(HC) Herrera v. Matteson

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ARMANDO E. HERRERA, Case No. 1:19-cv-01150-JLT-HBK (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DENY AMENDED PETITION FOR WRIT OF 13 v. HABEAS CORPUS AND TO DECLINE TO ISSUE A CERTIFICATE OF 14 GISELLE MATTESON, APPEALABILITY 1 15 Respondent. FOURTEEN-DAY OBJECTION PERIOD 16 (Doc. No. 20) 17 18 19 20 Petitioner Armando E. Herrera (“Herrera” or “Petitioner”), a state prisoner proceeding pro 21 se, has pending an amended Petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 22 20, “amended Petition”). The amended Petition raises one ground for relief: the evidence was 23 insufficient to support his conviction. (Id. at 7-9). For the reasons set forth below, the 24 undersigned recommends the district court deny Petitioner any relief on his amended Petition and 25 decline to issue a certificate of appealability. 26 //// 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 BACKGROUND 2 A. Procedural History 3 Herrera initiated this case on August 20, 2019 by filing a pro se petition for writ of habeas 4 corpus under 28 U.S.C. § 2254. (Doc. No. 1). On May 12, 2020, Respondent moved to dismiss 5 the petition on the basis that most of the grounds were unexhausted. (Doc. No. 11). On June 4, 6 2020, Herrera moved for a stay and abeyance of his petition for the purpose of exhausting his 7 unexhausted claims before the state courts. (Doc. No. 16). Respondent opposed the motion to 8 stay. (Doc. No. 17). On July 14, 2020, the then-assigned magistrate judge issued an order to 9 show cause to Petitioner why his motion to stay should not be denied. (Doc. No. 18). On 10 September 14, 2020, Herrera notified the Court that he wished to dismiss his unexhausted claims 11 and proceed only with his exhausted claims. (Doc. No. 19). Herrera accompanied his notice with 12 his amended Petition. (Doc. No. 20). On November 17, 2020, the case was reassigned to the 13 undersigned. (Doc. No. 21). 14 The amended Petition identified three grounds for relief. (Doc. No. 20). On May 10, 15 2021, Respondent filed a motion to dismiss grounds two and three in the amended Petition as 16 untimely. (Doc. No. 24). Petitioner opposed the motion only as to ground three, but conceded 17 ground two was untimely. (Doc. No. 27). On November 16, 2021, the undersigned issued 18 findings and recommendations to grant Respondent’s motion to dismiss grounds two and three as 19 untimely, and the findings and recommendations were adopted in full on March 14, 2022. (Doc. 20 Nos. 29, 37). Respondent then filed an answer to the remaining ground in the amended Petition, 21 and lodged the pertinent state court record. (Doc. Nos. 39, 40). On June 6, 2022, Herrera filed a 22 traverse. (Doc. No. 41). The matter is deemed submitted on the record before the Court. 23 B. Facts Based Upon the State Court Record 24 In 2014, a Kern County jury convicted Herrera of second degree murder; personally 25 discharging a firearm at an occupied motor vehicle; and carrying a loaded firearm in public while 26 actively participating in a criminal street gang. (Doc. No. 20 at 1; Doc. No. 39-1 at 572-73). The 27 Court adopts the pertinent facts of the underlying offenses, as summarized by the California Court 28 of Appeal. Unless a petitioner demonstrates by clear and convincing evidence otherwise, a 1 presumption of correctness applies to these facts. See 28 U.S.C. § 2254(e)(1); Crittenden v. 2 Chappell, 804 F.3d 998, 1010-11 (9th Cir. 2015). 3 Prosecution’s Case 4 On June 5, 2005, at about 5:00 p.m., Detective Pete Mendoza responded to a report of gunfire at the Sno Fun shave ice drive-in in 5 Delano. When he arrived at the scene, he found Ebelio Avila slumped over in the driver’s seat of his pickup truck, deceased. 6 Avila had suffered gunshot wounds to his face and head. 7 Eyewitnesses 8 Thelma Ontiveros 9 Thelma Ontiveros was parked next to the driveway entrance of the Sno Fun. From her side-view mirror, she saw a man approach the 10 passenger’s side door of Avila’s pickup holding a black semiautomatic handgun. While Ontiveros could not hear the 11 conversation, she noted the men appeared to be arguing for approximately 10 minutes. When the vehicle in front of her left, she 12 drove into an alleyway nearby, called 911, and continued to observe the confrontation. Ontiveros saw the suspect lean against the 13 pickup, extend his right arm inside, and shoot two or three times. The suspect stopped, began slowly walking away, returned, and 14 began shooting again. Ontiveros gave a general description of the suspect from which a police composite sketch was drawn. She 15 described the suspect as a 17- to 20-year-old Hispanic male, light complected with a near-shaven head, wide nose, full lips, five feet 16 eight inches in height, and “a little heavy”—at least 190 pounds. Ontiveros was unable to identify the shooter in a 2010 photo lineup. 17 Enrique Mendoza 18 Enrique Mendoza was 13 years old at the time of the shooting. He 19 was in a car with his mother Maria Mendoza, driving by the Sno Fun drive-in when he heard multiple popping sounds, like 20 fireworks. He saw a man shooting a gun into a white pickup. He then heard a second series of gunshots. Enrique told police the 21 shooter was about five feet three inches tall with a “round head.” 22 Maria Mendoza 23 Maria Mendoza heard multiple gunshots in two intervals. She saw the suspect from the back as he walked away. Maria described him 24 as short and stocky with “dark hair and [a] round head.” In a 2010 photo lineup, Maria identified two people with round heads. One of 25 them was defendant. 26 Adalberto Chavez 27 Adalberto Chavez was 15 years old at the time of the shooting. He was with his cousin Jose Martinez when he heard gunshots in two 28 intervals. He saw a man shooting into Avila’s pickup. The shooter 1 was standing next to the passenger’s side door with his right hand extended inside the pickup. The shooter may have pushed off the 2 passenger’s door with his left hand because Chavez saw the suspect’s left arm extending out before fleeing. He described the 3 suspect as “short,” around five feet six inches, and heavy-set or “bigger-bodied.” In a 2010 photo lineup, Chavez identified 4 defendant as the shooter based on defendant’s body weight. 5 Jose Martinez 6 Jose Martinez was 10 years old at the time of the shooting. He told police the shooter was a Hispanic adult male with a shaved head. In 7 a 2010 photo lineup, Martinez identified defendant as the shooter. At trial, he was unable to remember significant details about the 8 shooting. 9 The Investigation 10 At the crime scene, Detective Gerald Lewis noticed Avila’s pickup truck appeared to have been recently washed. Jessica Flores, 11 Avila’s fiancée, testified Avila cleaned his pickup almost daily. According to Flores, on the morning Avila was shot, he washed and 12 detailed his truck with ArmorAll. 13 Criminalist Nicole Townsend processed the pickup for latent prints. A palm print was lifted from the passenger’s side rear door panel 14 beneath the window. In 2005, the Automated Fingerprint Identification System (AFIS) was not capable of running palm 15 prints for possible matches. In 2010, however, Townsend was able to run the latent palm print in the AFIS database. Among other 16 possible candidates, the print matched defendant’s palm print. 17 Townsend then independently compared the latent print with defendant’s left palm print from his local arrest record and from his 18 prints taken in court at trial. She opined the latent palm print on Avila’s pickup truck belonged to defendant. Criminalist Jacqueline 19 Moore also independently compared the latent palm print found on Avila’s truck with defendant’s prints. She concluded the left palm 20 print lifted at the crime scene belonged to defendant. 21 Gang Evidence 22 Detective Michael Strand testified as a gang expert for the prosecution at trial. He had been a police officer with the City of 23 Delano for four years and a detective for six months. During his career as a police officer, he focused primarily on gang suppression, 24 intelligence gathering, and investigating violent feuds between the Norteño and Sureño criminal street gangs. He developed over 3,000 25 gang contacts during his career. 26 Strand opined defendant committed the instant offenses for the benefit of the Delano area Norteños, also known as Delano Norte. 27 The evidence adduced at trial showed defendant claimed membership to West Side Delano Norte, a subset of Delano Norte, 28 and the overarching Delano Norte gang. The evidence also showed 1 Avila claimed membership to the Sureños, a rival criminal street gang. 2 Strand explained the territorial dividing line between the Norteños 3 and Sureños is the area between Delano and McFarland. Delano is predominately Norteño gang territory while McFarland is 100 4 percent Sureño territory. The Sno Fun is in Norteño territory. 5 Officer Donald Flores testified he was at the scene of the shooting in the instant case on June 5 and the next day on June 6, 2005. He 6 noted that sometime between June 5th and 6th, a building wall in the alley near the Sno Fun had been spray painted with blue graffiti. 7 He described the graffiti as southern (Sureño) in nature. The message stated, “187 on all Busters,” a derogatory term for 8 Norteños. It covered the ground level of the wall all the way up to the top, about 15 feet high. Officer Flores opined the graffiti 9 directed retribution against Norteño gang members for the homicide of Avila. 10 Strand surmised the graffiti was a message to other gang members. 11 He opined the graffiti was a sign the Sureños were angry about Avila’s murder, and the message served as a warning to Norteños 12 that the gang would take retribution against them. 13 The Delano Norte Criminal Street Gang 14 According to Strand, Delano Norte comprises multiple subsets or cliques, including West Side Delano, East Side Delano, North Side 15 Delano, Varrio Delano Locos, 21st Street, Youth Gone Wild, Way of Life, and Young Bucks. Any member of a subset could call 16 himself a member of Delano Norte, but not of the “Northern Structure.” The subsets get along with one another. 17 Strand testified the primary activities of Delano Norte include 18 murder, attempted murder, vehicle theft, robbery, assault with a deadly weapon, narcotics sales, drive-by shootings, arson, witness 19 intimidation, grand theft, burglary, rape, kidnapping, carjacking, vandalism, firearm-related offenses, and criminal threats. To show 20 Delano Norte has committed a pattern of criminal gang activity, Strand adduced evidence of three predicate offenses. 21 Defendant’s Active Gang Status Detective 22 Strand opined defendant was a Delano Norte criminal street gang 23 member based on prior admissions, gang-related tattoos, the fact he has been previously documented wearing the color red, and his 24 association with other documented Norteños. His opinion was based on police reports and the testimony of various witnesses. 25 Officer Vincent Lopez testified he was with another officer who 26 had detained defendant on June 13, 2004, for driving without a license. When asked if he was a member of a gang, defendant 27 replied affirmatively and claimed membership to the West Side Norteños. Officer Lopez observed a four-dot tattoo on defendant’s 28 left lower elbow. Strand explained a four-dot tattoo on a Norteño’s 1 elbow or hand is a sign of earned membership by “putting in work” on behalf of the gang, such as by committing shootings or 2 stabbings. During this incident, defendant was also documented in the company of Everardo Contreras, Jr., and Ruben Garza, who are 3 both Norteños. 4 Officer Monty Lewis testified he had detained defendant on December 2, 2007, at a police checkpoint. Defendant was a 5 passenger in a car with four individuals. He yelled, “‘Delano Norte,’” “‘Fuck the police,’” and “‘Fuck the Bulldogs,’” a known 6 Fresno gang. Defendant was arrested for resisting arrest, public intoxication, and giving false information. Throughout the arrest, he 7 continued yelling, “‘Delano Norte.’” At the police station, defendant shouted, “‘Fuck those mutts. Delano Norte. 8 Motherfucker. Fuck the Bulldogs.’” Strand explained the Bulldogs and the Norteños are rivals. 9 Defendant’s girlfriend, Mona Melendez, had known him for over 10 10 years. During police questioning, Melendez told Detective Campos defendant was a Norteño gang member. She also stated 11 defendant “‘[a]lways had two friends with him,’” whom she identified as Victor Garcia and Everardo Hernandez. According to 12 Melendez, when they called, defendant “would just leave us. They were the most important thing” to him. Strand opined Victor Garcia 13 was a northern gang member. 14 Opinion the Crime was Committed for the Benefit of a Criminal Street Gang 15 Based on a hypothetical mirroring the facts of the instant case, 16 Strand opined the instant crime was committed for the benefit of the Norteño gang in Delano (Delano Norte). In Delano, the rivalry 17 between the Norteños and the Sureños often manifests in violent crimes. By eliminating a rival gang member, a Norteño elevates his 18 status as well as the status of the gang. A shooting similar to the instant case would benefit the Norteños by lowering the status of 19 the Sureños and by instilling fear into the community. 20 Avila’s Active Gang Status 21 Detective Strand opined Avila was an active Sureño gang member based upon statements by Avila’s family and friends, his past 22 confrontations with Norteños, booking admissions and police reports, his display of the color blue and his association with other 23 documented Sureños, and because graffiti was spray painted in an alley calling for the murder of “all Busters” after Avila’s murder. 24 Jessica Flores, Avila’s fiancée, testified Avila was known to 25 associate with criminal street gangs and he was regularly harassed by Norteños. She described several prior incidents wherein she and 26 Avila were encircled at a fast food restaurant and followed at a shopping mall. The night before he was killed, Avila’s tire was 27 slashed at a Blockbuster parking lot. Avila carried a gun for protection against Norteños. He told Flores the Norteños were 28 1 trying to intimidate him into leaving town but he “didn’t want to leave.” 2 Jose Camacho and Avila were friends who had met in high school, 3 sometime between 1997 and 2001. Camacho associated with Sureños. While Camacho did not know if Avila was a Sureño, he 4 stated Avila had many troubles with Norteños. In 1999, Camacho and Avila were walking home after school when a vehicle 5 approached them. Someone yelled, “Delano Norte” and fired at them. Norteños confronted Avila in high school for “wearing a lot 6 of blue,” and asked him if he was a Sureño. In 2000, Avila shot at Norteño gang member Victor Garcia in retaliation for a shooting 7 perpetrated by Garcia against Avila. In 2010, Camacho circled defendant’s picture in a yearbook as an example of another person 8 with whom Avila had troubles in high school. Avila had arguments with defendant, and defendant warned Avila to “watch his back.” 9 Defense’s Case 10 Defendant’s girlfriend, Mona Melendez, testified she and defendant 11 attended a baby shower for their first child on the day of the shooting. As proof, she presented the rental application for the patio 12 where the shower was held. She claimed defendant was with her the entire time, from the early afternoon until the evening. Melendez 13 did not remember if her mother was at her shower. She found no pictures taken from the baby shower. 14 Jennifer Rios, Melendez’s cousin, testified she arrived at the baby 15 shower before 4:00 p.m. and stayed until 8:00 p.m. Rios claimed she never saw defendant leave the shower. She also testified she 16 never saw any photos from the baby shower. She admitted previously telling police she saw Melendez taking photos, “‘We’re 17 a big family and we are always taking pictures of everything to remember everything by.’” 18 Rebuttal 19 Lorraine Melendez testified she had attended the June 2005 baby 20 shower for her daughter. Lorraine had observed people taking pictures. The distance between the location of the baby shower and 21 the Sno Fun shave ice drive-in is seven miles with a driving time of about eight minutes. 22 23 (Doc. No. 39 at 2105-2112); People v. Herrera, No. F069894, 2017 WL 4564227, at *2-5. 24 II. APPLICABLE LAW 25 A. AEDPA General Principles 26 A federal court’s statutory authority to issue habeas corpus relief for persons in state 27 custody is set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death 28 Penalty Act of 1996 (AEDPA). AEDPA requires a state prisoner seeking federal habeas relief to 1 first “exhaus[t] the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). If 2 the state courts do not adjudicate the prisoner’s federal claim “on the merits,” a de novo standard 3 of review applies in the federal habeas proceeding; if the state courts do adjudicate the claim on 4 the merits, then the AEDPA mandates a deferential, rather than de novo, review. Kernan v. 5 Hinojosa, 136 S. Ct. 1603, 1604 (2016). This deferential standard, set forth in § 2254(d), permits 6 relief on a claim adjudicated on the merits, but only if the adjudication: 7 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 8 determined by the Supreme Court of the United States; or 9 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the 10 State court proceeding. 11 28 U.S.C. § 2254(d). This standard is both mandatory and intentionally difficult to satisfy. 12 Sexton v. Beaudreaux, 138 S. Ct. 2555, 2558 (2018); White v. Woodall, 572 U.S. 415, 419 (2014). 13 “Clearly established federal law” consists of the governing legal principles in the 14 decisions of the United States Supreme Court when the state court issued its decision. White, 572 15 U.S. at 419. Habeas relief is appropriate only if the state court decision was “contrary to, or an 16 unreasonable application of,” that federal law. 28 U.S.C. § 2254(d)(1). A decision is “contrary 17 to” clearly established federal law if the state court either: (1) applied a rule that contradicts the 18 governing law set forth by Supreme Court case law; or (2) reached a different result from the 19 Supreme Court when faced with materially indistinguishable facts. Mitchell v. Esparza, 540 U.S. 20 12, 16 (2003). 21 A state court decision involves an “unreasonable application” of the Supreme Court’s 22 precedents if the state court correctly identifies the governing legal principle, but applies it to the 23 facts of the petitioner’s case in an objectively unreasonable manner, Brown v. Payton, 544 U.S. 24 133, 134 (2005), or “if the state court either unreasonably extends a legal principle from 25 [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to 26 extend that principle to a new context where it should apply.” Williams v. Taylor, 529 U.S. 362, 27 407, (2000). “A state court’s determination that a claim lacks merit precludes federal habeas 28 relief so long as fair-minded jurists could disagree on the correctness of the state court’s 1 decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011). The petitioner must show that the 2 state court decision “was so lacking in justification that there was an error well understood and 3 comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103. 4 When reviewing a claim under § 2254(d), any “determination of a factual issue made by a 5 State court shall be presumed to be correct[,]” and the petitioner bears “the burden of rebutting 6 the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Burt 7 v. Titlow, 571 U.S. 12, 18 (2013) (“[A] state-court factual determination is not unreasonable 8 merely because the federal habeas court would have reached a different conclusion in the first 9 instance.”) (quoting Wood v. Allen, 558 U.S. 290, 293 (2010)). 10 As discussed earlier, for the deferential § 2254(d) standard to apply there must have been 11 an “adjudication on the merits” in state court. An adjudication on the merits does not require that 12 there be an opinion from the state court explaining the state court’s reasoning. Richter, 562 U.S. 13 at 98. “When a federal claim has been presented to a state court and the state court has denied 14 relief, it may be presumed that the state court adjudicated the claim on the merits in the absence 15 of any indication or state-law procedural principles to the contrary.” Id. at 99. “The presumption 16 may be overcome when there is reason to think some other explanation for the state court’s 17 decision is more likely.” Id. at 99-100. This presumption applies whether the state court fails to 18 discuss all the claims or discusses some claims but not others. Johnson v. Williams, 568 U.S. 19 289, 293, 298-301 (2013). 20 While such a decision is an “adjudication on the merits,” the federal habeas court must 21 still determine the state court’s reasons for its decision in order to apply the deferential standard. 22 When the relevant state-court decision on the merits is not accompanied by its reasons, 23 the federal court should “look through” the unexplained decision to the last related state-court decision that does provide a relevant 24 rationale. It should then presume that the unexplained decision adopted the same reasoning. But the State may rebut the 25 presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court’s 26 decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record 27 it reviewed. 28 1 Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The federal court “looks through” the silent state 2 court decision “for a specific and narrow purpose—to identify the grounds for the higher court’s 3 decision, as AEDPA directs us to do.” Id. at 1196. 4 When . . . there is no reasoned state-court decision on the merits, the federal court “must determine what arguments or theories . . . 5 could have supported the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those 6 arguments or theories are inconsistent with the holding in a prior decision of this Court.” Richter, 562 U.S. at 102. If such 7 disagreement is possible, then the petitioner’s claim must be denied. Ibid. 8 9 Sexton, 138 S. Ct. at 2558.. 10 III. ANALYSIS 11 For purposes of reviewing Petitioner’s claim, the Court considers the last reasoned 12 decision on Petitioner’s claims—that of the California Court of Appeal. Because the Court of 13 Appeal rejected petitioner’s claims on the merits, the deferential standard of § 2254 applies. 14 A. Background 15 Petitioner argues there is insufficient evidence that he was the shooter because he had an 16 alibi, the identification evidence was “weak, incorrect, and most often non-existent,” the palm 17 print evidence “could have been innocently the result of Petitioner touching the vehicle at a 18 different time,” and there is no evidence that Petitioner had direct connection with any gang 19 activity. (Doc. No. 20 at 7-8). As to the palm print evidence, Petitioner contends that he was 20 arrested over five years after the crime occurred based on a later identified palm print on the 21 outside of the victim’s truck, but, as argued at trial, Petitioner was working at the time cleaning 22 the parking lot at Jack in the Box and may have touched the vehicle prior to the time of the 23 shooting. (Id.; Doc. No. 41 at 4). Thus, Petitioner argues that “[g]iven that the other prints on the 24 outside of the truck were never identified, this single print which was the result of innocent work 25 related activity by the petitioner, demonstrates that it is clear that [the] palm print evidence cannot 26 be considered ‘substantially incriminating.’” (Doc. No. 20 at 9 (citing Mikes v. Borg, 947 F.2d 27 353, 356-57 (9th Cir. 1991) (in “fingerprint-only cases” the “prosecution must present evidence 28 1 sufficient to permit the jury to conclude that the objects on which the fingerprints appear were 2 inaccessible to the defendant prior to the time of commission of the crime.”). 3 As to alibi, Petitioner contends that he presented “documentary and witness testimony” at 4 the trial that he was at a baby shower for his first child at the time the shooting occurred. (Id.). 5 As to eyewitness identification, Petitioner argues that there “was no eyewitness 6 identification who saw the shooter.” (Id. at 9). According to Petitioner, one witness “saw the 7 shooter’s face for 10 minutes” and described him as 17 to 20 years old, five foot five inches tall, 8 between 160 and 170 pounds, and medium build with “somewhat of a belly”; but she did not 9 identify the petitioner from the photo lineups nor did she identify the petitioner in person, and she 10 reported that the shooter was not depicted in the photo lineup. (Id. at 7-8). Petitioner argued that 11 witness Maria Mendoza did not see the shooter’s face and told the officer she was not sure who 12 the shooter was, but circled two individuals that most closely resembled the shape of the shooter’s 13 head. Petitioner also contends that none of the witnesses saw a photo lineup of men “originally 14 suspected as enemies.” (Id. at 8). In his reply, Petitioner further claimed that eyewitnesses 15 identified the shooter as 5’3”, 5’6”, 5’8”, but petitioner’s mug shot identified him as 5’10”. (Doc. 16 No. 41 at 5). 17 Finally, as to the gang evidence, Petitioner claims that no evidence was presented that he 18 had “committed any violent gang behavior or had any direct connection with gang members 19 suspected of violent behavior against the victim.” (Doc. No. 20 at 8). Based on the foregoing, 20 Petitioner asserts that “no rational trier of facts could have found proof of petitioners [sic] guilt 21 beyond a reasonable doubt in terms of elements defined by state law.” (Doc. No. 41 at 4 (citing 22 Jackson v. Louisiana, 406 U.S. 362)). 23 In its Answer, Respondent cites in full the California Court of Appeal opinion addressing 24 the sufficiency of the evidence. (Doc. No. 40 at 8-11 (citing Doc. No. 39-1 at 2112-17)). 25 Respondent argues Petitioner is attempting to reweigh the trial evidence in his favor, and his 26 attempts to attack the credibility of witnesses are futile because credibility determinations are for 27 the jury to decide. (Doc. No. 40 at 12-13). 28 1 In support, Respondent refers the Court to the state appeals court opinion denying 2 Petitioner relief on this ground: 3 B. State Appellate Court Decision 4 Defendant challenges the sufficiency of the evidence showing he was the perpetrator of the shooting.[FN1] He contends (1) his 5 conviction was based on the presence of a palm print on the victim’s truck matching his palm print, which could have been left 6 days prior to the shooting; (2) the “true” eyewitness to the shooting failed to identify him as the shooter; and (3) the gang evidence 7 failed to show he was the shooter. The Attorney General replies substantial evidence supports the conclusion defendant was the 8 shooter. We agree with the Attorney General. 9 [FN1] Because defendant challenges the sufficiency of the evidence supporting count 3 in part III, post, we interpret his 10 argument to challenge all other counts. 11 Standard of Review 12 The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, 13 substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable 14 doubt. (People v. Delgado (2008) 43 Cal.4th 1059, 1067.) In reviewing a record for substantial evidence, we do not reweigh the 15 evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these 16 functions are strictly reserved for the trier of fact. (In re Frederick G. (1979) 96 Cal.App.3d 353, 367.) Our inquiry is limited to 17 determining whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People 18 v. Marshall (1997) 15 Cal.4th 1, 34.) 19 We reject evidence accepted by the trier of fact only when it is inherently improbable and impossible of belief. (People v. Maxwell 20 (1979) 94 Cal.App.3d 562, 577.) Before setting aside the judgment of the trial court for insufficiency of the evidence, it must clearly 21 appear there is no hypothesis whatsoever upon which there is substantial evidence to support the verdict. (People v. Conners 22 (2008) 168 Cal.App.4th 443, 453; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) 23 Legal Analysis 24 Defendant challenges the sufficiency of the evidence supporting his 25 convictions. He specifically contends there was insufficient evidence to show he was the shooter. He complains he was 26 convicted based solely on palm print evidence, the eyewitnesses failed to identify him as the shooter, and the gang evidence did not 27 show he was the shooter. We find defendant’s contentions unpersuasive. 28 1 1. The Palm Print Evidence 2 Defendant essentially contends his case is based solely on palm print evidence. He analogizes the instant case to a line of so-called 3 “fingerprint-only cases.” 4 His reliance on these cases is misplaced. (People v. Redmond (1969) 71 Cal.2d 745, 756 [fingerprint evidence could not be 5 considered substantially incriminating in burglary and assault case where victim was unable to identify defendant as her assailant and 6 defendant was lawfully in victim’s home the night before crime had occurred]; People v. Flores (1943) 58 Cal.App.2d 764, 769-770 7 [evidence of defendant’s fingerprint inside stolen vehicle proved he was inside the vehicle but did not prove beyond a reasonable doubt 8 he had stolen it]; Birt v. Superior Court (1973) 34 Cal.App.3d 934, 937-938 [evidence female defendant’s fingerprint was found inside 9 a rental vehicle used in a burglary was insufficient to sustain burglary charge against her where victim testified the perpetrators 10 were two men]; People v. Johnson (1984) 158 Cal.App.3d 850, 854 [single thumbprint on one of multiple bottles containing illicit 11 substance found in a home where nine people were living was insufficient to show defendant was in possession of the bottles].) 12 Here, the presence of defendant’s palm print near the passenger’s 13 side door of Avila’s truck is substantially incriminating. Ontiveros, Chavez, and Martinez reported seeing the shooter leaning on the 14 truck next to the passenger’s side door. The latent palm print was found in this area: on the passenger’s side door of the truck, 15 underneath the rear window door. 16 Ontiveros had previously told detectives she did not see the shooter lean against or touch Avila’s truck, however, she later testified she 17 had seen the shooter lean his left arm against the pickup. Chavez testified the shooter appeared to have pushed off from the truck. 18 When he was interviewed just after the shooting, Martinez told Detective Lewis he saw the shooter lean up against the pickup with 19 his left hand as he fired the gun a second time. In a 2010 interview, Martinez indicated he saw the shooter lean against the passenger 20 side of the pickup. Based on the testimony of these witnesses, the jury could have reasonably inferred defendant touched the truck 21 during the shooting. 22 Defendant asserts there are alternative exculpatory explanations for the presence of his palm print on Avila’s truck. He suggests there 23 is some evidence Avila may not have washed the passenger’s side of his truck on the morning of the shooting, and it is possible he 24 touched Avila’s truck on a prior occasion. We reject defendant’s attempts to reargue the evidence on appeal. 25 Avila’s fiancée testified Avila cleaned his truck almost daily. On 26 the morning he was shot, she observed Avila wash and shine his truck. When Detective Lewis responded to the crime scene, he 27 noted Avila’s truck appeared to have been recently washed. Thus, there was circumstantial evidence to support the conclusion the area 28 1 where defendant’s palm print was found had been washed the morning of the shooting. 2 Insofar as defendant suggests he may have touched Avila’s truck 3 when Avila visited the Jack-In-The-Box fast food restaurant where defendant worked, there is no evidence to support his assertion. 4 Indeed, Flores testified she and Avila had not visited Jack-In-The- Box the day of or the day before Avila was killed. 5 Even assuming the record provided some support for defendant’s 6 claim, the jury apparently discredited any exculpatory explanations for the presence of defendant’s palm print on Avila’s truck in 7 finding defendant guilty. Not only are we prohibited from reweighing the evidence presented below (People v. Culver, supra, 8 10 Cal.3d at p. 548), we are required to resolve all conflicting evidence in favor of the judgment (People v. Campbell (1994) 25 9 Cal.App.4th 402, 408). We find defendant’s alternative explanations wholly unpersuasive. 10 2. Eyewitness Identifications 11 Defendant claims the “true” witness to the shooting failed to 12 identify him as the shooter. He argues Ontiveros, the witness with the best view of the shooter, did not identify him as the shooter in a 13 photo lineup. He further contends the other witnesses’ identifications were tentative, possibly coerced, or based on 14 guesses. 15 Defendant specifically claims Ontiveros was unable to identify defendant in a 2010 photo lineup as the shooter even though a 16 composite sketch was drawn based on her description of the shooter; Adalberto Chavez identified defendant based on the fact 17 defendant was the heaviest subject in the photographic lineup; Enrique Mendoza was not wearing glasses when he observed the 18 shooting, although he needed them; Maria Mendoza selected defendant as one of two possible suspects based on the shape of 19 defendant’s head; and Martinez identified defendant as the shooter randomly because he felt pressured by detectives to pick 20 someone.[FN2] He further contends the witnesses’ identifications lack credibility given their descriptions of the shooter’s height 21 compared to defendant’s actual height. 22 [FN2] Defendant does not argue the lineup procedures were unduly suggestive. 23 Although Ontiveros’s inability to identify the shooter in a 24 photographic lineup may be attributed to the fact the lineup was conducted five years after the shooting had occurred, we need not 25 speculate as to why she was unable to make an identification. The witnesses were thoroughly and vigorously cross-examined at 26 defendant’s trial. In closing argument, defendant’s trial counsel emphasized the flaws in the witnesses’ identifications, including the 27 inconsistencies between their prior statements to police and their testimony at trial. The jury was instructed to consider various 28 factors in determining the credibility of the witnesses and the 1 weight their identifications should be given, including how well the witness could see the perpetrator, how much time had passed 2 between the event and the identification, whether the witness had ever failed to identify defendant, and how certain the witness was 3 when he or she made the identification. Nothing in the record shows the jury failed to consider these factors in reaching its 4 verdict. 5 The jury heard and considered the evidence defendant claims undermines the witnesses’ identifications but nonetheless found 6 them credible. The credibility of the witnesses and the weight of their identifications was ultimately a matter for the jury to decide. 7 (People v. Ennis (2010) 190 Cal.App.4th 721, 729.) We find no basis to reject the witnesses’ testimony on appeal. 8 3. Gang Evidence 9 Finally, defendant contends the gang evidence failed to show 10 defendant shot Avila. Defendant asserts “there was nothing specific about the shooting to designate it as a gang-related hit.” He 11 further contends there was no evidence Avila was targeted by the Norteños or by defendant. 12 We initially observe the gang evidence was admitted to show 13 motive, rather than identity. Further, although defendant suggests the gang evidence failed to show the shooting was gang-related, the 14 record refutes his assertion. 15 Defendant and Avila were shown to be members of rival criminal street gangs. Defendant claimed membership to West Side Delano, 16 a subset of Delano Norte, and the overarching Delano Norte criminal street gang. Avila claimed membership to the Sureños. 17 Avila had been confronted by the Delano-area Norteños on multiple prior occasions. The most recent incident occurred the night before 18 he was killed. 19 In addition to Avila’s prior confrontations with Norteño gang members, the circumstances of the shooting suggest the crime was 20 gang related. Avila was shot multiple times, at close range, in Norteño gang territory as he sat in his truck. According to 21 Ontiveros, an armed male approached Avila and a verbal argument ensued. The man lowered and raised and lowered his gun until he 22 eventually fired a series of gunshots at Avila. As the shooter began to walk away, he returned, fired several more shots, and then fled. 23 Following the shooting, a 15-foot high writing, “187 on all Busters,” was spray painted in blue paint on a wall near the Sno 24 Fun. In our view, this evidence amply supports the conclusion the shooting was gang related, and possibly even a gang hit because of 25 the manner in which Avila was killed. We conclude the record contains substantial evidence to support defendant’s convictions. 26 The presence of the palm print matching defendant’s palm print on Avila’s truck and the witnesses’ identifications and descriptions of 27 the shooter amply support the conclusion defendant was the perpetrator of the shooting. 28 1 (Doc. No. 39-1 at 2112-17); Herrera, No. F069894, 2017 WL 4564227 at *5-8. 2 C. Petitioner is not Entitled to Relief 3 The Due Process Clause of the Fourteenth Amendment protects a criminal defendant from 4 conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the 5 crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). The federal standard 6 for determining the sufficiency of the evidence to support a jury finding is set forth in Jackson v. 7 Virginia, 443 U.S. 307 (1979). Under Jackson, “the relevant question is whether, after viewing 8 the evidence in the light most favorable to the prosecution, any rational trier of fact could have 9 found the essential elements of the crime beyond a reasonable doubt.” Id. at 319 (emphasis in 10 original); see also Coleman v. Johnson, 566 U.S. 650, 656 (2012) (“the only question under 11 Jackson is whether that finding was so insupportable as to fall below the threshold of bare 12 rationality”); Cavazos v. Smith, 565 U.S. 1, 2 (2011) (a reviewing court “may set aside the jury's 13 verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed 14 with the jury”)’ United States v. Nevils, 598 F.3d 1158, 1167 (9th Cir. 2010) (“we acknowledge 15 our obligation under Jackson to identify those rare occasions in which ‘a properly instructed jury 16 may … convict even when it can be said that no rational trier of fact could find guilt beyond a 17 reasonable doubt”). 18 Further, when both Jackson and AEDPA apply to the same claim, the claim is reviewed 19 under a “twice-deferential standard.” Parker v. Matthews, 567 U.S. 37, 43 (2012). As noted by 20 the Supreme Court: 21 First, on direct appeal, “it is the responsibility of the jury−not the court−to decide what conclusions should be drawn from evidence 22 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 23 fact could have agreed with the jury.” And second, on habeas review, “a federal court may not overturn a state court decision 24 rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court 25 instead may do so only if the state court decision was ‘objectively unreasonable.’ ” 26 27 Coleman, 566 U.S. at 651. Here, viewed in the light most favorable to the prosecution, a rational 28 jury could have found beyond a reasonable doubt that Herrera was the shooter. The contrary 1 evidence cited by Herrera in the Petition was presented to the jury, who assessed all of the 2 evidence, and rejected. 3 First, as to the “latent” palm print that was pulled from the passenger side of the victim’s 4 truck, the jury heard Herrera’s argument that the victim might not have washed his truck the day 5 of the shooting, and that Herrera may have touched the truck on a prior occasion while he was 6 working at Jack in the Box. (Doc. No. 39-1 at 2114). However, the jury also heard evidence 7 from multiple eye-witnesses that Herrera leaned against the truck with his left hand in the same 8 area as the palm print was found at the time of the shooting; testimony from the victim’s fiancée 9 that he cleaned his truck “daily” including earlier on the same day of the shooting; and further 10 testimony from the victim’s fiancée that they had not visited Jack in the Box on the day of the 11 shooting or the previous day. (Id. at 2113-14). As observed by the Court of Appeal, the jury 12 could have reasonably inferred from this evidence that Herrera touched the truck during the 13 shooting and “[e]ven assuming the record provided some support for defendant’s claim, the jury 14 apparently discredited any exculpatory explanations for the presence of defendant’s palm print on 15 Avila’s truck in finding defendant guilty. Not only are we prohibited from reweighing the 16 evidence presented below, we are required to resolve all conflicting evidence in favor of the 17 judgment.” (Id. at 2114-15)(internal state law citations omitted)); Cavazos, 565 U.S. at 7 n.* 18 (reweighing of the facts is precluded by Jackson); Nevils, 598 F.3d at 1170 (in assessing 19 sufficiency of the evidence claim, it is not the court’s function to reweigh the evidence). 20 Second, the jury heard and considered the evidence Herrera point to as undermining the 21 eyewitness identifications, and nonetheless found the eyewitness identifications credible. As 22 described above, Herrera cites evidence that one eyewitness was unable to pick him out of a 23 photo line-up, one eyewitness selected two possible shooters based on the shape of their heads, 24 and several eyewitnesses inaccurately described his height and weight. (Doc. No. 39-1 at 2115). 25 However, as noted by the Court of Appeal, the eyewitnesses were “thoroughly and vigorously” 26 cross-examined at trial, trial counsel highlighted flaws and inconsistencies in the identifications 27 during closing arguments, and the court instructed the jury to consider factors in determining the 28 credibility of witnesses. (Id. at 2115-16). This court is precluded from re-weighing the evidence 1 or re-assessing witness credibility. See Schlup v. Delo, 513 U.S. 298, 330 (1995 (“[U]nder 2 Jackson, the assessment of the credibility of witnesses is generally beyond the scope of review.”); 3 Bruce v. Terhune, 376 F.3d 950, 957–58 (9th Cir. 2004) (“[a] jury’s credibility determinations are 4 … entitled to near-total deference under Jackson”); Avenida v. Walker, 2009 WL 840659, at *14 5 (E.D. Cal. Mar. 26, 2009) (holding that evidence was legally sufficient to support murder 6 conviction when although “there were inconsistencies in witness testimony and other evidence 7 suggesting [petitioner] was not the shooter,” jury was entitled to disbelieve that evidence in favor 8 of evidence that supported conviction, including eyewitness identifications of petitioner and his 9 car). While it might have been possible to draw a different inference from this evidence, this 10 court is required to resolve any conflict in favor of the prosecution. See Jackson, 443 U.S. at 326. 11 Third, as to the gang evidence, Herrera generally claims no evidence was presented that 12 he had “committed any violent gang behavior or had any direct connection with gang members 13 suspected of violent behavior against the victim.” (Doc. No. 20 at 8). This assertion is belied by 14 the trial record, which includes evidence that both Herrera and the victim were members of rival 15 street gangs, the victim had been confronted by rival gang members on multiple occasions 16 including on the night before he was killed, the victim was killed in rival gang territory, and 17 following the shooting a 15-foot high writing “187 on all Busters” was spray painted in blue paint 18 on the wall near the location where the victim was shot. (Doc. No. 39-1 at 2116-17). Moreover, 19 as observed by the Court of Appeal, this evidence was admitted to show motive, rather than 20 identity. (Id. at 2116). Based on the foregoing, it was reasonable for the Court of Appeal to find 21 the evidence “amply supports the conclusion the shooting was gang related.” (Id. at 2117). 22 Finally, Herrera argues the evidence is insufficient to support his conviction because he 23 presented “eyewitness evidence that supported his alibi.” (Doc. No. 20 at 7). Although not 24 addressed by the Court of Appeal, the jury heard testimony from Herrera’s girlfriend, and his 25 girlfriend’s cousin, that at the time of the shooting Herrera attended the baby shower for his first 26 child. (Doc. No. 39-1 at 1525-32, 1541-47). However, the jury also heard testimony on cross 27 examination that Herrera’s girlfriend could not remember certain details from the party, nor did 28 she have any photographs of the event; and testimony from Herrera’s girlfriend’s cousin that she 1 had previously reported to investigators that photographs were taken at the party. (Id. at 1529- 2 32). As noted above, under clearly established federal law governing sufficiency of the evidence 3 claims, a jury’s credibility findings are “entitled to near total deference under Jackson.” Bruce, 4 376 F.3d at 957–58; Schlup, 513 U.S. at 330. The jury was entitled to disbelieve the alibi 5 testimony in favor of contrary evidence that supported conviction. And when viewed in the light 6 most favorable to the prosecution, the Court cannot find no rational trier of fact could not have 7 agreed with the jury. 8 In summary, viewing the evidence in the light most favorable to the prosecution, it was 9 objectively reasonable for the Court of Appeal to determine that there was substantial evidence 10 that Petitioner was the perpetrator of the shooting. As such, the Court of Appeal's rejection of 11 this claim was not contrary to, or an unreasonable application of, clearly established Supreme 12 Court precedent, nor an unreasonable determination of the facts. The undersigned recommends 13 the amended Petition should be denied. 14 IV. CERTIFICATE OF APPEALABIILTY 15 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 16 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 17 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing § 2254 Cases requires a 18 district court to issue or deny a certificate of appealability when entering a final order adverse to a 19 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 20 Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a substantial 21 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires 22 the petitioner to show that “jurists of reason could disagree with the district court’s resolution of 23 his constitutional claims or that jurists could conclude the issues presented are adequate to 24 deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord Slack v. 25 McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made a substantial showing of the 26 denial of a constitutional right. Thus, the undersigned recommends that the court decline to issue 27 a certificate of appealability. 28 //// 1 Accordingly, it is RECOMMENDED: 2 1. The amended Petition be denied. (Doc. No. 20). 3 2. Petitioner be denied a certificate of appealability. 4 NOTICE TO PARTIES 5 These findings and recommendations will be submitted to the United States district judge 6 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 7 | days after being served with these findings and recommendations, a party may file written 8 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 9 | Findings and Recommendations.” Parties are advised that failure to file objections within the 10 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 11 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 8 Dated: _ September 26, 2022 oe Zh. Sareh Zackte 14 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE

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