Pangilinan v. Lewis

Filing 12

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Thelton E. Henderson on 11/08/2012. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 11/9/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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C 12-0194 TEH (PR)

ALFREDO PANGILINAN,
Petitioner,

ORDER DENYING PETITION FOR WRIT
OF HABEAS CORPUS; DENYING
CERTIFICATE OF APPEALABILITY

v.
GREG LEWIS, Warden,
Respondent.

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Petitioner Alfredo Pangilinan, a state prisoner

14 incarcerated at Pelican Bay State Prison, located in Crescent City,
15 California, filed this pro se action seeking a writ of habeas corpus
16 under 28 U.S.C. § 2254.

The matter is now before the Court for

17 consideration of the merits of the habeas petition.

For the reasons

18 discussed below, the petition will be denied.
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I
On December 17, 2008, a Contra Costa County jury found

21 Petitioner guilty of two counts of first degree murder and assault
22 with a deadly weapon and found true allegations of multiple murder
23 special circumstance and personal use of a deadly weapon.
24 Transcript (CT) 810-812.

Petitioner was sentenced to life without

25 possibility of parole plus five years.
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4 CT 901.

Petitioner appealed his conviction in the California Court

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4 Clerk’s

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1 of Appeal.

4 CT 931.

On August 10, 2010, the California Court of

2 Appeal filed an unpublished opinion affirming the judgment.

People

3 v. Pangilinan, 2010 WL 3123138 (Cal. Ct. App. Aug. 10, 2010).

On

4 October 20, 2010, the California Supreme Court denied Petitioner’s
5 petition for review.

Respondent’s Exhibit 8.

On January 12, 2012, Petitioner filed the instant federal

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7 petition raising the claim that there was insufficient evidence to
8 support his conviction for the first degree murder of Virginia
9 Farley.

On April 27, 2012, this Court ordered Respondent to show

10 cause as to why the petition should not be granted.

Respondent

11 filed an answer; Petitioner has not filed a traverse.
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II
The following factual background is taken from the order

14 of the California Court of Appeal.
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In April 2006, Ronald and Maria Kagayutan owned the Green
Harmony Residential Care Home (Green Harmony). At that time
Green Harmony had two residents, Lucy Mogannam, who was over 90
years old, and Ginney Farley, who was in her 60's. Mogannam
was healthy and alert and used a walker to aid her mobility.
Farley was developmentally disabled, diabetic and legally
blind; she used a walker and wheelchair. . . .
In about November 2005, appellant applied for a job at Green
Harmony but was not hired. Thereafter, when Maria Kagayutan
saw appellant in the backyard of Green Harmony, she told Tumang
and Cecilia [the Kagayutans’ employees,] that he was not an
employee and they should not let him in. After Cecilia stopped
working at Green Harmony, appellant no longer came there, but
he would call Tumang at Green Harmony or on her cell phone.

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On April 4, 2006, appellant called Tumang and said he was at
the back of Green Harmony. Tumang told him not to come. When
appellant gestured that he needed to use the bathroom, she let
him in through a sliding door in the master bedroom. Appellant
asked Tumang for money and she said she did not have any. In
response, he pushed her multiple times, shoving her into the
master bedroom bathroom. He then grabbed a towel bar and began
striking her with it until she bled. Appellant also hit Tumang
with his fists, kicked her, grabbed her hair and banged her

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head into the wall.
all of you.”

While hitting her he threatened to “kill

When Farley began knocking on the master bedroom door saying
she was hungry, appellant stopped hitting Tumang, who then ran
out of the bedroom. Appellant hid in the master bedroom
closet. Thereafter, while Tumang was feeding Farley and
Mogannam in the kitchen, appellant called Tumang on her cell
phone and the Green Harmony phone and told her to come back to
the master bedroom because he wanted to tell her something.
Appellant threatened Tumang: “‘If you don't come in here, I'm
going to be the one to come out.’” He also threatened to kill
her and her children.
Tumang called the Kagayutans, but was unable to reach them.
Tumang left a message for Maria Kagayutan stating that
appellant was at Green Harmony and had struck her; she then
took the bus home. While she was on the bus, appellant called
her and asked where she was. Tumang told him she was not at
Green Harmony and that he should leave. He again threatened to
kill her and her children. Maria Kagayutan then called Tumang,
who said appellant had struck her.
Maria Kagayutan contacted Ronald Kagayutan and told him to go
to Green Harmony because someone was there. Ronald Kagayutan
drove to Green Harmony. When no one answered the doorbell, he
used his key and entered. Inside, he heard a male voice
talking in the bathroom; it sounded “like an argument.” When
Ronald Kagayutan got close to the kitchen, he saw Mogannam
lying on the floor and a man, later identified as appellant,
standing close to her, holding a knife. A lot of blood was on
the floor. Ronald Kagayutan ran to a nearby house and called
911. He then saw appellant, holding a small black bag, leave
Green Harmony through a side yard.
Police arrived and Mogannam was pronounced dead at the scene.
Farley was found lying in the bathroom with knife wounds to her
neck and chest. She was in severe distress and “quite
frightened.” She repeatedly yelled, “Please stop hurting me,
please stop hurting me.” The bathroom door was broken down and
“in pieces.” Farley told responders she had hid in the
bathroom because a “stranger” was in the house and she was
afraid. Farley died three days after the attack.
About 15 minutes after receiving the 911 call, police found
appellant walking unsteadily. He smelled of alcohol. While
the officers struggled to detain him, appellant dropped a
blood-stained knife. His pants were blood-stained. Ronald
Kagayutan identified appellant as the person he saw flee from
Green Harmony.
Forensic pathologist Arnold Josselson performed the autopsies
on Mognannam and Farley. . . . The autopsy of Farley revealed
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bruising of her back, thighs, forearm and chin. There were
superficial stab wounds to the right side of her neck and right
clavicle with surrounding bruising. The clavicle wound did not
enter the chest and the neck wound did not sever any large
blood vessels. Farley had an endotracheal tube down her
throat. Josselson opined that the large bruising in the area
of the stab wounds was the result of bleeding from the stab
wounds or some blunt force injury. Farley's internal systems
were essentially normal and the drug levels in her blood were
consistent with therapeutic use . . .
[Josselson] opined that none of [Farley’s] preexisting medical
conditions appeared to cause her death. He said that sudden
causes of death can occur, but that Farley's autopsy showed no
signs of a drug overdose, anaphylactic shock, stroke or heart
attack. . . .
Pittsburg Police Inspector Conaty talked with Josselson during
Farley's autopsy. Based on the gross autopsy findings,
Josselson was unable to give Conaty a cause of Farley's death.
Subsequently, after informing Josselson that Farley was
subjected to a violent struggle and attack in a small confined
space, Josselson told Conaty it was a “possibility” that the
attack was a substantial factor in causing her death.

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The following testimony is from Petitioner’s trial, where

14 the prosecution questioned Laura Mosqueda, the prosecution’s expert
15 on geriatrics, elder dependent abuse and aging with a disability.
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Q:

Is there a reasonable probability that the attack on Ms.
Farley contributed to her death?

A:

Yes, I think there is.

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Q:

Why is that?

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A:

In the autopsy report they are unable to list a cause
of death. She didn’t have a sudden heart attack, she
didn’t have a stroke. She didn’t have a blood clot
to her lung that would cause sudden death. There was
no reason to think prior to this attack that she was
ready to die. She had been hospitalized a couple of
times and recovered back to baseline and seem[ingly]
was doing well. And I just think it’s a remarkable
coincidence to say that she undergoes a savage
attack, undergoes this incredibly – it’s a brutal
attack and she’s clearly very, very frightened
following that, unable to understand what’s
happening, unable to process it and then suddenly
dies. In my mind, those things are linked.

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4 RT (Reporter’s Transcript) 820.

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On cross-examination, Dr. Mosqueda testified further.

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Q:

You are just saying it’s a reasonable possibility
that the attack may have contributed to her death?

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A:

Reasonable possibility it contributed, yes.

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4 RT 824.

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At trial, the prosecution asked Dr. Josselson:
Q:

Based on your examination of Ms. Farley, were you
able to determine her cause of death from what her
body was telling you?

A:

No, I was not. I was not able to determine the
cause of death from the autopsy findings.

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10 4 RT 883.

When the prosecution gave Dr. Josselson a detailed

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12 hypothetical based on Virginia Farley’s health condition, Dr.
13 Josselson responded:
Well, I would say my opinion is the most likely cause [of
death] would be a cardiac arrhythmia or abnormal heart
rhythm due to stress. The stress of the assault and also
if anyone’s been a patient in a hospital is a very
stressful environment. So I would say the most likely
thing would be the assault started a strain[sic] of events
that eventually led her to have a cardiac arrhythmia and
die.

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4 RT 887.

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On cross-examination Josselson reiterated that stress

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from the assault was the “most likely” cause of Farley's death.

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RT 894.

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III

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Under the Antiterrorism and Effective Death Penalty Act of

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1996 (“AEDPA”), codified under 28 U.S.C. § 2254, a federal court may

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not grant a writ of habeas corpus on any claim adjudicated on the

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merits in state court unless the adjudication:

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“(1) resulted in a

1 decision that was contrary to, or involved an unreasonable
2 application of, clearly established Federal law, as determined by
3 the Supreme Court of the United States; or (2) resulted in a
4 decision that was based on an unreasonable determination of the
5 facts in light of the evidence presented in the State court
6 proceeding.”
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28 U.S.C. § 2254(d).

“Under the ‘contrary to’ clause, a federal habeas court

8 may grant the writ if the state court arrives at a conclusion
9 opposite to that reached by [the Supreme] Court on a question of law
10 or if the state court decides a case differently than [the] Court
11 has on a set of materially indistinguishable facts.”
12 (Terry) v. Taylor, 529 U.S. 362, 412–13 (2000).

Williams

“Under the

13 ‘unreasonable application’ clause, a federal habeas court may grant
14 the writ if the state court identifies the correct governing legal
15 principle from [the] Court’s decisions but unreasonably applies that
16 principle to the facts of the prisoner’s case.”
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Id. at 413.

“[A] federal habeas court may not issue the writ simply

18 because that court concludes in its independent judgment that the
19 relevant state-court decision applied clearly established federal
20 law erroneously or incorrectly.
21 objectively unreasonable.”

Rather, that application must be

Lockyer v. Andrade, 538 U.S. 63, 75-76

22 (2003) (internal quotation marks and citation omitted).

Moreover,

23 in conducting its analysis, the federal court must presume the
24 correctness of the state court’s factual findings, and the
25 petitioner bears the burden of rebutting that presumption by clear
26 and convincing evidence.

28 U.S.C. § 2254(e)(1).

As the Court

27 explained: “[o]n federal habeas review, AEDPA ‘imposes a highly
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1 deferential standard for evaluating state-court rulings’ and
2 ‘demands that state-court decisions be given the benefit of the
3 doubt.’”

Felkner v. Jackson, __ U.S. __, 131 S. Ct. 1305, 1307

4 (2011) (citation omitted).
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When applying these standards, the federal court should

6 review the “last reasoned decision” by the state courts.
7 Galaza, 297 F.3d 911, 918 n.6 (9th Cir. 2002).

Avila v.

This Court looks to

8 the California Court of Appeal’s May 18, 2010 written opinion on
9 direct appeal affirming the trial court judgment.
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With these principles in mind regarding the standard and

11 scope of review on federal habeas, the Court addresses Petitioner's
12 claim.
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IV

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A

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Petitioner argues that there was insufficient evidence to

16 support his conviction for the murder of Virginia Farley, arguing
17 that the prosecution failed to prove beyond a reasonable doubt that
18 his assault on Farley was the cause of her death.
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The Due Process Clause "[p]rotects the accused against

20 conviction except upon proof beyond a reasonable doubt of every fact
21 necessary to constitute the crime with which he is charged."
22 Winship, 397 U.S. 358, 364 (1970).

In re

A state prisoner who alleges

23 that the evidence in support of his state conviction cannot be
24 fairly characterized as sufficient to have led a rational trier of
25 fact to find guilt beyond a reasonable doubt therefore states a
26 constitutional claim which, if proven, entitles him to federal
27 habeas relief.
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Jackson v. Virginia, 443 U.S. 307, 321, 324 (1979).
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1 The federal court determines “[w]hether, after viewing the evidence
2 in the light most favorable to the prosecution, any rational trier
3 of fact could have found the essential elements of the crime beyond
4 a reasonable doubt."

Id. at 319 (emphasis in original).

The

5 Jackson standard must be applied with explicit reference to the
6 substantive elements of the criminal offense as defined by state
7 law.
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Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004).
On habeas review, a federal court evaluating the

9 sufficiency of the evidence under Winship and Jackson should take
10 into consideration all of the evidence presented at trial.
11 v. Slaughter, 458 F.3d 878, 882 (9th Cir. 2006).

LaMere

If confronted by a

12 record that supports conflicting inferences, a federal habeas court
13 "[m]ust presume – even if it does not affirmatively appear in the
14 record – that the trier of fact resolved any such conflicts in favor
15 of the prosecution, and must defer to that resolution."
16 443 U.S. at 326.

Jackson,

Credibility determinations by a trier of fact are

17 therefore entitled to near-total deference.
18 F.3d 950, 957 (9th Cir. 2004).

Bruce v. Terhune, 376

Except in the most exceptional of

19 circumstances, Jackson does not permit a federal habeas court to
20 revisit credibility determinations.
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Id. at 957-58.

Under 28 U.S.C. § 2254(d), a federal habeas court applies

22 Jackson and Winship with an additional layer of deference.
23 v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005).

Juan H.

A federal habeas

24 court must ask whether the operative state court decision
25 "[r]eflected an ‘unreasonable application of’ Jackson and Winship to
26 the facts of the case."

Id. at 1275 (citing 28 U.S.C. § 2254(d)(1)

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According to California law, in determining whether a

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2 defendant's acts were the proximate cause of the death of a human
3 being, the court asks whether the evidence sufficed to permit the
4 jury to conclude that the death was the natural and probable
5 consequence of the defendant's act.
6 4th 628, 639-640 (2004).

People v. Taylor, 119 Cal. App.

“[I]n homicide cases, a cause of the

7 [death of the decedent] is an act or omission that sets in motion a
8 chain of events that produces as a direct, natural and probable
9 consequence of the act or omission the [death] and without which the
10 [death] would not occur.”
11 48, 51 (1996).

People v. Schmies, 44 Cal. App. 4th 38,

“[A] defendant whose infliction of physical injury

12 upon another is a cause of that person's death is guilty of unlawful
13 homicide even if the injury was not the only cause of death, and
14 even if the victim was in a weakened state due to a preexisting
15 condition.”

Taylor, at p. 641.
C

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Petitioner argues that the prosecutor did not establish

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beyond a reasonable doubt that his assault on Farley was the cause

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of her death because the most that either of the prosecutor’s

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experts could say was that the assault on Farley was a possible

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cause of her death.

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‘possibility’ or even a ‘reasonable possibility’ fails to meet even

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the standard required to establish liability in a civil personal

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injury suit, where the standard of proof is a preponderance of the

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evidence, much less the standard of proof beyond a reasonable

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doubt.”

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Petitioner contends that “a medical

Petition for Review in the Supreme Court of California, 15.
Although the prosecutor’s witnesses did not definitively
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testify that Farley’s death was caused by Petitioner’s acts, Dr.

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Mosqueda testified that Petitioner’s attack was linked to Farley’s

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death, and Dr. Josselson told Police Inspector Conaty that it was a

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“possibility” that Petitioner’s attack was a substantial factor in

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causing her death.

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likely cause of death was cardiac arrhythmia due to stress, most

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likely caused by Petitioner’s assault.

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reviewing court to presume that the trier of fact resolved any

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conflicts in favor of the prosecution, and must defer to that

Dr. Josselson also testified that the most

Jackson requires the

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resolution.

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to the prosecution, it cannot be said that no rational trier of fact

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could have found that Petitioner caused the death of Virginia

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Farley.

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After viewing the evidence in the light most favorable

The state court denied Petitioner’s claim, finding that

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there was sufficient evidence in the record for a rational trier of

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fact to conclude that Petitioner

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The California Court of Appeal stated:

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was guilty of murdering Farley.

Appellant presented no evidence contradicting the opinions of
Josselson and Mosqueda that the attack caused Farley to
experience extreme stress which resulted in cardiac arrhythmia
and ultimately Farley's death. The testimony of Josselson and
Mosqueda provides substantial evidence that despite Farley's
preexisting conditions and medications, [Petitioner]'s vicious
attack on her set in motion a chain of events that produced
her death as a direct, natural and probable consequence of
that attack, and without that attack her death would not have
occurred.
Pangilinan, 2010 WL 3123138 at *5.
The California Court of Appeal’s rejection of Petitioner’s

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insufficiency of evidence claim was not contrary to, or an

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unreasonable application of, clearly established federal law as set

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1 forth by the Supreme Court nor was it based on an unreasonable
2 determination of the facts in light of the evidence presented in the
3 state court proceeding.

Petitioner is not entitled to habeas

4 relief.
VI

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For the foregoing reasons, the petition for a writ of

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7 habeas corpus is DENIED.
Further, a Certificate of Appealability is DENIED.

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9 Rule 11(a) of the Rules Governing Section 2254 Cases.

See

Petitioner

10 has not made “a substantial showing of the denial of a
11 constitutional right.”

28 U.S.C. § 2253(c)(2).

Nor has Petitioner

12 demonstrated that “reasonable jurists would find the district
13 court’s assessment of the constitutional claims debatable or wrong.”
14 Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Petitioner may not

15 appeal the denial of a Certificate of Appealability in this Court
16 but may seek a certificate from the Court of Appeals under Rule 22
17 of the Federal Rules of Appellate Procedure.

See Rule 11(a) of the

18 Rules Governing Section 2254 Cases.
The Clerk is directed to enter Judgment in favor of

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20 Respondent and against Petitioner, terminate any pending motions as
21 moot and close the file.
IT IS SO ORDERED.

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24 DATED
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11/08/2012
THELTON E. HENDERSON
United States District Judge

G:\PRO-SE\TEH\HC.12\Pangilinan 12-0194 HC.wpd

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