(HC) Mendoza v. Covello

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 JOSE GUADALUPE MENDOZA, ) Case No.: 1:19-cv-01521-NONE-JLT (HC) ) 12 Petitioner, ) FINDINGS AND RECOMMENDATIONS TO ) DENY PETITION FOR WRIT OF HABEAS 13 v. ) CORPUS ) 14 PATRICK COVELLO, Acting Warden of ) [THIRTY-DAY OBJECTION DEADLINE] Mule Creek State Prison, 15 ) ) 16 Respondent. )

17 In 2015, Petitioner used a firearm to kidnap and rob patrons at a gas station. After a jury found 18 him guilty of various related crimes, he received a life-without-parole prison term. As discussed 19 below, the Court finds the Petitioner’s claim to be without merit and recommends the petition be 20 DENIED. 21 I. PROCEDURAL HISTORY 22 In an information filed March 13, 2015, Petitioner was charged with kidnapping to commit 23 robbery (count 1; Pen. Code, § 209, subd. (b)); second degree burglary (count 2; § 460, subd. (b)); 24 second degree robbery of Eulisses Mercado (count 3; § 212.5, subd. (c)); second degree robbery of 25 Olivero Arvizu (count 4; § 212.5, subd. (c)); first degree robbery of Eulisses Mercado (count 5; § 26 212.5, subd. (b)); and attempted second degree robbery of Olivero Arvizu (count 6; §§ 664, 212.5, 27 subd. (b).) People v. Mendoza, No. F073360, 2018 Cal. App. Unpub. LEXIS 7232, at *1 (Oct. 23, 28 2018). The information alleged Petitioner personally used a firearm during the commission of all 1 counts. (§ 12022.5, subd. (a).) Id. Finally, the information alleged Petitioner personally used a firearm 2 during the commission of the kidnapping to commit robbery within the meaning of section 12022.53, 3 subdivision (b). Id. The jury convicted Petitioner on all counts (except count 3, previously dismissed) 4 and found true all allegations except the section 12022.53, subdivision (b) allegation attached to count 5 5. Id. at *1-2. The court sentenced Petitioner to life with the possibility of parole on count 1, plus 10 6 years for the section 12022.53, subdivision (b) enhancement. Id. at *2. On count 4, Petitioner was 7 sentenced to a consecutive term of three years, plus 10 years for the section 12022.53, subdivision (b) 8 enhancement. Id. On count 6, Petitioner was sentenced to a consecutive term of 8 months, plus three 9 years four months for the section 12022.53, subdivision (b) enhancement. Id. The sentences on counts 10 2 and 5, and their enhancements, were stayed pursuant to section 654. Id. 11 The California Court of Appeal, Fifth Appellate District (“Fifth DCA”) affirmed Petitioner’s 12 convictions. Id. at *10. Additionally, on agreement of the parties, the matter was remanded for the trial 13 court to consider whether or not to strike the firearm enhancements under sections 12022.5 and 14 12022.53 pursuant to Senate Bill No. 620 (2017-2018, Reg. Sess., S.B. 620, Stats. 2017, ch. 682.) and 15 to correct the abstract of judgment to accurately reflect Petitioner’s sentence on the 12022.5, 16 subdivision (a) enhancement (if not stricken). Id. at *10-11. 17 On October 16, 2019, Petitioner filed the instant federal petition for writ of habeas corpus. 18 (Doc. 1.) Respondent filed a motion to dismiss the petition on February 7, 2020. (Doc. 15.) The Court 19 granted the motion to dismiss in part and provided Petitioner with the opportunity to elect to withdraw 20 his unexhausted Equal Protection claim and proceed solely on his exhausted due process claim or seek 21 a stay and abeyance of this action so that he may exhaust his unexhausted Equal Protection claim in 22 state court. (Doc. 18.) On January 29, 2021, Petitioner filed a notice electing to withdraw his 23 unexhausted Equal Protection claim and proceed solely on his exhausted due process claim. (Doc. 19.) 24 In response to an order by this Court, the Respondent filed an answer on April 8, 2021. (Doc. 24.) 25 /// 26 /// 27 /// 28 /// 1 II. FACTUAL BACKGROUND 2 The Court adopts the Statement of Facts in the Fifth DCA’s unpublished decision1: 3 Shortly before 9:14 p.m. on January 13, 2015, an incident occurred a gas station on Panama Lane in Kern County. Eulisses Mercado pulled up to the pump closest to the 4 street and farthest from the station's convenience store. Mercado saw a white El Camino pull up "really slow." An individual - later identified as defendant - exited the driver's 5 side of the El Camino. The passenger - who defendant later identified as Miguel Aguilar 6 - got out and went in to the driver's side of the El Camino. Defendant walked toward Mercado until he was only about one foot away. Defendant was concealing a gun under 7 his jacket. He said, "'Look, I don't want to do anything stupid, I don't want to do anything crazy, but I really need money.'" Defendant then displayed the gun and then put it away. 8 Mercado told defendant that he also did not have much money. Defendant said he was 9 going through a "'situation'" and needed money. Mercado gave him $20. Defendant said, "'Well, you gotta have more in your ATM'" or "'in your debit card.'" Mercado tried to 10 tell him he did not have much money, but defendant said, "'Then let's go in [sic] the ATM. Let's check.'" Mercado testified that he went into the store because he was afraid. 11 12 Mercado initially tried to get $60 out of the ATM, but there were insufficient funds. So, Mercado withdrew $40 and handed them to defendant. Defendant said, "'Come on'" and 13 gestured for Mercado to follow him out of the store. Mercado told defendant to go without him, because Mercado was going to get a food order he had placed before the 14 incident. Defendant walked away, and Mercado went to a nearby taco truck in the parking lot. Some women at the taco truck encouraged Mercado to call the police, which 15 he did. As Mercado was talking with these women, he saw defendant approach another 16 vehicle.

17 Romero Arvizu had come to buy tacos at the taco truck. After purchasing his tacos, he spoke with a friend for more than half an hour. As he returned to his truck, he saw a 18 white El Camino. Someone - later identified as defendant - began approaching him from 19 the El Camino and told Arvizu to roll down his window. According to Arvizu, defendant "pulled out" a gun and said, "'Give me all your money or I'll shoot all your truck [sic].'" 20 Arvizu told defendant he spent all his money on tacos. Arvizu told defendant, "'I have the ATM [sic].'" Defendant told Arvizu to "go get money," but Arvizu responded that 21 the ATM was not working. Defendant responded that he was sure the ATM worked. 22 Arvizu told defendant he would bring him back $100. Defendant took Arvizu's keys and did not allow him to roll up the truck's window. Once inside the convenience store, the 23 attendant told Arvizu not to withdraw money and that police were on the way.

24 Police officers located defendant behind a restaurant adjacent to the gas station. Behind the restaurant, near a dumpster, Officer Herron located a loaded .38-caliber revolver and 25 Arvizu's keys. Defendant had three $20 bills in his pocket. 26 27 1 The Fifth DCA’s summary of facts in its unpublished opinion is presumed correct. 28 U.S.C. §§ 2254(d)(2), 28 (e)(1). Therefore, the Court will adopt the Fifth DCA’s summary of the facts. Moses v. Payne, 555 F.3d 742, 746 (9th Cir. 2009). 1 Defendant testified offering a different version of events. Defendant claimed Mendoza gave him money willingly to facilitate a drug sale, and that he never even spoke to 2 Arvizu.

3 People v. Mendoza, 2018 Cal. App. Unpub. LEXIS 7232, at *2-5. 4 III. DISCUSSION 5 A. Jurisdiction 6 Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to 7 the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the 8 United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 9 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States 10 Constitution. The challenged conviction arises out of the Kern County Superior Court, which is 11 located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d). 12 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 13 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. 14 Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases filed after 15 statute’s enactment). The instant petition was filed after the enactment of the AEDPA and is therefore 16 governed by its provisions. 17 B. Legal Standard of Review 18 A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the 19 petitioner can show that the state court’s adjudication of his claim: (1) resulted in a decision that was 20 contrary to, or involved an unreasonable application of, clearly established Federal law, as determined 21 by the Supreme Court of the United States; or (2) resulted in a decision that “was based on an 22 unreasonable determination of the facts in light of the evidence presented in the State court 23 proceeding.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 24 U.S. at 412-413. 25 A state court decision is “contrary to” clearly established federal law “if it applies a rule that 26 contradicts the governing law set forth in [the Supreme Court’s] cases, or “if it confronts a set of facts 27 that is materially indistinguishable from a [Supreme Court] decision but reaches a different result.” 28 1 Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-406). 2 In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that an 3 “unreasonable application” of federal law is an objective test that turns on “whether it is possible that 4 fairminded jurists could disagree” that the state court decision meets the standards set forth in the 5 AEDPA. The Supreme Court has “said time and again that ‘an unreasonable application of federal 6 law is different from an incorrect application of federal law.’” Cullen v. Pinholster, 563 U.S. 170, 203 7 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court “must show that 8 the state court’s ruling on the claim being presented in federal court was so lacking in justification that 9 there was an error well understood and comprehended in existing law beyond any possibility of 10 fairminded disagreement.” Harrington, 562 U.S. at 103. 11 The second prong pertains to state court decisions based on factual findings. Davis v. 12 Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). 13 Under § 2254(d)(2), a federal court may grant habeas relief if a state court’s adjudication of the 14 petitioner’s claims “resulted in a decision that was based on an unreasonable determination of the facts 15 in light of the evidence presented in the State court proceeding.” Wiggins v. Smith, 539 U.S. 510, 520 16 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). A state court’s factual finding is 17 unreasonable when it is “so clearly incorrect that it would not be debatable among reasonable jurists.” 18 Jeffries, 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, 19 Maddox v. Taylor, 543 U.S. 1038 (2004). 20 To determine whether habeas relief is available under § 2254(d), the federal court looks to the 21 last reasoned state court decision as the basis of the state court’s decision. See Ylst v. Nunnemaker, 22 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). “[A]lthough we 23 independently review the record, we still defer to the state court’s ultimate decisions.” Pirtle v. 24 Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). 25 The prejudicial impact of any constitutional error is assessed by asking whether the error had 26 “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. 27 Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007) (holding 28 that the Brecht standard applies whether or not the state court recognized the error and reviewed it for 1 harmlessness). 2 C. Review of Petition 3 1. Sufficiency of the Evidence 4 Based on Jackson v. Virginia, 443 U.S. 307 (1979), Petitioner claims that there is not sufficient 5 evidence to support his kidnapping-for-robbery conviction. (Doc. 1 at 19-22.) In the last reasoned 6 decision, the Fifth DCA denied the claim as follows: 7 Defendant was convicted of kidnapping to commit robbery. That crime occurs when someone "kidnaps or carries away any individual to commit robbery" (§ 209, subd. 8 (b)(1)) and "the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that 9 necessarily present in," the robbery. (§ 209, subd. (b)(2).) However, the increased harm 10 need not be substantial. (People v. Robertson (2012) 208 Cal.App.4th 965, 979, 146 Cal. Rptr. 3d 66.) Defendant argues there was insufficient evidence showing the movement 11 of the victim was beyond that merely incidental to the robbery and that the movement increased the risk of harm to the victim. 12

13 When a defendant challenges a judgment for insufficiency of the evidence, we "'"'"must review the whole record in the light most favorable to the judgment below to determine 14 whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant 15 guilty beyond a reasonable doubt."'"' [Citation.]" (People v. Gonzales and Soliz (2011) 16 52 Cal.4th 254, 294, 128 Cal. Rptr. 3d 417, 256 P.3d 543.) "'We presume "'in support of the judgment the existence of every fact the trier could reasonably deduce from the 17 evidence.' [Citation.] This standard applies whether direct of circumstantial evidence is involved." [Citation.]' [Citation.]" (Ibid.) 18 Kidnapping to commit robbery will always involve a kidnapping that is incidental to the 19 robbery. Otherwise, it would not be a kidnapping "to commit robbery." (§ 209, subd. 20 (b)(1), italics added.) Subdivision (b)(2) only requires that the kidnapping not be merely incidental to the robbery. (§ 209, subd. (b)(2).) 21 Defendant contends that Mercado's movement was "necessary to complete the robbery." 22 But the fact that a kidnapping is "necessary" to complete a robbery does not remove it 23 from the scope of section 209. To the contrary, in order for a kidnapping to become a kidnapping "to commit robbery" (§ 209, subd. (b)(1), italics added), the 24 kidnapping must be committed in furtherance of the robbery.

25 Section 209, subdivision (b)(2) excludes kidnappings that are merely incidental to the 26 robbery. Read together, subdivisions (b)(1) and (b)(2) require that the kidnapping be incidental to the robbery (§ 209, subd. (b)(1)), but not merely incidental to the robbery 27 (§ 209, subd. (b)(2).) Consequently, the fact that a kidnapping is incidental to a robbery is a necessary (though not sufficient) condition for a conviction under section 209. In 28 other words, the fact that a kidnapping is incidental to the robbery strengthens the 1 prosecution's case, it does not weaken it.

2 Of course, the fact the kidnapping was incidental to the robbery is not enough. The kidnapping must also increase the risk of harm to the victim. Defendant argues there 3 was no substantial evidence the kidnapping increased the risk of harm because it did not 4 reduce the victim's ability to escape, decrease the likelihood of detection, or elevate the risk of serious injury or death. However, the jury could have reasonably concluded that 5 moving from outdoors - where Mercado could have fled in any of several directions - into the convenience store "reduc[ed] the prospects of ... escape." (People v. 6 James (2007) 148 Cal.App.4th 446, 457, 55 Cal. Rptr. 3d 767, fn. omitted.) Moreover, 7 movement from an open area to a less open area can substantially decrease the possibility of detection or rescue. (People v. Dominguez (2006) 39 Cal.4th 1141, 1153, 8 47 Cal. Rptr. 3d 575, 140 P.3d 866.)

9 People v. Mendoza, 2018 Cal. App. Unpub. LEXIS 7232, at *5-7. 10 a. Legal Standard 11 The law on sufficiency of the evidence is clearly established by the United States Supreme 12 Court. Pursuant to the United States Supreme Court’s holding in Jackson v. Virginia, 443 U.S. 307 13 (1979), the test on habeas review to determine whether a factual finding is fairly supported by the 14 record is “whether, after viewing the evidence in the light most favorable to the prosecution, any 15 rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 16 Jackson, 443 U.S. at 319; see also Lewis v. Jeffers, 497 U.S. 764, 781 (1990). Thus, only if “no 17 rational trier of fact” could have found proof of guilt beyond a reasonable doubt will a petitioner be 18 entitled to habeas relief. Jackson, 443 U.S. at 324. Sufficiency claims are judged by the elements 19 defined by state law. Id. at 324, n. 16. 20 If confronted by a record that supports conflicting inferences, a federal habeas court “must 21 presume–even if it does not affirmatively appear in the record–that the trier of fact resolved any such 22 conflicts in favor of the prosecution, and must defer to that resolution.” Id. at 326. Circumstantial 23 evidence and inferences drawn from that evidence may be sufficient to sustain a conviction. Walters 24 v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). 25 After the enactment of the AEDPA, a federal habeas court must apply the standards of Jackson 26 with an additional layer of deference. Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). In 27 applying the AEDPA’s deferential standard of review, this Court must presume the correctness of the 28 state court’s factual findings. 28 U.S.C. § 2254(e)(1); Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986). 1 In Cavazos v. Smith, 565 U.S. 1 (2011), the United States Supreme Court further explained the 2 highly deferential standard of review in habeas proceedings, by noting that Jackson, 3 makes clear that 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 4 aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury. What is more, a federal court may not overturn a 5 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 6 the state court decision was “objectively unreasonable.”

7 Because rational people can sometimes disagree, the inevitable consequence of this settled law is that judges will sometimes encounter convictions that they believe to be 8 mistaken, but that they must nonetheless uphold.

9 Id. at 2. 10 b. Analysis 11 Viewing the evidence in the light most favorable to the prosecution, the state court’s 12 determination that there was sufficient evidence was not unreasonable. As set out by Respondent, the 13 offense at issue is kidnapping to commit robbery, per Cal. Penal Code § 209(b)(1)-(2), and the 14 elements of that offense are: (1) the defendant intended to commit robbery; (2) acting with that intent, 15 the defendant took, held, or detained another person by using force or by instilling a reasonable fear; 16 (3) using that force or fear, the defendant made the other person move a substantial distance; (4) the 17 other person was made to move a distance beyond that merely incidental to the commission of a 18 robbery; (5) when that movement began, the defendant already intended to commit robbery; and (6) 19 the other person did not consent to the movement. (Doc. 24 at 12-13, citing CALCRIM No. 1203.) 20 Petitioner’s challenge concerns elements (3) and (4). 21 As to element (3), Petitioner challenges the conclusion that sufficient evidence supports the 22 jury’s decision that his movement of Mercado increased the risk of harm to Mercado, in a way that 23 would satisfy the “substantial distance” test. See People v. Mendoza, 2018 Cal. App. Unpub. LEXIS 24 7232, at *5-6. The Fifth DCA discussed that the kidnapping must increase the risk of harm to the 25 victim, and from moving from outdoors, an open area, where Mercado could have fled in any of 26 several directions into the convenience store, a less open area, reduced the prospects of escape and 27 substantially decreased the possibility of detection or rescue. Id. at *7. As Respondent contends, a 28 fairminded jurist could agree that Petitioner’s act of moving Mercado from the outdoors into the 1 convenience store reduced Mercado’s prospects of escape, detection, and/or rescue, and thereby 2 increased the risk of harm to Mercado. (Doc. 24 at 13.) 3 As to element (4), Petitioner challenges the conclusion that sufficient evidence supports the 4 jury’s decision that his movement of Mercado was “beyond that merely incidental to” his commission 5 of the robbery. See People v. Mendoza, 2018 Cal. App. Unpub. LEXIS 7232, at *5-7. However, as 6 Respondent argues, this conclusion was not objectively unreasonable. (Doc. 24 at 13.) Petitioner’s 7 argument rested on the theory that if the movement of the victim was “necessary to complete the 8 robbery,” then the movement was “merely incidental” to the robbery (see ECF 14-5 at 25-26), but the 9 Fifth DCA rejected this theory as legally incorrect: establishing that the movement of the victim was 10 necessary to complete the robbery establishes only that the movement was incidental to the robbery, 11 not that it was merely incidental to the robbery. People v. Mendoza, 2018 Cal. App. Unpub. LEXIS 12 7232, at *6-7. The Fifth DCA found that the fact that a kidnapping was incidental to the robbery 13 strengthened the prosecution’s case. Id. at *7. 14 The Fifth DCA reasonably concluded that there was sufficient evidence to support Petitioner’s 15 conviction of kidnapping to commit robbery. Petitioner fails to show that no fair-minded jurist would 16 agree with the state court’s determination. Petitioner fails to demonstrate that the state court rejection 17 of his claim was contrary to, or an unreasonable application of, the Jackson standard, and the claim 18 should be denied. 19 IV. RECOMMENDATION 20 Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be 21 DENIED with prejudice on the merits. 22 This Findings and Recommendation is submitted to the United States District Court Judge 23 assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the 24 Local Rules of Practice for the United States District Court, Eastern District of California. Within 25 thirty days after being served with a copy of this Findings and Recommendation, Petitioner may file 26 written objections with the Court. Such a document should be captioned “Objections to Magistrate 27 Judge’s Findings and Recommendation.” The Court will then review the Magistrate Judge’s ruling 28 pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within the 1 specified time may waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 2 F.2d 1153 (9th Cir. 1991). 3 4 IT IS SO ORDERED.

5 Dated: May 12, 2021 _ /s/ Jennifer L. Thurston 6 CHIEF UNITED STATES MAGISTRATE JUDGE

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