Khan v. Pollard

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 MOHAMMED Z. KHAN, 7 Case No. 19-cv-08349-WHA (PR) Petitioner, 8 ORDER DENYING PETITION FOR v. WRIT OF HABEAS CORPUS AND 9 CERTIFICATE OF APPEALABILITY M. POLLARD, 10 Respondent. 11

12 INTRODUCTION 13 Petitioner filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. 14 § 2254. He claims that his conviction and sentence violated the federal constitution. Respondent 15 was ordered to show cause why the petition should not be granted based upon petitioner’s three 16 cognizable claims for relief. Respondent filed an answer with a supporting memorandum and 17 exhibits, and petitioner filed a traverse. For the reasons discussed below, the petition is DENIED. 18 STATEMENT 19 A. PROCEDURAL BACKGROUND 20 Petitioner was convicted in Alameda County Superior Court in 2016 of first-degree 21 murder, attempted voluntary manslaughter and cultivation of marijuana (ECF No. 6-8 at 244). He 22 was sentenced to a term of 31 years to life in state prison (ibid). On appeal, the California Court 23 of Appeal affirmed the judgment, and the California Supreme Court denied review (see ECF No. 24 6-15, Ans. Exs. 6, 7). Thereafter, petitioner filed the instant habeas petition. 25 B. FACTUAL BACKGROUND 26 The following description of the evidence presented at trial has been taken from the 27 opinion of the California Court of Appeal (Ans. Ex. 6 at 1–5). The California Court of Appeal’s 1 F.3d 1132, 1135 n.1 (9th Cir. 2002); 28 U.S.C. 2254(e)(1). 2 The case centers on the murder of Francisco Lopez, and the attempted murder of his 3 brother Fernando Lopez, after they went to rob a grow house. At the time of the attempted 4 robbery, Abraham and Tiburcio Sanchez and their cousin Jesus Serna were living in the grow 5 house, where petitioner and Sylvestre Arroyo oversaw the operations. 6 On the morning of February 26, 2010, Francisco’s girlfriend drove Fernando and him to 7 the grow house. Francisco and Fernando kicked open the front door. Serna was awoken by the 8 noise, and he and Abraham approached the brothers with a shotgun. The brothers explained that 9 Arroyo sent them to rob the grow house and take the marijuana. 10 Abraham called petitioner to inform him of the break-in. Sometime later, Tiburcio arrived 11 at the house, and, shortly after, petitioner arrived with two other men — Trujillo and Michel. The 12 men went to the garage where Francisco and Fernando were being held at gunpoint by Abraham 13 and Serna. Petitioner was armed with an AK–47 rifle and Trujillo a .45–caliber pistol. Petitioner 14 and Trujillo proceeded to beat and kick the Lopez brothers, bind the brothers’ hands with zip ties 15 and remove their clothing. Michel beat Francisco, choked him with an electrical cord, and tried to 16 hit the brothers in their heads with a drill. 17 The Lopez brothers were later brought outside. Fernando, who was being held by 18 petitioner, was able to escape and hide in the bushes. Fernando observed Francisco being placed 19 in the back of a vehicle. Petitioner, along with a few others, drove to petitioner’s house, where the 20 men continued to beat Francisco. Petitioner’s wife asked the men to stop the beatings, and 21 petitioner stated that Francisco could not stay at his home. Francisco, who appeared to have 22 trouble breathing, was placed back in the vehicle and ultimately left on the ground at the side of 23 the road to die. The body was found six months later. An autopsy revealed that Francisco’s death 24 was caused by multiple fractures to his body, as a result of blunt force trauma. 25 ANALYSIS 26 A. STANDARD OF REVIEW 27 Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a 1 pursuant to the judgment of a State court only on the ground that he is in custody in violation of 2 the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The petition may 3 not be granted with respect to any claim adjudicated on the merits in state court unless the state 4 court’s adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an 5 unreasonable application of, clearly established Federal law, as determined by the Supreme Court 6 of the United States; or (2) resulted in a decision that was based on an unreasonable determination 7 of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). 8 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court 9 arrives at a conclusion opposite to that reached by [the United States Supreme] Court on a 10 question of law or if the state court decides a case differently than [the] Court has on a set of 11 materially indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412–13 (2000). 12 “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if the state 13 court identifies the correct governing legal principle from [the] Court’s decisions but unreasonably 14 applies that principle to the facts of the prisoner’s case.” Id. at 413. “[A] federal habeas court 15 may not issue the writ simply because that court concludes in its independent judgment that the 16 relevant state-court decision applied clearly established federal law erroneously or incorrectly. 17 Rather, that application must also be unreasonable.” Id. at 411. A federal habeas court making 18 the “unreasonable application” inquiry should ask whether the state court’s application of clearly 19 established federal law was “objectively unreasonable.” Id. at 409. 20 The state court decision to which Section 2254(d) applies is the “last reasoned decision” of 21 the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803–04 (1991).1 In reviewing each claim, 22 the court must examine the last reasoned state court decision that addressed the claim. Cannedy v. 23 Adams, 706 F.3d 1148, 1158 (9th Cir.), amended, 733 F.3d 794 (9th Cir. 2013). 24 B. CLAIMS FOR RELIEF 25 As grounds for federal habeas relief, petitioner claims: (1) there was insufficient evidence 26

27 1 Although Ylst was a procedural default case, the “look through” rule announced there has been extended 1 to support his conviction of attempted voluntary manslaughter; (2) there was insufficient evidence 2 to support his conviction of first-degree murder; and (3) the trial court erred by issuing a jury 3 instruction under CALCRIM No. 540. 4 1. SUFFICIENCY OF THE EVIDENCE: CLAIMS ONE AND TWO 5 In his first claim, petitioner argues that there was insufficient evidence to support his 6 conviction for attempted voluntary manslaughter (Pet. 8). Evidence is constitutionally sufficient 7 to support a conviction when, upon “viewing the evidence in the light most favorable to the 8 prosecution, any rational trier of fact could have found the essential elements of the crime beyond 9 a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis excluded). The 10 reviewing court must presume the trier of fact resolved any conflicts in the evidence in favor of 11 the prosecution and must defer to that resolution. Id. at 326. State law provides “for ‘the 12 substantive elements of the criminal offense,’ but the minimum amount of evidence that the Due 13 Process Clause requires to prove the offense is purely a matter of federal law.” Coleman v. 14 Johnson, 566 U.S. 650, 655 (2012) (quoting Jackson, 443 U.S. at 319). The only question is 15 “whether the finding was so insupportable as to fall below the threshold of bare rationality.” Id. at 16 656. The jury, not the court, decides what conclusions should be drawn from evidence admitted at 17 trial. Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam). The jury’s credibility determinations 18 are, therefore, entitled to near-total deference. Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 19 2004). 20 In order to convict a defendant of attempted voluntary manslaughter under California law, 21 the jury must find that the defendant: (1) harbored a specific intent to kill; and (2) desired the 22 result of death or knew to a substantial certainty that death would occur. People v. Montes, 112 23 Cal.App.4th 1543, 1545 (Cal. Ct. App. 2003); People v. Smith, 37 Cal.4th 733, 739 (2005). 24 The California Court of Appeal found that there was sufficient evidence of petitioner’s 25 intent to kill, stating:

26 In sum, Khan was the ringleader of the group that beat up both Lopez brothers; participated himself in both beatings; and commented that 27 the brothers were “done for.” This evidence, coupled with Khan’s the jury’s verdict that Khan not only intended to kill Francisco, but 1 that, had Fernando not broken free and escaped, the same fate awaited him. 2 (Ans. Ex. 6 at 19). 3 Petitioner argues that the record is devoid of any evidence proving that he had the requisite 4 intent to kill (Pet. 9). He explains that Fernando only suffered minor bruises, and the state court’s 5 finding rests on mere speculation (ibid). The state court decision denying this claim was neither 6 contrary to nor an unreasonable application of federal law 7 The record establishes that after the Lopez brothers broke into the home and were detained, 8 Abraham immediately called petitioner, because he had “top command there” (RT 479, 487). 9 Through Trujillo, who acted as an interpreter, Abraham informed petitioner of the break-in, and 10 Abraham was told that petitioner and Trujillo would come to the house (id. 488–89). Prior to 11 petitioner arriving at the house, the Lopez brothers were not hit or beaten (id. 167). The Lopez 12 brothers and Abraham and Serna, “were just chatting like normal people” (id. 168). Once 13 petitioner arrived, he immediately began to hit the Lopez brothers with a gun, in the head, and kick 14 them (id. 170–73). As a result of the beatings, the brothers were bleeding from the mouth (id. 15 174). Petitioner, along with the other men, tied up the Lopez brothers (id. 514). At one point, 16 Fernando was screaming and trying to get away from petitioner (id. at 516). Soon after, Fernando 17 was able to break the plastic ties that bound his hands and run away from petitioner (ibid). Once 18 Fernando ran away, petitioner went after him (id. 765). 19 Fernando testified that petitioner hit him and kicked him (id. 344). He further testified that 20 petitioner threatened him and his brother, stating “he was just telling us that we’re done for, you 21 know, that was a mistake, you guys – what we did, and we’re done for, that was it for us” (id. 22 367). When asked whether he felt his life was in danger, Fernando testified, “[y]eah, I knew it 23 was” (ibid). Petitioner, grabbing hold of Fernando’s bound hands, directed Fernando toward the 24 car (id. 372). After Fernando broke free, petitioner proceeded to drive Francisco, who was “in 25 pretty bad condition” to his home (id. 771). Francisco, who was unable to get out of the truck by 26 himself, was dragged to the living room, and kicked in the chest by petitioner (id. 776–77). After 27 petitioner’s wife complained about the beatings, petitioner stated he didn’t want Francisco at his 1 home anymore (id. 780). 2 In light of the testimony above, there was an abundance of evidence for the jury to find the 3 elements of attempted voluntary manslaughter — that petitioner intended to kill Fernando and 4 desired his death. Petitioner was in command of the operation, and it was at his ultimate direction 5 that the Lopez brothers were beaten. Petitioner helped bind Fernando’s hands, and held Fernando 6 as petitioner led him to the vehicle. As the state court appropriately noted, based on the totality of 7 the evidence, it was only because Fernando was able to break free from petitioner, that he escaped 8 the same fate as his brother. Viewing the evidence in the light most favorable to the prosecution, 9 there was sufficient evidence for the jury to find the essential elements of attempted voluntary 10 manslaughter beyond a reasonable doubt. Jackson, 443 U.S. at 319. Petitioner fails to show that 11 the state court’s ruling was contrary to, or an unreasonable application of Supreme Court case law. 12 Petitioner is denied relief on this claim. 13 In his second claim, petitioner asserts that there was insufficient evidence to support his 14 conviction for first-degree murder as a perpetrator or aider and abettor. The state appellate court 15 found that there was substantial evidence to support a finding that petitioner was guilty of 16 kidnapping either as a direct perpetrator or as an aider and abettor: “the evidence showed that he 17 orchestrated the kidnapping and subsequent beating, and that it was under his direction that 18 Francisco was left to die at the side of the road” (Ans. Ex. 6 at 11). Thus, the state court held that 19 there was sufficient evidence to render petitioner guilty of felony murder based on the kidnapping 20 (id. 12). The court further explained that there was “also substantial evidence of a causal and 21 temporal relationship between the kidnapping and the acts that resulted in Francisco’s death[,]” 22 because it was evident that the kidnapping and homicidal act were part of one continuous 23 transaction (ibid). 24 The appellate court’s denial of the claim was neither contrary to nor an unreasonable 25 application of clearly established law. Under California law, kidnapping has three elements: (1) a 26 person was unlawfully moved by the use of physical force or fear; (2) the movement of the person 27 was for a substantial distance; and (3) the movement was without the person’s consent. People v. 1 in a crime to “[a]ll persons concerned in the commission of a crime,” and all those who “aid and 2 abet in its commission.” Cal. Penal Code § 31. A defendant who himself commits the offense is 3 guilty as a direct perpetrator; if he assists another, he is guilty as an aider and abettor. See People 4 v. Perez, 35 Cal.4th 1219, 1225 (2005). 5 The testimony at trial established that petitioner: beat Francisco, helped bind his hands, led 6 the brothers outside, drove the offending vehicle, and continued to beat Francisco in his home. 7 Based on this testimony, there was sufficient evidence to find the elements of kidnapping beyond 8 a reasonable doubt. Jackson, 443 U.S. at 319. Once found, it was not unreasonable for the state 9 court to find that the kidnapping and homicide were one continuous act. Immediately after 10 Francisco was kidnapped, he was beaten by petitioner, and at petitioner’s direction, he was 11 removed from the home and ultimately deposited on the side of the road to die. Thus, under a 12 theory of felony murder, whether petitioner committed the ultimate homicidal act is irrelevant, so 13 long as he intended the kidnapping of Francisco. See People v. Anderson, 70 Cal.2d 15, 34 (1968) 14 (“the evidence must establish that the defendant harbored the felonious intent either prior to or 15 during the commission of the acts which resulted in the victim’s death”). Based on the foregoing, 16 the state court decision denying this claim was neither an unreasonable application of Supreme 17 Court precedent, nor an unreasonable determination of the facts. Habeas relief is denied on this 18 claim. 19 2. JURY INSTRUCTION: CLAIM THREE 20 Petitioner contends that the trial court erred in instructing the jury on aiding and abetting 21 for felony murder based on kidnapping under CALCRIM No. 540. The trial judge instructed the 22 jury as follows: “The defendant must have intended to commit or aided and abetted the felony of 23 kidnapping before or at the time that a perpetrator caused the death” (RT 1152 (emphasis added)). 24 Specifically, petitioner takes issue with the word “before”, finding that it conflicts with two 25 California state cases: People v. Pulido, 15 Cal.4th 713 (1997), and People v. Hill 236 26 Cal.App.4th 1100 (Cal. Ct. App. 2015). (See Ans. Ex. 7a 23–29). The state appellate court 27 reviewed the cases and rejected petitioner’s claim, explaining that a defendant is liable for felony 1 defendants were engaged in the felonious scheme before or during the killing” (Ans. Ex. 6 at 7–9 2 (emphasis added)). 3 Petitioner appears to be challenging the jury instruction solely as an error under state law. 4 Such a claim is not cognizable in federal habeas proceedings. See Estelle v. McGuire, 502 U.S. 5 62, 71–72 (1991). Instead, to rise to the level of a constitutional violation, a petitioner must show 6 that the ailing instruction by itself so infected the entire trial that the resulting conviction violates 7 due process. Id. at 72. The court must evaluate jury instructions in the context of the overall 8 charge to the jury as a component of the entire trial process. United States v. Frady, 456 U.S. 152, 9 169 (1982) (citation omitted). A habeas petitioner is not entitled to relief unless the instructional 10 error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht 11 v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotations marks and citation omitted). 12 As the state court explained, the jury instruction in this case was proper under California 13 state law — “felony-murder liability attaches . . . to those engaged in the felonious scheme before 14 or during the killing.” People v. Cavitt, 33 Cal.4th 187, 207 (2004) (citing Pulido, 15 Cal.4th at 15 729) (emphasis added). Based on the evidence adduced at trial, petitioner was involved in the 16 felonious scheme nearly until the end. He engaged in the initial beatings, tied the brothers’ hands, 17 drove the vehicle, continued to beat Francisco in his home, and asked that Francisco be taken 18 away. Not long after, Francisco was deposited at the side of the road to die. Because the jury 19 instruction was entirely proper under California state law, there is nothing to indicate that the 20 instruction was a violation of due process. See Estelle, 502 U.S. at 67–68 (“it is not the province 21 of a federal habeas court to reexamine state-court determinations on state-law questions”). There 22 is no basis to grant federal habeas relief based on the trial court’s jury instruction. 23 CONCLUSION 24 For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. 25 A certificate of appealability will not issue because reasonable jurists would not “find the 26 district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 27 529 U.S. 473, 484 (2000). Petitioner may seek a certificate of appealability from the United States 1 The clerk shall close the file. 2 IT IS SO ORDERED. 3 Dated: February 10, 2021 ee A A i 5 ILLIAM ALSUP UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12

14 © 15

Zz 18 19 20 21 22 23 24 25 26 27 28