(HC) Peacock v. Martinez

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 JAMES PEACOCK, No. 2:17-cv-01940 TLN KJN

12 Petitioner,

13 v. FINDINGS & RECOMMENDATIONS

14 JOEL MARTINEZ, Warden,

15 Respondent.

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17 I. Introduction

18 Petitioner is a state prisoner, proceeding with counsel, with an application for a writ of

19 habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his 2011 convictions for burglary,

20 petty theft, assault with a firearm, assault with a knife, and possession of a firearm by a felon.

21 Petitioner was sentenced to a total of thirty-one years, four months in state prison. Petitioner

22 asserts a total of two claims in violation of his federal constitutional rights. After careful review

23 of the record, this court concludes that the petition should be denied.

24 II. Procedural History

25 On October 11, 2011, a jury found petitioner guilty of the following crimes and related

26 allegations: first degree burglary (Cal. Pen. Code1 § 459(a)) and found true the personal use of a

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1

In the procedural history recitation, all further statutory references are to the California Penal

28 Code unless otherwise noted.

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1 firearm (§ 12022.5(a)(1)) and personal infliction of great bodily injury (§ 12022.7(a)); petty theft

2 (§ 484); assault with a firearm (§ 245(a)(2)) and found true the personal use of a firearm

3 (§ 12022.5(a)(1)) and personal infliction of great bodily injury (§ 12022.7(a)); assault with a

4 deadly weapon, to wit: a knife (§ 245(a)(1)) and further found true the personal infliction of great

5 bodily injury (§ 12022.7(a)); and possession of a firearm by a felon (§ 12021(a)(1)).

6 Additionally, the jury found petitioner not guilty of robbery and conspiracy to commit robbery.

7 (1 CT 51-57; see also 2 CT 353-56.)2 On December 9, 2011, petitioner was sentenced to a total

8 of thirty-one years, four months in state prison. (1 CT 98-99.)

9 Petitioner appealed the conviction to the California Court of Appeal, Third Appellate

10 District. (LD 1-3.) The Court of Appeal modified petitioner’s sentence to correct a Section 654

11 sentencing error, but otherwise affirmed the convictions on April 18, 2016. (LD 4.)

12 Petitioner filed a petition for review in the California Supreme Court (LD 5), which was

13 denied on June 29, 2016. (LD 6.)

14 Petitioner filed the instant petition on September 18, 2017. (ECF No. 1.) Respondent

15 answered on December 19, 2017. (ECF No. 11.) Thereafter, respondent lodged the record with

16 this court on January 4, 2018. (ECF No. 12.) Petitioner filed a traverse on February 15, 2018.

17 (ECF No. 19.)

18 III. Facts3

19 In its unpublished memorandum and opinion affirming petitioner’s judgment of

20 conviction on appeal, the California Court of Appeal for the Third Appellate District provided the

21 following factual summary:

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2

“CT” refers to the Clerk’s Transcript on Appeal; “RT” refers to the Reporter’s Transcript on

25 Appeal; “LD” refers to a document lodged with this court.

26 3

The facts are taken from the opinion of the California Court of Appeal for the Third Appellate

27 District in People v. Peacock, No. C070068, April 18, 2016, a copy of which was lodged by

respondent as Document 4.

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1

2 Prosecution Evidence

3 At trial, the victim [Robert Hill] testified he managed a storage

company and lived in an apartment above the business. Fox was the

4 victim's methamphetamine supplier.[3] The victim also testified that

prior to the day on which the charged crimes occurred, he sent Fox a

5 text message in which he had offered to pay her money if she

performed oral sex on him. Fox replied, “[O]kay,” but never showed

6 up and one to two weeks went by before the victim saw her next.

7 Around 8:00 p.m. on November 18, 2010, the victim received a text

message from Fox. The text indicated she was getting off the freeway

8 near his home, about five minutes away. He was a little surprised to

hear from her. He had not invited Fox to visit that night and she had

9 not asked to visit. When she arrived, he let her vehicle in through the

facility gate and met her outside his garage door. He looked into her

10 vehicle and did not see anyone else inside. Fox carried a backpack

with her. Fox asked the victim if he would like to smoke

11 methamphetamine with her and she also said she needed to charge

her cell phone. The two walked up the stairway in the garage and

12 entered the victim's apartment.

13 While Fox was seated in the victim's living room, she was looking at

her cell phone and possibly pushing buttons. She asked the victim to

14 clean his pipe, and he went into the kitchen and then the bedroom to

do so. Fox told him she had to get something out of her car. As the

15 victim was drying the pipe with a blow-dryer in his bedroom, he was

surprised to see a man, later identified as defendant, masked by a red

16 bandana, appear in the bedroom doorway, pointing a gun at the

victim's head. Using the victim's first name, defendant ordered the

17 victim to lay face down on his bed with his hands behind his back.

Defendant threatened to “blow [the victim's] fucking head off” if he

18 did not comply. As the victim laid down on the bed, defendant asked

whom the victim had disrespected, then asked, “‘Who is the girl that

19 came here tonight?’” The victim replied that it was Fox, and

defendant said, “‘That's who you disrespected.’” Defendant

20 repeatedly threatened to “blow [the victim's] fucking head off,” and

the victim felt the gun press against his head.

21

At some point, defendant climbed on the victim's back. From this

22 position, defendant beat the victim on the back of the head with an

object.

23

The victim could hear Fox walking around the bedroom, rummaging

24 through drawers. He also heard her doing the same thing briefly in

the living room. Fox went from one dresser to another in the

25 bedroom. The victim asked Fox what was going on. She commented

about the victim having offered her money to perform oral sex upon

26 him. She was “pissed off” about that, but had not previously said

anything to the victim about it. At the time she made that comment,

27 she was going through the dresser drawers. Fox grabbed the victim

by the hair, lifted his face up and sprayed him in the eyes with mace

28 or pepper spray. She then started “beating down on” the victim's face

3

1 with her fist. At some point, the victim lost consciousness. The

victim testified, “I think I got knocked out pretty quick....” When

2 asked whether he had been “knocked out” before or after he was

maced, the victim indicated he had been going in and out of

3 consciousness and thought that after he was maced, he was “knocked

out again or something.”

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When the victim regained consciousness, he charged defendant, who

5 was blocking the bedroom doorway. The victim said there was a

“massive struggle” to get out of the house. At the time of the struggle,

6 the victim was “half unconscious.” He did not recall seeing Fox at

that time. The victim ran down the stairs, but the garage door had

7 been barred by a rod, he described as a stiff piece of wire that was

half the size of a pinky finger tip in diameter, bent in a U-shape. He

8 had previously fashioned this rod to lock the garage door, but did not

remember closing the garage door when Fox came in. He had to stop

9 to remove the rod. As the victim lifted the garage door, he was struck

on the head from behind with a hard object and his knees went weak,

10 but he was able to escape. He ran to a gym located across the street

and collapsed in its doorway. He then noticed for the first time that

11 he was bleeding, with blood pouring out of his stomach. He thought

he had been shot because he had seen a gun, but had not seen a knife

12 and did not recall being stabbed. He did not remember being struck

in the abdomen area. The gym staff called 911. While waiting for the

13 ambulance, the victim slipped in and out of consciousness.

14 A stipulation was read to the jury that the victim “was transported to

[the hospital] where he was treated for a stab wound to his abdomen.

15 [He] suffered and was treated for injuries to his colon and a lung

[due] to the stabbing. [He] also received sutures to his face and right

16 hand due to lacerations. [He] did not receive treatment for any

injuries to his eyes. [He] remained in the hospital for 6 days prior to

17 release.” There was no mention of blunt force injuries in the

stipulation.

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Upon returning home, the victim discovered his laptop, cell phone,

19 and banking bag were missing.

20 The jury was shown recordings from surveillance video at the storage

unit. The recordings showed: A dark SUV arrived at 8:10 p.m. and

21 entered the gate at 8:12 p.m.; Fox entered through the garage at 8:13

p.m.; the garage door reopened and a male subject entered at 8:18

22 p.m.; the garage door reopened and the victim ran out at 8:23 p.m.; a

few seconds later the male subject exited and ran towards the main

23 gate but then turned and walked back, reentered the garage at 8:24

p.m., then exited again holding what appeared to be a handgun; Fox

24 ran from the garage holding the backpack at 8:24 p.m.; and the SUV

left at 8:25 p.m.

25

Cell phone records showed calls and texts from Fox's phone. About

26 a minute before the male entered the victim's apartment, a text was

sent from Fox's phone to defendant's phone which read, “Win i tex u

27 ur gona hav to rush the door as soon as i open it.” Both phones were

“pinging” off the same cell tower about a half-mile from the crime

28 scene.

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1 At 8:49 p.m., about half an hour after the assault, a text was sent from

Fox's phone to a different number stating, “Im going to prison babe

2 im scard.” Between 8:53 p.m. and 12:47 a.m., Fox texted a different

number: “I need u to get me now plz i fuked up” and “[i]ts 911 for

3 real.” A responding text said, “Baby im all the way in l.a visiting my

moms julia.” Another text from Fox's phone said: “Omg i think i

4 killed him.” The response asked who and if everything was okay.

Fox texted, “No no its not.” Her correspondent advised, “Okay wipe

5 the place dwn an get out mama.” Fox replied, “Its to late for dat im

out.” Her correspondent then said, “Man its never to late to clean

6 away evidence.” Fox said, “Yea it is win muther fkr leakn every were

runing down street scream n n he no my name.” This prompted a

7 query, “Jesus christ why you hit him in the head.”[4] Fox replied, “I

stabbed him several times.” Her correspondent responded, “Dam

8 thats wut he get for putn his hands on u lol karma.” Fox reported it

happened “at his business” and “[t]here were cameras,” and “[i]t

9 went realy bad im tryn to tell u.” Her friend asked why it went bad.

She replied, “Does it realy matter i gota go.” In the days after the

10 assault, a number of calls were made from defendant's phone to Fox's

phone.

11

Defense Evidence

12

Fox testified. She denied sending the text message “‘OMG, I think I

13 killed him.’” She admitted she sent the text message, “‘I stabbed him

several times'” but claimed it was a typographical error, and she

14 meant to text, “J stabbed him several times,” referring to defendant

James Peacock. Fox admitted sending text messages to friends about

15 going to prison and “fuck[ing] up really bad” but claimed they were

prompted by her fear that she would go to prison for not calling 911.

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Fox testified that she had known the victim for about four years and

17 had worked odd jobs at his storage facility. He had talked about

making her assistant manager. Fox supported herself by selling

18 methamphetamine and had previously sold the drug to the victim.

Fox and defendant were “associates” who had known each other

19 since childhood and at one time had a sexual relationship.

20 Fox testified that on the night in question, defendant gave her a ride

to visit a friend in jail, but when they arrived she was unable to visit

21 because all of the visiting appointments had been booked. While she

was at the jail, she called the victim, who wanted her to bring him

22 methamphetamine and talk about her employment situation.

Defendant agreed to take her there but asked her to drive because he

23 was not feeling well. At the victim's apartment, Fox got a weird vibe

from the victim, who had previously asked her for sexual favors and

24 to move in with him. The victim pulled out a pipe but she asked him

to clean it because it was dirty. As he cleaned the pipe in the kitchen,

25 he leered at her and made sexual comments about a “blow job.” She

testified that she went into the victim's stepson's bedroom to look for

26 a cigarette lighter and texted defendant because she was concerned

about the victim's behavior which had escalated to attempts to “grab

27 on me and stuff.” Fox said this was the text message in which she

mentioned rushing the door, and she was referencing the garage door

28 in the event she had to flee the apartment. She said she wanted

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1 defendant there to protect her if the victim chased her outside.

2 Fox testified that the victim “started grabbing on my, my butt and

trying to grab my crotch from behind.” She spun and tried to push

3 him away, but he got more aggressive. She tried to “mace” him with

pepper spray but it bounced off his eyeglasses and just made him

4 mad. He pushed her on the bed, grabbed at her breasts, and tried to

undo her pants. She used her knee as leverage trying to push him

5 back, and she hit him in the face with her left hand to knock the

glasses off his face. He stumbled back. She maced him. He called her

6 a “stupid fucking bitch.” She ran down the stairs and opened the

garage door. Defendant was standing there with a gun in his hand.

7 She had not known he had a gun with him. Defendant ran up the

stairs. Fox stood frozen. She heard the victim screaming. She ran

8 upstairs and saw defendant holding the victim face down on the bed.

Defendant asked her what had happened, and she said the victim tried

9 to rape her. Defendant commanded the victim to utter the name of

the woman he had disrespected. Fox said she did not call 911 because

10 she was afraid defendant would do something to her, or she might

get in trouble because she was there to sell drugs, and she did not

11 want to lose her children.

12 Fox said she went into the downstairs office to look for the manual

override switch to open the main gate. She found the switch but,

13 before she could push it, she heard “really horrible, horrible

screaming,” and saw defendant come downstairs with his gun in one

14 hand and a knife in his other hand. There was “blood all over.” She

knew defendant always carried a knife but had not seen it that

15 evening. She denied ever handling that type of knife. As defendant

came downstairs, he told her to go get the victim. She was

16 dumbfounded. Defendant ran after the victim. Fox ran to the truck

but then returned upstairs to retrieve her backpack. She removed a

17 PlayStation from the backpack and left it there. She returned to their

vehicle. She testified that the backpack did not contain any of the

18 victim's property when she left. Defendant drove them away from the

scene. Defendant asked Fox if the victim knew defendant's name;

19 Fox said no.

20 Fox testified that defendant took her to his friend's home. When

defendant left the truck to see if his friend was home, Fox used her

21 phone to try to get help but no one believed her. At the friend's home,

defendant said he needed Fox's phone and took it for a couple of

22 minutes. Fox made up an excuse about a drug transaction and went

home by herself.

23

Fox denied ever talking to defendant about assaulting or stealing

24 anything from the victim.

25 Defendant presented an alibi defense. He testified he was never at the

crime scene. He had a day job installing alarm systems and had a

26 part-time business as a tattoo artist. At the time of the charged crimes,

he was doing a tattoo at a “tattoo party” in the apartment of client

27 Heather Shamblin.

28 Defendant testified Fox was an “old acquaintance” he rarely saw. He

6

1 once helped her find a place to stay when she was having problems

with drugs and had her children taken away from her. On the

2 afternoon of November 18th, she phoned him and said she knew

someone who wanted a tattoo. She called back ten minutes later and

3 asked defendant to give her a ride to the jail. Around 3:00 or 4:00

p.m., he picked her up in the vicinity of Fulton and Edison, drove her

4 to the jail, let her borrow his cell phone, dropped her off at the jail,

and drove to his home, forgetting Fox had his cell phone.

5

Defendant testified he was not driving his “Ford Chevy Blazer” that

6 day, because it had been in an accident on November 4th. The SUV

was drivable, but he rarely drove it. On the day in question, he was

7 driving a Honda car borrowed from his cousin/roommate. When he

got home after dropping off Fox at the jail, his SUV was missing. He

8 did not file a police report, thinking someone may have taken it to a

mechanic for him. Yet he acknowledged he was upset about his

9 missing vehicle, as attested by his wife Brandi Marcum, who was his

girlfriend at the time. He and Brandi drove the Honda to Shamblin's

10 apartment. He did not pay attention to the clock. Defendant spent

time discussing and drawing the design of the tattoo and checking

11 the Honda for his cell phone, which was missing. He used Brandi's

phone to call his own but heard no ringing. It was dark outside when

12 he started tattooing. It took a long time, longer than it would have in

his shop. During the tattooing, he took two or three breaks, went

13 outside, smoked cigarettes, and relaxed his hands. After completing

the tattoo, defendant and Brandi went to a friend's home, smoked

14 marijuana, left about a half hour later and went home. Defendant

could not sleep because his stomach was bothering him. Days later,

15 defendant's SUV reappeared at his house. He said his phone and

another phone, which he was unfamiliar with, were inside of the

16 SUV.

17 Shamblin testified she did not know defendant or his girlfriend

personally but hired him as a tattoo artist. He arrived in a Honda just

18 before dark on November 18, 2010, between 5:30 p.m. and 7:00 p.m.

They discussed and he drew the design for the tattoo, which took

19 about an hour and a half. They took a cigarette break, and Shamblin

prepared something for her son to eat. Defendant then did the tattoo,

20 which took about three or four hours, stopping once for a five or ten

minute cigarette break. Defendant was at Shamblin's home for about

21 six hours total and left around midnight, give or take 20 minutes.

22 Brandi Marcum testified in sync with defendant's testimony. She said

they left their home around 4:30 p.m. and arrived at Shamblin's

23 apartment around 5:30 or 6:00 p.m. Defendant did not leave the

apartment complex but did step outside a couple of times for

24 cigarettes. A tattoo like that would probably take about two hours,

but it was really hectic in the home, with people stopping by. Marcum

25 and defendant left Shamblin's apartment around 11:00 or 11:30 p.m.,

went to a friend's house for about 20 minutes, and then went home.

26 They went to bed, but defendant got up and left the bedroom. She fell

asleep.

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28 People v. Peacock, 2016 WL 1585641 at *1-5 (Apr. 18, 2016), fns. omitted.

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1 IV. Standards for a Writ of Habeas Corpus

2 An application for a writ of habeas corpus by a person in custody under a judgment of a

3 state court can be granted only for violations of the Constitution or laws of the United States. 28

4 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or

5 application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502

6 U.S. 62, 67-68 (1991).

7 Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas

8 corpus relief:

9 An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

10 with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim -

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(1) resulted in a decision that was contrary to, or involved an

12 unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

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(2) resulted in a decision that was based on an unreasonable

14 determination of the facts in light of the evidence presented in the

State court proceeding.

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16 28 U.S.C. § 2254(d).

17 For purposes of applying § 2254(d)(1), “clearly established federal law” consists of

18 holdings of the United States Supreme Court at the time of the last reasoned state court decision.

19 Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 132 S. Ct.

20 38, 44-45 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v.

21 Taylor, 529 U.S. 362, 412 (2000)). Circuit court precedent “may be persuasive in determining

22 what law is clearly established and whether a state court applied that law unreasonably.” Stanley,

23 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit

24 precedent may not be “used to refine or sharpen a general principle of Supreme Court

25 jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced.” Marshall

26 v. Rodgers, 569 U.S. 58, 64 (2013) (citing Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (per

27 curiam)). Nor may it be used to “determine whether a particular rule of law is so widely accepted

28 among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as

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1 correct.” Id. Further, where courts of appeals have diverged in their treatment of an issue, it

2 cannot be said that there is “clearly established Federal law” governing that issue. Carey v.

3 Musladin, 549 U.S. 70, 77 (2006).

4 A state court decision is “contrary to” clearly established federal law if it applies a rule

5 contradicting a holding of the Supreme Court or reaches a result different from Supreme Court

6 precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003).

7 Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the

8 writ if the state court identifies the correct governing legal principle from the Supreme Court’s

9 decisions, but unreasonably applies that principle to the facts of the prisoner’s case. 4 Lockyer v.

10 Andrade, 538 U.S. 63, 75 (2003); Williams v. Taylor, 529 U.S. at 413; Chia v. Cambra, 360 F.3d

11 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ simply

12 because that court concludes in its independent judgment that the relevant state-court decision

13 applied clearly established federal law erroneously or incorrectly. Rather, that application must

14 also be unreasonable.” Williams v. Taylor, 529 U.S. at 411. See also Schriro v. Landrigan, 550

15 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its

16 ‘independent review of the legal question,’ is left with a ‘“firm conviction”’ that the state court

17 was ‘“erroneous”’”). “A state court’s determination that a claim lacks merit precludes federal

18 habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s

19 decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541

20 U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal

21 court, a state prisoner must show that the state court’s ruling on the claim being presented in

22 federal court was so lacking in justification that there was an error well understood and

23 comprehended in existing law beyond any possibility for fair-minded disagreement.” Richter,

24 562 U.S. at 103.

25 If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing

26 4

Under § 2254(d)(2), a state court decision based on a factual determination is not to be

27 overturned on factual grounds unless it is “objectively unreasonable in light of the evidence

presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford,

28 384 F.3d 628, 638 (9th Cir. 2004)).

9

1 court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford,

2 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)

3 (en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of

4 § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by

5 considering de novo the constitutional issues raised”).

6 The court looks to the last reasoned state court decision as the basis for the state court

7 judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).

8 If the last reasoned state court decision adopts or substantially incorporates the reasoning from a

9 previous state court decision, this court may consider both decisions to ascertain the reasoning of

10 the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When a

11 federal claim has been presented to a state court and the state court has denied relief, it may be

12 presumed that the state court adjudicated the claim on the merits in the absence of any indication

13 or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption

14 may be overcome by a showing “there is reason to think some other explanation for the state

15 court’s decision is more likely.” Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803

16 (1991)). Similarly, when a state court decision on petitioner’s claims rejects some claims but

17 does not expressly address a federal claim, a federal habeas court must presume, subject to

18 rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, 568 U.S. 289,

19 298 (2013) (citing Richter, 562 U.S. at 98). If a state court fails to adjudicate a component of the

20 petitioner’s federal claim, the component is reviewed de novo in federal court. Wiggins v. Smith,

21 539 U.S. 510, 534 (2003).

22 Where the state court reaches a decision on the merits but provides no reasoning to

23 support its conclusion, a federal habeas court independently reviews the record to determine

24 whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.

25 Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo

26 review of the constitutional issue, but rather, the only method by which we can determine whether

27 a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no

28 reasoned decision is available, the habeas petitioner still has the burden of “showing there was no

10

1 reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98.

2 A summary denial is presumed to be a denial on the merits of the petitioner’s claims.

3 Stancle v. Clay, 692 F.3d 948, 957 & n.3 (9th Cir. 2012). While the federal court cannot analyze

4 just what the state court did when it issued a summary denial, the federal court must review the

5 state court record to determine whether there was any “reasonable basis for the state court to deny

6 relief.” Richter, 562 U.S. at 98. This court “must determine what arguments or theories . . . could

7 have supported the state court’s decision; and then it must ask whether it is possible fairminded

8 jurists could disagree that those arguments or theories are inconsistent with the holding in a prior

9 decision of [the Supreme] Court.” Id. at 101. The petitioner bears “the burden to demonstrate

10 that ‘there was no reasonable basis for the state court to deny relief.’” Walker v. Martel, 709 F.3d

11 925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98).

12 When it is clear, however, that a state court has not reached the merits of a petitioner’s

13 claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal

14 habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462

15 F.3d 1099, 1109 (9th Cir. 2006).

16 V. Petitioner’s Claims

17 A. The Sufficiency of the Evidence

18 Petitioner claims the evidence was insufficient to support his convictions for personally

19 inflicting great bodily injury and for petty theft. (ECF No. 1-1 at 17-26; ECF No. 19 at 6-13.)

20 Respondent contends the state court reasonably determined there was sufficient evidence to

21 support both convictions. (ECF No. 11 at 15-20.)

22 The last reasoned rejection of petitioner’s claim is the decision of the California Court of

23 Appeal for the Third Appellate District on petitioner’s direct appeal. The state court addressed

24 this claim as follows:

25 I. Sufficiency of Evidence

26 Defendant argues the evidence was insufficient to prove he (1)

personally inflicted great bodily injury (GBI) or (2) perpetrated or

27 aided and abetted petty theft. We disagree.

28 “‘The standard of appellate review for determining sufficiency of the

11

1 evidence is settled. “On appeal we review the whole record in the

light most favorable to the judgment to determine whether it

2 discloses substantial evidence....’”” (People v. Howard (2010) 51

Cal.4th 15, 33.) “Under the substantial evidence rule, we must

3 presume in support of the judgment the existence of every fact that

the trier of fact could reasonably have deduced from the evidence.

4 [Citation.] Thus, if the circumstances reasonably justify the trier of

fact's findings, the opinion of the reviewing court that the

5 circumstances might also reasonably be reconciled with a contrary

finding does not warrant reversal of the judgment.” (People v.

6 Medina (2009) 46 Cal.4th 913, 924, fn. 2.)

7 A. Personal Infliction of GBI

8 Defendant argues the only injuries qualifying for the GBI

enhancement (§ 12022.78) were the stab wounds, and there was no

9 evidence he inflicted any of the stab wounds, all of which were

inflicted by Fox. However, the stab wounds were not the only

10 injuries. Defendant personally beat the victim on the head with a gun,

and the victim lost consciousness, even before Fox stabbed the

11 victim. The loss of consciousness supports the section 12022.7

finding against defendant.[9]

12

The trial court instructed the jury that great bodily injury means

13 “significant or substantial physical injury. It is an injury that is

greater than minor or moderate harm.” This instruction was correct.

14 (§ 12022.7, subd. (f), fn. 8, ante; CALCRIM No. 3160; People v.

Cross (2008) 45 Cal.4th 58, 63 (Cross).)

15

Whether harm amounts to GBI is a question of fact for the jury.

16 (Cross, supra, 45 Cal.4th at p. 64 [pregnancy without medical

complications that results from unlawful but nonforcible sexual

17 conduct with a minor can support a GBI finding].) GBI is a

substantial injury beyond that inherent in the offense, but “to be

18 significant or substantial the injury need not be so grave as to cause

the victim ‘“permanent,” “prolonged,” or “protracted”’ bodily

19 damage.” (Ibid.)

20 GBI under section 12022.7 is “‘“essentially equivalent”’” to “serious

bodily injury” under the felony battery statute (§ 243, subds. (d),

21 (f)(4)10), which specifies “loss of consciousness” as an example of

serious bodily injury. (People v. Wade (2012) 204 Cal.App.4th 1142,

22 1149–1150, citing People v. Burroughs (1984) 35 Cal.3d 824, 831,

overruled on another ground in People v. Blakely (2000) 23 Cal.4th

23 82, 89.) In Wade, the defendant choked his girlfriend with so much

pressure that she blacked out. (Wade, at p. 1146.) She did not know

24 for how long she was unconscious. (Ibid.) Her daughter came to the

victim's room, and they yelled at the defendant until he left. (Id. at

25 pp. 1146–1147.) The victim had bruises on her neck for a week, but

the choking did not impair her neck mobility, and she did not seek

26 medical treatment. (Id. at p. 1147.) The Wade court upheld the felony

battery conviction, rejecting the defendant's argument that medical

27 treatment was essential to a finding of serious bodily injury. (Id. at

pp. 1147–1150.)

28

12

1 Here, defendant acknowledges there was evidence that his beating of

the victim's head with the gun caused the victim to lose

2 consciousness. The severity of this injury is apparent in that the

victim's unconsciousness was so deep that he was unaware he was

3 being stabbed with a knife.

4 Defendant argues the loss of consciousness was not of sufficient

duration to constitute GBI. He notes section 12022.7, as initially

5 enacted (Stats. 1976, ch. 1139, § 306), listed examples of GBI,

including “‘“[p]rolonged loss of consciousness.”’” Defendant quotes

6 from People v. Nava (1989) 207 Cal.App.3d 1490, that GBI “must

be a significant and substantial injury as contrasted with injuries that

7 could logically be described as constituting only transitory and short-

lived bodily distress that do not fall within the contours of injuries

8 that are severe and protracted.” (Id. at p. 1496 [concluding that the

trial court erred in instructing jury that bone fracture was GBI as

9 matter of law], citing People v. Johnson (1980) 104 Cal.App.3d 598,

609.) Defendant argues the loss of consciousness in this case was

10 “necessarily momentary” rather than prolonged, because the

surveillance video showed defendant was at the crime scene less than

11 five minutes, which included the time elapsed climbing the stairs,

entering the bedroom, etc.

12

However, defendant's interpretation of the timeline does not show

13 the loss of consciousness was necessarily momentary. In any event,

there is no duration test as urged by defendant. Before section

14 12022.7 became operative, the Legislature (§ 12022.7, as amended

by Stats. 1977, ch. 165, § 94, p. 679) deleted the specified examples

15 of GBI and changed the definition of GBI from “‘serious impairment

of physical condition’” to “‘significant or substantial physical

16 injury.’” (People v. Escobar (1992) 3 Cal.4th 740, 747; People v.

Caudillo (1978) 21 Cal.3d 562, 581.) In Caudillo, the court reasoned

17 that the apparent legislative intent of the deletion was not to lessen

the magnitude of bodily injury required, but rather to preclude the

18 possibility that the listed examples would be viewed as all-inclusive.

(Id. at p. 582.) The Caudillo court held a “transitory and short-lived”

19 injury did not constitute GBI. (Id. at p. 588.) That wording was

subsequently applied as a litmus test in some appellate cases such as

20 those cited by defendant here. However, our high court in Escobar

later held “Caudillo erred in concluding that the Legislature intended

21 no change in the definition of ‘great bodily injury’ when it discarded

the specific criteria set forth in the original version of section 12022.7

22 and substituted the more general ‘significant or substantial physical

injury’ test then in use. Clearly, the latter standard contains no

23 specific requirement that the victim suffer ‘permanent,’ ‘prolonged’

or ‘protracted’ disfigurement, impairment, or loss of bodily

24 function.” (Escobar, at pp. 749–750.) The Escobar court concluded

that GBI under section 12022.7 need not meet any particular standard

25 for severity or duration, but need only be a substantial injury beyond

that inherent in the offense itself. (Escobar, at pp. 746–747; see also

26 People v. Le (2006) 137 Cal.App.4th 54, 58–60.)

27 Here, there was sufficient evidence from which the jury could

conclude the victim's loss of consciousness from the beating inflicted

28 by defendant was a significant and substantial injury constituting

13

1 GBI.

2 B. Substantial Evidence of Petty Theft

3 Defendant argues there was no evidence he took any property and

therefore his guilt must be predicated on aiding and abetting the theft

4 by Fox, yet there is insufficient evidence he aided and abetted the

theft. He emphasizes the jury was not instructed on a “natural and

5 probable consequences” theory. We conclude the evidence was

sufficient to support a finding that defendant aided and abetted the

6 theft without regard to the theory of natural and probable

consequences.

7

A person aids and abets commission of a crime when he promotes,

8 encourages, or instigates the commission of the crime, by act or

advice, with knowledge of the perpetrator's unlawful purpose, and

9 with the intent or purpose of committing, facilitating, or encouraging

the crime. (People v. Hill (1998) 17 Cal.4th 800, 851.) Advance

10 knowledge of the principal's criminal purpose is not required.

(People v. Swanson–Birabent (2003) 114 Cal.App.4th 733, 742.)

11 Whether the defendant aided and abetted a crime is a question of fact,

and on appeal all conflicts in the evidence and reasonable inferences

12 from the evidence are resolved in favor of the judgment. (People v.

Mitchell (1986) 183 Cal.App.3d 325, 329.)

13

Here, there was evidence that defendant held the victim at gunpoint

14 in the bedroom, while the victim heard Fox moving around the

apartment, opening and closing drawers. Indeed, the victim heard

15 Fox going through drawers in the bedroom while his head was down

and defendant was on top of him in the very same room. He also saw

16 Fox go from one dresser to another in the bedroom. Given

defendant's presence, he was clearly aware of Fox's activities in the

17 bedroom while he was on top of the victim, holding him at gunpoint.

Further, since the victim heard Fox going through drawers elsewhere

18 in the apartment while defendant held him captive in the bedroom, it

can be inferred that defendant heard Fox's activities also. And

19 defendant later stood in the doorway to the bedroom while the victim

was unconscious and attempted to block the victim's escape while

20 Fox was apparently elsewhere in the apartment.

21 Defendant argues he did not take any property; he did not utter any

words to Fox about taking property; and the victim's testimony

22 established that defendant was concerned only with the victim having

disrespected Fox by sexually affronting her. However, the evidence

23 clearly shows that defendant facilitated the taking of property with

the knowledge that Fox was looking for items to take. And it could

24 further be inferred from the evidence that both the assault and the

theft were payback for the sexual affront.

25

Substantial evidence supports defendant's theft conviction.

26

27 (People v. Peacock, slip op., LD 4 at *6-9 [fns. omitted].)

28

14

1 Legal Standards & Analysis

2 The Due Process Clause of the Fourteenth Amendment protects a criminal defendant from

3

conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the

4

crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). Thus, one who

5

alleges that the evidence introduced at trial was insufficient to support the jury’s findings states a

6

cognizable federal habeas claim. Herrera v. Collins, 506 U.S. 390, 401-02 (1993). Nevertheless,

7

8 the petitioner “faces a heavy burden when challenging the sufficiency of the evidence used to

9 obtain a state conviction on federal due process grounds.” Juan H. v. Allen, 408 F.3d 1262, 1274

10 (9th Cir. 2005). On direct review, a state court must determine whether “any rational trier of fact

11

could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

12

Virginia, 443 U.S. 307, 319 (1979). Federal habeas relief is available only if the state court

13

determination that the evidence was sufficient to support a conviction was an “objectively

14

15 unreasonable” application of Jackson. Juan H., 408 F.3d at 1275 n.13.

16 Habeas claims based upon alleged insufficient evidence therefore “face a high bar in

17 federal habeas proceedings because they are subject to two layers of judicial deference.”

18 Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam). As noted by the Supreme Court:

19

20 First, on direct appeal, “it is the responsibility of the jury−not the

court−to decide what conclusions should be drawn from evidence

21 admitted at trial. A reviewing court may set aside the jury’s verdict

on the ground of insufficient evidence only if no rational trier of fact

22 could have agreed with the jury.” And second, on habeas review, “a

federal court may not overturn a state court decision rejecting a

23 sufficiency of the evidence challenge simply because the federal

court disagrees with the state court. The federal court instead may do

24 so only if the state court decision was ‘objectively unreasonable.’”

Id. at 651 (citations omitted).

25

The Jackson standard “must be applied with explicit reference to the substantive elements

26

of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n.16. In performing a

27

Jackson analysis, a jury’s credibility determinations are “entitled to near-total deference.” Bruce

28

15

1 v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004). When the factual record supports conflicting

2 inferences, the federal court must presume that the trier of fact resolved the conflicts in favor of

3 the prosecution and must defer to that resolution. Jackson, 443 U.S. at 326.

4 Under Jackson, this Court’s role is simply to determine whether there is any evidence, if

5 accepted as credible by the trier of fact, sufficient to sustain conviction. Schlup v. Delo, 513 U.S.

6 298, 330 (1995). The United States Supreme Court has recently even further limited a federal

7 court’s scope of review under Jackson, holding that “a reviewing court may set aside the jury’s

8 verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed

9 with the jury.” Cavazos v. Smith, 565 U.S. 1 (2011) (per curiam). Jackson “makes clear that it is

10 the responsibility of the jury—not the court—to decide what conclusions should be drawn from

11 evidence admitted at trial.” Id. at 2. Under Cavazos, “a federal court may not overturn a state

12 court decision rejecting a sufficiency of the evidence challenge simply because the federal court

13 disagrees with the state court. The federal court instead may do so only if the state court decision

14 was ‘objectively unreasonable.’” Id. at 2 (quoting Renico v. Lett, 559 U.S. 766, 773 (2010)).

15 A Preliminary Matter

16 Initially, the undersigned notes that to the degree petitioner argues the state court’s factual

17 determinations were erroneous, he has not overcome the presumption of their correctness by clear

18 and convincing evidence. Sumner v. Mata, 449 U.S. 539, 546 (1981) (state appellate court

19 findings are entitled to correctness presumption). A decision adjudicated on the merits in a state

20 court and based on a factual determination will not be overturned on factual grounds unless

21 objectively unreasonable in light of the evidence presented in the state court proceeding. 28

22 U.S.C. § 2254(d)(2); Stanley, 633 F.3d at 859. As referenced specifically below, the record

23 establishes the state court’s factual determinations were reasonable in light of the evidence

24 presented in the state court proceeding.

25 Great Bodily Injury

26 First, the undersigned notes that respondent is correct in his assertion that where the state

27 court’s interpretation of an element of the enhancement forms the basis for petitioner’s challenge,

28 this court cannot second guess the state court’s litigation of this issue – it is an issue of state law.

16

1 Bradshaw v. Richey, 546 U.S. 74, 76 (2005).

2 In any event, a review of this record confirms the state court’s determination was

3 reasonable. A rational trier of fact could have found the essential elements of the crime of

4 personal infliction of great bodily injury beyond a reasonable doubt. Jackson, 443 U.S. at 319.

5 The jury’s conclusions are supported by substantial evidence and are entitled to this court’s

6 deference. Bruce v. Terhune, 376 F.3d at 957. There was evidence, accepted as credible by the

7 jury, sufficient to sustain petitioner’s convictions. Schlup v. Delo, 513 U.S. at 330.

8 California Penal Code section 12022.7(a) provides that “[a]ny person who personally

9 inflicts great bodily injury on any person other than an accomplice in the commission of a felony

10 or attempted felony shall be punished by an additional and consecutive term of imprisonment in

11 the state prison for three years.” Great bodily injury is defined for purposes of the statute, in

12 subdivision (f), as “a significant or substantial physical injury.” This “standard contains no

13 specific requirement that the victim suffer ‘permanent,’ ‘prolonged’ or ‘protracted’ disfigurement,

14 impairment, or loss of bodily function.” People v. Escobar, 3 Cal.4th 740, 750 (1992).

15 However, the victim’s injury must exceed the injury inherent in the substantive offense. Id. at

16 746-47. But “to be significant or substantial the injury need not be so grave as to cause the victim

17 ‘permanent, prolonged, or protracted’ bodily damage.” People v. Cross, 45 Cal.4th 58, 64 (2008)

18 (quoting Escobar, 3 Cal.4th at 750). Nor are “medical complications or the use of force . . .

19 required to support a finding of great bodily injury.” Id. Instead, such a finding “rests on the

20 facts as presented at trial in the context of the particular crime and the particular injuries suffered

21 by the victim.” Id. (citing Escobar, 3 Cal.4th at 750). In particular, great bodily injury “is

22 commonly established by evidence of the severity of the victim's physical injury, the resulting

23 pain, or the medical care required to treat or repair the injury.” Cross, 45 Cal.4th at 66. “A fine

24 line can divide an injury from being significant or substantial from an injury that does not quite

25 meet the description. Where to draw that line is for the jury to decide.” Id. at 64 (internal

26 quotation marks omitted). Abrasions, lacerations, and bruising may constitute great bodily injury.

27 People v. Washington, 210 Cal.App.4th 1042, 1047 (2012).

28 ////

17

1 Here, there was evidence the victim sustained blows to the back of the head.5 (See 1 RT

2 114, 118, 174, 182, 205-07 [Hill testimony]; 2 RT 534 & 3 RT 606-08, 616, 640, 667 [Fox

3 testimony]; see also 2 RT 334-35 [Resch testimony]; 402, 406-11 [Figueroa testimony].) That

4 testimony establishes the victim suffered blows to the back of the head from a gun wielded by

5 petitioner while the victim was restrained and possibly from another object while the victim was

6 fleeing from his attacker. Being struck repeatedly on the back of the head with a firearm can

7 amount to a significant or substantial injury exceeding that inherent in the substantive offense.

8 Escobar, 3 Cal.4th at 746-47, 750; Cross, 45 Cal.4th at 64. The fact the “medical evidence” or

9 the stipulation entered into by the parties at trial concerning the victim’s more major injuries6 fails

10 to specifically indicate the victim received treatment for an injury to the back of his head does not

11 make the state court’s determination objectively unreasonable. Cross, at 66; Washington, 210

12 Cal.App.4th at 1047. The jury could, and did, reasonably determine that great bodily injury was

13 inflicted upon the victim in this case given the factual context as presented at trial.

14 Petitioner takes issue with the state court’s specific finding that he ‘“acknowledge[d] there

15 was evidence that his beating of the victim’s head with the gun caused the victim to lose

16 consciousness. The severity of this injury is apparent in that the victim’s unconsciousness was so

17 deep that he was unaware he was being stabbed with a knife.’” (ECF No. 1-1 at 20-21.)

18 Petitioner contends he consistently argued “great bodily injury was caused by Fox,” meaning he

19 acknowledged no such evidence. (ECF No. 1-1 at 21.)

20 A review of the Appellant’s Opening Brief filed with the Third District Court of Appeal

21 provides context for that court’s finding. At page 23 of the brief, petitioner wrote: “Here, Hill

22 testified Peacock was ‘beating his head in with the gun’ (1 RT 114) and, prior to escaping through

23 the garage door, he was hit on the head with a ‘very hard object.’” (1 RT 118.) And at page 24,

24 petitioner wrote that “Hill testified that he believed he lost consciousness part of the time.” (1 RT

25 5

The victim testified that Fox hit him in “front of [his] face.” (1 RT 119.)

26 6

That the victim suffered stab wounds to the abdomen injuring the colon and lung, as well as

27 lacerations to the face and hand requiring sutures, and required six days of hospitalization. (2 CT

340.)

28

18

1 116.) Those passages – acknowledging there existed evidence that the victim was struck on the

2 head and lost consciousness - can account for the state court’s language. It is plain that petitioner

3 was arguing the evidence was insufficient and that the state court disagreed. In any case, the

4 jury’s decision is not to be overturned unless it is determined to be objectively unreasonable.

5 Cavazos, 565 U.S. at 1.

6 Regarding the loss of consciousness,7 the record includes the following evidence by way

7 of the victim’s trial testimony: (1) “It’s kind of hard for me to exactly recall because I think I

8 went unconscious for awhile,” the victim agreed he “kind of ha[s] a lapse in memory;” and that

9 when he “came back to” the victim was “still l[]ying on the bed” and petitioner “was blocking the

10 doorway” (1 RT 116); (2) on cross-examination by petitioner’s counsel, the victim stated “I think

11 I got knocked out pretty quick, so I didn’t see much” (1 RT 202), and “got knocked out again or

12 something” (1 RT 204) and was “coming in and out” of consciousness (1 RT 204); and (3) on

13 redirect examination, the victim testified that he did not recall actually being stabbed. (1 RT

14 245.)

15 Petitioner argues, contrary to the state court’s finding there was evidence the victim lost

16 consciousness before Fox stabbed the victim, “that the record does not establish Hill lost

17 consciousness as a result of being hit with the firearm. Hill did not claim to lose consciousness

18 until after Fox began ‘punching’ him.” (1RT 113-16.) (ECF No. 1-1 at 21.) But the record as a

19 whole reveals the victim was somewhat uncertain regarding the timing of his loss of

20 consciousness and also includes the testimony of Elk Grove Police Officer Terry Cooley who

21 indicated that the victim advised him at the hospital on the night of the incident that he was

22 simultaneously fighting with the man wearing the bandanna and codefendant Fox. (2 RT 323-

23 24.) Hence, there is certainly nothing objectively unreasonable about the state court’s finding that

24 there was evidence the victim was unconscious before being stabbed by Fox. Cavazos v. Smith,

25 565 U.S. at 2.

26 ////

27

7

An officer responding to the gym to which the victim escaped after the attack, testified the

28 victim was fading in and out of consciousness. (1 RT 259-60.)

19

1 It was the jury’s job to decide what conclusions it could draw from the evidence presented

2 during trial. Cavazos, 565 U.S. at 2. This jury concluded from the evidence presented at trial that

3 petitioner struck the victim in the back of the head with a gun causing great bodily injury. And it

4 could have reasonably inferred a loss of consciousness based upon the evidence presented at trial.

5 Such a finding does not amount to one wherein no rational trier of fact could have so held;

6 therefore it was not objectively unreasonable. Id. at 1-2.

7 In conclusion, viewing all of the evidence in the light most favorable to the prosecution,

8 the undersigned concludes that a rational trier of fact could have found beyond a reasonable doubt

9 that the victim was beaten in the back of the head resulting in a loss of consciousness sufficient to

10 establish that great bodily injury was inflicted. Jackson, 443 U.S. at 319. The state court’s

11 determination in this regard was not “so lacking in justification there was an error well

12 understood and comprehended in existing law beyond any possibility for fair-minded

13 disagreement.” Richter, 562 U.S. at 103. The undersigned recommends this claim be denied.

14 Petty Theft

15 As for petitioner’s claim there was insufficient evidence of petty theft, and thus the state

16 court’s finding is unreasonable, the undersigned disagrees.

17 “’A person aids and abets the commission of a crime when he or she, (i) with knowledge

18 of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing,

19 facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes,

20 encourages or instigates the commission of the crime.’ [Citation.]” People v. Hill, 17 Cal.4th

21 800, 851 (1998). An aider and abettor has the requisite intent “when he or she knows the full

22 extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or

23 purpose of facilitating the perpetrator's commission of the crime.” People v. Beeman, 35 Cal.3d

24 547, 560 (1984).

25 Here, the victim testified when his friend Julia Fox arrived on the evening of the incident,

26 she was alone. (1 RT 99-100.) A short time later, after Fox asked the victim to clean a pipe the

27 two would use to smoke methamphetamine and told him she had to retrieve something from the

28 car (1 RT 106-08), a man appeared in the victim’s bedroom doorway, wearing a red bandanna

20

1 and pointing a gun. (1 RT 109.) That man called the victim by name and told him to lie face

2 down on the bed. The victim did not see codefendant Fox at that time. (1 RT 109-10.) The man

3 with the gun threatened to blow the victim’s head off and kept him at gunpoint. (1 RT 110, 113,

4 241.) As the victim was held at gunpoint in his bedroom, he could hear someone “walking

5 around, moving things.” (1 RT 113.) The victim heard “drawers being opened and closed” in his

6 bedroom and also “heard some noise out in the living room.” (1 RT 119; see also 1 RT 241 [Fox

7 going through dresser].) Fox came in and out of the victim’s bedroom several times during the

8 incident whereas the armed man stayed put. (1 RT 241.) After the incident, the victim returned

9 home to find his laptop, cellphone and a bank bag missing. (1 RT 120.)

10 It was not objectively unreasonable for the state court to find the evidence proffered at

11 trial was sufficient to support petitioner’s conviction for petty theft on an aiding and abetting

12 theory. The record established there was evidence in the form of text messages between Fox and

13 petitioner, and particularly a text message from Fox to petitioner while she was in the victim’s

14 home advising petitioner that when she opened the door, he would need to “rush” it. (2 RT 302-

15 03.) Moreover, the armed man was wearing a bandanna from which it can be reasonably inferred

16 that a robbery or theft was planned, and the actor did not wish to be identified. It is also

17 reasonable to infer from this evidence that petitioner was aware of Fox’s plan to steal from the

18 victim and intended to facilitate that plan. Further, by keeping the victim restrained and at

19 gunpoint, and confined within his own bedroom by blocking the bedroom doorway with his

20 person while armed with a gun, petitioner’s acts aided and promoted the commission of the theft.

21 Hill, 17 Cal.4th at 851; Beeman, 35 Cal.3d at 560.

22 Petitioner’s argument in this court amounts to nothing more than his interpretation of the

23 evidence to his advantage, essentially ignoring the reasonable inferences that can be made from

24 that evidence. (ECF No. 1 at 25-26.) But this court’s task is to presume the trier of fact resolved

25 the conflicts in favor of the prosecution; in fact, it defers to the jury’s findings in favor of the

26 prosecution. Jackson, 443 U.S. at 326. From the evidence quoted above, the jury drew its

27 conclusions against petitioner, and the state court’s decision to affirm petitioner’s conviction for

28 petty theft is not objectively unreasonable in light of the evidence. Cavazos, 565 U.S. at 2.

21

1 The California Court of Appeal determined that there was sufficient evidence of each

2 element of the crime at issue to support petitioner’s conviction. Although it might have been

3 possible to draw a different inference from the evidence, this court is required to resolve that

4 conflict in favor of the prosecution. Petitioner bears the burden of establishing by clear and

5 convincing evidence that the factual findings were erroneous; a burden petitioner has failed to

6 carry. The record does not compel the conclusion that no rational trier of fact could have found

7 proof of guilt, particularly considering the double deference owed under Jackson and AEDPA.

8 In sum, petitioner has not established that the state court’s determination was

9 unreasonable or contrary to Supreme Court precedent, nor were the state court’s factual

10 determinations objectively unreasonable in light of the evidence presented at trial. 28 U.S.C.

11 § 2254. Petitioner is thus not entitled to relief on his claim and the undersigned hereby

12 recommends the claim be denied.

13 B. Sentence Disparity

14 Petitioner claims the disparity in sentences imposed against he and his co-defendant Fox is

15 fundamentally unfair and a violation of his constitutional rights to jury trial, due process and

16 equal protection. (ECF No. 1-1 at 26-32; ECF No. 19 at 13-16.) Respondent maintains that the

17 state court’s determination that the sentence imposed was not unconstitutionally disparate was

18 reasonable. (ECF No. 11 at 20-24.)

19 The last reasoned rejection of petitioner’s claim is the decision of the California Court of

20 Appeal for the Third Appellate District on petitioner’s direct appeal. The state court addressed

21 this claim as follows:

22 Defendant claims a “disparate” sentence was imposed against him

(31 years 4 months) in comparison to codefendant Fox's sentence

23

(five years), in violation of his federal and state constitutional rights

24 to a jury trial, due process, and equal protection. (U.S. Const., 5th,

6th, 14th Amendments; Cal. Const., art. , §§ 7, 16, 24.) Notably,

25 defendant does not claim cruel and unusual punishment, though he

cites cases on that subject. He does not provide any analysis or

26 authority on due process and equal protection. Defendant's

27 constitutional claim fails.

28 Assuming for the sake of argument that intracase proportionality

22

1 review is appropriate, such review examines whether a defendant's

sentence is “‘“proportionate to his individual culpability, irrespective

2 of the punishment imposed on others.”’” (People v. Jackson (1996)

3 13 Cal.4th 1164, 1246.) “The disparity in sentencing imposed on

[the] defendant and [a codefendant] does not establish that

4 defendant's sentence is grossly disproportionate to the offense he

committed. Evidence of the disposition of a codefendant's case, as

5 opposed to evidence of the codefendant's complicity and

involvement in the offense, is not relevant to the decision at the

6 penalty phase [death sentence], which is based on the character and

7 record of the individual defendant and the circumstances of the

offense.” (People v. Mincey (1992) 2 Cal.4th 408, 476.) “A

8 sentencing court considers not only the circumstances of the crime,

but circumstances individual to each defendant.... So long as [the

9 defendant's] sentence was justified by [the defendant's] crimes,

individual culpability, and record, the sentence received by an

10

accomplice is not relevant.” (People v. Foster (1988) 201 Cal.App.3d

11 20, 27, citation omitted.)

12 Here, both defendant and Fox were complicit and deeply involved in

the assault on the victim. While Fox may have set up the crime,

13 defendant provided the muscle and the firearm. In sentencing Fox,

the trial court contrasted defendant's culpability. The court said, it

14 sentenced defendant to “31 years largely because of his criminal

15 history and his violent nature.” Defendant presented a very different

situation than Fox. He had the additional present conviction (felon in

16 possession of a gun) and prior conviction for attempted voluntary

manslaughter of a park ranger, which also involved his use of a

17 firearm. The prior conviction not only doubled defendant's base

terms, but also accounted for a consecutive five-year serious felony

18 enhancement. Additionally, defendant's personal use of a firearm

19 added ten years and reflects legislative intent to punish more harshly

criminals who personally use guns. (See People v. Gonzales (2001)

20 87 Cal.App.4th 1, 18 [discussing § 12022.53].) Contrary to

defendant's assertion that there was no evidence the victim suffered

21 head wounds from being hit with the gun, the victim suffered loss of

consciousness from defendant hitting the victim on the head with the

22

gun. Accordingly, the prison sentence imposed by the trial court here

23 can be connected to his individual conduct and prior record.

24 Defendant claims that, even factoring in his prior conviction, fairness

demands he receive no more than the low term for burglary, doubled,

25 plus the low or middle term for the firearm enhancement. However,

defendant fails to show a constitutional violation in sentencing. We

26 reject his reliance on People v. Dillon (1983) 34 Cal.3d 441, which

27 found cruel and unusual punishment where a 17 year old with no

criminal record received a life sentence for murder while none of his

28 cohorts were sentenced to state prison. (Id. at p. 488.) Here,

23

1 defendant was a 35–year–old adult who committed a violent home

invasion and assault and had a prior conviction for attempted

2 voluntary manslaughter of a peace officer, also involving a firearm,

3 in addition to a firearm offense as a juvenile.

4 Defendant cites United States v. Bischel (9th Cir.1995) 61 F.3d 1429,

which said imposition of disparate sentences in itself is not generally

5 an abuse of discretion, but an explanation is required when there is

substantial disparity and evidence that the judge is punishing one

6 defendant for exercising his right to stand trial. (Id. at p. 1437.) The

court in Bischel cited United States v. Capriola (9th Cir.1976) 537

7

F.2d 319, in which the defendants who chose to stand trial received

8 a harsher penalty than co-conspirators who pleaded guilty. The

Capriola court remanded to permit the trial court to state a reason or

9 ameliorate the sentences. (Capriola, at pp. 320–321.) We note that

the court in United States v. Hall (9th Cir.1985) 778 F.2d 1427, 1428,

10 said Capriola is limited to its facts. And the Bischel court saw no

11 reason to remand where the record showed reasons for the harsher

sentence, including prior conviction, criminal history, leadership role

12 in the criminal conduct, and absence of evidence that the disparity

was due to the defendant exercising his trial rights. (Bischel, at p.

13 1437.)

14 Here, both defendants went to trial, and therefore the disparity in

sentences cannot be attributed to defendant having exercised his right

15

to a jury trial.

16

We conclude defendant fails to show grounds for reversal.

17

18 (People v. Peacock, slip op., LD 4 at *14-15 [fns. omitted].)

19 The Sentencing Proceedings

20 Following oral argument by defense counsel and the prosecutor, the relevant sentencing

21

proceedings are excerpted below:

22

23 [THE COURT:] The Court, as I have noted, has read and considered

the probation report and the sentencing memoranda[] submitted on

24 behalf of the People and Mr. Peacock.

25 And I was reviewing the probation report again to familiar[ize]

myself and remind myself of what happened back in 1996, Mr.

26 Peacock, when you were convicted of attempted voluntary

manslaughter.

27

The probation report notes that while you were being chased, or park

28 rangers were trying to apprehend you and an accomplice for quote,

24

1 “smoking marijuana”, that following the chase while you were laying

or hiding in a nearby creek bed, that you discharged an 11 millimeter

2 pistol at a peace officer three times. Hit him in the chest.

3 Fortunately, the officer was wearing a bullet proof vest. The Officer

obviously did suffer some trauma to his chest. [¶] I understand he

4 returned fire, and I know you were injured, and you made references

to that during the course of the trial.

5

But, nonetheless, the reason I refer to that is your history involves

6 weapons, an assault on a peace officer with a weapon. And had this

peace officer, the park ranger not been wearing a bullet proof vest,

7 you might have been convicted for quite a different offense. Not

attempted voluntary manslaughter and possibly as serious as murder,

8 but you were not. So you have a demonstrated a propensity for

violence. [¶] The facts surrounding the offenses before the Court

9 demonstrate that as well.

10 The Court is going to find that you are not eligible for probation. [¶]

The Court will not grant you probation even if you were eligible. [¶]

11 You are ineligible. And you will be sentenced to state prison

accordingly.

12

The Court will select the, as the base term, the burglary, the

13 conviction in Count 1 for Penal Code Section 459, and the Court is

going to sentence you to the upper term, that is, six years.

14

And the Court selects the upper term because of the nature of the

15 offense, the seriousness of the facts surrounding the offense, the

cruelty, the violence involved. And as I have noted, your propensity

16 to be violent and have used violence in the past against a peace

officer in particular. [¶] You are a danger to society. [¶] You have

17 demonstrated that before by firing a weapon at a peace officer. And

by engaging in the conduct that you engaged in now, you are lucky

18 you are not here again on attempted murder and/or if this man would

have died, on a murder charge.

19

So those are the reasons the Court selects the upper term, six years.

20

Following your admission of the prior strike conviction, Mr.

21 Peacock, by law your six … year term is doubled, as I am sure your

lawyer told you. So the base term will be six years doubled for a

22 term of 12 years.

23 Following the jury’s finding that a firearm was indeed used pursuant

to Penal Code Section 12022.5, the Court again selects the upper

24 term, recognizing that it has the discretion to impose a low term of

three or middle term of four.

25

The Court selects the upper term of ten again, because of the violent

26 conduct involved, the callousness, the viciousness of the offense.

27 The Court records and transcript will reflect that the victim did testify

that he was struck to the head several times by what later turned out

28 to be a solid hard object, i.e. the firearm.

25

1 In light of the Court’s - - jury’s finding that you imposed or inflicted,

I should say, great bodily injury on the victim, no doubt, pursuant to

2 the stabbing, and that is the finding pursuant to 12022.7, the Court

further enhances the base term by three years.

3

So the total sentence for the base term is the 12 years for the burglary,

4 that is, the six years doubled, the ten year enhancement for use of the

firearm, and the three year enhancement for the great bodily injury,

5 for a base term that is, a principal term of 25 years in State Prison.

6 You were a felon at the time of the offense. [¶] You were

[prohibited] by law from possessing a firearm. That is a separate

7 divisible criminal act that the Court will impose an additional

consecutive term.

8

And the Court imposes the consecutive term again, because the Court

9 finds that the - - being in possession of a firearm is independent and

separate and apart from the violent acts that occurred during the

10 burglary and the assault on the victim.

11 You have a prior history of violence. [¶] You have been incarcerated

in State Prison previously. You have been on parole. And, moreover,

12 the victim was assaulted in his own residence.

13 For those reasons, the Court imposes a consecutive sentence of the

mid term of two years. [¶] However, by law, only one-third of the

14 two years, eight months, is imposed. [¶] And following your

admission of the prior strike conviction, that eight months is doubled

15 for a consecutive term of sixteen months, so that makes a total

principal term of 26 years and four months.

16

Finding your admission, I should say after your admission of the

17 truth of the prior strike, the attempted voluntary manslaughter, and

the allegation contained in the Information that such conviction falls

18 within the meaning of Penal Code Section 667(a), the Legislature

mandates that you be sentenced to an additional five years in prison

19 consecutively because of that prior strike conviction.

20 [¶]-[¶]

21 So the Court enhances your sentence pursuant to Penal Code Section

667(a) for an additional five years, for a total aggregate prison term

22 of 31 years and four months.

23 (5 RT 1242-46.)

24

Legal Standards and Analysis

25

Initially, again, to the degree petitioner argues the state appellate court’s facts are in error,

26

he has failed to establish any such error by clear and convincing evidence.

27

“’[I]t is not the province of a federal habeas court to reexamine state court determinations

28

26

1 on state law questions.’” Wilson v. Corcoran, 562 U.S. at 5 (quoting Estelle, 502 U.S. at 67). So

2 long as a sentence imposed by a state court “is not based on any proscribed federal grounds such

3 as being cruel and unusual, racially or ethnically motivated, or enhanced by indigency, the

4 penalties for violation of state statutes are matters of state concern.” Makal v. State of Arizona,

5 544 F.2d 1030, 1035 (9th Cir. 1976). “Absent a showing of fundamental unfairness, a state

6 court’s misapplication of its own sentencing laws does not justify federal habeas relief.”

7 Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). Thus, whether or not the sentencing judge

8 in this case abused his discretion under state law when he imposed petitioner’s sentence is not at

9 issue in this federal habeas corpus proceeding.

10 On federal habeas review, the question “is not whether the state sentencer committed

11 state-law error,” but whether the sentence imposed on the petitioner is “so arbitrary or capricious”

12 as to constitute an independent due process violation. Richmond v. Lewis, 506 U.S. 40, 50

13 (1992); see also Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Hicks v. Oklahoma, 447 U.S. 343,

14 346 (1980); Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir. 2000). “The failure of a state to abide

15 by its own statutory commands may implicate a liberty interest protected by the Fourteenth

16 Amendment against arbitrary deprivation by a state.” Fetterly v. Paskett, 997 F.2d 1295, 1300

17 (9th Cir. 1993). However, “federal courts are extraordinarily chary of entertaining habeas corpus

18 violations premised upon asserted deviations from state procedural rules.” Hernandez v. Ylst,

19 930 F.2d 714, 719 (9th Cir. 1991).

20 Here, as evidenced by the sentencing proceedings excerpted above, there was nothing

21 arbitrary or capricious about the sentence imposed on petitioner so as to constitute an independent

22 due process violation. The trial judge clearly identified the bases for his sentencing decision and

23 specifically identified petitioner’s criminal history and its violent nature. Richmond, 506 U.S. at

24 50. And there is no evidence of a failure to abide by statutory commands nor evidence of a

25 deviation from procedural rules. Fetterly, 997 F.2d at 1300; Hernandez, 930 F.2d at 719.

26 Next, the Eighth Amendment does not require strict proportionality between crime and

27 sentence, but rather forbids only extreme sentences that are grossly disproportionate to the crime.

28 Harmelin v. Michigan, 501 U.S. 957, 959 (1991) (Kennedy, J., concurring in part and concurring

27

1 in judgment). The precise contours of the gross disproportionality principle are “unclear and

2 applicable only in the ‘exceedingly rare’ and ‘extreme’ case.” Lockyer, 538 U.S. at 73.

3 This undersigned notes that petitioner’s sentence does not fall within the type of

4 “exceedingly rare” circumstance that would support a finding that his sentence violates the

5 federal constitution. Petitioner was convicted of burglary, petty theft, assault with a firearm,

6 assault with a knife, and possession of a firearm by a felon. Petitioner had been previously

7 convicted of a serious felony and had served a prior prison term. Pursuant to United States

8 Supreme Court precedent, petitioner’s sentence is not grossly disproportionate to these crimes.

9 See Harmelin, 501 U.S. at 1004-05 (life imprisonment without possibility of parole for possession

10 of 24 ounces of cocaine raises no inference of gross disproportionality); Lockyer, 538 U.S. at 73-

11 77 (two consecutive twenty-five years to life sentences with the possibility of parole for two petty

12 theft convictions with priors did not amount to cruel and unusual punishment); Ewing v.

13 California, 538 U.S. 11, 28-31 (2003) (a sentence of twenty-five years to life for felony grand

14 theft under California's Three Strikes law did not violate the Eighth Amendment).

15 The undersigned also observes that petitioner has not cited any case, and the undersigned

16 has not found one, in which the United States Supreme Court has found that a sentence imposed

17 on a state criminal defendant violated the federal constitution because it was disproportionate or

18 disparate to the sentences imposed on other defendants in the same case. Accordingly, the state

19 court did not unreasonably apply federal law in concluding that petitioner was not entitled to

20 relief with respect to this challenge to his sentence. See Moses v. Payne, 555 F.3d 742, 754 (9th

21 Cir. 2009) (“we conclude that when a Supreme Court decision does not ‘squarely address[ ] the

22 issue in th[e] case...it cannot be said, under AEDPA, there is ‘clearly established’ Supreme Court

23 precedent addressing the issue before us, and so we must defer to the state court's decision”); see

24 also Earp v. Ornoski, 431 F.3d 1158, 1185 (9th Cir. 2005).

25 In any event, there is no federal constitutional requirement that co-defendants receive the

26 same sentence. The critical factor for a court in determining whether a sentence is so

27 disproportionate as to constitute cruel and unusual punishment appears to be whether the sentence

28 is grossly disproportionate to the crimes, not whether the sentence is grossly disproportionate to

28

1 the sentences received by co-defendants. See United States v. Easter, 981 F.2d 1549, 1555-56

2 (10th Cir. 1992). “[A] defendant cannot rely upon his co-defendant’s sentence as a yardstick for

3 his own; a sentence is not disproportionate just because it exceeds a co-defendant’s sentence.”

4 United States v. Granados, 962 F.2d 767, 774 (8th Cir. 1992). A defendant who claims that he

5 received a disproportionate sentence “[m]ust establish more than the mere fact that other

6 defendants have received less harsh sentences for similar crimes.” See United States v. Fry, 831

7 F.2d 664, 667 (6th Cir. 1987).

8 Finally, petitioner claims, without elaboration, that his sentence violates the equal

9 protection clause. The equal protection clause directs state actors to treat similarly situated

10 people alike. See Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). To prove an equal

11 protection violation, claimants must prove purposeful discrimination, directed at an identifiable or

12 suspect class. McCleskey v. Kemp, 481 U.S. 279, 292 (1987); Kadrmas v. Dickinson Pub. Schs.,

13 487 U.S. 450, 457-58 (1988). A criminal defendant alleging an equal protection violation must

14 specifically prove that the “decisionmakers in his case acted with discriminatory purpose.”

15 McCleskey, 481 U.S. at 292 (quoting Wayte v. United States, 470 U.S. 598, 608 (1985)).

16 Petitioner’s equal protection claim is deficient on its face because it does not allege purposeful

17 discriminatory treatment based on his membership in a suspect class. In addition, petitioner has

18 not demonstrated that the sentencing judge in this case “acted with discriminatory purpose” or

19 selected or affirmed his sentence because of “its adverse effects upon an identifiable group.”

20 McCleskey, 481 U.S. at 292, 298. Notably too, the Equal Protection Clause “permits qualitative

21 differences in meting out punishment and there is no requirement that two persons convicted of

22 the same offense receive identical sentences.” Williams v. Illinois, 399 U.S. 235, 243 (1970).

23 Lastly, as petitioner did in the state courts, he again relies upon United States v. Bischel,

24 61 F.3d 1429 (9th Cir. 1995), and United States v. Capriola, 537 F.2d 319 (9th Cir. 1976), to

25 support his argument. Petitioner cites to the second to last paragraph of the state appellate court’s

26 opinion and complains that court incorrectly “dismisse[d] this factor,” referring to the

27 requirement a court give an explanation for “disparity to avoid the suggestion that the more

28 severe sentence was a result of the defendant’s exercising his right to trial.” (ECF No. 1 at 29.)

29

1 The undersigned’s review of the record reveals there is nothing objectively unreasonable about

2 the state court decision. The trial judge provided an explanation for the greater sentence imposed

3 against petitioner, versus that imposed upon codefendant Fox. (Cf. 5 RT 1242-47 to 5 RT 1259-

4 64.) Further, there is simply no indication in this record that the trial judge was punishing

5 petitioner for exercising his right to stand trial.

6 In sum, the state court’s rejection of petitioner’s disparate sentence claim was not contrary

7 to, nor an unreasonable application of, clearly established federal law as set forth by the Supreme

8 Court. Nor did it involve an unreasonable determination of the facts in light of the evidence

9 presented at trial. 28 U.S.C. § 2254. The undersigned recommends this claim be denied.

10 VI. Conclusion

11 Accordingly, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of

12 habeas corpus be denied.

13 These findings and recommendations are submitted to the United States District Judge

14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

15 after being served with these findings and recommendations, any party may file written

16 objections with the court and serve a copy on all parties. Such a document should be captioned

17 “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files

18 objections, he shall also address whether a certificate of appealability should issue and, if so, why

19 and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if

20 the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

21 § 2253(c)(3). Any response to the objections shall be filed and served within fourteen days after

22 service of the objections. The parties are advised that failure to file objections within the

23 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

24 F.2d 1153 (9th Cir. 1991).

25 Dated: January 22, 2020

26

27

Peac1940.157

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