# (HC) Cross v. Kings County Sheriff

> District Court, E.D. California · February 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10059485

## Case

- **Court:** District Court, E.D. California
- **Decided:** February 26, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10

11 JEROME LEE CROSS, Case No. 1:23-cv-01246-SAB-HC

12 Petitioner, FINDINGS AND RECOMMENDATION
RECOMMENDING DENIAL OF PETITION
13 v. FOR WRIT OF HABEAS CORPUS

14 KINGS COUNTY SHERIFF, ORDER DIRECTING CLERK OF COURT
TO RANDOMLY ASSIGN DISTRICT
15 Respondent. JUDGE

16
17 Petitioner Jerome Lee Cross is proceeding pro se with a petition for writ of habeas corpus
18 pursuant to 28 U.S.C. § 2254.
19 I.
20 BACKGROUND
21 On March 23, 2021, Petitioner was convicted in the Kings County Superior Court of
22 vandalism greater than $400. On May 10, 2021, Petitioner was sentenced to an imprisonment
23 term of four years. (2 CT1 596.) On September 14, 2022, the California Court of Appeal, Fifth
24 Appellate District affirmed the judgment. People v. Cross, No. F082774, 2022 WL 4230918
25 (Cal. Ct. App. Sept. 14, 2022). On November 30, 2022, the California Supreme Court denied
26 Petitioner’s petition for review. (LDs2 18, 19.) On July 7, 2023, Petitioner filed a state habeas
27
1 “CT” refers to the Clerk’s Transcript on Appeal lodged by Respondent on November 2, 2023. (ECF No. 6.)
1 petition in the California Supreme Court, which denied the petition on August 9, 2023. (LDs 20,
2 21.)
3 On August 21, 2023, Petitioner filed the instant federal petition for writ of habeas corpus,
4 raising the following claims for relief: (1) insufficiency of the evidence; and (2) instructional
5 error. (ECF No. 1.) On November 8, 2023, Respondent filed an answer. (ECF No. 7.) To date, no
6 reply has been filed, and the time for doing so has passed.
7 II.
8 STATEMENT OF FACTS3

9 At approximately 3:00 a.m. on Sunday, August 2, 2020, Officer Rubalcava was in
her patrol vehicle and parked in the rear compound of the Hanford Police
10 Department. She received a dispatch that an act of vandalism had just occurred at
the police department’s front glass door entrance. The glass was broken out of the
11 door frame, and a rock that was “a little smaller than a football” was found inside
the building.
12
Officer Rubalcava drove on Lacey Boulevard to look for the suspect and saw
13 defendant walking fairly quickly on the street. Defendant kept his head down, and
he was sweating profusely and breathing heavily. Rubalcava contacted defendant.
14 He was initially calm but became irate with another officer.

15 Officer Rubalcava arrested defendant and took him to the jail for booking. When
Rubalcava escorted him into the jail, defendant stumbled and needed assistance so
16 he would not fall. During the booking search, defendant was found in possession
of a usable amount of methamphetamine. When the drugs were found, defendant
17 said, “[I]f I had known that was there I would have smoked it already.”

18 It was stipulated to the jury that defendant threw the rock that broke the glass
door.
19
The prosecution introduced invoices for the temporary repair and replacement of
20 the broken glass door. Erin Payne, owner and manager of Kings County Glass,
testified that on Sunday, August 2, 2020, the business performed “an emergency
21 weekend board up” on the damaged door at the police department. The business
charged $300, which Ms. Payne described as a reasonable price for an emergency
22 boarding job performed on a weekend.

23 David Lockwood, owner of Hanford Glass, testified that on Monday, August 3,
2020, he received a work order from the police department because “the glass had
24 broken out of the door that goes into the main door of the police department.”
Lockwood measured the frame and ordered the safety glass that was required to
25 replace that door. It took three days to get safety glass because it was not readily
available. On August 6, 2020, Lockwood installed the safety glass. The cost to
26 replace the glass door was $298, which Lockwood described as a reasonable
amount.
27

3 The Court relies on the California Court of Appeal’s September 14, 2022 opinion for this summary of the facts of
1
As will be explained below, the prosecution argued the actual damage to the door
2 was $598.

3 Defense

4 Defendant testified that he was self-employed and washed cars. Defendant had a
prior strike conviction from 2009.
5
At trial, defendant admitted he threw the rock through the police department’s
6 glass door and testified that he “did it for love.” Defendant explained that just
before the incident, he used his unemployment benefits to purchase a 2004 “shiny
7 red” Cadillac CTS with a sunroof. “I was just in love with this car” and “it was
the only thing in this world that I loved.” He was homeless, he considered the car
8 as his home, and his possessions were stored in the car. His cousin told him not to
drive the car until he completed the registration process. He parked the car on 8th
9 Street and walked to a friend’s house.

10 Defendant testified that he felt that he needed to go back and check his car.
Around 3:00 p.m., he arrived at the location where he parked the Cadillac and
11 found police officers were “searching his car.” “I was like what are you doing
with my car. So they jammed me up, pulled me to the side, gave me the field
12 sobriety test and – and the sun was in my eyes so I turned like toward Harris
Street ... and [when] I turned toward 8th Street back to the car and when I was
13 done with the sobriety test the car was gone, they towed it. I got irate, irrational.”

14 According to defendant, the officers said they towed the car because of the
registration: “They told me I didn’t have registration for the car, and they don’t
15 have to tell me anything. I am not the owner – the registered owner of the car.
And I was like, I have the keys right here on my neck, and they was like that
16 doesn’t matter, whatever. So I was like I would like to file a [citizen’s complaint]
... I will write your ass up ... and they was like whatever but your car is gone. So I
17 didn’t know where the towing company had it or anything like that the VIN
numbers, anything to get it back and ... everything was in the car. My laptop, my
18 phones, my jewelry, my money, clothes, everything....” (Italics added.)

19 On further questioning, defendant admitted that one officer told him the car was
taken to Hanford Towing. Defendant did not go to the tow yard because it was too
20 far away.

21 Around 5:00 p.m., defendant walked to the Hanford Police Department to file a
citizen’s complaint. He entered the police department, and an officer was “really
22 aggressive” toward him. “[S]omeone at the door [said] you get out of here, you
leave right now. And I was like I just want to file [a] ... citizen complaint form.
23 And they was like, no, you leave right now, you cannot have a citizen complaint. I
said, well, they took my car, and he was like so what[,] you get out now, or you
24 will be arrested. So I just hung my head and I just bounced.”

25 Defendant testified that he stayed around the civic auditorium all night, “getting
high, whatever, just chilling, just trying to figure out what to do.”
26
“I don’t have my car, I have nothing. I didn’t have my EDD card in my pocket. I
27 didn’t have no money or nothing, so I don’t know, it just – morning came and I
was out of drugs I thought, and I was just wandering around the streets and I seen
1 only thing I loved, they took it from me. They ripped it from my heart. [¶] That is
why I threw the rock through the window. Something told me in my head do not
2 do it, do not do it, and I shook it off. I should have listened to that voice in my
head. I should have listened to that voice in my head, but I threw the rock and I
3 am here.”

4 Defendant was arrested that night, and admitted an officer found drugs in his sock
when he was booked at the jail. Defendant testified that he was surprised the
5 drugs were in his sock, forgot he had the drugs, and did not realize he brought
drugs into the jail: “I sure wish I would have known, because I would have
6 smoked that up.”
7 Cross, 2022 WL 4230918, at *1–3.
8 III.
9 STANDARD OF REVIEW
10 Relief by way of a petition for writ of habeas corpus extends to a person in custody
11 pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws
12 or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor,
13 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed
14 by the U.S. Constitution. The challenged conviction arises out of the Kings County Superior
15 Court, which is located within the Eastern District of California. 28 U.S.C. § 2241(d).
16 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act
17 of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its
18 enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th
19 Cir. 1997) (en banc). The instant petition was filed after the enactment of AEDPA and is
20 therefore governed by its provisions.
21 Under AEDPA, relitigation of any claim adjudicated on the merits in state court is barred
22 unless a petitioner can show that the state court’s adjudication of his claim:
23 (1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
24 determined by the Supreme Court of the United States; or

25 (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
26 State court proceeding.
27 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 97–98 (2011); Lockyer v. Andrade, 538
U.S. 63, 70–71 (2003); Williams, 529 U.S. at 413.
1 As a threshold matter, this Court must “first decide what constitutes ‘clearly established
2 Federal law, as determined by the Supreme Court of the United States.’” Lockyer, 538 U.S. at 71
3 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is “clearly established Federal law,” this
4 Court must look to the “holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as
5 of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. “In other words,
6 ‘clearly established Federal law’ under § 2254(d)(1) is the governing legal principle or principles
7 set forth by the Supreme Court at the time the state court renders its decision.” Id. In addition,
8 the Supreme Court decision must “‘squarely address [] the issue in th[e] case’ or establish a legal
9 principle that ‘clearly extend[s]’ to a new context to the extent required by the Supreme Court in
10 . . . recent decisions”; otherwise, there is no clearly established Federal law for purposes of
11 review under AEDPA. Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (quoting Wright v.
12 Van Patten, 552 U.S. 120, 125 (2008)); Panetti v. Quarterman, 551 U.S. 930 (2007); Carey v.
13 Musladin, 549 U.S. 70 (2006). If no clearly established Federal law exists, the inquiry is at an
14 end and the Court must defer to the state court’s decision. Musladin, 549 U.S. 70; Wright, 552
15 U.S. at 126; Moses, 555 F.3d at 760.
16 If the Court determines there is governing clearly established Federal law, the Court must
17 then consider whether the state court’s decision was “contrary to, or involved an unreasonable
18 application of, [the] clearly established Federal law.” Lockyer, 538 U.S. at 72 (quoting 28 U.S.C.
19 § 2254(d)(1)). “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the
20 state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question
21 of law or if the state court decides a case differently than [the] Court has on a set of materially
22 indistinguishable facts.” Williams, 529 U.S. at 412–13; see also Lockyer, 538 U.S. at 72. “The
23 word ‘contrary’ is commonly understood to mean ‘diametrically different,’ ‘opposite in character
24 or nature,’ or ‘mutually opposed.’” Williams, 529 U.S. at 405 (quoting Webster’s Third New
25 International Dictionary 495 (1976)). “A state-court decision will certainly be contrary to
26 [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the
27 governing law set forth in [Supreme Court] cases.” Id. If the state court decision is “contrary to”
1 AEDPA de novo standard. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc).
2 “Under the ‘reasonable application clause,’ a federal habeas court may grant the writ if
3 the state court identifies the correct governing legal principle from [the] Court’s decisions but
4 unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413.
5 “[A] federal court may not issue the writ simply because the court concludes in its independent
6 judgment that the relevant state court decision applied clearly established federal law erroneously
7 or incorrectly. Rather, that application must also be unreasonable.” Id. at 411; see also Lockyer,
8 538 U.S. at 75–76. The writ may issue only “where there is no possibility fair minded jurists
9 could disagree that the state court’s decision conflicts with [the Supreme Court’s] precedents.”
10 Richter, 562 U.S. at 102. In other words, so long as fairminded jurists could disagree on the
11 correctness of the state court’s decision, the decision cannot be considered unreasonable. Id. If
12 the Court determines that the state court decision is objectively unreasonable, and the error is not
13 structural, habeas relief is nonetheless unavailable unless the error had a substantial and injurious
14 effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
15 The Court looks to the last reasoned state court decision as the basis for the state court
16 judgment. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018); Stanley v. Cullen, 633 F.3d 852, 859
17 (9th Cir. 2011). If the last reasoned state court decision adopts or substantially incorporates the
18 reasoning from a previous state court decision, this Court may consider both decisions to
19 ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir.
20 2007) (en banc). “When a federal claim has been presented to a state court and the state court has
21 denied relief, it may be presumed that the state court adjudicated the claim on the merits in the
22 absence of any indication or state-law procedural principles to the contrary.” Richter, 562 U.S. at
23 99. This presumption may be overcome by a showing “there is reason to think some other
24 explanation for the state court’s decision is more likely.” Id. at 99–100 (citing Ylst v.
25 Nunnemaker, 501 U.S. 797, 803 (1991)).
26 Where the state courts reach a decision on the merits but there is no reasoned decision, a
27 federal habeas court independently reviews the record to determine whether habeas corpus relief
1 (9th Cir. 2003). “Independent review of the record is not de novo review of the constitutional
2 issue, but rather, the only method by which we can determine whether a silent state court
3 decision is objectively unreasonable.” Himes, 336 F.3d at 853. While the federal court cannot
4 analyze just what the state court did when it issued a summary denial, the federal court must
5 review the state court record to determine whether there was any “reasonable basis for the state
6 court to deny relief.” Richter, 562 U.S. at 98. This Court “must determine what arguments or
7 theories . . . could have supported, the state court’s decision; and then it must ask whether it is
8 possible fairminded jurists could disagree that those arguments or theories are inconsistent with
9 the holding in a prior decision of [the Supreme] Court.” Id. at 102.
10 IV.
11 REVIEW OF CLAIMS
12 A. Sufficiency of the Evidence
13 Petitioner asserts that there was insufficient evidence to convict him as the actual damage
14 resulting from the vandalism was limited to the replacement cost of $298 and the temporary
15 repair of $300 was an indirect cost and should not have been considered by the jury. (ECF No. 1
16 at 3.)4 Respondent argues that Petitioner’s claim is actually challenging state statutory
17 interpretation, which is an issue of state law and not a federal question. (ECF No. 7 at 18.)
18 This claim was raised on direct appeal to the California Court of Appeal, which denied
19 the claim in a reasoned opinion, and in the California Supreme Court, which summarily denied
20 Petitioner’s petition for review. As federal courts review the last reasoned state court opinion, the
21 Court will “look through” the California Supreme Court’s summary denial and examine the
22 decision of the California Court of Appeal. See Wilson, 138 S. Ct at 1192.
23 In denying the sufficiency the evidence claim, the California Court of Appeal stated:

24 Defendant contends his conviction for felony vandalism is not supported by
substantial evidence that the amount of actual damage was $400 or more, and the
25 conviction must be reduced to a misdemeanor. Defendant argues that valuation of
actual damage from vandalism is limited “to ‘direct’ abatement costs, determined
26 by the cost of repair,” and that amount was limited to $298 to replace the
damaged glass door. Defendant asserts the trial court improperly permitted the
27 jury “to consider the additional $300 cost to board up the door pending actual
1 repair,” but that amount “served only to secure the premises, not to repair the
door,” and was “an ‘indirect’ economic loss” and could not be considered to
2 determine actual damage for felony vandalism.

3 Defendant concludes that “only direct abatement costs may be included in the
valuation. Indirect costs, while recoverable as restitution, are not included.
4 Boarding the door to secure the premises pending actual repair is an indirect cost;
therefore, it does not raise the valuation” of actual damage, and his vandalism
5 offense was not a felony.

6 I. Standard of Review

7 In considering a challenge to the sufficiency of the evidence, “[t]he standard of
review is well settled: On appeal, we review the whole record in the light most
8 favorable to the judgment below to determine whether it discloses substantial
evidence – that is, evidence that is reasonable, credible and of solid value – from
9 which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citations.] If the verdict is supported by substantial evidence,
10 we must accord due deference to the trier of fact and not substitute our evaluation
of a witness’s credibility for that of the fact finder.” (People v. Koontz (2002) 27
11 Cal.4th 1041, 1078.) “A reversal for insufficient evidence ‘is unwarranted unless
it appears “that upon no hypothesis whatever is there sufficient substantial
12 evidence to support” ’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th
327, 357.)
13
While defendant has raised this issue as one of substantial evidence, he is
14 effectively arguing the trial court incorrectly interpreted section 594 to permit the
jury to consider “indirect” costs to determine if the actual damages resulting from
15 his vandalism was $400 or more, so that offense was a felony. To the extent
defendant raises questions of statutory interpretation, we review the issue de
16 novo. (See, e.g., John v. Superior Court (2016) 63 Cal.4th 91, 95; People v.
Gonzalez (2017) 2 Cal.5th 1138, 1141.)
17
II. Vandalism
18
Section 594 states: “Every person who maliciously commits any of the following
19 acts with respect to any real or personal property not his or her own, in cases other
than those specified by state law, is guilty of vandalism: [¶] (1) Defaces with
20 graffiti or other inscribed material. [¶] (2) Damages. [¶] (3) Destroys.” (§ 594,
subd. (a).)
21
If the amount of the “defacement, damage, or destruction” is $400 or more, the
22 offense is punishable as a felony or a misdemeanor. (§ 594, subd. (b)(1).) If such
amount is less than $400, the offense is only punishable as a misdemeanor. (Id. at
23 subd. (b)(2)(A).)

24 Whenever a person violates this provision with respect to property belonging to a
public entity, “it shall be a permissive inference that the person neither owned the
25 property or had the permission of the owner to deface, damage, or destroy the
property.” (§ 594, subd. (a).)
26
III. Calculation of Vandalism Damages
27
Section 594 “does not itself specify a method for proving the amount of property
1 The cases interpreting section 594 have focused on the amount of defacement,
damage, or destruction, and calculated that amount as the actual or estimated cost
2 of repair. (See, e.g., In re A.W. (2019) 39 Cal.App.5th 941, 950 (A.W.); Kyle T.,
supra, 9 Cal.App.5th at pp. 713–714; People v. Carrasco (2012) 209 Cal.App.4th
3 715, 718, reversed on other grounds in People v. Whitmer (2014) 59 Cal.4th 733,
740–742 [a defendant may be convicted of multiple counts “based on separate and
4 distinct acts of theft, even if committed pursuant to a single overarching
scheme”].)
5
These cases have relied on the restitution analysis in a vandalism case, Luis M. v.
6 Superior Court, supra, 59 Cal.4th 300 (Luis M.), for guidance on the calculation
of damages to determine if a violation of section 594 was felony or misdemeanor
7 vandalism.

8 Luis M.

9 In Luis M., supra, 59 Cal.4th 300, a minor defaced six locations with nine acts of
graffiti. At the restitution hearing, an officer used a five-year-old cost model to
10 estimate the city’s annual graffiti abatement costs, that included labor and
material costs for both investigation and removal of graffiti. The officer compared
11 that cost model to the city’s annual expenditures, calculated the city’s average
outlay per graffiti incident, and then multiplied that figure by the minor’s nine
12 instances of graffiti to arrive at the total amount of loss. (Id. at pp. 304, 309–310.)
The officer offered “no information about the actual abatement costs related to
13 [the minor’s] conduct.” (Id. at p. 304.) The juvenile court ordered restitution in
the amount of $3,881.88, based on the officer’s testimony. (Ibid.)
14
Luis M. reversed the restitution order because it “was not based on sufficient
15 evidence that the amount of claimed loss was a result of [the minor’s] conduct.”
(Luis M., supra, 59 Cal.4th at p. 303.) Luis M. cited the general restitution statute
16 applicable to juvenile offenders, noted it was “ ‘parallel’ ” to section 1202.4’s
restitution provisions for adult offenders, and that it limited restitution to “
17 ‘economic losses incurred as the result of the minor’s conduct,’ ” such as “ ‘the
actual cost of repairing the property when repair is possible.’ ” (Luis M. at p. 304;
18 id. at p. 305, italics added in original.)

19 Luis M. held the restitution award may include “the materials, equipment, and
labor costs incurred for remediation,” as well as “[p]reexisting expenditures, such
20 as salaried employees and equipment purchases, ... provided those costs can be
fairly apportioned on a pro rata basis to the minor’s conduct.” (Luis M., supra, 59
21 Cal.4th at p. 309.) While a court awarding restitution “need not ascertain the exact
dollar amount of the [c]ity’s losses” (ibid.) and “retains broad discretion ... to
22 estimate the material, equipment, and labor costs necessary to repair the damage
caused by a discrete act of graffiti,” (id. at p. 310) the calculation “must have
23 some factual nexus to the damage caused by the minor’s conduct.” (Id. at p. 309.)
Luis M. held the city’s restitution model did not reflect the actual or estimated
24 costs to clean up the graffiti caused by the minor’s conduct. (Id. at p. 303; cf.
People v. Hurtado (2019) 35 Cal.App.5th 871, 879–880 [trial court’s
25 determination of restitution for vandalism conviction had sufficient factual nexus
to damage caused by defendant’s act, since it applied the standard cost to abate
26 graffiti to the square footage and surface type actually damaged by defendant’s
acts].)
27
1 Kyle T.

2 In Kyle T., supra, 9 Cal.App.5th 707, a minor was alleged to have committed one
count of felony vandalism based on graffiti defacement. At the juvenile hearing,
3 an officer testified about the amount of damages, based on a single-page “ ‘graffiti
removal cost list’ ” prepared by an unknown author, that generally summarized
4 the costs of removing graffiti in that area, but without reference to the specific
acts committed by the minor. (Id. at pp. 710–711.)
5
Kyle T. reversed the juvenile court’s adjudication for felony vandalism and held
6 the People failed to present substantial evidence that was specific to the minor’s
acts of vandalism to establish that the actual amount of damage caused by the
7 minor’s act reached the felony threshold of $400. (Kyle T., supra, 9 Cal.App.5th
at p. 709.) Kyle T. acknowledged that section 594 did not specify the method to
8 calculate damages to determine felony vandalism and held Luis M.’s discussion of
restitution was appropriate to determine damages in a vandalism case. (Kyle T., at
9 p. 716.)

10 “[S]ection 730.6, subdivision (h) of the Welfare and Institutions Code ‘authorizes
full restitution for economic losses, including “the actual cost of repairing
11 [damaged] property when repair is possible.” [Citation.] Awards under [Welfare
and Institutions Code] section 730.6 are based on proof of the damage actually
12 linked to the minor’s conduct ....’ [Citation.] This method for determining
restitution arising from the abatement of juvenile vandalism ‘parallel[s]’ the
13 method for determining restitution arising from the abatement of adult vandalism
set forth in Penal Code section 1202.4, subdivision (f).” (Id. at p. 713.)
14
Kyle T. noted that section 1202.4 similarly defined restitution in adult criminal
15 cases as the amount to fully reimburse the victim for every determined economic
loss “ ‘incurred as the result of the defendant’s criminal conduct’; the ‘value of ...
16 damaged property shall be ... the actual cost of repairing the property when repair
is possible.’ ” (Kyle T., supra, 9 Cal.App.5th at p. 713, citing § 1202.4, subd.
17 (f)(3)(A); see also People v. Stanley (2012) 54 Cal.4th 734, 737.)

18 Kyle T. further held that under the “ ‘actual cost’ ” method, “the amount of the
award ‘must have some factual nexus to the damage caused by the [juvenile’s]
19 conduct.’ ” (Kyle T, supra, 9 Cal.App.5th at p. 716.) Based on that standard, Kyle
T. held the juvenile court’s felony vandalism finding was not supported by
20 substantial evidence because the officer’s recitation of the average cost of graffiti
removal, based on a generic, one-page cost list, was an unacceptable method of
21 proving the amount of damage from the minor’s specific acts of vandalism. (Id. at
p. 709.) “The most obvious way for the People to prove that [the minor]
22 committed felony vandalism would have been to introduce at the adjudication
hearing an invoice setting forth the actual cost of repairs to the two properties. No
23 such evidence was introduced.” (Id. at pp. 713–714.) Kyle T. suggested “a
contractor’s estimate of the cost to repair the actual damage that [the minor]
24 caused might have sufficed, ... assuming proper authentication and foundation.
But the People afforded no such estimate either.” (Id. at p. 714; see also People v.
25 Carrasco, supra, 209 Cal.App.4th at pp. 717–718 [the defendant’s conviction for
felony vandalism affirmed based on actual cost to repair broken windows in a
26 house and car, destroyed by the defendant’s multiple acts of vandalism pursuant
to a single intent].
27
In A.W., supra, 39 Cal.App.5th 941, a juvenile court found true five allegations of
1 amount of actual damage exceeded the $400 felony threshold. A.W. reversed the
findings, relied on Kyle T. and Luis M., and held that average cleanup costs for
2 graffiti could not be used to prove the actual damage caused by the minor’s
vandalism because “[t]he use of an average, or arithmetic mean, recognizes that
3 cleanup costs for some graffiti is less than the average, and the cleanup costs for
other graffiti exceeds the average. The average cleanup cost is untethered to the
4 actual damage caused by minor.” (A.W., supra, 39 Cal.App.5th at p. 945.)

5 A.W. also held the juvenile court’s calculation of damages for felony vandalism
improperly included “the cost of law enforcement, which, though proper in
6 certain restitution settings, was not a proper consideration in assessing the damage
[the] minor inflicted under section 594.” (A.W., supra, 39 Cal.App.5th at p. 945.)
7 In doing so, A.W. relied on Luis M.’s discussion of the restitution statutes and
distinguished between actual and indirect costs. (A.W., at p. 950.)
8
“[Welfare and Institutions Code section 730.6] ... permits recovery of the ‘actual
9 cost of repairing the property ....’ [Citation.] Similarly, section 594 requires the
People to prove the amount of ‘defacement, damage, or destruction,’ which we
10 interpret to include the cost of repairing or replacing the vandalized property.
While the two statutes are different in that the burden of proof is much higher
11 under section 594, they cover roughly the same categories of costs. What makes
Luis M. instructive is that in the context of Welfare & Institutions Code section
12 730.6, our high court held that law enforcement costs are not recoverable: ‘These
general provisions do not authorize restitution orders for law enforcement
13 investigative costs. [Citations.] “Under the relevant case law and the statutory
scheme, public agencies are not directly ‘victimized’ for purposes of restitution
14 under Penal Code section 1202.4 merely because they spend money to investigate
crimes or apprehend criminals.” ’ [Citation.] Instead, restitution is limited to the
15 cost of repair, replacement, or restoration – these ‘direct abatement costs’ do ‘not
include the costs of investigation.’ [Citation.] Given the similarities in the
16 recoverable categories of costs, investigative costs also cannot be included in the
damage calculation under section 594.” (Ibid., italics added.)
17
IV. Analysis
18
In this case, the court’s decision to permit the jury to consider the prosecution’s
19 evidence of the costs for both the “emergency board up” and replacement of the
glass door was appropriate under section 594. We agree with the analysis in Kyle
20 T., based on the discussion in Luis M., that damages for the purpose of
determining felony vandalism is based on the actual cost of repairing the property
21 when repair is possible. (Kyle T., supra, 9 Cal.App.5th at p. 713.) To the extent
that defendant challenges the court’s decision as a question of law, we agree with
22 A.W. that the cost of repair, replacement or restoration are direct abatement costs
that may be included in the damage calculation under section 594. (A.W., supra,
23 39 Cal.App.5th at p. 950.)

24 We further conclude there is substantial evidence to support the jury’s finding that
the damages resulting from defendant’s vandalism exceeded $400, based on $300
25 for the temporary “emergency board up” and $298 for the permanent replacement
of the glass door. We reject defendant’s attempt to characterize the “emergency
26 board up” as an “indirect” cost that must be excluded from the calculation of
damages resulting from his act of vandalism. Defendant shattered the glass door
27 at approximately 3:00 a.m. on a Sunday. The very timing of his act precluded any
possibility the door could be immediately replaced. Under the circumstances, the
1 entrance to any structure, whether a business or a residence, and ensure the
occupants remained safe, and the contents were not subject to theft, destruction,
2 or further vandalism, until a replacement door was installed. In this case, there
was even more urgency to immediately and temporarily secure the front entrance
3 since defendant’s vandalism damaged the glass entrance to a police department.

4 The police department’s retention of Kings County Glass to temporarily install
boards over the damaged front entrance was part of the direct and actual costs
5 resulting from defendant’s vandalism. It was part of the process set in motion by
defendant’s conduct, and necessary to secure the department’s front entrance on a
6 Sunday, until the glass door could be permanently replaced. There was thus
substantial evidence to support the jury’s finding that the damages from the
7 vandalism exceeded $400, since securing the building’s entrance immediately
after the vandalism was a direct, reasonable, and actual cost of the process to
8 permanently repair the door.

9 In contrast to Kyle T. and A.W., the prosecution’s evidence of the amounts
charged by the two glass companies was based on testimony about the actual
10 costs of the materials and services required to temporarily repair and permanently
replace the actual damage resulting from defendant’s vandalism of the glass door,
11 and not based on speculative averages or estimates unrelated to the actual
damage.
12
While defendant suggests the police department could have used another glass
13 company or a less expensive method to repair or monitor the shattered door, he
never introduced any evidence to undermine the reasonableness of Kings County
14 Glass's charge of $300 for the emergency “board up” job on a Sunday, Hanford
Glass's charge of $298 for the requisite safety glass, that safety glass was required
15 for the police department’s front entrance, or that three days were required to
obtain delivery of the safety glass.
16
17 Cross, 2022 WL 4230918, at *6–10.
18 The Supreme Court has held that when reviewing a sufficiency of the evidence claim, a
19 court must determine whether, viewing the evidence and the inferences to be drawn from it in the
20 light most favorable to the prosecution, any rational trier of fact could find the essential elements
21 of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). A
22 reviewing court “faced with a record of historical facts that supports conflicting inferences must
23 presume—even if it does not affirmatively appear in the record—that the trier of fact resolved
24 any such conflicts in favor of the prosecution, and must defer to that resolution.” Id. at 326.
25 “Under Jackson, federal courts must look to state law for ‘the substantive elements of the
26 criminal offense,’ but the minimum amount of evidence that the Due Process Clause requires to
27 prove the offense is purely a matter of federal law.” Coleman v. Johnson, 566 U.S. 650, 655
(2012) (quoting Jackson, 443 U.S. at 319).
1 “‘After AEDPA, we apply the standards of Jackson with an additional layer of deference’
2 to state court findings.” Ngo v. Giurbino, 651 F.3d 1112, 1115 (9th Cir. 2011) (alteration
3 omitted) (quoting Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005)). As the Supreme Court
4 has stated,

5 Jackson . . . 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
6 reviewing court may 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
7 more, a federal court may not overturn a state court decision rejecting a
sufficiency of the evidence challenge simply because the federal court disagrees
8 with the state court. The federal court instead may do so only if the state court
decision was “objectively unreasonable.”
9
10 Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam) (quoting Renico v. Lett, 559 U.S. 766, 773
11 (2010)).
12 Here, the California Court of Appeal held that the trial “court’s decision to permit the
13 jury to consider the prosecution’s evidence of the costs for both the ‘emergency board up’ and
14 replacement of the glass door was appropriate under section 594.” Cross, 2022 WL 4230918, at
15 *9. This determination is binding on this Court. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005)
16 (“[A] state court’s interpretation of state law, including one announced on direct appeal of the
17 challenged conviction, binds a federal court sitting in habeas corpus.”). Thus, to the extent
18 Petitioner challenges the state court’s interpretation of section 594, the Court finds that is an
19 issue of state law not cognizable in federal habeas corpus. See Estelle v. McGuire, 502 U.S. 62,
20 67–68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court
21 determinations on state-law questions.”). To the extent the claim is construed as challenging the
22 sufficiency of the evidence, the Court finds that viewing the record in the light most favorable to
23 the prosecution, a rational trier of fact could have found true beyond a reasonable doubt that the
24 damages exceeded $400 based on $300 for the temporary “emergency board up” and $298 for
25 the permanent replacement of the glass door.
26 “When the deference to state court decisions required by § 2254(d) is applied to the state
27 court’s already deferential review,” Cavazos, 565 U.S. at 7, the Court finds that the state court’s
1 unreasonable application of, clearly established federal law. The decision was not “so lacking in
2 justification that there was an error well understood and comprehended in existing law beyond
3 any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. Accordingly, Petitioner is
4 not entitled to habeas relief on this claim, and it should be denied.
5 B. Jury Instruction
6 Petitioner asserts that an instructional error and misstatement by the court lessened the
7 prosecution’s burden of proof. (ECF No. 1 at 4.) Respondent argues that the instructional error
8 claim is procedurally barred and fails on the merits. (ECF No. 7 at 19.)
9 1. Procedural Default
10 A federal court will not review a petitioner’s claims if the state court has denied relief on
11 those claims pursuant to a state law procedural ground that is independent of federal law and
12 adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729–30 (1991). This
13 doctrine of procedural default is based on the concerns of comity and federalism. Id. at 730–32.
14 However, there are limitations as to when a federal court should invoke procedural default and
15 refuse to review a claim because a petitioner violated a state’s procedural rules. Procedural
16 default can only block a claim in federal court if the state court “clearly and expressly states that
17 its judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263 (1989). In
18 determining whether a state procedural ruling bars federal review, the Court looks to the “last
19 reasoned opinion on the claim.” Ylst, 501 U.S. at 804.
20 Here, Petitioner’s jury instructional error claim was raised in a state habeas petition filed
21 in the California Supreme Court along with the sufficiency of the evidence claim that had been
22 raised on direct appeal. (LD 20.) In denying relief, the California Supreme Court stated:
23 The petition for writ of habeas corpus is denied. Individual claims are denied, as
applicable. (See In re Waltreus (1965) 62 Cal.2d 218, 225 [courts will not
24 entertain habeas corpus claims that were rejected on appeal]; In re Dixon (1953)
41 Cal.2d 756, 759 [courts will not entertain habeas corpus claims that could have
25 been, but were not, raised on appeal]; In re Lindley (1947) 29 Cal.2d 709, 723
[courts will not entertain habeas corpus claims that attack sufficiency of the
26 evidence].)
27 (LD 21.) Thus, the California Supreme Court denied relief with respect to Petitioner’s
1 citation to In re Dixon, 41 Cal.2d 756, 759 (1953). The California Supreme Court clearly and
2 expressly stated that its judgment rests on the Dixon bar, and procedural default is appropriate
3 because the Supreme Court has held that the Dixon bar “qualifies as adequate to bar federal
4 habeas review.” Johnson v. Lee, 578 U.S. 605, 609 (2016).
5 Based on the foregoing, the Court finds that the California Supreme Court expressly
6 invoked an independent and adequate procedural rule in California, commonly referred to as the
7 Dixon bar, and Petitioner has procedurally defaulted this claim. A petitioner “may obtain federal
8 review of a defaulted claim by showing cause for the default and prejudice from a violation of
9 federal law.” Martinez v. Ryan, 566 U.S. 1, 10 (2012) (citing Coleman, 501 U.S. at 750).
10 Petitioner did not file a reply to the answer and thus, has not established cause and prejudice for
11 his default. Accordingly, the Court finds that Petitioner is procedurally barred from bringing this
12 claim and it should be dismissed. In any case, Petitioner’s claim is without merit.
13 2. Merits Analysis
14 A federal court’s inquiry on habeas review is not whether a challenged jury instruction
15 “is undesirable, erroneous, or even ‘universally condemned,’ but [whether] it violated some right
16 which was guaranteed to the defendant by the Fourteenth Amendment.” Cupp v. Naughten, 414
17 U.S. 141, 146 (1973). The “only question for [a federal habeas court] is ‘whether the ailing
18 instruction by itself so infected the entire trial that the resulting conviction violates due
19 process.’” Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp, 414 U.S. at 147).
20 Citing to page 924 of the Reporter’s Transcript on Appeal, Petitioner contends that the
21 trial court misread the CALCRIM 2901 instruction to the jury as follows:
22 “If you find the defendant guilty of vandalism in Count (1) you must decide
whether the People have proved that the amount of damage caused by the
23 vandalism was 400.00 or more. The People have the burden of proving this
allegation beyond a reasonable doubt. If the People have not met this burden, you
24 must find that this allegation has been proved.”
25 (ECF No. 1 at 4 (emphasis supplied by Petitioner).) Respondent argues that “Petitioner’s claim is
26 misguided” because “Petitioner quotes the Court of Appeal’s decision” and it “appears that the
27 state court of appeal incorrectly quoted the reporter’s transcript on appeal.” (ECF No. 7 at 20.)
1 Upon review of the record, the Court finds that Petitioner’s claim is based on a
2 misapprehension of the record (i.e., based on a clerical error in the California Court of Appeal’s
3 decision that misquotes the transcript). In the appellate court’s opinion, the California Court of
4 Appeal states:
5 The court also gave CALCRIM No. 2901:

6 “If you find the defendant guilty of vandalism in Count 1, you must decide
whether the People have proved that the amount of damaged caused by the
7 vandalism was $400 or more. [¶] The People have the burden of proving this
allegation beyond a reasonable doubt. If the People have not met this burden,
8 you must find that this allegation has been proved.” (RT 924)
9 Cross, 2022 WL 4230918, at *4 (emphasis added). However, page 924 of the Reporter’s
10 Transcript on Appeal actually states:
11 . . .If you find the defendant guilty of vandalism in Count 1, you must then decide
whether the People have proved that the amount of damage caused by the
12 vandalism was $400 or more.

13 The People have the burden of proving this allegation beyond a reasonable doubt.
If the People have not met this burden, you must find this allegation has not been
14 proved.
15 (7 RT5 924 (emphasis added).) Similarly, the relevant written instruction given to the jury for use
16 during deliberations states:
17 If you find the defendant guilty of vandalism in Count One, you must then decide
whether the People have proved that the amount of damage caused by the
18 vandalism was $400 or more.

19 The People have the burden of proving this allegation beyond a reasonable doubt.
If the People have not met this burden, you must find that this allegation has not
20 been proved.
21 (2 CT6 547 (emphasis added).)
22 Accordingly, the Court finds that Petitioner is not entitled to habeas relief on his second
23 claim, and it should be denied.
24 ///
25 ///
26 ///
27
5 “RT” refers to the Reporter’s Transcript on Appeal lodged by Respondent. (ECF No. 6.)
1 V.
2 RECOMMENDATION & ORDER
3 Based on the foregoing, the Court HEREBY RECOMMENDS that the petition for writ of
4 | habeas corpus be DENIED.
5 Further, the Clerk of Court is DIRECTED to randomly assign this action to a District
6 | Judge.
7 This Findings and Recommendation is submitted to the assigned United States District
8 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local
9 | Rules of Practice for the United States District Court, Eastern District of California. Within
10 | THIRTY (30) days after service of the Findings and Recommendation, any party may file
11 | written objections with the court and serve a copy on all parties. Such a document should be
12 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the
13 | objections shall be served and filed within fourteen (14) days after service of the objections. The
14 | assigned District Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C.
15 | § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time
16 | may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834,
17 | 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
18
19 IT IS SO ORDERED. DAA Le
20 | Dated: _February 23, 2024 __ □□
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10059485. Public record. Not legal advice.