lexus was being driven by Angeo Granados. Miguel Ramos, his cousin, was in the
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back passenger seat. Ramos sustained a gunshot wound to his knee and Granados was hit in the
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upper thigh. At the time of the shooting, Ramos was dating Sarantis’ cousin. Sarantis stated that
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she had had contact with Ramos through her cousin, but that she did not recognize Ramos as
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being a passenger in the other car the night of the shooting.
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Ramos later testified that, at the time of the shooting, he and Granados had been travelling
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back from a friend’s house in Bakersfield. He stated that, when they stopped at a red light, a
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white Oldsmobile Cutlass pulled alongside their car and shot at them. Ramos testified that he
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The court relates the background to the extent it is relevant to petitioner. It elects to
exclude background information which bears only on co-defendants David Whitehead and
Brandon Morton.
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believed there were three to four males in the Cutlass, one of whom was African-American and
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the rest of whom were Hispanic. Ramos stated that, after the shots were fired, Granados drove
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westbound on Florin Road and he lost track of where the Cutlass went.
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Granados, by contrast, had difficulty recalling the events of May 2, 2008 by the time of
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trial. He testified that he had suffered a gunshot wound to his leg, but could not recall the
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specifics of how he received the wound. During a law enforcement interview roughly one week
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after the incident, however, Granados stated that he and Ramos were travelling back from a
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relatives’ house. Granados told the interviewing detective that he had stopped at a red light and a
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vehicle pulled up to the driver side of the Lexus. Granados stated that the driver of the other
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vehicle had shot at him and, in response, he had “gunned it.”
On May 19, 2008, a Sacramento Police detective interviewed Armando Mora – a former
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prisoner who had been staying with petitioner at the Governor’s Inn. Mora stated that he had
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overheard a conversation in which petitioner stated that he was going to buy two guns. Mora also
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told the detective that petitioner drove a silver or grey Chevy Impala. Finally, Mora stated that
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petitioner had told him that he had “gotten into it” with some guy on Florin Road and that
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petitioner had shot at the other man.
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B.
Defense Case
Petitioner testified that he had fired at the Lexus because he feared for his life. He stated
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that, after watching the Lexus drive erratically, he became convinced that the other car would
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ultimately collide with the Impala. He said he picked up the gun because he was afraid that the
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occupants of the Lexus intended to harm him and the other individuals riding in the Impala.
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Petitioner testified that he had past issues with the Franklon gang, to which he had once
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belonged but ultimately dropped out. He stated that he had received death threats from members
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of that gang and that the gang blamed him for the death of one of its members. The Franklon
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gang had shot at petitioner’s brother – who bore a resemblance to petitioner – and had a
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reputation for carrying out shootings.
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Petitioner stated that, on May 2, 2008, he heard the driver of the Lexus say “is that him
right there?” Petitioner saw the other driver put his hand beneath his seat as if he were fishing for
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a gun. Concerned for his safety, petitioner made a snap decision to fire first. Petitioner fired at a
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low trajectory, away from the heads of those in the Lexus.
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II.
Events of May 5, 2008
A.
Prosecution Case
In 2008, Holly Sarmento was romantically involved with Brandon Morton (who, as noted
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above, was a passenger in the Impala the night of the May 2 shooting). At the time, Sarmento
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was working as a prostitute and using methamphetamine. Sarmento was close friends with
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Jennifer Cauble and Jason Fletcher.
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On May 5, 2008, Morton wanted half an ounce of methamphetamine and asked Sarmento
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to call Cauble in order to procure it. Sarmento did so, and Cauble agreed to find a seller. Morton
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gave Sarmento seven-hundred dollars for the drugs. Sarmento, Cauble, and an individual named
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“Tim” travelled to make the purchase.
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Sarmento gave the seven-hundred dollars to Cauble and told her Morton’s desired amount.
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Cauble took the money, purchased the drugs, and told Sarmento that it was the right quantity.
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The pair took Tim home. Sarmento would later testify that Cauble told her that Tim had added
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money for the transaction and would be taking his share of the drugs. Cauble denied this at trial.
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Sarmento stated that she and Cauble then travelled to Oak Park and smoked some of the
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methamphetamine. Cauble denies this. Regardless, Sarmento ultimately dropped Cauble off at
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her home and proceeded to Morton’s residence to deliver the drugs. Morton was not home at that
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time, but he instructed Sarmento to leave the methamphetamine with the “girl” who answered the
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door. Sarmento did so and left.
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Morton called Sarmento later that evening and angrily stated that he had been short-
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changed on the methamphetamine. He believed Cauble was responsible and stated that he wanted
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either his money back or the proper amount of methamphetamine. Morton called Cauble and
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they agreed to meet. Cauble went to the meeting with Fletcher, who was her boyfriend, and a
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friend named Marty Rainville. Prior to the meeting, Sarmento travelled to Morton’s residence.
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She noted that David Whitehead (also a passenger in the Impala the night of the May 2 shooting)
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was present. Morton then got into Sarmento’s car, and the two travelled to the meeting.
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The meeting was to occur at a post office parking lot between 11 p.m. and 12 a.m., but
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Cauble and Fletcher drove past the lot at the appointed time. Morton and Sarmento followed
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them into a residential neighborhood. The cars pulled over on the side of the road and Morton
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approached the driver’s side of Fletcher’s vehicle in order to speak with him. Cauble was in the
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front passenger seat of Fletcher’s vehicle and Rainville was in the back passenger area. Morton
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got into the backseat with Rainville and presented the methamphetamine to Cauble. Cauble
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weighed the drugs and noted that it did not look like the methamphetamine she had purchased
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earlier and weighed substantially less.
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Meanwhile, Morton and Rainville began arguing in the back seat. Morton suspected
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Rainville had a gun. The two argued over which was armed. At approximately this time, Cauble
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noticed that another car had arrived and parked across the street. Petitioner and Whitehead exited
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the newly arrived car and approached Fletcher’s car.
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Then, Morton exited the car, approached the driver-side window, and pointed a gun at
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Fletcher. Morton ordered Fletcher out of the car and directed him to leave the car keys.
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Petitioner joined Morton. Whitehead pulled out a gun and aimed it at Cauble. Cauble believed
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all three men had guns, but Sarmento was unsure petitioner did. Fletcher, Cauble, and Rainville
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exited the car with guns trained on them. Cauble sat on the sidewalk. Sarmento briefly joined
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Cauble on the sidewalk before Morton ordered her to return to their car.
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Petitioner, Morton, and Whitehead directed Fletcher and Rainville across the street.
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Having done so, petitioner returned to the car he had arrived in. Whitehead entered Sarmento’s
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car and drove away from the scene. Morton entered Fletcher’s car and attempted to start it. The
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steering column of the car was damaged, however, and Morton could not start the engine.
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Morton exited the car and approached Fletcher. Fletcher still had his hands up when Morton shot
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him twice and ran away.
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Rainville and Cauble made an unsuccessful attempt to get medical help from nearby
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residents. Ultimately, they carried Fletcher back to his car, placed him in the back seat, and drove
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to a hospital. Fletcher was admitted, but died as a result of his wounds.
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B.
Defense Case
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Petitioner stated that his intention in going to the meeting was simply to ensure that
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Morton got his money back and that nothing happened to him. He stated that he did not intend to
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be involved in a drug deal or take anything from the sellers in such a transaction. Petitioner stated
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that he left his handgun at home, feeling no need to take it. He was surprised when, at the
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confrontation, Whitehead and Morton drew their handguns.
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After the guns were drawn and Fletcher and Rainville escorted across the street, petitioner
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got back in the Impala he had driven to the meeting. He started the car and intended to leave, but
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Morton gestured for him to wait. Shortly thereafter, petitioner heard gunshots. Morton jumped
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into the backseat of the Impala and they left the scene with Whitehead following in the other car.
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Petitioner maintained that he did not know that Morton was going to shoot or even, at that time,
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whether Morton had been the one to fire the shots. After driving some distance from the scene,
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petitioner angrily told Morton to get out of his car. Other than a call from Morton to tell
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petitioner that he was in jail, petitioner had no further contact with him.
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Morton testified at trial that petitioner had nothing to do with the May 5th drug
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transaction. Morton also testified that: (1) he did not ask petitioner to bring a gun to the May 5
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meeting; (2) he did not see petitioner in possession of a gun the night of the meeting; and (3) there
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was no plan to shoot or rob anyone that night.
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III.
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As noted above, petitioner was convicted of: (1) two counts of attempted first degree
Trial Outcome
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murder (Pen. Code, §§ 664, 187, subd. (a)) with two enhancements for discharging a firearm and
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causing great bodily injury (former § 12022.53, subd. (d)); (2) one count of shooting at an
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occupied vehicle (§ 246) with identical enhancements; (3) unlawful possession of a firearm
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(former § 12021, subd. (a)); (4) attempted robbery (§§ 664, 211), and (5) one count of first degree
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murder (§ 187, subd. (a)) with an attempted robbery special circumstance (§ 190.2, subd.
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(a)(17)(A)).
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IV.
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Petitioner’s sentences were modified by the court of appeal on direct appeal, but their
Post-Conviction Proceedings
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sentences were otherwise affirmed. The California Supreme Court also denied petitioner’s claims
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on the merits. After the California Supreme Court decided People v. Banks, 61 Cal.4th 788
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(2015), the court of appeal reconsidered petitioner’s claims and denied them anew on the merits.
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The California Supreme Court subsequently issued the final state merits denial of petitioner’s
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claims. Petitioner filed the instant petition on September 5, 2017.
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STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA
I.
Applicable Statutory Provisions
28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), provides in relevant part as follows:
(d) 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
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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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Section 2254(d) constitutes a “constraint on the power of a federal habeas court to grant a
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state prisoner’s application for a writ of habeas corpus.” (Terry) Williams v. Taylor, 529 U.S.
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362, 412 (2000). It does not, however, “imply abandonment or abdication of judicial review,” or
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“by definition preclude relief.” Miller El v. Cockrell, 537 U.S. 322, 340 (2003). If either prong
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(d)(1) or (d)(2) is satisfied, the federal court may grant relief based on a de novo finding of
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constitutional error. See Frantz v. Hazey, 533 F.3d 724, 736 (9th Cir. 2008) (en banc).
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The statute applies whenever the state court has denied a federal claim on its merits,
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whether or not the state court explained its reasons. Harrington v. Richter, 562 U.S. 86, 100
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(2011). State court rejection of a federal claim will be presumed to have been on the merits
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absent any indication or state law procedural principles to the contrary. Id. at 784-785 (citing
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Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is
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unclear whether a decision appearing to rest on federal grounds was decided on another basis)).
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“The presumption may be overcome when there is reason to think some other explanation for the
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state court's decision is more likely.” Id. at 785.
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A.
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The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing
“Clearly Established Federal Law”
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legal principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade,
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538 U.S. 63, 71 72 (2003). Only Supreme Court precedent may constitute “clearly established
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Federal law,” but courts may look to circuit law “to ascertain whether . . . the particular point in
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issue is clearly established by Supreme Court precedent.” Marshall v. Rodgers, 133 S. Ct. 1446,
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1450 (2013).
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B.
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“Contrary To” Or “Unreasonable Application Of” Clearly Established
Federal Law
Section 2254(d)(1) applies to state court adjudications based on purely legal rulings and
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mixed questions of law and fact. Davis v. Woodford, 384 F.3d 628, 637 (9th Cir. 2003). The two
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clauses of § 2254(d)(1) create two distinct exceptions to AEDPA’s limitation on relief. Williams,
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529 U.S. at 404-05 (the “contrary to” and “unreasonable application” clauses of (d)(1) must be
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given independent effect, and create two categories of cases in which habeas relief remains
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available).
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A state court decision is “contrary to” clearly established federal law if the decision
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“contradicts the governing law set forth in [the Supreme Court’s] cases.” Id. at 405. This
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includes use of the wrong legal rule or analytical framework. “The addition, deletion, or
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alteration of a factor in a test established by the Supreme Court also constitutes a failure to apply
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controlling Supreme Court law under the ‘contrary to’ clause of the AEDPA.” Benn v. Lambert,
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283 F.3d 1040, 1051 n.5 (9th Cir. 2002). See, e.g., Williams, 529 U.S. at 391, 393 95 (Virginia
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Supreme Court’s ineffective assistance of counsel analysis “contrary to” Strickland2 because it
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Strickland v. Washington, 466 U.S. 668 (1984).
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added a third prong unauthorized by Strickland); Crittenden v. Ayers, 624 F.3d 943, 954 (9th Cir.
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2010) (California Supreme Court’s Batson3 analysis “contrary to” federal law because it set a
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higher bar for a prima facie case of discrimination than established in Batson itself); Frantz, 533
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F.3d at 734 35 (Arizona court’s application of harmless error rule to Faretta4 violation was
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contrary to U.S. Supreme Court holding that such error is structural). A state court also acts
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contrary to clearly established federal law when it reaches a different result from a Supreme Court
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case despite materially indistinguishable facts. Williams, 529 U.S. at 406, 412 13; Ramdass v.
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Angelone, 530 U.S. 156, 165 66 (2000) (plurality op’n).
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A state court decision “unreasonably applies” federal law “if the state court identifies the
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correct rule from [the Supreme Court’s] cases but unreasonably applies it to the facts of the
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particular state prisoner’s case.” Williams, 529 U.S. at 407 08. It is not enough that the state
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court was incorrect in the view of the federal habeas court; the state court decision must be
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objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 520 21 (2003). This does not mean,
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however, that the § (d)(1) exception is limited to applications of federal law that “reasonable
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jurists would all agree is unreasonable.” Williams, 529 U.S. at 409 (rejecting Fourth Circuit’s
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overly restrictive interpretation of “unreasonable application” clause). State court decisions can
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be objectively unreasonable when they interpret Supreme Court precedent too restrictively, when
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they fail to give appropriate consideration and weight to the full body of available evidence, and
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when they proceed on the basis of factual error. See, e.g., Williams, 529 U.S. at 397-98; Wiggins,
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539 U.S. at 526 28 & 534; Rompilla v. Beard, 545 U.S. 374, 388 909 (2005); Porter v.
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McCollum, 558 U.S. 30, 42 (2009).
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The “unreasonable application” clause permits habeas relief based on the application of a
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governing principle to a set of facts different from those of the case in which the principle was
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announced. Lockyer, 538 U.S. at 76. AEDPA does not require a nearly identical fact pattern
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before a legal rule must be applied. Panetti v. Quarterman, 551 U.S. 930, 953 (2007). Even a
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Batson v. Kentucky, 476 U.S. 79 (1986).
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Faretta v. California, 422 U.S. 806 (1975).
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general standard may be applied in an unreasonable manner. Id. In such cases, AEDPA
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deference does not apply to the federal court’s adjudication of the claim. Id. at 948.
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Review under § 2254(d) is limited to the record that was before the state court. Cullen v.
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Pinholster, 563 U.S. 170, 180-81 (2011). The question at this stage is whether the state court
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reasonably applied clearly established federal law to the facts before it. Id. In other words, the
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focus of the § 2254(d) inquiry is “on what a state court knew and did.” Id. at 182.
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Where the state court’s adjudication is set forth in a reasoned opinion, § 2254(d)(1) review
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is confined to “the state court’s actual reasoning” and “actual analysis.” Frantz, 533 F.3d at 738
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(emphasis in original). A different rule applies where the state court rejects claims summarily,
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without a reasoned opinion. In Richter, supra, the Supreme Court held that when a state court
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denies a claim on the merits but without a reasoned opinion, the federal habeas court must
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determine what arguments or theories may have supported the state court’s decision, and subject
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those arguments or theories to § 2254(d) scrutiny. Richter, 562 U.S. at 101-102.
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C.
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Relief is also available under AEDPA where the state court predicated its adjudication of
“Unreasonable Determination Of The Facts”
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a claim on an unreasonable factual determination. Section 2254(d)(2). The statute explicitly
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limits this inquiry to the evidence that was before the state court.
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Even factual determinations that are generally accorded heightened deference, such as
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credibility findings, are subject to scrutiny for objective reasonableness under § 2254(d)(2). For
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example, in Miller El v. Dretke, 545 U.S. 231 (2005), the Supreme Court ordered habeas relief
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where the Texas court had based its denial of a Batson claim on a factual finding that the
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prosecutor’s asserted race neutral reasons for striking African American jurors were true.
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Miller El, 545 U.S. at 240.
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An unreasonable determination of facts exists where, among other circumstances, the
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state court made its findings according to a flawed process – for example, under an incorrect
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legal standard, or where necessary findings were not made at all, or where the state court failed to
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consider and weigh relevant evidence that was properly presented to it. See Taylor v. Maddox,
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366 F.3d 992, 999 1001 (9th Cir.), cert. denied, 543 U.S. 1038 (2004). Moreover, if “a state
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court makes evidentiary findings without holding a hearing and giving petitioner an opportunity
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to present evidence, such findings clearly result in a ‘unreasonable determination’ of the facts”
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within the meaning of § 2254(d)(2). Id. at 1001; accord Nunes v. Mueller, 350 F.3d 1045, 1055
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(9th Cir. 2003) (state court's factual findings must be deemed unreasonable under section
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2254(d)(2) because “state court . . . refused Nunes an evidentiary hearing” and findings
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consequently “were made without . . . a hearing”), cert. denied, 543 U.S. 1038 (2004); Killian v.
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Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (“state courts could not have made a proper
8
determination” of facts because state courts “refused Killian an evidentiary hearing on the
9
matter”), cert. denied, 537 U.S. 1179 (2003).
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A state court factual conclusion can also be substantively unreasonable where it is not
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fairly supported by the evidence presented in the state proceeding. See, e.g., Wiggins, 539 U.S.
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at 528 (state court’s “clear factual error” regarding contents of social service records constitutes
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unreasonable determination of fact); Green v. LaMarque, 532 F.3d 1028 (9th Cir. 2008) (state
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court’s finding that the prosecutor’s strike was not racially motivated was unreasonable in light
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of the record before that court); Bradley v. Duncan, 315 F.3d 1091, 1096 98 (9th Cir. 2002) (state
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court unreasonably found that evidence of police entrapment was insufficient to require an
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entrapment instruction), cert. denied, 540 U.S. 963 (2003).
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II.
The Relationship Of § 2254(d) To Final Merits Adjudication
To prevail in federal habeas proceedings, a petitioner must establish the applicability of
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one of the § 2254(d) exceptions and also must also affirmatively establish the constitutional
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invalidity of his custody under pre AEDPA standards. Frantz v. Hazey, 533 F.3d 724 (9th Cir.
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2008) (en banc). There is no single prescribed order in which these two inquiries must be
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conducted. Id. at 736 37. The AEDPA does not require the federal habeas court to adopt any one
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methodology. Lockyer v. Andrade, 538 U.S. 63, 71 (2003).
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In many cases, § 2254(d) analysis and direct merits evaluation will substantially overlap.
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Accordingly, “[a] holding on habeas review that a state court error meets the ' 2254(d) standard
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will often simultaneously constitute a holding that the [substantive standard for habeas relief] is
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satisfied as well, so no second inquiry will be necessary.” Frantz, 533 F.3d at 736. In such cases,
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relief may be granted without further proceedings. See, e.g., Goldyn v. Hayes, 444 F.3d 1062,
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1070 71 (9th Cir. 2006) (finding § 2254(d)(1) unreasonableness in the state court's conclusion
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that the state had proved all elements of the crime, and granting petition); Lewis v. Lewis, 321
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F.3d 824, 835 (9th Cir. 2003) (finding § 2254(d)(1) unreasonableness in the state court’s failure
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to conduct a constitutionally sufficient inquiry into a defendant’s jury selection challenge, and
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granting petition); Williams v. Ryan, 623 F.3d 1258 (9th Cir. 2010) (finding § 2254(d)(1)
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unreasonableness in the state court’s refusal to consider drug addiction as a mitigating factor at
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capital sentencing, and granting penalty phase relief).
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In other cases, a petitioner’s entitlement to relief will turn on legal or factual questions
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beyond the scope of the § 2254(d) analysis. In such cases, the substantive claim(s) must be
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separately evaluated under a de novo standard. Frantz, 533 F.3d at 737. If the facts are in dispute
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or the existence of constitutional error depends on facts outside the existing record, an evidentiary
13
hearing may be necessary. Id. at 745; see also Earp, 431 F.3d 1158 (remanding for evidentiary
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hearing after finding § 2254(d) satisfied).
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DISCUSSION
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I. Sufficiency of the Evidence
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Petitioner argues that there was insufficient evidence to support the attempted robbery
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special circumstance attached to his first degree murder conviction. In support of this claim, he
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points to the fact that the jury found not true an enhancement for personal use of a firearm.
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A.
Last Reasoned Decision
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Petitioner presented this claim on direct appeal and it was denied on the merits, first by the
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Court of Appeal (Lodg. Docs. 1 & 2) and then by the California Supreme Court (Lodg. Docs. 3 &
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4). Subsequent to the California Supreme Court’s decision in People v. Banks, 61 Cal. 4th 788
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(2015), the Court of Appeal reconsidered this claim and again denied it on the merits. Lodg. Doc.
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7. Finally, petitioner renewed the claim to the California Supreme Court, which issued a final,
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summary denial on the merits. Lodg. Doc. 8. The last reasoned decision(s) belongs to the Court
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of Appeal which, on pre-Banks direct appeal, held:
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1
II
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Insufficient Evidence of Attempted Robbery
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All defendants contend there is insufficient evidence of attempted
robbery. They contend Morton was attempting only to retrieve his
own drugs from Cauble and Fletcher, so there was no attempt to take
the property of another, as required for attempted robbery.
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A. The Law
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“When considering a challenge to the sufficiency of the evidence to
support a conviction, we review the entire record in the light most
favorable to the judgment to determine whether it contains
substantial evidence—that is, evidence that is reasonable, credible,
and of solid value—from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. [Citation.]” (People
v. Lindberg (2008) 45 Cal.4th 1, 27.) “[U]nless the testimony is
physically impossible or inherently improbable, testimony of a single
witness is sufficient to support a conviction. [Citation.]” (People v.
Young (2005) 34 Cal.4th 1149, 1181.)
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Section 211 defines robbery as “the felonious taking of personal
property in the possession of another, from his person or immediate
presence, and against his will, accomplished by means of force or
fear.” “An attempt to commit a crime consists of two elements: a
specific intent to commit the crime, and a direct but ineffectual act
done toward its commission.” (§ 21a.) “The act required must be
more than mere preparation, it must show that the perpetrator is
putting his or her plan into action. That act need not, however, be the
last proximate or ultimate step toward commission of the crime.
[Citation.]” (People v. Bonner (2000) 80 Cal.App.4th 759, 764.)
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20
“A person aids and abets the commission of a crime when he or she,
(i) with knowledge of the unlawful purpose of the perpetrator, (ii)
and with the intent or purpose of committing, facilitating or
encouraging commission of the crime, (iii) by act or advice, aids,
promotes, encourages or instigates the commission of the crime.
[Citation.]” (People v. Cooper (1991) 53 Cal.3d 1158, 1164.)
21
B. Sufficient Evidence of Attempted Robbery of Fletcher's Car
22
Cauble's testimony provided substantial evidence of attempted
robbery of Fletcher's car.5 When Medina and Whitehead arrived as
backup, Morton got out of Fletcher's car and ordered the others out
at gunpoint. He told Fletcher to leave the keys. While Medina and
Whitehead detained Fletcher and Rainville at gunpoint, Morton
attempted unsuccessfully to start the car and asked Cauble how to
start it. The only reasonable inference from this evidence is that he
was trying to steal the car.
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5
We discuss the attempted robbery of the drugs in Part VII, post. [footnote number 3 in
original text].
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Defendants note the jury acquitted them of attempted carjacking,
suggesting the evidence of the attempt to take the car cannot be
considered. But we need not ignore the evidence supporting the
charge of attempted carjacking to determine if there is sufficient
evidence of attempted robbery. “The law generally accepts
inconsistent verdicts as an occasionally inevitable, if not entirely
satisfying, consequence of a criminal justice system that gives
defendants the benefit of a reasonable doubt as to guilt, and juries the
power to acquit whatever the evidence.” (People v. Palmer (2001)
24 Cal.4th 856, 860.) “[I]f an acquittal of one count is factually
irreconcilable with a conviction on another, or if a not true finding of
an enhancement allegation is inconsistent with a conviction of the
substantive offense, effect is given to both. [Citations.]” (People v.
Santamaria (1994) 8 Cal.4th 903, 911.) “The jury may have been
convinced of guilt but arrived at an inconsistent acquittal or not true
finding ‘through mistake, compromise, or lenity....’ [Citation.]”
(Ibid.)
“[T]he criminal justice system must accept inconsistent verdicts as
to a single defendant. [Citation.] ... ‘ “[A] criminal defendant already
is afforded protection against jury irrationality or error by the
independent review of the sufficiency of the evidence undertaken by
the trial and appellate courts. This review should not be confused
with the problems caused by inconsistent verdicts. Sufficiency-ofthe-evidence review involves assessment by the courts of whether
the evidence adduced at trial could support any rational
determination of guilt beyond a reasonable doubt. [Citations.] This
review should be independent of the jury's determination that
evidence on another count was insufficient. The Government must
convince the jury with its proof, and must also satisfy the courts that
given this proof the jury could rationally have reached a verdict of
guilt beyond a reasonable doubt. We do not believe that further
safeguards against jury irrationality are necessary.” ’ [Citation.]”
(People v. Superior Court (Sparks) (2010) 48 Cal.4th 1, 13.)
18
C. Sufficient Evidence Medina and Whitehead Aided and Abetted
19
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Medina and Whitehead contend there is insufficient evidence they
shared Morton's intent to rob. They contend the evidence shows the
actions of all defendants were directed at negotiating settlement of
the disputed drug deal.
Neither presence at the scene of a crime nor failure to prevent its
commission is sufficient alone to establish aiding and abetting.
(People v. Stankewitz (1990) 51 Cal.3d 72, 90.) “Among the factors
which may be considered in making the determination of aiding and
abetting are: presence at the scene of the crime, companionship, and
conduct before and after the offense.” (In re Lynette G. (1976) 54
Cal.App.3d 1087, 1094.) “In addition, flight is one of the factors
which is relevant in determining consciousness of guilt. [Citation.]”
(Id. at p. 1095.)
Given the violent events of May 2, the jury could easily reject the
argument that Medina and Whitehead were ignorant of any intent to
commit a violent crime on May 5 where the evidence showed they
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8
were prepared to “settle” the dispute and recover drugs or money at
gunpoint. Medina and Whitehead were not merely present when
Morton tried to steal Fletcher's car, but actively assisted him. Medina
and Whitehead joined Morton in walking Fletcher and Rainville
across the street at gunpoint and detained them so that Morton could
then return to the car and try to take it. They all fled afterwards.
Medina waited to serve as Morton's getaway driver after the robbery
failed and Whitehead returned to provide further assistance once he
heard shots.
Sufficient evidence supports the convictions for attempted robbery,
felony murder, and Morton's conviction for the attempted robbery
special circumstance.
We next consider the sufficiency of the evidence to support the
special circumstance as to Medina and Whitehead.
9
III
10
11
12
Insufficient Evidence of Special Circumstance for Aiders and
Abettors
14
Medina and Whitehead contend there is insufficient evidence to
support the attempted robbery special circumstance as to them. They
contend there is insufficient evidence that they each were a major
participant in the attempted robbery or that they acted with reckless
indifference to life.
15
A. The Law
16
In order to find a special circumstance true where the defendant is
not the actual killer, section 190.2, subdivision (d) requires that he
have acted with “reckless indifference to human life and as a major
participant” in the commission of the underlying felony. (People v.
Estrada (1995) 11 Cal.4th 568, 575 (Estrada).) These two
requirements—having a reckless disregard for human life and being
a major participant—will often overlap. (Tison v. Arizona (1987) 481
U.S. 137, 158 & fn. 12 [95 L.Ed.2d 127, 145 & fn. 12].)
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Our Supreme Court held in Estrada that “‘reckless indifference to
human life’ is commonly understood to mean that the defendant was
subjectively aware that his or her participation in the felony involved
a grave risk of death. The common meaning of the term
‘indifference,’ referring to ‘the state of being indifferent,’ is that
which is ‘regarded as being of no significant importance or value.’
(Webster's New Internat. Dict. (3d ed.1981) p. 1151, col. 1.) To
regard something, even to regard it as worthless, is to be aware of it.
(See id. at p. 1911, col. 1 [‘regard’ is synonymous with ‘consider,
evaluate, judge’].)” (Estrada, supra, 11 Cal.4th at p. 577.)
A reckless indifference for human life is implicit where a defendant
knowingly engages in criminal activities known to carry a grave risk
of death. (Estrada, supra, 11 Cal.4th at p. 580.) A reckless
indifference to human life has been found where a defendant knows
someone has been shot or injured and flees instead of helping the
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3
4
5
6
victim. (People v. Lopez (2011) 198 Cal.App.4th 1106, 1117; People
v. Smith (2005) 135 Cal.App.4th 914, 927–928 (Smith ); People v.
Hodgson (2003) 111 Cal.App.4th 566, 579–580 (Hodgson ).)
We have defined “major participant” as follows: “In this context, we
believe the phrase ‘major participant’ is commonly understood and
is not used in a technical sense peculiar to the law. The common
meaning of ‘major’ includes ‘notable or conspicuous in effect or
scope’ and ‘one of the larger or more important members or units of
a kind or group.’ (Webster's New Internat. Dict., [ (3d ed. 1971) ] p.
1363.)” (People v. Proby (1998) 60 Cal.App.4th 922, 933–934.) A
major participant is not limited to the ringleader. (Id. at p. 934.)
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16
To be a major participant in a robbery murder, a defendant does not
have to be armed or participate in the actual taking. In Hodgson,
supra, 111 Cal.App.4th at page 568, the defendant “held open the
electric gate of an underground parking garage of an apartment
complex to facilitate the escape of his fellow gang member who had
robbed and shot to death a woman just after she opened the gate with
her key card.” Although the defendant was not armed and did not
take the stolen property, the court found sufficient evidence he was a
major participant in the crimes. (Id. at p. 578.) There was not a large
group or several accomplices, only defendant and his cohort, so his
role was more essential. By slowing down the closing of the electric
gate, defendant was instrumental in assisting the actual killer to
escape. (Id. at p. 580.) As the only person assisting the actual killer,
“his actions were both important as well as conspicuous in scope and
effect.” (Ibid.) In Smith, supra, 135 Cal.App.4th at page 928,
defendant was a major participant in an attempted robbery where he
was one of only three robbers and served as the only lookout,
standing outside the motel room where the attempted robbery turned
murder occurred.
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We review a challenge to the sufficiency of the evidence to support
a special circumstance finding under the same standard we use to
review the sufficiency of the evidence to support a conviction.
(People v. Cole (2004) 33 Cal.4th 1158, 1229; People v. Mayfield
(1997) 14 Cal.4th 668, 790–791 (Mayfield ).)
20
B. Analysis
21
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There was substantial evidence Medina and Whitehead acted with
reckless indifference to human life. Whitehead held Fletcher and
Rainville at gunpoint while Morton attempted to steal the car.
Although the jury found not true the firearm enhancement as to
Medina, as discussed ante, we may consider Cauble's testimony that
Medina was armed. Further, both Medina and Whitehead “had to be
aware use of a gun to effect the robbery presented a grave risk of
death.” (Hodgson, supra, 111 Cal.App.4th at p. 580.) The events of
May 2 established members of this group were not reluctant to shoot.
Further, once Fletcher was shot, Medina fled rather than offer
assistance to the victim. Whitehead returned when he heard shots,
but fled with the others once he knew his companions were safe.
28
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2
3
4
There was also substantial evidence both Medina and Whitehead
were major participants. As in Smith, supra, 135 Cal.App.4th at p.
928, there were only three perpetrators. Both provided the “muscle”
for the attempted robbery, which did not begin until they arrived.
Whitehead, at least, held the victims at gunpoint, and Medina helped
Morton, the actual killer, escape. (Hodgson, supra, 111 Cal.App.4th
at p. 580.)
5
People v. Medina, 2015 WL 581385, at *8–10 (Cal.App. 3 Dist., 2015). Upon reconsideration,
6
and after Banks was decided, the Court of Appeal re-addressed this claim and held:
7
III
8
Insufficient Evidence of Special Circumstance for Aiders and
Abettors
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Medina and Whitehead contend there is insufficient evidence to
support the attempted robbery special circumstance as to them. They
contend there is insufficient evidence that they each were a major
participant in the attempted robbery or that they acted with reckless
indifference to life.
A. The Law
The special circumstance statute applies not only to actual killers, but
also to certain aiders and abettors of first degree murder. (§ 190.2,
subds. (c), (d).) An aider and abettor who does not have the intent to
kill may still be convicted of special circumstance murder where he
“with reckless indifference to human life and as a major participant”
aids and abets certain underlying felonies. (§ 190.2, subd. (d).) “The
statute thus imposes both a special actus reus requirement, major
participation in the crime, and a specific mens rea requirement,
reckless indifference to human life.” (Banks, supra, 61 Cal.4th at p.
798, 189 Cal.Rptr.3d 208, 351 P.3d 330, fn. omitted.)
This language in section 190.2, subdivision (d) is taken from Tison
v. Arizona (1987) 481 U.S. 137 at page 158, 107 S.Ct. 1676, 1688,
95 L.Ed.2d 127, 145 (Tison): “[W]e simply hold that major
participation in the felony committed, combined with reckless
indifference to human life, is sufficient” to satisfy the constitutional
culpability requirement for death eligibility. These two
requirements—having a reckless disregard for human life and being
a major participant—will often overlap. (Ibid. at p. 158 & fn. 12, 107
S.Ct. at p. 1688 & fn. 12, 95 L.Ed.2d at p. 145 & fn. 12.) Tison
defined “reckless disregard for human life” as “knowingly engaging
in criminal activities known to carry a grave risk of death.” (Id. at p.
157, 107 S.Ct. 1676; see also People v. Estrada (1995) 11 Cal.4th
568, 577, 46 Cal.Rptr.2d 586, 904 P.2d 1197.)
In Banks, the California Supreme Court considered “under what
circumstances an accomplice who lacks the intent to kill may qualify
as a major participant so as to be statutorily eligible for the death
penalty.” (Banks, supra, 61 Cal.4th at p. 794, 189 Cal.Rptr.3d 208,
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351 P.3d 330.) Our high court reversed the special circumstance
finding against Lovie Troy Matthews, who acted as a getaway driver
for an attempted robbery of a medical marijuana dispensary that
resulted in the shooting death of the dispensary's security guard.
(Ibid.) The dispensary had a metal security door providing access
from the sidewalk and behind that door sat a security guard who
verified patients' identification and physician's medical marijuana
recommendation before escorting patients through a second locked
door. (Id. at p. 795, 189 Cal.Rptr.3d 208, 351 P.3d 330.) The
dispensary also had surveillance cameras. (Ibid.)
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Matthews waited in a car blocks away while his three armed
confederates entered the dispensary, gained access past the second
locked door, and “began tying up employees and searching the
premises.” (Banks, supra, 61 Cal.4th at p. 795, 189 Cal.Rptr.3d 208,
351 P.3d 330.) Shots were fired and the three men fled. A witness
outside the dispensary saw the security guard pushing the front door
closed from the outside; one of the robbers reached around from the
inside and shot the guard, who fell to the ground. The shooter stepped
out of the building and shot the guard again. (Ibid.) Matthews picked
up two of the three perpetrators in his car. (Id. at p. 795, 189
Cal.Rptr.3d 208, 351 P.3d 330.) There were a number of telephone
calls between Matthews and the shooter before, during, and after the
shooting. (Id. at pp. 795–796, 189 Cal.Rptr.3d 208, 351 P.3d 330.)
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In finding the special circumstance provision did not apply to the
evidence presented against Matthews, the court emphasized that
“Matthews was absent from the scene, sitting in a car and waiting.
There was no evidence he saw or heard the shooting, that he could
have seen or heard the shooting, or that he had any immediate role in
instigating it or could have prevented it.” (Banks, supra, 61 Cal.4th
at p. 805, 189 Cal.Rptr.3d 208, 351 P.3d 330.)
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In reaching its conclusion, our high court considered not only Tison,
but also Enmund v. Florida (1982) 458 U.S. 782, 102 S.Ct. 3368, 73
L.Ed.2d 1140, a case on which Tison builds. (Banks, supra, 61
Cal.4th at p. 799, 189 Cal.Rptr.3d 208, 351 P.3d 330.) The Banks
court described Enmund as follows: “In that case, defendant Earl
Enmund purchased a calf from victim Thomas Kersey and in the
process learned Kersey was in the habit of carrying large sums of
cash on his person. A few weeks later, Enmund drove two armed
confederates to Kersey's house and waited nearby while they entered.
When Kersey's wife appeared with a gun, the confederates shot and
killed both Kerseys. Enmund thereafter drove his confederates away
from the scene and helped dispose of the murder weapons, which
were never found. He was convicted of robbery and first degree
murder and sentenced to death. [Citations.]” (Banks, at p. 799, 189
Cal.Rptr.3d 208, 351 P.3d 330.)
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The Enmund court found a broad consensus against imposing the
death penalty “where the defendant did not commit the homicide,
was not present when the killing took place, and did not participate
in a plot or scheme to murder.” (Enmund v. Florida, supra, 458 U.S.
at p. 795, 102 S.Ct. at p. 3375, 73 L.Ed.2d at p. 1150.) The court held
the Eighth Amendment prohibited the death penalty for one “who
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does not himself kill, attempt to kill, or intend that a killing take place
or that lethal force will be employed.” (Id. at p. 797, 102 S.Ct. at p.
3376, 73 L.Ed.2d at p. 1151.) It reversed the judgment upholding the
death penalty for Enmund. (Id. at p. 801, 102 S.Ct. at pp. 3378–3379,
73 L.Ed.2d at p. 1154.)
In Tison, the United States Supreme Court revisited the issue of death
sentences for accomplices to felony murder, in a case presenting
significantly more egregious facts. In Tison, Gary Tison's sons
Ricky, Raymond, and Donald Tison entered a prison with a large ice
chest of weapons and armed their father and his cellmate, both
convicted murderers. Brandishing the weapons, the group locked
guards and visitors in a closet. During the subsequent escape, their
car, already on its spare tire, suffered another flat, so the group agreed
to flag down a passing motorist and steal a replacement car.
Raymond waved down a family of four (the Lyonses); the others then
emerged from hiding and captured the family at gunpoint. Raymond
and Donald drove the family into the desert in the Tisons' car with
the others following in the Lyonses' car. The Tisons transferred the
possessions between the two cars, keeping guns and money from the
Lyonses' car. The Lyons family begged for their lives and for water.
As Gary's sons were getting water, Gary and his cellmate killed all
four Lyons family members with repeated shotgun blasts. When the
Tisons were later apprehended at a roadblock, Donald was killed and
Gary escaped into the desert, where he died of exposure. Ricky and
Raymond Tison and the cellmate were tried and sentenced to death.
(Tison, supra, 481 U.S. at pp. 139–141, 107 S.Ct. at pp. 1678–1680,
95 L.Ed.2d at pp. 132–134.)
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The Tison court distinguished Enmund: “Far from merely sitting in
a car away from the actual scene of the murders acting as the getaway
driver to a robbery, each petitioner was actively involved in every
element of the kidnapping-robbery and was physically present during
the entire sequence of criminal activity culminating in the murder of
the Lyons family and the subsequent flight.” (Tison, supra, 481 U.S.
at p. 158, 107 S.Ct. at p. 1688, 95 L.Ed.2d at p. 144.) The court set
forth the rule, codified in section 190.2, subdivision (d): “[M]ajor
participation in the felony committed, combined with reckless
indifference to human life, is sufficient to satisfy the Enmund
culpability requirement.” (Ibid.)
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The Banks court also considered Kennedy v. Louisiana (2008) 554
U.S. 407 at page 421, 128 S.Ct. 2641, 171 L.Ed.2d 525, “where the
court in dicta characterized the governing standard as permitting the
death penalty for nonkillers whose ‘involvement in the events
leading up to the murders was active, recklessly indifferent, and
substantial.’” (Banks, supra, 61 Cal.4th at p. 800, 189 Cal.Rptr.3d
208, 351 P.3d 330.) The Banks court then examined Enmund and
Tison more closely and found: “A sentencing body must examine the
defendant's personal role in the crimes leading to the victim's death
and weigh the defendant's individual responsibility for the loss of
life, not just his or her vicarious responsibility for the underlying
crime. [Citations.]” (Banks, at p. 801, 189 Cal.Rptr.3d 208, 351 P.3d
330.) As to the mental aspect of culpability, “[t]he defendant must be
aware of and willingly involved in the violent manner in which the
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1
particular offense is committed, demonstrating reckless indifference
to the significant risk of death his or her actions create.” (Ibid.)
2
The Banks court set forth several factors that distinguish Enmund and
Tison, indicating they may be useful in determining whether a
defendant qualifies as a major participant acting with a reckless
disregard for human life. “What role did the defendant have in
planning the criminal enterprise that led to one or more deaths? What
role did the defendant have in supplying or using lethal weapons?
What awareness did the defendant have of particular dangers posed
by the nature of the crime, weapons used, or past experience or
conduct of the other participants? Was the defendant present at the
scene of the killing, in a position to facilitate or prevent the actual
murder, and did his or her own actions or inaction play a particular
role in the death? What did the defendant do after lethal force was
used? No one of these considerations is necessary, nor is any one of
them necessarily sufficient. All may be weighed in determining the
ultimate question, whether the defendant's participation ‘in criminal
activities known to carry a grave risk of death’ [citation] was
sufficiently significant to be considered ‘major’ [citations].” (Banks,
supra, 61 Cal.4th at p. 803, 189 Cal.Rptr.3d 208, 351 P.3d 330, fn.
omitted.)
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Although Tison and Enmund involved the death penalty, Banks
explained: “[T]he standards we articulate, although developed in
death penalty cases, apply equally to cases like this one involving
statutory eligibility under section 190.2(d) for life imprisonment
without parole.” (Banks, supra, 61 Cal.4th at p. 804, 189 Cal.Rptr.3d
208, 351 P.3d 330.) Banks made a few points clear. First, where the
plan does not include the use of lethal force, “absence from the scene
may significantly diminish culpability for death.” (Id. at p. 803, 189
Cal.Rptr.3d 208, 351 P.3d 330, fn. 5.) Second, knowledge of the
possible risk of death inherent in certain felonies—like armed
robbery and knowledge that confederates are armed—are insufficient
alone to show a reckless indifference to human life. (Id. at p. 809,
189 Cal.Rptr.3d 208, 351 P.3d 330.) The court disapproved two
appellate court decisions to the extent they held awareness that a
robbery accomplice is armed is sufficient alone to show reckless
disregard for human life or a subjective awareness of a grave risk of
death. (Id. at p. 809, fn. 8, 189 Cal.Rptr.3d 208, 351 P.3d 330.)
13
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With the new guidance provided by Banks, we consider whether
substantial evidence supports the special circumstance as to Medina
and Whitehead.
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23
We review a challenge to the sufficiency of the evidence to support
a special circumstance finding under the same standard we use to
review the sufficiency of the evidence to support a conviction.
(People v. Cole (2004) 33 Cal.4th 1158, 1229, 17 Cal.Rptr.3d 532,
95 P.3d 811.)
24
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/////
28
/////
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1
B. Analysis
2
1. Medina
3
Following Banks, we conclude there was substantial evidence that
Medina both was a major participant and acted with reckless
indifference to human life. There was evidence he was involved in
setting up the attempted robbery. He alerted Morton to the shortage
of the drugs and agreed to accompany Morton to confront the
suppliers. While Medina claims the plan was simply to get Morton's
money back, it was clear Morton intended to use force, if necessary,
and was preparing for an armed confrontation. There was evidence
that Medina was armed and suspected the others would be. Medina
was also involved in the actual attempted robbery, which did not
begin until he and Whitehead arrived. There was evidence Medina,
as well as Morton and Whitehead, pulled out a gun and used it—first
pointing it at the group and then walking Fletcher and Rainville
across the street at gunpoint.6
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10
Medina remained at the scene throughout. He waited at Morton's
direction and made no attempt to intervene or avert the violence that
followed. There was evidence, beyond his mere participation in an
attempted armed robbery, that Medina was subjectively aware his
participation involved a grave risk of death. (Banks, supra, 61
Cal.4th at pp. 807–808, 189 Cal.Rptr.3d 208, 351 P.3d 330.) The
events of May 2 indicated that Morton, as well as Medina, was
willing to employ potentially deadly violence. There was evidence
that on May 2 Morton handed Medina the gun he fired and that
Morton had a gun and threatened “to get them.” Medina had known
Morton a long time and presumably knew Morton was a drug dealer
and a felon. In describing the shooting, Medina told the police,
“when the gun comes out, I was like oh, fuck, dude, so I went back
to my car,” although at trial he denied he knew what was going to
happen. The record is unclear exactly how close Medina was to the
shooting, but he testified the shots were “real close,” so close he
thought he might get shot. After the shooting, Medina drove Morton
away and made no attempt to aid the victim.
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Unlike Matthews in Banks, Medina was not simply a getaway driver.
(Banks, supra, 61 Cal.4th at p. 805, 189 Cal.Rptr.3d 208, 351 P.3d
330.) Rather, he was “actively involved in every element of the
[attempted robbery] and was physically present during the entire
sequence of criminal activity culminating in the murder of [Fletcher]
and the subsequent flight.” (Tison, supra, 481 U.S. at p. 158, 107
S.Ct. at p. 1688, 95 L.Ed.2d at p. 144.) There was evidence he played
a role both in planning and executing the criminal enterprise, had and
used a gun, and his prior experience with Morton gave him an
awareness of the danger and risk of death. He helped Morton escape
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6
As we explained in the unpublished portion of this opinion, the jury could consider
evidence that Medina was armed and used his gun even though the jury acquitted Medina of the
personal use of a firearm enhancement. [footnote number 4 in original text].
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2
and had no concern for the shooting victim. (See Banks, supra, 61
Cal.4th at p. 803, 189 Cal.Rptr.3d 208, 351 P.3d 330.) Substantial
evidence supports the special circumstance finding.
3
People v. Medina, 200 Cal.Rptr.3d 133, 139–43, 245 Cal.App.4th 778, 787–92 (Cal.App. 3 Dist.,
4
2016).
B.
5
Clearly Established Federal Law
Due process requires that each essential element of a criminal offense be proven beyond a
6
7
reasonable doubt. United States v. Winship, 397 U.S. 358, 364 (1970). In reviewing the
8
sufficiency of evidence to support a conviction, the question is “whether, viewing the evidence in
9
the light most favorable to the prosecution, any rational trier of fact could have found the essential
10
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
11
(1974). If the evidence supports conflicting inferences, the reviewing court must presume “that
12
the trier of fact resolved any such conflicts in favor of the prosecution,” and the court must “defer
13
to that resolution.” Id. at 326. A jury’s credibility determination is not subject to review during
14
post-conviction proceedings. Schlup v. Delo, 513 U.S. 298, 330 (1995) (“under Jackson, the
15
assessment of the credibility of witnesses is generally beyond the scope of review.”). The federal
16
habeas court determines the sufficiency of the evidence in reference to the substantive elements
17
of the criminal offense as defined by state law. Jackson, 443 U.S. at 324 n.16.
C.
18
Objective Reasonableness Under § 2254(d)
Petitioner notes that the jury declined to find an enhancement for personal use of a firearm
19
20
against him. Consequently, he argues that the court of appeal erred when it considered evidence
21
that he was armed with a gun in upholding the attempted robbery special circumstance. Petitioner
22
has failed to cite any Supreme Court decision which holds that sufficiency of the evidence review
23
must be reconciled with inconsistent verdicts, however. To the contrary, the Supreme Court has
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noted:
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[A] criminal defendant . . . is afforded protection against jury
irrationality or error by the independent review of the sufficiency of
the evidence undertaken by the trial and appellate courts. This
review should not be confused with the problems caused by
inconsistent verdicts. Sufficiency-of-the-evidence review involves
assessment by the courts of whether the evidence adduced at trial
could support any rational determination of guilt beyond a reasonable
22
1
doubt. This review should be independent of the jury's determination
that evidence on another count was insufficient.
2
3
United States v. Powell, 469 U.S. 57, 67 (1984). Thus, this argument is unpersuasive.
Petitioner also argues that the court of appeal’s decision improperly focused on his
4
5
“vicarious responsibility for the underlying offense [of] robbery instead of his individual
6
responsibility for loss of life.” ECF No. 1 at 4. To the extent this statement can be construed to
7
raise a more general insufficiency of the evidence claim, it also fails. As the court of appeal
8
found, there was ample evidence in the record from which a reasonable finder of fact could have
9
found true the attempted robbery special circumstance. Petitioner knew of Morton’s intent to get
10
his drug deal money back from Cauble. RT Vol. III (Lodg. Doc. 3) at 856, 933. Cauble testified
11
that petitioner produced a handgun from his pocket during the confrontation with her, Fletcher,
12
and Rainville. RT Vol. II (Lodg. Doc. 3) at 637-38. Cauble’s testimony included a physical
13
description of petitioner’s gun. Id. at 553-54. Finally, Cauble testified as to Morton’s attempt to
14
steal Fletcher’s car after its occupants had been detained at gunpoint by petitioner, Morton, and
15
Whitehead. Id. at 556-60. Thus, there was sufficient evidence from which a reasonable fact-
16
finder could find the robbery special circumstance true.
17
II.
Exclusion of Gang Evidence
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Petitioner argues that the trial court erred by excluding “gang evidence with regard to the
19
May 2nd shooting,” thereby depriving him of his “sole justification for his actions.” ECF No. 1
20
at 9.
A.
21
Last Reasoned Decision
The court of appeal denied petitioner’s exclusion of evidence claim on direct appeal:
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Exclusion of Rocha's Testimony and Gang Evidence
24
Medina contends the trial court erred in excluding testimony from
Rocha that he believed the men in the Lexus were gang members and
he feared them, and in excluding evidence that Ramos was a gang
member and of gang indicia found in the Lexus. Medina contends
this error was prejudicial because it was devastating to his selfdefense claim.
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/////
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1
A. Background
2
Before trial, the People moved to exclude any evidence of the gang
affiliations of Ramos or Granados. Ramos had admitted he had
previously been validated as a Norteño gang member in 2004. The
police found red clothing in the car that they believed was connected
to a gang. Cell phone photographs also indicated a gang connection.
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4
5
Medina objected to the exclusion, arguing this evidence was “a very
critical aspect of the defense.” That defense was self-defense. Rocha
would testify he feared becoming a victim of a gang-related shooting,
and his testimony would corroborate the perspective of Medina and
others in his car.
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7
8
The court granted the motion to exclude evidence of any gang
affiliation. The court ruled Rocha could testify about his observations
of the Lexus, but not about his conclusions, particularly any mention
of his fear of gang involvement. The court found Rocha's state of
mind was irrelevant. Medina raised the issue multiple times; each
time, the court ruled the same way.
9
10
11
B. Analysis
12
The trial court properly excluded the evidence of any gang affiliation
of Ramos and Granados. Gang evidence is inadmissible to show a
criminal disposition.7 (People v. Sanchez (1997) 58 Cal.App.4th
1435, 1449; People v. Perez (1981) 114 Cal.App.3d 470, 477.)
Although Medina contends the evidence would show that his fear of
the Lexus and its occupants was reasonable, there was no evidence
that he knew the occupants of the Lexus or that they were gang
members. The reasonableness of Medina's belief must be measured
by what he saw and what he knew. “The law [of self-defense]
recognizes that the objective component is not measured by an
abstract standard of reasonableness but one based on the defendant's
perception of imminent harm or death. Because his state of mind is a
critical issue, he may explain his actions in light of his knowledge
concerning the victim. [Citations.]” (People v. Humphrey (1996) 13
Cal.4th 1073, 1094.) Evidence of the victim's reputation for
dangerousness or his prior acts of violence are relevant to a claim of
self-defense only if the defendant knew of the victim's reputation or
violent acts. (People v. Tafoya (2007) 42 Cal.4th 147, 165; People v.
Cash (2002) 28 Cal.4th 703, 726.)
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Rocha's testimony that he believed and feared that the occupants of
the Lexus were gang members was inadmissible for the same reason.
Rocha's fear was irrelevant because there was no evidence that Rocha
communicated his belief to Medina. Rocha was permitted to testify
about what he observed of the Lexus, both its erratic driving and the
motions of its occupants. From this testimony and Medina's
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24
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27
28
7
Medina's proffer did not include any argument that the gang evidence was relevant to
motive or any other permissible use. (See, e.g., People v. Hernandez (2004) 33 Cal.4th 1040,
1049 [evidence of gang affiliation may be relevant and admissible to help prove identity, motive,
modus operandi, specific intent, or other issues].) [footnote number 4 in original text].
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1
testimony the jury was able to assess the reasonableness of Medina's
need for self-defense.
2
3
4
5
People v. Medina, 2015 WL 581385, at *10–11 (Cal.App. 3 Dist., 2015).
B.
Clearly Established Federal Law
The Supreme Court has held that “state and federal rulemakers have broad latitude under
6
the Constitution to establish rules excluding evidence from criminal trials.” United States v.
7
Scheffer, 523 U.S. 303, 308 (1998); see also Montana v. Egelhoff, 518 U.S. 37, 53 (1996) (“[T]he
8
introduction of relevant evidence can be limited by the State for a ‘valid’ reason.”). In Nevada v.
9
Jackson, the Supreme Court noted that “[o]nly rarely have we held that the right to present a
10
complete defense was violated by the exclusion of defense evidence under a state rule of
11
evidence.” 133 S. Ct. 1990, 1992 (2013). The exclusion of evidence violates a defendant’s right
12
to present a complete defense only where the exclusion is arbitrary and the exclusion “infringed
13
upon a weighty interest of the accused.” Scheffer, 523 U.S. at 308; see also Lincoln v. Sunn, 807
14
F.2d 805, 816 (9th Cir. 1987) (“Incorrect state court evidentiary rulings cannot serve as a basis for
15
habeas relief unless federal constitutional rights are affected.”).
16
The Ninth Circuit has identified a five factor balancing test which weighs “(1) the
17
probative value of the excluded evidence on the central issue; (2) its reliability; (3) whether it is
18
capable of evaluation by the trier of fact; (4) whether it is the sole evidence on the issue or merely
19
cumulative; and (5) whether it constitutes a major part of the attempted defense.” Su Chia v.
20
Cambra, 360 F.3d 997, 1004 (9th Cir. 2004).
21
22
C.
Objective Reasonableness Under § 2254(d)
As noted supra, the court of appeal found that there was no evidence that petitioner was
23
aware of Ramos and Granados’ gang affiliations at the time of the May 5 incident. Petitioner has
24
not offered any argument to the contrary in his current petition. The court of appeal went on to
25
note that, under California law, a victim’s violent reputation or prior acts of violence are pertinent
26
to a theory of self-defense only if the defendant is actually aware of those acts or reputation. This
27
court is bound by that interpretation of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68
28
(1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations
25
1
on state-law questions.”). As a consequence, the victim’s gang affiliation had limited evidentiary
2
value and could not have constituted a major part of petitioner’s theory of self-defense. Thus, the
3
court concludes that petitioner’s claim does not present the rare case where exclusion of evidence
4
under a state rule precluded the right to present a complete defense.
5
6
CONCLUSION
For all the reasons explained above, the state courts’ denial of petitioner’s claims was not
7
objectively unreasonable within the meaning of 28 U.S.C. § 2254(d). Accordingly, IT IS
8
HEREBY RECOMMENDED that the petition for writ of habeas corpus be denied.
9
These findings and recommendations are submitted to the United States District Judge
10
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
11
after being served with these findings and recommendations, any party may file written
12
objections with the court and serve a copy on all parties. Such a document should be captioned
13
“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
14
shall be served and filed within fourteen days after service of the objections. Failure to file
15
objections within the specified time may waive the right to appeal the District Court’s order.
16
Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
17
1991). In his objections petitioner may address whether a certificate of appealability should issue
18
in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section
19
2254 Cases (the district court must issue or deny a certificate of appealability when it enters a
20
final order adverse to the applicant).
21
DATED: September 25, 2018.
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