Boegeman v. Smith

Filing 10

ORDER Adopting 8 Report and Recommendation Denying Petition for Writ of Habeas Corpus. Signed by Judge Gonzalo P. Curiel on 6/27/18. (All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHRISTOPHER BOEGEMAN

Case No.: 3:17-cv-00861-GPC-KSC
Petitioner,

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v.

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ORDER ADOPTING THE
MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION
DENYING PETITION FOR WRIT
OF HABEAS CORPUS

CHRIS SMITH, et al.

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Respondent.

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On April 27, 2017, Petitioner Christopher Boegeman (“Petitioner”), filed a petition

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for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 1. He challenges his

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conviction for grand theft in San Diego Superior Court, arguing that errors in jury

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instructions violated his right to due process. Id. at 6-7. On August 7, 2017, Respondent

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filed an Answer, Memorandum of Points and Authorities in Support of the Answer, and

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Lodgments. Dkt. Nos. 6-7. Petitioner did not file a traverse. On March 26, 2018,

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Magistrate Judge Crawford issued a Report and Recommendation (“Report”) advising

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that this Court deny the petition. Dkt. No. 8. On April 27, 2018, Petitioner filed

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objections to the Report and Recommendation. Dkt. No. 9.

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After a thorough review of the documents presented, trial record, and applicable
law, this Court ADOPTS the Magistrate Judge’s Report and Recommendation,
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OVERRULES Petitioner’s objections, DENIES the petition for a writ of habeas corpus,

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and DENIES a certificate of appealability.

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I.

BACKGROUND

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A.

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Petitioner and his roommate David Schroeder shared an apartment in Escondido,

FACTUAL BACKGROUND1

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California. Lodgment No. 1, Dkt. No. 7-1 at 1. Their neighbor, Douglas Goll

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(“Neighbor”), occasionally bought and sold items for them on eBay. Id. In April of

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2014, Petitioner and Schroeder approached the neighbor to discuss buying and selling

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silver online. Id. Petitioner told the neighbor that if he did not sign for a package when it

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was delivered, he could claim he never received it and get a refund or free replacement.

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Id. Schroeder said that he always claimed packages were stolen from his apartment. Id.

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Petitioner said he once signed his name as Mickey Mouse. Id.

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Petitioner and Schroeder then asked the neighbor to bid on a set of silver on eBay.

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Id. The neighbor purchased the silver for $3,850 with Petitioner’s credit card, which

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Schroeder gave to him. Id. EBay initially accepted the card, but later cancelled the

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transaction. Id. Sometime later, Schroeder called Dean Gannon (“Victim”) about a set of

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silver flatware Gannon was selling on eBay. Id. After an extensive conversation, the

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victim agreed to sell the silver to Schroeder and ship it to him. Id. Schroeder paid for the

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silver with a Visa credit card number. Id. The charge was accepted, and the victim

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shipped the silver to Petitioner and Schroeder’s apartment. Id. at 1-2. The victim also

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purchased insurance that would reimburse him up to $1,000 plus the cost of shipping if

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the shipment were lost or damaged. Id. at 2.

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On Saturday, April 26, 2014, FedEx delivery person Steven Milner (“FedEx

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Delivery Person” or “Delivery Person”) delivered the silver to Petitioner and Schroeder’s

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In habeas proceedings for state prisoners, federal courts give deference to state court findings of fact.
See 28 U.S.C. § 2254(e)(1).
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apartment. Id. When the delivery person knocked on the door, Petitioner opened it,

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identified himself as Schroeder, and signed for the package. Id. Because Petitioner gave

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the full name of the person on the package and was at the specified delivery address, the

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FedEx delivery person did not ask for identification. Id. He did testify that he noticed

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another man in the apartment “just sitting there in the background.” Id. He also testified

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that he had a brief conversation with Petitioner in which he complained about having to

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work on a Saturday, and Petitioner responded, “at least you have a job.” Id. He also

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claimed he had seen Petitioner on prior occasions when he made deliveries, but that he

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had never spoken with him before. Id.

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On Monday, April 28, 2014, Schroeder called FedEx to report that the silver he

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had ordered from the victim had not been delivered. Id. at 3. He claims FedEx informed

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him that it was delivered next door, but when he went to check it was not there. Id.

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Sometime later, Schroeder called his credit card company and reported that he had not

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received the silver he had ordered from the victim. Id. at 2. The company then reversed

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the charge and withdrew the money that had been paid to the victim. Id.

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The victim then contacted Scott Tolstad of the Escondido police department, who

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called a FedEx investigator. Id. The investigator put Tolstad in contact with the FedEx

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delivery person, who remembered making the delivery and said that he could identify the

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person who signed for the package. Id. When Tolstad later showed the delivery person a

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six-pack lineup of DMV photographs—including one photograph of Petitioner and five

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photographs of men with similar features—the delivery person identified Petitioner as the

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man who had signed for the package. Id.

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At trial, the delivery person testified that a week or two after he delivered the silver

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to Petitioner, he made another delivery to the same address, but it “was a totally different

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name.” The first two times he attempted to make the delivery, there was a note on the

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door instructing him to “take it somewhere else.” Id. The delivery person did not feel

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comfortable taking it somewhere else, and attempted to deliver the package to Petitioner

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and Schroeder’s address a third time. Id. This time, the man he had seen sitting in the

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background of the apartment on April 26 opened the door, and the delivery person asked

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to see identification. Id. At that point, “the other gentleman came up and was angry that

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[the delivery person] wouldn’t let him sign for it.” Id. Both men refused to show

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identification and one of them eventually closed the door because the delivery person

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refused to release the package. Id.

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Petitioner, on the other hand, testified that he first encountered the delivery person

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a couple months before April 26, and had three other encounters with him before that

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weekend. Id. He claims that in the first encounter, he asked the delivery person to leave

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his packages at the rental office for the apartment complex and to stop leaving them at his

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door. Id. The delivery person responded that it was “none of [Petitioner’s] effing

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business to tell him how to do his job.” Id. Petitioner claims that the second encounter

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was a “screaming match” and that he told the delivery person he was “really tired of his

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packages coming up missing and seeing these signs saying that [the delivery person]

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delivered something when it was never there.” Id. The delivery person responded that

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delivering packages to the rental office was not his job, and that his job was “to throw it

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there and keep going. He doesn’t care.” Id. On the third encounter, Petitioner claims

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that he complained to the delivery person about a package that never showed up. Id. The

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delivery person said that he had left the package and that Petitioner was ignorant. Id.

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Petitioner called FedEx corporate and discussed the matter with them. Id. He testified

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that he and Schroeder had lost about $10,000 worth of missing items as a result of FedEx

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misplacing their packages. Id.

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Petitioner also presented an alibi that he and Schroeder left to Los Angeles on

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Friday, April 25, 2014, and did not return until Sunday, April 27, 2014. Id. He claims

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they spent the weekend helping their friend Tanya Williams-Mahee buy merchandise to

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sell at swap meets. Id. Williams-Mahee corroborated their story. Id. at 3. However, the

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prosecution called an expert on cellphone records and technology. Id. The investigator

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explained that the cellphone company always knows where a phone is being used

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because cellphones always send and receive signals from cellphone towers. Id. He

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testified that all of the phone calls coming from Petitioner’s phone that weekend

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connected to cellphone towers in Escondido and Temecula, not Los Angeles. Id. In

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surrebuttal, Petitioner claimed that weekend he left his phone with a neighbor who

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needed it to call her son. Id.

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B.

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On March 11, 2015, the San Diego District Attorney’s office filed a complaint

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PROCEDURAL BACKGROUND

charging Petitioner with one count of grand theft of personal property. Lodgment No. 8,

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Dkt. No. 7-14 at 7-9. On June 2, 2015, a jury found Petitioner guilty, id. at 93, and the

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trial court placed him on three years of formal probation,2 including 180 days in Sheriff’s

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custody, id. at 107.

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On February 15, 2016, Petitioner appealed his conviction to the Court of Appeal of

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California, Fourth Appellate District. Lodgment No. 2, Dkt. No. 7-2. He argued the trial

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court: (1) violated his Fourteenth Amendment Right to due process and Sixth

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Amendment Right to a jury trial by instructing the jury that they could convict him on an

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aiding and abetting theory of liability without defining the elements of aiding and

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abetting; (2) violated his Fourteenth Amendment Right to Due Process by instructing the

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jury on a theory of theft by larceny that was legally invalid because the victim neither

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possessed nor owned the property when Petitioner took it; and (3) prejudicially erred by

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Although Petitioner has been released from incarceration, this Court retains jurisdiction over his
habeas petition because Petitioner was on probation at the time this petition was filed, which constitutes
“custody” for purposes of habeas jurisdiction. See Bailey v. Hill, 599 F.3d 976, 979 (9th Cir. 2010)
(“The petitioner must be in custody at the time that the petition is filed, but the petitioner’s subsequent
release from custody does not deprive the federal habeas court of its statutory jurisdiction.”) (internal
citations and quotation marks omitted); Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005)
(“Furthermore, a petitioner is ‘in custody’ for the purposes of habeas jurisdiction while he remains on
probation.”); Sibron v. New York, 392 U.S. 40, 51 (1968) (holding that when further penalties or
“collateral consequences” can be imposed as a result of a conviction, a case is not moot despite a
prisoner’s release from custody).
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admitting hearsay evidence that went to the credibility of one of the government’s

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witnesses. Id. at 25, 37.

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On September 29, 2016, the Court of Appeal affirmed the trial court’s decision.

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Lodgment No. 1, Dkt. No. 7-1. The court concluded that: (1) the failure to instruct on

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aiding and abetting was harmless because there was no evidence that Petitioner was

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ignorant of the plan to steal the silver; (2) although the theft by larceny theory was

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factually invalid, it was harmless because there was no evidence that the jury found him

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guilty solely on the theft by larceny theory; and (3) the trial court acted within its

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discretion by properly admitting hearsay evidence under the business records exception

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to the hearsay rule. Id. at 4-8.

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On November 7, 2016, Petitioner filed a petition for review in the California

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Supreme Court, arguing that: (1) theft by larceny was a legally invalid theory; and (2) the

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trial court erred by instructing the jury on an aiding and abetting theory of liability

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without defining the elements of aiding and abetting. Lodgment No. 5, Dkt. No. 7-5 at

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20, 29. On December 21, 2016, the California Supreme Court summarily denied the

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petition. Lodgment No. 6, Dkt. No. 7-6.

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On April 27, 2017, pursuant to 28 U.S.C. § 2254, Petitioner filed a petition for a

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writ of habeas corpus in this Court on the grounds that: (1) theft by larceny was a legally

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invalid theory that violated his Fourteenth Amendment right to due process; and (2) the

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aiding and abetting jury instructions violated his Fourteenth Amendment right to due

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process and his Sixth Amendment right to a jury trial. Dkt. No. 1 at 6-7.

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On March 26, 2018, Magistrate Judge Crawford issued a Report and

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Recommendation recommending that this Court deny the petition for a writ of habeas

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corpus. Dkt. No. 8. She found that although the state court’s harmlessness decision

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about the aiding and abetting instruction may have been incorrect, it was not objectively

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unreasonable for the Court of Appeal to have found harmless error. Id. at 23. She also

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agreed with the Court of Appeals’ conclusion that the factually invalid theft by larceny

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theory was harmless because the evidence clearly supported that Petitioner was guilty of

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theft by false pretenses. Id. at 18. On April 27, 2018, Petitioner, proceeding pro se, filed

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objections to the Report and Recommendation. Dkt. No. 9.

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II.

STANDARD OF REVIEW
Review of Magistrate Judge’s Report and Recommendation

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A.

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District Court judges must review de novo any part of a magistrate judge’s report

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and recommendation that has been objected to. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.

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72(b)(3). The court may “accept, reject, or modify” the recommendation in whole or in

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part, receive more evidence, or return it to the magistrate judge with instructions. Id. De

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novo review is only required when an objection is made to the report and

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recommendation. Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005); United

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States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc).

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B.

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This petition is governed by the rules set forth in the Antiterrorism and Effective

Review of Habeas Petition

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Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 322 (1997).

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Under AEDPA, a federal court may not grant a habeas petition with respect to any claim

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that was adjudicated on the merits in state court unless that adjudication: (1) resulted in a

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decision that was contrary to, or involved an unreasonable application of, clearly

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established federal law; or (2) resulted in a decision that was based on an unreasonable

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application of the facts in light of the evidence presented at the state court proceeding. 28

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U.S.C. §§ 2254(d)(1)-(d)(2). Clearly established federal law refers to the governing legal

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principles set forth by the Supreme Court at the time the decision was rendered. Lockyer

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v. Andrade, 538 U.S. 67, 71-72 (2003).

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The court may grant relief under the “contrary to” clause if the state court: (1)

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applied a rule that contradicts governing law set forth by the Supreme Court; or (2)

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decided a case differently than the Supreme Court on a set of materially indistinguishable

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facts. Price v. Vincent, 538 U.S. 634, 640 (2003); Williams v. Taylor, 529 U.S. 362, 405

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(2000). The court may grant relief under the “unreasonable application” clause if the

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state court correctly identified the legal principle but incorrectly applied it to the facts of

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the case. Williams, 529 U.S. at 407. The focus in the unreasonable application approach

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is not whether the application was merely incorrect, but whether it was objectively

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unreasonable. Yarborough v. Gentry, 540 U.S. 1, 5 (2003); See Woodford v. Visciotti,

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537 U.S. 19, 24-25 (2002) (holding that a federal habeas court may not issue a writ of

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habeas corpus simply because it concludes the state court applied the law incorrectly). If

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fair-minded jurists could disagree as to whether the decision was reasonable, it is not

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objectively unreasonable, and this Court cannot grant relief. Harrington v. Richter, 562

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U.S. 86, 87-88 (2011).

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Federal habeas courts base their reasoning on the analysis of the highest state court

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to furnish an explanation for its judgment. See Ylst v. Nunnemaker, 501 U.S. 797, 805-06

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(1991). When the state’s highest court does not provide a reasoning for its judgment, the

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federal court “looks through” the unreasoned judgment to the last reasoned state court

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decision. Id.

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III.

DISCUSSION

Petitioner contends that he is entitled to relief because the jury was improperly

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instructed in two ways. See Dkt. No. 1 at 6-7. First, he argues that the trial court erred

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by instructing the jury they could convict him on an aiding and abetting theory of liability

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without defining the requirements of aiding and abetting. Id. at 7. He argues this

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violated his due process rights because the jury could have convicted him without finding

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the necessary intent. Id. at 41-48. Second, he argues that the trial court violated his due

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process rights by instructing the jury that they could convict him of theft by larceny,

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which was a legally invalid theory. Id. at 6. He claims the facts did not support a

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conviction under theft by larceny. Id. at 32-40.

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A.

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Petitioner contends the trial court violated his due process rights by instructing the

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jury they could find him guilty of grand theft as an aider and abettor without defining the

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requirements of aiding and abetting. Dkt. No. 1 at 7. Respondent contends that failure to

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properly instruct on the requirements of aiding and abetting does not state a constitutional

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claim and that the state’s resolution of the issue is not contrary to or an unreasonable

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application of federal law. Dkt. No. 6-1 at 12-18.

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Failure to Instruct on Aiding and Abetting

Here, the trial court instructed the jury regarding Boegeman’s alibi defense with a
modified version of California Instruction No. 3400, which stated:
The People must prove the defendant committed grand theft in violation of
Penal Code section 487(a) as charged in Count 1. The defendant contends he
did not commit this crime and he was somewhere else when the crime was
committed. The People must prove the defendant was present and committed
the crime with which he is charged. The defendant does not need to prove
he was elsewhere at the time of the crime.

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If you have a reasonable doubt about whether the defendant was present
when the crime was committed, you must find him not guilty.

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However, the defendant may also be guilty of grand theft in violation of
Penal Code section 487 [](a) as charged in Count 1 if he aided and abetted or
conspired with someone else to commit that crime. If you conclude that the
defendant aided and abetted or conspired to commit grand theft, then he is
guilty even if he was not present when the crimes were committed.
Lodgment No. 1, Dkt. No. 7-1 at 3-4 (emphasis added).

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In his objection, Petitioner argues that for aiding and abetting, the jury

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should have had to consider: (1) intent about false pretenses; (2) that Petitioner

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received the silverware but claimed [he] didn’t; and (3) that Petitioner withdrew

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the payment even though he received the silverware. Dkt. No. 9 at 2. However,

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these are the overt acts of conspiracy, on which the jury was properly instructed.3

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Because Petitioner proceeds pro se, this Court must construe his objections

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liberally. See Tritz v. U.S. Postal Serv., 721 F.3d 1133, 1139 (9th Cir. 2013). This

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Court assumes Petitioner intended to refer to the elements of aiding and abetting4

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because he characterized them as such. See Dkt. No. 9 at 2 (“For a conspiracy of

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aiding and abetting, I understand the jury should have had to consider three things

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that The People had to show.”). Accordingly, this Court construes Petitioner’s

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objection to object to the aiding and abetting jury instruction.

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Constitutional Violation

The due process clause requires that a criminal conviction be based upon proof

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beyond a reasonable doubt of every fact necessary to constitute the crime. In re Winship,

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397 U.S. 358, 364 (1970). Failure to submit an essential element to the jury relieves the

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defense of its burden to prove every element of the crime beyond a reasonable doubt.

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United States v. Perez, 116 F. 3d 840, 846 (9th Cir. 1997). A defendant’s due process

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rights are “unquestionably implicated” when his purported conviction rests on anything

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less than a finding of guilt as to all the elements of the crime. United States v. Alferahin,

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433 F.3d 1148, 1157 (9th Cir. 2006).

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Here, there was a constitutional violation because it was possible that the jury
could have found Petitioner guilty of aiding and abetting without finding the necessary

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“The trial court’s conspiracy instruction informed the jury that to prove [Petitioner] was guilty of theft
as a member of a conspiracy, the People had to prove that [Petitioner] ‘intended to and did agree with
David Schroeder to commit theft by false pretenses[,]’ and that [Petitioner] and Schroeder ‘committed at
least one of the following overt acts to accomplish theft by false pretenses: (1) Ordered silverware from
[the victim] without intent to pay; (2) Received the silverware but claimed never to have received it; (3)
Withdrew payment for the silverware despite having received it.’” Lodgment No. 1, Dkt. No. 7-1 at 4
n.4.
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The elements of aiding and abetting are: “(1) knowledge of the unlawful purpose of the perpetrator; (2)
intention or purpose of committing, encouraging, or facilitating the commission of the offense; and (3)
by act or advice aiding, promoting, encouraging, or instigating, the commission of the crime. People v.
Beeman, 35 Cal. 3d 547, 561 (1984); see CALCRIM No. 401.” Lodgment No. 1, Dkt No. 7-1 at 4 n.3.
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intent. The aiding and abetting instructions did not instruct the jury that in order to

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convict Petitioner of aiding and abetting, it needed to find he had the necessary intent.

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Lodgment No. 1, Dkt. No. 7-1 at 3-4. As a result, the prosecution was relieved of its

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burden to prove every element of aiding and abetting, depriving the jury of its fact-

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finding duty which thereby violates a defendant’s due process right to have each element

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found beyond a reasonable doubt. See Perez, 116 F. 3d at 840 (“Failure to instruct on

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every element, is, therefore, constitutional error.”). Therefore, it is possible Petitioner

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was convicted on something less than a finding of guilt on all elements of the crime, and

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his due process rights are “unquestionably implicated.” See Alferahin, 433 F.3d at 1157.

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2.

Harmless Error

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Recognizing that failure to define the elements of aiding and abetting was a

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constitutional violation,5 the state appellate court applied Chapman to determine whether

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the error was “harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S.

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18, 24 (1967); see Lodgment No. 1, Dkt. No. 7-1 at 4. If there was a reasonable

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possibility that the trial error complained of might have contributed to the conviction,

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then the court cannot say the error was harmless beyond a reasonable doubt. Chapman,

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386 U.S. at 23. While some rights are so basic to a fair trial that they can never be treated

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as harmless, not all trial errors that violate the Constitution “automatically call for

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reversal.” Id. While failing to instruct on the reasonable doubt standard affects all of the

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jury’s findings and is thus subject to automatic reversal, omission of an element of aiding

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and abetting in jury instructions does not always render a trial completely unfair and is

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subject to the harmlessness test. See Neder v. United States, 527 U.S. 1, 10, 12 (1999).

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In applying Chapman, the state appellate court found the error was harmless
beyond a reasonable doubt because: (1) there was no reasonable probability that the

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Both the state appellate court and the magistrate judge acknowledged that the aiding and abetting
instruction was a constitutional violation. See Lodgment No. 1. Dkt. No. 7-1 at 4. See also Dkt. No. 8
at 21.
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erroneous aiding and abetting instruction contributed to the verdict; and (2) no reasonable

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juror properly instructed on the elements of aiding and abetting would have found that

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Petitioner lacked the necessary intent to be found guilty of aiding and abetting.

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Lodgment No. 1, Dkt. No. 7-1 at 4. The magistrate judge, on the other hand, indicated

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that it would likely have found that the error was not harmless beyond a reasonable doubt

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if it were to have been directly applying Chapman. Dkt. No. 8 at 23. She reasoned that

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because the trial court did not define what aiding and abetting meant in a legal sense, it is

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possible that the jury may have convicted Petitioner of aiding and abetting without

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finding the necessary intent. Id. She also reasoned that the possibility that the jury

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convicted Petitioner on an aiding and abetting theory was compounded by the fact that

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the aiding and abetting instructions were included in the alibi instructions and that the

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jury sent a note during deliberations asking to have the alibi testimony read back to them.

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Id. This, she argued, served to highlight the aiding and abetting instruction to the jury,

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rather than render it inapplicable as the state court suggested. Id.

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This Court agrees with the state appellate court that there was no reasonable

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probability that the absence of an aiding and abetting instruction contributed to the

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verdict. The prosecution’s theory of the case was conspiracy, and the trial court correctly

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instructed the jury on necessary mental state and acts to support a finding that Boegeman

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was guilty of theft by false pretenses as a member of a conspiracy with Schroeder.

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Lodgment No. 1, Dkt. No. 7-1 at 4. The prosecutor did not argue or even mention aiding

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and abetting to the jury. Id. The parties collectively presented the jury with two

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possibilities––either Petitioner conspired with Schroeder to steal the silver or he was

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entirely innocent. Given the singular focus on a conspiracy theory, there was no

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reasonable probability that a failure to instruct on aiding and abetting contributed to the

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verdict.

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Moreover, based upon the evidence presented to the jury, no reasonable juror
properly instructed on the elements of aiding and abetting would have found that
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Petitioner did not knowingly aid Schroder’s theft of silver by false pretenses. The

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evidence established that Schroeder ordered silver with a Visa card. Lodgment No. 1,

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Dkt. No. 7-1 at 1-2. The FedEx delivery person testified that when he delivered the silver

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to Petitioner’s apartment, Petitioner falsely identified himself as Schroeder and signed for

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the package. Id. at 1-2. It is unrebutted that after the delivery of the silver, Schroeder

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reported the silver as undelivered. The jury also learned that Petitioner had shared with

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his neighbor the criminal scheme of ordering silver and then falsely claimed that it had

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not been delivered. Id. at 1. The theory of the defense was that Petitioner had an alibi at

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the time of the delivery in that he was in Los Angeles at the time of the offense and could

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not have committed the crime given his location. Id. at 3-4. There was no evidence to

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support a finding that Petitioner was ignorant of the plan to steal the silver or that

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Petitioner did not intend to commit, encourage or facilitate the theft by his actions.

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Accordingly, the Court finds that if it were to have applied Chapman directly that

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it would have determined that the failure to define aiding and abetting was harmless

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beyond a reasonable doubt. See Chapman, 386 U.S. at 23.

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3.

Unreasonable Application of Clearly Established Federal Law

Even if this Court found that the failure to define aiding and abetting was not

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harmless, it nevertheless may not grant relief unless the state appellate court’s

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harmlessness determination itself was objectively unreasonable. Davis v. Ayala, 135 S.

20

Ct. 2187, 2199 (2015). Federal habeas relief is precluded as long as “‘fair[-]minded

21

jurists could disagree’ on the correctness of the state court’s decision.” Harrington v.

22

Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664

23

(2004)). Even if a federal habeas court disagrees with a state court determination, it may

24

not grant relief if the state court’s decision was not objectively unreasonable. See Fong

25

Soto v. Ryan, 760 F.3d 947, 980 (9th. Cir. 2014) (citing Edwards v. Lamarque, F.3d

26

1121, 1128-29 (9th. Cir. 2007). See also Harrington, 562 U.S. at 131 (“As a condition

27

for obtaining habeas corpus from a federal court, a state prisoner must show that the state

28

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court's ruling on the claim being presented in federal court was so lacking in

2

justification that there was an error well understood and comprehended in existing law

3

beyond any possibility for fairminded disagreement.”) (emphasis in original).

4

Here, this Court cannot say the state appellate court’s decision finding harmless

5

error was objectively unreasonable. Given the amply supported conclusions that

6

Petitioner conspired to commit grand theft and would have been convicted of aiding and

7

abetting even if the jury had been properly instructed, fair-minded jurists could disagree

8

on the correctness of the state appellate court’s harmlessness decision. Accordingly, this

9

Court cannot say that the decision finding harmless error was objectively unreasonable.

10
11

See Yarborough, 541 U.S. at 652.
4.

Prejudice

12

Even if the harmlessness decision were objectively unreasonable, habeas

13

petitioners are not entitled to relief unless they can show the error resulted in “actual

14

prejudice,” i.e. that it had a “substantial and injurious” effect on the jury’s verdict.

15

Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). See also Frye v. Pliler, 551 U.S.

16

112, 120 (2007) (“[I]n § 2254 habeas proceedings a [federal] court must assess the

17

prejudicial impact of constitutional error in a state-court criminal trial under the

18

‘substantial and injurious effect’ standard set forth in Brecht . . . whether or not the state

19

appellate court recognized the error and reviewed it under the ‘harmless beyond a

20

reasonable doubt’ standard set forth in Chapman.”). A federal habeas court must grant

21

relief if it is in “grave doubt” about whether the error resulted in actual prejudice. O’Neal

22

v. McAninch, 513 U.S. 432, 435 (1995). The key inquiry in Brecht is whether the entire

23

trial process was rendered fundamentally unfair. See Brecht, 507 U.S. 619; see also

24

Murtishaw v. Woodford, 255 F.3d 926, 971 (2001) (holding that instructional error can

25

form the basis for federal habeas relief only if it is shown that “the ailing instruction by

26

itself so infected the entire trial process that the resulting conviction violates due

27

process.”). “The burden of demonstrating that an erroneous instruction was so

28

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prejudicial that it will support a collateral attack on the constitutional validity of a state

2

court's judgment is even greater than the showing required to establish plain error on

3

direct appeal.” Henderson v. Kibbe, 431 U.S. 145, 154 (1977). The ailing instruction

4

must not be judged in isolation, but considered in the context of the instructions and trial

5

record as a whole. Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v.

6

Naughten, 414 U.S. 141, 147 (1973)). In addition, an “omission, or an incomplete

7

instruction, is less likely to be prejudicial than a misstatement of the law.” Henderson,

8

431 U.S. at 155 (emphasis added).

9

Here, Petitioner has not established that any instructional omission had a

10

substantial or injurious effect on the jury’s verdict. See Brecht, 507 U.S. at 623. The

11

evidence that Petitioner knew about and participated in the theft of the silver was strong.

12

See Lodgment No. 1, Dkt. No. 7-1 at 1-3. Given the strength of the evidence that

13

Petitioner knew about and participated in the theft by false pretenses of the silver

14

flatware, the jury could have found that Petitioner had the necessary intent had they been

15

properly instructed on aiding and abetting. Therefore, given that the jury instructions and

16

trial record as a whole indicate Petitioner could have been convicted regardless of any

17

error in instructions, this Court is not in “grave doubt” about the effects of the aiding and

18

abetting instruction. See O’Neal, 513 U.S. at 435.

19

B.

20

Petitioner does not specifically object to the magistrate judge’s Report and

Theft by Larceny Theory

21

Recommendation with regard to the theft by larceny theory. See Dkt. No. 9. He does

22

argue, however, that “the jury did not receive full instructions that mattered.” Dkt. No. 9

23

at 3. Because Petitioner proceeds pro se, his objections must be liberally construed. See

24

Tritz v. U.S. Postal Serv., 721 F.3d 1133, 1139 (9th Cir. 2013). Accordingly, this Court

25

construes the general objection to the lack of “full instructions that mattered” to object to

26

the theft by larceny portion of the Report and Recommendation. In his Petition,

27

Petitioner argued that the jury should not have been instructed on theft by larceny

28

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because, under the facts of the case, he could not have been convicted of theft by larceny.

2

Pet., Dkt. No. 1 at 32-40. Respondent contends that Petitioner does not state a federal

3

constitutional claim because the error was one of state and not federal law. Answer, Dkt.

4

No. 6-1 at 12-18. Respondent also contends that the state court’s decision that the error

5

was harmless was reasonable. Id.

6
7

1.

Factual Invalidity

Legally invalid theories incorrectly describe the elements of a crime or burden of

8

proof. See Yates v. United States, 354 U.S. 298 (1957); Hedgpeth v. Pulido, 555 U.S. 57

9

(2008). See also People v. Perez, 35 Cal. 4th 1219, 1233 (2005) (A legally invalid theory

10

is one which “fails to come within the statutory definition of the crime.”). Factually

11

invalid theories are those that are not supported by the evidence presented at trial. Griffin

12

v. United States, 502 U.S. 46, 56 (1991). See also People v. Guiton, 4 Cal. 4th 1116,

13

1129 (defining factual invalidity in an instruction to be one which as an instructional

14

error that “correctly stat[es] a principle of law,” but “has no application to the facts of the

15

case.”). Under clearly established federal law, while it is preferable for a court to remove

16

from the jury’s consideration a factually invalid theory of guilt, the refusal to do so does

17

not provide an independent basis for reversing an otherwise valid conviction. Griffin v.

18

United States, 502 U.S. 46, 60 (1991) (explaining that when jurors are presented with a

19

legally inadequate theory, there is no reason to believe their own knowledge and

20

expertise will save them from the error, but when a jury is presented with a factually

21

inadequate theory, the opposite is true because they are “well-equipped” to analyze the

22

evidence). Further, when a jury returns a guilty verdict on an indictment charging

23

several acts, the verdict stands if the evidence is sufficient with respect to any one of the

24

acts charged. Id. at 56-57 (citing Turner v. United States, 396 U.S. 398, 420 (1970)).

25

Reviewing these principles as established in Griffin, the California Supreme Court has

26

held that the failure to remove a factually unsupported theory is not an error that violates

27

the federal Constitution and is an error of state law. People v. Guiton, 4 Cal. 4th 1116,

28

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1130 (1993) (stating that a factually invalid instruction “does not appear to be of federal

2

constitutional dimension”). Federal habeas relief is not available for errors of state law.

3

Estelle v. McGuire, 504 U.S. 62, 71-72 (1991).

4

Here, the theft by larceny theory was factually and not legally invalid. The theft by

5

larceny instruction did not fail to come within the statutory definition of the crime.6

6

Rather, it was not supported by the facts at trial. See Lodgment No. 1, Dkt. No. 7-1 at 1-

7

3. During closing arguments, the prosecutor specifically told the jury that the theory that

8

was supported by the evidence was theft by false pretenses. Id. at 7 (“Thus, the

9

prosecutor essentially admitted . . . that the theory of theft by larceny was factually

10

inadequate.”). Moreover, a key difference between the two theories presented—theft by

11

false pretenses and theft by larceny—is that theft by larceny requires a “trespassory

12

taking” while theft by false pretenses involves a consensual transfer of title. People v.

13

Williams, 57 Cal. 4th 776, 788 (2013). Put another way, theft by larceny requires that a

14

defendant carry away another person’s property without that person’s permission, while

15

theft by false pretenses requires that a defendant take possession and title of another’s

16

property with that person’s permission, and that the permission was gained by false or

17

fraudulent representations.7 See id. Therefore, if theft by false pretenses is completed by

18
19
20
21
22
23
24
25
26
27
28

The theft by larceny instructions stated that, “To prove that a defendant is guilty of [theft by larceny],
the People must prove that, [¶] 1. The defendant took possession of property owned by someone else; [¶]
2. The defendant took [the] property without the owner’s or owner’s agent’s consent; [¶] When the
defendant took the property he intended to deprive the owner of it permanently or to remove it from the
owner or owner’s agent’s possession for so extended a period of time that the owner would be deprived
of a major portion of the value or enjoyment of the property; [¶] 4. The defendant moved the property,
even a small distance, and kept it for any period of time, however brief.” Lodgment No. 1; Dkt. No 7-1
at 5.
7
The theft by false pretenses instructions stated that, “To prove the defendant is guilty of this crime, the
People must prove that: [¶] 1. The defendant knowingly and intentionally deceived a property owner or
the owner’s agent by false or fraudulent representation or pretense; [¶] 2. The defendant did not
intending to persuade the owner or the owner’s agent to let the defendant or another person take
possession and ownership of the property; [¶] AND [¶] 3. The owner let the defendant or another person
take possession and ownership of the property because the owner or owner’s agent relied on the
representation or pretense. Lodgment No. 1, Dkt. No. 7-1 at 5.
6

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consensual transfer of title, a defendant cannot then commit theft by larceny by a

2

nonconsensual or trespassory taking. See People v. Beaver, 186 Cal. App. 4th 107, 121

3

(2010) (“The present matter did not involve a taking of property from another without his

4

consent . . . This was theft by false pretenses, not larceny.”) Here, under the law

5

governing shipment contracts, title was transferred from the victim to Schroeder when the

6

victim shipped the silver. See Cal. Com. Code § 2401(2); Lodgment No. 1, Dkt. No. 7-1

7

at 6 (“There was no evidence at trial indicating the contract between [the victim] and

8

Schroeder for the purchase of [the] silver was anything other than a standard shipping

9

contract, under which title to the silver passed to Schroeder when the [victim] shipped the

10

silver.”). Accordingly, theft by false pretenses was complete when the victim shipped the

11

silver, and the crime could not become theft by larceny when a perpetrator of the theft by

12

false possession later took possession of it. See Beaver, 186 Cal. App. 4th at 121.

13

Therefore, theft by larceny was a factually invalid theory and constituted an error of state

14

law. See Guiton, 4 Cal. 4th at 1130.

15

Consequently, the state appellate court’s decision that the theft by larceny theory

16

was factually invalid but harmless, was not contrary to or an unreasonable application of

17

clearly established federal law. The decisions that the erroneous instruction was factually

18

invalid and that the error was harmless were both consistent with Griffin. See Griffin,

19

502 U.S. at 56. The larceny instruction did not incorrectly state the elements of the crime

20

or the burden of proof. See Lodgment No. 1, Dkt. No. 7-1 at 7. Rather, the facts

21

presented at trial did not support a conviction for larceny because the victim consensually

22

transferred the title to the silver under false pretenses. See Beaver, 186 Cal. App. 4th at

23

121. The victim testified that he and Schroeder had an extensive conversation about the

24

silver, Schroeder paid for the silver, and the victim shipped it to him. Lodgment No. 1,

25

Dkt. No. 7-1 at 1-2. Further, there is no affirmative indication in the record that the

26

conviction was based solely on the theft by larceny instruction. See id. at 1-3. The

27

neighbor testified that Petitioner told him he could not sign for a package, claim it was

28

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lost, and get a refund or replacement product. Id. at 1. The victim claimed he had an

2

extensive conversation with Schroeder about the silver flatware. Id. They agreed upon a

3

price, the victim successfully charged a credit card Schroeder gave him, and sent the

4

flatware via FedEx to Schroeder. Id. at 1-2. The FedEx delivery person identified

5

Petitioner as the one who signed for the package, and cellphone evidence placed

6

Petitioner in the San Diego area on the weekend the package was delivered. Id. at 2-3.

7

Accordingly, there was sufficient evidence to demonstrate that Petitioner was convicted

8

on the theft by false pretenses theory and not on the theft by larceny theory.

9

Because the instructions were factually and not legally invalid, the error was one of

10

state law only, and federal habeas relief is not available for errors of state law. Guiton, 4

11

Cal. 4th at 1130 (factual invalidity is an error of state law); Estelle, 502 U.S. at 71 (“[I]t is

12

not the province of a federal habeas court to reexamine state-court determinations on

13

state-law questions. In conducting habeas review, a federal court is limited to deciding

14

whether a conviction violated the Constitution, laws, or treaties of the United States.”).

15

See also Fernandez v. Montgomery, 182 F. Supp. 3d 991, 1011 (N.D. Cal. 2016) (No

16

clearly established federal law “prohibits a trial court from instructing a jury with a

17

factually inapplicable but accurate statement of state law.”); Acajabon v. Espinoza, No.

18

116CV00183MJSHC, 2017 WL 5608070, at *13 (E.D. Cal. Nov. 21, 2017).

19
20
21
22

Accordingly, the factually invalid theft by larceny instruction does not rise to the
level of a federal constitutional claim.
2.

Prejudice

Even if the harmlessness decision were objectively unreasonable and were an error

23

of federal law that this Court could address, habeas petitioners are not entitled to relief

24

unless they can show the error resulted in “actual prejudice,” i.e. that it had a “substantial

25

and injurious” effect on the jury’s verdict. Brecht, 507 U.S. at 637-38; see also Frye, 551

26

U.S. at 120 (“in § 2254 habeas proceedings a federal court must assess the prejudicial

27

impact of constitutional error in a state-court criminal trial under the ‘substantial and

28

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1

injurious effect’ standard set forth in Brecht whether or not the state appellate court

2

recognized the error and reviewed it under the ‘harmless beyond a reasonable doubt’

3

standard set forth in Chapman.”).

4

Here, Petitioner would not be entitled to relief even if the erroneous theft by

5

larceny instruction were objectively unreasonable and reviewable by this Court because

6

the instruction did not have a substantial and injurious effect on the jury’s verdict. See

7

Brecht, 507 U.S. at 637-38. The evidence clearly supported the conclusion that Petitioner

8

was guilty of theft by false pretenses. See Lodgment No. 1, Dkt. No. 7-1 at 1-3. The

9

neighbor testified that Petitioner told him he could order items online, claim they were

10

not delivered, and get a replacement or refund. Id. at 1. The purpose of this was to get

11

one’s money back and keep the item without paying for it. Lodgment No. 7, vol. 3, Dkt.

12

No. 7-9 at 26-27. The victim testified that he had an extensive conversation with

13

Schroeder, charged a card given to him by Schroeder, and shipped the silver to

14

Schroeder. Lodgment No. 1, Dkt. No. 7-1 at 1-2. The FedEx delivery person testified

15

that he delivered the silver to Schroder’s apartment and that Petitioner claimed he was

16

Schroeder and signed for the package. Id. at 2. Although Petitioner testified that he was

17

in Los Angeles the weekend the package was delivered, the prosecution presented

18

cellphone evidence that placed Petitioner’s cellphone in the San Diego area that weekend.

19

Id. at 2-3.

20

Moreover, even if the theft by larceny instruction were erroneous, it did not by

21

itself affect the entire trial such that due process was violated. The theft by larceny

22

instruction required the jury to find the defendant took the property without the owner’s

23

consent, while the theft by false pretenses instruction required the jury to find that the

24

owner gave the property to the defendant while relying on a false representation made by

25

the defendant. Id. at 5. The jury was also instructed that in order to convict, they were

26

required to find that the prosecution had proven every element of the offenses beyond a

27

reasonable doubt. Lodgment No. 14, Dkt. No. 7-14 at 58. The evidence presented at trial

28

20
3:17-cv-00861-GPC-KSC

1

established that the victim consensually transferred title to the silver to Schroeder under

2

the false belief that Schroeder would pay for it and not that Petitioner took it without the

3

victim’s consent. See Lodgment No. 1, Dkt. No. 7-1 at 1-3. The jury was “well-

4

equipped” to assess the facts presented at trial and conclude that that the larceny

5

instruction was not applicable. See Griffin, 502 U.S. at 60. Thus, considering the

6

instructions as a whole, this Court is not in “grave doubt” about the effect of any error on

7

Petitioner’s trial. See O’Neal, 513 U.S. at 445.

8
9

IV.

CERTIFICATE OF APPEALABILITY

Under Rule 11 of the Federal Rules Governing section 2254 cases, this Court must

10

“issue or deny a certificate of appealability when it enters a final order adverse to the

11

applicant.” If this Court does not issue a certificate of appealability, this decision may

12

not be appealed, 28 U.S.C. § 2253(c)(1)(A), and this Court may not issue a certificate of

13

appealability unless Petitioner makes a “substantial showing of the denial of a

14

constitutional right,” 28 U.S.C. § 2253(c)(1)(B)(2). To prove a substantial showing of

15

denial of a constitutional right, Petitioner must demonstrate that “reasonable jurists would

16

find the district court’s assessment of the constitutional claims debatable or wrong.”

17

Slack v. McDonald, 529 U.S. 473, 484 (2000).

18

Here, Petitioner does not make a substantial showing of the denial of a

19

constitutional right, and it is unlikely that reasonable jurists would find this Court’s

20

assessment debatable or wrong. Therefore, this Court DENIES a certificate of

21

appealability.

22
23

CONCLUSION
For the foregoing reasons, this Court ADOPTS the Magistrate Judge’s

24

Report and Recommendation, DENIES Petitioner’s Habeas Petition, OVERRULES

25

Petitioner’s Objections, and DENIES a Certificate of Appealability.

26

IT IS SO ORDERED.

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Dated: June 27, 2018

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