Robey v. Cash

Filing 23

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING MOTION FOR AN EVIDENTIARY HEARING, AND GRANTING CERTIFICATE OF APPEALABILITY re 1 Petition for Writ of Habeas Corpus filed by Zachary Tibre Robey, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 9/12/14. (Attachments: # 1 Certificate/Proof of Service)(nahS, COURT STAFF) (Filed on 9/12/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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ZACHARY TIBRE ROBEY,
Petitioner,

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ORDER DENYING PETITION
FOR WRIT OF HABEAS
CORPUS, DENYING MOTION
FOR AN EVIDENTIARY
HEARING, AND GRANTING
CERTIFICATE OF
APPEALABILITY

vs.
BRENDA CASH, Warden,
Respondent.

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For the Northern District of California

United States District Court

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No. 11-2054 PJH (PR)

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This is a habeas corpus case filed pro se by a state prisoner pursuant to 28 U.S.C. §

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2254. The court ordered respondent to show cause why the writ should not be granted.

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Respondent filed an answer and a memorandum of points and authorities in support of it,

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and lodged exhibits with the court. Petitioner responded with a traverse and a motion for

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an evidentiary hearing. For the reasons set out below, the motion and the petition are

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denied.

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BACKGROUND

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On June 13, 2007, a jury convicted petitioner of two counts of first degree robbery,

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dissuading a witness, extortion, and possession of methamphetamine. Clerk’s Transcript

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(“CT”) at 177-79, 254-55. The jury found true the enhancement that petitioner personally

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used a firearm when he committed the robberies and extortion. CT at 254. Petitioner was

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sentenced to twenty-five years and eight months in prison. CT at 299. The California

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Court of Appeal affirmed the judgment, and a petition for review was summarily denied by

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the California Supreme Court. People v. Robey, No. H032101, 2009 WL 3208689 (Cal. Ct.

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App. Oct. 7, 2009); Answer Ex. E. Habeas petitions to the Santa Clara County Superior

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Court and California Supreme Court were also denied. Answer, Exs. F, G.

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The facts, as described by the California Court of Appeal, are as follows:

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The convictions in this case arose out of three separate incidents. Since
defendant does not challenge his convictions on the robbery counts, we only
briefly summarize the evidence related to those counts.

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Prosecution Case: The Robberies
On January 24, 2007, while walking home from school, 13-year-old F.R. tried
to throw a rock at a stop sign. He missed and hit defendant's mother's car, a
Mitsubishi Lancer. Defendant was driving the car and followed F.R. home.
Along the way, defendant swore at F.R. and threatened to run him over. He
said he had a gun, “so don't play around with me.”

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When F.R. got home, he tried to get inside his house, but the front door was
locked and he had forgotten his key. His parents were at work. Defendant
backed his car into F.R.'s driveway, got out of the car, and told F.R. he
wanted to talk to his parents. F.R. offered defendant $40 and his cell phone
to go away. Defendant said he wanted the car fixed. Defendant pulled up his
shirt and showed F.R. a gun, which was tucked in his waistband.
F.R.'s twin brother, A.R., arrived. A.R. got into the house through the garage
or a side door. A.R. asked defendant to stay in the garage, but defendant
followed the boys into the house. When A.R. attempted to call his father,
defendant hung up the phone.

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Defendant heard a noise and told the boys to go upstairs. Defendant followed
the boys into their parents' bedroom, where he saw several jewelry boxes.
He told the boys to “get a bag and give me all the goods.” The boys got some
garbage bags. Defendant pulled out his gun and touched the things he
wanted the boys to put in the bags with the barrel of the gun. They went from
room to room and took jewelry, 16 handbags, three television sets, two
hand-held video games, a laptop computer, clothing, money, tools, the
telephone, and the boys' cell phones. Defendant hit A.R. in the face twice
with the handle of the gun. When A.R. dropped a purse, defendant opened
the gun's chamber and showed A.R. the bullets.
Defendant told the boys to back his car into the garage. While A .R. backed
the car into the garage, defendant put his arm around F.R.'s neck and held
the gun up against F.R.'s ribs. The boys loaded the items into the car. F.R.
made a note of defendant's license plate number and called the police after
defendant left.
Defense Case: Robberies
Defendant testified. He told the jury that he never yelled at F.R., that he did
not go inside the house except to wash his hands in the bathroom, that he did
not have a gun, that he never hit or threatened the boys, that the boys tried to
“bribe” him, and that they gave him the items to compensate for the damage
to his mother's car. Defendant told the jury that he sells methamphetamine
and that he gave most of the stolen property to a friend who needed money.
Prosecution Case: Extortion, Dissuading a Witness, and Drug
Possession Counts
Defendant had testified on February 1, 2007, that he “crashed” his mother's
Lancer into a parked car and left the scene of the accident. Shortly
thereafter, defendant lied to his mother and told her that the car had been
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Isla testified through a Tagalog interpreter. Isla worked at Garcia's auto body
shop and met defendant there. One day, defendant told Isla that Garcia had
said that Isla should lend Isla's brother's white Ford Mustang (White Mustang)
to defendant. According to Isla, defendant was going to use the car to “get”
another car from another place. During that conversation, defendant said,
“You want to see a gun?” and pulled a .38 caliber “Python” from his
waistband. Defendant showed Isla the bullets in the chamber and said they
were silver. Later that day, Isla gave defendant the keys to the White
Mustang.
Defendant did not return the car. Isla tried to contact him by phone later that
day, but defendant never responded. Isla spoke with defendant by phone the
following day and asked him for the car back. Defendant said he would return
the car if Isla gave him another Mustang and $900.

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stolen. The police responded to the scene of the accident, searched the
Lancer, and found defendant's driver's license and a piece of paper with the
name “Rodel Garcia” written on it. Sergeant Nieves, who was assigned to the
robbery investigation, contacted Garcia and that led him to another victim,
George Isla.

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Isla met face to face with defendant a day or two after he lent him the car.
They drove around south and east San Jose in a Camaro for seven hours,
from 4:00 p.m. to 11:00 p.m. They stopped at several houses and visited
defendant's child.
The following morning, defendant drove Isla to Isla's house in Milpitas to get
some money for defendant. Defendant said that Isla owed him $500 and that
it would cost Isla $500 to get the White Mustang back. During the drive,
defendant showed Isla his gun and said “This is your last chance.” Some
time before that, defendant said, “‘If you will call the police sorry for you.’”
Isla got $500 from his brother and sister. However, he did not give the money
directly to defendant. He gave it to Garcia to give to defendant. He asked
Garcia to go with defendant to pick up the White Mustang and to give the
money to defendant after defendant gave Garcia the car. Isla saw Garcia
drive away with defendant. Garcia came back later on foot. He did not have
the car or the $500.

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Isla denied using methamphetamine. Isla testified that he never bought
methamphetamine from defendant and that he did not owe defendant any
money. Isla never called the police to report what had occurred.

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Defendant was arrested at a shopping mall on February 5, 2007. During the
search incident to his arrest, the officers found a baggie of white powder in
defendant's right rear pants pocket and a set of keys. The officers also found
“a couple bags of clothing” that contained T-shirts, a baseball hat, a pair of
jeans and some shoes. Everything except the jeans and the shoes looked
newly purchased. Laboratory testing confirmed that the white powder was
5.5 grams of methamphetamine. Sergeant Nieves searched the mall parking
lot and found the White Mustang. The keys the officer had found on
defendant's person opened the door and started the car.

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Defense Case: Extortion, Dissuading a Witness, and Drug Possession
Counts
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Defendant testified that he sold methamphetamine to Garcia and referred
auto repair business to Garcia. At the time of the robbery, Garcia was
working on three of defendant's cars.
Defendant went to Garcia's shop a couple of days after the robbery to check
on his cars and met Isla. Defendant described Isla as an “excessive drug
user,” a “crack-head ... just another guy that smokes dope.” Defendant did
not have a business relationship with Isla, but thought he was going to start
one that day. Defendant and Isla talked about sending methamphetamine to
“the island”; Isla said he had family that worked at the airport. Defendant
gave Isla one ounce of methamphetamine. Defendant testified that Isla owed
him $900 for the methamphetamine. Isla told defendant he would have
defendant's money two days later.
Defendant returned two days later, but Isla did not have the money.
According to defendant, Isla made excuses and tried to give defendant some
“fake dope.” Defendant talked to Garcia, Garcia talked to Isla, and then Isla
offered defendant the White Mustang and said he would pay defendant the
$900 in time. Defendant left in the White Mustang.
Isla called defendant a few days later and told defendant the White Mustang
belonged to his brother. Defendant got mad when he found out Isla did not
own the car. Isla said he needed the car back, but had another Mustang at
his sister's house. As it turned out, the second Mustang had been sold.

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Defendant saw Isla two days later. Isla said he had money for defendant;
defendant figured Isla was trying to buy the White Mustang back. According
to defendant, Isla gave Garcia $500 to give to defendant in exchange for the
White Mustang. Garcia rode with defendant and a woman to an unspecified
street corner. Defendant dropped Garcia off, told him to wait at the corner,
and went to get the White Mustang. When defendant returned with the White
Mustang, Garcia was gone. According to defendant, Garcia never gave him
the money.
Defendant testified that he did not show Isla a firearm and that he never
owned a gun.

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Robey, 2009 WL 3208689, at 1-4.
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STANDARD OF REVIEW
A district court may not grant a petition challenging a state conviction or sentence on

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the basis of a claim that was reviewed on the merits in state court unless the state court's

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adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an

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unreasonable application of, clearly established Federal law, as determined by the

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Supreme Court of the United States; or (2) resulted in a decision that was based on an

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unreasonable determination of the facts in light of the evidence presented in the State court

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proceeding." 28 U.S.C. § 2254(d). The first prong applies both to questions of law and to
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mixed questions of law and fact, see Williams (Terry) v. Taylor, 529 U.S. 362, 407-09

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(2000), while the second prong applies to decisions based on factual determinations, see

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Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

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A state court decision is “contrary to” Supreme Court authority, that is, falls under the

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first clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that

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reached by [the Supreme] Court on a question of law or if the state court decides a case

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differently than [the Supreme] Court has on a set of materially indistinguishable facts.”

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Williams (Terry), 529 U.S. at 412-13. A state court decision is an “unreasonable application

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of” Supreme Court authority, falling under the second clause of § 2254(d)(1), if it correctly
identifies the governing legal principle from the Supreme Court’s decisions but

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“unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. The

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federal court on habeas review may not issue the writ “simply because that court concludes

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in its independent judgment that the relevant state-court decision applied clearly

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established federal law erroneously or incorrectly.” Id. at 411. Rather, the application must

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be “objectively unreasonable” to support granting the writ. Id. at 409.

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Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual

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determination will not be overturned on factual grounds unless objectively unreasonable in

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light of the evidence presented in the state-court proceeding.” See Miller-El, 537 U.S. at

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340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000).

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When there is no reasoned opinion from the highest state court to consider the

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petitioner’s claims, the court looks to the last reasoned opinion. See Ylst v. Nunnemaker,

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501 U.S. 797, 801-06 (1991). Thus, a federal court will “look through” the unexplained

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orders of the state court’s rejection of a petitioner’s claims and analyze whether, in the last

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reasoned opinion, the state court unreasonably applied Supreme Court precedent. See

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Ylst, 501 U.S. at 804-06. For claims one and two, the court looks to the opinion of the

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California Court of Appeal on direct appeal. For claim three, the court looks to the opinion

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of the Superior Court of Santa Clara which denied petitioner’s state habeas petition.

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Answer, Ex. G.
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DISCUSSION

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As grounds for federal habeas relief, petitioner asserts that: (1) trial counsel was

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ineffective for failing to object to prosecutorial misconduct; (2) there was insufficient

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evidence to support the dissuading-a-witness conviction and the firearm enhancement; and

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(3) appellate counsel was ineffective for failing to raise a claim regarding the admission of

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hearsay evidence, an improper jury instruction on extortion, and improper sentencing.

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I.

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Ineffective Assistance of Trial Counsel
Petitioner argues that trial counsel was ineffective for failing to object to the

prosecutor’s argument to the jury regarding the law of extortion.
Legal Standard

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A claim of ineffective assistance of counsel is cognizable as a claim of denial of the

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Sixth Amendment right to counsel, which guarantees not only assistance, but effective

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assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The

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benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so

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undermined the proper functioning of the adversarial process that the trial cannot be relied

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upon as having produced a just result. Id.

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In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner

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must establish two things. First, he must establish that counsel's performance was

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deficient, i.e., that it fell below an “objective standard of reasonableness” under prevailing

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professional norms. Strickland, 466 U.S. at 687-88. Second, he must establish that he

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was prejudiced by counsel's deficient performance, i.e., that “there is a reasonable

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probability that, but for counsel's unprofessional errors, the result of the proceeding would

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have been different.” Id. at 699. “A reasonable probability is a probability sufficient to

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undermine confidence in the outcome.” Id.

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The Strickland framework for analyzing ineffective assistance of counsel claims is

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considered to be “clearly established Federal law, as determined by the Supreme Court of

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the United States” for the purposes of 28 U.S.C. § 2254(d) analysis. Cullen v. Pinholster,

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131 S. Ct. 1388, 1403 (2011). A “doubly” deferential judicial review is appropriate in
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analyzing ineffective assistance of counsel claims under § 2254. See id. at 1410–11. The

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general rule of Strickland, i.e., to review a defense counsel's effectiveness with great

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deference, gives the state courts greater leeway in reasonably applying that rule, which in

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turn “translates to a narrower range of decisions that are objectively unreasonable under

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AEDPA.” Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (citing Yarborough v.

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Alvarado, 541 U.S. 652, 664 (2004)). When § 2254(d) applies, “the question is not whether

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counsel's actions were reasonable. The question is whether there is any reasonable

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argument that counsel satisfied Strickland's deferential standard.” Harrington v. Richter,

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131 S. Ct. 770, 788 (2011).
To demonstrate deficient performance, a petitioner is required to show that counsel

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made errors so serious that counsel was not functioning as the “counsel” guaranteed by the

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Sixth Amendment. See Strickland, 466 U.S. at 687.

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Analysis

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The California Court of Appeal set forth the relevant background for this claim:

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The court instructed that jury with CALCRIM No. 1830, which provides, in
part, that to prove extortion, the prosecution must prove: “1. The defendant
threatened to unlawfully injure or use force against another person or a third
person, or the property of another person or a third person; [¶] 2. When
making the threat, the defendant intended to use that fear to obtain the other
person's consent to give the defendant money; [¶] 3. As a result of the threat
or use of force, the other person consented to give defendant money; [¶] AND
[¶] 4. As a result of the threat or use of force, the other person then gave the
defendant money.” (Italics added.) The issues on appeal involve the
prosecutor's argument regarding the fourth element of the crime. We set
forth the argument in context, with the specific language at issue in italics.

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The prosecutor listed the elements of extortion set forth in the jury instruction
and stated, “Now notice that there's no requirement for me to prove that the
defendant actually received the money.” (Italics added.) The prosecutor
continued: “Hearing the evidence suggests that the defendant did receive the
money. Mr. Isla testified that he gave the money to Rodel Garcia. Defendant
concedes that Mr. Garcia had the five hundred dollars. Mr. Isla describes Mr.
Garcia coming back from his meeting with the defendant angry. And two
days later the defendant is found at a shopping mall having just gone on a
little shopping spree with drugs in his pocket, consistent with someone having
just received a sum of money. [¶] But remember, the only thing you have to
decide beyond a reasonable doubt is, did Mr. Isla give the money to the
defendant? Which he did. And the defendant seems to concede as much.”

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In addition, the prosecutor argued that she had met her burden by presenting
evidence that Isla gave the money to Garcia. The prosecutor stated: “I've
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lumped elements three and four together in this last fact, as a result, George
Isla consented to and then did give Rodel Garcia the money.” In argument
regarding the lesser included offense of attempted extortion, the prosecutor
stated: “But now let's go back to the first element. The defendant took a
direct but ineffective step toward committing extortion by threat. Here his
efforts were totally effective. They caused Mr. Isla to give Rodel Garcia the
five hundred dollars. So that's why I think that we don't have an attempted
extortion, we do had a completed extortion....” In summary, the prosecutor
argued both that defendant actually received the money and that Isla gave
the money to Garcia.

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Defendant contends that the prosecutor misstated the law of extortion when
she told the jurors that she was not required to prove that defendant actually
received the $500 and that, in so doing, she committed misconduct.

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After setting forth the relevant law regarding extortion, the California Court of Appeal
concluded that, “the prosecution can meet its burden of showing that the defendant
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obtained property from the victim by showing that the defendant or an agent of the
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defendant received the property.” Robey, 2009 WL 3208689, at 10. The state court then
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discussed the law of prosecutorial misconduct and ineffective assistance of counsel and
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denied the claim:
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As we stated, the argument at issue involves the fourth element of extortion
set forth in the jury instruction, which required the prosecution to prove that as
“a result of the threat or use of force, the other person then gave the
defendant money.” (Italics added.) The keys points in the prosecution's
argument include: “Now notice that there's no requirement for me to prove
that the defendant actually received the money. ... [¶] But remember, the only
thing you have to decide beyond a reasonable doubt is, did Mr. Isla give the
money to the defendant? Which he did.” [¶] ... [¶] I've lumped elements three
and four together in this last fact, as a result, George Isla consented to and
then did give Rodel Garcia the money.” (Italics added.) In her argument
regarding attempted extortion, the prosecutor argued that defendant did not
take “a direct but ineffective step toward committing extortion by threat. Here
his efforts were totally effective. They caused Mr. Isla to give Rodel Garcia
the five hundred dollars.”
Focusing on the word “defendant” rather than the word “received” in the
prosecution's statement that “there's no requirement [that she] prove that the
defendant actually received the money” and viewing the statement in the
context of the entire argument, leads us to conclude that the prosecutor was
arguing that Garcia was defendant's agent and that the prosecution had met
its burden of showing that Isla gave the money to defendant by showing that
Isla gave the money to Garcia. After the prosecutor told the jury that she did
not have to prove that defendant actually received the money, she did not
argue that proof of the threat alone was sufficient to prove extortion. Instead,
she argued that she met her burden of proving Isla gave the money to
defendant by showing that Isla gave FN3 the money to Garcia. Such an
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argument is consistent with our interpretation of section 518. Moreover, it
was up to the jury to decide whether Garcia was acting on defendant's behalf
when Isla gave Garcia the money.
FN3. The instruction on extortion did not state that defendant or
his agent needed to actually receive the money. Instead, the
court instructed the jury that the fourth element of the offense
required the prosecution to show that “As a result of the threat
or use of force, the other person then gave the defendant
money.” (Italics added.) There were no instructions that told the
jury that defendant could act through an agent. Defendant does
not claim instructional error and the adequacy of the instruction
is not before us.
In addition to arguing that Isla gave the money to Garcia, the prosecutor
argued that defendant had actually received the money. The evidence
supported that assertion. Isla testified that Garcia came back without the
money and without the car and that Garcia was angry when he returned. A
reasonable inference from that evidence is that Garcia gave defendant the
money but defendant did not give Garcia the car as arranged. Isla did not
testify that he thought Garcia pocketed the money and there was no evidence
that Garcia took the money. A couple of days after Isla gave the money to
Garcia, defendant went shopping, which, as the prosecutor argued, suggests
that he had come into some money. Although defendant testified that he did
not receive the money from Garcia, the jury may not have believed him.
Defendant was an admitted methamphetamine dealer who brandished a
weapon at two 13-year-old boys, hit one of the boys with the gun, held the
other at gunpoint, and took advantage of their fear to rob their home.
Defendant also admitted he lied to his mother and abandoned the scene of an
accident when he wrecked her car.

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Based on our conclusion regarding the law of extortion and the evidence and
argument in this case, we cannot say that the prosecutor committed
misconduct when she told the jury that “there's no requirement for me to
prove that the defendant actually received the money.” In our view, the
prosecutor's argument does not amount to misconduct under either the
federal or the state standard. Since the prosecutor did not commit
misconduct, we conclude that defense counsel was not ineffective when he
failed to object to the prosecutor's argument. We therefore reject defendant's
ineffective assistance of counsel claim.

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Petitioner has failed to demonstrate that the state court opinion was an
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unreasonable application of Supreme Court authority. Petitioner has not shown that the
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prosecutor’s comments were misconduct or that trial counsel was ineffective for failing to
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object. The state court held that California law does not require that the defendant receive
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property directly from the victim to prove extortion or that the defendant actually receive the
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money when the defendant uses an agent. To the extent that petitioner challenges this
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interpretation of state law, he is not entitled to federal habeas relief. See Estelle v.

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McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state

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court's interpretation and application of state law). As set forth above, the victim testified

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that because he was scared, he gave the money to another individual, Rodel Garcia, to

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give the money to petitioner. Reporter’s Transcript (“RT”) at 180. The prosecutor also

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argued, and the evidence could support, that petitioner did receive the money from Rodel

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Garcia. While petitioner testified that he did not receive the money, the jury did not have to

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credit his testimony, and regardless, state law does not require that petitioner actually

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receive the money when an agent is used.
Therefore, petitioner has not shown that the prosecutor’s comment was misconduct

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or that the trial counsel was ineffective for failing to object because the comment accurately

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reflected state law. While the prosecutor’s comment may have been confusing or

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ambiguous, the jury was properly instructed by the trial court and the jury is presumed to

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have followed its instructions. See Weeks v. Angelone, 528 U.S. 225, 234 (2000). The

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comment was not misconduct that was so improper that it infected the entire trial with

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unfairness, see Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005), especially as

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evidence supported the argument that petitioner received the money from Rodel Garcia.

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Thus, even assuming that trial counsel was deficient for failing to object, petitioner cannot

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demonstrate prejudice based on the evidence presented and California law. This claim is

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denied because petitioner cannot meet the “doubly” deferential judicial review in analyzing

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ineffective assistance of counsel claims under § 2254. Cullen, 131 S. Ct. 1388, 1410-11.

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II.

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Sufficiency of the Evidence
Petitioner next argues that there was insufficient evidence to support his conviction

for dissuading a witness or for the firearm enhancement related to that count.

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Legal Standard

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The Due Process Clause "protects the accused against conviction except upon proof

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beyond a reasonable doubt of every fact necessary to constitute the crime with which he is

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charged." In re Winship, 397 U.S. 358, 364 (1970). A state prisoner who alleges that the
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evidence in support of his state conviction cannot be fairly characterized as sufficient to

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have led a rational trier of fact to find guilt beyond a reasonable doubt therefore states a

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constitutional claim, see Jackson v. Virginia, 443 U.S. 307, 321 (1979), which, if proven,

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entitles him to federal habeas relief, see id. at 324.

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The Supreme Court has emphasized that "Jackson claims face a high bar in federal

(finding that the 3rd Circuit "unduly impinged on the jury's role as factfinder" and failed to

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apply the deferential standard of Jackson when it engaged in "fine-grained factual parsing"

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to find that the evidence was insufficient to support petitioner's conviction). A federal court

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reviewing collaterally a state court conviction does not determine whether it is satisfied that

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

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United States District Court

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the evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335,

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338 (9th Cir. 1992). The federal court "determines only whether, 'after viewing the

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evidence in the light most favorable to the prosecution, any rational trier of fact could have

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found the essential elements of the crime beyond a reasonable doubt.'" Payne, 982 F.2d at

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338 (quoting Jackson, 443 U.S. at 319). Only if no rational trier of fact could have found

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proof of guilt beyond a reasonable doubt, has there been a due process violation. Jackson,

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443 U.S. at 324; Payne, 982 F.2d at 338.

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Dissuading a Witness

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The California Court of Appeal found that there was sufficient evidence to support

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this count:

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Defendant contends that the only evidence that supported his conviction for
dissuading a witness was Isla's testimony that defendant had told Isla “If you
will call the police sorry for you.” Defendant argues that the statement was an
expression of pity and not a threat and that it was too ambiguous to constitute
dissuasion of a witness.

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Defendant was charged with dissuading or attempting to dissuade a witness
in violation of section 136.1, subdivision (c)(1). Section 136.1 provides in
relevant part that “every person who attempts to prevent or dissuade another
person who has been the victim of a crime” from “[m]aking any report of that
victimization to any peace officer or state or local law enforcement officer ... or
prosecuting agency or to any judge” is guilty of a public offense. (§ 136.1,
subd. (b)(1).) Subdivision (c)(1) of the statute provides that every person who

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does such acts “knowingly and maliciously ... [w]here the act is accompanied
by force or by an express or implied threat of force or violence, upon a
witness or victim or any third person or the property of any victim, witness, or
any third person” is guilty of a felony. The crime of dissuading a witness from
testifying can involve a continuous course of conduct. (People v. Salvato
(1991) 234 Cal.App.3d 872.)

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For the Northern District of California

United States District Court

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In this case, there was sufficient evidence that supported both the jury's
conclusion that defendant was guilty of dissuading a witness . . . . Isla
testified through an interpreter and was not a very articulate witness.
However, after reviewing his testimony regarding what defendant said to him
in the context of relevant events, we conclude that the evidence was sufficient
to support the jury's verdict on the dissuading a witness count. Isla testified
that after Garcia told him to lend defendant the White Mustang, defendant
asked Isla if he wanted to see a gun and showed him a revolver that he kept
in his waistband. Defendant also showed Isla that there were bullets in the
chamber of the gun. Later that day, Isla lent defendant the White Mustang.
The following day, when Isla asked for the car back, defendant demanded
another car and $900. A day or two later, Isla and defendant drove around
for seven hours until 11:00 p.m. The following morning, defendant drove Isla
home. During that drive, defendant showed Isla the gun again; said, “‘This is
your last chance’”; and demanded $500. Isla testified that at an unspecified
time before that, defendant said “‘If you will call the police sorry for you.’”
Viewing this evidence as a continuous course of conduct that spanned three
or four days, we reject defendant's contention that the phrase “‘If you will call
the police sorry for you’” was ambiguous or a statement of pity and not a
threat and conclude that there was sufficient evidence to support the verdict
on the dissuading a witness count.

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Robey, 2009 WL 3208689, at 11-12.
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Petitioner has failed to demonstrate that the California Court of Appeal opinion was
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an unreasonable application of Jackson. The state court noted that the evidence that
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supported the dissuading-a-witness conviction was sufficient to support the charge.
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Petitioner showed the victim a gun, showed him that it was loaded, told him it was his last
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chance to pay the money and then stated, “[i]f you will call the police sorry for you.” While
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petitioner argues his statement was ambiguous and not a threat, a jury could have found
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that the statement and petitioner’s other actions with the loaded gun were sufficient to find
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him guilty. Petitioner is not entitled to habeas relief because viewing the evidence in the
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light most favorable to the prosecution, any rational trier of fact could have found the
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essential elements of the crime beyond a reasonable doubt.
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Firearm Enhancement
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The state court also found there was sufficient evidence to support the firearm
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enhancement:
Defendant also contends there was insufficient evidence to support the gun
enhancement on the dissuasion count since Isla testified that the statement
was made some time before defendant showed him the gun and Isla did not
“relate the two incidents.”

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We also reject defendant's contention that the evidence was insufficient to
support the jury's true finding on the gun enhancement. As outlined above,
Isla testified that defendant first showed him the gun while attempting to
obtain the car. Just as he had done with F.R. and A.R., defendant pulled the
gun from his waistband and made sure Isla knew the gun was loaded by
showing Isla the bullets in the gun's chamber. The following day, defendant
demanded money for the return of the White Mustang and when he
encountered a delay in getting the money, he showed Isla the gun again and
told him it was his last chance to comply.

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For the Northern District of California

United States District Court

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“[I]f the defendant is found on substantial evidence to have displayed a
firearm in order to facilitate the commission of an underlying crime, a use of
the gun has occurred both as a matter of plain English and of carrying out the
intent of section 12022.5(a). Thus when a defendant deliberately shows a
gun, or otherwise makes its presence known, and there is no evidence to
suggest any purpose other than intimidating the victim (or others) so as to
successfully complete the underlying offense, the jury is entitled to find a
facilitative use rather than an incidental or inadvertent exposure. The defense
may freely urge the jury not to draw such an inference, but a failure to actually
point the gun, or to issue explicit threats of harm, does not entitle the
defendant to a judicial exemption from section 12022.5(a).” (People v.
Granado (1996) 49 Cal. App. 4th 317, 325.)
As set forth above, Isla testified that defendant showed the gun to Isla when
he said “This is your last chance” and demanded $500 for the return of the
White Mustang. Defendant argues that there was insufficient evidence that
defendant used the gun to dissuade Isla from reporting the offense to the
police. He relies on Isla's testimony that defendant said “If you will call the
police sorry for you” before he said “This is your last chance.” However, that
testimony was part of a line of questioning about what happened when
defendant drove Isla home to get some money. Given this context, the jury
may have concluded that defendant made both statements during the car ride
in which defendant brandished the gun. In our view, that would be sufficient
to support imposition of the gun enhancement.
Robey, 2009 WL 3208689, at 11-13.
Similarly there was sufficient evidence to support the gun enhancement and the

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California Court of Appeal did not unreasonably apply Supreme Court precedent in

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affirming the enhancement. Petitioner brandished a gun on multiple occasions and showed

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the victim that it was loaded. While it did not happen simultaneously with his statement to

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the victim about not calling the police, state law provides for a continuous course of action
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to support a dissuading-a-witness charge. People v. Salvato, 234 Cal. App. 3d 872 (Cal.

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Ct. App. 1991). There was sufficient evidence of petitioner’s use of a gun to support the

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jury’s true finding on the gun enhancement, and petitioner has failed to show that the state

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court decision was unreasonable. This claim is denied.

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III.

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Ineffective Assistance of Appellate Counsel
Petitioner argues that appellate counsel was ineffective for failing to raise a claim

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regarding the admission of hearsay evidence, an improper jury instruction on extortion, and

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improper sentencing. Petitioner raised this claim in a habeas petition to the Superior Court

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of Santa Clara County which denied it in a reasoned opinion.
Legal Standard

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For the Northern District of California

United States District Court

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The Due Process Clause of the Fourteenth Amendment guarantees a criminal

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defendant the effective assistance of counsel on his first appeal as of right. Evitts v. Lucey,

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469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of appellate counsel are

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reviewed according to the standard set out in Strickland. Smith v. Robbins, 528 U.S. 259,

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285 (2000); Moormann v. Ryan, 628 F.3d 1102, 1106 (9th Cir. 2010). First, the petitioner

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must show that counsel's performance was objectively unreasonable, which in the

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appellate context requires the petitioner to demonstrate that counsel acted unreasonably in

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failing to discover and brief a merit-worthy issue. Smith, 528 U.S. at 285; Moormann, 628

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F.3d at 1106. Second, the petitioner must show prejudice, which in this context means that

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the petitioner must demonstrate a reasonable probability that, but for appellate counsel's

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failure to raise the issue, the petitioner would have prevailed in his appeal. Smith, 528 U.S.

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at 285-86; Moormann, 628 F.3d at 1106. Appellate counsel does not have a constitutional

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duty to raise every nonfrivolous issue requested by defendant. See Jones v. Barnes, 463

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U.S. 745, 751-54 (1983). The weeding out of weaker issues is widely recognized as one of

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the hallmarks of effective appellate advocacy. Id. at 751-52.

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Hearsay Evidence

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Petitioner argues that appellate counsel should have raised a claim regarding the

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trial court’s decision to permit the victim to testify that Rodel Garcia did not have the $500
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when he returned on foot after being picked up by petitioner. The following exchange took

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place during the victim’s testimony:

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Prosecutor: Without telling us anything Rodel told you; when Rodel came
back did he have five hundred dollars on him?

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Victim:

He was angry.

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Prosecutor: When Rodel came back did he have five hundred dollars on
him?

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Victim:

No because he gave it to [petitioner].

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Counsel:

Objection. Hearsay, your honor. Move to strike.

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Court:

That part that he gave it to [petitioner] will be stricken.

Prosecutor: When Rodel came I take it he didn’t have a car with him.

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For the Northern District of California

United States District Court

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Victim:

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RT at 181-82.

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None.

Petitioner argues that the trial court should have stricken the entire answer, namely

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the part that Rodel Garcia did not return with the money. The Superior Court denied this

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claim:

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In the present case, petitioner has failed to show ineffective assistance of
appellate counsel. Petitioner has failed to show that allowing [the victim’s]
testimony that [Rodel] Garcia did not have the $500 after meeting with
defendant was unconstitutionally prejudicial. As explained in the Court of
Appeal opinion, defendant could be found guilty of extortion by acting through
an agent. The testimony showed that [the victim] and defendant agreed to
have [Rodel] Garcia accept the money from defendant. (Tx. 180.)
Accordingly, when [Rodel] Garcia received the money from [the victim], the
crime of extortion was completed. The issue of whether [Rodel] Garcia kept
the money or not was not necessary to determine defendant’s guilt.

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Answer, Ex. G at 3-4.
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The state court opinion was not an unreasonable application of Strickland.
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Moreover, even if appellate counsel was deficient for failing to raise this claim, petitioner
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cannot demonstrate that he would have prevailed on the appeal. Petitioner does not
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adequately describe why the victim’s answer should have been stricken, whether it was still
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hearsay or if more clarification was required. Regardless, petitioner testified that he met
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with Rodel Garcia and was supposed to have received the $500, but he did not take it. RT
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at 256. It does not appear that the jury credited this testimony, and, as noted in the claim

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above, California law does not require that the defendant receive property directly from the

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victim to prove extortion when an agent is used. Thus, the failure to raise this claim on

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appeal does not entitle petitioner to habeas relief.

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Jury Instruction

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Petitioner next argues that appellate counsel was ineffective for failing to raise a

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claim that the trial court erred when it gave California Criminal Jury Instruction (“CALCRIM”)

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1830.1 Petitioner argues that this jury instruction permitted a conviction on the

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prosecution’s agency theory of extortion without proving that Rodel Garcia was petitioner’s
authorized agent in taking the money. Petitioner argues there should have been an

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For the Northern District of California

United States District Court

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additional instruction regarding the agency theory.

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While petitioner is correct that the jury instruction did not contain any language

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regarding the agency theory, he has not shown that appellate counsel was ineffective for

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failing to raise this claim. On direct appeal, the California Court of Appeal held that

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petitioner could be found guilty of extortion when an agent received the property from the

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victim. The Court of Appeal noted the lack of an instruction regarding the agency theory,

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but did not address the issue because it was not before the court. Robey, 2009 WL

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3208689, at 10, n.3.

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The Superior Court also denied this claim in a reasoned opinion:

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“. . . The failure to instruct on an essential element of the offense actually
charged is error whenever there is any evidence deserving of any
consideration from which the jury could have found in favor of the defendant
on the omitted element; because such an error is denial of the defendant’s
constitutional right to have the jury determine every material issue presented
by the evidence, regardless of how overwhelming the evidence of guilt may

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The jury was instructed that to prove extortion the People needed to prove that:
1. The defendant threatened to unlawfully injure or use force against another person or a third
person, or the property of another person or third person;
2. When making the threat, the defendant intended to use that fear to obtain the person’s
consent to give the defendant money;
3. As a result of the threat or use of force, the other person consented to give the defendant
money;
4. As a result of the threat or use of force, the other person then gave the defendant money.
CT at 230.
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For the Northern District of California

United States District Court

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be, the error cannot be cured by weighing the evidence and finding that it is
not reasonably probable that a correctly instructed jury would have reached a
result more favorable to the defendant.” (People v. Hamilton, (1978) 80 Cal.
App. 3d 123, 133.)
In the instant case, there is no evidence supporting defendant’s position on
the elements of agency. Defendant has not presented any evidence to
contradict [the victim’s] testimony that Defendant and [the victim] had agreed
Garcia was to receive the money [the victim] owed defendant. There was no
evidence therefore for the jury to find in favor of defendant. Accordingly,
giving the instruction was not required.
Answer, Ex. G at 4-5.
Petitioner has not shown that the Superior Court’s denial of this claim was
unreasonable. Assuming that appellate counsel did err by not raising this claim, petitioner
has not demonstrated that he would have prevailed in the appeal. After assessing the
merits of the underlying claim, the court does not find that petitioner presents a meritorious
claim. Any error by the trial court for failing to sua sponte add the instruction was harmless
nor was trial counsel ineffective for failing to object or request the instruction. Looking to
the legal standard set forth by the state court, petitioner would not have been entitled to
relief. The additional jury instruction that petitioner requests would have clarified how he
was guilty due to an agency theory, and would have better reflected the evidence
presented at trial. As noted by respondent, the instruction provided to the jury without the
language regarding agency could have favored petitioner. The instruction that petitioner
argues was required would not have aided him. Under state law, petitioner would not have
prevailed, thus appellate counsel was not ineffective for failing to raise the claim. This
claim is denied.2
Sentencing
Petitioner next contends that appellate counsel was ineffective for failing to raise a
claim that the trial court imposed an unauthorized consecutive sentence for dissuading a
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Nor would petitioner be entitled to relief had he raised this claim solely with respect
to the jury instruction. To obtain federal collateral relief for errors in the jury charge, a
petitioner must show that the ailing instruction by itself so infected the entire trial that the
resulting conviction violates due process. See Estelle v. McGuire, 502 U.S. at 72; Cupp v.
Naughten, 414 U.S. 141, 147 (1973). While additional language could have made the
instruction more clear, the absence of it did not infect the entire trial to result in a due process
violation.
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witness (Cal. Penal Code § 136.1), pursuant to Cal. Penal Code § 1170.15. Petitioner

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states that a fully consecutive middle term sentence for dissuading a witness was imposed

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when one-third of the middle term should have been imposed instead.

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The Superior Court denied this claim, stating, “[l]astly, there was no error in

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sentencing on the dissuading a witness charge. Petitioner misreads PC 1170.15. There is

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no requirement in the statute that the 136.1 charge must be run consecutively to the

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extortion charge in order for the full middle term to be imposed.” Answer, Ex. G at 5.

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It appears that petitioner is referring to Cal. Penal Code § 1170.1(a), which provides

term. See id. However, petitioner was sentenced pursuant to Cal. Penal Code § 1170.15,

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For the Northern District of California

that the subordinate term for a consecutive sentence shall consist of one-third of the middle

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United States District Court

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which specifically serves as an exception to § 1170.1(a) and provides for the full middle

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term of imprisonment when a defendant is convicted of dissuading a witness in relation to

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the other conviction. Because petitioner’s first felony concerned the extortion of the victim

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and he was also convicted of dissuading the witness with respect to the extortion, petitioner

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was properly sentenced pursuant to § 1170.15. Therefore, appellate counsel was not

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ineffective for failing to raise this claim.

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IV.

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Appealability
The federal rules governing habeas cases brought by state prisoners require a

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district court that denies a habeas petition to grant or deny a certificate of appealability

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(“COA”) in the ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll.

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2254 (effective December 1, 2009).

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To obtain a COA, petitioner must make “a substantial showing of the denial of a

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constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the

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constitutional claims on the merits, the showing required to satisfy § 2253(c) is

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straightforward: The petitioner must demonstrate that reasonable jurists would find the

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district court’s assessment of the constitutional claims debatable or wrong.” See Slack v.

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McDaniel, 529 U.S. 473, 484 (2000). Section 2253(c)(3) requires a court granting a COA

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to indicate which issues satisfy the COA standard. Here, the court finds that petitioner’s
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first and third claim regarding ineffective assistance of trial and appellate counsel meet the

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above standard and accordingly GRANTS the COA solely for those claims. See generally

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Miller-El, 537 U.S. at 327.

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Accordingly, the clerk shall forward the file, including a copy of this order, to the

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Court of Appeals. See Fed. R. App. P. 22(b); United States v. Asrar, 116 F.3d 1268, 1270

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(9th Cir. 1997). Petitioner is cautioned that the court's ruling on the certificate of

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appealability does not relieve him of the obligation to file a timely notice of appeal if he

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wishes to appeal.
CONCLUSION3

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1. For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.

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For the Northern District of California

United States District Court

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2. Petitioner’s motion for an evidentiary hearing (Docket No. 21) is DENIED.

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A Certificate of Appealability is GRANTED. See Rule11(a) of the Rules Governing

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Section 2254 Cases.

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The clerk shall close the file.

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IT IS SO ORDERED.

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Dated: September 12, 2014.
PHYLLIS J. HAMILTON
United States District Judge

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Petitioner has also requested an evidentiary hearing. Petitioner would be entitled to
an evidentiary hearing on disputed facts if his allegations, if proven, would entitle him to relief.
Perez v. Rosario, 459 F.3d 943, 954 n.5 (9th Cir. 2006); Williams v. Calderon, 52 F.3d 1465,
1484 (9th Cir. 1995). He is not entitled to an evidentiary hearing because he has failed to
present any allegations which, if proven, would entitle him to relief, because none of his claims
have survived review under 28 U.S.C. § 2254(d)(1).

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