1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 CHRISTOPHER MANCINAS, Case No. 18-cv-06235-YGR (PR)
5 Petitioner, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; AND 6 v. DENYING CERTIFICATE OF APPEALABILITY 7 MARCUS POLLARD, Acting Warden,1 8 Respondent.
9 I. INTRODUCTION 10 Petitioner Christopher Mancinas, a state prisoner, is currently incarcerated at the Richard J. 11 Donovan Correctional Facility, pursuant to his judgments in three cases, People v. Christopher 12 Mancinas, Sonoma County Superior Court Case Nos. SCR498868, SCR590577, and SCR595589. 13 On April 16, 2012, in Case No. SCR595589, a Sonoma County jury convicted Petitioner of active 14 participation in a criminal street gang (count four), which was in connection with the gang-related 15 death of a non-gang member named Dewey Tucker,2 with one strike prior conviction, one prior 16 serious felony conviction, and two prior prison terms. See People v. Mancinas, No. A141759, 17 2017 WL 1422589, at *1-2 (Cal. Ct. App. Apr. 21, 2017, as modified on denial of reh’g, May 16, 18 2017). Meanwhile, on September 13, 2013, in Case No. SCR590577, Petitioner pleaded no 19 contest to possession of methamphetamine for sale, transportation of methamphetamine, 20 possession of cocaine, and possession of a firearm by a felon, with one strike prior conviction and 21 prior prison term. See id. at *1. Lastly, on December 4, 2013, in Case No. SCR498868, Petitioner 22 pleaded no contest to assault with a deadly weapon and admitted one strike prior conviction. See 23 id. On April 9, 2014, the trial court sentenced Petitioner to an aggregate twenty-two years in 24
25 1 Marcus Pollard, the current acting warden of the prison where Petitioner is incarcerated, has been substituted as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil 26 Procedure.
27 2 In Case No. SCR595589, the jury acquitted Petitioner on the remaining three counts, 1 prison for the three aforementioned cases.3 Id. at 2. 2 Petitioner brings the instant pro se habeas action under 28 U.S.C. § 2254 to challenge his 3 conviction for actively participating in a criminal street gang in connection with Tucker’s murder 4 in Case No. SCR595589. Dkt. 1. 5 Having read and considered the papers filed in connection with this matter and being fully 6 informed, the Court hereby DENIES the petition for the reasons set forth below. 7 II. FACTUAL BACKGROUND 8 The California Court of Appeal issued a published opinion, upholding in part and reversing 9 in part the convictions of Petitioner’s co-defendant, Raul Vega,4 who was tried separately, in 10 which it described in detail the facts concerning Tucker’s murder on January 12, 2010. See People 11 v. Vega, 236 Cal. App. 4th 484, 487-89 (2015). Therefore, the Court of Appeal did not provide a 12 more detailed recitation of the murder in its unpublished opinion affirming Petitioner’s conviction 13 and, instead, summarized the facts of Petitioner’s offenses in limited context, as follows.5 14 No. SCR595589 involves the murder of Tucker, which was described 15 in detail in a published opinion from this court, where we upheld in part and reversed in part the convictions of Raul Vega, a co-defendant 16 of [Petitioner] who was tried separately. (See People v. Vega (2015) 236 Cal. App. 4th 484, 487-489 (Vega).)[FN5] We need not give a 17 more detailed recitation of the murder here. Of course, for purposes of this appeal, we rely exclusively on the evidence presented at 18 [Petitioner]’s trial, which differed significantly from the evidence presented at Vega’s trial. We therefore will discuss: (1) the evidence 19 presented by the district attorney in this case that we find to be sufficient to support [Petitioner]’s conviction under section 186.22, 20 subdivision (a), and (2) the evidence [Petitioner] presented in his defense. Before doing so, we note three uncontroverted facts. First, 21
22 3 In Case No. SCR595589, Petitioner was sentenced to a term of seven years and four 23 months, consecutive to his other cases, Case Nos. SCR498868 and SCR590577. Resp’t Ex. A, CT 590-591. 24 4 Vega filed a separate federal habeas action, Case No. C 16-05145 YGR (PR), which the 25 Court denied on the merits and issued judgment. See Dkts. 16, 17 in Case No. C 16-05145 YGR (PR) (N.D. Cal. Oct. 24, 2017). Thereafter, the Ninth Circuit denied a certificate of appealability. 26 See Dkt. 22 in Case No. C 16-05145 YGR (PR).
27 5 This summary is presumed correct. See Hernandez v. Small, 282 F.3d 1132, 1135 n.1 (9th Cir. 2002); 28 U.S.C. § 2254(e)(1). 1 there are two rival factions of the Sureños (a street gang controlled by the Mexican Mafia) in Santa Rosa, known as Varrio Sureño Loco 2 (VSL) and Angelino Heights (AH). Second, [Petitioner] was a well- respected and active high-ranking member of the Sureños gang at the 3 time of Tucker’s murder, and although he claimed not to be a member of either AH or VSL, he had influence with both. And third, 4 [Petitioner] was an FBI informant for about two years until June 2010, although [Petitioner] was not informed of his termination as an 5 informant until October of that year.
6 [FN 5:] We cite Vega in lieu of a detailed recitation of background facts regarding the two rival subsets of the Sureños in Santa Rosa, the 7 inter-gang hostilities that led up to Tucker’s murder, the letter received by the police on January 12, 2010, identification of the 8 participants in Tucker’s murder, the location of the murder, and the manner in which he was killed. We do not rely upon it as evidence 9 of [Petitioner]’s role in the events.
10 1. The District Attorney’s Case
11 In early 2010, both gangs and the police were aware some feud or war was mounting between AH and VSL. For instance, on January 12, 12 2010, the police came into possession of a letter written by an imprisoned VSL member calling for the assassination of three senior 13 members of AH, as well as [Petitioner]. This letter appeared to set the rest of the events into motion. 14 Based on circumstantial evidence and impeachment of [Petitioner]’s 15 self-serving testimony, the district attorney argued [Petitioner] drove to Vallejo on January 12 with other AH members to have Vega kill 16 Ramon Ochoa or Vicente Tapia, both high-ranking VSL members, in retaliation for the murder of Alejandro Ortega, a member of the AH 17 gang, a few weeks earlier. That evening, [Petitioner] borrowed his girlfriend Nicole Allen’s car; when he returned later that night, he told 18 her to not talk to the police about it. The AH gang members thought Ochoa would be at Vicente Tapia’s apartment complex on January 19 12. Once in Vallejo, [Petitioner] helped Vega and another AH member obtain a stolen vehicle to take to Tapia’s apartment complex. 20 Vega and his companion followed a white car leaving Tapia’s apartment complex, believing Ochoa was the driver; [Petitioner] 21 followed close behind. After following the white car onto the freeway, Vega ended up shooting Tucker, who was the actual driver 22 and is not affiliated with any gang. Among other evidence, the district attorney used [Petitioner]’s cell phone records and expert witness 23 testimony to place [Petitioner] at or near the scene of the crime.
24 For the next day or so following the murder, [Petitioner] spoke with another high-ranking Sureños member and close friend, Gerardo 25 Hernandez, over a dozen times. In May 2010, police recovered a handgun from Hernandez’s residence that was later believed to be the 26 weapon used in Tucker’s murder. The gun had been stolen from Arizona at or around a time when [Petitioner] and, later, Hernandez 27 lived there, although there was no direct evidence tying either to the 1 theft. [Petitioner] also knew where the stolen vehicle had been dumped. Expert witnesses testified that gang members generally 2 know which other members have weapons, and believe the existence and handling of stolen cars are important. 3 2. [Petitioner]’s Defense 4 In his defense, [Petitioner] testified that on January 12 he was not 5 aware of what Vega and the others were planning to do when they traveled together to Vallejo, nor when they chased after the white car 6 (which turned out to be Tucker’s) that left Tapia’s apartment complex. Rather, [Petitioner] claimed he traveled to Vallejo to help 7 broker a peace deal between the warring factions of the Sureños gang. Indeed, [Petitioner] testified that he and Ochoa (Vega’s intended 8 target) were “extremely close friends,” so he would not have participated in trying to kill Ochoa. There was also evidence that 9 [Petitioner] had given Ochoa’s name to the FBI as a possible suspect in the killing of Ortega, which had started the AH-VSL feud. 10 [Petitioner] denied helping steal the car Vega drove to kill Tucker, instead insisting another gang member had already stolen the car and 11 offered it to Vega. In addition, [Petitioner] testified he was not at the scene when Vega shot at the white car, but did drive up to see the 12 aftermath a few minutes later. 13 Mancinas, 2017 WL 1422589, at *2-3 (brackets added). 14 III. PROCEDURAL HISTORY 15 Petitioner appealed his judgments in Case Nos. SCR498868, SCR590577, and SCR595589 16 to the California Court of Appeal, and the three criminal appeals were consolidated. Id. at *1. 17 Petitioner raised no issues in the first case, Case No. SCR498868. Id. In Case No. SCR590577, 18 Petitioner requested the state appellate court to reduce his conviction on one count of cocaine 19 possession from a felony to a misdemeanor and remand for resentencing under Proposition 47. Id. 20 And in Case No. SCR595589, Petitioner sought reversal of his conviction for actively 21 participating in a criminal street gang under California Penal Code § 182.66(a) for lack of 22 sufficient evidence. Id. 23 On April 21, 2017, the California Court of Appeal affirmed Petitioner’s judgments in an 24 unpublished decision. Id. at *7. The state appellate court concluded Petitioner’s appeals in Nos. 25 SCR498868 and SCR590577 are procedurally barred and affirmed those convictions. Id. at *1. 26 The state appellate court further concluded that substantial evidence existed to support the 27 conviction in Case No. SCR595589 and affirmed the conviction in that case as well. Id. at *4-7. 1 Thereafter, Petitioner filed a petition for review, and the California Supreme Court denied 2 review on July 19, 2017. Resp’t Ex. L. Petitioner did not pursue collateral review in state court. 3 On October 11, 2018, Petitioner filed the instant petition, under 28 U.S.C. § 2254. Dkt. 1. 4 Petitioner raises the same sufficiency of the evidence claim he raised on direct appeal as to his 5 conviction in Case No. SCR595589. Id. at 5; Dkt. 1-1 at 53-61.6 6 On November 28, 2018, this Court issued an Order to Show Cause. Dkt. 8. On February 7 27, 2019, Respondent filed an Answer. Dkt. 15. Petitioner has not filed a Traverse, and the time 8 to do so has passed. The matter is fully briefed and ripe for adjudication. 9 IV. LEGAL STANDARD 10 A federal court may entertain a habeas petition from a state prisoner “only on the ground 11 that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 12 U.S.C. § 2254(a). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, 13 a district court may not grant a petition challenging a state conviction or sentence on the basis of a 14 claim that was reviewed on the merits in state court unless the state court’s adjudication of the 15 claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, 16 clearly established Federal law, as determined by the Supreme Court of the United States; or 17 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of 18 the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). The first prong 19 applies both to questions of law and to mixed questions of law and fact, see Williams (Terry) v. 20 Taylor, 529 U.S. 362, 407-09 (2000), while the second prong applies to decisions based on factual 21 determinations, see Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 22 A state court decision is “contrary to” Supreme Court authority, that is, falls under the first 23 clause of section 2254(d)(1), only if “the state court arrives at a conclusion opposite to that 24 reached by [the Supreme] Court on a question of law or if the state court decides a case differently 25 26
27 6 Page number citations refer to those assigned by the Court’s electronic case management filing system and not those assigned by the parties. 1 than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams (Terry), 529 2 U.S. at 412-13. A state court decision is an “unreasonable application of” Supreme Court 3 authority, falling under the second clause of section 2254(d)(1), if it correctly identifies the 4 governing legal principle from the Supreme Court’s decisions but “unreasonably applies that 5 principle to the facts of the prisoner’s case.” Id. at 413. The federal court on habeas review may 6 not issue the writ “simply because that court concludes in its independent judgment that the 7 relevant state-court decision applied clearly established federal law erroneously or incorrectly.” 8 Id. at 411. Rather, the application must be “objectively unreasonable” to support granting the writ. 9 Id. at 409. 10 Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual determination will 11 not be overturned on factual grounds unless objectively unreasonable in light of the evidence 12 presented in the state-court proceeding.” See Miller-El, 537 U.S. at 340; see also Torres v. 13 Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). Moreover, “a determination of a factual issue made 14 by a State court shall be presumed to be correct,” and the petitioner “shall have the burden of 15 rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. 16 § 2254(e)(1). 17 In determining whether a state court’s decision is contrary to, or involves an unreasonable 18 application of, clearly established federal law, courts in this Circuit look to the decision of the 19 highest state court to address the merits of the petitioner’s claim in a reasoned decision. See 20 Wilson v. Sellers, __ U.S. __, 138 S. Ct. 1188, 1192 (2018); LaJoie v. Thompson, 217 F.3d 663, 21 669 n.7 (9th Cir. 2000). Moreover, “a determination of a factual issue made by a State court shall 22 be presumed to be correct,” and the petitioner “shall have the burden of rebutting the presumption 23 of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). 24 Even if constitutional error is established, habeas relief is warranted only if the error had a 25 “substantial and injurious effect or influence in determining the jury’s verdict.” Penry v. Johnson, 26 532 U.S. 782, 795-96 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). 27 1 On federal habeas review, AEDPA “imposes a highly deferential standard for evaluating 2 state-court rulings” and “demands that state-court decisions be given the benefit of the doubt.” 3 Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks omitted). In applying the 4 above standards on habeas review, the Court reviews the “last reasoned decision” by the state 5 court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). 6 When there is no reasoned opinion from the highest state court to consider the petitioner’s 7 claims, the court looks to the last reasoned opinion. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 8 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). Thus, a federal court 9 will “look through” the unexplained orders of the state courts rejecting a petitioner’s claims and 10 analyze whether the last reasoned opinion of the state court unreasonably applied Supreme Court 11 precedent. See Ylst, 501 U.S. at 804-06; LaJoie, 217 F.3d at 669 n.7. The last reasoned decision 12 in this case is the state appellate court’s unpublished disposition issued on April 21, 2017, which 13 relates to Petitioner’s claim in the petition. Mancinas, 2017 WL 1422589, at *4-7. 14 V. LEGAL CLAIM 15 Petitioner argues that the evidence was insufficient to support his conviction for actively 16 participating in a criminal street gang under California Penal Code § 186.22(a). Dkt. 1 at 5. 17 Specifically, he contends that—where the jury acquitted him of the three underlying felonies on 18 which the prosecution relied to support the active gang participation—the evidence, consequently, 19 was insufficient to establish the third requirement of the substantive gang offense pursuant to 20 California Penal Code § 186.22(a). Dkt. 1-1, Ex. B at 59-61. Petitioner does not challenge the 21 sufficiency of the evidence as to the other elements of the substantive gang offense. 22 A. State Court Opinion 23 The California Court of Appeal discussed Petitioner’s sufficiency of the evidence claim 24 and rejected it as follows: 25 In No. SCR595589, [Petitioner] contends there is insufficient 26 evidence to sustain his conviction under section 186.22, subdivision (a). We reject this argument and affirm. 27 1 1. Standard of Review
2 We review the jury’s conviction for substantial evidence. “The test of whether evidence is sufficient to support a conviction is ‘whether, 3 after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential 4 elements of the crime beyond a reasonable doubt.’ [Citations.] In making this assessment, the court looks to the whole record, not just 5 the evidence favorable to the respondent to determine if the evidence supporting the verdict is substantial in light of other facts.” (People 6 v. Holt (1997) 15 Cal. 4th 619, 667 (Holt); accord, People v. Garcia (2007) 153 Cal. App. 4th 1499, 1508 (Garcia).) Even if the evidence 7 is mainly (or only) circumstantial, we apply the same standard. (See Holt, supra, 15 Cal. 4th at p. 668 [“ ‘ “ ‘If the circumstances 8 reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably 9 reconciled with a contrary finding does not warrant a reversal of the judgment.’ ” ’ ”].) 10 2. There Is Sufficient Evidence for [Petitioner]’s 11 Conviction Under Section 186.22, Subdivision (a)
12 Section 186.22, subdivision (a) provides that “[a]ny person who actively participates in any criminal street gang with knowledge that 13 its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any 14 felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed 15 one year, or by imprisonment in the state prison for 16 months, or two or three years.” The Supreme Court has divided this provision into 16 three elements: “First, active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; 17 second, knowledge that the gang’s members engage in or have engaged in a pattern of criminal gang activity; and third, the willful 18 promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang.” (People v. Rodriguez (2012) 55 19 Cal. 4th 1125, 1130 (Rodriguez).)
20 The third element is at issue here. Willful promotion, furtherance, or assistance, as the jury was instructed, means essentially the same 21 thing as aiding and abetting. (People v. Castenada (2000) 23 Cal. 4th 743, 749-751.) “Because there rarely is direct evidence of a 22 defendant’s intent, ‘[s]uch intent must usually be derived from all the circumstances of the attempt, including the defendant’s actions.’” 23 (People v. Vu (2006) 143 Cal. App. 4th 1009, 1025.) “Evidentiary considerations which are probative of whether one is an aider and 24 abettor include presence at the scene of the crime, failure to take steps to attempt to prevent the commission of the crime, companionship, 25 flight, and conduct before and after the crime.” (People v. Jones (1980) 108 Cal. App. 3d 9, 15 (Jones); see also People v. Miranda 26 (2011) 192 Cal. App. 4th 398, 407-408 (Miranda); People v. Medina (2009) 46 Cal. 4th 913, 921, 924 (Medina).) A rational factfinder may 27 infer the defendant’s complicity in committing the crime by “failing 1 to immediately disassociate [one]self from the perpetrator of the crime.” (Jones, supra, 108 Cal. App. 3d at p. 15.) Furthermore, “‘[a] 2 person who knowingly aids and abets criminal conduct is guilty of not only the intended crime . . . but also of any other crime the perpetrator 3 actually commits . . . that is a natural and probable consequence of the intended crime. The latter question is not whether the aider and 4 abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable.” (Medina, supra, 46 Cal. 5 4th at p. 920.)
6 [Petitioner] challenges the sufficiency of the evidence to prove the third element. Specifically, [Petitioner] argues that “[t]he prosecution 7 presented no evidence to controvert [his] testimony that on January 12, 2010 he journeyed to Vallejo as a peace emissary, enlisted to 8 facilitate settlement of hostilities between AH and VSL.” (Italics added.) We disagree. 9 The district attorney provided ample (even if circumstantial) evidence 10 for a rational factfinder to conclude [Petitioner] had engaged in criminal street gang activity in violation of section 186.22, 11 subdivision (a) on January 12, 2010. To begin, [Petitioner] was a well-respected and active high-ranking member of the Sureños gang 12 at the time of Tucker’s murder. Further, the surrounding circumstances of January 12 show some sort of feud or war was 13 building between AH and LVS, including the letter a VSL member had written calling for the killing of three AH members and 14 [Petitioner]. A rational factfinder could have disbelieved [Petitioner]’s stated motive for traveling to Vallejo with Vega and the 15 other AH members; it could have concluded he wanted to help kill Ochoa, or could have reasonably foreseen such an act occurring. (See 16 Medina, supra, 46 Cal. 4th at p. 920.) Indeed, [Petitioner]’s motive is suspicious in light of his borrowing Allen’s car and telling her to 17 not talk to the police about it. [Petitioner]’s purported reason also conflicts with the fact that the AH members obtained a stolen car 18 while in Vallejo, the car in which Vega was traveling when he killed Tucker. 19 Moreover, the district attorney presented cell phone records and 20 expert witness testimony to place [Petitioner] at the scene of the crime at the time it was committed, not after. Clearly, if a rational factfinder 21 believed this evidence, it could have been enough to prove [Petitioner]’s “presence at the scene of the crime, failure to take steps 22 to attempt to prevent the commission of the crime, companionship, flight, and conduct before and after the crime.” (See Jones, supra, 23 108 Cal. App. 3d at p. 15.) Or, put another way, a rational factfinder could believe “‘a reasonable person in [Petitioner]’s position would 24 have or should have known that the charged offense[s] w[ere] a reasonable [sic] foreseeable consequence of the act aided and 25 abetted.’” (Medina, supra, 46 Cal. 4th at p. 920.)
26 In addition, for the next day or so following the incident, [Petitioner] spoke with a high-ranking AH member, Hernandez, over a dozen 27 times, later casting suspicion onto them both, given their affiliations 1 and the evidence ultimately found at Hernandez’s home. Specifically, a couple months later police recovered Tucker’s murder weapon, a 2 handgun, from Hernandez’s complex. The gun had been stolen from Arizona at a time when [Petitioner] and Hernandez lived there; 3 although there was no direct evidence tying either to the theft, the circumstances are suspicious. A rational factfinder could infer 4 [Petitioner] had either personally transferred the gun to Hernandez, or at least had known which of the other co-defendants had done so. 5 [Petitioner] also knew where the stolen vehicle had been dumped, from which a rational factfinder could infer he had helped dump the 6 vehicle or ordered someone else to do so. The district attorney presented expert witnesses who testified that gang members generally 7 know which other members have weapons, and believe the existence and handling of stolen cars are important. 8 In total, we find all of the evidence the district attorney presented to 9 be more than sufficient for a rational factfinder to conclude [Petitioner] had furthered, promoted or assisted at least one other AH 10 member in committing the felonious criminal activity of killing Tucker. His role in procuring and disposing of the gun, and procuring 11 and potentially disposing of the stolen car, could easily lead the jury to conclude these activities furthered, promoted or assisted in the 12 Tucker murder. (Cf. Garcia, supra, 153 Cal. App. 4th at p. 1511 [holding that defendant’s “current, comprehensive knowledge of 13 what active gang members were doing, coupled with expert testimony, and in conjunction with defendant’s commission of 14 weapons offenses, supports the conviction for his active participation in a gang [under section 186.22, subdivision (a)].”]; see also Jones, 15 supra, 108 Cal. App. 3d at p. 15.) Thus, there was more than substantial evidence supporting the jury’s verdict convicting 16 [Petitioner] under section 186.22, subdivision (a).
17 Although [Petitioner] initially stated in his opening brief that the district attorney had presented “no evidence” for his conviction, in his 18 reply brief he instead downplays the People’s evidence and points to other evidence in his favor. “This contention essentially invites us to 19 reweigh the evidence,” which we are not in a position to do. (People v. Hernandez (2011) 200 Cal. App. 4th 1000, 1005; accord, Holt, 20 supra, 15 Cal. 4th at pp. 667-668; Garcia, supra, 153 Cal. App. 4th at p. 1508; People v. Fierro (2010) 180 Cal. App. 4th 1342, 1347 21 [“‘Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact.’”].) Substantial evidence 22 supports the conviction.
23 3. Inconsistent Verdicts Do Not Signify Insufficient Evidence 24 [Petitioner] further argues “that in this case, the court and prosecutor 25 designated the three specific acts charged in counts 1, 2, and 3 as the felonious conduct as the basis for finding the active gang participation 26 charged in count 4 [(§ 186.22, subd. (a))]. Whereas the jury acquitted appellant of his participation in the acts charged in counts 1, 2, and 3, 27 there ipso facto was insufficient evidence to prove him guilty of 1 actively participating in a criminal street gang on January 12, 2012.” We disagree. 2 First, we note the plain language of section 186.22, subdivision (a) 3 does not require a conviction of an underlying felony before a defendant may be found guilty of an active gang participation offense. 4 (See People v. Valenzuela (2016) 5 Cal. App. 5th 449, 451, review granted Mar. 1, 2017, S239122.) And we decline to read into the 5 statute such a requirement, regardless of any dictum in Rodriguez that [Petitioner] contends compels us to do so. (Cf. People v. Alvarez 6 (2002) 27 Cal. 4th 1161, 1176 [“[I]t is axiomatic that cases are not authority for propositions not considered.”].) 7 Second, we reject [Petitioner]’s contention that the jury’s acquittals 8 on the first three counts somehow imply he did not commit “felonious criminal conduct” sufficient for a conviction under section 186.22, 9 subdivision (a). This line of argument runs contrary to the inconsistent verdicts doctrine—assuming arguendo the verdicts are 10 indeed inconsistent.
11 Inconsistent verdicts are explicitly allowed by law. (People v. Lewis (2001) 25 Cal. 4th 610, 656 (Lewis) [“It is well settled that, as a 12 general rule, inherently inconsistent verdicts are allowed to stand.”]; accord, People v. Abilez (2007) 41 Cal. 4th 472, 512-513 (Abilez).) 13 Under section 954, we are not permitted to view “[a]n acquittal of one or more counts” as “an acquittal of any other count.” (Italics added.) 14 Indeed, “[a] judgment of conviction establishes the necessarily adjudicated elements of the crime involved in the conviction . . . .” 15 (People v. Cruz (1996) 13 Cal. 4th 764, 771.) Contrary to [Petitioner]’s arguments, “the existence of inconsistent verdicts [does 16 not] imply that the jury must have been confused” (Lewis, supra, 25 Cal. 4th at p. 656), nor that it acted unlawfully (Abilez, supra, 41 Cal. 17 4th at p. 513). “An inconsistency may show no more than jury lenity, compromise, or mistake, none of which undermines the validity of a 18 verdict.” (Lewis, supra, 25 Cal. 4th at p. 656; cf. Dunn v. United States (1932) 284 U.S. 390, 393-394 [“‘The most that can be said in 19 such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does 20 not show that they were not convinced of the defendant’s guilt. We [could choose to] interpret the acquittal as no more than their 21 assumption of a power which they had no right to exercise, but to which they were disposed through lenity.’”], italics added.) 22 Recently, Justice Ginsburg pointed out that “inconsistent verdicts 23 shroud in mystery what the jury necessarily decided.” (Bravo- Fernandez v. United States (2016) 580 U.S. __, __ [137 S. Ct. 352, 24 366].) That certainly captures our view of the record here. For instance, the jury may have acquitted [Petitioner] on the first three 25 counts, but not the fourth (§ 186.22, subd. (a)), because it may have reached some sort of compromise among the jurors; or believed the 26 prosecution had overreached in charging him with all four offenses, or had failed to prove some distinctive element in each count 27 compared to the three elements of the fourth one. But the fact that the 1 jury’s reasoning may be obscure does not mean that the verdict it reached on each count, alone, is without support in the record. To the 2 contrary, “as more fully discussed above, [we] have determined there is sufficient evidence to support the conviction[] and findings 3 rendered in this case. Thus, even if we assume for argument’s sake that the jury verdicts were inconsistent, that conclusion does not, of 4 itself, warrant reversal.” (Lewis, supra, 25 Cal. 4th at p. 656; see also § 954.) Even if a gang participation conviction is “logically 5 inconsistent” with an acquittal on other counts, “the inconsistency is not grounds for reversal [so long as] substantial evidence supported 6 the verdict.” (Miranda, supra, 192 Cal. App. 4th at p. 407, italics added.) Whatever “mystery” may surround the jury’s precise 7 rationale for its verdicts, we find no reason to reverse [Petitioner]’s conviction. 8 Mancinas, 2017 WL 1422589, at *4-7. 9 B. Applicable Federal Law 10 The Due Process Clause “protects the accused against conviction except upon proof 11 beyond a reasonable doubt of every fact necessary to constitute the crime with which he is 12 charged.” In re Winship, 397 U.S. 358, 364 (1970). A state prisoner who alleges that the 13 evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a 14 rational trier of fact to find guilt beyond a reasonable doubt therefore states a constitutional claim, 15 see Jackson v. Virginia, 443 U.S. 307, 321 (1979), which, if proven, entitles him to federal habeas 16 relief, see id. at 324. 17 The Supreme Court has emphasized that “Jackson claims face a high bar in federal habeas 18 proceedings.” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam). A federal court 19 reviewing collaterally a state court conviction does not determine whether it is satisfied that the 20 evidence established guilt beyond a reasonable doubt. Payne v. Borg, 982 F.2d 335, 338 (9th Cir. 21 1992). The federal court “determines only whether, ‘after viewing the evidence in the light most 22 favorable to the prosecution, any rational trier of fact could have found the essential elements of 23 the crime beyond a reasonable doubt.’” Id. (quoting Jackson, 443 U.S. at 319). Only if no 24 rational trier of fact could have found proof of guilt beyond a reasonable doubt, has there been a 25 due process violation. Jackson, 443 U.S. at 324. The “prosecution need not affirmatively ‘rule 26 out every hypothesis except that of guilt,’” and the reviewing federal court “‘faced with a record 27 1 of historical facts that supports conflicting inferences must presume—even if it does not 2 affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the 3 prosecution, and must defer to that resolution.’” Wright v. West, 505 U.S. 277, 296-97 (1992) 4 (quoting Jackson, 443 U.S. at 326). 5 On habeas review, a federal court evaluating the evidence under Jackson and Winship 6 should take into consideration all of the evidence presented at trial. LaMere v. Slaughter, 458 7 F.3d 878, 882 (9th Cir. 2006) (in a case where both sides have presented evidence, a habeas court 8 need not confine its analysis to evidence presented by the state in its case-in-chief). If confronted 9 by a record that supports conflicting inferences, a federal habeas court “must presume—even if it 10 does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in 11 favor of the prosecution, and must defer to that resolution.” Jackson, 443 U.S. at 326; see also 12 McDaniel v. Brown, 558 U.S. 120, 133 (2010) (finding 9th Circuit erred by failing to consider all 13 of the evidence in light most favorable to the prosecution when it resolved inconsistencies in 14 testimony in favor of petitioner). A jury’s credibility determinations are therefore entitled to near- 15 total deference. Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004). Except in the most 16 exceptional of circumstances, Jackson does not permit a federal habeas court to revisit credibility 17 determinations. See id. (credibility contest between victim alleging sexual molestation and 18 defendant vehemently denying allegations of wrongdoing not a basis for revisiting jury’s obvious 19 credibility determination); see also People v. McGravey, 14 F.3d 1344, 1346-47 (9th Cir. 1994) 20 (upholding conviction for sexual molestation based entirely on uncorroborated testimony of 21 victim). 22 Under 28 U.S.C. § 2254(d), a federal habeas court applies Jackson and Winship with an 23 additional layer of deference. Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). A federal 24 habeas court must ask whether the operative state court decision “reflected an ‘unreasonable 25 application’ of Jackson and Winship to the facts of this case.” Id. at 1275 (citing 28 U.S.C. 26 § 2254(d)(1)). Thus, if the state court affirms a conviction under Jackson, the federal court must 27 1 apply section 2254(d)(1) and decide whether the state court’s application of Jackson was 2 objectively unreasonable. See McDaniel, 558 U.S. at 132-33. The Jackson standard is applied to 3 a crime as that crime is defined by state law. Jackson, 443 U.S. at 324 n.16. To grant relief, 4 therefore, a federal habeas court must conclude that “the state court’s determination that a rational 5 jury could have found that there was sufficient evidence of guilt, i.e., that each required element 6 was proven beyond a reasonable doubt, was objectively unreasonable.” Boyer v. Belleque, 659 7 F.3d 957, 964-965 (9th Cir. 2011). 8 Circumstantial evidence and inferences drawn from that evidence may be sufficient to 9 sustain a conviction. Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995). Mere suspicion or 10 speculation cannot support logical inferences, however. Id. Compare United States v. Begay, 673 11 F.3d 1038 1043-45 (9th Cir. 2011) (en banc) (evidence about defendant’s activities and manner of 12 killing allowed inference of premeditation and is sufficient “because it is ‘supported by a chain of 13 logic,’ which is all that is required to distinguish reasonable inference from speculation”) with 14 Juan H., 408 F.3d at 1278-79 (granting writ where, after resolving all conflicting factual 15 inferences in favor of prosecution, only speculation supported petitioner’s conviction for first 16 degree murder under a theory of aiding and abetting). “Jackson leaves juries broad discretion in 17 deciding what inferences to draw from the evidence presented at trial, requiring only that jurors 18 ‘draw reasonable inferences from basic facts to ultimate facts.” Coleman, 566 U.S. at 655. 19 In sum, sufficiency claims on federal habeas review are subject to a “twice-deferential 20 standard.” Parker v. Matthews, 567 U.S. 37, 43 (2012) (per curiam). First, relief must be denied 21 if, viewing the evidence in the light most favorable to the prosecution, there was evidence on 22 which “any rational trier of fact could have found the essential elements of the crime beyond a 23 reasonable doubt.” Id. (quoting Jackson, 443 U.S. at 319) (emphasis in original). Second, a state 24 court decision denying a sufficiency challenge may not be overturned on federal habeas unless the 25 decision was “objectively unreasonable.” Id. (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per 26 curiam)). 27 1 C. Analysis 2 As mentioned above, on federal habeas review a sufficiency of the evidence claim is 3 performed with reference to the substantive elements of the criminal offense as defined by state 4 law. See Jackson, 443 U.S. at 324 n.16. Here, Petitioner claims that, under California Penal Code 5 § 186.22(a), the evidence was insufficient to support his conviction for actively participating in a 6 criminal street gang in regard to the January 12, 2010 murder of Tucker. Dkt. 1 at 5. 7 Section 186.22(a) provides a stand-alone conviction for “[a]ny person who actively 8 participates in any criminal street gang with knowledge that its members engage in, or have 9 engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in 10 any felonious criminal conduct by members of that gang . . . .” Cal. Penal Code § 186.22(a). 11 In the instant case, the trial court instructed the jury that to find Petitioner guilty of 12 participating in a criminal street gang, it had to find the following elements:
13 One: That the defendant actively participated in a criminal street gang; 14 Two: When the defendant participated in the gang, he knew that 15 members of the gang engage in or have engaged in a pattern of criminal gang activity; and 16 Three: The defendant willfully assisted, furthered, or promoted 17 felonious criminal conduct by members of the gang, either by, A), directly and actively committing a felony offense, or, B), aiding and 18 abetting a felony offense. 19 37RT 5244-5245. 20 Concerning the third element, the trial court further instructed:
21 As the term is used here, a willful act is one done willingly or on purpose. 22 Felonious criminal conduct means committing or attempting to 23 commit the following crimes: Conspiracy to commit murder as charged in Count I, murder as charged in Count II, shooting at an 24 occupied motor vehicle as charged in Count III, or assault with a deadly weapon. 25 To decide whether a member of the gang or the defendant committed 26 conspiracy to commit murder as charged in Count I, murder as charged in Count II, shooting at an occupied motor vehicle as charged 27 in Count III, or assault with a deadly weapon, please refer to the 1 separate instructions that I have given you on that crime.
2 To prove that the defendant aided and abetted felonious criminal conduct by a member of the gang, the People must prove that: 3 One: A member of the gang committed the crime; 4 Two: The defendant knew that the gang member intended to commit 5 the crime;
6 Three: Before or during the commission of the crime, the defendant intended to aid and abet the gang member in committing the crime; 7 and
8 Four: The defendant’s words or conduct did in fact aid and abet the commission of the crime. 9 Someone aids and abets a crime if he or she knows of the perpetrator’s 10 unlawful purpose, and he or she specifically intends to, and in fact does, and does in fact aid, facilitate, promote, encourage, or instigate 11 the perpetrator's commission of that crime.
12 If you conclude that the defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in 13 determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or 14 fails to prevent the crime does not, by itself, make him an aider and abettor. 15 The People have the burden of proving beyond a reasonable doubt 16 that the defendant did not withdraw. If the People have not met this burden, you may not, you may not find the defendant guilty under an 17 aiding and abetting theory. 18 37RT 5247-5248. 19 In arguing his sufficiency of the evidence claim, Petitioner contends that by acquitting him 20 of the “underlying” counts in Case No. SCR595589 (conspiracy to commit murder, murder, and 21 discharging a firearm an occupied motor vehicle), the jury “obviously accepted the defense 22 version of events—that in venturing to Vallejo [Petitioner] sought only to prevent further violent 23 confrontations between AH and VSL . . . .” Dkt. 1-1 at 55. Petitioner further contends that the 24 “strong inference” from a relevant state law case, People v. Rodriguez, 55 Cal. 4th 1125 (2012), 25 was that “a conviction under section 186.22, subsection (a) requires a conviction for the felony 26 underlying that gang activity . . . .” Id. at 58. Petitioner specifically argues as follows:
27 . . . the prosecutor here “relied on” the three underlying felonies to 1 support the active gang participation charge in count 4: “We’re talking about shooting in an occupied motor vehicle. We’re talking 2 about helping in a conspiracy to kill a gang rival. We’re talking about murder.” (38RT 5297.) The court’s instruction similarly defined the 3 relevant felonious criminal conduct. (CALCRIM No. 1400; 3CT 517.) But based on the evidence presented, the jury properly 4 acquitted [Petitioner] of the three other substantive felonies charged, obviously concluding appellant did not aid and abet Vega and 5 Carreon-Lopez in the conspiracy, murder, or shooting at an occupied vehicle. In other words, the jury determined [Petitioner] did not “aid, 6 facilitate, promote, encourage, or instigate” his codefendants’ shooting at, or killing Tucker. (CALCRIM No. 401; 3CT 502.) 7 Id. at 59. The state appellate court rejected Petitioner’s position, however, as a matter of state law, 8 stating as follows: 9 . . . we note the plain language of section 186.22, subdivision (a) does 10 not require a conviction of an underlying felony before a defendant may be found guilty of an active gang participation offense. (See 11 People v. Valenzuela (2016) 5 Cal. App. 5th 449, 451, review granted Mar. 1, 2017, S239122.) And we decline to read into the statute such 12 a requirement, regardless of any dictum in Rodriguez that Mancinas contends compels us to do so. (Cf. People v. Alvarez (2002) 27 Cal. 13 4th 1161, 1176 [“[I]t is axiomatic that cases are not authority for propositions not considered.”].) 14 Mancinas, 2017 WL 1422589, at *6. Moreover, the state appellate court’s interpretation of state 15 law is not subject to review here. See Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009). 16 As noted by the state appellate court, Petitioner does not appear to dispute the evidence on 17 the first two elements of section 186.22(a). Mancinas, 2017 WL 1422589, at *4-6. Thus, the state 18 appellate court focused solely on the third element and reasonably applied Jackson, when it 19 determined that based on the evidence presented (including cell phone records and expect witness 20 testimony placing Petitioner at the scene of the crime at the time it was committed) “[t]he district 21 attorney provided ample (even if circumstantial) evidence for a rational factfinder to conclude 22 [Petitioner] had engaged in criminal street gang activity in violation of section 186.22, subdivision 23 (a) on January 12, 2010.” Id. at *5; see also Maass, 45 F.3d at 1358 (circumstantial evidence and 24 inferences drawn from that evidence may be sufficient to sustain a conviction). Specifically, the 25 state appellate court found “all of the evidence the district attorney presented to be more than 26 sufficient for a rational factfinder to conclude [Petitioner] had furthered, promoted or assisted at 27 1 least one other AH member in committing the felonious criminal activity of killing Tucker,” 2 stating as follows: 3 [Petitioner’s] role in procuring and disposing of the gun, and 4 procuring and potentially disposing of the stolen car, could easily lead the jury to conclude these activities furthered, promoted or assisted in 5 the Tucker murder. (Cf. Garcia, supra, 153 Cal. App. 4th at p. 1511 [holding that defendant’s “current, comprehensive knowledge of 6 what active gang members were doing, coupled with expert testimony, and in conjunction with defendant’s commission of 7 weapons offenses, supports the conviction for his active participation in a gang [under section 186.22, subdivision (a)].”]; see also Jones, 8 supra, 108 Cal. App. 3d at p. 15.) Thus, there was more than substantial evidence supporting the jury’s verdict convicting 9 [Petitioner] under section 186.22, subdivision (a). 10 Id. at *6. 11 The record also supports the state appellate court’s determination that the evidence was 12 sufficient for the conviction under section 186.22(a). Several witnesses testified Petitioner was a 13 high-ranking Suren͂o gang member at the time of the murder. 21RT 3043-3044; 22RT 3344-3346; 14 24RT 3453, 3571, 3576-3577; 26RT 3775-3776; 31RT 4497-4498; 32RT 4539, 4541-4542; 15 34ART 4809; 36RT 5073-5074. Petitioner acknowledged he was a “person of influence” within 16 the gang. 34ART 4854. On the night at issue, January 12, 2010, Petitioner borrowed his then 17 girlfriend Allen’s car, telling her “he was going to go handle some business in Vallejo.” 24RT 18 3484-3486. Petitioner acknowledged he drove fellow gang members to Vallejo that night. 19 34ART 4884-4886, 4889. While Petitioner’s purported reason was to travel to Vallejo as a peace 20 emissary, the state appellate court reasonably determined that a rational factfinder could have 21 “disbelieved [his] stated motive for traveling to Vallejo with Vega and the other AH members; it 22 could have concluded he wanted to help kill Ochoa, or could have reasonably foreseen such an act 23 occurring.” Mancinas, 2017 WL 1422589, *4-6. Once in Vallejo, Petitioner helped Vega and 24 another AH gang member obtain a stolen car. 34ART 4895-4897. Petitioner, while driving 25 Allen’s car, then followed Vega and the AH gang member as the latter drove the stolen car and 26 followed victim Tucker from his Vallejo residence. 34ART 4897-4902, 4904-4905. As 27 mentioned above, the prosecutor presented cell phone records and expert testimony putting 1 Petitioner at the scene of the crime at the time it was committed—Petitioner was driving Allen’s 2 car on Interstate 80, following Vega, when Vega shot and killed Tucker. 31RT 4392-4394, 4399- 3 4400; 34ART 4904-4913. 4 When Petitioner talked to Allen later that night, he told her that if the police asked about 5 him, to tell them she and petitioner did not talk anymore. 24RT 3488-3489. He also told her to 6 deny that he had used the car that night. 24RT 3489. The state appellate court reasonably pointed 7 out that Petitioner’s motive was “suspicious in light of his borrowing Allen’s car and telling her to 8 not talk to the police about it.” Mancinas, 2017 WL 1422589, *5. The next day, Petitioner called 9 Allen and had her search her car for bullets, during which she found two bullets, though Petitioner 10 thought there should be more. 24RT 3492-3497. Petitioner spoke with Hernandez, a high-ranking 11 Suren͂o gang member, twenty-one times between January 12 and the next day. 29RT 4074-4075, 12 4095; 30RT 4356-4357. The police recovered the murder weapon from Hernandez’s apartment 13 complex a couple months after the murder. 25RT 3714-3718, 3721-3724. This gun had been 14 stolen in Arizona in July 2007. 25RT 3728-3729. Petitioner lived in Arizona at the time the gun 15 had been stolen. 26RT 3778. Thus, sufficient evidence exists under the deferential Jackson 16 standard, where the evidence is viewed in the light most favorable to the prosecution, to support 17 the conclusion that any rational trier of fact could have found beyond a reasonable doubt that 18 Petitioner had “willfully assisted, furthered, or promoted” at least one other AH gang member in 19 committing the “felonious criminal conduct” of killing Tucker. See Jackson, 443 U.S. at 319. 20 Petitioner also argues that the jury’s acquittals on the first three counts somehow imply he 21 did not commit “felonious criminal conduct” sufficient for a conviction under section 186.22(a). 22 Dkt. 1-1 at 60-61. He specifically argues as follows: 23 Notwithstanding the standard of review favoring the judgment below, 24 the jury’s verdicts in this matter demonstrate the evidence supporting the section 186.22, subdivision (a) charge was legally insufficient. 25 Independent of the three remaining underlying felonies for which appellant was acquitted, there was insufficient evidence proving he 26 actively participated in a criminal street gang on January 12, 2010 by willfully promoting, furthering, or assisting in any of those charged 27 felonies. 1 Id. As mentioned above, the state appellate court also rejected this argument as inconsistent with 2 the plain language of section 186.22(a). Mancinas, 2017 WL 1422589, at *6. The state appellate 3 court added that even assuming arguendo the verdicts were indeed inconsistent, Petitioner’s “line 4 of argument runs contrary to the inconsistent verdicts doctrine,” which states “it is well settled 5 that, as a general rule, inherently inconsistent verdicts are allowed to stand.” Id. (quoting People 6 v. Lewis, 25 Cal. 4th 610, 656 (2001)). This Court finds the state appellate court’s determination 7 reasonable. The Supreme Court has made clear that inconsistent verdicts may stand when one of 8 the verdicts is a conviction and the other an acquittal. Ferrizz v. Giurbino, 432 F.3d 990, 992 (9th 9 Cir. 2005) (citing United States v. Powell, 469 U.S. 57, 65 (1984); Dunn v. United States, 284 U.S. 10 390, 393 (1932)). The rationale for this rule is that the acquittal may be an exercise of leniency by 11 the jury not necessarily grounded in its view of the evidence. Id. at 993. Thus, the sufficiency of 12 evidence supporting a given conviction is assessed “independent of the jury’s determination that 13 evidence on another count was insufficient.” Powell, 469 U.S. at 67. 14 In conclusion, after viewing the evidence presented at trial in the light most favorable to 15 the prosecution and presuming that the jury resolved all conflicting inferences from the evidence 16 against Petitioner, the Court finds that a rational juror “could reasonably have found beyond a 17 reasonable doubt” that Petitioner engaged in criminal street gang activity in violation of section 18 186.22(a). Id. at 325-26. Mindful of the “sharply limited nature of constitutional sufficiency 19 review” and applying the “additional layer of deference” required by AEDPA, this Court is unable 20 to find that the state appellate court’s rejection of this claim was objectively unreasonable. Juan 21 H., 408 F.3d at 1274-75; see also Jackson, 443 U.S. at 319, 326. Accordingly, Petitioner is not 22 entitled to habeas relief, and his sufficiency of the evidence claim is DENIED. 23 VI. CERTIFICATE OF APPEALABILITY 24 No certificate of appealability is warranted in this case. For the reasons set out above, 25 jurists of reason would not find this Court’s denial of Petitioner’s claim debatable or wrong. See 26 Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner may not appeal the denial of a Certificate 27 1 of Appealability in this Court but may seek a certificate from the Ninth Circuit under Rule 22 of 2 the Federal Rules of Appellate Procedure. See Rule 11(a) of the Rules Governing Section 2254 3 Cases. 4 5 VII. CONCLUSION For the reasons outlined above, the Court orders as follows: 6 1. The petition for a writ of habeas corpus is DENIED, and a certificate of 7 appealability will not issue. Petitioner may seek a certificate of appealability from the Ninth 8 Circuit Court of Appeals. 9 2. The Clerk of the Court shall terminate any pending motions and close the file. 10 IT IS SO ORDERED. 11 Dated: January 3, 2020 12
VONNE GONZALEZ ROGER United States District Judge
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