NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 17 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL BURCIAGA, No. 19-55006
Petitioner-Appellant, D.C. No. 2:17-cv-03830-JVS-PJW v.
RAYMOND MADDEN, Warden, Centinela MEMORANDUM* State Prison,
Respondent-Appellee.
Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding
Submitted April 2, 2020** Pasadena, California
Before: CALLAHAN and LEE, Circuit Judges, and LYNN,*** District Judge.
Michael Burciaga was convicted in Los Angeles County Superior Court of
shooting at an occupied motor vehicle, unlawful possession of a firearm by a felon,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Barbara M. G. Lynn, Chief United States District Judge for the Northern District of Texas, sitting by designation. and the attempted murders of Eddie Campbell and Adrian Torres. The jury found
that Burciaga committed the attempted murders with premeditation and
deliberation and also committed the attempted murders and the vehicle shooting
for the benefit of his gang and with the specific intent to assist criminal conduct by
members of the gang, qualifying Burciaga for certain sentencing enhancements.
On appeal, the California Court of Appeal found insufficient evidence to maintain
the gang enhancement for the attempted murder of Campbell, but otherwise
affirmed the verdict.1
Burciaga filed a petition for writ of habeas corpus with the district court,
claiming insufficient evidence of premeditation and deliberation for both attempted
murders and of specific intent for the remaining gang enhancements. The district
court denied the petition on all grounds, but granted a certificate of appealability as
to the sufficiency of the evidence of premeditation and deliberation for the
attempted murder of Torres. Burciaga now appeals the district court’s denial of
habeas relief and seeks certificates of appealability on the remaining issues.2
1 The California Court of Appeal found that, although gang members were at the scene, there was no evidence that Burciaga acted with them when he attempted to murder Campbell. In contrast, the court found that the evidence of Burciaga’s cooperation with a gang member, Robert Valdivia, when Burciaga shot at Torres was sufficient for the remaining gang enhancements. 2 Burciaga also filed a Motion to Take Judicial Notice of a photograph of the house at which the shootings took place, admitted at trial as People’s Exhibit 4, and an aerial image of the house prepared by Burciaga’s counsel. The Motion is granted with respect to People’s Exhibit 4, and denied with respect to the aerial image.
2 A petition for habeas relief challenging the sufficiency of the evidence must
establish that, after viewing the evidence in the light most favorable to the
prosecution, “no rational trier of fact could have found proof of guilt beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979). Under the
Antiterrorism and Effective Death Penalty Act of 1996, relief is available if the
California Court of Appeal’s decision to affirm Burciaga’s conviction was an
unreasonable application of clearly established federal law. 28 U.S.C.
§ 2254(d)(1).
There was sufficient evidence to support the jury’s finding that Burciaga
acted with premeditation and deliberation when shooting at Torres. Premeditation
and deliberation require advanced thought and the “careful weighing of
considerations in forming a course of action.” People v. Cole, 33 Cal. 4th 1158,
1224 (2004). Evidence demonstrating premeditation and deliberation includes: (1)
planning; (2) motive; and (3) manner of the crime. People v. Anderson, 70 Cal. 2d
15, 26–27 (1968).
Shortly before Burciaga fired at Torres, Robert Valdivia identified Torres’
presence by yelling, “That’s his nephew. Get him.” This evidences that Burciaga
and Valdivia came to an agreement for Burciaga to shoot Torres, though the time
of the dialogue was brief. See People v. Bolin, 18 Cal. 4th 297, 332 (1998), as
modified on denial of reh’g (Aug. 12, 1998). Furthermore, both Burciaga and
3 Torres were members of the Puente Trece gang. Torres may have had a “Puente”
tattoo on his forehead at the time, and Burciaga may have seen Campbell—an
“original” and presumably well-known member of Puente Trece—hand Torres a
gun.
Given the internal strife in the Puente Trece gang at the time, Burciaga and
Torres’ common membership in the gang supports the reasonable inference that
there was gang-related animosity between them. Potential gang rivalries can
support the existence of “a preplanned, purposeful resolve to shoot” gang rivals.
See People v. Sanchez, 26 Cal. 4th 834, 849 (2001) (emphasis present). Even if
Burciaga did not know Torres or his gang affiliation, Burciaga may still have
considered Torres a gang rival because Torres was associated with Campbell, a
well-known gang member with whom Burciaga’s brother had animosity. See
People v. Rand, 37 Cal. App. 4th 999, 1001–02 (Ct. App. 1995). Given the
evidence of planning and motive, a rational trier of fact could have found beyond a
reasonable doubt that Burciaga acted with premeditation and deliberation when he
fired at Torres, and the California Court of Appeal’s decision affirming the
conviction was not an unreasonable application of federal law. See Davis v.
Woodford, 384 F.3d 628, 640 (9th Cir. 2004).
Burciaga also challenges (1) the sufficiency of the evidence as to whether he
shot Campbell with premeditation and deliberation and (2) whether he possessed
4 the necessary specific intent when he shot at Torres, who was in an occupied
vehicle, to apply the gang enhancement. We construe Burciaga’s briefing of these
uncertified issues as a motion to expand the certificate of appealability. See 9th
Cir. R. 22-1(e). So construed, we grant the certificates, assuming Burciaga “has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“Under the
controlling standard, a petitioner must show that reasonable jurists could debate
whether . . . the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed further.”)
(internal quotation marks and alteration omitted).3 However, we deny Burciaga’s
sufficiency claims on the merits.4
Consideration of the Anderson factors supports the sufficiency of the
evidence of Burciaga’s premeditation and deliberation when he shot Campbell.
After Campbell announced that he did not have a gun, Burciaga approached him
and then shot him during their argument. It was reasonable for the jury to infer
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 17 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL BURCIAGA, No. 19-55006
Petitioner-Appellant, D.C. No. 2:17-cv-03830-JVS-PJW v.
RAYMOND MADDEN, Warden, Centinela MEMORANDUM* State Prison,
Respondent-Appellee.
Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding
Submitted April 2, 2020** Pasadena, California
Before: CALLAHAN and LEE, Circuit Judges, and LYNN,*** District Judge.
Michael Burciaga was convicted in Los Angeles County Superior Court of
shooting at an occupied motor vehicle, unlawful possession of a firearm by a felon,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Barbara M. G. Lynn, Chief United States District Judge for the Northern District of Texas, sitting by designation. and the attempted murders of Eddie Campbell and Adrian Torres. The jury found
that Burciaga committed the attempted murders with premeditation and
deliberation and also committed the attempted murders and the vehicle shooting
for the benefit of his gang and with the specific intent to assist criminal conduct by
members of the gang, qualifying Burciaga for certain sentencing enhancements.
On appeal, the California Court of Appeal found insufficient evidence to maintain
the gang enhancement for the attempted murder of Campbell, but otherwise
affirmed the verdict.1
Burciaga filed a petition for writ of habeas corpus with the district court,
claiming insufficient evidence of premeditation and deliberation for both attempted
murders and of specific intent for the remaining gang enhancements. The district
court denied the petition on all grounds, but granted a certificate of appealability as
to the sufficiency of the evidence of premeditation and deliberation for the
attempted murder of Torres. Burciaga now appeals the district court’s denial of
habeas relief and seeks certificates of appealability on the remaining issues.2
1 The California Court of Appeal found that, although gang members were at the scene, there was no evidence that Burciaga acted with them when he attempted to murder Campbell. In contrast, the court found that the evidence of Burciaga’s cooperation with a gang member, Robert Valdivia, when Burciaga shot at Torres was sufficient for the remaining gang enhancements. 2 Burciaga also filed a Motion to Take Judicial Notice of a photograph of the house at which the shootings took place, admitted at trial as People’s Exhibit 4, and an aerial image of the house prepared by Burciaga’s counsel. The Motion is granted with respect to People’s Exhibit 4, and denied with respect to the aerial image.
2 A petition for habeas relief challenging the sufficiency of the evidence must
establish that, after viewing the evidence in the light most favorable to the
prosecution, “no rational trier of fact could have found proof of guilt beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979). Under the
Antiterrorism and Effective Death Penalty Act of 1996, relief is available if the
California Court of Appeal’s decision to affirm Burciaga’s conviction was an
unreasonable application of clearly established federal law. 28 U.S.C.
§ 2254(d)(1).
There was sufficient evidence to support the jury’s finding that Burciaga
acted with premeditation and deliberation when shooting at Torres. Premeditation
and deliberation require advanced thought and the “careful weighing of
considerations in forming a course of action.” People v. Cole, 33 Cal. 4th 1158,
1224 (2004). Evidence demonstrating premeditation and deliberation includes: (1)
planning; (2) motive; and (3) manner of the crime. People v. Anderson, 70 Cal. 2d
15, 26–27 (1968).
Shortly before Burciaga fired at Torres, Robert Valdivia identified Torres’
presence by yelling, “That’s his nephew. Get him.” This evidences that Burciaga
and Valdivia came to an agreement for Burciaga to shoot Torres, though the time
of the dialogue was brief. See People v. Bolin, 18 Cal. 4th 297, 332 (1998), as
modified on denial of reh’g (Aug. 12, 1998). Furthermore, both Burciaga and
3 Torres were members of the Puente Trece gang. Torres may have had a “Puente”
tattoo on his forehead at the time, and Burciaga may have seen Campbell—an
“original” and presumably well-known member of Puente Trece—hand Torres a
gun.
Given the internal strife in the Puente Trece gang at the time, Burciaga and
Torres’ common membership in the gang supports the reasonable inference that
there was gang-related animosity between them. Potential gang rivalries can
support the existence of “a preplanned, purposeful resolve to shoot” gang rivals.
See People v. Sanchez, 26 Cal. 4th 834, 849 (2001) (emphasis present). Even if
Burciaga did not know Torres or his gang affiliation, Burciaga may still have
considered Torres a gang rival because Torres was associated with Campbell, a
well-known gang member with whom Burciaga’s brother had animosity. See
People v. Rand, 37 Cal. App. 4th 999, 1001–02 (Ct. App. 1995). Given the
evidence of planning and motive, a rational trier of fact could have found beyond a
reasonable doubt that Burciaga acted with premeditation and deliberation when he
fired at Torres, and the California Court of Appeal’s decision affirming the
conviction was not an unreasonable application of federal law. See Davis v.
Woodford, 384 F.3d 628, 640 (9th Cir. 2004).
Burciaga also challenges (1) the sufficiency of the evidence as to whether he
shot Campbell with premeditation and deliberation and (2) whether he possessed
4 the necessary specific intent when he shot at Torres, who was in an occupied
vehicle, to apply the gang enhancement. We construe Burciaga’s briefing of these
uncertified issues as a motion to expand the certificate of appealability. See 9th
Cir. R. 22-1(e). So construed, we grant the certificates, assuming Burciaga “has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“Under the
controlling standard, a petitioner must show that reasonable jurists could debate
whether . . . the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed further.”)
(internal quotation marks and alteration omitted).3 However, we deny Burciaga’s
sufficiency claims on the merits.4
Consideration of the Anderson factors supports the sufficiency of the
evidence of Burciaga’s premeditation and deliberation when he shot Campbell.
After Campbell announced that he did not have a gun, Burciaga approached him
and then shot him during their argument. It was reasonable for the jury to infer
3 In his opening brief, Burciaga also challenges the sufficiency of the evidence of specific intent for the gang enhancement to his firearm possession charge. However, the record indicates that the jury did not find the gang enhancement for the firearm possession charge. Accordingly, Burciaga’s request for a certificate of appealability on that issue is denied. 4 Under Ninth Circuit Rule 22-1(f), we must allow the respondent an opportunity to brief any previously uncertified issues before we grant relief. Because we deny relief for Burciaga’s previously uncertified claims, we find no need to require further briefing on those issues.
5 that Burciaga approached the unarmed Campbell with a gun and a plan to shoot
him, if warranted when they talked. See People v. Romero, 44 Cal. 4th 386, 401
(2008). Burciaga also shot Campbell in the stomach at point-blank range, further
demonstrating premeditation and deliberation. See People v. Koontz, 27 Cal. 4th
1041, 1082 (2002) (firing at a vital area of the body at close range is evidence of
premeditation and deliberation.). Viewing the trial record in the light most
favorable to the prosecution, a rational juror could have concluded that Burciaga
acted with premeditation and deliberation when shooting Campbell. The
California Court of Appeal did not unreasonably apply federal law in affirming
that conviction.
There was also sufficient evidence that Burciaga shot at Torres with the
necessary specific intent to apply the gang enhancement. Cal. Penal Code
§ 186.22(b) requires proof that Burciaga committed the charged offenses “for the
benefit of, at the direction of, or in association with any criminal street gang, with
the specific intent to promote, further, or assist in any criminal conduct by gang
members.” A jury may infer specific intent to promote, further, or assist if the
“evidence establishes that the defendant intended to and did commit the charged
felony with known members of a gang.” People v. Albillar, 51 Cal. 4th 47, 68
(2010).
Valdivia yelled, “That’s his nephew. Get him,” before Burciaga shot at the
6 vehicle in which Torres sat. Valdivia was a member of the Perth Street clique of
Puente Trece. Given Burciaga’s willingness to accept the suggestion from
Valdivia to commit a violent act, Burciaga likely knew Valdivia’s identity and
gang membership. This certainly supports a reasonable inference that Burciaga
acted with a known Puente Trece–Perth Street clique member to shoot at an
occupied vehicle and attempt to murder Torres. Viewing the evidence in the light
most favorable to the prosecution, a rational juror could have concluded that
Burciaga acted with the necessary specific intent. Moreover, the California Court
of Appeal did not unreasonably apply federal law when it held that there was
sufficient evidence of specific intent to apply gang enhancements to Burciaga’s
attempted murder of Torres and shooting of an occupied vehicle.
On appeal, Burciaga challenges, for the first time, the gang enhancements
based on the sufficiency of the evidence as to the existence of the gang that
Burciaga allegedly sought to promote, further, or assist. A habeas petitioner must
exhaust his state remedies before filing a petition for relief under 28 U.S.C. § 2254.
Manning v. Foster, 224 F.3d 1129, 1132 (9th Cir. 2000). A procedural default
from the failure to do so may be excused if the petitioner “can demonstrate cause
for the default and actual prejudice . . . or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson,
501 U.S. 722, 750 (1991). The latter is reserved for “an extraordinary case, where
7 a constitutional violation has probably resulted in the conviction of one who is
actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986). Such an
innocence claim requires “new reliable evidence . . . that was not presented at
trial.” Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008).
We see no cause to excuse Burciaga’s procedural default. He has not
demonstrated a fundamental miscarriage of justice as he does not claim actual
innocence or present any new evidence. Therefore, his argument that there was
insufficient evidence to establish the existence of a gang, to support the gang
enhancement, is not properly before us.
AFFIRMED.