Elias v. Unnamed Respondents
Filing
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REPORT AND RECOMMENDATION re 4 Amended Petition for Writ of Habeas Corpus filed by Edward J. Elias. IT IS ORDERED that no later than 30 days from the issuance of this Order, any party to this action may file written objections with the Court and serve a copy on all parties. IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than ten days after being served with the objections. Signed by Magistrate Judge Karen S. Crawford on 3/24/2017.(All non-registered users served via U.S. Mail Service)(acc)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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Case No.: 16cv0320-AJB (KSC)
EDWARD JESUS ELIAS,
Petitioner,
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v.
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REPORT AND RECOMMENDATION
RE DENIAL OF PETITION FOR A
WRIT OF HABEAS CORPUS
SCOTT KERNAN, Secretary,
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Respondent.
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Petitioner Edward Jesus Elias is a state prisoner proceeding pro se and in forma
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pauperis with a First Amended Petition for a Writ of Habeas Corpus filed pursuant to 28
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U.S.C. § 2254. (ECF No. 4.) He challenges his San Diego Superior Court convictions for
20 two counts of first degree murder with special circumstances, for which he was sentenced
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to two consecutive terms of life imprisonment without the possibility of parole, later
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reduced to two consecutive terms of 25 years-to-life plus one year because he was 17 years
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old at the time of the crimes. (First Amended Petition [“FAP”] at 1-2.) He claims his
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federal constitutional rights were violated because insufficient evidence supports the guilty
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verdicts and the special circumstance findings (Claims 1-2), by prosecutorial misconduct
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(Claim 3), and instructional error (Claim 4). (Id. at 6-9, 15-30.)
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Respondent has filed an Answer and lodged portions of the state court record. (ECF
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Nos. 12-13.) Respondent argues habeas relief is unavailable because the state court
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adjudication of Petitioner’s claims is neither contrary to, nor involves an unreasonable
2 application of, clearly established federal law within the meaning of 28 U.S.C. § 2254(d),
3 and because any errors with respect to Claims 3 and 4 are harmless. (Memorandum of
4 Points and Authorities in Support of Answer [“Ans. Mem.”] at 9-28.)
After the Answer was filed, Petitioner filed a motion for leave to amend the First
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6 Amended Petition for the stated purpose of responding to the argument in the Answer that
7 he had not satisfied the provisions of 28 U.S.C. § 2254(d). (ECF No. 16.) The Court
8 construed that filing as a Memorandum of Points and Authorities in Support of the First
9 Amended Petition. (ECF No. 17.) Petitioner has also filed a Traverse. (ECF No. 25.)
For the following reasons, the Court finds that federal habeas relief is unavailable
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11 because Petitioner has not satisfied the provisions of 28 U.S.C. § 2254(d), as he has failed
.12 to show that the state court adjudication of any claim is contrary to, or involves an
13 unreasonable application of, clearly established federal law, or that it is based on an
14 unreasonable determination of the facts. In addition, even if Petitioner could satisfy those
15 standards with respect to Claims 3 and 4, it is clear that any errors as to those claims are
16 harmless. The Court therefore recommends the Petition be denied.
17 I.
PROCEDURAL BACKGROUND
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A two-count Second Amended Information filed in the San Diego County Superior
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Court on March 8, 2012, charged Petitioner and his codefendant Leopoldo Chavez with
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two counts of first degree murder in violation of Penal Code section 187(a), and alleged
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they were armed with a firearm within the meaning of Penal Code section 12022(a)(1).
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(Lodgment No. 1, Clerk’s Tr. [“CT”] at 16-19.) Two special circumstance allegations
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charged that the murders were committed during the commission of a robbery within the
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meaning of Penal Code section 190.2(a)(17), and that the defendants committed more than
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one murder within the meaning of Penal Code section 190.2(a)(3). (Id.)
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On March 26,2012, following a joint trial, a jury found Petitioner and Chavez guilty
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on both counts, and returned true findings on the firearm use and special circumstance
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allegations. (CT 420-24, 474-78.) On June 21, 2012, both defendants were sentenced to
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two consecutive terms of life without the possibility of parole plus one year. (CT 431,485;
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RT 915-17.)
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Petitioner and his codefendant filed a consolidated appeal, raising, inter alia, the
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claims raised here. (Lodgment Nos. 3-4.) The appellate court affirmed the convictions but
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remanded for resentencing on the basis that both defendants were 17 years old at the time
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of their offenses and intervening law had modified the factors to be considered before
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sentencing juvenile offenders to life without parole. (Lodgment No. 5, People v. Chavez,
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et al.. No. D061946 (Cal.Sup.Ct. July 22, 2014).) Petitioner thereafter filed a petition for
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review in the California Supreme Court presenting the claims raised here. (Lodgment No.
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6.) On October 29,2014, the petition for review was summarily denied without a statement
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of reasoning or citation of authority. (Lodgment No. 7.) Petitioner was later resentenced
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to two consecutive terms of 25 years-to-life plus one year. (FAP at 1.)
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II.
TRIAL PROCEEDINGS
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Because Petitioner is challenging the sufficiency of the evidence, the Court will
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review the trial testimony in detail. First, it is useful to set forth a brief summary of the
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evidence as provided by the state appellate court:
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[T]he 20- and 23-year-old victims were sailors enlisted in the United States
Navy, one of whom was driving a brand new Toyota pickup truck. The
victims were murdered at a location where young adults, including other Navy
personnel and their friends, frequently gathered to drink, listen to music and
socialize around a number of bonfires. Multiple witnesses recalled that
Chavez, who was 17 at the time of the killings, was at the scene of the bonfires
shortly before the murders took place. The witnesses also uniformly recalled
that Chavez was in the company of at least one other teenager or young adult
and that Chavez and his companion were acting in a very aggressive and
threatening manner toward other Navy personnel and their friends present at
the bonfires. Four days after the murders, Chavez was stopped in Tijuana,
Mexico while driving the 20-year-old victim’s new Toyota pickup truck.
Importantly, some years after the murders, investigators were able to match
DNA retrieved from the pants pocket of the 20-year-old victim with Chavez’s
DNA.
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The witnesses’ identification of Chavez as being present at the bonfires
shortly before the murders, his possession of the truck following the murders,
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and his DNA in the pants pocket of one of the victims, make a strong case
Chavez participated in the truck robbery and the killings.
With respect to Elias, who was also 17 at the time of the murders, the
record is sufficient to sustain his conviction and the special circumstances
findings. Within just a few hours after the killings, investigators found a
cigarette butt at the scene of the murders among items that had been taken out
of the Toyota truck. Later, investigators were able to match DNA on the
cigarette butt with Elias’s DNA. Elias’s DNA was also found on a cup
recovered from inside the victim’s truck when it was stopped in Tijuana after
the murders. In addition to the DNA on the cup, Elias’s fingerprints were
found both inside and outside of the truck.
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The cigarette butt Elias left at the scene of the murders, with ash still
attached, very near items discarded from the truck and recovered very shortly
after the murders, places Elias at that location at or near the time of the
murders. Elias’s DNA, found in the cup retrieved from the truck, and his
fingerprints, found both inside and outside of the truck, place Elias in the truck
with Chavez shortly after the time it was stolen and near the time of the
killings. These circumstances support the conclusion Elias was Chavez’s
companion at the bonfires and an active participant in the robbery and killings.
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16 People v. Chavez. 228 Cal.App.4th 18, 21, 175 Cal.Rptr.3d 334, 336 (2014).
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Rita Ellis testified that her son Cliff Ellis enlisted in the Navy and was stationed in
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San Diego in the summer of 1993. (Lodgment No. 2, Reporter’s Tr. [“RT”] at 89-90.) She
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said Cliff always dressed nicely, including tucking in his shirt with a nice belt, and always
20 carried a wallet, but his wallet, military identification card and the telephone calling card
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he used on a regular basis to call home were missing from his personal effects when they
22 were returned to her after he was murdered. (RT 91 -93.) Cliff Ellis’ father Charles testified
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that he co-signed a loan for Cliff to buy a new, white 1993 Toyota pickup truck when Cliff
24 was stationed in San Diego. (RT 94-95.) Cliff was murdered less than two months later,
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and when the pickup truck was recovered in Tijuana and returned to Charles, it had less
26 than one thousand miles on the odometer. (RT 95-96.)
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Willis Pope testified that he grew up in Mississippi with his friend Cliff Ellis. (RT
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104-05.) They both joined the Navy and were stationed in San Diego in 1993, where they
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hung out together nearly every day. (RT 105-06.) Pope said Ellis was very proud of the
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new pickup truck he had purchased about two months before he was murdered, and that he
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kept it immaculately clean both inside and out. (RT 107-08.) Ellis always dressed well
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and had a laid-back, non-aggressive personality. (RT 108.)
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Pope testified that on September 24,1993, Ellis came to Pope’s barracks about 5:00
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p.m., accompanied by Ellis’s friend Keith Combs, and they were joined by Pope’s friend
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Sean Milligan. (RT 108-09.) After dinner Ellis drove the four of them in his truck to an
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area in Imperial Beach near Palm Avenue and the 805 freeway. (RT 110.) Although that
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area was developed at the time of trial in 2012, Pope testified that in 1993 it was a rugged,
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undeveloped area used by off-road vehicles. (RT 110-11.) They hung out drinking around
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a bonfire, a typical activity for them growing up in Mississippi, and one of them had a
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camera and took pictures. (RT 111-14.) The four of them returned to the base about
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midnight, requiring them to show their military identification to get on base, and went to
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the barracks. (RT 115-16.) Pope left to make a 30 minute phone call home, and when he
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returned Ellis and Combs were gone and he never saw either of them again. (RT 118.)
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Pope testified that he had assumed they went back to their ship because he thought Combs
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had duty in the morning, but acknowledged that he had told an investigator in 1993 that
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Ellis wanted to go back to the bonfire area and keep partying and Pope declined because
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he had duty the next morning. (RT 118, 127.)
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Sean Milligan testified that he was friends with Pope when they were both in the
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Navy and stationed in San Diego in 1993, and that he met Cliff Ellis through Pope. (RT
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130.) Milligan and Pope frequented a country and western bar on the 32nd Street Navy
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base called Anchors and Spurs, and Ellis accompanied them there once or twice. (RT 131.)
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On September 24,1993, Milligan went to Pope’s barracks and met Ellis and Combs there.
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(RT 132.) After the four of them ate pizza in the barracks, they grabbed some beer and
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Ellis drove them in his new pickup truck to an off-road area where they started a bonfire
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and hung out. (RT 133-34.) They all returned to the base together, which required showing
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their military identification, and he never saw Ellis or Combs again. (RT 137-38.)
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Stephen Forde testified that he was in the Navy in 1993, that he hung out at the
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Anchors and Spurs bar, and on three occasions had attended bonfires near Palm Avenue
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after the bar closed. (RT 160.) He attended a bonfire on September 24, 1993, arriving
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between midnight and 1:00 a.m., with a number of other young military people. (RT 160-
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64.) Forde said he parked his truck next to Cliff Ellis’ truck, that there were twenty or
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more people around their bonfire, and that there were two or three other bonfires nearby.
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(RT 165-67.) Forde saw two young men in the area who concerned him because he thought
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were “kind of smart asses.” (RT 171-73,176.) Although he did not remember at trial, he
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told an investigator in 1993 that those men were Mexican, and that their mannerisms caused
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him to move away from them to the other side of the bonfire. (RT 174.) Less than an hour
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after that incident, between 4:00 and 5:00 a.m., before sunrise, Forde left the area while
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Ellis’ truck was still there. (RT 174-75, 189.) On February 9, 1994, Forde picked out a
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photograph of codefendant Chavez from a photographic lineup as resembling one of the
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two young Mexican men he saw that night. (RT 177-80, 399.)
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Justin Duvall testified that he was in the Navy in 1993, was stationed in San Diego,
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and went to the Anchors and Spurs bar nearly every weekend. (RT 194-95.) He had often
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heard of people going to the Palm Avenue area after the bar closed to hang out and drink
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beer around bonfires, and went for the first time during the early morning hours of
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September 25, 1993. (RT 195-96.) He had not been drinking at all that night, parked his
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car at the end of Palm Avenue about 3:00 a.m., and walked to a bonfire. (RT 196-97, 200-
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01.) There were about fifty people around the bonfire, made up mostly of the Anchors and
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Spurs crowd, that is, short haired, clean-cut young Navy people dressed in an off-duty,
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country and western style. (RT 199.)
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Duvall testified that about 5:00 a.m., just as the sun was coming up and most of the
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people were leaving, three Hispanic males, about 17 or 18 years old, wearing baggy
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clothes, approached the group, and two of them asked for beer. (RT 201-02.) Duvall’s
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group was playing country and western music, and the two young males said: “Fuck you,
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White cowboy,” and: “You fucking cowboys, we don’t like your music.” (RT 202, 212.)
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Duvall testified they looked like gang members, and that one had his right hand behind his
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back “like he had a gun,” although the trial judge instructed the jury to disregard those
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remarks.1 (RT 202-03.) Duvall said that when his group did not give them beer they went
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to another bonfire, but he felt uncomfortable and decided to leave. (Id.) He told an
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investigator in December 1993 that those three young males had arrived in a light blue Ford
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Courier with a camper shell. (RT 204-05.) The investigator showed Duvall a photographic
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lineup, from which he identified codefendant Chavez as one of the three young Hispanic
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males who had approached him in an aggressive manner. (RT 209-10, 399.)
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Kristeen Kowalow testified that she and her roommate Pam Rios were at the Anchors
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and Spurs bar on the evening of September 24, 1993, and went to a bonfire near the 805
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freeway and Palm Avenue after closing, as she had several times before. (RT 243-45.)
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She parked her car at the end of Palm Avenue and rode in with someone driving a truck.
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(RT 245.) There were about fifty people and ten vehicles around their fire, including a
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newer white pickup truck. (RT 245-48.) When interviewed by an investigator a couple of
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months later, she identified Cliff Ellis and his white pickup truck as being there that night,
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and said that Ellis’ pickup truck was still there after most people left. (RT 249.)
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Kowalow said that at one point a small pickup truck with a camper shell and three
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19 or 20-year old Hispanic men drove up, parked near the fire, and two of them sat on the
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back of their truck. (RT 250-51.) Kowalow spoke to them briefly but immediately felt
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uncomfortable and decided to leave because the two men did not fit in with the rest of the
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people around the fire. (RT 251-52.) She said that although the Anchors and Spurs group
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contained White, Black and Hispanic individuals, they were all short-haired, clean shaven
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military people in their twenties, whereas the two Hispanic males were teenagers dressed
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in baggy clothes with a “different demeanor.” (RT 254-56.) She had previously described
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them as “gang bangers,” but the trial judge ruled that description inadmissible. (RT 253.)
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The trial judge also excluded proffered prosecution evidence that four young Hispanic males with gang
monikers Bandit, Lazy, Weasel and Shady hung out together, and that Petitioner was known as Lazy and
Chavez was known as Weasel. (RT 456-62.)
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When she and her friends left around 5:00 a.m., the only people around the fire were two
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white male sailors and the two young Hispanic males, and the only vehicles were the pickup
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truck similar to Cliff Ellis’ and the Hispanic males’ pickup truck with the camper shell.
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(RT 255-56, 266.) Kowalow could not say for sure if Ellis was there that night, but she
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later picked codefendant Chavez from a photographic lineup, although she said she was
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not sure where she recognized him from. (RT 256, 266, 399.)
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Mary Macy testified that she and her friend Susan Stuhr were regulars at the Anchors
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and Spurs bar in 1993, and were part of a group of people from the bar who often went to
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bonfires in the area of the 805 freeway and Palm Avenue after closing, including September
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25, 1993. (RT 285-86.) On that occasion she drove her Chevy Blazer there with Stuhr and
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two Navy men, and backed her vehicle up to the bonfire. (RT 286.) Just as they arrived a
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brand new pickup truck parked next to her with two Navy men who she thought were from
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Anchors and Spurs. (RT 289.) She remembered the truck because it was the type she
14 wanted to buy, and identified it from a photograph as Cliff Ellis’ truck. (RT 289, 298.)
15 The truck later moved about thirty yards away, but was still by the bonfire. (RT 291.)
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At some point Macy noticed that the music had stopped and most of the other
17 vehicles had left, which gave her a bad feeling. (RT 292-93.) Just before 5:00 a.m., while
18 it was still dark, as she was getting into her truck to leave, a small pickup truck with a
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camper shell pulled up alongside her, and two young Hispanic males spoke to her, but she
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ignored them and waived them off because she did not want to speak to them. (RT 293-
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97,306.) The only other vehicle there was Ellis’ truck, and she decided to drive by it before
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leaving to make sure the men were not passed out or asleep inside, but nobody was inside
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the truck or around it, so she left. (RT 298.)
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Barbara Behmke testified that in 1993 she was a regular member of the group of
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people who attended bonfires near Palm Avenue after the Anchors and Spurs bar closed.
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(RT 312.) She went to the bar on the evening of September 24,1993, and drove her Chevy
27 Blazer to the bonfire afterwards with her roommate and two friends. (RT 313-15.) She
28 knew Cliff Ellis and Keith Combs from the Anchors and Spurs bar, and saw them out at
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the bonfire that night in Ellis’ white pickup truck. (RT 316.) About 4:00 a.m., her friend
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Sean was injured in a fight and she drove him to a hospital. (RT 317-19.) Behmke returned
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to the bonfire to pick up her friend and her jacket, arriving about 4:30 or 4:45 a.m. (RT
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321-22.) There were still several vehicles and people at the bonfire, and she noticed four
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young Hispanic males who had not been there when she left. (RT 323-24.) Two of those
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men approached her vehicle and made her feel uncomfortable by making sexual gestures
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and saying things of a sexual nature, so she left after about five minutes. (RT 325-26.)
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Behmke said Ellis’ pickup truck was still there, but she did not see Ellis or Combs. (RT
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325.) In December 1993, she identified codefendant Chavez from a photographic lineup
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as one of the young Hispanic males. (RT 327-28, 399.)
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Scott Hultquist testified that in 1993 he regularly rode his dirt bike in the area around
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Palm Avenue and the 805 freeway, when it was undeveloped open space. (RT 340.) He
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arrived at the area around 6:00 a.m. on September 25, 1993, sat drinking coffee at the end
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of Palm Avenue waiting for the fog to lift, and did not hear any gunshots or see any vehicles
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leave the area. (RT 341-45.) Juanita Johnson testified that she and her daughter found two
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bodies in that area about 7:00 a.m. on September 25, 1993, and that it was very foggy at
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the time. (RT 140-45.)
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David Swiskowski, a retired San Diego Police Sergeant, testified that in 1993 he was
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assigned to the homicide team which investigated this case. (RT 349-51.) On September
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25, 1993, he arrived at a dirt area near the 805 freeway and Palm Avenue and supervised
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the preservation and collection of evidence. (RT 351-65.) There were no wallets or
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identification found on the two victims, who were lying parallel to each other on their backs
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about sixteen feet apart, although two ball caps were lying by their bodies with their names
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written inside. (RT 368-69, 375.) Keith Combs had a gunshot wound in his back with
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powder marks and stippling which indicated it was fired from close range, about three or
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four inches away. (RT 369-71.) Combs also had two gunshot wounds to his head, one
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behind his ear and one on the top of his head, and a camera lying at his feet. (RT 371.)
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Cliff Ellis was shot once in the chest and twice in the head, had his shirt untucked and his
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belt buckle undone with dirt and vegetation stuck to his face and body, and looked as if
someone had stepped on his body. (RT 372-74.)
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Six .22 caliber shell casings were recovered at the scene, one from underneath
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Combs’ body, which in Swiskowski’s opinion suggested he fell on the casing after he was
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shot. (RT 375-82.) The parties stipulated that all six .22 caliber shell casings were fired
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from the same gun. (RT 427.) A white box recovered near Ellis’ body appeared to have
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come from his truck, and contained car wax, a scrub brush, a college pamphlet, a map, and
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a can of Armor-All cleaner. (RT 383-84.) A cigarette butt with the ash still attached was
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collected from between the two bodies. (RT 384-88.) Another cigarette butt with an ash
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attached was collected from closer to Ellis’ body. (RT 388-90.) The fact that ash was still
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attached to the cigarette butts and they were lying in an area with many footprints and tire
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tracks indicated in Swiskowski’s opinion they had been dropped recently. (RT 390-91.)
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On September 29, 1993, Swiskowski was notified that Ellis’ pickup truck was in
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custody in Tijuana, along with Chavez who was stopped while driving it, and he went there
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with an evidence technician where they fingerprinted and collected evidence from the
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vehicle. (RT 395-97.) The keys were with the truck, and neither the ignition nor the door
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locks had been tampered with. (RT 419.)
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Dr. Leena Jariwala testified that she was a deputy medical examiner for the County
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of San Diego in 1993. (RT 495.) She examined the bodies of Cliff Ellis and Keith Combs
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where they were found, and opined they had been killed between 1:30 a.m. and 5:20 a.m.
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(RT 504-06.) Dr. Jariwala later performed autopsies on the bodies. (RT 509.) The two
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bullet wounds in Combs’ head were from a gun fired a few feet away, whereas the bullet
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wound to his back was from a gun fired very near the body; any of the three wounds could
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have been fatal, and blood in Combs’ lungs indicated that he took at least a few breaths
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after all three shots and might have lived for a few minutes. (RT 509-24.) Combs had a
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blood alcohol level of 0.03 percent and no defensive wounds. (RT 525.) There were two
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bullet wounds to Ellis’ head, one of which was caused with the gun almost touching the
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skin, and one to his chest with an exit wound in his back; all three wounds could have been
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fatal and any of them would have caused him to fall to the ground; Dr. Jariwala was unable
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to say in what order the wounds to either victim occurred, although Ellis was alive when
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he was shot in the head. (RT 526-40.) Ellis had a blood alcohol content of 0.03 percent,
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and abrasions and bruises on his face and leg, a scratch below his eye and around his neck,
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and an abrasion on the back of his head. (RT 540.)
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Dr. Glenn Wagner, the Chief Medical Examiner for San Diego County, testified that
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based on the trajectory of the bullets in Keith Combs’ body, either the shooter, the weapon
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or Combs was moving at the time the shots were fired, and it did not appear that Combs
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was wearing his hat when he was shot in the head. (RT 551, 553.) He said Cliff Ellis
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would have been capable of movement after being shot in the chest and temple, but not
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after being shot in the back of the head. (RT 555.)
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Robert Michael Callison testified that he worked as an evidence technician for the
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San Diego Police Department homicide squad in 1993, collected the items of evidence
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identified by Swiskowski, and said the brand of the cigarette butts collected at the scene
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was Marlboro. (RT 421-34.) Lisa Combs testified that her husband Keith Combs smoked
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Marlboro cigarettes. (RT 100.) Gary Dorsett testified that he was employed as an evidence
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technician with the San Diego Police Department in 1993, and that he collected forty-six
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latent fingerprints from Ellis’ truck, and five fingerprints from items in the truck, including
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a red cup and a plastic bottle. (RT 472-80.) There were stains on the floorboard of the
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truck and a clutter of trash inside, which included an ace bandage. (RT 478-81.)
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Gloria Pasqual, a latent fingerprint examiner with the San Diego Police Department,
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testified that she found Cliff Ellis’ fingerprints on the college pamphlet recovered from the
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white box which came from Ellis’ truck. (RT 564.) Pasqual found Petitioner’s fingerprints
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on the rear view mirror, interior rear sliding window, interior passenger side window, front
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hood, and exterior passenger door of Ellis’ truck, as well as on the plastic bottle found in
26 the truck. (RT 565-72.) She found Chavez’ fingerprints on the front passenger fender,
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interior rear sliding window, exterior driver’s side door wing window, driver’s door mirror,
exterior driver’s door handle, front hood, and driver’s side doorjamb, (hi)
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Shawn Montpetit, a DNA technical manager with the forensic biology unit of the
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San Diego Police Department crime lab, testified that Combs and codefendant Chavez were
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major contributors to DNA found on the inside of the pockets of the pants Combs was
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wearing when his body was found. (RT 585-93.) Petitioner’s DNA was found on the
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cigarette butt recovered between the two bodies near the white box, and Combs’ DNA was
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found on the cigarette butt found closer to his body. (RT 389,594-95,602.) Chavez’ DNA
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was found on the bandage found in Ellis’ pickup truck, and DNA from Petitioner and
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Chavez were found on the red cup recovered from the truck. (RT 603-04.) Montpetit said
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that because the evidence sat at room temperature at police headquarters for fifteen to
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sixteen years, the DNA may have degraded and decreased the chances of more useful
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results. (RT 586-87.) The People rested. (RT611.)
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The defense moved for a directed verdict, arguing that because the jury was to be
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instructed that if there are two equally reasonable inferences to be drawn from the evidence,
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one of innocence and one of guilt, they must draw the inference of innocence, the only
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possible verdict would be not guilty because the circumstantial evidence in the case could
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lead only to an inference of innocence. (RT 668.) The trial judge denied the motion on
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the basis that the evidence provided a very powerful inference that Petitioner and Chavez
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had killed and robbed the victims, and a weak inference that they just happened to be in
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the area around the time someone else committed the crimes. (RT 669-70.)
20
Lisa Dimeo, a forensic specialist, testified for the defense that she had examined the
21
autopsy reports and photographs of the crime scene. (RT 677.) She opined that because
22
the pool of Ellis’ blood was not next to his head and there was debris on his clothing, he
23
fell forward and laid on his stomach for minutes or hours before being rolled onto his back.
24
(RT 679-83.) The defenses rested and there was no rebuttal evidence. (RT 711-12.)
25
The jury was instructed. (RT 719-48.) Petitioner contends in Claim 4 here that the
26
burden of proof was diluted by the instruction, which the People admitted on appeal was
27
error under state law to give: “If you conclude that the defendant knew he possessed
28
property and you conclude that the property had in fact been recently stolen, you may not
12
1
convict the defendant of murder based on those facts alone. However, if you also find that
2
supporting evidence tends to prove his guilt, then you may conclude that the evidence is
3
sufficient to prove he committed murder. The supporting evidence need only be slight and
4
need not be enough by itself to prove guilt.” (RT 731.)
5
Petitioner’s defense counsel argued to the jury in closing that the circumstantial
6
evidence compelled an inference which points to innocence because there was no gunshot
7
residue found in the truck or in Combs’ pants pockets where Chavez’ DNA was found,
8
which would have been expected if either of the defendants had shot the victims and stolen
9 the truck, and that the evidence merely showed, at most, that Petitioner was at the scene
10 near the time of the murders and had been in the Ellis’ truck within four days of the
11
murders. (RT 803-13.) Defense counsel also argued that the opinion of the defense expert
12 that Ellis’ body had been rolled over minutes or hours after he died allowed for an inference
13
that Chavez came along after the murders, rolled Ellis over, took his keys and stole his
14 truck, which, as with the evidence that Petitioner was merely at the scene at some point,
15
was insufficient to support the murder charges. (RT 814-21.)
16
The prosecutor argued in closing that Petitioner and Chavez were guilty of aiding
17
and abetting premeditated murder, or aiding and abetting a robbery, that resulted in the
18
death of the victims, because they waited until Ellis and Combs were the only ones left at
19 the bonfire, going so far as to scare their friends off, including making unwanted sexual
20 overtures to Mary Macy to chase her away when she returned after everyone else was gone,
21
and because it must have taken at least two teenagers working together to kill two young
22
strong sailors in a manner necessitating a struggle which left the usually well-dressed Ellis
23
disheveled and covered in dirt and vegetation. (RT 753-81.) The prosecutor argued that
’24 the defendants eventually shot the victims execution-style, took the their wallets and Ellis’
25
keys, left their DNA at the scene, and then stole the truck and were in continuous possession
26 of it for several days as shown by their DNA and fingerprints in the truck and leaving the
27 always immaculate truck filthy. (Id.) As relevant to Claim 3 here, the prosecutor argued
28 that: (1) the victims were serving their country (RT 752, 756), which Petitioner argues was
13
ifir.vfmo-ATR rxsr.i
1
an appeal to the sympathy of the jury; (2) that: “The witnesses are dead. But just as my
2
heart is beating in my chest, those two men stopped the heartbeats of Keith and Cliff’ (RT
3
767), which Petitioner contends was an expression of a personal opinion of guilt; and (3)
4
said: “And I have to comment on the [defense] expert. How can I not? You can hire
5
somebody and have them come in here and say anything” (RT 831), which Petitioner
6
argues improperly disparaged the defense expert. Petitioner also claims the prosecutor
7
argued facts not in evidence when she urged the jurors to speculate that the defendants had
8
a preconceived “plan” to rob the victims because they arrived at the scene “with a loaded
9
gun,” that four young Hispanic males “surrounded” the victims, that Combs was shot first
10
and Ellis then tried to escape, that Ellis “fought for his life,” and that the crimes required
11
multiple perpetrators. (RT 757-78, 827, 830.)
12
After deliberating about two days, during which the testimony of Mary Macy and
13
Barbara Behmkhe were read back, the jury found Petitioner and Chavez guilty of two
14
counts of first degree murder, and found they were armed with a firearm during the
15
commission of the murders. (CT 413-24,474-78.) The jury also found true the two special
.16
circumstance allegations that the murders were committed during the commission or
17
attempted commission of robbery, and that both defendants had been convicted of more
18
than one count of first degree murder. (Id.) The defendants were each sentenced to two
19
consecutive terms of life without the possibility of parole plus one year, later reduced to
20 two consecutive terms of 25 years-to-life plus one year. (CT 427, 485.)
21 III. DISCUSSION
22
Petitioner claims his federal constitutional rights were violated because the evidence
23
is insufficient to prove he was guilty of murder (Claim 1) and insufficient to support the
24
special circumstance findings (Claim 2), because the prosecutor committed misconduct in
25
closing argument by appealing to the sympathy of the jury, expressing a personal belief in
26 guilt, arguing facts not in evidence, and denigrating the defense expert (Claim 3), and
27 because the court erred in instructing the jury that Petitioner could be found guilty of
28 murder based on his possession of stolen property plus other slight evidence of guilt (Claim
14
lArvO^O-ATR fKSn
1
4). (FAPat6-9,15-30.) Respondent answers that habeas relief is unavailable because the
2
adjudication of the claims by the state court is neither contrary to, nor involves an
3
unreasonable application of, clearly established federal law, and any errors with respect to
4
Claim 3 and 4 are harmless. (Ans. Mem. at 16-35.)
5
Petitioner replies that because the evidence presented at his trial does not establish
6
the elements of murder, aiding and abetting murder, or the special circumstances, the state
7
court adjudication of Claims 1 and 2, on the basis that sufficient evidence supports the jury
. 8
verdicts, is contrary to, or involves an unreasonable application of, clearly established
9
federal law which requires that every element of a criminal offense, as those elements are
10
defined under state law, must be established beyond a reasonable doubt. (Memorandum
11
of Points and Authorities in Support of First Amended Petition [“FAP Mem.”] at 26-39;
12
Traverse at 6-12.) He also argues that the determination by the state court that there was
13
no prosecutorial misconduct and that the instructional error was harmless, is unreasonable,
14
and that those errors are not harmless. (FAP Mem. at 39-43; Traverse at 12-17.)
15
A.
16
In order to obtain federal habeas relief with respect to claims which were adjudicated
17
on their merits in state court, a federal habeas petitioner must demonstrate that the state
18
court adjudication of the claims: “(1) resulted in a decision that was contrary to, or involved
19
an unreasonable application of, clearly established Federal law, as determined by the
20
Supreme Court of the United States; or (2) resulted in a decision that was based on an
21
unreasonable determination of the facts in light of the evidence presented in the State court
22
proceeding.” 28 U.S.C.A. § 2254(d) (West 2006). Even if § 2254(d) is satisfied, or does
23
not apply, a petitioner must still show a federal constitutional violation occurred in order
24
to obtain relief. Fryv, Pliler. 551 U.S. 112,119-22 (2007); Frantz v. Hazev. 533 F.3d 724,
25
735-36 (9th Cir. 2008) (en banc). Furthermore, a petitioner must also show that any
26
constitutional error is not harmless, unless it is of the type included on the Supreme Court’s
27
“short, purposely limited roster of structural errors.” Gautt v. Lewis, 489 F.3d 993, 1015
28
(9th Cir. 2007), citing Arizona v. Fulminante. 499 U.S. 279,306 (1991) (recognizing “most
Standard of Review
15
Ifir.vfmn-ATR ocsn
1
constitutional errors can be harmless”) Insufficiency of the evidence claims are not subject
2
to harmless error review. Jackson v. Virginia, 443 U.S. 307, 319 (1979) (requiring habeas
3
relief to be granted if “all rational fact finders would have to conclude that the evidence of
4
guilt fails to establish every element of the crime beyond a reasonable doubt.”)
5
A state court’s decision may be “contrary to” clearly established Supreme Court
6
precedent (1) “if the state court applies a rule that contradicts the governing law set forth
7
in [the Court’s] cases” or (2) “if the state court confronts a set of facts that are materially
8
indistinguishable from a decision of [the] Court and nevertheless arrives at a result different
9
from [the Court’s] precedent.” Williams v. Taylor. 529 U.S. 362, 405-06 (2000). A state
10
court decision may involve an “unreasonable application” of clearly established federal
11
law, “if the state court identifies the correct governing legal rule from this Court’s cases
12
but unreasonably applies it to the facts of the particular state prisoner’s case.” hi at 407.
13
Relief under the “unreasonable application” clause of § 2254(d) is available “if, and only
14
if, it is so obvious that a clearly established rule applies to a given set of facts that there
15
could be no ‘fairminded disagreement’ on the question.” White v. Woodali 572 U.S.,
16
134 S.Ct. 1697, 1706-07 (2014), quoting Harrington v. Richter. 562 U.S. 86, 103 (2011).
17
“[A] federal habeas court may not issue the writ simply because the court concludes
18
in its independent judgment that the relevant state-court decision applied clearly
19
established federal law erroneously or incorrectly. . . . Rather, that application must be
20
objectively unreasonable.” Lockver v. Andrade. 538 U.S. 63, 75-76 (2003) (internal
21
quotation marks and citations omitted). In order to satisfy § 2254(d)(2), the petitioner must
22
show that the factual findings upon which the state court’s adjudication of his claims rest
23
are objectively unreasonable. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
24
B.
25
Petitioner alleges in Claim 1 that there is no evidence in the record of his conduct at
26
any time relevant to the killings, no eyewitness testimony, no identification of him, no
27
evidence connecting him to the only weapon used, no evidence he had a relationship with
28
Chavez, and no evidence of consciousness of guilt. (FAP at 6,15-22.) Rather, the evidence
Claim 1
16
ifir.vim.n-Am ncsn
1
against him is a cigarette butt with his DNA found at the scene, which is a party area
2
frequented by large groups of young people, and his fingerprints and DNA found in and on
3
the stolen truck. (Id) He claims that his right to due process under the Fifth and Fourteenth
4
Amendments was violated because the evidence is insufficient to satisfy the elements, as
5
defined by California law, of murder, robbery, or aiding and abetting murder or robbery,
6
but merely establishes he was at some unknown time in the stolen truck and at some
7
unknown time at the crime scene. (Id.)
8
Petitioner presented this claim, as a federal constitutional claim, to the state supreme
9
court in his petition for review. (Lodgment No. 6 at 10-16.) That petition was summarily
10
denied without citation of authority or a statement of reasoning. (Lodgment No. 7.) The
11
same claim was also presented to the state appellate court on direct appeal as a federal
12
constitutional claim. (Lodgment No. 3 at 11-21.) The claim was denied on the merits in a
13
written opinion affirming the convictions. (Lodgment No. 5.)
14
There is a presumption that “[w]here there has been one reasoned state judgment
15
rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the
16
same claim rest upon the same ground.” Ylst v. Nunnemaker. 501 U.S. 797,803-06 (1991);
17
see also Barker v. Fleming. 423 F.3d 1085,1091-92 (9th Cir. 2005) (“Before we can apply
18
[the] standards [of 28 U.S.C. § 2254(d)], we must identify the state court decision that is
19
appropriate for our review. When more than one state court has adjudicated a claim, we
20
analyze the last reasoned decision.”) The state appellate court first identified the applicable
21
legal standards under state law regarding sufficiency of the evidence claims. (Lodgment
22
No. 5, People v. Chavez, et al.. No. D061946, slip op. at 12-13.) As discussed below, they
23
are identical to the controlling federal legal standards, which, as Petitioner correctly
24
observes, require the existence of sufficient evidence to prove every element of a criminal
25
offense beyond a reasonable doubt, as those elements are defined by state law. The state
'26
appellate court then identified the elements of first degree murder under the two theories
27
argued by the prosecution: aiding and abetting the deliberate, premeditated murder of the
28
victims, and aiding and abetting a robbery that resulted in the death of the victims. (Id. at
17
1fir.v(mn-ATR fKSPA
1
13-15, citing People v. Prettvman. 14 Cal.4th 248, 259 (1996) (holding that under
2
California law a person who aids and abets a crime is a principal in the crime, sharing the
3
same guilt as the perpetrator, and that “[a]n aider and abettor is a person who, acting with
4
(1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of
5
committing, encouraging, or facilitating the commission of the offense, (3) by act or advice
6
aids, promotes, encourages or instigates, the commission of the crime.”) (internal quotation
7
marks omitted).)
8
9
10
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13
14
15
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27
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After concluding there was sufficient evidence to convict Chavez and denying his
insufficiency of the evidence claim, the state appellate court stated:
Elias likewise contends there is insufficient evidence to support his
conviction. Elias argues that the cigarette butt found at the scene and the
forensic evidence recovered from Ellis’s truck do not lead to the reasonable
inference that Elias aided and abetted the robbery. Elias’s argument relies, in
large part, on a misstatement of the applicable standard of review. Elias
argues that his convictions cannot stand if the evidence is as consistent with
guilt as with another rational conclusion that points to innocence. (See People
v. Flores (1943) 58 Cal.App.2d 764, 769 (“it is elementary law that
circumstances relied upon to establish the guilt of one accused of crime must
be consistent with that hypothesis and inconsistent with any other rational
conclusion”).) However, this principle is not a correct statement of law to be
applied on appeal. ‘“Although it is the duty of the jury to acquit a defendant
if it finds that circumstantial evidence is susceptible of two interpretations,
one of which suggests guilt and the other innocence (citations), it is the jury,
not the appellate court which must be convinced of the defendant’s guilt
beyond a reasonable doubt. “‘If the circumstances reasonably justify the trier
of fact’s findings, the opinion of the reviewing court that the circumstances
might also reasonably be reconciled with a contrary finding does not warrant
a reversal of the judgment. 9)559) {People v. Jones (2013) 57 Cal.4th 899, 961.)
“Nor may a conviction be set aside because evidence is susceptible of two
reasonable inferences, one looking to guilt and another to innocence.”
{People v. Lewis, supra, 222 Cal.App.2d at p. 149.)
Viewing the entire record in the light most favorable to the prosecution,
and drawing all reasonable inferences from the evidence in support of the
conviction, as we must, we conclude the substantial evidence supports Elias’s
convictions. Our Supreme Court’s opinion in People v. Bean (1988) 46
Cal.3d 919 {Bean) is instructive. In that case, the defendant challenged the
18
1fir.vfmn-ATR (KRC\
1
2
3
4
5
6
7
8
9
10
sufficiency of the evidence supporting his convictions for two discrete
murders. The evidence tying the defendant to one of the murders bears some
similarity to the evidence here: “A pair of sunglasses bearing what the
People’s experts identified as defendant’s fingerprints were found next to the
body of Eileen Fox, and the defendant admitted owning a pair of similar
sunglasses. In addition there was evidence that defendant had been seen,
possibly observing the house, in the past; that he was living nearby with his
sister; and that he was familiar with the shortcut from the location at which
the automobile, purse, and wallet were discarded to the Florin Meadows
apartments.” (Id. at pp. 933-934, fns. omitted.)
With other evidence of the victim’s condition, the Supreme Court found
sufficient evidence to support the defendant’s first degree murder conviction
and “the jury’s conclusion that the murder was committed in the perpetration
of a burglary and a robbery.” (Bean, supra, 46 Cal.3d at p. 934.)
11
12
13
14
15
16
17
18
19
20
‘21
22
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28
The evidentiary similarity between Bean and the instant case supports
the conclusion Elias participated in the killings and robbery. Flere, just as in
Bean, forensic evidence on a small, portable object places Elias at the scene
of the crime. (See Bean, supra, 46 Cal.3d at p. 933.) While Elias was not
specifically identified by any witness as one of Chavez’s companions that
night, it is reasonable to infer that he was there based on the cigarette butt and
the forensic evidence recovered from Ellis’s truck. Elias’s fingerprints were
recovered from multiple interior and exterior surfaces on the truck, as were
Chavez’s, and DNA from both Chavez and Elias was recovered from the same
cup inside the truck. Elias claims that no evidence of the relationship between
Chavez and Elias was introduced, but the forensic evidence recovered from
the truck demonstrates that they were known to each other. Moreover, the
evidence tying Elias to the fruits of the robbery is arguably stronger than the
evidence considered sufficient in Bean. Elias’s fingerprints and DNA were
recovered from Ellis’s truck, whereas the evidence in Bean showed only that
the defendant was familiar with a route near where certain stolen goods were
discarded. (See Id. at p. 934.) Elias’s attempt to distinguish Bean on the facts
is unpersuasive, as the evidence here is in fact more incriminating than the
evidence considered by the Supreme Court in Bean.
Although the jury convicted the defendant in Bean of first degree
murder as the perpetrator of the robbery and murder, the reasonable inferences
drawn in that case from the evidence apply equally to the aiding and abetting
19
16r.vfmO-ATR CKSr.l
1
’
2
3
4
5
6
theory of liability pursued by the prosecution here. Indeed, the purpose of
aiding and abetting liability is to “obviate() the necessity to decide who was
the aider and abettor and who the direct perpetrator or to what extent each
played which role.” {People v. McCoy, supra, 25 Cal.4th at p. 1120; see
People v. Morante (1999) 20 Cal.4th 403, 433 (“the doctrine . .. ‘“snares all
who intentionally contribute to the accomplishment of a crime in the net of
criminal liability defined by the crime, even though the actor does not
personally engage in all of the elements of the crime’””).)
7
8
9
10
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28
“Factors relevant to a determination of whether defendant was guilty of
aiding and abetting include: presence at the scene of the crime,
companionship, and conduct before and after the offense.” {People v.
Singleton (1987) 196 Cal.App.3d 488, 492.) Considering these factors, and
viewed as a whole, the evidence points to Elias’s complicity and supports his
conviction. Although Elias contends there is “no evidence” of his actions or
intent that night, it is reasonable to infer that Elias was present with Chavez at
the Anchors and Spurs bonfires prior to the robbery and murders, that he
waited with Chavez until Combs and Ellis were alone, that he assisted Chavez
and potentially others in robbing and murdering Combs and Ellis (or was the
perpetrator himself), and that he then left the scene with Chavez in Ellis’s
stolen truck. These inferences arise out of the consistent testimony of
witnesses that Chavez was present at the bonfires with one or more
companions, separate DNA recovered at the crime scene which showed that
Chavez and Elias had been present, and the DNA and fingerprints found in
Ellis’s truck, which showed that both defendants were occupants of the truck.
Elias’s culpability is reinforced by a large quantum of evidence which
shows that at least two perpetrators were needed to accomplish the robbery
and double murder. Witnesses testified that Ellis parked his truck with its rear
facing the bonfire, where his body and Combs’s body were later found.
Although the bodies of Ellis and Combs were 16 feet apart, their location,
their parallel positioning and the location of the items removed from the truck
and dumped on the ground support the conclusion that Ellis and Combs were
killed on either side of the truck. Combs’s body was found on what would
have been the passenger side of Ellis’s new truck; Ellis’s body, parallel to
Combs’s body, was found on what would have been the driver’s side of the
truck, the same side where the accessory items from the truck and the brochure
20
ifir.v
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