1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY L. ZEIGLER, No. 2:18-CV-0578-TLN-DMC-P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 ROBERT FOX, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the Court are Petitioner’s petition 19 for a writ of habeas corpus, ECF No. 1, and Respondent’s answer, ECF No. 17. Petitioner has not 20 filed a traverse. 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 I. BACKGROUND 2 A. Facts1 3 The California Court of Appeal recited the following facts in its decision on direct 4 appeal, and Petitioner has not offered any clear and convincing evidence to rebut the presumption 5 that these facts are correct:
6 2013 Stabbing
7 In May 2013, Joshua Hendon, Kevin Brazil, and Alexander Salas went to a bar in Chico. Hendon and defendant got into a ‘scuffle,’ and security 8 officers at the bar ejected defendant from the bar. Defendant was wearing a red polo shirt and a gold cross necklace. One of the security officers, 9 Jorge Martinez, testified he saw other security officers ejecting a man in a red shirt from the bar, and recognized the man as defendant, a regular 10 patron at the bar. Another security officer, James Bender, testified he had ejected an African-American man wearing a red shirt. He later identified 11 defendant as the man he ejected. Hendon and his friends left the bar at about 1:30 a.m. While they were waiting for a ride outside, defendant 12 punched Hendon in the back. Hendon chased defendant to the end of the building when he heard defendant tell his friend, who was leaning on a 13 vehicle, “Pop this nigga.” Defendant’s friend lifted his shirt and Hendon saw the handle of a gun, so he ran back toward the bar. Defendant got into 14 a truck and left.
15 Police officer Michael Caldwell responded to a report of a stabbing at the bar. When he arrived, the security officers were applying pressure to a 16 wound on Hendon’s back. Caldwell observed a fresh wound one to two inches deep on Hendon’s back. Bar employees gave Caldwell photographs 17 of the persons who had gone into the bar that night that included defendant. Defendant was a regular customer, so they were familiar with 18 him. The security officers identified defendant as the person they had earlier ejected from the bar for fighting. Caldwell also prepared a six- 19 person photographic lineup that included defendant and Salas. The security officers identified defendant. 20 Dr. Levitt treated Hendon at the hospital for a one-half inch deep wound to 21 his back. Hendon received eight staples to close the wound. Dr. Levitt opined a fist could have caused the wound, but that would be atypical. Dr. 22 Thomas Resk, a forensic pathologist, reviewed the photographs of Hendon's wound and video of the confrontation and concluded the wound 23 was a “straightforward stab wound with an element of blunt-force trauma.” 24
25 1 Pursuant to 28 U.S.C. § 2254(e)(1), “. . . a determination of a factual issue made by a State court shall be presumed to be correct.” Findings of fact in the last reasoned state court 26 decision are entitled to a presumption of correctness, rebuttable only by clear and convincing evidence. See Runningeagle v. Ryan, 686 F.3d 759 n.1 (9th Cir. 2012). Petitioner bears the 27 burden of rebutting this presumption by clear and convincing evidence. See id. These facts are, therefore, drawn from the state court’s opinion(s), lodged in this court. Petitioner may also be 28 referred to as “defendant.” 1 2014 Shooting Incident
2 In January 2014, Carly Sims, John Lowe, Sean Lowe, Tina Acosta, and Christina Acosta were standing on the sidewalk outside the front entrance 3 to Arabian Nights, a hookah bar in downtown Chico, when they heard a gunshot coming from the direction of a nearby restaurant, Tres Hombres. 4 They did not see the shooter, but Sean immediately felt pain in his knee and realized he had been shot. Sean was transported to the hospital. The 5 bullet wound caused part of Sean’s knee to fracture and break. He underwent emergency surgery and was hospitalized for three days. 6 Around the same time, Jonathan Chesney, a bouncer at a nearby sports 7 pub, saw “a scuffle” break out down the street toward his left, in the direction of Tres Hombres restaurant. He also noticed a large group of 8 people were standing in front of the hookah bar to his right. The fight was between a group of five or six Hispanic or Asians and two African- 9 Americans, one of whom was defendant. The fight involved people yelling and throwing punches. During the fight, one of the group of five or six 10 grabbed defendant’s jacket, resulting in the jacket being thrown on the ground. Defendant started running away, toward Chesney, and had his 11 jacket torn off by the other man. He ran around the corner, and as he passed in front of Chesney, defendant grabbed keys from his back pocket 12 and said, “I’ll be back motherfuckers.” A minute or two later, defendant reappeared from the alleyway to the south of Tres Hombres, brandishing a 13 semiautomatic pistol. Chesney ducked back into the pub, closed the door, and then heard a gunshot. Before he closed the door, Chesney saw the 14 group defendant had been fighting with walking back toward defendant. After hearing the gunshot, Chesney saw a person sitting on the sidewalk 15 whom he understood had been shot. Chesney did not see anyone but defendant with a gun or any other type of weapon. 16 Officer Peter Durfee responded to the report of gunshots. Durfee found an 17 expended nine-millimeter shell casing near an alley just south of Tres Hombres, and a black leather jacket just north of Arabian Nights. 18 Detective Ben Love investigated the shooting. The description of the suspect matched defendant, and Love found photographs on defendant’s 19 social media accounts of him wearing a leather jacket similar to the one found at the scene. Love examined the jacket and noticed a red wire had 20 been used to bind the cuff of the jacket; the social media photographs showed a red wire holding the cuff together. The jacket was tested for 21 DNA, and found to have a mixture containing ‘all of [defendant’s] DNA types for his DNA profile.’ 22 Detective Love also recovered video surveillance footage from the 23 Arabian Night Hookah Lounge showing defendant running down the street, bumping into someone, and pulling something from his jacket. 24 Defendant was wearing a red shirt. Love identified the person on the videotape as defendant wearing the red shirt. Chesney identified the 25 person wearing the red shirt on the videotape, as the man he had seen brandishing the gun. No witnesses observed the actual shooting or saw 26 anyone pointing a gun.
27 / / /
28 / / / 1 A criminalist determined the bullet found at the scene had been fired from an automatic or semiautomatic firearm, not a revolver. 2 ECF No. 19-10, pgs. 1-2. 3 4 B. Procedural History 5 The state court recited the following procedural history through Petitioner’s 6 conviction and sentence:
7 The trial court granted the People’s motion to consolidate the charges stemming from the 2013 stabbing and the 2014 shooting. An amended 8 information charged defendant with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)—count 1), assault with a semiautomatic firearm 9 (§ 245, subd. (b)—in count 2), possession of a firearm by a felon with prior felony convictions (§ 29800, subd. (a)(1)—count 3), and unlawful 10 firearm activity (§ 29805—count 4). The information further alleged as to count 1, defendant personally used a knife (§ 12022, subd. (b)(1)), and 11 as to count 2, defendant personally used a firearm (§ 12022.5) and personally inflicted great bodily injury upon Sean Lowe, not an 12 accomplice (§ 12022.7, subd. (a)). The information also alleged as to counts 2, 3, and 4 that defendant was released from custody on bail or his 13 own recognizance in the stabbing case, case No. CM039082. (§ 12022.1.)
14 Defendant moved in limine to bifurcate count 1, the 2013 stabbing, from the other charges. Defendant argued though the charges were properly 15 joined, the court had discretion to try them separately, particularly where a weak case might unfairly bolster a stronger case. At the hearing, defense 16 counsel also claimed the “alleged cross-admissibility is suspect.” The People argued the cases were the same class of crime, assaultive, the 17 evidence in each was strong, and defendant’s conduct in each was similar. The trial court denied the motion to bifurcate. 18 The jury found defendant guilty on all counts and found true the special 19 allegations as to counts 1 and 2. Outside of the presence of the jury, defendant admitted incurring two prior felony convictions. In a bifurcated 20 proceeding, the court found defendant in violation of probation in case No. SCR8554, and found the on-bail enhancement allegation true. 21 The trial court denied probation and sentenced defendant to serve 25 years 22 8 months in prison as follows: the upper term of 9 years in prison on count 2, plus a consecutive 10 years for the firearm use and a consecutive 3 23 years for the infliction of great bodily injury; the upper term of 4 years, 3 years stayed, on count 1, consecutive, plus one year for the deadly weapon 24 enhancement, stayed, the upper term of 3 years in prison on count 3, 2 years 4 months stayed consecutive to count 2, plus the 2-year on-bail 25 enhancement; and the upper term of three years on count 4, stayed pursuant to section 654. 26 ECF No. 19-10, pgs. 2-3. 27 28 / / / 1 Petitioner did not appeal the California Court of Appeal’s decision on direct 2 review. Petitioner filed a petition for a writ of habeas corpus directly with the California Supreme 3 Court on June 7, 2017. See ECF No. 19-12. The California Supreme Court denied the petition 4 without comment or citation on August 16, 2017. See id. 5 6 II. STANDARDS OF REVIEW 7 Because this action was filed after April 26, 1996, the provisions of the 8 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) are presumptively applicable. 9 See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct. (Beeler), 128 10 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). The AEDPA does not, 11 however, apply in all circumstances. When it is clear that a state court has not reached the merits 12 of a petitioner’s claim, because it was not raised in state court or because the court denied it on 13 procedural grounds, the AEDPA deference scheme does not apply and a federal habeas court must 14 review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) (holding that the 15 AEDPA did not apply where Washington Supreme Court refused to reach petitioner’s claim 16 under its “re-litigation rule”); see also Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) 17 (holding that, where state court denied petitioner an evidentiary hearing on perjury claim, AEDPA 18 did not apply because evidence of the perjury was adduced only at the evidentiary hearing in 19 federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001) (reviewing petition de novo where 20 state court had issued a ruling on the merits of a related claim, but not the claim alleged by 21 petitioner). When the state court does not reach the merits of a claim, “concerns about comity and 22 federalism . . . do not exist.” Pirtle, 313 F. 3d at 1167. 23 Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) is 24 not available for any claim decided on the merits in state court proceedings unless the state court’s 25 adjudication of the claim:
26 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the 27 Supreme Court of the United States; or
28 / / / 1 (2) resulted in a decision that was based on an unreasonable determination 2 of the facts in light of the evidence presented in the State court proceeding. 3 Under § 2254(d)(1), federal habeas relief is available only where the state court’s decision is 4 “contrary to” or represents an “unreasonable application of” clearly established law. Under both 5 standards, “clearly established law” means those holdings of the United States Supreme Court as 6 of the time of the relevant state court decision. See Carey v. Musladin, 549 U.S. 70, 74 (2006) 7 (citing Williams, 529 U.S. at 412). “What matters are the holdings of the Supreme Court, not the 8 holdings of lower federal courts.” Plumlee v. Masto, 512 F.3d 1204 (9th Cir. 2008) (en banc). 9 Supreme Court precedent is not clearly established law, and therefore federal habeas relief is 10 unavailable, unless it “squarely addresses” an issue. See Moses v. Payne, 555 F.3d 742, 753-54 11 (9th Cir. 2009) (citing Wright v. Van Patten, 552 U.S. 120, 28 S. Ct. 743, 746 (2008)). For federal 12 law to be clearly established, the Supreme Court must provide a “categorical answer” to the 13 question before the state court. See id.; see also Carey, 549 U.S. at 76-77 (holding that a state 14 court’s decision that a defendant was not prejudiced by spectators’ conduct at trial was not 15 contrary to, or an unreasonable application of, the Supreme Court’s test for determining prejudice 16 created by state conduct at trial because the Court had never applied the test to spectators’ 17 conduct). Circuit court precedent may not be used to fill open questions in the Supreme Court’s 18 holdings. See Carey, 549 U.S. at 74. 19 In Williams v. Taylor, 529 U.S. 362 (2000) (O’Connor, J., concurring, garnering a 20 majority of the Court), the United States Supreme Court explained these different standards. A 21 state court decision is “contrary to” Supreme Court precedent if it is opposite to that reached by 22 the Supreme Court on the same question of law, or if the state court decides the case differently 23 than the Supreme Court has on a set of materially indistinguishable facts. See id. at 405. A state 24 court decision is also “contrary to” established law if it applies a rule which contradicts the 25 governing law set forth in Supreme Court cases. See id. In sum, the petitioner must demonstrate 26 that Supreme Court precedent requires a contrary outcome because the state court applied the 27 wrong legal rules. Thus, a state court decision applying the correct legal rule from Supreme Court 28 cases to the facts of a particular case is not reviewed under the “contrary to” standard. See id. at 1 406. If a state court decision is “contrary to” clearly established law, it is reviewed to determine 2 first whether it resulted in constitutional error. See Benn v. Lambert, 283 F.3d 1040, 1052 n.6 3 (9th Cir. 2002). If so, the next question is whether such error was structural, in which case federal 4 habeas relief is warranted. See id. If the error was not structural, the final question is whether the 5 error had a substantial and injurious effect on the verdict, or was harmless. See id. 6 State court decisions are reviewed under the far more deferential “unreasonable 7 application of” standard where it identifies the correct legal rule from Supreme Court cases, but 8 unreasonably applies the rule to the facts of a particular case. See Wiggins v. Smith, 539 U.S. 9 510, 520 (2003). While declining to rule on the issue, the Supreme Court in Williams, suggested 10 that federal habeas relief may be available under this standard where the state court either 11 unreasonably extends a legal principle to a new context where it should not apply, or 12 unreasonably refuses to extend that principle to a new context where it should apply. See 13 Williams, 529 U.S. at 408-09. The Supreme Court has, however, made it clear that a state court 14 decision is not an “unreasonable application of” controlling law simply because it is an erroneous 15 or incorrect application of federal law. See id. at 410; see also Lockyer v. Andrade, 538 U.S. 63, 16 75-76 (2003). An “unreasonable application of” controlling law cannot necessarily be found even 17 where the federal habeas court concludes that the state court decision is clearly erroneous. See 18 Lockyer, 538 U.S. at 75-76. This is because “[t]he gloss of clear error fails to give proper 19 deference to state courts by conflating error (even clear error) with unreasonableness.” Id. at 75. 20 As with state court decisions which are “contrary to” established federal law, where a state court 21 decision is an “unreasonable application of” controlling law, federal habeas relief is nonetheless 22 unavailable if the error was non-structural and harmless. See Benn, 283 F.3d at 1052 n.6. 23 The “unreasonable application of” standard also applies where the state court 24 denies a claim without providing any reasoning whatsoever. See Himes v. Thompson, 336 F.3d 25 848, 853 (9th Cir. 2003); Delgado v. Lewis, 233 F.3d 976, 982 (9th Cir. 2000). Such decisions 26 are considered adjudications on the merits and are, therefore, entitled to deference under the 27 AEDPA. See Green v. Lambert, 288 F.3d 1081 1089 (9th Cir. 2002); Delgado, 233 F.3d at 982. 28 The federal habeas court assumes that state court applied the correct law and analyzes whether the 1 state court’s summary denial was based on an objectively unreasonable application of that law. 2 See Himes, 336 F.3d at 853; Delgado, 233 F.3d at 982. 3 4 III. DISCUSSION 5 In his federal petition, Petitioner refers to his opening brief on direct appeal in 6 which he raised the following claims: (1) the trial court denied Petitioner’s due process rights in 7 failing to sever the 2013 stabbing case from the 2014 shooting case; (2) the evidence was 8 insufficient to establish Petitioner committed an assault with a semiautomatic firearm; and (3) the 9 trial court erred in failing to instruct the jury that reckless or negligent conduct alone cannot 10 constitute an assault with a semiautomatic firearm. See ECF No. 1, pg. 9. 11 A. Bifurcation 12 In his first claim, Petitioner contends the trial court committed reversable error 13 when it declined to sever. See id. at 9. Citing California law, Petitioner contends Penal Code 14 § 954 allows for consolidation of different offenses of the same class of crimes but permits the 15 trial court to order that different offenses be tried separately. See id. at 26. The party seeking 16 severance must show substantial danger of prejudice from joinder. See id. at 27 (citing People v. 17 Vines, 51 Cal. 4th 830, 855 (2011). The trial court’s decision not to sever cannot be reversed 18 unless joinder resulted in gross unfairness amounting to a denial of due process. See id. (citing 19 People v. Mendoza, 24 Cal. 4th 130, 162 (2006). According to Petitioner:
20 . . .[T]he trial court’s failure to sever violated his [Petitioner’s] constitution right to due process and a fair trial, because it permitted the 21 jury to convict him not on the basis of the evidence, but because of his alleged criminal disposition to lay in wait before attacking those who had 22 supposedly offended him.
23 ECF No. 1, pg. 30. 24 A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of a 25 transgression of federal law binding on the state courts. See Middleton v. Cupp, 768 F.2d 1083, 26 1085 (9th Cir. 1985); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). It is not available 27 for alleged error in the interpretation or application of state law. Middleton, 768 F.2d at 1085; see 28 also Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987); Givens v. Housewright, 786 F.2d 1378, 1 1381 (9th Cir. 1986). Habeas corpus cannot be utilized to try state issues de novo. See Milton v. 2 Wainwright, 407 U.S. 371, 377 (1972). 3 However, a “claim of error based upon a right not specifically guaranteed by the 4 Constitution may nonetheless form a ground for federal habeas corpus relief where its impact so 5 infects the entire trial that the resulting conviction violates the defendant’s right to due process.” 6 Hines v. Enomoto, 658 F.2d 667, 673 (9th Cir. 1981) (citing Quigg v. Crist, 616 F.2d 1107 (9th 7 Cir. 1980)); see also Lisenba v. California, 314 U.S. 219, 236 (1941). In order to raise such a 8 claim in a federal habeas corpus petition, the “error alleged must have resulted in a complete 9 miscarriage of justice.” Hill v. United States, 368 U.S. 424, 428 (1962); Crisafi v. Oliver, 396 10 F.2d 293, 294-95 (9th Cir. 1968); Chavez v. Dickson, 280 F.2d 727, 736 (9th Cir. 1960). 11 In rejecting this claim on direct appeal, the California Court of Appeal stated:
12 Defendant contends the trial court prejudicially erred in denying his motion to bifurcate the charges in the 2013 stabbing case from the 2014 13 shooting case because they did not contain cross-admissible evidence and the consolidation unfairly strengthened “two relatively weak cases.” 14 . . .Here, assault with a deadly weapon and assault with a semiautomatic 15 firearm are both assaultive crimes, and share common characteristics. “‘Because the charges were properly joined under section 954, “defendant 16 must make a clear showing of prejudice to establish that the trial court abused its discretion in denying defendant’s severance motion.’” 17 [Citation.] That is, defendant must demonstrate the denial of his [or her] motion exceeded the bounds of reason. [Citation.]” (Capistrano, supra, 59 18 Cal.4th at p. 848.)
19 * * *
20 The trial court did not abuse its discretion in denying defendant's motion to bifurcate. As to the issue of cross admissibility, “[w]hen, as here, crimes 21 of the same class are charged together, ‘evidence concerning one offense or offenses need not be admissible as to the other offense or offenses 22 before the jointly charged offenses may be tried together . . . .’ (§ 954.1.)” (People v. Cook (2006) 39 Cal.4th 566, 581, 47 Cal. Rptr. 3d 22, 139 P.3d 23 492.) Even if we assume the evidence was not cross-admissible, absence of cross-admissibility is, standing alone, insufficient to establish an abuse 24 of discretion in failing to sever the charges; rather, it is one factor to be weighed against the benefits of joinder. (People v. Soper (2009) 45 Cal.4th 25 759, 779-780, 89 Cal. Rptr. 3d 188, 200 P.3d 816 (Soper).)
26 Neither offense here was a capital offense, and the prosecution did not seek joinder to convert the case into a capital case. (Soper, supra, 45 27 Cal.4th at p. 780.) Nor was either offense unusually likely to inflame the jury against the defendant; each involved an assault committed with a 28 deadly weapon following an altercation. They were similar in nature and 1 degree of egregiousness. (Ibid.) Lastly, there was no risk of a “spillover effect” from, as defendant claims, joining two weak cases together. The 2 evidence in each of these cases was of similar strength, and each was sufficiently strong on its own to sustain a conviction. Although much of 3 the evidence was circumstantial, in each case defendant was identified by eyewitnesses and on videotape. In each case, defendant was linked to the 4 clothing worn by the perpetrator. Also in each case, defendant was involved in an altercation, left the scene, and returned to commit an 5 assault. “In any event, as between any two charges, it always is possible to point to individual aspects of one case and argue that one is stronger than 6 the other. A mere imbalance in the evidence, however, will not indicate a risk of prejudicial ‘spillover effect,’ militating against the benefits of 7 joinder and warranting severance of properly joined charges. [Citation.] Furthermore, the benefits of joinder are not outweighed—and severance is 8 not required—merely because properly joined charges might make it more difficult for a defendant to avoid conviction compared with his or her 9 chances were the charges to be separately tried. [Citations.]” (Id. at p. 781.) We conclude the trial court did not abuse its discretion in denying 10 defendant’s motion to bifurcate the charges.
11 ECF No. 19-10, pgs. 3-4. 12 In his answer, Respondent argues the claim is not cognizable to the extent it is a 13 challenge to the state court’s application of state law. See ECF No. 17, pg. 20. Respondent also 14 argues that, in any event, Petitioner has not shown a violation of due process. See id. According 15 to Respondent:
16 To the extent Petitioner’s claim involves the trial court’s misapplication of California’s laws regarding severance, the claim is not 17 cognizable on federal habeas review, because it involves only an alleged error in state law. “It is not the province of a federal court to reexamine 18 state court determinations of state law questions.” Estelle, 502 U.S. at 71- 72. Habeas relief is not available for an alleged error in the application of 19 state law. Id. at 68. To the extent that Petitioner raises a federal due process challenge 20 to the trial court’s refusal to sever these claims, it fails because the United States Supreme Court “has not held that a state or federal trial court’s 21 denial of a motion to sever can” violate constitutional rights. Grajeda v. Scribner, 541 F. App’x 776, 778 (9th Cir. 2013). Indeed, the Supreme 22 Court has held that “[i]mproper joinder does not, in itself, violate the Constitution.” United States v. Lane, 474 U.S. 438, 446 n.8 (1986). The 23 Supreme Court has indicated that “misjoinder would rise to the level of a constitutional violation only if it results in prejudice so great as to deny a 24 defendant his Fifth Amendment right to a fair trial,” but only in dicta. Collins v. Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010). Consequently, 25 Lane does not set forth a governing legal principle, and does not constitute clearly established federal law, with regard to when severance is 26 constitutionally mandated. Id.; see also Carey v. Musladin, 549 U.S. at 74 (restricting “clearly established federal law” under § 2254 to holdings of 27 the Supreme Court, rather than dicta). For these reasons, the Court of
28 / / / 1 Appeal’s rejection of Petitioner’s severance claim could not have been an unreasonable application of clearly established federal law. 2 ECF No. 17, pg. 20. 3 4 Respondent’s arguments are persuasive. The Court agrees that, to the extent 5 Petitioner is challenging the state court’s application of California law on bifurcation and joinder, 6 Petitioner cannot state a claim for federal habeas corpus relief. The Court also agrees that 7 Petitioner cannot prevail because the Supreme Court has held that improper joinder does not, in 8 itself, violate the Constitution. See Lane, 474 U.S. at 446 n.8. While the Supreme Court 9 indicated in dicta that misjoinder could implicate the Constitution if it results in prejudice so great 10 as to deny the defendant of a fair trial, see Collins, 603 F.3d at 1132, dicta does not constitute 11 clearly established law, see Musladin, 549 U.S. at 74. 12 B. Sufficiency of the Evidence 13 In his second claim, Petitioner contends the evidence was insufficient to establish 14 beyond a reasonable doubt that Petitioner committed an assault with a semiautomatic firearm. 15 See ECF No. 1, pg. 30. 16 When a challenge is brought alleging insufficient evidence, federal habeas corpus 17 relief is available if it is found that, upon the record of evidence adduced at trial, viewed in the 18 light most favorable to the prosecution, no rational trier of fact could have found proof of guilt 19 beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).2 Under Jackson, 20 the court must review the entire record when the sufficiency of the evidence is challenged on 21 habeas. See id. It is the province of the jury to “resolve conflicts in the testimony, to weigh the 22 evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id. “The 23 question is not whether we are personally convinced beyond a reasonable doubt. It is whether 24 2 Even though Jackson was decided before AEDPA’s effective date, this expression 25 of the law is valid under AEDPA’s standard of federal habeas corpus review. A state court decision denying relief in the face of a record establishing that no rational jury could have found 26 proof of guilt beyond a reasonable doubt would be either contrary to or an unreasonable application of the law as outlined in Jackson. Cf. Bruce v. Terhune, 376 F.3d 950, 959 (9th Cir. 27 2004) (denying habeas relief on sufficiency of the evidence claim under AEDPA standard of review because a rational jury could make the finding at issue). 28 1 rational jurors could reach the conclusion that these jurors reached.” Roehler v. Borg, 945 F.2d 2 303, 306 (9th Cir. 1991); see also Herrera v. Collins, 506 U.S. 390, 401-02 (1993). The federal 3 habeas court determines sufficiency of the evidence in the context of the substantive elements of 4 the criminal offense, as defined by state law. See Jackson, 443 U.S. at 324 n.16. 5 In rejecting this claim on direct appeal, the California Court of Appeal stated:
6 Defendant contends there was insufficient evidence he committed an assault with a semiautomatic firearm. Specifically, defendant claims there 7 was insufficient evidence to find he should have known his act “would directly and probably result in the application of force to someone.” 8 To establish assault with a semiautomatic firearm, the prosecution was 9 required to prove:
10 1. The defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person; 11 2. The defendant did that act willfully; 12 3. When the defendant acted, he was aware of facts that would lead a 13 reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and 14 4. When the defendant acted, he had the present ability to apply force with 15 a semiautomatic firearm to a person. (§ 245, subd. (b); CALCRIM No. 875.) 16 * * * 17 In an attempt to show there was insufficient evidence, defendant 18 delineates a variety of pieces of evidence the prosecution did not put forward, such as there was no evidence showing the manner in which 19 defendant discharged the gun, showing the gun was aimed at anyone in particular, and showing the bullet traveled in a straight line. Defendant’s 20 focus is misplaced. The fact certain evidence was not presented does not mean there was not sufficient evidence to sustain the conviction. 21 Here, the evidence established defendant had a fight with a group of other 22 men. As he fled, he said, “I will be back, motherfuckers.” When defendant reappeared, he was brandishing a semiautomatic handgun. No one else in 23 the area was seen with a weapon. Defendant was facing toward the Arabian Nights Hookah Lounge. 24 A large group was standing in front of the lounge. The men defendant had 25 been fighting with were also outside, between the hookah lounge and defendant, and they were coming toward him. There was a single gunshot 26 and immediately Sean felt pain in his leg, the result of a gunshot wound. A single spent shell casing from a nine-millimeter semiautomatic handgun 27 was found near the location where defendant was seen brandishing the gun. It was reasonable for the jury to infer, as Chesney did, defendant’s 28 1 statement as he was leaving the scene was a threat to return and do further violence against the men he was fighting. It was reasonable for the jury to 2 infer defendant, the only person seen with a gun, was the person who fired the single shot that resulted in Sean’s injury. It was also reasonable for the 3 jury to infer defendant was shooting at the men he had been fighting with that put the large group in front of the Arabian Nights Hookah Lounge 4 also in the line of fire, and the act of shooting in the direction of that many people on the street “would lead a reasonable person to realize that his [or 5 her] act by its nature would directly and probably result in the application of force to someone.” Accordingly, we conclude there is sufficient 6 evidence to sustain defendant’s conviction for assault with a semiautomatic firearm. 7 ECF No. 19-10, pgs. 4-5. 8 9 In his answer, Respondent argues the state court’s determination is neither 10 contrary to law nor based on an unreasonable application of the law. See ECF No. 17, pg. 22. 11 Specifically, Respondent contends:
12 . . .[I]t is evident that the state court’s rejection of his claim was not contrary to, and did not involve an unreasonable application of, 13 Supreme Court precedent, and was not based on an unreasonable determination of the facts in light of the evidence presented in the State 14 court proceeding. 28 U.S.C. § 2254(d). The state court concluded that there was ample evidence of motive and identity from which it could be 15 reasonably inferred that Petitioner did precisely what he had threatened to do when he fled the fight outside of the bar, yelling: “I will be back, 16 motherfuckers.” (Exh. A at 5.) When the men Petitioner had been fighting with saw him again, he was brandishing a semiautomatic handgun. No one 17 saw anyone else, other than Petitioner, in the area with a weapon. As the state court concluded, “[i]t was also reasonable for the jury to infer 18 defendant was shooting” in the direction of the men with whom he had been fighting earlier, and that “the act of shooting in the direction of [a 19 crowd] on the street ‘would lead a reasonable person to realize that his [or her] act by its nature would directly and probably result in the application 20 of force to someone.’” (Exh. A at 5.) In other words, because the men Petitioner had aimed at were standing outside a bar amongst a group of 21 people, Petitioner knew, or reasonably should have known, that his act of shooting a semiautomatic firearm in their direction would endanger 22 everyone standing in their vicinity. (Exh. A at 5.) Petitioner’s claim is based entirely on the opening brief that his 23 counsel filed in the state court of appeal. The opening brief merely points out evidence that the prosecution could have, but did not, bring forth at 24 trial. (Pet. at 32-33.) Petitioner does not argue that the rejection of the state-court claim triggered an exception to 28 U.S.C. § 2254(d)’s re- 25 litigation bar. Rather, his pleading implies a disagreement with the California Court of Appeal’s conclusion. As the Court of Appeal 26 observed, Petitioner’s “focus is misplaced. The fact certain evidence was not presented does not mean there was not sufficient evidence to sustain 27 the conviction.” (Exh. A at 5.) Ultimately, Petitioner’s claim fails because he does not, and cannot, cite to any Supreme Court authority holding that 28 the absence of some evidence, without more, can establish as a matter of 1 law that the evidence presented was legally insufficient to support a conviction. 2 Thus, Petitioner is not entitled to relief from his conviction for assault with a semiautomatic firearm. 3 ECF No. 17, pg. 24. 4 5 Petitioner’s claim that the evidence is insufficient is premised on evidence which 6 was not adduced at trial, such as evidence showing the manner in which the gun was discharged, 7 evidence showing the gun was aimed at anyone in particular, and evidence showing the bullet 8 traveled in a straight line. As the state court observed, however, just because certain evidence 9 was not presented does not necessarily mean the evidence that was presented is insufficient. The 10 issue remains whether, based on the evidence adduced at trial viewed in the light most favorable 11 to the prosecution, a rational jury could convict. 12 Petitioner was charged with assault with a semiautomatic firearm under California 13 Penal Code § 245(b). Section 245(b) states: “Any person who commits an assault upon the 14 person of another with a semiautomatic firearm shall be punished by imprisonment in the state 15 prison for three, six, or nine years.” The trial court instructed the jury pursuant to CALCRIM No. 16 875 – an instruction Petitioner does not challenge – that guilt required proof beyond a reasonable 17 doubt of the following elements: (1) the defendant did an act with a deadly weapon that by its 18 nature would directly and probably result in the application of force to a person; (2) the defendant 19 did that act willfully; (3) when the defendant acted, he was aware of facts that would lead a 20 reasonable person to realize that his act by its nature would directly and probably result in the 21 application of force to someone; and (4) when the defendant acted, he had the present ability to 22 apply force with a semiautomatic firearm to a person. 23 Based on the facts recited by the state court, it was adduced at trial that Sims, the 24 Lowes, and Acosta heard a gunshot coming from the direction of the nearby Tres Hombres 25 restaurant and that, while no one saw the shooter, Sean Lowe immediately felt pain in his leg and 26 realized he had been shot. It was also adduced at trial that, at about the same time, Chesney 27 witnessed a scuffle break out down the street in the direction of the Tres Hombres restaurant. 28 Petitioner was involved in the scuffle. During the fight, someone grabbed Petitioner’s jacket and 1 Petitioner began to run down the street towards Chesney as his jacket was torn off and thrown to 2 the ground. As Petitioner passed Chesney and turned the corner down an alleyway, Petitioner 3 was heard to say, “I’ll be back motherfuckers.” A short time later, Petitioner reappeared from the 4 alleyway brandishing a semiautomatic pistol. As Chesney ducked into a doorway, he saw the 5 group with whom Petitioner had been fighting begin to walk toward Petitioner and then Chesney 6 heard a gunshot. After hearing the gunshot, Chesney saw someone whom he understood had 7 been shot sitting on the ground. Petitioner was the only person Chesney saw who had a gun. 8 It was further adduced at trial that the responding officer – Peter Durfee – found an 9 expended nine-millimeter shell casing near an alley just south of the Tres Hombres restaurant, 10 and a black leacher jacket nearby. A criminalist determined a bullet found at the scene had been 11 fired by an automatic or semiautomatic firearm and not a revolver. Detective Love, who 12 investigated the shooting, learned from witnesses that the suspect’s description matched 13 Petitioner. Further, Love located photos on Petitioner’s social media accounts of Petitioner 14 wearing a similar leather jacket, down to a red wire used to hold the cuff together. Finally, Love 15 located and examined video surveillance footage from a hookah lounge near the crime scene 16 which showed Petitioner run down the street, bump into someone, and pull something from his 17 jacket. Petitioner was seen in the video wearing a red shirt, and Chesney later identified the 18 person wearing the red shirt on the video as the same person he had seen brandishing the gun. 19 This Court agrees with the state court that, when viewed in the light most 20 favorable to the prosecution, this evidence is sufficient to allow a rational jury to convict. A 21 reasonable jury could conclude from the facts adduced at trial that Petitioner fired into the group 22 with whom he had been fighting. This satisfied the first element – that Petitioner did an act with 23 a deadly weapon that by its nature would directly and probably result in the application of force to 24 a person. A reasonable jury could also conclude that the act was willful, satisfying the second 25 element – that Petitioner acted willfully. A jury could further conclude Petitioner was actually 26 aware of facts indicating that a reasonable person would have realized at the time Petitioner fired 27 that the act would directly and probably result in the application of force to someone, satisfying 28 the third element. Finally, a reasonable jury could conclude that Petitioner used a semiautomatic 1 firearm, satisfying the fourth element. 2 Given the facts recited by the state court, this Court cannot say that the state 3 court’s determination is either contrary to or based on an unreasonable application of clearly 4 established federal law. 5 C. Jury Instruction 6 In his third claim, Petitioner asserts the trial court committed reversable error by 7 denying his trial counsel’s request for a “pinpoint” instruction and not instructing the jury that it 8 may not convict Petitioner of assault based upon reckless conduct alone even if such conduct 9 results in injury. See ECF No 1., pg. 34. 10 In general, to warrant federal habeas relief, a challenged jury instruction “cannot 11 be merely ‘undesirable, erroneous, or even “universally condemned,”’ but must violate some due 12 process right guaranteed by the fourteenth amendment.” Prantil v. California, 843 F.2d 314, 317 13 (9th Cir. 1988) (quoting Cupp v. Naughten, 414 U.S. 141, 146 (1973)). To prevail, petitioner 14 must demonstrate that an erroneous instruction “‘so infected the entire trial that the resulting 15 conviction violates due process.’” Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp, 16 414 U.S. at 147). In making its determination, this court must evaluate an allegedly ambiguous 17 jury instruction “‘in the context of the overall charge to the jury as a component of the entire trial 18 process.’” Prantil, 843 F.2d at 817 (quoting Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir. 19 1984)). Further, in reviewing an allegedly ambiguous instruction, the court “must inquire 20 ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a 21 way’ that violates the Constitution.” Estelle, 502 U.S. at 72 (quoting Boyde v. California, 494 22 U.S. 370, 380 (1990)). Petitioner’s burden is “especially heavy” when the court fails to give an 23 instruction. Henderson v. Kibbe, 431 U.S. 145, 155 (1977). Where an instruction is missing a 24 necessary element completely, the “reasonable likelihood” standard does not apply and the court 25 may not “. . . assume that the jurors inferred the missing element from their general experience or 26 from other instructions. . . .” See Wade v. Calderon, 29 F.3d 1312, 1321 (9th Cir. 1994). In the 27 case of an instruction which omits a necessary element, constitutional error has occurred. See id. 28 / / / 1 It is well-established that the burden is on the prosecution to prove each and every 2 element of the crime charged beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364 3 (1970). Therefore, due process is violated by jury instructions which use mandatory 4 presumptions to relieve the prosecution’s burden of proof on any element of the crime charged. 5 See Francis v. Franklin, 471 U.S. 307, 314 (1985); see also Sandstrom v. Montana, 442 U.S. 510 6 (1979). A mandatory presumption is one that instructs the jury that it must infer the presumed 7 fact if certain predicate facts are proved. See Francis, 471 U.S. at 314. On the other hand, a 8 permissive presumption allows, but does not require, the trier of fact to infer an elemental fact 9 from proof of a basic fact. See County Court of Ulster County v. Allen, 442 U.S. 140, 157 10 (1979). The ultimate test of the constitutionality of any presumption remains constant – the 11 instruction must not undermine the factfinder’s responsibility at trial, based on evidence adduced 12 by the government, to find the ultimate facts beyond a reasonable doubt. See id. at 156 (citing In 13 re Winship, 397 U.S. at 364). 14 The California Court of Appeal rejected this claim on direct appeal. The court 15 stated:
16 Defendant contends the trial court erred in failing to give a requested “pinpoint” instruction that “reckless conduct alone cannot constitute an 17 assault with a semiautomatic firearm.” He contends in refusing this instruction, the trial court did not follow controlling Supreme Court 18 precedent that “mere recklessness or criminal negligence cannot suffice to prove an assault.” 19 . . .Defendant requested a pinpoint instruction that read, “You may not 20 convict the defendant of assault based on reckless conduct alone, even if that conduct results in injury.” Defense counsel argued there was an 21 inference that if defendant had shot into a crowd, without an intent to hit anyone, it was probably only gross negligence or recklessness, not assault. 22 He also argued there was a danger CALCRIM No. 875 would mislead the jury into thinking assault had been proven, simply by a shot being fired 23 and some likelihood based on the number of people that someone would be hit. The prosecution argued the law was adequately explained in 24 CALCRIM No. 875. The trial court found the portion of the instruction that informed the jury, “[w]hen the defendant acted, he was aware of facts 25 that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone,” 26 “covers the concerns expressed,” and denied the requested pinpoint instruction. 27 * * * 28 1 Here, CALCRIM No. 875 advised the jury that when defendant acted he had to be “aware of facts that would lead a reasonable person to realize his 2 act by its nature would directly and probably result in the application of force.” The instruction was entirely consistent with the language of People 3 v. Williams, that defendant had to have actual knowledge of the facts and could not be convicted based on facts he should have known but did not. 4 The instructions given adequately informed the jury that recklessness or criminal negligence was insufficient to convict defendant of assault with a 5 semiautomatic firearm. Accordingly, the “requested pinpoint instruction was therefore redundant, unnecessary and properly rejected.” (People v. 6 Canizalez, supra, 197 Cal.App.4th at p. 857.)
7 ECF No. 19-10, pgs. 5-6. 8 In his answer, Respondent argues the state court’s determination is neither 9 contrary to nor based on an unreasonable application of clearly established federal law. See ECF 10 No. 17, pgs. 26. According to Respondent:
11 On direct appeal, Petitioner argued that the standard jury instructions were not sufficient to communicate to the jurors that assault 12 cannot be based on “reckless” or criminally negligent conduct because a defendant cannot be convicted based on “facts he did not know but should 13 have known.” (Pet. at 36 [citing LD 6 at 25].) Petitioner again bases his federal habeas claim on the arguments that his appellate counsel set forth 14 in the opening brief filed on direct appeal. His claim fails because the state court of appeal rejected those arguments in a reasoned decision that was 15 neither contrary to, or an unreasonable application of, clearly established federal law. 16 * * * 17 Here, the California Court of Appeal found that defense trial 18 counsel’s requested pinpoint instruction was unnecessary because the jury was properly instructed with the standard CALCRIM instructions 19 provided; and further, that the proposed instruction was duplicative of the other instructions. Specifically, it held that the trial court adequately 20 instructed on the relevant principles related to assault with CALCRIM No. 875, which “advised the jury that when defendant acted he had to be 21 ‘aware of facts that would lead a reasonable person to realize his act by its nature would directly and probably result in the application of 22 force.’” (Exh. A at 6.) The state Court’s determination that the jury was properly instructed under state law is binding. See Bradshaw v. Richey, 23 456 U.S. 74, 76 (2005). The Constitution does not guarantee a defendant the right to jury instructions phrased in the precise terms he prefers. See 24 Duckett v. Godinez, 67 F.3d 734, 743-746 (9th Cir. 1995) (due process does not require the trial court to instruct on the defendant’s precise theory 25 of the case where other instructions adequately cover the defense theory), cert. denied, 517 U.S. 1158, 116 S.Ct. 1549, 134 L. Ed. 2d 651 (1996). 26 Even if this Court were inclined to disagree with the state court’s interpretation of its own law, it could not grant petitioner the relief he 27 seeks because there is no Supreme Court case with indistinguishable
28 / / / 1 circumstances, in which the Supreme Court “found” a violation of the Constitution. Metrish, 569 U.S. at 367-68. 2 ECF No. 17, pgs. 26-27. 3 4 The premise of Petitioner’s argument is that the pinpoint instruction requested was 5 required because the jury had not been adequately informed that recklessness or negligence alone 6 was insufficient to convict. As the state court noted, the jury was instructed under CALCRIM 7 No. 875 that, to convict, it must find Petitioner acted with actual knowledge that his act by its 8 nature would directly and probably result in the application of force to someone. This Court 9 agrees with both the trial court and the Court of Appeal that CALCRIM No. 875 addressed 10 Petitioner’s concern in that recklessness or negligence are insufficient to convict because actual 11 knowledge of certain facts, i.e., willfulness, is required. The requested instruction was, therefore, 12 redundant. As such, the failure to give the requested instruction could not have rendered the trial 13 fundamentally unfair. 14 The Court finds that the state court’s determination is neither contrary to nor based 15 on an unreasonable application of controlling law. 16 / / / 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 IV. CONCLUSION 2 Based on the foregoing, the undersigned recommends that Petitioner’s petition for 3 | a writ of habeas corpus, ECF No. 1, be denied. 4 These findings and recommendations are submitted to the United States District 5 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 6 | after being served with these findings and recommendations, any party may file written objections 7 | with the court. Responses to objections shall be filed within 14 days after service of objections. 8 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 9 | Yist, 951 F.2d 1153 (9th Cir. 1991). 10 11 | Dated: February 19, 2021 Ssvcqo_ 12 DENNIS M. COTA 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20