(HC) Gonzalez v. Godwin

Opinion

PEDRO ZAMBRANO GONZALEZ, Case No. 1:22-cv-00271-KES-HBK (HC) Petitioner, FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS v. CORPUS AND DECLINE TO ISSUE CERTIFICATE OF APPEALABILITY 1 FOURTEEN-DAY OBJECTION PERIOD Respondent.

Petitioner Pedro Zambrano Gonzalez (“Petitioner” or “Gonzalez”), a state prisoner, is proceeding pro se on his Petition for Writ of Habeas Corpus filed under 28 U. S.C. § 2254 on February 28, 2022. (Doc. No. 1, “Petition”). Petitioner challenges his convictions following a jury trial for (1) attempted murder in violation of Penal Code §§ 664 and 187(a); (2) torture in violation of Penal Code § 206; (3) robbery in violation of Penal Code § 212.5(c); (4) false imprisonment with violence in violation of Penal Code § 236; (5) carrying a loaded, unregistered firearm in violation of Penal Code § 25850(a) and (c); and (6) possession of an assault weapon in violation of Penal Code § 30605, with additional findings that Petitioner personally and 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2022). intentionally discharged a firearm, proximately causing great bodily injury. (Case No.

BF169031A). (Doc. No. 20-18 at 2; see Doc. No. 20-2 at 72-90).2 The Kern County Superior

Court sentenced Petitioner to a total unstayed term of eight years four months plus twenty-five

years to life. (Doc. No. 20-18 at 2; Doc. No. 20-2 at 110). On appeal, the Fifth Appellate District

Court affirmed. (Case No. F077427). (Doc. No. 20-18 at 2). On December 29, 2020, the

California Supreme Court summarily denied review. (Case No. S265437). (Doc. No. 20-20).

The Petition presents two grounds for relief: (1) there was insufficient evidence to support

the torture conviction because there was no evidence to support the great bodily injury element,

and (2) Petitioner received ineffective assistance of counsel, specifically with respect to counsel’s

failure to move to suppress evidence from a vehicle search. (See generally Doc. No. 1 at 10-14).

Respondent filed an Answer (Doc. No. 19) and lodged the state court record in support (Doc.

Nos. 20, 20-1 through 20-20), arguing Petitioner was not entitled to relief on either ground.

Petitioner failed to file a reply and the deadline to do so has long since expired. This matter is

deemed submitted on the reco rd before the Court. After careful review of the record and applicable law, the undersigned recommends the district court deny Petitioner relief on both grounds of his Petition and decline to issue a certificate of appealability. A. Evidentiary Hearing In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007). “It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Id. Here, the state courts adjudicated both of Petitioner’s claims on the merits. This Court finds that the pertinent facts of this case are fully developed in the record before the Court; thus, no evidentiary hearing is required. Cullen v. Pinholster, 563 U.S. 170 (2011). 2 All citations to the pleadings and record are to the page number as it appears on the Case Management and Electronic Case Filing (“CM/ECF”) system. B. ADEPA General Principles

A federal court’s statutory authority to issue habeas corpus relief for persons in state

custody is set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA). AEDPA requires a state prisoner seeking federal habeas relief to

first “exhaus[t] the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). If

the state courts do not adjudicate the prisoner’s federal claim “on the merits,” a de novo standard

of review applies in the federal habeas proceeding; if the state courts do adjudicate the claim on

the merits, then AEDPA mandates a deferential, rather than de novo, review. Kernan v. Hinojosa,

136 S. Ct. 1603, 1604 (2016). This deferential standard, set forth in § 2254(d), permits relief on a

claim adjudicated on the merits, but only if the adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court pro ceeding. 28 U.S.C. § 2254(d). This standard is both mandatory and intentionally difficult to satisfy. Sexton v. Beaudreaux, 138 S. Ct. 2555, 2558 (2018); White v. Woodall, 572 U.S. 415, 419 (2014). “Clearly established federal law” consists of the governing legal principles in the decisions of the United States Supreme Court when the state court issued its decision. White, 572 U.S. at 419. Habeas relief is appropriate only if the state court decision was “contrary to, or an unreasonable application of,” that federal law. 28 U.S.C. § 2254(d)(1). A decision is “contrary to” clearly established federal law if the state court either: (1) applied a rule that contradicts the governing law set forth by Supreme Court case law; or (2) reached a different result from the Supreme Court when faced with materially indistinguishable facts. Mitchell v. Esparza, 540 U.S. 12, 16 (2003). A state court decision involves an “unreasonable application” of the Supreme Court’s precedents if the state court correctly identifies the governing legal principle, but applies it to the facts of the petitioner’s case in an objectively unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005), or “if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to

extend that principle to a new context where it should apply.” Williams v. Taylor, 529 U.S. 362,

407, (2000). “A state court’s determination that a claim lacks merit precludes federal habeas

relief so long as fair-minded jurists could disagree on the correctness of the state court’s

decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011). The petitioner must show that the

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

comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

When reviewing a claim under § 2254(d), any “determination of a factual issue made by a

State court shall be presumed to be correct[,]” and the petitioner bears “the burden of rebutting

the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Burt

v. Titlow, 571 U.S. 12, 18 (2013) (“[A] state-court factual determination is not unreasonable

merely because the federal habeas court would have reached a different conclusion in the first

instance.”) (quoting Wood v. Allen, 558 U.S. 290, 293 (2010)).

Even if a petitioner m eets AEDPA's “difficult” standard, he must still show that any constitutional error had a “substantial and injurious effect or influence” on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). As the Supreme Court explained, while the passage of AEDPA “announced certain new conditions to [habeas] relief,” it didn't eliminate Brecht’s actual- prejudice requirement. Brown v. Davenport, 596 U.S. 118, 134 (2022). In other words, a habeas petitioner must satisfy Brecht, even if AEDPA applies. See id. at 138 (“[O]ur equitable precedents remain applicable ‘whether or not’ AEDPA applies.”) (citing Fry v. Pliler, 551 U.S. 112, 121 (2007)). In short, a “federal court must deny relief to a state habeas petitioner who fails to satisfy either [Brecht] or AEDPA. But to grant relief, a court must find that the petition has cleared both tests.” Id. at 134. As discussed supra, for the deferential § 2254(d) standard to apply there must have been an “adjudication on the merits” in state court. An adjudication on the merits does not require that there be an opinion from the state court explaining the state court’s reasoning. Richter, 562 U.S. at 98. “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Id. at 99. “The presumption

may be overcome when there is reason to think some other explanation for the state court’s

decision is more likely.” Id. at 99-100. This presumption applies whether the state court fails to

discuss all the claims or discusses some claims but not others. Johnson v. Williams, 568 U.S.

289, 293, 298-301 (2013).

While such a decision is an “adjudication on the merits,” the federal habeas court must

still determine the state court’s reasons for its decision in order to apply the deferential standard.

When the relevant state-court decision on the merits is not accompanied by its reasons,

the federal court should “look through” the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning. But the State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court’s decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed.

Wilson v. Sellers, 138 S. Ct. 1 188, 1192 (2018). The federal court “looks through” the silent state court decision “for a specific and narrow purpose—to identify the grounds for the higher court’s decision, as AEDPA directs us to do.” Id. at 1196. The Court adopts the pertinent facts of the underlying offenses, as summarized by the California Fifth District Court of Appeal. A presumption of correctness applies to these facts. See 28 U.S.C. § 2254(e)(1); Crittenden v. Chappell, 804 F.3d 998, 1010-11 (9th Cir. 2015).

I

JULY 6, 2017

A. Discovery of the Victim

Late at night on July 6, a member of the housekeeping staff at Mercy Hospital in downtown Bakersfield was on a break near the ambulance bay, when she heard tires screeching. A car fishtailed into the ambulance bay, then someone said, “[G]et him out of my car” or “[G]et out of my car.” The passenger door was flung open and a man was shoved out onto the street. When the housekeeper reached him, she saw he was bleeding heavily. He kept grabbing for the side of his head and saying he was shot. The housekeeper ran into the emergency room to get help. The injured man was Michael R. He was suffering from multiple gunshot wounds. He had injuries to his head, knees, shoulder, foot, and ankle. As of the time of trial, he had scars on the back, top, and side of his head. He was told that two bullets grazed his head, while the other head injuries were from an object. It took approximately 17 staples to close the head wounds. He was shot in the shoulder, and the bullet remained in his body as of the time of trial. There were three bullet wounds in each knee, and he had a lot of glass cuts to, and glass still in, both knees. Two bullets went through his left ankle, necessitating surgery to insert metal plates. It took Michael four and a half to five months to walk again, and he would never be able to run. The pain was “[t]remendous.” As of trial, he was still in constant pain. B. Michael’s Trial Testimony Michael met Jose Z. one time. He did not know Jose’s brother — defendant —although he knew of him. He had never seen defendant outside of court proceedings. Sometime prior to July 6, a woman borrowed $1,200 from Jose, but gave it to Michael to hold. Michael was supposed to take it to a bail bond agent for someone else. The shooting occurred at a house in the 1200 block of 3rd Street in Bakersfield. M ichael’s car had been stolen, and he had put up a reward for it. A girl he knew said that if he went to that house, the people there knew the girl who had stolen the car and could get her to come over to the house. Michael had been to the house once before. There were always several people there. Michael spoke to defendant by phone just before going to the house. He did not recall what defendant said, but “assume[d]” the conversation was about the stolen car. When Michael arrived at the house, neither Jose nor defendant was there. When Michael went inside, two men entered behind him. He immediately knew something was wrong. He reached for the door handle so he could leave and was struck in the back of the head with a small pistol — possibly .22-caliber — by a Black male. The other person was an overweight Hispanic male called “Gordo.” Michael was unable to get through the screen door, then the gun was in his face and the man holding the gun told him to sit down. Michael sat on the couch in the living room. This was the only gun he saw at that point, but later, he saw a third man with a gun. This person, who was already inside the house, was not defendant. Michael did not recognize him.

Gordo tied Michael’s legs with an Ethernet cable or extension cord, while the Black man held the gun to Michael’s face. The men asked Michael to empty his pockets. Michael gave up everything in his pockets, which was about $2,200 to $2,500 in cash. Meanwhile, the third man was going around the house, grabbing items and putting them in a backpack. Michael asked if there was anything else he could give them to make them let him go. He took out his cell phone and said he could call and have any amount of money there that they wanted. Gordo took the phone and threw it. Michael gave them a diamond ring worth about $15,000, and proposed they take it and let him go.

Michael believed he was tied up for about 15 minutes. He thought he was conscious the entire time, but there were “blur spots” he did not remember. He thought he tried to get away. Somehow, he ended up between the living room and the kitchen, with the Black man hitting him in the head with a guitar while Michael was on the ground with his legs tied. The third person pulled a larger gun out of the backpack. Michael believed it was a .40- or .45-caliber Glock. It was a black semiautomatic with a white sight and a big barrel.

The third time the Black man struck Michael with the guitar, the instrument hit Michael in the mouth and broke in half. The man with the Glock was “doing his own thing” and not paying attention. When he got too close to Michael, Michael tried to grab the gun, and he and the other men ended up in a “dog pile” with Michael on top of one of the men and underneath the other two. Michael bit the third person’s hand to get the Glock.

After that, they “[f]ought back and forth with hands.” There was a lot of blood. When Michael got the gun, the clip was ejected. He pushed the clip back in and tried to pull the slide back to chamber a round so he could shoot, but it was too slimy from blood. Michael did not know if he had been shot by then, but he felt blood coming down the side of his head. The Black man fired at him “point blank” while they were in the dog pile.

At some point, Michael got under the table and then made his way to the sliding glass door in the kitchen. He did not recall that part, or how the person with the backpack ended up with the Glock again. The sliding glass door was locked, so Michael tried to break it with something. He could feel himself getting shot by the Black man with the smaller gun. The man with the Glock shot him in the ankle. Michael did not know which round went through the glass door, but the glass shattered. He was fairly sure the Glock was fired twice.

Michael tried to stand, but his ankle would not hold his weight, causing him to fall back down on top of the glass. He pushed the glass out and crawled across it into the back or side yard. His legs were still tied. Once he got outside, the only way to free his legs was to take off his pants. Once he did that, he crawled to the gate in the fence, only to find it also was locked. He managed to pull himself to the top of the six- to eight-foot fence, then flipped himself over and crawled another 45 feet or so to where the car that had brought him to the house was waiting. The driver took him to a hospital, from which he was transferred to Kern Medical Center (KMC).

At one point while he was at KMC, Michael thought his father was with him, but it was Bakersfield Police Detective Pair. Michael told Pair what happened and that it could have been defendant who inflicted the injuries. The identification was based on an assumption as to whom Michael was supposed to meet at the house. Michael did not really recall what occurred while he was being treated. He told Pair that defendant was Jose’s brother, and that the house where everything happened was on 3rd Street. Michael did not recall Pair showing him a photographic lineup. Michael was certain the third person was not defendant. Michael was not afraid of defendant or Jose. He had no reason to be. He identified defendant at the preliminary hearing on July 28, but Pair threatened him. He did not recall what he said at the preliminary hearing. C. Law Enforcement and Related Testimony At approximately 10:00 p.m. on July 6, Bakersfield Police Officer Hamma responded to Mercy Hospital regarding a report of an assault with a deadly weapon. When he arrived, he was informed the victim was being transported to KMC for treatment. Hamma then followed the ambulance to KMC. Once Michael was taken out of the ambulance, Hamma asked who assaulted him. Michael responded that it was “Pedro,” Jose’s brother. He also gave what he believed to be their last name and where they lived on 3rd Street. Michael said he had gone there, and they tied him up and took his money. Pedro took his phone and shattered it. Pedro shot him. Michael described Pedro, and said “Gordo” and a Black man Michael did not know were involved. After, they took off running. At no time during the conversation did Michael appear uncertain as to who shot him. During the conversation, he lapsed in and out of consciousness or sleep at least once. Bakersfield Police Officer Hardin also spoke with Michael at KMC. Michael said “Pedro” had done this to him. He did not give a last name. He said Pedro kicked him in the face, and identified Pedro, possibly Gordo, and a Black man as the ones involved in the incident. Michael said he had borrowed money from Jose to help another friend, and they took well over $1,200 from him that night. Pedro kept saying that he had told Michael to have the money ready. Michael kept telling him that he had the money in his pocket, but “[t]hey still only wanted to do is . . . tie [Michael] up and fuck [him] up.”

Bakersfield Police Officers Celedon and Jauch responded to the 1200 block of 3rd Street to attempt to locate the crime scene. Celedon observed a trail of what appeared to be dried blood leading from the sidewalk up the driveway of a house to the east portion of the fence that led to the rear yard. Jauch obtained a key from a neighbor, allowing the officers to gain entry through the chained security door at the front of the house. Inside, there was damage throughout the house, including a shattered sliding glass door in the kitchen from which a chain was hanging and away from which the blood trail led. There was also fresh, wet blood on the floors of the living room and kitchen. Officers did not find anyone inside. Officers obtained a search warrant and reentered the house approximately 30 to 45 minutes later. Among items seized in the search were blood samples, two spent .45- caliber shell casings, a bullet fragment, a cell phone, and a cracked guitar with dried blood on the bottom. The guitar weighed an estimated 10 to 15 pounds. A pair of bloodstained jeans was found in the area of the fence. DNA results showed Michael could not be excluded as the source of the blood on the guitar and found elsewhere at the scene.

Pair interviewed Michael at KMC on the afternoon of July 7. During the interview, Michael looked disheveled and was writhing in pain, although he was coherent. Pair explained that he wanted to show Michael some pictures, to see if Michael could identify the person responsible. When Pair asked if Michael felt he was in the right state of mind to be able to do that, Michael answered affirmatively. He said the person who did it was named Pedro. Shown a photographic lineup, Michael said number one looked like him the most, but “fatter.” Michael agreed with Pair’s interpretation that Michael was saying if number one was skinnier, it would be Pedro. Michael said he knew him “real well.” Defendant was in the number one position in the photographic lineup. Pair related some of Michael’s testimony at the preliminary hearing. At that hearing, Michael said he believed his life was in danger. Defendant and Jose had control over him, and he had been threatened by men sent by defendant to collect the debt owed by Michael to defendant and Jose. Michael contacted defendant before going to the house on 3rd Street on July 6. At the preliminary hearing, Michael identified defendant and said he was at the house when Michael arrived. Defendant gave the order to tie Michael’s legs and held a “Glock-40” to Michael’s head. Defendant reached into Michael’s pockets and took his money. Michael described defendant as being angry during the incident at the house. Defendant said he had already sent two people for the money, and he was upset about the length of time it took for payment. Defendant said he also owed people money and was being threatened for it. Defendant took Michael’s cell phone, threw it, and shot Michael twice in the leg. Defendant was not aiming at the leg; he was aiming at Michael and hit him in the leg. Michael also testified at the preliminary hearing that the photograph in the number one position was the one of the six photographs that was most like defendant. The photograph was not recent enough for Michael to be positive, because defendant was a lot skinnier now. II JULY 12, 2017 At approximately 2:00 a.m. on July 12, Bakersfield Police Officers Glenn and Schinler drove their respective patrol vehicles into the parking lot of the Vagabond Inn on Panama Lane, just east of Freeway 99. As Glenn entered the parking lot, he saw a car immediately exit the lot and leave the area at a high rate of speed. The officers followed the car onto the freeway, then, when it exited, Schinler made a traffic enforcement stop.

Before the officers approached the vehicle, Glenn noticed some fidgeting on the driver’s side. He could see the silhouette of two heads inside the car. The driver’s head was going down and up as if he was picking something up or putting something down. As Schinler approached the driver side door, Glenn observed the driver, subsequently identified as defendant, start to take his hands from the steering wheel and go underneath the seat. Glenn ordered him to put his hands back on the steering wheel. Schinler obtained the names of the vehicle’s occupants. Both were subject to outstanding warrants. They were taken into custody and placed in officers’ vehicles. A search of the car revealed a .45- caliber ACP handgun, containing nine live rounds, under the driver’s seat and an AK-47-type assault rifle with a detached magazine, containing 26 live rounds, in a guitar case in the trunk. Neither gun was registered. DNA analysis showed neither defendant nor Michael could be excluded as sources of the DNA obtained from the .45-caliber handgun. Michael was excluded as a possible contributor to the DNA obtained from the AK-47, while defendant could not be excluded. Firearm testing showed the spent cartridge casings found at the crime scene were fired by the .45-caliber pistol. The firearm examiner was unable to determine whether the bullet fragment came from tha t firearm, although the fact it was copper jacketed rather than copper washed made it more consistent with being a .45-caliber round than .22-caliber round.

(Doc. No. 20-18 at 3-10 (footnotes omitted)). Respondent acknowledges that Petitioner’s grounds for relief were raised on direct appeal to the Fifth Appellate District Court, denied on the merits (Doc. No. 20-18), then subsequently raised to, and summarily denied by the California Supreme Court (Doc. No. 20-20). Thus, both grounds are exhausted, and the Court looks to the Fifth Appellate District’s reasoned decision in evaluating each of Petitioner’s claims under the deferential standard of review. Wilson, 138 S. Ct. at 1192. A. Ground One-Sufficiency of the Evidence In his first ground, Petitioner argues there was insufficient evidence to support his torture conviction because the evidence of great bodily injury was linked to the firearm being discharged, “which was totally independent of when the alleged torture took place.” (Doc. No. 1 at 10). //// 1. State Court Decision

In denying Petitioner’s insufficiency claim on direct review, the Fifth Appellate District

court found as follows:

Defendant contends the evidence is insufficient to sustain his conviction for torture (count 2). We conclude otherwise. The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is “reasonable, credible, and of solid value.” (People v. Johnson, supra, at p. 578.) An appellate court must “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). “If the circumstances reasonably justify the [trier of fac t’s] findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.]” (People v. Redmond (1969) 71 Cal.2d 745, 755.) Instead, reversal is warranted only if “it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) This standard of review is applicable regardless of whether the prosecution relies primarily on direct or on circumstantial evidence. (People v. Lenart (2004) 32 Cal.4th 1107, 1125.) Section 206 provides, in pertinent part: “Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture.” Torture thus “has two elements: (1) the infliction of great bodily injury; and (2) the specific intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose. [Citation.]” (People v. Massie (2006) 142 Cal.App.4th 365, 370-371.)

Defendant first contends the evidence failed to establish he inflicted great bodily injury during the alleged torture. Defendant argues there were two discreet assaults on Michael, the first when he was held captive and was hit, kicked, and struck with a guitar; and the second when he was shot while trying to escape. Because only the shooting resulted in great bodily injury, the argument runs, the great bodily injury did not occur during the alleged torture. Great bodily injury, as defined in section 12022.7, “means a significant or substantial physical injury.” (§ 12022.7, subd. (f).) It is injury that is “not insignificant, trivial, or moderate. [Citation.]” (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) “ ‘Abrasions, lacerations and bruising can constitute great bodily injury. [Citation.]’ ” (People v. Hale (1999) 75 Cal.App.4th 94, 108.) Torture can be committed by a course of conduct. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1429.) When such is the case, “it is not necessary that any single act in the course of conduct results in great bodily injury. Rather, if the requisite intent exists and the cumulative result of the course of conduct is great bodily injury, the crime of torture has been committed. [Citation.]” (People v. Mejia (2017) 9 Cal.App.5th 1036, 1043; accord, People v. Hamlin, supra, at p. 1429.) Moreover, “[t]he statutory definition of torture does not require a direct use of touching, physical force, or violence, but instead is satisfied if the defendant, directly or indirectly, inflicts great bodily injury on the victim.” (People v. Lewis (2004) 120 Cal.App.4th 882, 888, italics added.) In other words, a defendant can be convicted of torture as an aider and abettor. (Id. at p. 889.) “Section 206’s reference to section 12022.7 . . . does not give defendant an opening to argue that section 206 requires defendant to have personally inflicted the torture in the same way that section 12022.7 requires there be personal infliction of injury for th e statute to operate.” (Id. at pp. 888-889, fns. omitted.) In the present case, there was evidence of blood in the immediate entryway of the residence, substantiating Michael’s testimony that he was hit in the head as soon as he entered. Michael testified at the preliminary hearing that defendant gave the order to tie his legs. A reasonable inference can be drawn from Michael’s trial testimony that he was already bleeding badly by the time of the struggle over the larger caliber firearm. Celedon estimated the guitar, with which Michael had been struck in the head, was heavy, weighing 10 to 15 pounds. Jurors were shown photographs of Michael’s injuries, and were instructed on aiding and abetting principles.

In light of the foregoing, jurors reasonably could have concluded the torture in this case was committed by a course of conduct, and that defendant inflicted great bodily injury during the torture, either as a direct perpetrator or an aider and abettor. The fact the trial court, in denying defendant’s section 1118.1 motion, appears to have agreed with defendant that great bodily injury was not inflicted until the struggle over the gun, is immaterial. The question for the trial court in ruling on the motion was “ ‘ “simply whether the prosecution ha[d] presented sufficient evidence to present the matter to the jury for its determination.” [Citation.]’ ” (People v. Dalton (2019) 7 Cal.5th 166, 249.) The jury was in no way bound by the trial court’s reasoning. “[D]etermining whether a victim has suffered physical harm amounting to great bodily injury is not a question of law for the court but a factual inquiry to be resolved by the jury. [Citations.] ‘ “A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description.” ’ [Citations.] Where to draw that line is for the jury to decide.” (People v. Cross (2008) 45 Cal.4th 58, 64.)

. . .

Substantial evidence supports defendant’s conviction of torture.

(Doc. No. 20-18 at 10-14 (footnotes omitted)).3

2. Federal Habeas Analysis

At the outset, Petitioner does not explain how the state court’s rejection of this claim was

unreasonable or based on an unreasonable determination of the facts. In evaluating this claim, the

undersigned reviews the state court’s reasoned decision under the deferential standard of review

applying clearly established federal law.

The Due Process Clause of the Fourteenth Amendment protects a criminal defendant from

conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the

crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). The federal standard

for determining the sufficienc y of the evidence to support a jury finding is set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Under Jackson, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319 (emphasis in original); see also Coleman v. Johnson, 566 U.S. 650, 656 (2012) (“the only question under Jackson is whether that finding was so insupportable as to fall below the threshold of bare rationality”); Cavazos v. Smith, 565 U.S. 1, 2 (2011) (a reviewing court “may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury”). The Jackson standard “must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n.16; Juan H. v. Allen, 408 F.3d 1262, 1275-76 (9th Cir. 2005). The reviewing court should look to state law for the 3 The state appellate court also analyzed whether there was sufficient evidence to support the requisite intent for the torture conviction. (See Doc. No. 20-18 at 13-14). However, because Petitioner does not challenge the intent element in his Petition, this Court need not discuss this element further. elements of the offense and then turn to the federal question of whether any rational trier of fact

could have found the essential elements of the crime supported by sufficient evidence beyond a

reasonable doubt. See Johnson v. Montgomery, 899 F.3d 1052, 1056 (9th Cir. 2018).

Further, when both Jackson and AEDPA apply to the same claim, the claim is reviewed

under a “twice-deferential standard.” Parker v. Matthews, 567 U.S. 37, 43 (2012). As noted by

the Supreme Court:

First, on direct appeal, “it is the responsibility of the jury−not the court−to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.” And second, on habeas review, “a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was ‘objectively unreasonable.’ ”

Coleman, 566 U.S. at 651.

Under California law, torture is committed when an individual, “with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another.” Cal. Penal Code § 206. “‘[G]reat bodily injury’ means a significant or substantial physical injury.” Cal. Penal Code § 12022.7(f)(1). While the severity of the injury is relevant, it is not necessarily determinative and there is no requirement that the injury be permanent, disabling, or disfiguring. People v. Massie, 142 Cal. App. 4th 365, 371 (Cal. Ct. App. 2006); People v. Pre, 117 Ca. App. 4th 413, 420 (Cal. Ct. App. 2004). Here, the state appellate court applied the Jackson test and determined there was sufficient evidence to support the Petitioner’s torture conviction as defined by California law. Petitioner renews the same argument he raised to the state appellate court—that because the only evidence of bodily injury was connected to the gunshot wounds, rather than any other cause, it was insufficient to support the separate torture conviction. (Doc. No. 1 at 10-11). However, Petitioner wholly fails to explain how the state court’s rejection of this claim was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent. (See generally Doc. No. 1 at 10-11). Nor does Petitioner claim that the state court’s factual findings were

unreasonable.

A review of the record reveals that sufficient trial evidence supported Petitioner’s torture

conviction. The victim testified that he suffered injuries to his head, knees, shoulder, foot, and

ankle, but not all of these injuries were from gunshot wounds. (Doc. No. 20-5 at 29). The victim

specifically testified that one of his head wounds was from an object. (Id.). Later, as he was

describing the events of the night in question, he testified that he was hit in the back of the head

with a small pistol, his legs were bound, and he was hit in the head again with a guitar with

enough force to break the guitar. (Id. at 46-47, 49, 53, 56-57). Officer Andrew Celedon, who

recovered the guitar from the home during a search, testified that the guitar weighed between ten

to fifteen pounds and had blood on it. (Doc. No. 20-6 at 85-86, 88). DNA testing determined the

blood on the guitar belonged to the victim. (Doc. No. 20-7 at 114-15).

Viewing the evidence in the light most favorable to the prosecution and even without

considering the evidence rela ted to the gunshot wounds, a rational trier of fact could have found beyond a reasonable doubt that the victim suffered great bodily injury from the hits to his head from the pistol and guitar. As such, the state court’s rejection of Petitioner’s sufficiency of the evidence claim was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent, nor was it based on an unreasonable determination of the facts. The undersigned recommends that ground one be denied. B. Ground Two-Ineffective Assistance of Counsel In his second ground, Petitioner argues he received ineffective assistance of counsel because his trial counsel failed to challenge the admission of the firearms evidence based on an allegedly illegal search. (Doc. No. 1 at 11-12). Petitioner argues “[t]he search of the closed container in the trunk was not a valid search incident to arrest, cannot be justified under the good faith, inevitable discovery, automobile, community caretaking, or inventory search exceptions to the exclusionary rule.” (Id. at 13). 1. State Court Decision In denying Petitioner’s ineffective assistance claim on direct review, the Fifth Appellate District court found as follows:

INEFFECTIVE ASSISTANCE OF COUNSEL Defendant contends his trial attorney’s performance was constitutionally defective with respect to count 7, because counsel failed to move to suppress the AK-47 found following defendant’s arrest. Defendant concedes the vehicle stop, arrest, and search of the passenger compartment of the vehicle were lawful. He argues, however, that the warrantless search of the trunk, which included opening the closed guitar case, was unlawful. We conclude defendant has failed to establish ineffective assistance of counsel.

The applicable law is settled. The burden of proving ineffective assistance of counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425, overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) “To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings. [Citations.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-694.) “To make a showing of constitutionally inadequate representation by counsel when failure to seek suppression of evidence on a Fourth Amendment ground is asserted as the basis for the ineffective counsel claim, the party must establish that the Fourth Amendment claim had merit and that it is reasonably probable that a different verdict would have been rendered had the evidence been excluded. [Citations.]” (People v. Coddington (2000) 23 Cal.4th 529, 652, superseded by statute on another ground as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1107, fn. 4 & overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) The parties discuss whether the search and opening of the guitar case could be justified as a search incident to arrest and/or on the basis of probable cause to believe there was contraband or evidence of a crime inside the vehicle. (See, e.g., Arizona v. Gant (2009) 556 U.S. 332, 335, 347; People v. Lee (2019) 40 Cal.App.5th 853, 861.) Glenn testified he and Schinler were conducting an inventory search, because the vehicle was going to be towed. Because defendant had been arrested, Glenn and Schinler had authority under state law to impound the vehicle. (People v. Redd (2010) 48 Cal.4th 691, 721; see Veh. Code, § 22651, subd. (h)(1).) Having decided to impound the vehicle, the officers had authority to conduct an inventory of the vehicle’s contents “ ‘aimed at securing or protecting the car and its contents.’ [Citation.]” (People v. Redd, supra, at p. 721, fn. omitted; see Colorado v. Bertine (1987) 479 U.S. 367, 381; South Dakota v. Opperman (1976) 428 U.S. 364, 368-369; People v. Zavala (2018) 19 Cal.App.5th 335, 340.) In order to be reasonable under the Fourth Amendment, however, such a search and the opening of any containers cannot be a pretext for an investigatory purpose and must adhere to preexisting policy or practices. (Florida v. Wells (1990) 495 U.S. 1, 4-5; People v. Zabala, supra, 19 Cal.App.5th at p. 341; People v. Wallace (2017) 15 Cal.App.5th 82, 90.)

Here, no evidence was presented at trial concerning the existence of, or conduct of the search pursuant to, any preexisting policy or procedures. From this, defendant concludes there is a reasonable probability that had his trial attorney brought a suppression motion, the AK-47 assault rifle would have been suppressed; hence, his conviction on count 7 must be reversed. We disagree. While, when a defendant has sought suppression of evidence, the prosecution bears the burden of demonstrating a legal justification for a warrantless search, which is presumed to be unreasonable under the Fourth Amendment (People v. Simon (2016) 1 Cal.5th 98, 120), defendant’s claim here is ineffective assistance of counsel. On that, as we have said, defendant bears the burden. (People v. Pope, supra, 23 Cal.3d at p. 425.) We cannot tell, from the record on appeal, whether a suppression motion would have had merit. Evidence concerning the existence of any standardized criteria for inventory searches would have been irrelevant at trial, since the search was never challenged.

“If the record contains no explanation for [counsel’s] challenged behavior, an appellate court will reject the claim of ineffective assistance ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citation.]” (People v. Kipp (1998) 18 Cal.4th 349, 367.) In other words, “in assessing a Sixth Amendment attack on trial counsel’s adequacy mounted on direct appeal, competency is presumed unless the record affirmatively excludes a rational basis for the trial attorney’s choice. [Citations.]” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260, original italics.) Because the record on appeal does not show why the search was never challenged, defendant is not entitled to reversal on direct appeal unless counsel simply could have had no satisfactory explanation for failing to bring a suppression motion. No such finding can be made; for all the record before us shows, counsel knew the police department had the required standard criteria and policy, and the officers acted pursuant thereto so that a motion inevitably would have failed. “Counsel is not ineffective for failing to make a frivolous motion.” (People v. Weaver (2001) 26 Cal.4th 876, 931.)

Based on the record before us, we can ascertain neither deficient performance nor prejudice. Accordingly, defendant has failed to bear his burden of establishing ineffective assistance of counsel.

(Doc. No. 20-18 at 14-17 (footnote omitted)).

2. Federal Habeas Analysis

As an initial matter, the Court must clarify the scope of Petitioner’s ineffective assistance

claim. Despite specifically indicating that he is “[n]ot challenging the procedure in which the

firearms were discovered is the basis of Petitioner’s ineffective assistance claim,” Petitioner also

references trial counsel’s failure to object to testimony from the victim and investigating officer

and makes a general plea that the Court “consider trial counsel’s representation as a whole when

considering trial strategy[,] tactical decisions and ultimately effective representation.” (Doc. No.

1 at 12-13). However, a petitioner challenging counsel’s performance “must identify the acts or

omissions of counsel that are alleged not to have been the result of reasonable professional

judgment.” Strickland v. Washington, 466 U.S. 668, 690 (1984). Thus, Petitioner cannot assert a

general challenge to counsel’ s conduct. With respect to trial counsel’s failure to object to testimony from the victim and investigating officer, Petitioner did not raise these claims to the state court such that they are unexhausted. Accordingly, the Court construes the ground two as asserting a single ineffective assistance claim based on counsel’s failure to challenge the firearm evidence discovered in the vehicle. Criminal defendants have a right to counsel at trial and on direct appeal. U.S. Const. Amend VI. Claims alleging that trial or appellate counsel were constitutionally ineffective require the Court to engage in the two-step analysis set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under the first prong of that test, the petitioner must prove that his attorney’s representation fell below an objective standard of reasonableness. Id. at 687-88. To demonstrate deficient performance, the petitioner must show his counsel “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687; Williams v. Taylor, 529 U.S. 362, 391 (2000). In reviewing trial counsel’s performance, however, “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at

690; Yarborough v. Gentry, 540 U.S. 1, 8 (2003). Only if counsel’s acts and omissions,

examined within the context of all the circumstances, were outside the “wide range” of

professionally competent assistance, will petitioner meet this initial burden. Kimmelman v.

Morrison, 477 U.S. 365, 386 (1986); Strickland, 466 U.S. at 689-90.

Under the second part of Strickland’s two-prong test, the petitioner must show that he was

prejudiced by counsel’s conduct. 466 U.S. at 694. Prejudice is found where there is a reasonable

probability that, but for his counsel’s errors, the result would have been different. Id. The errors

must not merely undermine confidence in the outcome of the trial but must result in a proceeding

that was fundamentally unfair. Williams, 529 U.S. at 393 n.17; Lockhart v. Fretwell, 506 U.S.

364, 372 (1993). The petitioner must prove both prongs: deficient performance and prejudice. A

court need not, however, determine whether counsel’s performance was deficient before

determining whether the petitioner suffered prejudice as the result of the alleged deficiencies.

Strickland, 466 U.S. at 697 (“ If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”). Petitioner once again fails to explain how the state court’s rejection of his ineffective assistance claim was unreasonable or based on an unreasonable determination of the facts. The state court correctly identified and applied the two-prong Strickland analysis in disposing of Petitioner’s claim. In assessing counsel’s performance, the state court found there was no evidence to support that counsel should have challenged the inventory search, which is generally permissible under the Fourth Amendments so long as it conducted consistent with standard procedures and is not “a ruse for general rummaging in order to discover incriminating evidence.” Florida v. Wells, 495 U.S. 1, 4 (1990). As the state court recognized, in the absence of any evidence to the contrary, the decision not to challenge the search may have been based on counsel’s knowledge of the relevant police department’s policies and practices concerning inventory searches and counsel’s belief that the search here was proper. Counsel had no duty to make a frivolous motion. Polk Cnty. v. Dodson, 454 U.S. 312, 324 (1981) (“It is the obligation of any lawyer—whether privately retained or publicly appointed—not to clog the courts with frivolous motions or appeals.”). Thus, Petitioner’s claim fails on the deficiency prong. Further,

Petitioner mistakenly presumes if deficiency is shown he is automatically entitled to habeas relief.

Even if Petitioner could prevail on the deficiency prong, he fails to address, yet alone

demonstrate, the prejudice prong.

Thus, the state court’s rejection of Petitioner’s ineffective assistance of counsel claim

based on counsel’s failure to move to suppress the firearm evidence was not contrary to, or an

unreasonable application of, clearly established Supreme Court precedent, nor was it based on an

unreasonable determination of the facts. The undersigned recommends that ground two be

denied.

A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district

court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253;

Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing § 2254 Cases requires a

district court to issue or deny a certificate of appealability when entering a final order adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires the petitioner to show that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because Petitioner has not made a substantial showing of the denial of a constitutional right, the undersigned recommends that the court decline to issue a certificate of appealability. Accordingly, it is RECOMMENDED: 1. Petitioner be DENIED all relief on his Petition for Writ of Habeas Corpus (Doc. No. 1); and 2. Petitioner be denied a certificate of appealability. //// These Findings and Recommendations will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days after being served with a copy of these Findings and Recommendations, a party may file written objections with the Court. /d.; Local Rule 304(b). The document should be captioned, “Objections to Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen (15) pages. The Court will not consider exhibits attached to the Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its CM/ECEF document and page number, when possible, or otherwise reference the exhibit with specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by the District Judge when reviewing these Findings and Recommendations under 28 U.S.C. § 636(b)d)(C). A party’s failure to file any objections within the specified time may result in the waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). Dated: _ February 28, 2025 Mihaw. Wh. foareh Zaskth HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 21