Charfauros v. Unknown

Filing 27

REPORT AND RECOMMENDATION re 3 First Amended Petition for Writ of Habeas Corpus filed by Alex Ray Charfauros. Court recommends that Court issue an Order: 1.) approving this Report and Recommendation, and 2.) directing that Judgment be entered deny ing the Petition for Writ of Habeas Corpus. Any reply to the objections shall be filed no later than thirty (30) days from the date this Report and Recommendation is filed. Signed by Magistrate Judge Karen S. Crawford on 7/16/2018. (All non-registered users served via U.S. Mail Service) (jah)

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FILED

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JUL 1 7 2018

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CLERK, U.S. DISTRICT COURT
SOUTHERN OISTR1CT OF CALIFORNIA
BY
DEPUTY

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.;:t/V\

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORN1A

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ALEX RAY CHARFAUROS,

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Case No.: 3:17-cv-00266-BAS-KSC
Petitioner,

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v.

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SCOTT KERNAN, Warden,

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REPORT AND
RECOMMENDATION RE
PETITIONER'S AMENDED WRIT
OF HABEAS CORPUS

Respondent.

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Petitioner Alex Ray Charfauros, a state prisoner proceeding pro se, filed an

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Amended Petition for Writ of Habeas Corpus ("Petition)" challenging his August 23, 2013

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conviction in San Diego Superior Court Case No. SCD234440 for, inter alia, the second

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degree murder of a police officer. [Doc. No. 3].

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This Court has reviewed the Petition and exhibits [Doc. No. 3]; respondent's Answer

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and supporting Memorandum of Points and Authorities [Doc. No. 24]; the Lodgments

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submitted by respondent, including the state court record [Doc. No. 25]; and petitioner's

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Traverse. [Doc. No. 26].

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RECOMMENDED that the District Court DENY the Petition in its entirety.

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III

For the reasons outlined below, IT IS HEREBY

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PROCEDURAL HISTORY

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Petitioner Alex R. Charfauros is in the custody of respondent based upon a valid

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judgment entered on August 23, 2013, in San Diego County where a jury convicted him

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of fifteen criminal offenses. Petitioner was found guilty of: second degree murder of a

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police officer; four counts of premeditated attempted murder of a police officer;

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attempting to harm a police dog resulting in serious injury; four counts related to the

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possession or sale of methamphetamine; resisting, delaying, or obstructing a police officer

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and conspiracy to commit the same offense; conspiracy to commit an act injurious to the

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public health or public morals or to pervert or obstruct justice or the due administration of

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laws; possession of a firearm by a felon; and, unlawful possession of ammunition. In

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connection with several of the counts, the jury also found petitioner was vicariously armed

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with a firearm. [Doc. No. 12-1, at p. 2]. Petitioner was sentenced to prison for an

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indeterminate term of 85 years to life plus a determinate term of 11 years. [Id. at p. 8].

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Through counsel, petitioner filed an appeal on September 23, 2013. 1 [Doc. No. 12-

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1]. The California Court of Appeal rejected petitioner's first three claims, modified the

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judgment to reflect corrected sentences on counts 7, 9, 10, 11, 12, and 14, and corrected

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the laboratory fee. [Id. at p. 3]. As modified, the court affirmed the judgment. [Id.].

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Petitioner filed a writ of habeas corpus on October 15, 2014, while his direct appeal

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was pending. 2 The California Court of Appeal considered the habeas corpus petition at the

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same time as his direct appeal. Concurrent with its order modifying the judgment on direct

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appeal, the Court of Appeal filed an order denying the petition. [Doc No. 12-2]. The

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California Supreme Court denied Petitioner's petition for review on December 9, 2015.

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[Doc. No. 12-3 atp. l].

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On February 10, 2017, petitioner filed a two-sentence federal petition for writ of

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habeas corpus. [Doc. No. l]. In its Order dated February 16, 2017, District Judge Bashant

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People v. Charfauros, D064666
In Re Alex Charfauros, D066787
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dismissed the petition without prejudice because petitioner failed to name a proper

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respondent, failed to state grounds for relief, and failed to allege exhaustion of state judicial

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remedies. [Doc. No. 2]. Petitioner was instructed to file a First Amended Petition, which

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he did on April 10, 2017 [Doc. No. 3]. Respondent filed a Motion to Dismiss contending

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the First Amended Petition was time-barred under the one-year statute of limitations

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contained in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). [Doc.

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No. 11, at p. 2]. This Court issued a Report and Recommendation that found that petitioner

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did not run afoul of the one year statute oflimitations because he relied on a date set by the

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District Court by which he could file an amended petition. [Doc. No. 18]. District Judge

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Bashant adopted the Report and Recommendation thereby denying respondent's Motion

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to Dismiss. [Doc. No. 19].

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Respondent filed an Answer to the Petition [Doc. No. 24] and lodged the state court

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record with this Court [Doc. No. 25] on February 22, 2018, and petitioner filed a Traverse

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on March 26, 2018. [Doc. No. 26].

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FACTUAL BACKGROUND

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In reviewing a federal petition for writ of habeas corpus, this Court gives deference

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to the state court findings of fact and presumes them to be correct. Petitioner may rebut this

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presumption, but only by clear and convincing evidence. 28 U.S.C. § 2254(e)(l); see also

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Parke v. Raley, 506 U.S. 20, 35-36 (1992). The following facts are taken from the

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California Court of Appeals' unpublished decision denying petitioner's direct appeal in

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Case No. D066787 (San Diego Superior Court No. SCD235440):

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In October 2010, Charfauros, who was on probation, lived in a twobedroom upstairs apartment in San Diego with Holim Lee and Lee's girlfriend,
Lucky Xayasene. Lee was wanted on a warrant for assault with a deadly
weapon, and United States Marshal Service Deputy Jeffrey Roxas obtained
information that Lee had been seen two weeks earlier at Charfauros's
apartment. In an attempt to ascertain Lee's whereabouts, Deputy Roxas asked
Charfauros's probation officer, Officer Bobby Bums, if they could go together
to search Charfauros's apartment.

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On October 27, 2010, around 10:00 p.m., a group of probation officers
and United States Marshals Service deputies arrived unannounced at
Charfauros's apartment to conduct a probation search. As the officers prepared
to knock on the apartment door, the door was opened from inside by a
surprised Asian man. Officer Bums did not think the man looked like
Charfauros, and he therefore asked if Charfauros was there. The man said,
"Nope," and slammed and locked the door.
The officers kicked in the locked door and began to move through the
apartment. A bedroom door at the end of the hallway was hanging off its
hinges and had a large hole in the middle. That bedroom was later determined
to be Charfauros's room. The door to the second bedroom was closed. That
bedroom was later determined to be Lee and Xayasene's bedroom.
Meanwhile, an officer posted outside the apartment saw Charfauros
trying to climb down a ladder out of his bedroom window. The officer directed
Charfauros to go back inside the apartment, and Charfauros complied. A short
time later, the officers inside the apartment saw Charfauros's hand extending
out of the doorway of his bedroom. Charfauros eventually complied with
orders to get down on the ground and crawl down the hallway to the living
room. Charfauros was handcuffed and taken out onto a landing and then
downstairs into a courtyard.
Based on Officer Bums's belief that Charfauros was not the person who
opened and then slammed the door, the officers believed someone else was
likely still inside the apartment, and they radioed for assistance from the San
Diego Police Department. While waiting for the police officers to arrive,
several probation officers heard clicking or crackling sounds coming from Lee
and Xayasene's closed bedroom.
After Charfauros was taken into custody, police officers, probation
officers and United States Marshals Service deputies repeatedly asked
Charfauros to tell them who was in the apartment and whether there were any
weapons or drugs in the apartment. Charfauros was questioned by several
officers from the time he was handcuffed in the apartment through the time
that he was detained downstairs in the courtyard. Officers who participated in
or overheard the questioning of Charfauros testified that Charfauros replied
that he did not know who was in the apartment because he had been asleep
before the officers arrived. Several officers heard Charfauros state that there
were no weapons in the apartment.

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San Diego Police Department officers arrived on the scene and relieved
the probation officers and United States Marshals Service deputies who were
posted in the apartment. Police officers determined based on photographic
identifications made by some of the probation officers that the person who
opened and then slammed the door to the apartment was likely Lee, and that
Lee was still in the apartment.

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Police officers decided to employ a police dog and to attempt to gain
entry to Lee and Xayasene's closed bedroom by kicking in the door. While
San Diego Police Officer Lorenzo Ruiz kicked in the door, San Diego Police
Officers Michael Chinn, Travis Whipple, Christopher Wilson and Michael
McLeod, along with his police dog Monty, took positions in the apartment.
Immediately after Officer Ruiz kicked open the bedroom door, a volley of
gunfire erupted from inside the bedroom. Officers McLeod, Chinn and
Whipple returned fire. Officer Wilson was fatally shot in the head. Police dog
Monty received a gunshot wound to his snout.
During the shooting, Charfauros remained handcuffed in the downstairs
courtyard, still claiming that he did not know who was in the apartment and
that no weapons were present. One officer testified that during the shooting,
Charfauros said, '"Oh shit, oh shit. I can't believe this is happening."'
Approximately 20 minutes had elapsed from the time that Charfauros was
taken out of the apartment in handcuffs to the eruption of gunfire inside the
apartment.

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The officers called for the assistance of the SWAT team, and the
apartment was eventually cleared. Lee and Xayasene were found dead in the
bedroom, having both committed suicide by gunshots to their heads. Two
other people, Patrick Luangrath and Melissa Ortiz were removed from the
bedroom and taken into custody. There were several firearms in Lee and
Xayasene's bedroom, along with ammunition. In addition over 80 grams of
methamphetamine was found in the apartment. Lee's gun fired the shot that
killed Officer Wilson. Xayasene had a .45 caliber handgun in her hand, which
was determined to have also fired rounds. Charfauros's DNA was found on a
shotgun that was recovered from Lee and Xayasene's bedroom, and shotgun
shells were located in Charfauros's bedroom.

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Charfauros was charged with the murder of Officer Wilson; the
attempted murder of Officers Ruiz, Chinn, Whipple and McLeod; causing
serious injury to police dog Monty; along with nine other charges, including
resisting a police officer, charges related to the methamphetamine and the
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firearms and ammunition found in the apartment, and two other conspiracy
charges.
At trial, several officers testified that Charfauros's refusal to give
information about who was in the apartment and his statements that there were
no weapons in the apartment were important factors in how events developed.
As the officers testified, had Charfauros told them that firearms were present
in the closed bedroom, they would have called for a SWAT team response
rather than attempting to enter the closed bedroom themselves.

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Several officers also testified at trial that although Officer Bums did not
believe at the time of the incident that Charfauros was the person at the
apartment door, upon further review of photographic evidence, they
concluded that it was Charfauros, not Lee, who opened and then slammed the
apartment door. The jury also heard evidence that Charfauros was an active
member of a criminal street gang and was selling methamphetamine together
with Lee. Videos from cell phones found in the apartment showed Charfauros,
Lee and Xayasene smoking methamphetamine in Lee and Xayasene's
bedroom on multiple occasions and established that there had been several
guns in plain sight in the apartment's living room and Lee and Xayasene's
bedroom on October 26, 2010, the day before the shooting.

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The jury found Charfauros guilty of second degree murder of a police
officer(§§ 187, subd. (a), 190, subd. (b) [count l]); four counts of willful,
deliberate and premeditated attempted murder of a police officer (§§ 664,
subd. (e), 187, subd. (a), 189 [counts 2-5]); attempting to harm a police dog
resulting in serious injury(§§ 600, subds. (a), (c), 664 [count 6]); possessing
methamphetamine while armed with a firearm (Health & Saf. Code, §
11370.l, subd. (a) [count 7]); possession for sale ofmethamphetamine (id.,§
11378 [count 9]); maintaining a place for selling methamphetamine (id., §
11366 [count 12]); conspiracy to sell or furnish methamphetamine (Pen.
Code,§ 182, subd. (a)(l); Health & Saf. Code,§ 11379 [count 15]); resisting,
delaying or obstructing a police officer (§ 148, subd. (a)(l) [count 16]);
conspiracy to delay or obstruct a police officer(§§ 148, subd. (a)(l), 182,
subd. (a)(l) [count 13]); conspiracy to commit an act injurious to the public
health or public morals or to pervert or obstruct justice or the due
administration of the laws(§ 182, subd. (a)(5) [count 14]); possession of a
firearm by a felon (former § 12021, subd. (a)(l) [count 10]); and unlawful
possession of ammunition (former § 12316, subd. (b)(l) [count 11]). For
several of the counts, the jury further found that that Charfauros was
vicariously armed with a firearm. ( § 12022, subd. (a)( 1). )
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Charfauros was sentenced to prison for an indeterminate term of 85
years to life, plus a determinate term of 11 years.
[Doc. No. 25-44 at pp. 3-8].

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STANDARD OF REVIEW

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Federal habeas corpus relief is available only to those who are in custody in violation

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of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). "A federal court

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may not issue the writ on the basis of a perceived error of state law." Pulley v. Harris, 465

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U.S. 3 7, 41 (1984 ). "[A] mere error of state law is not a denial of due process." Engle v.

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Isaac, 456 U.S. 107, 121 n. 21 (1982) (internal quotations omitted).

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This Petition is governed by the provisions of the Antiterrorism and Effective Death

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Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 327 (1997). Under

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AEDP A, a habeas petition will not be granted with respect to any claim adjudicated on the

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merits by the state court unless that adjudication: ( 1) resulted in a decision that was contrary

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to, or involved an unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States; or (2) resulted in a decision that

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was based on an unreasonable determination of the facts in light of the evidence presented

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at the State court proceedings. 28 U.S.C. § 2254(d)(l )&(2); Early v. Packer, 537 U.S. 3,

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9 (2002).

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For purposes of 28 U.S.C. § 2254( d)(l ), "clearly established Federal law" means

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"the governing legal principle or principles set forth by the Supreme Court at the time the

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state court renders its decision."

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Therefore, a lack of controlling Supreme Court precedent can preclude habeas corpus

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relief. See Wright v. Van Patten, 552 U.S. 120, 126 (2008).

Lockyear v. Andrade, 538 U.S. 63, 71-72 (2003).

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In deciding a state prisoner's habeas petition under AEDPA, a federal court applies

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a highly deferential standard of review, inquiring only whether the state court's decision

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was objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 4 (2003).

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unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685,

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694 (2002). To be objectively reasonable, a state court's decision need not specifically cite

"[A]n

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or rely on Supreme Court precedent. "[S]o long as neither the reasoning nor the result of

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the state-court decision contradicts [Supreme Court precedent]," the state court's decision

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will not be "contrary to clearly established Federal law." Early, 537 U.S. at 8.

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AEDPA "demands that state-court decisions be given the benefit of the doubt."

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Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (internal citation and quotations omitted).

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Federal habeas relief cannot be granted simply because a reviewing court concludes the

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state court decision is erroneous or incorrect based on its own independent judgment. Id.

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Habeas relief is only available under section 2254( d)(l) when "there is no possibility fair-

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minded jurists could disagree that the state court's decision conflicts with Supreme Court

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precedents." Harrington v. Richter, 562 U.S. 86, 101 (2011). The AEDPA standard is

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"difficult to meet." Id. at 102.

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In addition, review under section 2254( d)( 1) is "limited to the record that was before

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the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S.

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170, 181 (2011). When there is no reasoned decision from a state's highest court, a federal

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court "looks through" to the "last reasoned state-court opinion" and presumes this provides

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the basis for the higher court's denial. Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991).

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AEDPA requires federal habeas courts to presume the correctness of state courts' factual

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findings unless applicants rebut this presumption by clear and convincing evidence. 28

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U.S.C. § 2254(e)(l); Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007).

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Here, the California Supreme Court denied the Petition without comment and

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therefore the California Court of Appeal's unpublished opinion is the "last reasoned state

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court opinion" in the docket. See Doc. No. 25-44; Ylst, 501 U.S. at 805-06. It is there the

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Court will look when evaluating petitioner's claims for habeas relief.

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III

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III
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DISCUSSION

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Section I addresses petitioner's sufficiency of evidence claim. Section II addresses

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petitioner's claims that the admission of certain testimony was prejudicial and that he

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received ineffective assistance of counsel because his counsel failed to object when the

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prosecution sought to admit the testimony. Section III addresses petitioner's challenge of

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sentencing enhancements.

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I.

Review of Petitioner's Sufficiency of Evidence Claim

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A.

Clearly Established Supreme Court Law

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"[T]he Due Process Clause protects the accused against conviction except upon

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

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he is charged." In re Winship, 397 U.S. 358, 364 (1970). The Fourteenth Amendment's

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Due Process Clause is violated, and an applicant is entitled to federal habeas corpus relief,

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"if it is found that upon the record evidence adduced at the trial no rational trier of fact

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could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S.

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307, 324 (1979). Reversal on an insufficiency of evidence claim is, in essence, a

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"determination that the government's case against the defendant was so lacking that the

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trial court should have entered a judgment of acquittal." McDaniel v. Brown, 558 U.S. 120,

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131 (2010) (quoting Lockhart v. Nelson, 488 U.S. 33, 39 (1988)).

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The jury bears the burden of deciding "what conclusions should be drawn from

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evidence admitted at trial" and a habeas court can set aside a jury verdict on the ground of

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insufficient evidence only if no rational trier of fact could have agreed with the jury.

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Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam). "The reviewing court must respect

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the exclusive province of the fact finder to determine the credibility of witnesses, resolve

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evidentiary conflicts, and draw reasonable inferences from proven facts" by assuming that

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the jury resolved all conflicts in support of the verdict. United States v. Hubbard, 96 F.3d

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1223, 1226 (9th Cir. 1996); Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). If the

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record supports competing inferences, the court "must presume - even if it does not

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affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor

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of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326.

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The court applies the standard to the applicable state law that defines the elements

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of the crime. Id. at 324 n.16; see also Chein v. Shumsky, 373 F.3d 978, 983 (9th Cir. 2004)

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(en bane). Yet the Court must apply an additional layer of deference in applying the

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Jackson standard, and "must ask whether the decision of the California Court of Appeal

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reflected an 'unreasonable application of Jackson and Winship to the facts of this case."

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Juan H v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005), quoting 28 U.S.C. § 2254(d)(l).

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Federal habeas relief is not intended to correct errors below, but to "guard against extreme

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malfunctions in the state criminal justice systems." Richter, 562 U.S. at 103, quoting

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Jackson, 443 U.S. at 332 n.5.

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B.

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In its unpublished decision affirming petitioner's conviction, the California Court of

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Appeal responded to petitioner's sufficiency of evidence argument by applying a standard

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of review equivalent to the standard set forth by the Supreme Court in Jackson v. Virginia.

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[Doc. No. 25-44]. On direct appeal, petitioner challenged the sufficiency of evidence

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supporting the assaultive crimes for which he was convicted. The People had presented

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three different theories for his liability, and the Court found sufficient evidence to support

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convictions under two of the theories. 3 [Id. at pp. 9-10]. The first was whether substantial

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evidence existed to show the assaultive crimes were "a natural and probable consequence

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of the crime of conspiracy to resist, delay[,] or obstruct a peace officer[,] or obstruct justice

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as charged in counts 13 and 14." [Id. at p. 11]. The second was whether substantial

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evidence existed to support the theory that petitioner "aided and abetted Lee and Xaysene

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in resisting, obstructing or delaying a peace officer (as charged in count 16), [for which]

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the assaultive crimes [were] a natural probably consequence." [Id. at p. 21].

The Last Reasoned State Court Opinion and Analysis

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The California Court of Appeal explained that because it had found sufficient support on two distinct
theories, it need not explore the third. [Doc. No. 25-44 at p. 24, n. 9].
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Turning to the first theory, the Court of Appeal engaged in a two-step analysis. First

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it evaluated whether there was sufficient evidence to support the finding that petitioner

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conspired to resist, delay, or obstruct law enforcement officers "in violation of [S]ection

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148." [Id. at p. 12]. Once the Court of Appeal answered the first step affirmatively, it

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evaluated, and agreed with the trial court, that sufficient evidence existed to support the

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finding that the assaultive crimes were a natural and probable consequence of the

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conspiracy.

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The crime of obstructing an officer in the course of their duties has three elements:

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"(l) the defendant wilfully resisted, delayed, or obstructed a peace officer (2) when the

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officer was engaged in the [lawful] performance of his or her duties, and (3) the defendant

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knew or reasonably should have known that the other person was a peace officer engaged

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in the performance of his or her duties." People v. Ghebretensae, 222 Cal.App.4th 741,

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759 (2013). And in California, "[a] conviction of conspiracy requires proof that the

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defendant and another person had the specific intent to agree or conspire to commit an

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offense, as well as the specific intent to commit the elements of that offense, together with

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proof of the commission of an overt act by one or more parties to such agreement in

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furtherance of the conspiracy." People v. Russo, 25 Cal.4th, 1124, 1131 (2001) (internal

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citations omitted). Among the evidence the Court of Appeal found persuasive regarding

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petitioner's conspiracy conviction was: (1) petitioner opening the door when officer's

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knocked and immediately slamming it in their faces; (2) petitioner telling officers, when

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questioned, that there were no weapons in the apartment; (3) petitioner's knowledge that

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because he was on probation with a waiver of his Fourth Amendment rights, a warrantless

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search of his residence was highly likely; ( 4) a conversation between petitioner and his

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probation office in which he was informed of a an imminent visit; (5) a recorded telephone

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call made from prison between petitioner and family members in which he said "that he

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'was supposed to be dead'" and that "'it was a thin line between what I chose that day' and

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what could have happened." [Doc. No. 25-44 at pp. 12-14]. For those reasons, and others,

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the Court of Appeal concluded petitioner was part of a conspiracy to resist law

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enforcement. [Id. at p. 16].

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At step two, the Court of Appeal considered whether there was sufficient evidence

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to support a finding that the assaultive crimes were the natural and probable consequence

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of the conspiracy. [Id.].

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conspirators at the time that they conspired. People v. Guillen, 227 Cal.App.4th 934, 938

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(2014 ). Rather, the resulting crime must be "reasonably foreseeable," one for which "the

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consequence [need] not have been a strong probability; a possible consequence which

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might reasonably have been contemplated is enough." People v. Medina, 46 Cal.4th 913,

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920 (2009). The question of whether a crime is the reasonably foreseeable consequence of

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a conspiracy "is to be evaluated under all the factual circumstances of the individual case .

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.. and is a factual issue to be resolved by the jury." Id. The Court of Appeal did not mince

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words, asserting that "[u]nder any objective standard" a foreseeable consequence of a

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conspiracy to resist law enforcement officers with firearms "is that law enforcement

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officers, including any police dogs present, are going to be shot at and possibly injured or

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killed." [Doc. No. 25-44 at p. 18 (emphasis added)].

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argument that the assaultive crimes were not the natural and probable consequence of the

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conspiracy. [Id. at p. 19]. Specifically, he argued that the police officers' decision to break

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down the door of the room in which Xaysene and Lee were barricaded was "an independent

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intervening cause [that] cut off any ... liability." [Id.]. The question for the jury was "to

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determine whether the officers' response was so extraordinary that it was unforeseeable,

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unpredictable and statistically extremely improbable." [Id.at p. 20 quoting People v. Brady,

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129 Cal.App.4th 1314, 1327 (2005)].

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Appeal could not conclude that the "officers' actions in response to the situation" were so

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abnormal as to warrant reversal. "Indeed, such a course of events is to be expected as a

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result of resistance to law enforcement directives to emerge from a barricaded space." [Id.

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at p. 20].

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III

The assaultive crimes need not have been intended by the

It then addressed petitioner's

The jury convicted petitioner and the Court of

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The second theory the Court of Appeal evaluated was whether substantial evidence

2

existed to support a finding that petitioner aided and abetted Xaysene and Lee for the

3

assaultive crimes; "namely that [petitioner aided them] in resisting, obstructing or delaying

4

a peace officer ... , leading to the assaultive crimes as a natural probable consequence."

5

[Id. at p. 21]. Under such a theory, the "person who aids and abets the commission of a

6

crime is a 'principal' ... , and thus shares the guilt of the actual perpetrator." People v.

7

Smith, 60 Cal.4th 603, 611 (2014 ). Because no prior agreement need occur for such a

8

finding, the analysis focused on those explicit "acts [petitioner took] in support ofXaysene

9

and Lee's resistance." [Doc. No. 25-44 at p. 22]. The Court of Appeal identified the

10

following acts that supported the underlying conviction: ( 1) petitioner opened the door

11

when the police knocked, indicating he was awake (something he contested during trial)

12

and aware that Xaysene and Lee were home; (2) petitioner was on the scene when Xaysene

13

and Lee refused police orders to exit the room, from which a reasonable juror could infer

14

that he knew they had decided to resist the officers; and, (3) petitioner refused to answer

15

officers' questions whether Xaysene and Lee were in the apartment and then lied about

16

whether weapons were in the bedroom. [Id. at p. 22]. The Court of Appeal found its

17

"natural and probable consequence" analysis in the context of the conspiracy conviction

18

equally applicable and thus concluded substantial evidence supported the finding. [Id. at p.

19

24].

20

A review of the evidence identified by the Court of Appeal, and other similar

21

testimony, is more than sufficient for a jury to infer both that petitioner conspired to resist

22

law enforcement officers, and aided and abetted Xaysene and Lee to resist law enforcement

23

officers; crimes for which the natural and probable consequence was harm to officers in

24

the course of their duties.

25

overlooked a meager record, or misapplied California law such that no reasonable jury

26

could have "found proof of guilt beyond a reasonable doubt." Jackson, 443 U.S. 307, 324

27

(1979). The Court cannot deem the Court of Appeal's rejection of petitioner's sufficiency

Upon review, nothing suggests that the Court of Appeal

28
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1

claim to be objectively unreasonable. See 22 U.S.C. § 2254(d). Accordingly, the Court

2

RECOMMENDS that petitioner's claim for habeas relief on this ground be DENIED.

3

II.

Review of Petitioner's Claims for Habeas Relief Due to Allegedly Wrongful

4

Admission of Evidence and Ineffective Assistance of Counsel

5

During petitioner's trial, the prosecution successfully admitted testimony from a

6

police officer explaining what actions the police would have taken had petitioner admitted

7

firearms were present in the home. [Doc. No. 3 at pp. 43-45]. Petitioner asserts the trial

8

court's admission of the evidence was prejudicial error for which habeas relief should be

9

granted. In the alternative, petitioner contends that his counsel's failure to object to the

10

admission of the evidence is grounds for habeas relief. The Court addresses each, in tum,

11

and RECOMMENDS for the reasons explained in greater detail below that the petition

12

for habeas on relief on these grounds be DENIED.

13

Because each claim turns on the same set of facts and events, the Court summarizes

14

them here before turning to the analysis below. The Court of Appeal recounted the events

15

at issue as follows:

16
17
18

19

20
21
22
23
24
25

26
27

28

Defense counsel objected only during the testimony of the first witness
who was asked about what actions law enforcement would have taken had
Charfauros stated that firearms were present in the apartment. Specifically,
during the testimony of Deputy United States Marshal Michael Banez, the
prosecutor asked Deputy Banez what he meant when he told Charfauros
immediately after the shooting that "none of this would have happened" if
Charfauros had revealed that there were firearms in the apartment. Defense
counsel objected on relevancy grounds. The trial court did not sustain the
objection on that ground, but then interposed its own objection that the
question called for speculation, and it sustained its own objection. At a break
in testimony, the prosecutor asked the trial court to reconsider its evidentiary
ruling. The trial court explained that the question "What would you have
done?" is speculative, but that the evidence that the prosecutor sought to elicit
was relevant. The trial court suggested that although the question, as phrased,
was speculative, "there may be alternate ways" to ask the question.
During the prosecutor's continued examination of Deputy Banez, the
prosecutor returned to the issue but asked the question in a different way,
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1

2

3
4

5
6
7
8
9

10
11

12

inquiring why Deputy Banez told Charfauros that "none of this would have
happened" if Charfauros had revealed there were firearms in the apartment.
Defense counsel objected on relevancy grounds, and the trial court overruled
the objection. At no point did defense counsel interpose an objection on the
ground that the question called for speculation. Deputy Banez replied that he
made the statement because "the callout would have been different[]." It
would have ended differently" if Charfauros told him guns were in the
apartment. The prosecutor then followed up by asking "how" it would have
ended differently. Defense counsel did not object, and Deputy Banez
explained that he would have called for SWAT team assistance.
Following Deputy Banez's testimony, six police officers testified sometimes at significant length - that they would have called for a SWAT
team response had they obtained information that weapons were present in the
apartment. The prosecutor's questions that elicited the officers' testimony
generally inquired what the officers would have done differently had
Charfauros told them that firearms were present. Defense counsel made no
objection to any of the testimony.

13
14
15
16

[Doc. No. 25-44 at pp. 26-27].

A.

Petitioner's Claim for Relief Due to the Allegedly Wrongful Admission
of Prejudicial Police Testimony

17

"[The Supreme Court] has stated many times that federal habeas corpus relief does

18

not lie for errors of state law." Estelle v. McGuire, 502 U.S. 62, 67 (1991) (internal citations

19

omitted). A habeas petitioner may not "transform a state-law issue into a federal one

20

merely by asserting a violation of due process." Langford v. Day, 110 F.3d 1380, 1389

21

(9th Cir. 1997).

22

Constitution, laws, or treaties of the United States." Little v. Crawford, 449 F.3d 1075,

23

1083 (9th Cir. 2006) (quoting Estelle, 502 U.S. at 72 (1991) ).

24

entitlement to habeas relief turns not on whether a state evidentiary law has been violated,

25

but whether the admission of the evidence "so infected the entire trial that the resulting

26

conviction violates due process." Estelle, 502 U.S. at 72 (internal citations omitted); see

27

also Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir. 1998) ("[The federal court's] role

28

is limited to determining whether the admission of evidence rendered the trial so

Instead, he must show that the state court decision "violated the

Thus, a petitioner's

15
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1

fundamentally unfair as to violate due process.").

And because the Supreme Court has

2

"defined the category of infractions that violate fundamental fairness very narrowly" the

3

burden for habeas relief on these grounds is substantial. Id. at 73.

4

This Court must also consider the potential procedural grounds that petitioner's

5

claim must satisfy before turning to the substantive analysis of his habeas claim. Namely

6

the independent and adequate state ground doctrine. See, e.g., Coleman v. Thompson, 501

7

U.S. 722 (1991 ). As a general rule, a federal court "will not review a question of federal

8

law decided by a state court if the decision of that court rests on a state law ground that is

9

independent of the federal question and adequate to support the judgment." Calderon v.

10

United States District Court (Bean), 96 F .3d 1126, 1129 (9th Cir. 1996) (internal citations

11

omitted). A state procedural rule is independent if the state law basis for a decision is not

12

intertwined with federal law. See LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001).

13

And to be deemed adequate, the state procedural rule must be well-established and

14

consistently applied. See Poland v. Stewart, 169 F.3d 573, 577 (9th Cir. 1999).

15

The California Court of Appeal denied petitioner's appeal because he did not comply

16

with the "contemporaneous objection rule" under the California Evidence Code. [Doc. No.

17

25-44 at pp. 25-29 citing Cal. Evid. Code § 353(a)]. A "defendant's failure to make a

18

timely and specific objection on the ground asserted on appeal makes that ground not

19

cognizable." [Id. citing People v. Demetrulias, 39 Cal.4th 1, 20 (2006) (internal citations

20

omitted)].

21

excluded at trial for a reason different than their original objection. People v. Partida, 3 7

22

Cal.4th 428, 435 (2005).

23

rephrased the question regarding what actions Deputy Banez would have taken had he

24

known there were weapons in the room where Xaysene and Lee were barricaded. [Doc.

25

No. 25-44 at pp. 26-27]. Defense counsel also did not object on the six other occasions

26

when law enforcement officers testified about what actions they would have taken. [Id].

27

Although petitioner objected early on to questions put to Deputy Banez, that objection was

28

to a question different than the one that Deputy Banez - and the other law enforcement

Further, litigants are precluded from arguing evidence should have been

Petitioner's counsel did not object when the prosecution

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1

officers - ultimately answered. Specifically, "the officers were asked what they would

2

have done differently if Charfauros had told them there were firearms in the apartment.

3

Indeed, when a similar question was asked of Deputy Banez, inquiring how things would

4

have turned out differently if he knew firearms were present, defense counsel did not

5

object. [Id. at p. 28 (emphasis original)]. Instead, petitioner's counsel had objected "to the

6

prosecutor's question about why Deputy Banez told Charfauros that 'none of this would

7

have happened' if Charfauros had revealed there were firearms in the apartment ... " [Id.].

8

Therefore, petitioner had failed to preserve his objection for appellate argument and was

9

denied consistent with the California Evidence Code.

10

The Ninth Circuit has repeatedly affirmed the denial of habeas relief on procedural

11

default grounds because California's contemporaneous objection rule is independent and

12

adequate. See Zapien v. Davis, 849 F.3d 787, 793 n. 2 (9th Cir. 2015); Inthavong v.

13

Lamarque, 420 F.3d 1055, 1058 (9th Cir. 2005); Paulino v. Castro, 371F.3d1083, 1093

14

(9th Cir. 2004); Melendez v. Pliler, 288 F.3d 1120, 1125 (9th Cir. 2002); Rich v. Calderon,

15

187 F.3d 1064, 1069-70 (9th Cir. 1999). Petitioner's claim for relief was rejected by the

16

California Court of Appeal after it applied California's contemporaneous objection rule, so

17

the claim is procedurally defaulted on federal habeas corpus review.

18
19
20

Accordingly, this court RECOMMENDS that petitioner's claim on this basis be
DENIED.
B.

21

Petitioner's Claim for Habeas Relief Because of Ineffective Assistance of
Counsel

22

Petitioner argues, in the alternative, that the failure by his trial counsel to render

23

contemporaneous objections to the questions posed by the prosecution constitutes a

24

violation of his Sixth Amendment guarantee to counsel for which habeas relief must be

25

granted.

26

Trial counsel is generally presumed competent, so the burden rests on the accused

27

to overcome this presumption and demonstrate a constitutional violation. United States

28

v. Cronic, 466 U.S. 648, 658 (1984). To prevail on a claim of ineffective assistance of
17

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1

trial counsel, a petitioner must show that "counsel made errors so serious that counsel

2

was not functioning as the 'counsel' guaranteed ... by the Sixth Amendment." Strickland

3

v. Washington, 466 U.S. 668, 687 (1984). "This requires showing that counsel made

4

errors so serious that counsel was not functioning as the 'counsel' guaranteed the

5

defendant by the Sixth Amendment." Id. Considering all of the circumstances, counsel

6

must be given "wide latitude ... in making tactical decisions." Id. at 689. Put differently,

7

a reasonable tactical decision will not suffice for a finding that counsel was

8

constitutionally ineffective. Id.

9

claim, federal courts must also be "highly deferential," avoid "the distorting effects of

10

hindsight," and "indulge a strong presumption that counsel's conduct falls within the

11

wide range of reasonable professional assistance." Id.

When assessing an ineffective assistance of counsel

12

A habeas petitioner also cannot prevail on a claim of ineffective assistance of

13

counsel without showing that counsel's performance prejudiced the defense. Id. at 687.

14

To establish prejudice, a defendant must demonstrate "there is a reasonable probability

15

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

16

different." Id. at 694. "The likelihood of a different result must be substantial, not just

17

conceivable." Harrington v. Richter, 562 U.S. 86, 112 (2011). The Court need not

18

address both the deficiency prong and the prejudice prong if the defendant fails to make

19

a sufficient showing of either one. Strickland at 697.

20

The Strickland standard and the § 2254( d) standard set out under the Standard of

21

Review, supra, are both 'highly deferential,' and when applied together, review is

22

'doubly' so. Harrington, 562 U.S. at 105 (internal citations omitted). "The Strickland

23

standard is a general one, so the range of reasonable applications is substantial. Federal

24

courts must guard against the danger of equating unreasonableness under Strickland with

25

unreasonableness under § 2254( d). When 2254( d) applies, "the question is not whether

26

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

27

argument that counsel satisfied Strickland's deferential standard." Id. (internal citations

28

omitted). "As a condition for obtaining habeas [relief] from a federal court, a state
18
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1

prisoner must show that the state court's ruling on the claim being presented in federal

2

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

3

comprehended in existing law beyond any possibility for fairminded disagreement." Id.

4

at 786-87.

5

On direct appeal, the California Court of Appeal denied petitioner's arguments

6

because (1) "defense counsel could reasonably have determined that the questions were

7

not objectionable" and (2) the questions were not, as a matter of California law,

8

objectionable. [Doc. No. 25-44 at p. 30].

9

petitioner's contention that his counsel's decision not to object was unreasonable, nor that

10

the Court of Appeal's determination is "beyond any possibility for fairminded

11

disagreement." Strickland at 786-87. Petitioner argues that "[t]here could have been no

12

tactical advantage in, or satisfactory explanation for, not contemporaneously challenging

13

the admission of this testimony on all the grounds it was objectionable given its crucial,

14

though improper role, in the case." [Doc. No. 3 at p. 57 (internal citations omitted)]. As

15

the Court of Appeal explained, even had counsel objected and asserted the testimony was

16

speculative, it "would have lacked merit" because there was nothing speculative about

17

the testimony at issue. [Doc. No. 25-44 at p. 32].

18

"departmental policy" that "requires [ ] a SWAT team be called in when barricaded

19

suspects are known to have firearms." [Id.]. Petitioner's counsel cannot be deemed

20

ineffective for failing to make meritless objections.

Nothing in the record below supports

Officers testified to established

21

As a result, the California Court of Appeal was correct m concluding that

22

petitioner would be unable to prevail on his ineffective assistance of counsel claim, because

23

he cannot establish prejudice under Strickland.

24

petitioner's request for habeas relief on this ground be DENIED.

25

III.

This Court RECOMMENDS that

Review of Petitioner's Claim for Habeas Relief Due to Allegedly Wrongful

26

Imposition of Sentence Enhancements

27

Petitioner seeks habeas relief because the indictment did not explicitly allege that

28

the attempted murders of police officers were willful, deliberate, and premeditated. [Doc.
19
3: 17-cv-00266-BAS-KSC

I

No. 3 at pp. 57-59]. On review, the California Court of Appeal addressed the issue and

2

found that while California Criminal Code Section 664( e) was violated because the

3

indictment "did not charge that the attempted murders were willful," relief was nonetheless

4

unavailing. [Id.]. It opined:

5
6

7
8
9

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

Under the circumstances, because the defense proffered the CALCRIM
No. 60 I instruction on willful, deliberate and premeditated attempted murder,
Charfauros had notice that the jury was going to be deciding that issue.
Further, because the instruction was discussed while there were still several
days of trial remaining and the People had not yet rested their case, there was
a meaningful opportunity for Charfauros to introduce evidence on the issue of
whether the attempted murders were willful, deliberate and premeditated.
Charfauros thus had a "reasonable opportunity to prepare and present his
defense," foreclosing any argument that his constitutional due process rights
were violated due to the fact that the indictment did not charge that the
attempted murders were willful, deliberate and premeditated. (Jones, supra,
51Cal.3datp.317.)
.... As we will explain, we conclude that Charfauros has forfeited any
appellate challenge to the sentence enhancements on statutory grounds
because he did not object in the trial court that the indictment lacked an
allegation that the attempted murders were willful, deliberate and
premeditated.
Our analysis of the forfeiture issue is controlled by Houston. [54 Ca.4th
1186 (2012)]. In that case, our Supreme Court concluded that because the
defendant had failed to object to instructing the jury on a theory that the
attempted murders were willful, deliberate and premeditated, the defendant
had forfeited any appellate challenge to the imposition of a sentence
enhancement under section 664 based on the argument that the indictment did
not allege the attempted murders were willful, deliberate and premeditated.
(Houston, supra, 54 Cal.4th at pp. 1227-1228.) As Houston pointed out, the
defendant received adequate notice of the sentence he faced, and "a timely
objection to the adequacy of the indictment would have provided an
opportunity to craft an appropriate remedy." (Id. at p. 1228.) Accordingly, he
forfeited his appellate challenge to the sentence enhancement based on section
664. The same result applies here. As we have explained, Charfauros received
notice of the allegations that the attempted murders were willful, deliberate
and premeditated while there was still time to craft a remedy in the trial court.
However, Charfauros did not object, and he accordingly forfeited his appellate
20
3: l 7-cv-00266-BAS-KSC

1

challenge based on the People's failure to comply with the statutory
requirement in section 664, subdivision (f) that the indictment allege that the
attempted murders were willful, deliberate and premeditated.

2
3

4

[Doc. No. 25-44 at pp. 38-40]. That analysis is neither contrary to, nor an unreasonable

5

application of, clearly established Supreme Court precedent. Petitioner received ample

6

notice of the charges facing him. Indeed, he proffered a jury instruction that explicitly

7

acknowledged as much. [Id. at p. 38]. Because "neither the reasoning nor the result of the

8

state-court ... contradicts [Supreme Court precedent]," petitioner is not entitled to habeas

9

relief on this ground. Early v. Packer, 537 U.S. 3, 8 (2002). And finally, petitioner's

10

request for habeas relief on the grounds that he was denied his Sixth Amendment right to

11

counsel is also without merit. Had counsel objected to the incomplete indictment, the

12

prosecution was well within its rights to "amend the indictment and cure the problem."

13

[Doc. No. 25-44 at p. 42]. The point in trial when it was apparent to petitioner's counsel

14

that the indictment was insufficient was not so far along that the trial court would have

15

denied a motion to amend. [Id. at p. 41]. In short, the "likelihood of a different result" is

16

barely "conceivable," let alone "substantial" as required under Supreme Court precedent.

17

Harrington, 562 U.S. at 112 (2011)
Accordingly, this Court RECOMMENDS that petitioner's claims for habeas relief

18
19

on these grounds be DENIED.

20

III

21

Ill

22

Ill

23

III

24

III

25

III

26

III

27

Ill

28

III
21

3: l 7-cv-00266-BAS-KSC

1

CONCLUSION and RECOMMENDATION

2

The Court submits this Report and Recommendation to United States District Judge

3

Cynthia Bashant under 28 U.S.C. § 636(b )(1) and Local Civil Rule HC.2 of the United

4

States District Court for the Southern District of California. For the reasons stated above,

5

IT IS HEREBY RECOMMENDED that the Court issue an Order: 1) approving and

6

adopting this Report and Recommendation; and 2) directing that Judgment be entered

7

DENYING the Petition for Writ of Habeas Corpus.

8

IT IS HEREBY ORDERED that any reply to the objections shall be filed with the

9

Court and served on all parties no later than Thirty (30) Days from the date this Report

10

and Recommendation is filed. The parties are advised that failure to file objections within

11

the specified time may waive the right to raise those objections on appeal of the Court's

12

order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d

13

1153, 1156 (9th Cir. 1991).

14
15

IT IS SO ORDERED.
Dated: July/(;, 2018

16
17

United States Magistrate Judge

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25
26

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