(HC) Segura v. Lizarraga

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 JACOB JUAREZ SEGURA, No. 1:20-cv-00990-DAD-SKO (HC)

12 Petitioner, FINDINGS AND RECOMMENDATION

TO DENY PETITION FOR WRIT OF

13 v. HABEAS CORPUS

14 JOE A. LIZARRAGA, Warden, [THIRTY DAY OBJECTION DEADLINE]

15 Respondent.

16

17 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for

18 writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is currently in state prison serving a

19 sentence of life without the possibility of parole plus three years for felony murder and robbery.

20 The habeas petition presents fourteen claims challenging the conviction. As discussed below, the

21 Court finds the claims to be without merit and recommends the petition be DENIED.

22 I. PROCEDURAL HISTORY

23 On November 20, 2014, a Stanislaus County jury found Petitioner guilty of first degree

24 felony murder (Cal. Penal Code §§ 187(a), 190.2(a)(17)) and second degree robbery (Cal. Penal

25 Code § 211). (Doc. 18-8 at 22, 25.1) On January 13, 2016, the court sentenced him to a term of

26 life without possibility of parole on the felony murder conviction, plus a consecutive three-year

27 term on the robbery conviction. Id.

28 1

Unless otherwise noted, references are to ECF pagination.

1

1 Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth

2 DCA”). On June 27, 2019, the Fifth DCA affirmed the judgment in its entirety. People v.

3 Koplen, No. F073136, 2019 WL 2647356 (Cal. Ct. App. 2019), as modified on denial of reh'g

4 (July 19, 2019), review denied (Oct. 9, 2019); (Doc. 18-38.) Petitioner filed a petition for review

5 in the California Supreme Court, and the petition was denied on October 9, 2019. (Doc. 18-42.)

6 Petitioner also filed a petition for writ of habeas corpus in the Stanislaus County Superior Court

7 on July 8, 2020. (Doc. 18-43.)

8 On July 15, 2020, Petitioner filed a petition for writ of habeas corpus in this Court. (Doc.

9 1.) Respondent filed an answer on October 21, 2020. (Doc. 17.) On November 20, 2020,

10 Petitioner filed a request for extension of time to file a traverse to Respondent’s answer. (Doc.

11 19.) On November 25, 2020, the Court granted an extension of time of sixty (60) days to file a

12 traverse. Petitioner has not filed a traverse, and the time to do so has expired.

13 II. FACTUAL BACKGROUND

14 The Court adopts the Statement of Facts in the Fifth DCA’s unpublished decision2:

15 We summarize the material trial evidence. We provide additional facts later in this

opinion when relevant for specific issues.

16

I. The First Incident At The Park (Alex's Robbery/Count II).

17

The first incident occurred when Alex S. [Fn.3] arrived at a park in Modesto,

18 California, to take home his teenaged girlfriend and her sister. The sisters had been

drinking alcohol with appellants, and one sister was passed out on a park bench.

19 Upon Alex's arrival, Segura challenged him to a fight, and Segura threw the first

punch. When Alex tried to walk away, Segura attacked him, knocking him to the

20 ground. Segura called for help, and both Garcia and Koplen joined the fight, which

moved onto a street near the park. [Fn.4] Alex fell to the ground and appellants took

21 turns striking him. According to Alex, he tried to get up, but he was knocked down

again by Garcia and Segura.

22

[Fn.3] We omit Alex's last name to protect his privacy.

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[Fn.4] Alex told the jury Garcia and Koplen looked somewhat confused

24 when Segura called them to join in the fight.

25 Alex had a cell phone and a knife inside the front pocket of his hooded sweatshirt.

Those two items fell from his pocket while he was being attacked. At some point

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27 2

The Fifth DCA’s summary of facts in its unpublished opinion is presumed correct. 28 U.S.C. §§ 2254(d)(2), (e)(1).

Therefore, the Court will rely on the Fifth DCA’s summary of the facts. Moses v. Payne, 555 F.3d 742, 746 (9th

28 Cir. 2009).

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1 during this altercation, either Koplen, Garcia and/or Segura took possession of

Alex's phone and knife. [Fn.5] The following day, law enforcement recovered Alex's

2 phone at Koplen's residence. About three and a half months after this fatal night,

Alex's knife was recovered in bushes near the park. DNA testing confirmed this

3 knife was used in the subsequent murder.

4 [Fn.5] On appeal, Garcia and Segura assert it was Koplen who took

possession of Alex's property. Koplen denies knowing Alex's property had

5 fallen, asserting Garcia and Segura were on top of Alex, blocking his view.

6 The testimony was in conflict regarding the duration of appellants' attack. Some

witnesses, including Alex, believed Garcia and Koplen were not involved in the

7 fight very long, and Koplen was the first to stop. In contrast, two witnesses, Amber

and her son Omar, informed the jury that all three appellants continued to attack

8 Alex until their attack was interrupted. [Fn.6] The jury learned that Amber and Omar

had driven to the park to help Alex. Before Alex went to the park to retrieve his

9 girlfriend and her sister, he had called his friend Omar to come get him “in case

something happened.” Alex told the jury that he had called Omar because he knew

10 appellants “were gangsters and drunk.” Amber and Omar testified that they

interrupted the fight when they arrived in a vehicle. At that point, appellants were

11 all striking Alex. According to Amber and Omar, Alex was lying in a fetal position

in the middle of a street next to the park. All three appellants were kicking and

12 punching Alex, who was still on the ground. At trial, Omar testified he did not see

either a phone or a knife on the ground. According to Amber, Alex stood up and she

13 did not see anything on the ground.

14 [Fn.6] To protect their privacy, and to avoid confusion, we omit Amber's and

Omar's last names.

15

Alex and his girlfriend got into Amber's vehicle, and they were driven away. They

16 quickly realized, however, the other sister was still in the park. Amber drove back

to retrieve her. Upon returning, one appellant (likely Segura with a red plaid shirt)

17 acted like he wanted to continue fighting. He reached for his belt, acting like he had

a knife, but he never showed a weapon.

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Amber exited the vehicle and went to retrieve the passed-out sister. Near a park

19 bench, she told two appellants (likely Koplen and Garcia) that she did not “want any

drama,” and she was taking the girl. One or both of these appellants helped carry the

20 passed-out sister to Amber's vehicle. [Fn.7] Alex and the two sisters were driven

away without further incident.

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[Fn.7] Some of Amber’s testimony may have suggested that Garcia was nice

22 and polite to her while Koplen seemed angry and was vulgar.

23 At trial, Alex testified he had realized his knife was missing before he got into

Amber's vehicle. He said he may have heard his phone fall out during the altercation,

24 but he was not sure. According to Alex, “everything was just happening too fast.”

According to a detective, Alex reported he had heard his phone and knife fall out of

25 his hoodie when all three appellants knocked him to the ground. Around the time

Amber's vehicle arrived, Alex had realized his phone and knife were missing.

26

At about 8:24 p.m., a neighbor called 911 to report this first incident.

27 /////

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1 II. The Second Incident At The Park (The Murder Of Tylor/Count I And The

Attempted Robberies Of Tylor And Brittany/Counts III And IV).

2

While the incident with Alex was occurring, the other two victims, Tylor Crippen

3 and his girlfriend, Brittany W., [Fn.8] were on the other side of the park. Earlier in

the evening, Tylor and Brittany had walked past the park and they had stopped near

4 a bus stop. They stood there about 10 or 15 minutes, holding hands and kissing. At

trial, Brittany described Tylor as very quiet and shy. He was “really short” and

5 “really petite.”

6 [Fn.8] We omit Brittany's last name to protect her privacy.

7 Less than six minutes after the incident with Alex, appellants emerged from the park

and approached Tylor and Brittany. Tylor had his back to appellants as they

8 approached. One appellant asked them for a cigarette. [Fn.9] After Tylor and

Brittany said they did not smoke, the same appellant punched Tylor in his back.

9 Tylor ran into the park. As he ran, he yelled, “Leave her alone.” The other two

appellants chased him, and one yelled they were going to cut off his “dick.” [Fn.10]

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[Fn.9] Trial evidence suggested Koplen smoked cigarettes. At trial, the

11 prosecution's gang expert opined that asking for a cigarette was a “ruse”

designed to lower Tylor's and Brittany's guard.

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[Fn.10] The jury heard conflicting testimony regarding the sequence of when

13 the two suspects chased Tylor. At trial, Brittany agreed on cross-examination

that the two suspects “immediately” chased Tylor when he ran. However,

14 according to a detective, Brittany initially reported the two suspects did not

chase after Tylor until he had crossed the street and entered the park.

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The remaining appellant threatened Brittany with a knife. He ordered her to give

16 him everything she had. After showing him she had nothing, he said, “Stay there,

bitch.” Brittany's assailant then also ran after Tylor. A short time later, Brittany

17 heard Tylor scream in pain and call out her name from inside the park.

18 Brittany sought assistance at a nearby house, pounding on its front door. Appellants

reappeared, walking from the park. One told her to “go back inside [your] house,

19 bitch.” This suspect was wearing “a black pullover” and he did not have long hair.

He lifted his shirt and Brittany saw an apparent gun handle. She fell to her knees

20 and begged them not to hurt her. Appellants fled when a residence's owner opened

the front door. At about 8:30 p.m. (six minutes after the first 911 call), the resident

21 called 911 and handed the phone to Brittany, who reported the second incident.

22 III. Tylor's Body Is Discovered.

23 At about 8:39 p.m., a responding police officer found Tylor inside the park lying

unresponsive in a pool of blood. His pulse was very weak. He was taken to a hospital

24 by ambulance. He was declared dead at about 9:18 p.m. Tylor died due to blood loss

from stab wounds to his heart and liver. He also suffered a third superficial cut to

25 his torso.

26 At trial, the pathologist opined Tylor could have walked a short distance after he

was stabbed. A hip abrasion suggested Tylor had fallen. The pathologist saw no

27 other evidence of bruising.

28 Tylor was 18 years old when he died. He was just under five feet two inches tall,

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1 and he weighed about 134 pounds. [Fn.11] During closing argument, the prosecutor

asserted appellants killed Tylor for his phone. Tylor was carrying a cell phone when

2 he walked to the park. During its investigation, law enforcement located a cell phone

in the park a short distance from where Tylor was found.

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[Fn.11] In contrast to Tylor's small stature, Koplen was five feet 11 inches

4 tall and weighed about 185 pounds. Garcia was five feet seven inches tall

and weighed about 160 pounds. Segura was six feet tall and weighed about

5 165 pounds.

6 IV. Appellants are arrested.

7 At about the same time an officer was locating Tylor in the park, another officer

spotted Segura walking on a street near the park. Segura matched dispatch's

8 description of a stabbing suspect wearing a red plaid shirt. At gunpoint, an officer

ordered Segura to lie down. Segura initially complied, but he then fled despite the

9 officer's commands to stop. Segura was taken into custody a short time later after he

fell while running. He did not have any weapons on him. His hands were bloody,

10 and he had skin missing from his knuckles. He had a black, white and red plaid shirt

either tied around his waist or tucked in his waistband.

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Very early the next morning, officers arrested Koplen and Garcia without incident

12 at their respective residences.

13 V. The Forensic Evidence.

14 Forensic evidence linked both Koplen and Garcia to Tylor's murder in count I.

Tylor's DNA profile was a major contributor to some apparent blood found on one

15 of Garcia's shoes. [Fn.12] In addition, Tylor's DNA profile was a major contributor

to some apparent blood found on Koplen's right ring finger. Tylor's DNA profile

16 also matched an apparent blood stain found on an area of Koplen's jeans. Law

enforcement had recovered these jeans in Koplen's residence.

17

[Fn.12] Garcia had two light blood stains on his shoe. It is possible this blood

18 was transferred to his shoe from another source, such as grass.

19 Forensic evidence also linked Garcia to Alex's robbery in count II. Alex's DNA was

a major contributor to apparent blood taken from Garcia's left hand. In addition,

20 Alex's DNA was a major contributor to a “very, very small” blood stain on the right

leg of Garcia's jeans.

21

No forensic evidence linked Segura to the charged crimes. His black undershirt,

22 however, had human blood on its front left cuff. This blood stain had a mixture of

DNA from at least three contributors, and it was too complex for interpretation.

23 [Fn.13]

24 [Fn.13] Segura’s own blood was found on his hands, jeans and his plaid shirt.

Tylor’s DNA did not contribute to these blood stains.

25

VI. Alex's Knife, Which Was Used In Tylor's Homicide, Is Recovered.

26

About three and a half months after these crimes, a resident near the park found a

27 knife in some bushes, which law enforcement collected. DNA testing confirmed this

knife was used to stab Tylor.

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1 At trial, Alex identified this knife as his and the one taken during his incident with

appellants. The pathologist testified this knife was consistent with all three of Tylor's

2 stab wounds.

3 VII. Brittany's Inconsistent Statements About The Identity Of Her Assailant.

4 During trial, a dispute arose regarding the identity of Brittany's assailant. On the

fatal night, Brittany gave two separate statements to law enforcement. Both times

5 she said her assailant wore a red plaid shirt. She did not describe any other

distinguishing features. Brittany's initial identifications tended to indicate Segura,

6 who had worn a red plaid shirt (which also had other colors) when these crimes

occurred.

7

About eight days after these crimes, Brittany again told a detective her assailant had

8 worn a red plaid shirt. However, she also stated her robber had long hair and a

ponytail. On that fatal night, only Koplen had long hair worn in a ponytail.

9

At trial, Brittany testified her assailant was the longer-haired male with the ponytail.

10 She believed the longer-haired male was wearing red plaid, but she was not certain.

On recross-examination (with Koplen's trial counsel), Brittany agreed her assailant

11 was the same person wearing red whom she had described in her three interviews

with law enforcement. On redirect examination, however, she said she thought the

12 one in red plaid was “a different person” from the male with the ponytail.

13 Koplen, 2019 WL 2647356, at *2-5.

14 III. DISCUSSION

15 A. Jurisdiction

16 Relief by way of a petition for writ of habeas corpus extends to a person in custody

17 pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or

18 treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor,

19 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as

20 guaranteed by the United States Constitution. The challenged conviction arises out of the

21 Stanislaus County Superior Court, which is located within the jurisdiction of this court. 28

22 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d).

23 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of

24 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its

25 enactment. Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases

26 filed after statute’s enactment). The instant petition was filed after the enactment of the AEDPA

27 and is therefore governed by its provisions.

28 /////

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1 B. Legal Standard of Review

2 A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless

3 the petitioner can show that the state court’s adjudication of his claim resulted in a decision that:

4 (1) was contrary to, or involved an unreasonable application of, clearly established Federal law,

5 as determined by the Supreme Court of the United States; or (2) “was based on an unreasonable

6 determination of the facts in light of the evidence presented in the State court proceeding.” 28

7 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 412-

8 413.

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

10 that contradicts the governing law set forth in [the Supreme Court’s] cases, or “if it confronts a set

11 of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a

12 different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-

13 406).

14 In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that

15 an “unreasonable application” of federal law is an objective test that turns on “whether it is

16 possible that fairminded jurists could disagree” that the state court decision meets the standards

17 set forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable

18 application of federal law is different from an incorrect application of federal law.’” Cullen v.

19 Pinholster, 563 U.S. 170, 203 (2011). The petitioner “must show far more than that the state

20 court's decision was ‘merely wrong’ or ‘even clear error.’” Shinn v. Kayer, ___ U.S. ___, ___ ,

21 141 S.Ct. 517, 523, 2020 WL 7327827, *3 (2020) (quoting Virginia v. LeBlanc, 582 U. S. ___,

22 ___, 137 S.Ct. 1726, 1728 (2017) (per curiam)). Rather, a state prisoner seeking a writ of habeas

23 corpus from a federal court “must show that the state court’s ruling on the claim being presented

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

25 comprehended in existing law beyond any possibility of fairminded disagreement.” Richter, 562

26 U.S. at 103 (emphasis added); see also Kayer, 141 S.Ct. at 523, 2020 WL 7327827, *3. Congress

27 “meant” this standard to be “difficult to meet.” Richter, 562 U.S. at 102.

28 The second prong pertains to state court decisions based on factual findings. Davis v.

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1 Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)).

2 Under § 2254(d)(2), a federal court may grant habeas relief if a state court’s adjudication of the

3 petitioner’s claims “resulted in a decision that was based on an unreasonable determination of the

4 facts in light of the evidence presented in the State court proceeding.” Wiggins v. Smith, 539

5 U.S. 510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). A state court’s

6 factual finding is unreasonable when it is “so clearly incorrect that it would not be debatable

7 among reasonable jurists.” Jeffries, 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999-

8 1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).

9 To determine whether habeas relief is available under § 2254(d), the federal court looks to

10 the last reasoned state court decision as the basis of the state court’s decision. See Ylst v.

11 Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir.

12 2004). “[A]lthough we independently review the record, we still defer to the state court’s

13 ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

14 The prejudicial impact of any constitutional error is assessed by asking whether the error

15 had “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v.

16 Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007)

17 (holding that the Brecht standard applies whether or not the state court recognized the error and

18 reviewed it for harmlessness).

19 C. Review of Petition

20 Petitioner raises fourteen claims in his petition: 1) Insufficient evidence supported the

21 robbery of Alex S.; 2) Insufficient evidence supported the felony murder conviction; 3)

22 Insufficient evidence supported the robbery special circumstance; 4) The special circumstance

23 instruction was constitutionally infirm; 5) Trial court committed instructional error concerning the

24 “escape rule,” “continuous transaction rule,” and “logical connection”; 6) Prosecutor committed

25 misconduct in misstating the law; 7) Instructional error concerning the elements for aiding and

26 abetting robbery; 8) Instructional error concerning voluntary intoxication; 9) Prosecutor

27 committed misconduct, and Petitioner’s counsel was ineffective, when forensic evidence was

28 misstated; 10) Prosecutor committed misconduct during closing argument; 11) Trial court erred in

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1 refusing to instruct on lesser-included homicide offenses and on assault and battery as lesser

2 offense to robbery; 12) Trial court erroneously admitted testimonial hearsay; 13) Trial court erred

3 in refusing to order bifurcation of the gang allegations; and 14) Cumulative error.

4 1. Insufficiency of the Evidence – Robbery of Alex S.

5 Petitioner first alleges there was insufficient evidence to support the verdict for robbery of

6 Alex S. Petitioner presented this claim on direct appeal. In the last reasoned decision, the Fifth

7 DCA denied the claim as follows:

8 V. Substantial Evidence Supports The Verdicts Against Appellants For

Robbery Of Alex (Count II).

9

Appellants contend their convictions for Alex's robbery (count II) must be reversed

10 for insufficient evidence.

11 A. Standard of review.

12 As stated previously, we must review the entire record in the light most favorable to

the judgment to determine whether substantial evidence exists to support the

13 judgments. Such evidence must be reasonable, credible, and of solid value.

(Ghobrial, supra, 5 Cal.5th at p. 277.) This standard also applies in cases in which

14 the prosecution relies mainly on circumstantial evidence. (Id. at pp. 277–278.)

15 Although a jury is entitled to make reasonable inferences based on the circumstantial

evidence, an inference must not be based on speculation as to probabilities. (People

16 v. Davis (2013) 57 Cal.4th 353, 360, 159 Cal.Rptr.3d 405, 303 P.3d 1179.) A

reasonable inference may not be based on suspicion, imagination, surmise,

17 conjecture, guesswork or supposition. (Ibid.)

18 B. Analysis.

19 Appellants claim their convictions in count II are based on speculation, and they

maintain reasonable inferences establish their innocence. We disagree. Substantial

20 circumstantial evidence, and the reasonable inferences drawn from it, support the

jury's verdicts in count II.

21

“Robbery is the felonious taking of personal property in the possession of another,

22 from his person or immediate presence, and against his will, accomplished by means

of force or fear.” (§ 211.) Our Supreme Court makes clear the intent to steal must

23 be formed either before or during the application of force for a robbery to occur.

(People v. Tafoya (2007) 42 Cal.4th 147, 170, 64 Cal.Rptr.3d 163, 164 P.3d 590.)

24 If the intent to steal occurs after the use of force, the taking is a theft and not robbery.

(People v. Morris (1988) 46 Cal.3d 1, 19, 249 Cal.Rptr. 119, 756 P.2d 843 (Morris),

25 disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6,

37 Cal.Rptr.2d 446, 887 P.2d 527.)

26

Regarding general accomplice liability, an aider and abettor must have knowledge

27 of the perpetrator's unlawful purpose and act with the intent to assist in the

commission of that crime. (People v. McCoy, supra, 25 Cal.4th at p. 1118, 108

28 Cal.Rptr.2d 188, 24 P.3d 1210.) An accomplice must intend to render aid prior to or

9

1 during the commission of the offense. (People v. Cooper (1991) 53 Cal.3d 1158,

1164, 282 Cal.Rptr. 450, 811 P.2d 742 (Cooper).) [Fn.21]

2

[Fn.21] In contrast to the usual requirements for liability as an aider and

3 abettor, our Supreme Court has created a different rule for getaway drivers

involved in a robbery. A getaway driver “must form the intent to facilitate

4 or encourage commission of the robbery prior to or during the carrying away

of the loot to a place of temporary safety.” (Cooper, supra, 53 Cal.3d at p.

5 1165, 282 Cal.Rptr. 450, 811 P.2d 742, fn. & italics omitted.) This

instruction is embodied in CALCRIM No. 1603, and it was given in this

6 matter. The bench notes to CALCRIM No. 1603 state that a trial court should

give this instruction “when the defendant is charged with aiding and abetting

7 a robbery and an issue exists about when the defendant allegedly formed the

intent to aid and abet.” Our Supreme Court has clarified that, “for the

8 purpose of aiding and abetting, the duration of a robbery extends to the

carrying away of the stolen property to a place of temporary safety.” (People

9 v. Montoya (1994) 7 Cal.4th 1027, 1041, 31 Cal.Rptr.2d 128, 874 P.2d 903.)

10 In this matter, the evidence strongly suggests that Alex's property fell in plain view

of all three appellants while they were attacking him. Alex told a detective he heard

11 his phone and knife fall from the front pocket of his hoodie when appellants knocked

him down. At trial, Alex testified he had realized his knife was missing before he

12 got into Amber's vehicle. Amber and Omar both told the jury they saw all three

appellants kicking and punching Alex when he was still on the ground. Appellants

13 stopped the attack, and neither Amber nor Omar saw Alex's property on the ground.

14 The evidence overwhelmingly establishes at least one appellant took possession of

Alex's phone and knife during this incident. Alex's phone was recovered the

15 following morning inside Koplen's residence. Alex's knife was recovered about

three and a half months after this homicide, and Tylor's DNA was on the knife blade.

16 It is clear at least one appellant used Alex's knife to stab Tylor.

17 Given their coordinated attack, and their immediate proximity to Alex when he was

on the ground, the jury could have reasonably inferred appellants were each aware

18 that Alex's property had fallen. The jury could have also reasonably concluded each

appellant knew one of them had retrieved Alex's property while they continued to

19 strike him. Reasonable jurors could have determined that, after Alex's property fell

and was recovered, appellants worked together and continued to use force to keep

20 Alex on the ground and permanently deprive him of his property. Criminal intent is

rarely established by direct evidence and it must usually be inferred from all of the

21 facts and circumstances adduced at trial. (People v. Gilbert (1992) 5 Cal.App.4th

1372, 1380, 7 Cal.Rptr.2d 660; People v. Williams (1967) 252 Cal.App.2d 147, 155,

22 59 Cal.Rptr. 905; see, e.g., § 29.2, subd. (a) [“The intent or intention is manifested

by the circumstances connected with the offense.”].) The taking of Alex's property

23 during this synchronized use of force strongly infers that each appellant held an

intent to rob (or held an intent to aid and abet in robbery).

24

In addition, Amber returned to the park to retrieve the passed-out sister. All three

25 appellants were present when Amber returned. At no time did any appellant alert

either Alex, Amber or Omar that they had Alex's property, or that they wanted to

26 return it. To the contrary, Segura appeared like he wanted to continue fighting. He

grabbed his belt and acted like he had a knife. When he was later arrested, however,

27 Segura was unarmed.

28 Moreover, Tylor's and Brittany's attempted robberies (counts III and IV,

10

1 respectively) occurred mere minutes after Alex's property was taken (count II). In

both of these criminal incidents, appellants worked together to subdue and control

2 the victims. Alex's property was taken while all three appellants beat him. Garcia

and Segura pursued Tylor while Koplen threatened Brittany with a knife and

3 demanded her property. The evidence overwhelmingly suggests that Koplen

threatened Brittany while using Alex's knife. When chasing Tylor, either Garcia or

4 Segura yelled that they would cut him. After Tylor was stabbed, all three appellants

returned to further intimidate Brittany.

5

The cumulative evidence strongly suggests that appellants held an intent to rob the

6 three victims during these two separate criminal incidents. (See, e.g., People v. Daya

(1994) 29 Cal.App.4th 697, 708–709, 34 Cal.Rptr.2d 884 [in a circumstantial case,

7 the evidence is viewed cumulatively to determine if a reasonable jury could find

guilt beyond a reasonable doubt].) Appellants' synchronized actions throughout this

8 crime spree would not have been lost on the jury. The jurors were entitled to draw

reasonable inferences based on the circumstantial evidence (People v. Livingston,

9 supra, 53 Cal.4th at p. 1166, 140 Cal.Rptr.3d 139, 274 P.3d 1132) and we must

presume every inference in support of the judgment the finder of fact could

10 reasonably have made. (People v. D'Arcy, supra, 48 Cal.4th at p. 293, 106

Cal.Rptr.3d 459, 226 P.3d 949.)

11

It was the jury, and not this court, which must be convinced of appellants' guilt

12 beyond a reasonable doubt. (People v. Bean (1988) 46 Cal.3d 919, 933, 251

Cal.Rptr. 467, 760 P.2d 996.) In finding appellants guilty of robbing Alex, the jury

13 rejected the lesser included offense of theft (§§ 484, subd. (a), 487, subd. (c)). The

circumstances reasonably justify the jury's verdicts. The jury had sufficient

14 substantial evidence to determine each appellant formed an intent to rob or aid in

robbery while they beat Alex. The circumstantial evidence connects each appellant

15 to Alex's robbery, and proves each appellant's guilt beyond a reasonable doubt.

Consequently, we will not reverse the judgments even if the circumstances raise

16 contrary inferences. (See People v. Bean, supra, 46 Cal.3d at p. 933, 251 Cal.Rptr.

467, 760 P.2d 996.)

17

Finally, appellants rely primarily on two opinions, Rodriguez v. Superior Court

18 (1984) 159 Cal.App.3d 821, 205 Cal.Rptr. 750 (Rodriguez) and Morris, supra, 46

Cal.3d 1, 249 Cal.Rptr. 119, 756 P.2d 843. These authorities do not assist them.

19

In Rodriguez, supra, 159 Cal.App.3d 821, 205 Cal.Rptr. 750, a rape victim left her

20 purse in the defendant's car when he forced her out to rape her. He then drove off

with the purse after the rape. (Id. at p. 823, 205 Cal.Rptr. 750.) The appellate court

21 found insufficient evidence of robbery. No evidence showed the defendant had been

aware of the purse before forcibly separating the victim from it. Instead, the

22 defendant's intent was on sexual gratification. (Id. at p. 827, 205 Cal.Rptr. 750.)

23 In Morris, supra, 46 Cal.3d 1, 249 Cal.Rptr. 119, 756 P.2d 843, a murder victim

was shot to death. Circumstantial evidence linked the defendant to the crime scene.

24 After this murder, the defendant tried to use a credit card previously loaned to the

victim. (Id. at pp. 10–11, 249 Cal.Rptr. 119, 756 P.2d 843.) In addition to murder, a

25 jury convicted the defendant of robbery and found true a robbery-murder special-

circumstance allegation. (Id. at p. 9, 249 Cal.Rptr. 119, 756 P.2d 843.) The Supreme

26 Court, however, determined it was impossible to know whether the defendant took

the credit card from the victim before or during the murder. It was also impossible

27 to know whether the taking was accomplished with force or fear. (Id. at p. 20, 249

Cal.Rptr. 119, 756 P.2d 843.) The Supreme Court reversed the robbery conviction

28 and the murder special-circumstance finding. (Id. at p. 21, 249 Cal.Rptr. 119, 756

11

1 P.2d 843.)

2 Both Rodriguez and Morris are distinguishable. In contrast to these authorities,

appellants jointly applied force to Alex while his property was taken. The

3 circumstantial evidence strongly suggests appellants intended to rob Alex or aid in

the commission of robbery. The jury had substantial evidence to find appellants

4 guilty. Neither Rodriguez nor Morris dictate reversal.

5 Based on this record, one appellant took Alex's property from his immediate

presence and against his will through force with the intent to permanently deprive

6 him of his property. (§ 211.) The other appellants aided and abetted in that taking

with the intent to commit robbery. The evidence supporting these inferences is

7 reasonable, credible, and of solid value. As such, a reasonable trier of fact could find

each appellant guilty of robbery beyond a reasonable doubt. (See Ghobrial, supra,

8 5 Cal.5th at p. 277.) Accordingly, substantial evidence supports the verdicts in count

II and this claim fails. [Fn.22]

9

[Fn.22] Appellants also assert substantial evidence did not support the trial

10 court's denial of a motion to acquit pursuant to section 1118.1. We reject that

assertion. The prosecution's case established appellants' guilt for Alex's

11 robbery.

12 Koplen, 2019 WL 2647356, at *18-20.

13 a. Legal Standard

14 The law on sufficiency of the evidence is clearly established. Pursuant to the United

15 States Supreme Court’s holding in Jackson v. Virginia, 443 U.S. 307, the test on habeas review to

16 determine whether a factual finding is fairly supported by the record is “whether, after viewing

17 the evidence in the light most favorable to the prosecution, any rational trier of fact could have

18 found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319;

19 see also Lewis v. Jeffers, 497 U.S. 764, 781 (1990). Thus, only if “no rational trier of fact” could

20 have found proof of guilt beyond a reasonable doubt will a petitioner be entitled to habeas relief.

21 Jackson, 443 U.S. at 324. Sufficiency claims are judged by the elements defined by state law. Id.

22 at 324, n. 16.

23 If confronted by a record that supports conflicting inferences, a federal habeas court “must

24 presume–even if it does not affirmatively appear in the record–that the trier of fact resolved any

25 such conflicts in favor of the prosecution, and must defer to that resolution.” Id. at 326.

26 Circumstantial evidence and inferences drawn from that evidence may be sufficient to sustain a

27 conviction. Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995).

28 After the enactment of the AEDPA, a federal habeas court must apply the standards of

12

1 Jackson with an additional layer of deference. Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir.

2 2005). In applying the AEDPA’s deferential standard of review, this Court must presume the

3 correctness of the state court’s factual findings. 28 U.S.C. § 2254(e)(1); Kuhlmann v. Wilson,

4 477 U.S. 436, 459 (1986).

5 In Cavazos v. Smith, 565 U.S. 1 (2011), the United States Supreme Court further

6 explained the highly deferential standard of review in habeas proceedings, by noting that Jackson

7 makes clear that it is the responsibility of the jury - not the court - to decide what

conclusions should be drawn from evidence admitted at trial. A reviewing court may

8 set aside the jury's verdict on the ground of insufficient evidence only if no rational

trier of fact could have agreed with the jury. What is more, a federal court may not

9 overturn a state court decision rejecting a sufficiency of the evidence challenge

simply because the federal court disagrees with the state court. The federal court

10 instead may do so only if the state court decision was “objectively unreasonable.”

11 Because rational people can sometimes disagree, the inevitable consequence of this

settled law is that judges will sometimes encounter convictions that they believe to

12 be mistaken, but that they must nonetheless uphold.

13 Id. at 2.

14 b. Analysis

15 A federal habeas court determines sufficiency of the evidence in reference to the

16 substantive elements of the criminal offense as defined by state law. See Jackson, 443 U.S. at

17 324 n. 16. Petitioner claims there was insufficient evidence to support his conviction for robbery.

18 As noted by the appellate court, “Robbery is the felonious taking of personal property in the

19 possession of another, from his person or immediate presence, and against his will, accomplished

20 by means of force or fear.” Koplen, 2019 WL 2647356, at *18 (quoting Cal. Penal Code § 211).

21 Under California law, the intent to steal must be formed either before or during the application of

22 force for a robbery to occur. Id. (citing People v. Tafoya, 42 Cal.4th 147, 170 (2007).

23 The Fifth DCA noted the existence of strong circumstantial evidence from which the jury

24 could have determined that the defendants intended to rob Alex, and did in fact rob him. The

25 evidence showed that Alex’s phone and knife fell from his pocket when defendants knocked him

26 to the ground. Defendants then proceeded to kick and beat Alex in concert. When they ceased

27 their attack, the phone and knife were nowhere to be seen. The evidence further showed that one

28 of the defendants took possession of the phone and knife, given that the phone was located inside

13

1 one of the defendants’ homes, and the knife was located three and a half months later with the

2 other victim’s blood on it. From this evidence, a rational juror could have concluded that the

3 defendants formed an intent to rob Alex or aid in the robbery before or during the attack, and that

4 Petitioner or a co-defendant took possession of the phone and knife during the attack.

5 Viewing the evidence in the light most favorable to the prosecution, Petitioner fails to

6 show that no rational trier of fact would have agreed with the state court’s determination.

7 Petitioner fails to demonstrate that the state court rejection of his claim was contrary to, or an

8 unreasonable application of, the Jackson standard. The claim should be denied.

9 2. Insufficiency of the Evidence – Felony Murder Conviction and Robbery

10 Special Circumstance

11 Petitioner was convicted of felony murder with a finding that the murder was committed

12 during an attempted robbery. In his second and third claims, Petitioner alleges that the evidence

13 was insufficient to support the felony murder conviction and the special circumstance finding.

14 These claims were raised on direct appeal, and in the last reasoned decision, the Fifth DCA

15 denied the claim as follows:

16 I. It Is Beyond Any Reasonable Doubt That The Jury Based The Felony-

Murder Convictions On The Attempted Robbery Of Tylor Or Brittany.

17

Despite finding true the special circumstance allegations that Tylor's murder

18 occurred during an attempted robbery, the jury acquitted Garcia and Segura of

attempted robbery in counts III and IV. Throughout much of their briefing, Garcia

19 and Segura focus on the jury's inconsistent verdicts. They argue that, because of the

inconsistent verdicts, their respective felony-murder convictions were likely based

20 on Alex's robbery (count II). This assumption is critical to many of their arguments

below.

21

This record, however, does not support Garcia's and Segura's position. Despite the

22 inconsistent verdicts, we can declare beyond any reasonable doubt that the felony-

murder convictions were based on the attempted robbery of Tylor or Brittany. Our

23 conclusion is based on the following.

24 A. The relevant jury instructions.

25 The court informed the jury that felony murder could be based on either robbery or

attempted robbery. The court stated the special circumstance allegations applied if

26 the prosecution proved beyond a reasonable doubt appellants acted with either an

intent to kill or with reckless indifference to human life, and they were a major

27 participant in robbery or its attempt.

28 With CALCRIM No. 3500, the court provided the jury with a unanimity instruction

14

1 regarding the special circumstance allegations. The jurors were told appellants were

charged in count I with first degree murder under a theory of felony murder. “The

2 People have presented evidence of more than one attempted robbery. To prove a

defendant guilty of Count I, you must all agree which attempted robbery was

3 committed.” We presume the jurors understood and applied this instruction. (People

v. Gonzales (2011) 51 Cal.4th 894, 940, 126 Cal.Rptr.3d 1, 253 P.3d 185.)

4

B. The relevant closing arguments.

5

At no time did the prosecutor argue or reasonably suggest Alex's robbery (count II)

6 was the underlying crime supporting felony murder. Instead, during closing

argument, the prosecutor repeatedly asserted that felony murder was based on the

7 attempted robbery of Tylor or Brittany (counts III and IV, respectively). The

prosecutor emphasized that the incident involving Alex was separate from the

8 incident involving Tylor and Brittany. She contended the special circumstance

allegations under section 190.2 applied because Tylor's murder occurred during an

9 attempted robbery.

10 During rebuttal, the prosecutor again declared that felony murder was based on the

attempted robbery of Tylor or Brittany (counts III and IV, respectively). She argued

11 the intent to rob either Brittany or Tylor was sufficient for felony murder. “The

person who dies does not have to be the person who is robbed as long as it's one

12 continuous course of conduct and transaction.” She contended it did not matter

which appellant stabbed Tylor because appellants acted in concert. However, she

13 asserted Koplen was the one who had stabbed Tylor, and Garcia and Segura had

chased him.

14

In addition to the prosecutor's comments, Segura's trial counsel repeatedly noted

15 during closing argument that the prosecution's theory of felony murder, and the

special circumstance allegations, were based on the attempted robberies of Tylor or

16 Brittany. In addition, Koplen's counsel argued that “[t]his case rests entirely on the

intent of the non-stabbers to rob.” He contended one appellant killed Tylor, but it

17 was impossible to know who did the stabbing. He claimed this showed reasonable

doubt. Garcia's counsel asserted his client had no knowledge Tylor and Brittany

18 were going to be robbed. His counsel argued Garcia could not be liable for felony

murder in count I, or attempted robbery in counts III and IV.

19

The arguments from counsel, and especially from the prosecutor, made it abundantly

20 clear that the theory of felony murder was based solely on the attempted robbery of

either Tylor or Brittany (counts III and IV, respectively). At no time did any counsel

21 assert or reasonably suggest Alex's robbery (count II) was the basis for felony-

murder liability.

22

C. The jury's special circumstance findings.

23

The prosecution alleged a special circumstance enhancement under section 190.2,

24 subdivision (a)(17)(A). During a hearing regarding this verdict form, the prosecutor

asserted felony murder was based solely on the alleged attempted robberies.

25

The jury found Tylor's murder “was committed or aided and abetted” by all three

26 appellants “while the said defendant was engaged in the commission of the crime of

ATTEMPTED ROBBERY, a special circumstance,” within the meaning of section

27 190.2, subdivision (a)(17)(A).

28

15

1 D. Conclusion.

2 Based on this record, we reject Garcia's and Segura's repeated claims that Alex's

robbery (count II) could be the underlying felony supporting their convictions for

3 first degree felony murder (count I). To the contrary, it is beyond any reasonable

doubt that the felony-murder convictions in this matter were based on the attempted

4 robbery of Tylor or Brittany (counts III and IV, respectively). The unanimity

instruction under CALCRIM No. 3500 directed the jury to focus only on attempted

5 robbery. The prosecution repeatedly asserted that the theory of felony murder was

based only on Tylor's or Brittany's attempted robbery. Finally, based on their true

6 findings, the jurors unanimously agreed the prosecution had proven beyond a

reasonable doubt Tylor's murder occurred during an attempted robbery. The jury's

7 true findings overwhelmingly establish that the felony-murder convictions were

based on attempted robbery of Tylor or Brittany (counts III or IV, respectively) and

8 not on Alex's robbery (count II).

9 Although the jury provided inconsistent verdicts in this matter, inherently

inconsistent verdicts are generally allowed to stand. (United States v. Powell (1984)

10 469 U.S. 57, 64–69, 105 S.Ct. 471, 83 L.Ed.2d 461; People v. Avila (2006) 38

Cal.4th 491, 600, 43 Cal.Rptr.3d 1, 133 P.3d 1076; People v. Lewis (2001) 25

11 Cal.4th 610, 656, 106 Cal.Rptr.2d 629, 22 P.3d 392.) When a jury renders an

inconsistent verdict, a criminal defendant is nevertheless protected “‘against jury

12 irrationality or error’” by an independent review of the sufficiency of the evidence.

(People v. Palmer (2001) 24 Cal.4th 856, 863, 103 Cal.Rptr.2d 13, 15 P.3d 234.)

13 When conducting such a review, an appellate court must assess whether the

evidence adduced at trial could support any rational determination of guilt beyond a

14 reasonable doubt. This review is independent of the jury's determination that

evidence on another count was insufficient. (Ibid.)

15

Here, having determined beyond a reasonable doubt that the jury based its felony-

16 murder convictions on the attempted robbery of Tylor or Brittany, we must address

whether substantial evidence supports Garcia's and Segura's respective convictions

17 for felony murder. As we explain, substantial evidence supports all of the

convictions in this matter.

18

II. Substantial Evidence Supports Garcia's And Segura's Convictions For

19 Felony Murder (Count I) And The True Findings In The Special Circumstance

Murder Allegations.

20

Garcia and Segura contend insufficient evidence supports their respective

21 convictions for first degree felony murder (count I) and the jury's special

circumstance true findings under section 190.2, subdivision (a)(17)(A). They seek

22 reversal of these convictions and findings.

23 A. Standard of review.

24 To resolve a claim involving the sufficiency of the evidence, we review the entire

record in the light most favorable to the judgment to determine whether substantial

25 evidence exists. Substantial evidence is reasonable, credible, and of solid value so

that a reasonable trier of fact could find the defendant guilty beyond a reasonable

26 doubt. (People v. Ghobrial (2018) 5 Cal.5th 250, 277, 234 Cal.Rptr.3d 669, 420

P.3d 179 (Ghobrial).) This standard is applied in cases in which the prosecution

27 relies mainly on circumstantial evidence. (Id. at pp. 277–278.) This standard also

applies when reviewing a jury's true finding on a special circumstance allegation.

28 (People v. Banks (2015) 61 Cal.4th 788, 804, 189 Cal.Rptr.3d 208, 351 P.3d 330

16

1 (Banks).)

2 B. Analysis.

3 Garcia and Segura claim they had a chance encounter with Tylor and Brittany, and

nothing establishes their intent to rob them. They argue no evidence shows they

4 aided and abetted Koplen. They further contend insufficient evidence supports the

findings that Tylor's murder fell under section 190.2. They assert no evidence

5 establishes (1) they had an intent to kill; (2) they were major participants in a robbery

or attempted robbery that resulted in death; or (3) they acted with reckless

6 indifference to human life.

7 These contentions are without merit. The jury had substantial evidence to convict

Garcia and Segura of felony murder and find true the special circumstance murder

8 allegations.

9 1. An overview of felony murder.

10 In California, all murder committed in the perpetration of or attempt to perpetrate

certain enumerated felonies, including robbery, is first degree murder. (§ 189, subd.

11 (a); People v. Cavitt (2004) 33 Cal.4th 187, 197, 14 Cal.Rptr.3d 281, 91 P.3d 222

(Cavitt).) For felony murder, the mental state required is the specific intent to

12 commit the underlying felony. (Cavitt, supra, 33 Cal.4th at p. 197, 14 Cal.Rptr.3d

281, 91 P.3d 222.)

13

For general accomplice liability, the prosecution must prove that a defendant acted

14 with knowledge of the perpetrator's unlawful purpose and with the intent or purpose

of committing, facilitating or encouraging commission of the crime. (People v.

15 McCoy (2001) 25 Cal.4th 1111, 1118, 108 Cal.Rptr.2d 188, 24 P.3d 1210.) The

actus reus for accomplice liability to first degree felony murder is aiding and

16 abetting the underlying felony or its attempt. (People v. Clark (2016) 63 Cal.4th

522, 615, 203 Cal.Rptr.3d 407, 372 P.3d 811 (Clark).) The mens rea for an aider

17 and abettor is the same as the intent for the actual killer. [Fn.14] (Clark, at p. 615,

203 Cal.Rptr.3d 407, 372 P.3d 811.)

18

[Fn.14] Effective January 1, 2019, the Legislature amended “the felony

19 murder rule and the natural and probable consequences doctrine, as it relates

to murder, to ensure that murder liability is not imposed on a person who is

20 not the actual killer, did not act with the intent to kill, or was not a major

participant in the underlying felony who acted with reckless indifference to

21 human life.” (Stats. 2018, ch. 1015, § 1, subd. (f), p. 6674; Sen. Bill No.

1437 (2017-2018 Reg. Sess.).) We discuss this amendment in greater detail

22 in Section III below.

23 2. An overview of the murder special-circumstance allegations.

24 A conviction for first degree murder may result in a prison term of 25 years to life.

(§ 190, subd. (a).) However, if at least one special circumstance allegation is found

25 true, a defendant may receive the death penalty or LWOP. (§ 190.2, subd. (a).)

26 For a nonkiller, a penalty of death or LWOP may be imposed under two

circumstances. First, a defendant, with the intent to kill, must aid or abet any actor

27 in the commission of first degree murder. (§ 190.2, subd. (c).) In the alternative, a

defendant must act “with reckless indifference to human life and as a major

28 participant” while aiding and abetting in the commission (or its attempt) of certain

17

1 enumerated felonies, including robbery. (§ 190.2, subds. (a)(17)(A), (d).)

2 a. The “major participant” requirement.

3 The “major participant” requirement means a defendant's personal involvement

must be “substantial” and greater than the actions of an ordinary aider and abettor

4 to an ordinary felony murder. (Banks, supra, 61 Cal.4th at pp. 798, 802, 189

Cal.Rptr.3d 208, 351 P.3d 330.) The ultimate question “is ‘whether the defendant's

5 participation “in criminal activities known to carry a grave risk of death” [citation]

was sufficiently significant to be considered “major” [citations].’” (Clark, supra, 63

6 Cal.4th at p. 611, 203 Cal.Rptr.3d 407, 372 P.3d 811, quoting Banks, supra, at p.

803, 189 Cal.Rptr.3d 208, 351 P.3d 330.)

7

Our Supreme Court has cited the following list of nonexclusive circumstances to

8 consider when analyzing whether a defendant acted as a major participant: (1) What

role did the defendant have in planning the criminal enterprise, or in supplying or

9 using lethal weapons? (2) What awareness did the defendant have of particular

dangers posed by the nature of the crime, weapons used, or past experience or

10 conduct of the other participants? (3) Was the defendant present at the scene of the

killing, in a position to facilitate or prevent the actual murder, and did his or her own

11 actions or inaction play a particular role in the death? (4) What did the defendant do

after lethal force was used? (Clark, supra, 63 Cal.4th at p. 611, 203 Cal.Rptr.3d 407,

12 372 P.3d 811; Banks, supra, 61 Cal.4th at p. 803, 189 Cal.Rptr.3d 208, 351 P.3d

330.) No single factor is necessary, but neither is any one of them necessarily

13 sufficient. Instead, all may be weighed in determining whether a defendant acted as

a major participant. (Banks, supra, 61 Cal.4th at p. 803, 189 Cal.Rptr.3d 208, 351

14 P.3d 330.)

15 b. The “reckless indifference” requirement.

16 For the “reckless indifference” requirement, a defendant must hold an awareness

that his or her participation in the felony involved a grave risk of death. (Banks,

17 supra, 61 Cal.4th at p. 807, 189 Cal.Rptr.3d 208, 351 P.3d 330.) This requires more

than the foreseeable risk of death inherent in any armed crime. (Id. at p. 808, 189

18 Cal.Rptr.3d 208, 351 P.3d 330.) Instead, the defendant must consciously disregard

a substantial and unjustifiable risk of death. (Clark, supra, 63 Cal.4th at p. 617, 203

19 Cal.Rptr.3d 407, 372 P.3d 811.) However, an objective standard is used, and a

reviewing court asks whether the defendant's behavior was a “‘gross deviation’”

20 from what a law-abiding person would have done under the circumstances. (Ibid.)

The issue is whether the defendant exhibited a willingness to kill (or to assist another

21 in killing) to achieve a distinct aim, even if the defendant did not specifically desire

for death to occur. (Ibid.)

22

Acknowledging an overlap between the “major participant” and “reckless

23 indifference” elements (Clark, supra, 63 Cal.4th at pp. 614–615, 203 Cal.Rptr.3d

407, 372 P.3d 811), the California Supreme Court has considered the following

24 factors in determining whether a defendant acted with reckless indifference to

human life: (1) a defendant's knowledge of weapons, and use and number of

25 weapons; (2) a defendant's physical presence at the crime and opportunities to

restrain the crime and/or aid the victim; (3) the duration of the felony; (4) a

26 defendant's knowledge of the cohort's likelihood of killing; and (5) a defendant's

efforts to minimize the risks of the violence during the felony. (Id. at pp. 618–623,

27 203 Cal.Rptr.3d 407, 372 P.3d 811.) Like the factors for major participation, no

particular factor is necessary nor is any one necessarily sufficient. (Id. at p. 618, 203

28 Cal.Rptr.3d 407, 372 P.3d 811.)

18

1 3. A summary of Enmund, Tison, and Banks.

2 We summarize three important opinions: (1) Enmund v. Florida (1982) 458 U.S.

782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (Enmund); (2) Tison v. Arizona (1987) 481

3 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (Tison); and (3) Banks, supra, 61 Cal.4th

788, 189 Cal.Rptr.3d 208, 351 P.3d 330.

4

a. Enmund, supra, 458 U.S. 782, 102 S.Ct. 3368.

5

In Enmund, supra, 458 U.S. 782, 102 S.Ct. 3368, the United States Supreme Court

6 held the death penalty was inappropriate for an accomplice who did not kill, attempt

to kill, intend a killing take place or intend for lethal force to be employed. (Id. at p.

7 797, 102 S.Ct. 3368.) The high court emphasized the focus must be on the

accomplice's culpability and not on the murderer's culpability. (Id. at p. 798, 102

8 S.Ct. 3368.) The defendant in Enmund was the getaway driver in an armed robbery

of a dwelling whose occupants were murdered. The defendant was convicted of two

9 counts of first degree murder and sentenced to death. (Id. at pp. 784–785, 102 S.Ct.

3368; see Tison, supra, 481 U.S. at p. 146, 107 S.Ct. 1676.) Enmund reversed the

10 defendant's judgment upholding the death penalty because the state had failed to

treat his culpability differently from the actual killers' culpability. (Enmund, supra,

11 at pp. 798, 801, 102 S.Ct. 3368.)

12 b. Tison, supra, 481 U.S. 137, 107 S.Ct. 1676.

13 In Tison, two brothers aided a prison escape by arming two murderers, one of whom

they knew had killed in the course of a previous escape attempt. After the breakout,

14 one brother flagged down a passing car, and both fully participated in kidnapping

and robbing the vehicle's occupants. Both stood by and watched as those people

15 were killed. The brothers made no attempt to assist the victims before, during, or

after the shooting, but continued to assist the killers. (Tison, supra, 481 U.S. at pp.

16 151–152, 107 S.Ct. 1676.) The Supreme Court held the brothers could be sentenced

to death despite the fact they had not committed the killings or intended to kill. (Id.

17 at p. 158, 107 S.Ct. 1676.) The brothers had a substantial involvement in the crimes

and they did not act as mere getaway drivers. (Ibid.) Instead, they were “actively

18 involved in every element” of the underlying felonies, and they were physically

present during the entire sequence of criminal activity culminating in the murders.

19 (Ibid.) The brothers' “high level of participation” implicated them in the resulting

deaths. (Ibid.)

20

c. Banks, supra, 61 Cal.4th 788, 189 Cal.Rptr.3d 208, 351

21 P.3d 330.

22 In Banks, our high court noted that felony-murder participants may be placed on a

continuum. (Banks, supra, 61 Cal.4th at pp. 800–802, 811, 189 Cal.Rptr.3d 208, 351

23 P.3d 330.) On one end of the continuum, for example, is the getaway driver who

was “‘not on the scene, who neither intended to kill nor was found to have had any

24 culpable mental state,’” and who is not eligible for the death penalty or LWOP. (Id.

at p. 800, 189 Cal.Rptr.3d 208, 351 P.3d 330.) At the other end of the continuum is

25 the actual killer, or an aider and abettor, who attempted or intended to kill, and who

is eligible for LWOP. (Ibid.)

26

In Banks, the defendant was sentenced to LWOP as a result of a felony-murder

27 special circumstance. He was the getaway driver for an armed robbery. He was not

present when a security guard was shot and killed. (Banks, supra, 61 Cal.4th at pp.

28 795–796, 189 Cal.Rptr.3d 208, 351 P.3d 330.) Our Supreme Court concluded the

19

1 defendant was ineligible for LWOP. (Id. at p. 794, 189 Cal.Rptr.3d 208, 351 P.3d

330.) The defendant had not been a major participant in the crime. (Id. at p. 805, 189

2 Cal.Rptr.3d 208, 351 P.3d 330.) There was no evidence the defendant had procured

the weapons, or the defendant and his confederates had previously committed any

3 other violent crime. When the killing was committed, the defendant was not at the

scene, he did not see or hear the shooting, and he had no immediate role in

4 instigating the shooting. There was no evidence he could have prevented the

shooting. (Ibid.) Based on Enmund and Tison, our high court held that participation

5 in an armed robbery, without more, was not sufficient for an enhanced penalty of

death or LWOP. (Banks, supra, at p. 805, 189 Cal.Rptr.3d 208, 351 P.3d 330.)

6

4. Garcia's and Segura's actions in this matter.

7

Despite the inconsistent verdicts, substantial evidence supports the jury's

8 convictions of Garcia and Segura for felony murder (count I), and the true findings

in the murder special-circumstance allegations. Garcia and Segura aided and abetted

9 in the commission of Tylor's and Brittany's attempted robberies. In addition, they

were major participants who acted with reckless indifference to human life.

10

Appellants approached Tylor and Brittany together. Substantial evidence establishes

11 that it was Koplen who asked for a cigarette, and it was Koplen who punched Tylor

from behind. [Fn.15] Tylor ran away, telling them to leave Brittany alone. Garcia

12 and Segura chased him, and one yelled they were going to cut off Tylor's “dick.”

After they ran, Koplen threatened Brittany with a knife and demanded her property.

13 [Fn.16] Koplen then ran after Tylor, and, a short time later, Brittany heard Tylor

screaming in pain. Shortly thereafter, appellants returned as a group to further

14 intimidate her before fleeing when a resident opened her door.

15 [Fn.15] In his opening brief, Koplen argues Brittany's assailant was really

Segura, but he concedes that, based on substantial evidence, it appears he

16 was the one who threatened Brittany with a knife. During closing arguments,

the prosecutor asserted it was Koplen who threatened Brittany with a knife,

17 and it was Koplen who stabbed Tylor. In their opening briefs, Garcia and

Segura contend it was Koplen who threatened Brittany with the knife,

18 claiming they were the ones who chased Tylor into the park.

19 [Fn.16] The evidence strongly suggests Koplen used Alex's knife when he

demanded property from Brittany. Although Brittany was never asked to

20 identify the knife used in her attempted robbery, she said it had a black

handle. Alex's knife also had a black handle.

21

The jury was entitled to draw reasonable inferences based on the circumstantial

22 evidence (People v. Livingston (2012) 53 Cal.4th 1145, 1166, 140 Cal.Rptr.3d 139,

274 P.3d 1132) and we must presume every inference in support of the judgment

23 the finder of fact could reasonably have made. (People v. D'Arcy (2010) 48 Cal.4th

257, 293, 106 Cal.Rptr.3d 459, 226 P.3d 949.) Appellants' initial joint approach

24 strongly implied prior planning and a clear suggestion that all three held an intent to

participate in the subsequent crimes. It is reasonable to infer that Koplen's punch put

25 into motion appellants' plan to rob Tylor and Brittany. Garcia's and Segura's chase

of Tylor further strongly suggested their intent to participate in the attempted

26 robberies. Garcia and Segura sought to capture and control Tylor, which further

showed group planning and an intent to rob.

27

The circumstantial evidence clearly suggests that Garcia and Segura were able to

28 catch Tylor and restrain him. After Koplen left Brittany to chase Tylor, she heard

20

1 Tylor screaming in pain. Shortly thereafter, appellants returned as a group to further

intimidate her. Garcia had Tylor's blood on his shoe. Appellants' joint return after

2 Tylor's screaming convincingly establishes that they were all together when Tylor

was fatally injured. Their continued efforts to threaten Brittany as a group

3 conclusively establishes a joint plan, an ongoing attempted robbery, and an effort to

intimidate a witness to effectuate an escape. Appellants' coordinated actions, both

4 before Tylor's stabbing and immediately after, overwhelmingly demonstrate

Garcia's and Segura's intent to aid and abet in the attempted robberies.

5

The evidence further strongly demonstrates that Garcia and Segura were major

6 participants in these underlying felonies, and they acted with reckless disregard for

human life. They had an immediate and crucial role in Tylor's death. Tylor was

7 unarmed, and he never threatened appellants. However, Garcia or Segura threatened

to cut him. Based on that threat and their joint chasing of him, the evidence

8 definitively establishes Garcia's and Segura's intent to either injure Tylor or to assist

in harming him. This also creates an overwhelming inference they knew Koplen was

9 armed with a knife and they had agreed to use a knife when confronting Tylor and

Brittany. [Fn.17]

10

[Fn.17] Banks makes clear a mere awareness a confederate is armed is

11 insufficient to establish the requisite “reckless indifference to human life.”

(Banks, supra, 61 Cal.4th at p. 809, 189 Cal.Rptr.3d 208, 351 P.3d 330.)

12 Further, Banks makes clear armed robbery, by itself, does not qualify as a

felony for which “any major participation” would necessarily exhibit

13 reckless indifference to human life. (Id. at p. 810, 189 Cal.Rptr.3d 208, 351

P.3d 330, fn. 9.)

14

At no time did either Garcia or Segura take any action to minimize the risk of

15 violence during this incident. To the contrary, by chasing and threatening to cut

Tylor, they both escalated the risk of a fatal injury. Their actions led to Tylor's

16 stabbing. As the prosecutor asserted during closing argument, had Garcia and

Segura not chased Tylor, this murder may have never occurred.

17

The evidence overwhelmingly suggests that Garcia and Segura were present at the

18 scene of the killing, and in a position to both facilitate or prevent the actual murder.

Based on Tylor's yelling, the nature of his wounds, and the amount of his bleeding,

19 it is reasonable to infer that each appellant was aware of Tylor's distress and injuries.

Appellants, however, did not render aid to Tylor. They did not call authorities to

20 assist him. Instead, they abandoned Tylor and returned as a group to confront and

harass Brittany.

21

When weighed together, the Supreme Court's factors establish that Garcia and

22 Segura had a substantial role in the underlying attempted robberies leading to Tylor's

murder. (See Clark, supra, 63 Cal.4th at p. 611, 203 Cal.Rptr.3d 407, 372 P.3d 811;

23 Banks, supra, 61 Cal.4th at p. 803, 189 Cal.Rptr.3d 208, 351 P.3d 330.) Their

personal involvement was greater than the actions of an ordinary aider and abettor

24 to an ordinary felony murder. (See Banks, supra, 61 Cal.4th at p. 802, 189

Cal.Rptr.3d 208, 351 P.3d 330.) Garcia and Segura acted with reckless indifference

25 to human life. (See Clark, supra, 63 Cal.4th at pp. 618–623, 203 Cal.Rptr.3d 407,

372 P.3d 811.) The evidence abundantly establishes that they held an awareness

26 their participation in the attempted robberies involved a grave risk of death (see

Banks, supra, 61 Cal.4th at p. 807, 189 Cal.Rptr.3d 208, 351 P.3d 330) and they had

27 conscious disregard of an unjustifiable risk of death. (See Clark, supra, 63 Cal.4th

at p. 617, 203 Cal.Rptr.3d 407, 372 P.3d 811.) They showed a “‘gross deviation’”

28 from the standard of conduct a law-abiding person would observe in this situation.

21

1 (Ibid.)

2 As in Tison, Garcia's and Segura's proximity to the murder and the events leading

up to it was significant. They did far more than merely participate in an attempted

3 robbery. They did not passively watch events unfold but were “actively involved in

every element” of the attempted robberies. Their high level of participation in these

4 crimes implicated them in Tylor's death. (Tison, supra, 481 U.S. at pp. 157–158,

107 S.Ct. 1676.) Like Tison, Tylor's murder was the culmination or foreseeable

5 result of several intermediate steps, all of which involved Garcia and Segura. (See,

e.g., Clark, supra, 63 Cal.4th at p. 619, 203 Cal.Rptr.3d 407, 372 P.3d 811

6 [providing this summary of Tison].) Similar to Tison, neither Garcia nor Segura

made any effort to help Tylor. (Tison, supra, 481 U.S. at p. 141, 107 S.Ct. 1676.)

7

Unlike in Enmund, Garcia's and Segura's actions demonstrate their intent either a

8 killing would take place or lethal force would be used. (Enmund, supra, 458 U.S. at

p. 797, 102 S.Ct. 3368.) Unlike in Banks, Garcia and Segura were at the scene of

9 the killing, they had an immediate role in the stabbing, they either saw and/or heard

the fatal stabbing, and they made no effort to prevent the stabbing or assist Tylor.

10 (Banks, supra, 61 Cal.4th at p. 805, 189 Cal.Rptr.3d 208, 351 P.3d 330.) On the

Enmund-Tison spectrum, their conduct was much closer to Tison and nothing like

11 Enmund. Garcia and Segura acted as major participants and with reckless

indifference to human life.

12

Appellants contend inferences can be drawn from the circumstantial evidence that

13 are favorable for them. For instance, Garcia argues it is possible the place where

Tylor was found “was not necessarily the place where the stabbing occurred.” He

14 also asserts he must not have walked through the “large pool of blood” the officers

observed because Tylor's blood stains on his (Garcia's) shoe were light. He contends

15 nothing establishes he was aware Tylor had suffered “grave injuries.” He states it is

possible he exited the park without knowing Tylor had been fatally stabbed. These

16 arguments are unpersuasive.

17 When considering a challenge to the sufficiency of the evidence to support a

conviction, we do not reweigh the evidence or reevaluate witness credibility. We

18 cannot reverse the judgment merely because the evidence could be reconciled with

a contrary finding. (People v. D'Arcy, supra, 48 Cal.4th at p. 293, 106 Cal.Rptr.3d

19 459, 226 P.3d 949.) The circumstantial evidence in this matter overwhelmingly

demonstrated that Garcia and Segura acted with knowledge of the unlawful purpose

20 of the perpetrator, and with the intent or purpose of committing, facilitating or

encouraging commission of attempted robbery. (See People v. McCoy, supra, 25

21 Cal.4th at p. 1118, 108 Cal.Rptr.2d 188, 24 P.3d 1210.) The circumstantial evidence

also established that Garcia and Segura acted as major participants and with reckless

22 indifference to human life. (See Banks, supra, 61 Cal.4th at pp. 802, 807, 189

Cal.Rptr.3d 208, 351 P.3d 330.) As such, we will not reverse the felony-murder

23 convictions or the true findings because the circumstances reasonably justify the

jury's conclusions. (See Ghobrial, supra, 5 Cal.5th at p. 278.)

24

Finally, we need not address appellants' assertions that insufficient evidence linked

25 Alex's robbery (count II) to Tylor's murder (count I). Likewise, we need not address

respondent's contention that Tylor's and Brittany's attempted robberies (counts III

26 and IV, respectively) as well as Alex's robbery (count II) may all qualify as the

underlying felonies supporting felony murder. To the contrary, this record

27 overwhelmingly establishes that the jury based the felony-murder convictions on the

attempted robbery of Tylor or Brittany and not on Alex's robbery. The jury did not

28 rely on a legally or factually unsupported theory of liability for felony murder. As

22

1 such, we reject Segura's claim the felony-murder convictions are based on a

factually insufficient theory, requiring reversal under People v. Guiton (1993) 4

2 Cal.4th 1116, 17 Cal.Rptr.2d 365, 847 P.2d 45 and related authorities.

3 Based on this record, a reasonable trier of fact could find Garcia and Segura guilty

beyond a reasonable doubt of felony murder. The circumstantial evidence

4 overwhelmingly establishes they aided and abetted in the attempted robberies.

Further, a reasonable jury could have found beyond a reasonable doubt Garcia's and

5 Segura's personal involvement in the attempted robberies was “substantial” and

“greater than the actions of an ordinary aider and abettor to an ordinary felony

6 murder.” (Banks, supra, 61 Cal.4th at p. 802, 189 Cal.Rptr.3d 208, 351 P.3d 330.)

Likewise, a reasonable jury could have found beyond a reasonable doubt Garcia and

7 Segura acted with reckless indifference to human life and they were aware their

participation in the felony involved a grave risk of death. (Id. at p. 807, 189

8 Cal.Rptr.3d 208, 351 P.3d 330.) The evidence supporting the jury's felony-murder

convictions and true findings was reasonable, credible and of solid value. (See

9 Ghobrial, supra, 5 Cal.5th at p. 277.) As such, substantial evidence supports the

convictions in count I and the special circumstance allegations under section 190.2,

10 subdivision (a)(17)(A). Accordingly, reversal of these convictions and true findings

is not required, and these claims fail.

11

12 Koplen, 2019 WL 2647356, at *5–12.

13 a. Legal Standard and Analysis

14 As with the previous claim, Petitioner must demonstrate that the state court determination

15 was an unreasonable application of the Jackson standard: “whether, after viewing the evidence in

16 the light most favorable to the prosecution, any rational trier of fact could have found the essential

17 elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319. Only if “no rational

18 trier of fact” could have found proof of guilt beyond a reasonable doubt will a petitioner be

19 entitled to habeas relief. Jackson, 443 U.S. at 324. Sufficiency claims are judged by the elements

20 defined by state law. Id. at 324, n. 16.

21 Petitioner contends that insufficient evidence supported the convictions for first degree

22 felony murder and the jury’s special circumstance true findings under Cal. Penal Code §

23 190.2(a)(17)(A). As set forth above, the appellate court delineated the requirements for a

24 conviction of felony murder and for a true finding on the special circumstance allegation. The

25 appellate court concluded that there was substantial evidence supporting the verdicts that

26 Petitioner aided and abetted in the attempted robbery, and that he was a major participant who

27 acted with reckless indifference to human life.

28 First, the court noted that the three accomplices approached Tylor and Brittany together.

23

1 One of the attackers, likely Koplen, began the engagement by asking Tylor for a cigarette. Then,

2 Koplen struck Tylor from behind. Tylor fled into the park, and Petitioner and Garcia chased after

3 him. These actions provided evidence of planning and joint participation. The fact that Petitioner

4 and Garcia chased Tylor into the park shows they intended to participate in the attempted

5 robberies. Petitioner and Garcia attempted to capture and control Tylor, which further

6 demonstrates intent to participate and rob. Koplen then left Brittany and ran into the park.

7 Shortly thereafter, she heard Tylor scream in pain. The three accomplices then returned and

8 approached Brittany. Garcia had Tylor’s blood on his shoe. The state court reasonably

9 determined that the accomplices’ actions in pursuing Tylor together, then returning together to

10 confront and intimidate Brittany, established a joint plan, an ongoing attempted robbery, and an

11 effort to intimidate a witness to effectuate an escape.

12 The appellate court also reasonably found that sufficient evidence supported the special

13 circumstance finding, specifically, that Petitioner was a “major participant” and acted with

14 “reckless disregard for human life.” As noted by the state court, Petitioner and Garcia pursued

15 Tylor and were threatening to cut him even though Tylor was unarmed and attempting to flee.

16 This was ample evidence to support a finding that Petitioner intended to either injure Tylor or

17 assist in injuring him. This was also evidence from which a jury could conclude that they knew

18 Koplen was armed with a knife and intended to use it. The court further pointed out that

19 Petitioner and Garcia’s involvement was so integral, that the murder may never have occurred if

20 not for Petitioner’s and Garcia’s actions in pursuing and capturing Tylor. The court also noted

21 that all three accomplices returned together, and neither one attempted to render aid to Tylor

22 despite his severe injury and his screams of pain. In light of the evidence, the state court

23 reasonably determined that Petitioner was a major participant, and that he acted with reckless

24 disregard for human life.

25 Petitioner contends that the inconsistent verdicts in the case render the verdicts infirm. As

26 pointed out by Respondent, the Supreme Court has stated that “[s]ufficiency-of-the evidence

27 review involves assessment by the courts of whether the evidence adduced at trial could support

28 any rational determination of guilt beyond a reasonable doubt. . . . This review should be

24

1 independent of the jury’s determination that evidence on another count was insufficient.” United

2 States v. Powell, 469 U.S. 57, 67 (1984) (emphasis added). “The Supreme Court has made it

3 clear that inconsistent verdicts may stand when one of those verdicts is a conviction and the other

4 an acquittal.” Ferrizz v. Giurbino, 432 F.3d 990, 992-93 (9th Cir. 2005). As previously discussed,

5 Petitioner fails to demonstrate that there was insufficient evidence supporting the felony murder

6 conviction and the special circumstance allegation. The inconsistent verdicts do not call into

7 question the state court’s determination. The claims should be denied.

8 3. Instructional Error – Murder Special Circumstance

9 Petitioner next claims the trial court erred in instructing the jury on the murder special

10 circumstance. Petitioner also raised this claim on direct review in the state courts. The Fifth

11 DCA denied the claim as follows:

12 X. Reversal Is Not Required For Alleged Instructional Errors.

13 Appellants raise three separate claims of instructional error. First, they argue

instructional error occurred regarding the murder special-circumstance allegations.

14 Second, Garcia and Segura contend instructional error occurred regarding voluntary

intoxication. Finally, appellants claim error occurred regarding how the jury was

15 instructed on aiding and abetting during Alex's robbery (count II).

16 Instructional errors are questions of law, which we review de novo. (People v.

Guiuan (1998) 18 Cal.4th 558, 569–570, 76 Cal.Rptr.2d 239, 957 P.2d 928.) We

17 must ascertain the relevant law and determine whether the given instruction

correctly stated it. (People v. Kelly (1992) 1 Cal.4th 495, 525–526, 3 Cal.Rptr.2d

18 677, 822 P.2d 385.) We address the three claims.

19 A. The instruction regarding the murder special-circumstance

allegations.

20

According to section 190.2, subdivision (d), a sentence of death or LWOP is

21 required for a nonkiller who, “with reckless indifference to human life and as a

major participant, aids, abets, counsels, commands, induces, solicits, requests, or

22 assists in the commission” of certain enumerated felonies which results in the death

of a person.

23

Tracking the form language of CALCRIM No. 703, the trial court instructed the jury

24 on the elements necessary to find true the felony-murder special-circumstance

allegations. For a defendant who was not the actual killer but who aided and abetted

25 murder, the prosecution had to prove either the defendant intended to kill or each of

the following occurred: (1) the defendant's participation in the crime began before

26 or during the killing; (2) the defendant was a major participant in the crime; and (3)

when the defendant participated in the crime, he acted with reckless indifference to

27 human life.

28 Appellants argue instructional error occurred. They assert section 190.2, subdivision

25

1 (d), requires a finding a defendant's participation in the underlying felony caused

the victim's death. They rely on Banks, supra, 61 Cal.4th 788, 189 Cal.Rptr.3d 208,

2 351 P.3d 330 for this interpretation. Focusing on the possibility the jury may have

based its felony-murder convictions on Alex's robbery, appellants contend the

3 instruction given under CALCRIM No. 703 was prejudicial. They maintain the jury

was permitted to misapply the escape rule (CALCRIM No. 3261) and find them

4 liable for Tylor's murder without finding their participation in Alex's robbery caused

Tylor's death.

5

Appellants' numerous arguments are unpersuasive. [Fn.30] We reject their

6 interpretation of section 190.2, subdivision (d), and we do not find instructional

error. Further, even if error occurred, any presumed error was harmless.

7

[Fn.30] Respondent contends forfeiture occurred because appellants did not

8 seek clarification or amplification of the CALCRIM No. 703 instruction.

Appellants dispute forfeiture. We need not address forfeiture because this

9 claim fails on its merits and any presumed error was harmless.

10 1. Instructional error did not occur.

11 “When considering a claim of instructional error, we view the challenged instruction

in the context of the instructions as a whole and the trial record to determine whether

12 there is a reasonable likelihood the jury applied the instruction in an impermissible

manner. [Citation.]” (People v. Houston (2012) 54 Cal.4th 1186, 1229, 144

13 Cal.Rptr.3d 716, 281 P.3d 799.) The issue is whether it is reasonably likely the jurors

understood the instruction in the manner appellants now assert. (People v. Cross

14 (2008) 45 Cal.4th 58, 67–68, 82 Cal.Rptr.3d 373, 190 P.3d 706.) We must consider

several factors, including the language of the disputed instruction, the trial record,

15 and the arguments of counsel. (People v. Nem (2003) 114 Cal.App.4th 160, 165, 7

Cal.Rptr.3d 478.)

16

As an initial matter, we reject appellants' contentions that section 190.2, subdivision

17 (d), requires a nonkiller's participation in an underlying felony to cause the victim's

death. To the contrary, Banks makes clear a nonkiller “must be aware of and

18 willingly involved in the violent manner in which the particular offense is

committed, demonstrating reckless indifference to the significant risk of death his

19 or her actions create.” (Banks, supra, 61 Cal.4th at p. 801, 189 Cal.Rptr.3d 208, 351

P.3d 330.) Banks does not support appellants' statutory interpretation. Instead, it is

20 major participation in the committed felony, combined with reckless indifference to

human life, which satisfies the constitutional requirement and the language of

21 section 190.2, subdivision (d). (Banks, supra, 61 Cal.4th at p. 804, 189 Cal.Rptr.3d

208, 351 P.3d 330.)

22

This record establishes no instructional error. The jury was correctly informed a

23 defendant is liable for felony murder if he intended to commit robbery (or its

attempt) and he caused the death of a person while committing robbery (or its

24 attempt). The jurors were instructed about the general requirements of liability for

aiding and abetting. They were instructed an accomplice could be liable for felony

25 murder if the defendant intended to aid a perpetrator in robbery (or its attempt), the

defendant provided such aid, and, during the robbery (or its attempt), the perpetrator

26 caused the death of another person. With CALCRIM No. 703, the jurors learned the

special circumstance allegations applied for a nonkiller who participated in the

27 crime before or during the killing, and who acted as a major participant and with

reckless indifference to human life.

28

26

1 During closing argument, the prosecutor repeatedly asserted that felony-murder

liability was based on the attempted robberies of Tylor and Brittany. The prosecutor

2 emphasized the special circumstance allegations under section 190.2 applied

because Tylor's murder occurred during an attempted robbery (counts III and IV).

3 At no time did the prosecutor argue felony murder or the special circumstance

allegations were based on Alex's robbery (count II).

4

Based on the court's instructions and the prosecutor's arguments, no reasonable

5 likelihood exists that the jury applied CALCRIM No. 703 in an impermissible

manner. (See People v. Houston, supra, 54 Cal.4th at p. 1229, 144 Cal.Rptr.3d 716,

6 281 P.3d 799.) To the contrary, the jurors were instructed a nonkiller must act with

reckless indifference to human life and as a major participant during an attempted

7 robbery which resulted in the death of a person. It is not reasonably likely the jurors

understood the instruction in the manner appellants now suggest. (See People v.

8 Cross, supra, 45 Cal.4th at pp. 67–68, 82 Cal.Rptr.3d 373, 190 P.3d 706.) The jury

was properly instructed on the requirements of section 190.2, subdivision (d). As

9 such, instructional error did not occur, and this claim fails. In any event, even if error

occurred, any presumed error was harmless.

10

2. Any presumed instructional error was harmless.

11

Garcia and Segura argue the murder special-circumstance instruction given under

12 CALCRIM No. 703 was prejudicial under Chapman. They contend this instruction

did not require the jury to find Tylor's death resulted from their participation in

13 Alex's robbery (count II). These contentions are meritless.

14 The jury based the murder special-circumstance allegations on the attempted

robbery of Tylor or Brittany (counts III and IV, respectively). As such, we reject

15 Segura's assertion the jury received a “‘legally inadequate’” theory, requiring

reversal of the murder special-circumstance findings under People v. Guiton, supra,

16 4 Cal.4th 1116, 17 Cal.Rptr.2d 365, 847 P.2d 45. The jury did not rely on a legally

or factually unsupported theory of liability either for Tylor's felony murder or for

17 the special circumstance findings. It is beyond any reasonable doubt that Garcia and

Segura acted with “reckless indifference to human life and [were] major

18 participant[s]” while aiding and abetting in the attempted robberies of Tylor and

Brittany. Thus, even if instructional error occurred under CALCRIM No. 703, any

19 presumed error was harmless. Accordingly, prejudice is not present, and this claim

fails.

20

21 Koplen, 2019 WL 2647356, at *36-38.

22 a. Legal Standard

23 As an initial matter, the Court notes that a claim that a jury instruction violated state law is

24 not cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). To

25 obtain federal collateral relief for errors in the jury charge, a petitioner must show that the ailing

26 instruction by itself so infected the entire trial that the resulting conviction violates due process.

27 Id. at 72; Cupp v. Naughten, 414 U.S. 141, 147 (1973); see also Donnelly v. DeChristoforo, 416

28 U.S. 637, 643 (1974) (“‘[I]t must be established not merely that the instruction is undesirable,

27

1 erroneous or even “universally condemned,” but that it violated some [constitutional right].’”).

2 The instruction may not be judged in artificial isolation, but must be considered in the context of

3 the instructions as a whole and the trial record. See Estelle, 502 U.S. at 72. In other words, the

4 court must evaluate jury instructions in the context of the overall charge to the jury as a

5 component of the entire trial process. United States v. Frady, 456 U.S. 152, 169 (1982) (citing

6 Henderson v. Kibbe, 431 U.S. 145, 154 (1977)); Prantil v. California, 843 F.2d 314, 317 (9th Cir.

7 1988); see, e.g., Middleton v. McNeil, 541 U.S. 433, 434–35 (2004) (per curiam) (no reasonable

8 likelihood that jury misled by single contrary instruction on imperfect self-defense defining

9 “imminent peril” where three other instructions correctly stated the law). Moreover, the

10 petitioner’s “burden is especially heavy [where] no erroneous instruction was given . . . . An

11 omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the

12 law.” Henderson, 431 U.S. at 155.

13 A habeas petitioner is also not entitled to relief unless the instructional error “‘had

14 substantial and injurious effect or influence in determining the jury's verdict.’” Brecht v.

15 Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776

16 (1946)). In other words, state prisoners seeking federal habeas relief may obtain plenary review

17 of constitutional claims of trial error, but are not entitled to habeas relief unless the error resulted

18 in “actual prejudice.” Id. (citation omitted); see Calderon v. Coleman, 525 U.S. 141, 146–47

19 (1998).

20 b. Analysis

21 The state court determined that the special circumstance instruction given to the jury

22 comported with California law. Petitioner contends that the state court’s reasoning was

23 erroneous. Federal habeas relief is unavailable for Petitioner’s claim because a federal court is

24 bound by the state court’s determination of state law. Bradshaw v. Richey, 546 U.S. 74, 76

25 (2005) (per curiam).

26 Moreover, the state court reasonably found that any possible error was harmless.

27 Petitioner contends that the jury was not instructed that it needed to find that the victim’s death

28 resulted from his participation in Alex’s robbery. Petitioner’s argument is meritless, for as the

28

1 state court repeatedly stated, the jury based the murder special circumstance allegation on the

2 attempted robbery of Tylor or Brittany. This was evident in the instructions given and in the

3 prosecutor’s closing arguments. Thus, the state court reasonably found that any possible error in

4 the instructions given were harmless. The claim should be rejected.

5 4. Instructional Error – Defense Instructions

6 Petitioner contends that the trial court erred by declining the defense’s request to instruct

7 the jury on the “escape rule,” “continuous transaction rule,” and the requirement of a “logical

8 connection” between the underlying felony and the homicide. Petitioner raised this claim on

9 direct review, and it was denied by the Fifth DCA as follows:

10 IV. The Trial Court Did Not Err In Failing To Provide Additional Felony-

Murder Instructions And Any Presumed Error Is Harmless.

11

Appellants raise two separate but related claims of instructional error regarding

12 felony murder. They assert the trial court prejudicially failed to instruct on both the

“continuous transaction” doctrine and the requirement for a “logical connection”

13 between the underlying felony and the killing. They seek reversal of their respective

murder convictions in count I, along with the true findings for the special

14 circumstance allegations.

15 A. Background.

16 This dispute centers around two instructions, former CALCRIM No. 549 and an

optional instruction appearing in the bench notes of CALCRIM No. 540A.

17

1. The relevant instructions.

18

Former CALCRIM No. 549 was created in 2006. In relevant part, this former

19 instruction stated a defendant is guilty of felony murder when the underlying felony

and the act causing the death “‘were part of one continuous transaction.’” (Revoked

20 CALCRIM No. 549, as quoted in People v. Wilkins (2013) 56 Cal.4th 333, 349, 153

Cal.Rptr.3d 519, 295 P.3d 903 (Wilkins).) This instruction provided factors to

21 consider, such as when and where the fatal act and the underlying felony occurred.

(Wilkins, supra, 56 Cal.4th at p. 349, 153 Cal.Rptr.3d 519, 295 P.3d 903.) However,

22 in 2013 and before this matter went to trial, the CALCRIM committee revoked

former CALCRIM No. 549 and it placed an optional instruction in the bench notes

23 of CALCRIM No. 540A. The optional instruction states:

24 “There is no sua sponte duty to clarify the logical nexus between the felony

and the homicidal act. If an issue about the logical nexus requirement arises,

25 the court may give the following language: [¶] There must be a logical

connection between the cause of death and the [underlying felony]. The

26 connection between the cause of death and the [underlying felony] must

involve more than just their occurrence at the same time and place.” (Judicial

27 Council of Cal., Crim. Jury Instns. (2019) Bench Notes to CALCRIM No.

540A, vol. 1, pp. 263–264.)

28

29

1 In Cavitt, our high court noted only a “‘few’” cases raise a genuine issue as to the

existence of a logical nexus between the felony and the homicide. (Cavitt, supra, 33

2 Cal.4th at p. 204, fn. 5, 14 Cal.Rptr.3d 281, 91 P.3d 222.) The Cavitt court provided

an example of when a logical nexus would not exist: a burglar who happens to spy

3 a lifelong enemy through the window of the victim's house and fires a fatal shot may

have committed a killing while a robbery and burglary were taking place, but the

4 killing did not occur “in the commission” of those crimes. (Id. at p. 203, 14

Cal.Rptr.3d 281, 91 P.3d 222.)

5

2. The jury instruction conference in this matter.

6

At the jury instruction conference in this matter, Koplen's trial counsel objected to

7 instruction on the “escape rule” [Fn.19] in the context of attempted robbery of Tylor

and Brittany. Koplen's counsel requested jury instruction on the requirement of a

8 “logical connection” between the underlying felony and the killing. According to

Koplen's counsel, it was possible the jury could believe Tylor's murder was not

9 connected with an attempted robbery. The trial court declined to deviate from the

standard instructions.

10

[Fn.19] CALCRIM No. 3261 sets forth the escape rule. In relevant part, a

11 robbery or attempted robbery “continues until the perpetrator[s] (has/have)

actually reached a place of temporary safety.” This instruction provides a

12 jury with examples of reaching such safety, such as when (1) a perpetrator

has “successfully escaped from the scene;” (2) is “no longer being chased;”

13 (3) has “unchallenged possession” of the property; and (4) is “no longer in

continuous physical control of the person who was the target of the robbery.”

14

During the jury conference, the parties discussed the logical nexus instruction and

15 the escape rule in the context of attempted robbery involving Tylor and Brittany. At

no point during this discussion did the prosecutor suggest the alleged felony murder

16 was based on Alex's robbery. In fact, Koplen's trial counsel acknowledged that

felony-murder liability in this matter was based on the attempted robbery of Tylor

17 or Brittany.

18 B. Standard of review.

19 If requested, a trial court should give a legally correct instruction if it is supported

by substantial evidence. (Wilkins, supra, 56 Cal.4th at p. 347, 153 Cal.Rptr.3d 519,

20 295 P.3d 903.) In criminal cases, a court must instruct on the general principles of

law relevant to the issues raised by the evidence even in the absence of a request.

21 (People v. Diaz (2015) 60 Cal.4th 1176, 1189, 185 Cal.Rptr.3d 431, 345 P.3d 62.)

These are the principles “‘closely and openly connected with the facts before the

22 court, and which are necessary for the jury's understanding of the case.’ [Citations.]”

(Ibid.) We review de novo a claim a trial court failed to give a required jury

23 instruction. (People v. Waidla (2000) 22 Cal.4th 690, 733, 94 Cal.Rptr.2d 396, 996

P.2d 46.)

24

C. Analysis.

25

Appellants claim the trial court erred when it failed to provide the requested optional

26 instruction appearing in the bench notes of CALCRIM No. 540A. Garcia and Segura

further assert the court should have instructed the jury with former CALCRIM No.

27 549 on the “continuous transaction” doctrine. They contend the jurors received a

“misleading impression” a continuous transaction was not necessary so long as

28 Tylor's killing occurred before they reached a place of temporary safety.

30

1 Koplen acknowledges CALCRIM No. 549 was revoked prior to trial. He contends,

however, the CALCRIM committee deleted an “essential element” necessary to find

2 felony-murder liability. He argues the “one continuous transaction” is an

“authoritative interpretation” of the statutory requirements for felony murder, which

3 should have been given to the jury. [Fn.20] He claims a failure to instruct on a

“causal relationship” made a “major difference” in this case. He also asserts error

4 occurred because the court instructed on the escape rule without instruction on the

“continuous transaction” doctrine.

5

[Fn.20] Our Supreme Court has long recognized the “continuous

6 transaction” doctrine. (See, e.g., People v. Chavez (1951) 37 Cal.2d 656,

670, 234 P.2d 632.) Generally, felony murder “does not require proof of a

7 strict causal or temporal relationship between the felony and the killing.

[Citation.] Rather, a killing has been ‘committed in the perpetration of’ the

8 underlying felony within the meaning of section 189 ‘if the killing and the

felony are parts of one continuous transaction.’ [Citations.]” (People v.

9 Brooks (2017) 3 Cal.5th 1, 61–62, 219 Cal.Rptr.3d 331, 396 P.3d 480.)

10 We find appellants' numerous assertions unpersuasive. The court did not err in

failing to provide additional instruction. In any event, even if instructional error

11 occurred, any presumed error was harmless.

12 1. Instructional error did not occur.

13 Our high court has noted only a few cases raise a genuine issue as to the existence

of a logical nexus between the underlying felony and the homicide. (Cavitt, supra,

14 33 Cal.4th at p. 204, fn. 5, 14 Cal.Rptr.3d 281, 91 P.3d 222.) The facts surrounding

Tylor's murder, however, did not present such an issue. The homicidal act causing

15 Tylor's death was not like the hypothetical burglar in Cavitt who happens to spy a

lifelong enemy through the window of the house and fires a fatal shot. (Id. at p. 200,

16 14 Cal.Rptr.3d 281, 91 P.3d 222.) To the contrary, this homicide was not a mere

coincidence of time and place, and this murder was not independent of Tylor's or

17 Brittany's attempted robberies.

18 The jury received proper instruction on the necessary elements for felony murder.

The jury was informed that Tylor's homicide had to occur during the commission of

19 a robbery or attempted robbery. (§ 189, subd. (a).) According to the prosecutor, this

killing occurred during the attempted robbery of Tylor or Brittany. The evidence

20 conclusively established that Tylor's death was logically connected with these

charged crimes. Thus, the trial court was not required to provide additional felony-

21 murder instruction. (See Wilkins, supra, 56 Cal.4th at p. 347, 153 Cal.Rptr.3d 519,

295 P.3d 903; Cavitt, supra, 33 Cal.4th at p. 203, 14 Cal.Rptr.3d 281, 91 P.3d 222.)

22

We reject Segura's assertion the jury received a “legally erroneous” theory of guilt

23 regarding felony murder, requiring reversal. Based on the special circumstance

allegations and the evidence, we can declare beyond a reasonable doubt the jury

24 based its felony-murder convictions on a legally and factually valid theory. (See,

e.g., People v. Chun (2009) 45 Cal.4th 1172, 1204–1205, 91 Cal.Rptr.3d 106, 203

25 P.3d 425 [applying J. Scalia's test to look at “other aspects of the verdict or the

evidence” to resolve a claim involving instructional error for felony murder].) The

26 jury was not misled regarding the proper application of felony murder in this matter.

27 Appellants cite People v. Sakarias (2000) 22 Cal.4th 596, 94 Cal.Rptr.2d 17, 995

P.2d 152 (Sakarias) for the general proposition a “continuous transaction” can end

28 before a perpetrator reaches a place of temporary safety. They argue a jury must

31

1 always receive instruction on the “continuous transaction” doctrine and the trial

court improperly removed that issue from the jury's consideration. These arguments

2 are without merit.

3 In Sakarias, two burglars entered a residence and gathered property. They assaulted

and killed the homeowner when she entered the residence. (Sakarias, supra, 22

4 Cal.4th at p. 626, 94 Cal.Rptr.2d 17, 995 P.2d 152.) During deliberations, the jury

asked the trial court whether a burglary continues until the burglars leave the

5 structure. Over a defense objection, the court informed the jurors that the homicide

and the burglary were part of one continuous transaction if they determined burglary

6 had occurred. (Id. at p. 623, 94 Cal.Rptr.2d 17, 995 P.2d 152.) The Supreme Court

found error because the trial court had “relieved the jury of its obligation to

7 determine whether all the elements of first degree murder and the burglary-murder

special circumstance were proven beyond a reasonable doubt.” (Id. at pp. 624–625,

8 94 Cal.Rptr.2d 17, 995 P.2d 152.)

9 The Sakarias court, however, found the error harmless. It noted in some

circumstances a burglary can end even if the perpetrator has not left the structure.

10 For example, the perpetrator “abandons his original larcenous intent but resolves to

stay for a nonfelonious purpose.” (Sakarias, supra, 22 Cal.4th at p. 625, 94

11 Cal.Rptr.2d 17, 995 P.2d 152.) The evidence in Sakarias, however, did not establish

any “abandonment of intent or any similar interruption.” (Ibid.) The judgment was

12 affirmed. (Id. at p. 650, 94 Cal.Rptr.2d 17, 995 P.2d 152.)

13 Sakarias does not establish instructional error in the present matter. Unlike in

Sakarias, the trial court did not remove an issue from the jury's consideration.

14 (Sakarias, supra, 22 Cal.4th at p. 624, 94 Cal.Rptr.2d 17, 995 P.2d 152.) To the

contrary, the court informed the jurors that appellants were charged with the special

15 circumstance of murder committed “while engaged” in the commission of robbery

or its attempt. (Italics added.) The prosecutor asserted felony murder occurred

16 during, and only during, the attempted robbery of Tylor or Brittany. Based on the

jury's true findings, it is apparent the jury decided beyond a reasonable doubt that

17 Tylor's homicide was logically connected with his or Brittany's attempted robbery.

Sakarias is distinguishable and does not mandate reversal of this matter.

18

Finally, Koplen contends the CALCRIM committee deleted an “essential element”

19 necessary to find felony-murder liability. He notes the Supreme Court has called the

“continuous transaction” doctrine an “element” of felony murder. (Wilkins, supra,

20 56 Cal.4th at p. 349, 153 Cal.Rptr.3d 519, 295 P.3d 903.) We find no error in the

CALCRIM instructions.

21

The CALCRIM instructions make it clear a homicide must occur in the commission

22 of an underlying felony. (See CALCRIM Nos. 540A and 540B.) Based on the

optional instruction appearing in CALCRIM No. 540A, “[i]f an issue about the

23 logical nexus requirement arises,” a trial court may instruct on the need for a logical

connection between the cause of death and the underlying felony. (Bench notes to

24 CALCRIM No. 540A, supra, at pp. 263–264.) As our Supreme Court makes

abundantly clear, however, it is rare when a logical nexus does not exist between

25 the felony and the homicide. (Cavitt, supra, 33 Cal.4th at p. 204, fn. 5, 14

Cal.Rptr.3d 281, 91 P.3d 222.) We discern no error in the current wording of the

26 CALCRIM instructions regarding felony-murder liability.

27 Based on this record, the jury received the necessary and proper instructions to

determine whether Tylor's homicide was “committed in the perpetration of, or

28 attempt to perpetrate,” the underlying felony. (§ 189, subd. (a).) The jury was also

32

1 properly instructed on the elements necessary to find true the murder special-

circumstance allegations (§ 190.2, subd. (a)(17)(A)). The trial court did not err in

2 refusing to instruct the jury on the optional “logical connection” instruction

appearing in the bench notes of CALCRIM No. 540A. The court also did not err in

3 failing to provide instruction under former CALCRIM No. 549. These principles of

law were neither supported by substantial evidence nor were they necessary for the

4 jury's understanding of the case. (See People v. Diaz, supra, 60 Cal.4th at p. 1189,

185 Cal.Rptr.3d 431, 345 P.3d 62; Wilkins, supra, 56 Cal.4th at p. 347, 153

5 Cal.Rptr.3d 519, 295 P.3d 903; Cavitt, supra, 33 Cal.4th at p. 203, 14 Cal.Rptr.3d

281, 91 P.3d 222.) Accordingly, appellants' various arguments are without merit,

6 and this claim fails. In any event, even if instructional error occurred, we also

determine any presumed error was harmless.

7

2. Any presumed error was harmless.

8

Appellants contend the court's alleged instructional errors were prejudicial under

9 Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705

(Chapman). Garcia and Segura argue it “appears” the jury based its first degree

10 murder verdicts on a theory Alex's robbery (count II) was “continuing” when Tylor

was murdered. They assert it is possible the jury would not have found the killing

11 linked to Alex's robbery if additional instructions had been provided.

12 These arguments are meritless. This record clearly establishes that any presumed

error was harmless.

13

A federal constitutional error is harmless under Chapman, supra, 386 U.S. 18, 87

14 S.Ct. 824, when the reviewing court determines beyond a reasonable doubt the error

did not contribute to the verdict. (People v. Aranda (2012) 55 Cal.4th 342, 367, 145

15 Cal.Rptr.3d 855, 283 P.3d 632.) An error did not contribute to the verdict when the

record reveals the error was unimportant in relation to everything else the jury

16 considered on the issue in question. (Yates v. Evatt (1991) 500 U.S. 391, 403, 111

S.Ct. 1884, 114 L.Ed.2d 432, disapproved on other grounds in Estelle v. McGuire

17 (1991) 502 U.S. 62, 72, fn. 4, 112 S.Ct. 475, 116 L.Ed.2d 385.) The inquiry is

whether the guilty verdict rendered in this trial was “surely unattributable to the

18 error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d

182.)

19

We reject Garcia's and Segura's repeated assertions that prejudicial instructional

20 error occurred because the jury may have based felony murder on Alex's robbery.

To the contrary, it is beyond any reasonable doubt the jury based the felony-murder

21 convictions on the attempted robbery of Tylor or Brittany (counts III and IV,

respectively). Further, the evidence overwhelmingly established that appellants

22 were jointly engaged at all times throughout the attempted robberies, and Tylor's

killing was part of one continuous transaction during those underlying felonies. His

23 murder was more than a mere coincidence of time and place. Instead, Tylor's death

was related to the attempted robberies and a logical nexus existed. As such, the

24 requisite temporal relationship existed between the underlying felony and this

homicidal act. (Cavitt, supra, 33 Cal.4th at p. 196, 14 Cal.Rptr.3d 281, 91 P.3d 222.)

25 Nothing suggests Tylor's death was the result of a homicidal act completely

unrelated to attempted robbery. Thus, felony murder applied to any nonkiller in this

26 matter. (Ibid.)

27 Based on this record, any presumed error by the trial court was harmless beyond a

reasonable doubt. The court's alleged errors in failing to provide further instruction

28 on felony murder were unimportant in relation to everything else the jury considered

33

1 regarding guilt. (See Yates v. Evatt, supra, 500 U.S. at p. 403, 111 S.Ct. 1884.) The

verdicts rendered in this trial were surely unattributable to the claimed instructional

2 omissions. (See Sullivan v. Louisiana, supra, 508 U.S. at p. 279, 113 S.Ct. 2078.)

Accordingly, prejudice is not present, and this claim fails.

3

4 Koplen, 2019 WL 2647356, at *13–18.

5 a. Legal Standard

6 The same standard set forth in the previous claim of instructional error applies here. To

7 merit relief, Petitioner must show that the ailing instruction by itself so infected the entire trial

8 that the resulting conviction violates due process. Cupp, 414 U.S. at 147. The instruction must be

9 considered in the context of the instructions as a whole and the trial record, see Estelle, 502 U.S.

10 at 72, and the petitioner’s “burden is especially heavy [where, as here,] no erroneous instruction

11 was given.” Henderson, 431 U.S. at 155. Further, Petitioner is not entitled to relief unless the

12 instructional error “‘had substantial and injurious effect or influence in determining the jury's

13 verdict.’” Brecht, 507 U.S. at 637.

14 b. Analysis

15 In rejecting Petitioner’s claims, the state court determined that the instructions given were

16 correct under state law. Thus, Respondent is correct that Petitioner’s challenge does not give rise

17 to a federal question cognizable on federal habeas review. Bradshaw v. Richey, 546 U.S. 74, 76

18 (2005) (“We have repeatedly held that a state court’s interpretation of state law, including one

19 announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas

20 corpus”).

21 Further, the state court’s rejection of the claim was not objectively unreasonable. The

22 state court reasonably determined that there was no instructional error. Petitioner argued that the

23 trial court failed to instruct on a logical nexus required between the underlying felony and the

24 homicide. However, the facts of the case did not present an issue concerning the connection

25 between the robbery of Tylor and Brittany and the homicide of Tylor. The homicide was not

26 independent of the robbery. Moreover, the jury was instructed that to find Petitioner guilty of

27 felony murder, it had to find that the murder occurred during the robbery or attempted robbery.

28 Cal. Penal Code § 189(a) (emphasis added). Likewise, the jury was informed that to find

34

1 Petitioner guilty of the special circumstance, it had to find that the murder was “committed ‘while

2 engaged’ in the commission of robbery or its attempt.” Koplen, 2019 WL 2647356, at *13–18.

3 The prosecutor argued only that the murder occurred during the robbery or attempted robbery of

4 Tylor or Brittany. Accordingly, the state court reasonably found that additional instruction on the

5 issue of “logical nexus” was unnecessary.

6 The state court also found that any possible error was not prejudicial. Petitioner fails to

7 demonstrate that this determination was objectively unreasonable. The court noted that it was

8 beyond any reasonable doubt that the jury based the felony murder convictions on the attempted

9 robbery of Tylor or Brittany. The murder and attempted robbery occurred during one continuous

10 transaction in which all perpetrators were actively involved. There was simply no evidence from

11 which to conclude that the homicide was a coincidence of time and place completely unrelated to

12 the attempted robbery. Thus, even if the jury had been given the instructions Petitioner requested,

13 the result would not have been different. Petitioner fails to show that no “fairminded jurist” could

14 agree with the state court’s reasoning. The claim should be denied.

15 5. Prosecutorial Misconduct – Misstatement of Law

16 Petitioner next claims that the prosecutor committed misconduct by misstating the law,

17 specifically, by referencing a “course of conduct” rather than “continuous transaction.” (Doc. 1 at

18 54-56.) In the last reasoned state court decision, the Fifth DCA denied the claim as follows:

19 VII. Prosecutorial Misconduct Did Not Occur.

20 Appellants raise three separate claims of prosecutorial misconduct centered around

closing argument. First, they contend the prosecutor misstated law. Second, Garcia

21 and Segura argue the prosecutor misled the jury regarding certain evidence. Finally,

appellants claim the prosecutor improperly appealed to the jurors' emotions.

22

A. Standard of review.

23

A prosecutor's misconduct violates the federal Constitution and requires reversal

24 when it infects the trial with such unfairness as to deny due process. (People v. Tully

(2012) 54 Cal.4th 952, 1009, 145 Cal.Rptr.3d 146, 282 P.3d 173.) Under state law,

25 a prosecutor's conduct not rendering a criminal trial fundamentally unfair is still

misconduct if it involves the use of deceptive or reprehensible methods in attempting

26 to persuade the trier of fact. (Id. at pp. 1009–1010, 145 Cal.Rptr.3d 146, 282 P.3d

173.)

27 /////

/////

28 /////

35

1 B. Analysis.

2 We analyze and reject each of appellants' three claims of misconduct.

3 1. The prosecutor's alleged misstatement of law.

4 During closing argument, the prosecutor used the term “course of conduct” when

describing some of the criminal events. Appellants claim this was a misstatement of

5 law.

6 a. Background facts for this claim.

7 This issue started during the jury instruction conference when the prosecutor used

the terms “course of conduct” and “single course of conduct” when describing

8 felony murder. At that hearing, Koplen's trial counsel objected to the prosecutor's

terminology, complaining the term “‘continuous transaction’” applied to felony

9 murder and the prosecutor's terms were incorrect. The trial court did not comment.

10 During her closing argument, the prosecutor used the term “course of conduct” on

at least two occasions. First, when discussing the attempted robbery of Tylor and

11 Brittany the following exchange occurred:

12 “[THE PROSECUTOR]: If you only find that Brittany was the victim of the

attempted robbery and you find that it's one course of conduct and then

13 [appellants] haven't reached a place of temporary safety—

14 “[COUNSEL FOR KOPLEN]: Object to ‘course of conduct.’ Misstating the

law.

15

“THE COURT: It's overruled. [¶] Ladies and Gentlemen, words and phrases

16 used during this trial that have legal meanings will be defined for you via

instructions. Words not defined in the instructions are to be applied using

17 their everyday, ordinary meanings. [¶] Go ahead, please.

18 “[THE PROSECUTOR]: Can I have my last comment read back, please. [¶]

(Record read.) [¶] —and that Tylor is killed in the park during that course of

19 conduct and they haven't reached a place of temporary safety, then it's felony

murder. Tylor does not have to be the victim of the attempted robbery, but I

20 would submit to you that he is the victim of his own attempted robbery.”

(Italics added.)

21

The prosecutor later discussed the escape rule. Regarding counts III and IV

22 (attempted robbery of Tylor and Brittany, respectively), the prosecutor stated she

had to prove “that a murder occurred while committing an attempted robbery.” She

23 then said the following:

24 “[THE PROSECUTOR]: The crime of robbery or attempted robbery

continues until the perpetrators have actually reached a place of temporary

25 safety. The perpetrators have reached a place of temporary safety if they

have successfully escaped from the scene and they are no longer being

26 chased, they have unchallenged possession of the property, and they are no

longer in continuous control of the person who was the target of the robbery.

27 They have not reached a place of temporary safety until they're caught,

because they never leave the park.

28

36

1 “And the timing of the two incidents are so close in time—they're within six

minutes of each other—that they have never reached a place of temporary

2 safety because they're being chased—at least [Segura] is being chased down

[by a police officer]. You remember that. We saw that video over and over

3 again; right?

4 “So they're being chased, and we know that's after the 911 calls for both

incidents because the first call comes in at 8:24, which is the incident

5 involving [Alex]. Remember that? 8:24. And the second 911 call comes in

[at 8:30]. That's six minutes apart. It's one continuous course of conduct.

6 They have never left the park. They have just gone to a different area in the

park, and they're engaged in criminal activity. They're still engaged in

7 criminal activity. And from the first and second call to 911—even though

they're different incidents—is when police are being dispatched ....” (Italics

8 added.)

9 After the prosecutor concluded her argument, counsel for Koplen objected this was

a misstatement of law because the term “continuous transaction” applied to felony

10 murder while a “course of conduct” was something different. The trial court

responded it had not prohibited this phrase. According to the court, the jurors would

11 have “no reason to believe anything other than what the words dictate.”

12 b. The prosecutor did not misstate the law.

13 Appellants claim that, following the trial court's alleged error in not instructing on

the “continuous transaction” doctrine (former CALCRIM No. 549), the prosecutor's

14 comments misled the jurors and misstated the law. They assert the jury could have

erroneously believed Alex's robbery (count II) was a permissible basis for felony

15 murder because it was still ongoing when Tylor was killed. We find no misconduct

and reject this claim.

16

A prosecutor commits misconduct if he or she misstates the applicable law. (People

17 v. Boyette (2002) 29 Cal.4th 381, 435, 127 Cal.Rptr.2d 544, 58 P.3d 391.) To prevail

on a claim of prosecutorial misconduct based on remarks to the jury, the defendant

18 must show a reasonable likelihood the jury understood or applied the disputed

comments in an improper or erroneous manner. (People v. Centeno (2014) 60

19 Cal.4th 659, 667, 180 Cal.Rptr.3d 649, 338 P.3d 938 (Centeno).) In making this

showing, the defendant should examine the prosecutor's entire argument and the jury

20 instructions. (Ibid.)

21 Here, the prosecutor's initial remarks were clearly about the attempted robbery of

Tylor and Brittany. The prosecutor explained felony murder occurred because Tylor

22 was killed before Brittany's attempted robbery ended. The second disputed remark

occurred when the prosecutor discussed the escape rule. The prosecutor reminded

23 the jury she had to prove murder occurred while appellants were committing an

attempted robbery.

24

The prosecutor did not use the phrases “course of conduct” or “continuous course

25 of conduct” to link Alex's robbery (count II) to felony murder. Instead, she

emphasized appellants never reached a place of temporary safety. As asserted by the

26 prosecutor, although the two crimes were different incidents, appellants never left

the park. The prosecutor did not misstate the law. [Fn.25]

27

[Fn.25] Because the prosecutor did not commit misconduct, we also reject

28 appellants' assertions the trial court “improperly endorsed” the prosecutor's

37

1 alleged misstatement of the law.

2 In a footnote in his opening brief, Garcia concedes it appears the prosecutor did not

use the escape rule as a basis for felony murder. He argues, however, the prosecutor's

3 comments were confusing. In his reply brief, Garcia asserts the prosecutor's

erroneous terminology (“course of conduct”) coupled with the escape rule misled

4 jurors to believe they could rely on Alex's robbery to support felony murder. We

disagree.

5

The prosecutor made it abundantly clear felony murder was based on the attempted

6 robberies of Tylor or Brittany. It is not remotely possible a reasonable juror would

have believed the felony murder charge was linked to Alex's robbery (count II) or

7 the prosecutor was making such an argument. It is not reasonably likely the jury

understood or applied the disputed comments in an improper or erroneous manner.

8 (See Centeno, supra, 60 Cal.4th at p. 667, 180 Cal.Rptr.3d 649, 338 P.3d 938.)

9 Based on this record, prosecutorial misconduct did not occur. The prosecutor did

not misstate the law. In any event, appellants have not shown a reasonable likelihood

10 the jury understood or applied the disputed comments in an improper or erroneous

manner. (See Centeno, supra, 60 Cal.4th at p. 667, 180 Cal.Rptr.3d 649, 338 P.3d

11 938.) Accordingly, appellants' arguments are without merit, and this claim fails.

12 Koplen, 2019 WL 2647356, at *21–24.

13 a. Legal Standard

14 A petitioner is entitled to habeas corpus relief if the prosecutor’s misconduct “so infected

15 the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v.

16 DeChristoforo, 416 U.S. 637, 643 (1974). To constitute a due process violation, the prosecutorial

17 misconduct must be “of sufficient significance to result in the denial of the defendant’s right to a

18 fair trial.” Greer v. Miller, 485 U.S. 756, 765 (1987) (quoting United States v. Bagley, 473 U.S.

19 667 (1985)). Any claim of prosecutorial misconduct must be reviewed within the context of the

20 entire trial. Id. at 765-66; United States v. Weitzenhoff, 35 F.3d 1275, 1291 (9th Cir. 1994). The

21 Court must keep in mind that “[t]he touchstone of due process analysis in cases of alleged

22 prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor” and “the

23 aim of due process is not punishment of society for the misdeeds of the prosecutor but avoidance

24 of an unfair trial to the accused.” Smith v. Phillips, 455 U.S. 209, 219 (1982). If prosecutorial

25 misconduct is established, and it was constitutional error, the error must be evaluated pursuant to

26 the harmless error test set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993). See Thompson,

27 74 F.3d at 1577 (Only if constitutional error is established “would we have to decide whether the

28 constitutional error was harmless.”).

38

1 b. Analysis

2 Petitioner contends the prosecutor committed misconduct by using the terms “course of

3 conduct” rather than “continuous transaction” when describing felony murder. In rejecting the

4 claim, the state court reasonably determined that the prosecutor did not misstate the law. The

5 state court noted that the prosecutor did not use the terminology to describe felony murder. In the

6 first instance, the prosecutor used “course of conduct” when discussing the facts of the attempted

7 robbery of Tylor and Brittany, not felony murder. In the second instance, the prosecutor used the

8 terminology in discussing the escape rule. The state court noted that the prosecutor never used

9 the terms to link Alex’s robbery to felony murder. The court reasonably determined that the jury

10 applied the terms in a legally correct manner.

11 6. Instructional Error – Aiding and Abetting

12 Petitioner next alleges the trial court erred in instructing the jury with CALCRIM No.

13 1603, which articulated the “getaway driver” theory of robbery, by erroneously eliminating the

14 actus reus requirement for derivative liability as an aider and abettor of robbery. (Doc. 1 at 56-

15 59.) Petitioner raised this claim on direct review, and it was denied by the appellate court as

16 follows:

17 X. Reversal Is Not Required For Alleged Instructional Errors.

18 Appellants raise three separate claims of instructional error. First, they argue

instructional error occurred regarding the murder special-circumstance allegations.

19 Second, Garcia and Segura contend instructional error occurred regarding voluntary

intoxication. Finally, appellants claim error occurred regarding how the jury was

20 instructed on aiding and abetting during Alex's robbery (count II).

21 Instructional errors are questions of law, which we review de novo. (People v.

Guiuan (1998) 18 Cal.4th 558, 569–570, 76 Cal.Rptr.2d 239, 957 P.2d 928.) We

22 must ascertain the relevant law and determine whether the given instruction

correctly stated it. (People v. Kelly (1992) 1 Cal.4th 495, 525–526, 3 Cal.Rptr.2d

23 677, 822 P.2d 385.) We address the three claims.

24 ....

25 C. Instruction regarding aiding and abetting during Alex's robbery.

26 In the final claim of instructional error, appellants argue the jury was improperly

instructed regarding aiding and abetting during Alex's robbery (count II). Tracking

27 the form language of CALCRIM No. 1603, the trial court instructed that, to be guilty

of robbery as an aider and abettor, appellants must have “intended to aid before or

28 while the perpetrator carried away the property to a place of temporary safety. A

39

1 perpetrator has reached a place of temporary safety with the property if he or she

has successfully escaped from the scene, is no longer being pursued, and has

2 unchallenged possession of the property.” [Fn.33]

3 [Fn.33] For aider and abettor liability in a robbery, “a getaway driver must

form the intent to facilitate or encourage commission of the robbery prior to

4 or during the carrying away of the loot to a place of temporary safety.”

(Cooper, supra, 53 Cal.3d at p. 1165, 282 Cal.Rptr. 450, 811 P.2d 742, fn.

5 & italics omitted.) The bench notes to CALCRIM No. 1603 state a trial court

should give CALCRIM No. 1603 “when the defendant is charged with

6 aiding and abetting a robbery and an issue exists about when the defendant

allegedly formed the intent to aid and abet.” Our Supreme Court has

7 clarified, “for the purpose of aiding and abetting, the duration of a robbery

extends to the carrying away of the stolen property to a place of temporary

8 safety.” (People v. Montoya, supra, 7 Cal.4th at p. 1041, 31 Cal.Rptr.2d 128,

874 P.2d 903.)

9

Appellants collectively contend that CALCRIM No. 1603 did not require the

10 necessary mens rea for robbery and it eliminated the actus reus requirement of aiding

and abetting. They claim this instruction was misleading because nobody acted as a

11 getaway driver. They assert the jury was permitted to find guilt without the

accomplices knowing of the perpetrator's intent and without the accomplices doing

12 anything to assist the perpetrator in escaping with Alex's property. Garcia and

Segura argue that CALCRIM No. 1603 was presented as a “special instruction” for

13 count II, making it likely the jury focused on it to the exclusion of other instructions.

14 Appellants' various assertions are without merit. When we examine the challenged

instruction in the context of the arguments from counsel and the instructions as a

15 whole, there is no reasonable likelihood the jury applied CALCRIM No. 1603 in an

impermissible manner.

16

The trial court instructed the jury to pay careful attention to all instructions and to

17 consider them together. They were informed some instructions may not apply

depending on the facts, and they should not assume anything about the facts based

18 on a particular instruction. The jury was instructed on how and when a person could

be liable as an aider and abettor. This included the requirements the accomplice

19 know the perpetrator's criminal intent and intend to assist in the commission of that

crime. For robbery, the jury was told a defendant had to use force or fear to take

20 property from another person's possession and against that person's will with the

intent to permanently deprive possession.

21

During closing argument, the prosecutor made it very clear appellants robbed Alex

22 when they attacked him. The prosecutor asserted appellants were each present when

his property fell to the ground, and they intended to keep him subdued in order to

23 take his property. The prosecutor never reasonably suggested that appellants were

liable as accomplices in count II because they may have aided and abetted the

24 perpetrator in carrying Alex's property to a place of temporary safety. [Fn.34] To

the contrary, she argued the aiders and abettors formed the intent to rob when they

25 participated in the group beating of Alex.

26 [Fn.34] During closing argument, the prosecutor discussed the escape rule

and asserted appellants never reached a place of temporary safety because

27 they never left the park. She noted these crimes occurred about six minutes

apart, which she described as “one continuous course of conduct.” We reject

28 any assertion a reasonable jury may have believed Garcia and Segura could

40

1 be liable as aiders and abettors for Alex's robbery because they never reached

a place of temporary safety. To the contrary, the prosecutor made it very

2 clear appellants robbed Alex when they applied force to him.

3 The defense attorneys generally asserted that Alex was never robbed. The defense

attorneys argued appellants never formed an intent to steal Alex's property before or

4 during the fight. Instead, this was a fight over a girl and Alex's property just fell out.

If anything, only a theft or assault occurred.

5

We disagree it is likely the jury viewed CALCRIM No. 1603 in isolation. The

6 written jury instructions were provided to the jurors when they began deliberations.

Nothing reasonably suggests the jury would have disregarded the requirement to

7 consider all instructions together. Nothing reasonably suggests the jury would have

failed to consider whether an accomplice knew the perpetrator's criminal intent and

8 intended to assist in the commission of that crime. Based on the arguments from

counsel, nothing reasonably suggests the jury would have believed accomplice

9 liability in count II was premised on assisting while the perpetrator carried Alex's

property away.

10

Based on the entire record, the jury was properly instructed on the requirements for

11 aiding and abetting a robbery. (See, e.g., People v. McCoy, supra, 25 Cal.4th at p.

1118, 108 Cal.Rptr.2d 188, 24 P.3d 1210 [explaining general accomplice liability

12 requirements].) We reject appellants' assertions the jurors would have focused

exclusively on CALCRIM No. 1603. We also reject their claims the jury applied

13 this instruction in an impermissible manner. (See People v. Houston, supra, 54

Cal.4th at p. 1229, 144 Cal.Rptr.3d 716, 281 P.3d 799.) It is not reasonably likely

14 the jurors understood CALCRIM No. 1603 in the manner appellants now assert.

(See People v. Cross, supra, 45 Cal.4th at pp. 67–68, 82 Cal.Rptr.3d 373, 190 P.3d

15 706.) Accordingly, instructional error did not occur, and this claim fails.

16 Koplen, 2019 WL 2647356, at *36, 40-42.

17 a. Legal Standard and Analysis

18 As previously stated, to merit relief, a petitioner must show that the instruction by itself so

19 infected the entire trial that the resulting conviction violates due process. Estelle v. McGuire, 502

20 U.S. 62, 72 (1991). In addition, the instruction must be considered in the context of the

21 instructions as a whole and the trial record. Id. Moreover, a petitioner is not entitled to relief

22 unless the instructional error resulted in actual prejudice. Brecht v. Abrahamson, 507 U.S. 619,

23 637 (1993).

24 Here, the state court reasonably determined that upon review of the instructions as a

25 whole, the jury was correctly instructed on aiding and abetting, and there was no reasonable

26 likelihood that the jury impermissibly applied CALCRIM No. 1603. The court noted that the jury

27 was properly instructed on how and when a person could be liable as an aider and abettor, which

28 included the requirements that the accomplice know the perpetrator’s intent and intend to assist in

41

1 the commission of that crime. The prosecutor also argued that the accomplices formed the intent

2 to rob when they participated in the group beating of Alex. The prosecutor did not argue the

3 incorrect accomplice liability theory that Petitioner suggests, nor was there any evidence to

4 support it. The state court reasonably found that the jury was properly instructed and that nothing

5 in the record suggested that the jury relied exclusively on CALCRIM No. 1603 and misapplied it

6 in the manner Petitioner claims.

7 Thus, Petitioner fails to show that the state court rejection of his claim was objectively

8 unreasonable, and he fails to demonstrate any actual prejudice resulting from the alleged error.

9 The claim should be denied.

10 7. Instructional Error – Voluntary Intoxication

11 Petitioner contends that the instructions given on voluntary intoxication did not allow the

12 jury to consider whether his intoxication negated the mental states required for his various crimes.

13 This claim was also raised and rejected on direct appeal by the Fifth DCA, as follows:

14 X. Reversal Is Not Required For Alleged Instructional Errors.

15 Appellants raise three separate claims of instructional error. First, they argue

instructional error occurred regarding the murder special-circumstance allegations.

16 Second, Garcia and Segura contend instructional error occurred regarding voluntary

intoxication. Finally, appellants claim error occurred regarding how the jury was

17 instructed on aiding and abetting during Alex's robbery (count II).

18 Instructional errors are questions of law, which we review de novo. (People v.

Guiuan (1998) 18 Cal.4th 558, 569–570, 76 Cal.Rptr.2d 239, 957 P.2d 928.) We

19 must ascertain the relevant law and determine whether the given instruction

correctly stated it. (People v. Kelly (1992) 1 Cal.4th 495, 525–526, 3 Cal.Rptr.2d

20 677, 822 P.2d 385.) We address the three claims.

21 ....

22 B. The voluntary intoxication instructions.

23 Trial evidence suggested appellants were voluntarily intoxicated when these crimes

occurred. Some evidence suggested that Segura may have been more intoxicated

24 than the others. In the afternoon before these crimes, it appears appellants each drank

malt liquor from 40-ounce bottles. They also drank brandy. Koplen had about five

25 shots. Garcia had about eight to 10 shots. Segura had about 10 shots.

26 The jury received two instructions regarding voluntary intoxication. With

CALCRIM No. 625, the trial court generally tracked the form language and told the

27 jury the following:

28 “You may consider evidence, if any, of the defendant's voluntary

42

1 intoxication only in a limited way. You may consider that evidence only in

deciding whether a defendant acted with the specific intent to take property

2 by force or fear, robbery and attempted robbery. [¶] A person is voluntarily

intoxicated if he or she becomes intoxicated by willingly using any

3 intoxicating drug, drink, or other substance knowing that it could produce an

intoxicating effect or willingly assuming the risk of that effect. You may not

4 consider evidence of voluntary intoxication for any other purpose.” (Italics

added.)

5

With CALCRIM No. 3426, the court generally tracked the form language and told

6 the jury the following:

7 “You may consider evidence, if any, of a defendant's voluntary intoxication

only in a limited way. You may consider that evidence only in deciding

8 whether a defendant acted with the intent to do the required act.

9 “Robbery and attempted robbery under [section] 211 or 664/211, the specific

intent to deprive the owner of his property by force or fear.

10

“For the gang enhancement [section 186.22, subdivision (b)(1) ], the specific

11 intent to promote, further, or assist in any criminal conduct by gang

members.

12

“A person is voluntarily intoxicated if he or she becomes intoxicated by

13 willingly using any intoxicating drug, drink, or other substance knowing that

it could produce an intoxicating effect or willingly assuming the risk of that

14 effect. You may not consider evidence of voluntary intoxication for any other

purpose.” (Italics added.)

15

Garcia and Segura contend these instructions did not accurately state the law

16 because they applied to a perpetrator's specific intent and they precluded the jury

from considering voluntary intoxication for aiders and abettors. They also argue

17 these instructions precluded the jury from considering their voluntary intoxication

regarding whether they acted with reckless indifference to human life.

18

Respondent does not address whether error occurred. Instead, respondent asserts any

19 presumed error was harmless. According to respondent, the jury must have rejected

a voluntary intoxication defense because appellants were convicted of robbery

20 (count II).

21 We disagree instructional error occurred. In any event, we agree with respondent

that any presumed error was harmless.

22

1. Instructional error did not occur.

23

Generally, if a trial court instructs on voluntary intoxication, it should inform the

24 jury of the possible effect of voluntary intoxication on an aider and abettor's mental

state. [Fn.31] (People v. Letner and Tobin, supra, 50 Cal.4th at p. 186, 112

25 Cal.Rptr.3d 746, 235 P.3d 62; People v. Mendoza (1998) 18 Cal.4th 1114, 1134, 77

Cal.Rptr.2d 428, 959 P.2d 735.)

26

[Fn.31] CALCRIM No. 404 provides, in relevant part: “If you conclude that

27 the defendant was intoxicated at the time of the alleged crime, you may

consider this evidence in deciding whether the defendant: [¶] A. Knew that

28 <insert name of perpetrator> intended to commit <insert target offense>; [¶]

43

1 AND [¶] B. Intended to aid and abet <insert name of perpetrator> in

committing <insert target offense>.”

2

We reject Garcia's and Segura's assertions the jurors would have believed they could

3 only consider voluntary intoxication for a perpetrator. The voluntary intoxication

instructions did not mention the terms “perpetrators” or “aiders and abettors.”

4 Instead, the jury was told to consider “a defendant's voluntary intoxication” and

whether a defendant acted with the specific intent to take property by force or fear,

5 or “acted with the intent to do the required act.”

6 Other instructions informed the jury a person may be guilty as either a perpetrator

or an aider and abettor. The jury was instructed on the required elements to find

7 liability for an aider and abettor. The jury was told someone aids and abets a crime

if he or she knows of the perpetrator's unlawful purpose and “specifically intends to

8 and does in fact aid, facilitate, promote, encourage, or instigate the perpetrator's

commitment of that crime.”

9

During closing argument, the prosecutor noted a perpetrator and an aider and abettor

10 are equally guilty. During Segura's closing arguments, his counsel emphasized his

client's voluntary intoxication. Segura's counsel asserted Koplen was “the lunatic”

11 who alone stabbed Tylor. Segura's counsel emphasized his client was very

intoxicated during these crimes. His counsel asserted Segura was too drunk to plan

12 and coordinate an attack on Tylor and Brittany. He argued Segura was so drunk “he

was not aware of his surroundings or that he knew what he was doing.”

13

The prosecutor never argued or even suggested the jury could not consider voluntary

14 intoxication in determining whether Garcia or Segura aided and abetted in the

charged crimes. To the contrary, during her rebuttal argument, the prosecutor

15 rejected Segura's claim he was too intoxicated to form specific intent. According to

the prosecutor, Segura made numerous choices throughout these crimes which

16 demonstrated specific intent. The prosecutor asserted it was Koplen who stabbed

Tylor, making Segura an aider and abettor who chased and punched Tylor. The

17 closing arguments make it clear the jury would not have understood these disputed

instructions in the manner Garcia and Segura now claim. [Fn.32]

18

[Fn.32] Garcia claims we cannot look to the arguments of counsel to

19 overcome the “strict prohibition” appearing in the instructions. We reject

this assertion. In analyzing alleged instructional error, we must view all of

20 the jury instructions and the trial record, including the arguments of counsel,

to determine if it is reasonably likely the jury applied the instruction in an

21 impermissible manner. (People v. Houston, supra, 54 Cal.4th at p. 1229, 144

Cal.Rptr.3d 716, 281 P.3d 799; People v. Nem, supra, 114 Cal.App.4th at p.

22 165, 7 Cal.Rptr.3d 478.)

23 Based on this record, it is not reasonably likely the jury applied the voluntary

intoxication instructions in an impermissible manner. (See People v. Houston,

24 supra, 54 Cal.4th at p. 1229, 144 Cal.Rptr.3d 716, 281 P.3d 799.) The voluntary

intoxication instructions did not expressly state they were limited to perpetrators

25 and, when read in context with the other instructions and closing arguments, it is not

reasonably probable the jury would have believed voluntary intoxication had no

26 application for aiders and abettors. A reasonable likelihood does not exist the jurors

understood these disputed instructions in the manner Garcia and Segura now assert.

27 (See People v. Cross, supra, 45 Cal.4th at pp. 67–68, 82 Cal.Rptr.3d 373, 190 P.3d

706.) As such, instructional error did not occur, and this claim fails. In any event,

28 even if we assume instructional error was present, any presumed error was harmless.

44

1 2. Any presumed error was harmless.

2 The parties dispute the appropriate standard of review. Garcia and Segura contend

a due process violation occurred, and prejudice should be reviewed under Chapman,

3 supra, 386 U.S. 18, 87 S.Ct. 824. They argue these instructions precluded the jury

from considering exculpatory evidence. In contrast, respondent asserts this was state

4 law error. We agree with respondent.

5 Our Supreme Court makes clear that instructional error regarding voluntary

intoxication is subject to the usual standard for state law error. (People v.

6 Covarrubias, supra, 1 Cal.5th at p. 897; People v. Letner and Tobin, supra, 50

Cal.4th at p. 187, 112 Cal.Rptr.3d 746, 235 P.3d 62.) Under this standard, we must

7 reverse only if it is reasonably probable the error adversely affected appellants'

verdicts. (People v. Covarrubias, supra, at p. 897,; People v. Letner and Tobin,

8 supra, at p. 187, 112 Cal.Rptr.3d 746, 235 P.3d 62.)

9 Here, contrary to his appellate claims, evidence of Garcia's voluntary intoxication

was not critical to his defense. During his closing arguments, Garcia did not

10 emphasize his voluntary intoxication. Although he noted he went to the park to drink

and spend time with friends, he did not discuss his level of impairment. Instead,

11 Garcia argued he did not commit the charged crimes. He generally claimed he was

not involved in an attempted robbery of Tylor and Brittany. He asserted the evidence

12 reasonably showed he did not have an intent to permanently deprive them of their

property, he was not aware if another appellant held such an intent, and he only

13 intended to “taunt or assault” Tylor and Brittany. He asserted Alex was never

robbed.

14

During his closing argument, Segura also claimed Alex was never robbed. He

15 maintained Koplen was “the lunatic” who alone stabbed Tylor. Segura emphasized

his voluntary intoxication, claiming he was unable to plan and coordinate the attacks

16 on Tylor and Brittany. Segura's counsel asserted that his client was not an aider and

abettor even if his client was present when “this lunatic” (Koplen) stabbed Tylor.

17 His counsel argued Segura had no blood or DNA evidence on him while Koplen

went home but still had blood on him hours later.

18

The trial court's alleged instructional error did not prevent Garcia or Segura from

19 presenting a complete defense or articulating their particular defense theories. (See,

e.g., People v. Pearson (2012) 53 Cal.4th 306, 325, fn. 9, 135 Cal.Rptr.3d 262, 266

20 P.3d 966 [“The failure to give a fully inclusive pinpoint instruction on voluntary

intoxication did not, contrary to defendant's contention, deprive him of his federal

21 fair trial right”].) In any event, the evidence supporting the existing judgments is so

relatively strong, and the evidence supporting a different outcome is so

22 comparatively weak, there is no reasonable probability this presumed error affected

the result. (People v. Breverman (1998) 19 Cal.4th 142, 177, 77 Cal.Rptr.2d 870,

23 960 P.2d 1094.)

24 Finally, although the voluntary intoxication instructions did not mention the term

“aiding and abetting,” they also did not expressly limit their application to

25 “perpetrators.” The prosecutor did not argue that the jury could not consider

voluntary intoxication for an aider and abettor. Nothing in the record reasonably

26 suggests the jury would have believed that the mental states set forth in the voluntary

intoxication instructions did not apply both to the mental states required of a direct

27 perpetrator and to those required of an aider and abettor. (People v. Covarrubias,

supra, 1 Cal.5th at p. 897.) “‘For these reasons, any error in the instructions did not

28 preclude the jury's consideration of defense evidence, nor is it reasonably probable

45

1 that different instructions would have resulted in a verdict more favorable to

[appellants].’” (Ibid., quoting Letner and Tobin, supra, 50 Cal.4th at p. 187, 112

2 Cal.Rptr.3d 746, 235 P.3d 62.) As such, based on this record, we can declare this

presumed error harmless. Accordingly, prejudice is not present, and this claim fails.

3

4 Koplen, 2019 WL 2647356, at *38-40.

5 a. Legal Standard and Analysis

6 The same standard discussed in the previous claim applies, and like the previous claim,

7 Petitioner fails to show that the state court rejection of the claim was objectively unreasonable.

8 The state court reasonably determined that no instructional error occurred, and even if error

9 occurred, it did not prejudice Petitioner.

10 The state court noted that when the instructions were considered as a whole, the jury was

11 not misinformed on the voluntary intoxication defense. First, the state court noted that jurors

12 would not have believed they could only consider voluntary intoxication as to the perpetrator,

13 because the instruction was not limited only to the perpetrator. Instead, the jury was informed

14 that it could consider “a defendant’s voluntary intoxication.” Other instructions also informed the

15 jury on the elements of aider and abettor liability for the crime, and that the perpetrator and an

16 aider and abettor are equally guilty. Second, the prosecutor neither argued nor suggested that the

17 jury could not consider voluntary intoxication in determining whether Petitioner could be found

18 guilty as an aider and abettor. In fact, in her rebuttal during closing remarks, the prosecutor

19 argued against Petitioner’s claim that he was too intoxicated to form specific intent. Thus,

20 Petitioner fails to show that the state court finding that instructional error did not occur was

21 unreasonable.

22 In addition, the state court reasonably found that no prejudice occurred even if there was

23 error. Petitioner was not hindered in any way from arguing that voluntary intoxication prevented

24 him from forming the specific intent to aid and abet. In fact, Petitioner’s counsel made this

25 argument during closing remarks, specifically claiming that Petitioner was unable to form the

26 intent to aid and abet. For these reasons, Petitioner fails to show that the result would have been

27 different had additional or different instructions been given. The claim should be rejected.

28 /////

46

1 8. Prosecutorial Misconduct – Misstatement of Forensic Evidence

2 Petitioner claims that the prosecutor committed misconduct by misstating forensic

3 evidence. Petitioner also faults his defense counsel for failing to object. Petitioner raised this

4 claim on direct review in the state courts. In the last reasoned decision, the Fifth DCA denied the

5 claim as follows:

6 VII. Prosecutorial Misconduct Did Not Occur.

7 Appellants raise three separate claims of prosecutorial mis

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