1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RUDY DELEAL, Case No.: 19-cv-00522-MMA-NLS
12 Petitioner, REPORT AND 13 v. RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: 14 KEN CLARK, Warden, DENYING PETITION FOR WRIT 15 Respondent. OF HABEAS CORPUS
16 [ECF No. 1] 17 18 I. INTRODUCTION 19 Petitioner Rudy Deleal (“Petitioner” or “Deleal”), a state prisoner, has filed a 20 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his San 21 Diego Superior Court conviction for driving under the influence of a drug causing injury 22 in case number SCD265087. (ECF No. 1 at 2.) Respondent filed an answer, arguing that 23 Petitioner’s petition fails on the merits, and lodged the court records. (ECF No. 6; ECF 24 No. 7 (“Lodgment”).) Petitioner was provided with the opportunity to file a traverse by 25 July 10, 2019, (ECF No. 4 at 2,) but has failed to do so to date. After reviewing the 26 parties’ submissions and the lodgments, and for the reasons discussed below, the Court 27 RECOMMENDS the Petition be DENIED. 28 /// 1 II. FACTUAL BACKGROUND 2 The following facts are taken from the California Court of Appeal opinion:1 3 4 Megan, a stay-at-home mother and part-time model, lived with her two children and their father in an apartment in San Diego, California. On an 5 evening in December 2015, Megan went for a walk on University Avenue to 6 a nearby store.
7 Around the same time, Jesus Contreras was driving westbound on 8 University Avenue. Contreras observed a sport utility vehicle (SUV) driving two cars in front of him. The SUV was zigzagging and swerving between 9 lanes. Contreras reached for his phone to call 911 because he believed the 10 driver of the SUV was under the influence. Contreras saw the SUV slow down and move to the right as if it was going to park. The SUV then 11 accelerated onto the sidewalk and crashed near a recycling center. 12 Shawn Johnson was at a car wash on University Avenue when he 13 heard tires screeching and a thumping sound of a vehicle hitting something. 14 Johnson turned and saw Megan fly into the air, land on the ground, and roll over. The vehicle then crashed and stopped. Johnson took a picture of the 15 vehicle and called 911. 16 San Diego Police Officer Wilton Garbutt responded to the scene of 17 the accident. When he arrived, Officer Garbutt saw that a SUV had collided 18 with a traffic sign and Megan was lying in the parking lot of the car wash. Megan was unconscious and bleeding from her head. Deleal was slouched in 19 the driver’s seat of the SUV. He was unconscious. 20 Officer Garbutt knocked on the window of the SUV several times, but 21 Deleal did not respond. Officer Garbutt broke the passenger window of the 22 SUV to unlock the doors. The keys to the SUV were still in the ignition. Officer Garbutt placed the car in park and took the keys out. Deleal was still 23 unconscious when paramedics arrived approximately five minutes later. 24 25 1 This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner 26 may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); see also Parke v. Raley, 506 U.S. 20, 35-36 27 (1992) (holding findings of historical fact, including inferences properly drawn from those facts, are 28 entitled to statutory presumption of correctness). Here, Petitioner does not raise a challenge to any of 1 wash. TOhffei cveird eMo ischhoawele Gd othttefr SieUdV o bctoaminmedi tstiunrgv eai ltlraanfcfiec vviidoeloat iforonm b yth me ocvairn g 2 unsafely to the right, leaving the paved portion of the roadway, and striking 3 Megan who was walking on the sidewalk. The SUV came to a stop when it crashed into a street sign. 4
5 Paramedics transported Megan and Deleal to the hospital. Megan did not remember being struck by a vehicle. When she woke up in the hospital, 6 she was in extreme pain and was having difficulty breathing. She had a large 7 hematoma and contusion near he left eyebrow. She was missing two teeth and a third was partially broken. Megan had a swollen lip, abrasions on her 8 hands, and blood in her mouth. A scan revealed that Megan had bleeding in 9 her brain and had fractured her pelvis. After she left the hospital, Megan had to learn to walk again and undergo speech therapy. At the time of trial, 10 Megan still had memory loss, pain throughout her body, and migraines. 11 Dr. Mark Cannis treated Deleal. When he first came into the hospital, 12 Deleal was “poorly responsive,” his eyes were closed, and he did not 13 respond to questions. He was snoring and breathing slowly. Dr. Cannis performed numerous blood tests on Deleal. The tests were negative for 14 alcohol. A urine test showed positive for methamphetamine, amphetamine, 15 marijuana, and a tricyclic antidepressant medication. Subsequent laboratory tests on Deleal’s blood samples confirmed methamphetamine at 254 16 nanograms per milliliter and amphetamine at 22 nanograms per milliliter. 17 Dr. Cannis testified that initial symptoms of methamphetamine 18 intoxication include agitation, hyperactivity, delirium, and delusional 19 behavior. The person may also have hallucinations or a fast heart rate. As the methamphetamine wears out of a person’s system, the person typically has a 20 “profound degree of somnolence and fatigue and tiredness. It’s as if they 21 haven’t – well, in some cases it is because they haven’t slept for days.” Dr. Cannis had seen many patients who had experienced seizures from 22 marijuana use. In Dr. Cannis’s opinion, a combination of methamphetamine 23 and marijuana could increase the possibility of seizures.
24 Based on his training and experience, Dr. Cannis concluded that 25 Deleal had a provoked seizure from methamphetamine and sympathomimetic abuse. Dr. Cannis explained that sympathomimetic refers 26 to a substance or drug that causes a person to act in an agitated, delirious, or 27 adrenaline provoked state. According to Dr. Cannis, it was possible that Deleal’s seizure was only coincidentally associated with his positive 28 1 tporxoivcookloegdy s eriezsuurlets f. rHomow mevetehra, mit pwhaest ammuicnhe manodr es ylimkeplayt hthoamt iDmeelteica ld hraudg sa. In 2 reaching this conclusion, Dr. Cannis considered that Deleal did not have 3 epilepsy or other factors that could cause seizures.
4 Ola Bawardi, a forensic toxicologist, testified that a person with a 5 blood result of methamphetamine at a level of 254 nanograms per milliliter can be impaired for purposes of driving. For example, the person may drive 6 too fast, drive erratically, have difficulty maintaining his lane of travel, and 7 may not pay attention to things on the roadway. If a driver swerves in and out of traffic, makes an altered movement to the right, accelerates up a curb, 8 strikes an individual, and then rolls to a rest, the driving pattern can be 9 consistent with somebody who is under the influence of methamphetamine.
10 Bawardi testified that methamphetamine can cause a person’s body to 11 “crash,” when his body becomes so fatigued that it can no longer produce the stimulating effect typically associated with the drug. During the crash 12 phase, the person can appear almost drunk and is extremely fatigued, 13 drowsy, and difficult to wake up. However, the person could still have internal signs of stimulation such as elevated blood pressure and heart rate. 14 According to Bawardi, although a person crashing from methamphetamine 15 may be difficult to wake up, he or she would not experience a prolonged period of unconsciousness. Unconsciousness for a period of several hours 16 would be inconsistent with a person crashing from methamphetamine use. 17 Defense 18 Dr. Charles O’Connell, an emergency room physician and medical 19 toxicologist, testified that methamphetamine rarely causes seizures. In general, it only happens in cases of massive overdose. According to Dr. 20 O’Connell, Deleal’s methamphetamine concentration of 254 nanongrams 21 per milliliter is at the very low end of recreational abuse. In order for a seizure to occur, a person would need a significantly higher drug 22 concentration. 23 Dr. O’Connell reviewed Deleal’s medical records and investigative 24 reports regarding the accident. Dr. O’Connell testified that Deleal’s level of 25 deep sedation was not consistent with a methamphetamine “crash” because a person coming down from a methamphetamine high would wake up from 26 prodding and stimulation. Additionally, it is not consistent with 27 methamphetamine intoxication for a person to be unconscious at the wheel of a car after the use of the drug. In Dr. O’Connell’s opinion, Deleal was not 28 1 significantly intoxicated by methamphetamine at the time of the accident. 2 (Lodgment No. 6 at 2-6.) After an independent review of the trial record, the Court 3 concludes that the California Court of Appeal’s opinion represents an accurate 4 summary of the record. (See Lodgment No. 1). 5 III. PROCEDURAL BACKGROUND 6 A. Trial Court Proceedings 7 Petitioner appears to have been initially charged on April 6, 2016.2 (See Lodgment 8 No. 2 at 7.) Petitioner was charged with driving under the influence of drugs causing 9 injury. (Id. at 8); see Cal. Veh. Code § 23153(e) (2015). The prosecution also alleged 10 “that in the commission and attempted commission of the offenses, [Petitioner] 11 personally inflicted great bodily injury upon . . . ANDERSON,” within the meaning of 12 Cal. Penal Code §§ 1192.7(c)(8) and 12022.7(a). (Lodgment No. 2 at 8.) 13 On June 6, 2016, a jury convicted Petitioner of driving under the influence of drugs 14 causing injury and found true the accompanying allegations. (Id. at 118-119, 121.) On 15 September 19, 2016, the trial court sentenced Petitioner to a total of 5 years in state 16 prison. (Lodgment No. 1-7 at 633, 635; Lodgment No. 2 at 91.) Petitioner’s sentence was 17 comprised of a middle term of two years for causing injury while driving under the 18 influence of a drug and a consecutive sentence of three years for personally inflicting 19 great bodily injury under Cal. Penal Code § 12022.7(a). 3 (See Lodgment No. 1-7 at 20 635:19-26; Lodgment No. 2 at 48, 91.) 21 /// 22 /// 23 24 2 The “Complaint-Felony” in Lodgment No. 2 includes several dates on it. The date “APR 0 6 2016” 25 appears in large, bolded font on the first page of the complaint. (Lodgment No. 2 at 7.) Another date, “2016 Jan 14” also appears on the same page. (Id.) Additionally, the “Declaration in Support of Arrest 26 Warrant” was stamped on “2016 Jan 21,” but was signed “on this 7th day of January 2016.” (Id. at 10, 13.) 27 3 It is not clear from the record what happened to the additional enhancement under Cal. Penal Code § 28 1192.7(c)(8). The jury found the allegation associated with § 1192.7(c)(8) true, but it does not appear in 1 B. Direct Appeal 2 On October 25, 2016, Petitioner filed for appeal. (Lodgment No. 2 at 92.) In his 3 direct appeal, Petitioner claimed that his conviction should be reversed on the ground that 4 there was insufficient evidence to find him guilty of driving under the influence of a drug 5 and that the trial court erred by denying him probation. (Lodgment No. 3 at 31, 38.) 6 Petitioner argued that aside from an eyewitness’s testimony of his erratic driving pattern, 7 “there was no other credible showing that appellant was under the influence of a drug 8 while he was driving.” (Lodgment No. 3 at 34.) Petitioner further argued that the failure 9 of the prosecution’s expert witnesses to “opine that appellant was under the influence of 10 methamphetamine” along with other inconsistencies in the expert testimony meant that 11 “there [wa]s insufficient evidence, as a matter of law, to support the conviction.” 12 (Lodgment No. 3 at 34, 36–37.) On September 22, 2017, the California Court of Appeals 13 rejected petitioner’s argument stating that “[b]ased on the record before us, the jury’s 14 finding that Deleal was driving while under the influence was not based on speculation or 15 conjecture. While there was some testimony that may have contradicted the jury’s 16 finding, there was ample evidence to support the finding.” (Lodgment No. 6 at 9–10.) 17 On November 1, 2017, Petitioner sought review from the California Supreme 18 Court. (ECF No. 1 at 3.) On review, Petitioner presented the same issues that he had 19 raised with the California Court of Appeals. (See Lodgment No. 7.) On December 13, 20 2017, the California Supreme Court denied petitioner’s petition for review without 21 further comment. (Lodgment No. 8.) 22 C. Federal Habeas Proceedings 23 On March 19, 2019, Petitioner filed the instant federal petition for writ of habeas 24 corpus in this Court. (ECF No.1 at 1.) 25 IV. STANDARD OF REVIEW 26 This petition is governed by the provisions of the Antiterrorism and Effective 27 Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320 (1997). 28 Under AEDPA, a habeas petition will not be granted unless the adjudication: “(1) 1 resulted in a decision that was contrary to, or involved an unreasonable application of 2 clearly established federal law,” 28 U.S.C. § 2254(d)(1), “or (2) resulted in a decision 3 that was based on an unreasonable determination of the facts in light of the evidence 4 presented at the state court proceeding.” 28 U.S.C. § 2254(d)(2); Early v. Packer, 537 5 U.S. 3, 8 (2002) (quoting 28 U.S.C. §2254(d)(1); § 2254(d)(2)). 6 A federal court is not called upon to decide whether it agrees with the state court’s 7 determination; rather, the court applies a very deferential review, inquiring only whether 8 the state court’s decision was “objectively unreasonable.” See Yarborough v. Gentry, 9 540 U.S. 1, 5 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). “A federal 10 habeas court may issue the writ under the ‘contrary to’ clause if the state court applied a 11 rule different from the governing law set forth in [Supreme Court] cases, or if it decide[d] 12 a case differently than [the Supreme Court] ha[s] done on a set of materially 13 indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002) (citing Williams v. 14 Taylor, 529 U.S. 362, 405-06 (2000)). A state court is not required to cite Supreme Court 15 precedent when resolving a habeas corpus claim, “so long as neither the reasoning nor the 16 result of the state-court decision contradicts them.” See Early, 537 U.S. at 8. For purposes 17 of § 2254(d), clearly established federal law, means “the governing principle or principles 18 set forth by the Supreme Court at the time the state court renders its decision.” Lockyer 19 v. Andrade, 538 U.S. 63, 71–72 (2003) (citing Williams, 529 U.S. at 405, 413). 20 “The court may grant relief under the ‘unreasonable application’ clause if the state 21 court correctly identifie[d] the governing legal principle from [Supreme Court] decisions 22 but unreasonably applie[d] it to the facts of the particular case.” Bell, 535 U.S. at 694 23 (citing Williams, 529 U.S. at 407-08). 24 To meet the “unreasonable application” standard, a “state court’s decision [must] 25 be more than incorrect or erroneous.” Lockyer 538 U.S. at 75 (citing Williams, 529 U.S. 26 at 410, 412). Further, a federal court reviewing a habeas petition “must determine what 27 arguments or theories supported, or . . . could have supported, the state-court decision; 28 and then it must ask whether it is possible fairminded jurists could disagree that those 1 arguments or theories are inconsistent with the holding in a prior decision of [the 2 Supreme Court].” Harrington v. Richter, 562 U.S. 86, 102 (2011). This is an extremely 3 deferential review and imposes a heavy burden on the Petitioner to prove that the state 4 court’s ruling on the claim was “so lacking in justification that there was an error well 5 understood and comprehended in existing law beyond any possibility for fairminded 6 disagreement.” Id. at 103. 7 To determine if “a decision was based on an unreasonable determination of the 8 facts in light of the evidence presented,” the state court’s factual findings “are presumed 9 correct absent clear and convincing evidence to the contrary.” Miller-El v. Cockrell, 537 10 U.S. 322, 340 (2003) (citing 28 U.S.C. 2254(e)(1)). A state court’s decision “will not be 11 overturned on factual grounds unless” its factual determinations were “objectively 12 unreasonable in light of the evidence presented in state court.” Miller-El v. Cockrell, 537 13 U.S. 322, 340 (2003) (citing 28 U.S.C. § 2254(d)(2)); 28 U.S.C. § 2254(d)(2); see also 14 Rice v. Collins, 546 U.S. 333, 341-42 (2006) (the fact that “[r]easonable minds reviewing 15 the record might disagree” does not render a decision objectively unreasonable). In order 16 to grant relief under § 2254(d)(2), a federal court “must be convinced that an appellate 17 panel, applying the normal standards of appellate review, could not reasonably conclude 18 that the finding is supported by the record.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th 19 Cir. 2004) (citing Lockyer v. Andrade, 538 U.S. at 75) overruled on other grounds by 20 Murray v. Schirro, 745 F.3d 984, 999-1000 (9th Cir. 2014), as recognized in Kirkpatrick 21 v. Chappell, 926 F.3d 1157, 1170 n.3 (9th Cir. 2019). 22 When state’s highest court does not provide a reasoned decision, the Court “look[s] 23 through” it to the underlying appellate court decision and presumes that the higher court’s 24 “unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 25 1192 (2018). See also Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1996). Although not 26 entitled to perform a de novo review, if the dispositive state court does not “furnish a 27 basis for its reasoning,” federal habeas courts must conduct “an independent review of 28 the record . . . to determine whether the state court clearly erred in its application of 1 controlling federal law.” Delgado v. Lewis, 223 F.3d 976, 981, 982 (9th Cir. 2000) (citing 2 Tran v. Lindsey, 212 F.3d 1143, 1153 (9th Cir. 2000)), overruled on other grounds by 3 Lockyer, 538 U.S. at 75-76; accord Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 4 2003) (citing Delgado, 223 F.3d at 982). 5 V. DISCUSSION 6 In this federal habeas petition, the only issue raised by Petitioner is a challenge to 7 the sufficiency of the evidence supporting his conviction. (See ECF No. 1-2.)4 8 As a threshold matter, there is some confusion in Petitioner’s memoranda as to which 9 section of AEDPA Petitioner is moving under. In his petition, Petitioner states that the issue 10 raised is “[i]nsufficiency of the evidence to support conviction, under Jackson v. Virginia 11 (1979) 443 U.S. 307.” (ECF No. 1 at 2.) The heading for Petitioner’s argument reads 12 “Petitioner’s conviction should be reversed because under Jackson v. Virginia (1979) 433 13 U.S. 307, the evidence was insufficient to support the element requiring proof that he was 14 under the influence of a drug.” (ECF No. 1-2 at 18.) Petitioner then asserts that he should 15 be issued a writ of habeas corpus because he can meet the requirements of 28 U.S.C. § 16 2254(d)(2). (Id. at 19, 18.) However, the Ninth Circuit has held that “§2254(d)(2) is not 17 readily applicable to Jackson cases” because it “does not describe the task of a court in 18 performing a Jackson analysis.” Sarausad v. Porter, 479 F.3d 671, 677, 678 (9th Cir. 2007) 19 reversed on other grounds Waddington v. Sarausad, 555 U.S. 179 (2009), as recognized 20 in Martinez v. Gonzalez, Case No.: 17-cv-1760-WQH-AGS, 2019 WL 1590471, at *3 21 (S.D. Cal. Apr. 12, 2019), appeal docketed, No. 19-55440 (9th Cir. Apr. 18, 2019); accord 22 Flores v. Beard, 533 F. Appx. 730, 731 n.1 (9th Cir. 2013). “We therefore evaluate a state 23 court’s resolution of a Jackson sufficiency-of-the-evidence claim in all cases under § 24 2254(d)(1) rather than §2254(d)(2).” Sarausad, 471 F.3d at 678. Following this Ninth 25
26 4 Petitioner failed to file a timely traverse in this case. However, the claims made by Petitioner in his memoranda supporting his Petition do not provide any authority to support a claim that the California 27 Court of Appeal’s decision was “contrary to” clearly established Federal law. (See ECF No. 1-2 at 19- 28 20); 28 U.S.C. § 2254(d)(1). As a result, the Court will not perform any analysis under the “contrary to” 1 Circuit precedent, this Court will analyze Petitioner’s claims under § 2254(d)(1). 2 A. Sufficiency of the Evidence 3 The Supreme Court’s primary precedent on sufficiency of the evidence is Jackson 4 v. Virginia. 443 U.S. 307, 317–324 (1979), superseded by statute, Antiterrorism and 5 Effective Death Penalty Act of 1996, Pub. L. No. 1-4-132, 110 Stat. 1214, as recognized 6 in Starr v. Mitchell, No. 98-4541, 2000 WL 1529807, at *3 (6th Cir. Oct. 6, 2000);5 7 accord Foley v. Kernan, Case No.: 16-CV-408 JLS (BGS), 2018 WL 3426209, at *3 8 (S.D. Cal. July 16, 2018).6 The Supreme Court has held that “the Due Process Clause . . . 9 protects a defendant in a criminal case against conviction ‘except upon proof beyond a 10 reasonable doubt of every fact necessary to constitute the crime with which he is 11 charged.’” Jackson, 443 U.S. at 315 (quoting In re Winship, 397 U.S. 358, 364 (1970)). 12 In Jackson, the Supreme Court established that “the critical inquiry on review of the 13 sufficiency of the evidence to support a criminal conviction must be . . . to determine 14 whether the record evidence could reasonably support a finding of guilt beyond a 15 reasonable doubt.” 443 U.S. at 318. However, a court reviewing such evidence should not 16 “ask itself whether it believes that the evidence at trial established guilt beyond a 17 reasonable doubt.” Id. at 318–19 (quoting Woodby v. INS, 385 U.S. 276, 282 (1966)) 18 (alteration in original) (internal quotation marks omitted). Rather, a reviewing court is 19 called upon to evaluate “whether, after viewing the evidence in the light most favorable 20
21 5 Although Jackson has been superseded by AEDPA, the Jackson standards for sufficiency of evidence have continued to be applied by courts in the Ninth Circuit. See e.g., United States v. Nevils, 598 F.3d 22 1158, 1163-64 (9th Cir. 2010); Maquiz v. Hedgpeth, 907 F.3d 1212, 1217 (9th Cir. 2018); Foley v. Kernan, Case No.: 16-CV-408 JLS (BGS), 2018 WL 3426209, at *3-4 (S.D. Cal. July 16, 2018); 23 Granados v. Montgomery, Case No.: 19cv0517 GPC (NLS), 2019 WL 3288953, at *11 (S.D. Cal. July 24 22, 2019). The Supreme Court has also reaffirmed the Jackson standard. See McDaniel v. Brown, 558 U.S. 120, 132-33 (2010). Therefore, the Court has applied the Jackson standard to this case. 25 6 In its discussion of the sufficiency of the evidence in Petitioner’s case, the California Court of Appeal drew its definition of “‘[s]ubstantial evidence’” from People v. Gallardo, 22 Cal. App. 4th 489, 492 26 (1994). (Lodgment No. 6 at 7.) Gallardo in turn quoted from People v. Johnson, 26 Cal. 3d 557, 578 (1980), which relied heavily on Jackson v. Virginia, 443 U.S. 307 (1979). As a result, the general 27 standard for sufficiency of the evidence is ultimately drawn from Jackson. See e.g., Foley v. Kernan, 28 2018 WL 3426209, at *3 (finding that by citing state precedents that “directly rely on Jackson v. 1 to the prosecution, any rational trier of fact could have found the essential elements of the 2 crime beyond a reasonable doubt.” Id. at 319 (citing Johnson v. Louisiana, 406 U.S. 356, 3 362 (1972)) (alteration in original). The Jackson Court further specified “that upon 4 judicial review all of the evidence is to be considered in the light most favorable to the 5 prosecution.” Id. (alteration in original). 6 The Ninth Circuit has interpreted Jackson as creating “a two-step inquiry.” U.S. v. 7 Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010). Using the language of Jackson, the Ninth 8 Circuit held that a court evaluating the sufficiency of evidence must first consider that 9 evidence “in the light most favorable to the prosecution” and in doing so, presume that 10 any factual conflicts in the record were resolved “‘in favor of the prosecution.’”7 Id. 11 (quoting Jackson, 443 U.S. at 326). Second, “the reviewing court must determine 12 whether this evidence . . . is adequate to allow ‘any rational trier of fact [to find] the 13 essential elements . . . beyond a reasonable doubt.’” Id. (quoting Jackson, 443 U.S. at 14 319) (alterations in original). This inquiry should be applied “with reference to the 15 elements of the criminal offense as set forth by state law.” Juan H. v. Allen, 408 F.3d 16 1262, 1275 (9th Cir. 2005) (citing Jackson, 443 U.S. at 324 n. 16); accord Gonzales v. 17 Gipson, 701 Fed. Appx. 558, 560 (9th Cir. 2017) (quoting Juan H., 408 F.3d at 1275). 18 Circumstantial evidence may be sufficient by itself. Granados v. Montgomery, Case No.: 19 19cv0517 GPC (NLS), 2019 WL 3288953, at *11 (S.D. Cal. July 22, 2019) (quoting 20 Maquiz v. Hedgpeth, 907 F.3d 1212, 1218 (9th Cir. 2018)). However, the Ninth Circuit 21 has noted that “[s]peculation and conjecture cannot take the place of reasonable 22 inferences and evidence -- whether direct or circumstantial.” Juan H., 408 F.3d at 1275. 23 Additionally, the Ninth Circuit has specified that “[a]fter AEDPA, we apply the 24 standards of Jackson with an additional layer of deference.” Juan H., 408 F.3d at 1275 25 26 7 The full quote from Jackson reads as follows: “a federal habeas court faced with a record of historical 27 facts that supports conflicting inferences must presume––even if it does not affirmatively appear in the 28 record––that the trier of fact resolved any such conflicts in favor of the prosecution and must defer to 1 (citing 28 U.S.C. § 2254(d)). Finally, decisions of circuit courts may be considered “to 2 the extent that they illuminate the meaning and application of Supreme Court 3 precedents,” id. (citing Casey v. Moore, 386 F.3d 896, 907 (9th Cir. 2004)), but “only 4 ‘clearly established Federal law, as determined by the Supreme Court of the United 5 States’ can be the basis for relief under AEDPA.” Id. (quoting 28 U.S.C. § 2254(d)). 6 B. Analysis 7 Petitioner was convicted of violating Section 23153(e) of the California Vehicle 8 Code.9 (Lodgment No. 2 at 118.) This Section states: 9 It is unlawful for a person, while under the influence of any drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty 10 imposed by law in driving the vehicle, which act or neglect proximately 11 causes bodily injury to any person other than the driver.
12 Cal. Veh. Code § 23153(e) (2015). The California Court of Appeal has specified that the 13 elements of this offense are: 14
15 (1) driving a vehicle while under the influence of an alcoholic beverage or 16 drug; (2) when so driving, committing some act which violates the law or is a failure to perform some duty required by law; and (3) as a proximate result 17 of such violation of law or failure to perform a duty, another person was 18 injured.
19 People v. Minor, 28 Cal. App. 4th 431, 438 (1994) (citing People v. Capetillo, 220 Cal. 20 App. 3d 211, 216 (1990)). Further, the California Court of Appeal has stated that “[t]o be 21 ‘under the influence’ within the meaning of the Vehicle Code, the liquor or liquor and 22 23
24 8 The Ninth Circuit stated in Gonzales v. Gipson that when “the Antiterrorism and Effective Death Penalty Act (‘AEDPA’) applies . . . ‘we owe a “double dose of deference”’ to the state court’s 25 judgment.” 701 Fed. Appx. 558, 559 (9th Cir. 2017) (quoting Long v. Johnson, 736 F.3d 891, 896 (9th Cir. 2013)). However, the Ninth Circuit has not clearly distinguished this standard from the AEDPA 26 standard itself. For example, in Juan H., the Ninth Circuit stated “that we must ask whether the decision of the California Court of Appeal reflected on an ‘unreasonable application’ of Jackson and Winship to 27 the facts of this case.” 408 F.3d at 1275 (citing 28 U.S.C. §2254(d)(1)). 28 9 In the current version of the California Vehicle Code this is Section 23153(f). See Cal. Veh. Code § 1 drug(s) must have so far affected the nervous system, the brain, or muscles as to impair to 2 an appreciable degree the ability to operate a vehicle in a manner like that of an 3 ordinarily prudent and cautious person in full possession of his faculties.” Byrd v. 4 Municipal Court, 125 Cal. App. 3d 1054, 1058 (1981) (citing People v. Haeussler, 41 5 Cal. 2d 252, 261 (1953)) (alteration in original); accord People v. McNeal, 46 Cal. 4th 6 1192-93 (2009) (quoting Byrd, 125 Cal. App. 3d at 1058). 7 Petitioner appears to argue that there was insufficient evidence to support a finding 8 that he was under the influence of a drug at the time of the accident, thereby invalidating 9 his conviction for driving under the influence causing injury. (See ECF No. 1-2 at 19– 10 20.) Petitioner presents two primary arguments in support of this contention: First, 11 relying on the testimony of his expert witness, Petitioner essentially argues that aside 12 from his driving pattern, the circumstances under which he was found at the scene of the 13 accident and the symptoms he presented following the accident were “not consistent with 14 meth intoxication.” (Id. at 19 (citations omitted).) Second, Petitioner argues that “neither 15 of the prosecution’s experts could say with any degree of certainty that a person 16 presenting with petitioner’s symptoms right after the collision was under the influence of 17 methamphetamine for purposes of driving.” (Id. at 20.) 18 Respondent rejects these arguments, contending that there was sufficient evidence 19 to find Petitioner guilty. (See ECF No. 6-1 at 6-12.) Respondent argues that 20 “[Petitioner’s] erratic and unlawful driving, his blood test results, and the testimony of 21 both his treating physician and the forensic toxicologist, constituted substantial evidence 22 that [Petitioner] was under the influence of methamphetamine at the time he struck the 23 victim.” (Id. at 12.) 24 In line with the precedents established by the Supreme Court, this court “‘look[s] 25 through,’” the California Supreme Court’s unexplained opinion to examine the reasoning 26 of the California Court of Appeal. See Wilson, 138 S. Ct. at 1192; (Lodgment No. 8; 27 Lodgment No. 6). 28 In its opinion, the California Court of Appeal rejected Petitioner’s argument that 1 the only evidence in the record supporting the first element of the charge, driving under 2 the influence of a drug, was the manner of his driving, which was insufficient to sustain 3 his conviction by itself. (See Lodgment No. 6 at 8-9.) In so doing, the Court of Appeal 4 highlighted additional evidence in the trial record that, in the court’s estimation, tended to 5 support Petitioner’s conviction. This evidence included testimony from an eyewitness, 6 Jesus Contreras, who observed Petitioner’s erratic driving pattern, the accident itself, and 7 believed Petitioner was under the influence. (Id. at 8.) In addition, the Court of Appeal 8 noted that the prosecution had presented evidence showing that Petitioner “had 9 methamphetamine in his blood at a level of 254 nanograms per milliliter.” (Id.) The Court 10 of Appeal further pointed to evidence from Ola Bawardi, a forensic toxicologist and 11 expert witness. (See id. at 9, 5.) Bawardi testified that Petitioner’s “driving pattern was 12 consistent with somebody under the influence of methamphetamine,” and that it was 13 possible for a person with the same level of methamphetamine in their blood as Petitioner 14 presented to “be impaired for the purpose of driving.” (Id. at 9.) Finally, the Court of 15 Appeal noted that Petitioner’s elevated heart rate was a symptom that was consistent with 16 methamphetamine intoxication. (Id.) 17 Additionally, the Court of Appeal also rejected Petitioner’s second line of 18 argument that the conflicting testimony of expert witnesses at trial reduces the finding 19 that he was under the influence of methamphetamine to “speculation and conjecture.” (Id. 20 at 9.) In rejecting Petitioner’s argument that his unconsciousness was not consistent with 21 methamphetamine intoxication, the appellate court noted Bawardi’s testimony that 22 responses to methamphetamine are very individualized and can depend on a range of 23 factors such as the “individual’s health.” (See id.) Bawardi also testified “that seizures 24 can occur at any level of methamphetamine intoxication.” (Id.) Finally, the Court of 25 Appeal highlighted the fact that although Dr. Cannis, the physician who treated 26 Petitioner, had conceded it was possible for Petitioner’s seizure to only have been 27 coincidental to his methamphetamine levels, he testified that “it was much more likely 28 that [Petitioner] had a provoked seizure from methamphetamine and sympathomimetic 1 drugs.” (Id. at 9.) The court also emphasized that Dr. Cannis based his conclusions on his 2 experience with thousands of methamphetamine patients, the extensive testing he had 3 conducted on Petitioner, and that Petitioner had no history of seizures caused by other 4 reasons. (Id.) 5 Despite the presence of contrasting evidence in the trial record, the Court of 6 Appeal concluded that there was sufficient evidence to support the jury’s finding and 7 sustain Petitioner’s conviction. Analyzing this conclusion within the context of AEDPA, 8 this Court cannot say that the Court of Appeal’s decision represented an “unreasonable 9 application of” the standard for sufficiency of evidence established by the Supreme Court 10 in Jackson. See 28 U.S.C. § 2254(d)(1); Jackson, 443 U.S. at 315, 318-19, 326. In order 11 for a state court’s decision to violate the AEDPA standard, that court’s “application must 12 be objectively unreasonable.” Lockyer v. Andrade, 538 U.S. at 75 (citing Williams, 529 13 U.S. at 409). Further, the Supreme Court has clearly established that “[s]ection 2254(d) . 14 . . [is] designed to confirm that state courts are the principal forum for asserting 15 constitutional challenges to state convictions,” and that Petitioner has the substantial 16 burden of “show[ing] that the state court’s ruling . . . was so lacking in justification that 17 there was an error well understood and comprehended in existing law beyond any 18 possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. Given these 19 standards and the foregoing evidence considered by the Court of Appeal in reaching its 20 decision, this Court concludes that Petitioner has not made the necessary showing to 21 establish that the Court of Appeal’s decision represented an “unreasonable application 22 of” the Jackson standard. See 28 U.S.C. § 2254(d)(1); Jackson, 443 U.S. at 315, 318-19, 23 326. 24 Moreover, based on an independent review of the record, this Court finds 25 additional evidence not specifically cited by the Court of Appeal that could have 26 supported the jury’s verdict. (See Lodgment No. 1.) For example, the jury had the 27 opportunity to view footage of the accident from a nearby security camera, which at least 28 showed Petitioner’s SUV making unsafe movements before the accident. (See Lodgment 1 No. 1-2 at 95-100.) Additionally, the jury heard testimony from Dr. Cannis that while he 2 was treating Petitioner, he “obtained a urine toxicologic panel, which showed positive 3 methamphetamines, positive amphetamines, positive tetrahydrocannabinol, which is 4 marijuana. Positive for tricyclic antidepression medication.” (Lodgment No. 1-3 at 5 199:19-23.) Dr. Cannis also testified that marijuana can cause seizures and that 6 combining it with methamphetamine can increase the likelihood of a person suffering 7 from a seizure. (Id. at 226, 227.) 8 The record also indicated that the jury may have had reasons for discounting the 9 testimony of Dr. O’Connell, the defense’s expert witness. For instance, the Court notes 10 that even Dr. O’Connell could not opine with certainty that Petitioner had suffered from a 11 seizure. When asked “it’s your opinion here today . . . that we don’t even know if the 12 defendant had a seizure, correct” Dr. O’Connell replied “It’s possible. I mean, I don’t 13 have another explanation.” (Lodgment No. 1-4 at 433:6-9.) Further, Dr. O’Connell 14 testified that his final report stated that it was “unclear” what caused Petitioner’s “altered 15 mental status.”10 (Id. at 435.) Such testimony does not reflect certainty. Dr. O’Connell 16 also conceded that his evaluation of Petitioner’s records in the absence of the opportunity 17 to personally examine him effectively amounted to “Monday morning quarterbacking.” 18 (Id. at 441.) Finally, when asked whether he “recommend someone driving with 254- 19 nanograms per milliliter [of methamphetamine] in their system,” Dr. O’Connell testified 20 “[t]hat’s a difficult question to answer. There are some tests that show under 200 actually 21 enhances driving behavior. 254 is a little above that range.” (Id. at 444:6-7,8-10; see also 22 id. at 425-27.) 23 Petitioner’s primary argument for why his writ of habeas corpus should be granted 24 is based on perceived inconsistencies in the record, primarily in the testimony of the 25 witnesses. (See ECF No. 1-2 at 19-20.) However, the Writ of Habeas Corpus is “an 26
27 10 On cross-examination, the prosecutor asked Dr. O’Connell: “isn’t it true that your final conclusion in 28 this case was that the cause of [Petitioner’s] altered mental status at the time of the incident is unclear?” 1 extraordinary remedy,” and this Court is required to view all of the evidence presented at 2 trial in the light most favorable to the prosecution. Jackson, 443 U.S. at 319; see e.g., 3 Brecht v. Abrahamson, 507 U.S. 619, 633 (1993) (“[T]he writ of habeas corpus has 4 historically been regarded as an extraordinary remedy. . . .”). Evaluation of evidence and 5 resolution of factual disputes is the purview of the trier of fact. Jackson, 443 U.S. at 319. 6 It is not the place of this Court to disturb the evaluations or resolutions made by the 7 finder of fact, and any attempt to do so would be a clear violation of the standards 8 governing review of the sufficiency of the evidence, as this Court must consider all 9 factual disagreements to have been resolved in the prosecution’s favor. See id. at 326 (“a 10 federal habeas court . . . must presume . . . that the trier of fact resolved any such conflicts 11 in favor of the prosecution, and must defer to that resolution.”) As the foregoing 12 discussion shows, the evidence presented by Petitioner does not rise above the level of 13 factual inconsistency or disagreement amongst the testimony presented at trial. Since the 14 Court must presume such disagreements resolved in the prosecution’s favor, the Court 15 cannot recommend that a Writ be issued on the grounds of insufficient evidence. See 16 Jackson, 443 U.S. at 326. 17 Finally, although not required, the Court will briefly consider the argument from 18 Petitioner’s brief that his conviction “was based on an unreasonable determination of the 19 facts in light of the evidence presented.” See (ECF No. 1-2 at 19-20); 28 U.S.C. § 20 2254(d)(2). Even under this provision, the petition fails. In order for a petition to be 21 granted under Section 2254(d)(2), the state court’s decision has to be “objectively 22 unreasonable.” Miller-El, 537 U.S. at 340. “It is objectively unreasonable, for example, to 23 fail to make an obvious factual finding, to misapprehend or misstate the record with 24 respect to material facts, or to ignore evidence in support of a petitioner’s claim.” Lopez 25 v. Jenkins, No. 08cv0457–LAB (AJB), 2009 WL 4895274, at *2 (S.D. Cal. Dec. 10, 26 2009) (citing Taylor, 366 F.3d at 992). Petitioner appears to argue that the state court 27 “fail[ed] to make an obvious factual finding” by not finding that Petitioner was not under 28 the influence at the time of accident. See Lopez, 2009 WL 4895274, at *2; (ECF No. 1-2 1 || at 19-20.) However, given the evidence presented at trial supporting the conclusion that 2 || Petitioner was under the influence that was addressed in the foregoing discussion, 3 || Petitioner has not made a sufficient showing that either the jury’s verdict or the Court of 4 || Appeal’s opinion reflected an “unreasonable determination of the facts.” See 28 U.S.C. § 5 || 2254(d)(2). 6 Accordingly, for all of the foregoing reasons, the Court recommends that 7 || Petitioner’s habeas petition be DENIED. 8 || VI. CONCLUSION AND RECOMMENDATION 9 The Court submits this Report and Recommendation to United States District 10 || Judge Michael M. Anello under 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the 11 |] United States District Court for the Southern District of California. In addition, IT IS 12 |} HEREBY RECOMMENDED that the Court issue an Order: (1) approving and adopting 13 || this Report and Recommendation, and (2) directing that Judgment be entered DENYING 14 || the Petition. 15 IT IS HEREBY ORDERED that any party to this action may file written 16 || objections with the Court and serve a copy on all parties no later than November 6, 2019. 17 || The document should be captioned “Objections to Report and Recommendation.” 18 IT IS FURTHER ORDERED that any Reply to the Objections shall be filed with 19 Court and served on all parties no later than November 20, 2019. The parties are 20 || advised that failure to file objections within the specified time may waive the right to 21 those objections on appeal of the Court’s Order. See Turner v. Duncan, 158 F.3d 22 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153, 1157 (Oth Cir. 1991). 23 |lDated: October 15, 2019 . 2 ZO s 24 25 Hon. Nita L. Stormes United States Magistrate Judge
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